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Uttarakhand High Court · body

2016 DIGILAW 179 (UTT)

Reliance General Insurance Company v. Hardei

2016-04-26

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. All the above-titled appeals have arisen out of a judgment rendered by the Tribunal concerned in different petitions instituted by the dependents of the deceased. All such petitions before the Tribunal arose out of the same accident which occurred in the morning hours of 9.12.2009 when the vehicle Max bearing No.UA-10-4941 was skidded off from the main road and fell into a deep gorge beside the river. This unfortunate accident caused the death of total 12 persons including the driver who was within that vehicle. This has indisputably been proved, as also depicted in the report of the A.R.T.O. dated 10.12.2009 sent to the Transport Commissioner of the State with a copy to the District Magistrate and the Superintendent of Police. Different amounts of compensation were awarded by the Tribunal looking to the merits of each and every case and feeling dissatisfied, the insurance company has come up in appeals before the Court. I have heard learned counsel for all concerned, and apart from giving the legal finding, the correctness about the evaluation of compensation would be looked into separately in each case. It is not in dispute that the vehicle concerned was comprehensively covered under the insurance and the driver was having a valid driving licence. Since the vehicle, after being purchased, was registered on 7.4.2007, then it would be assumed that its fitness would also be in a good state. The registration certificate adverts that it could carry 10 passengers at a time, so for a moment if it is presumed that including the driver, it could have transported less number of passengers, then the permit, issued to such Max Cab, also shows the number of passengers to be -10-, hence, it is obvious that the vehicle was carrying -2- passengers in addition to what was permitted under the registration certificate and the permit issued by the authority concerned. In such matters, the legal position has been clarified by the Hon’ble Apex Court in the case of National Insurance Co. vs. Anjana Shyam and others, reported in 2007 AIR SCW 5237, which has vehemently been relied by learned counsel for the insurance company. In that case, it was held that the insured is covered only to the extent of passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. vs. Anjana Shyam and others, reported in 2007 AIR SCW 5237, which has vehemently been relied by learned counsel for the insurance company. In that case, it was held that the insured is covered only to the extent of passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The Hon’ble Apex Court further opined that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of other passengers involved in the accident in a case of overloading. In such a situation, the question arises as how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining that who out of the overloaded passengers constitute the passengers covered by the insurance company as permitted to be carried by the permit itself. It was further held that the purpose of the Act is to bring benefit to the third parties who are either injured or died in an accident. It serves a social purpose. Keeping that in mind, the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of number of passengers covered by the insurance policy. In the case in hand, although 12 passengers, including the driver had died while sitting in the vehicle on account of such accident but only 10 passengers were covered. It is pertinent to mention at this stage that there are only -8- appeals against the eight awards preferred by the insurance company and none of the learned counsels could be able to disclose as to what happened about the claim petitions of remaining -4- persons who also lost their lives in such accident. It is thus, directed that after depositing the amount of all such compensations, as awarded by the Tribunal in favour of all such persons who either lost their lives or got injured, the distribution of such amount would be the responsibility of the Tribunal. It is thus, directed that after depositing the amount of all such compensations, as awarded by the Tribunal in favour of all such persons who either lost their lives or got injured, the distribution of such amount would be the responsibility of the Tribunal. The amount shall be distributed among all the claimants proportionately and it would leave all the claimants to recover the balance amount from the owner of the vehicle. Therefore, the insurance company shall be compelled to deposit the amount of all those -8- awards, as discussed by this Court hereinbelow. Now, I will take the merits of all the appeals one by one. A.O. No.21 of 2011 In this appeal, the award of Rs.3,74,800/- has been granted along with 6 percent annual simple interest from the date of institution till the actual payment. Deceased Vikram Singh Rana was a pensioner having left his widow Smt. Hardei and his young son Sheeshpal Singh Rana, aged about 24 years. In that way, such a young son can hardly be said to be the dependent, yet it is another issue, but the controversy, herein, is only to the quantum of compensation. Deceased used to get monthly pension of Rs.5,705/- at the time of accident. The Tribunal has considered this whole amount for evaluating the amount of compensation and has passed the award, under challenge. It is a matter of common knowledge that even after the death of a pensioner, his widow also gets the family pension at least to some extent and that, in any case, would not be less than Rs.2,000/- per month. Thus, the total monthly loss of Rs.3,705/- has occurred on account of death of deceased. Had he been alive, he certainly would have spent at least one-half of this sum towards his personal expenses. So, the loss, in the present controversy, comes to Rs.1852/- per mensem or Rs.22,224/- per annum. If the multiplier of digit ‘8’ is applied, then the total loss of dependency comes to Rs.1,77,792/-. I feel that further a sum of Rs.5,000/- has been awarded wherefor no reason has been explained in the judgment, so it is hereby set aside. But at the same time, awarding Rs.5,000/- as funeral expenses is left intact. If the multiplier of digit ‘8’ is applied, then the total loss of dependency comes to Rs.1,77,792/-. I feel that further a sum of Rs.5,000/- has been awarded wherefor no reason has been explained in the judgment, so it is hereby set aside. But at the same time, awarding Rs.5,000/- as funeral expenses is left intact. This way, the claimants in this case would be entitled to get a sum of Rs.1,82,792/- (rupees one lakh eighty two thousand seven hundred and ninety two only) along with 6 percent annual simple interest from the date of institution of petition till its realization. In compliance of directions of this Court, the insurance company has deposited the entire awarded amount, out of which, 50 percent has been released in favour of the claimants. Hence, the remaining amount shall be returned to the insurance company along with the interest accrued thereon. It is further directed that in no case, the amount, paid in excess to the claimants, shall be recoverable. By modifying the impugned award to the above extent, the appeal is disposed of. A.O. No.22 of 2011 In this case, deceased Vijay Pal Singh Rana was 65 years of age. At the time of accident, he was getting monthly pension @Rs.5,800/-. I feel that subsequent to his death, his widow must also be receiving monthly family pension @Rs.2,000/-. Other claimants were the sons having 30 and 27 years of age respectively at the time of accident, so in that way, they cannot be termed as dependents on the deceased. Thus, at the most, the pecuniary loss to the tune of Rs.3,800/- per month, has been caused to the claimant/widow. After deducting one-half from this sum towards the personal expenses of deceased, it comes to Rs.1,900/- per mensem or Rs.22,800/- per annum. According to the verdict of Apex Court in the case of ‘Sarla Verma and others vs. Delhi Transport Corporation and another’ (2009) 6 SCC Page 121, if the multiplier of digit ‘7’ is applied on this sum, then the total loss of dependency comes to Rs.1,59,600/-. I find that a further sum of Rs.5,000/- has been awarded wherefor no reason has been explained in the impugned judgment, so it is hereby set aside. But at the same time, the amount of Rs.5,000/- awarded towards the funeral expenses is left intact. I find that a further sum of Rs.5,000/- has been awarded wherefor no reason has been explained in the impugned judgment, so it is hereby set aside. But at the same time, the amount of Rs.5,000/- awarded towards the funeral expenses is left intact. This way, the claimants in this case would be entitled to get a sum of Rs.1,64,600/- (rupees one lakh sixty four thousand and six hundred only) along with 6 percent annual simple interest from the date of institution of petition till it is actually paid. In compliance of directions of this Court, the insurance company has deposited the entire awarded amount, out of which, 50 percent has been released in favour of the claimants. Hence, the remaining amount shall be returned to the insurance company along with the interest accrued thereon. It is further directed that in no case, the amount paid in excess to the claimants, shall be recoverable from them. By modifying the impugned award to the above extent, this appeal is also disposed of. A.O. No.23 of 2011 In this case too, deceased Dayal Singh Panwar, at the time of his death, was getting a sum of Rs.4,545/- in the form of monthly pension. He has left behind his widow Smt. Jagdei Panwar as the main dependent whereas the other claimants are his adult sons, so they cannot be said to be the dependents on the deceased. After the death of deceased, his widow must be getting family pension, in any case, not less than Rs.1500/-, so the total loss of dependency comes to Rs.3000/- per month or Rs.36,000/- per annum. After deducting one-half towards the personal expenses of deceased, it comes to Rs.18,000/- per annum. Since the deceased was 62 years of age at the time of accident, so according to the principle laid down in the case of Sarla Verma (Supra), the multiplier of ‘7’ should be applied and after doing so, it comes to Rs.1,26,000/-. The amount of Rs.5,000/- awarded towards the funeral expenses is maintained whereas granting an additional amount of Rs.5,000/-, having no reasonable explanation, is hereby set aside. So, the claimant would be entitled to get a total sum of Rs.1,31,000/- (rupees one lakh thirty one thousand only) along with 6% interest thereon from the date of institution of petition till the actual payment. So, the claimant would be entitled to get a total sum of Rs.1,31,000/- (rupees one lakh thirty one thousand only) along with 6% interest thereon from the date of institution of petition till the actual payment. In this case as well, the insurance company, in compliance of directions of this Court, has deposited the entire awarded amount, out of which, 50 percent has been directed to be released in favour of the claimants. Hence, the remaining amount shall be returned to the company along with the interest accrued thereon. It is further directed that in no case, the amount paid in excess to the claimants, shall be recoverable. With the above modification in the impugned award, this appeal is also disposed of. A.O. No.24 of 2011 In this case, deceased Jayendra Singh Rana was also a pensioner getting monthly sum of Rs.5,800/- per month. Following the principle of family pension in this case as well, his widow must also be getting Rs.2,000/- per month as family pension. Other claimants were the sons having 31, 27 and 23 years of age respectively at the time of accident, so in that way, they cannot be termed as dependents on the deceased. Thus, at the most, the pecuniary loss to the tune of Rs.3,800/- per month has been caused to the claimant/widow. After deducting one-half from this sum towards the personal expenses of deceased, it comes to Rs.1,900/- per mensem or Rs.22,800/- per annum. According to the verdict of Apex Court in the case of ‘Sarla Verma (Supra), if the multiplier of digit ‘9’ is applied on this sum, then the total loss of dependency comes to Rs.2,05,200/-. Granting a sum of Rs.5,000/- for no reason is hereby set aside. But at the same time, the amount of Rs.5,000/- awarded towards the funeral expenses is left intact. This way, the claimants in this case would be entitled to get a sum of Rs.2,10,200/- (rupees two lakh ten thousand two hundred only) along with 6 percent annual simple interest from the date of institution of petition till it is actually paid. In compliance of directions of this Court, the insurance company has deposited the entire awarded amount, out of which, 50 percent has been released in favour of the claimants. Hence, the remaining amount shall be returned to the insurance company along with the interest accrued thereon. In compliance of directions of this Court, the insurance company has deposited the entire awarded amount, out of which, 50 percent has been released in favour of the claimants. Hence, the remaining amount shall be returned to the insurance company along with the interest accrued thereon. It is further directed that in no case, the amount paid in excess to the claimants, shall be recoverable. By modifying the impugned award to the above extent, this appeal is also disposed of. A.O. No.46 of 2011 In this case, deceased Rajesh @ Shambhu was a youth of 28 years. He has left behind his widow as well as four minor children as the dependents. The Tribunal has considered his notional income as Rs.36,000/- per month and has made 1/3rd deduction towards the personal expenses, making it Rs.24,000/- per annum as dependency. In the post-mortem report, deceased’s age has been adverted as 23 years whereas in the petition, his age has been averred as 28 years. In the statement of PW1 Smt. Kavita, she has accepted the age of her husband as -28- years, so as per the Sarla Verma case (Supra), the multiplier of ’17 should have been applied instead of ‘18’. By doing so, it becomes Rs.4,08,000/-. I do not find any ground to interfere with the awarding of Rs.5,000/- and Rs.10,000/- towards the funeral expenses and loss of love and affection respectively. So, the claimants would be entitled to get the compensation to the tune of Rs.4,23,000/- (rupees four lakh and twenty three thousand only) along with 6 percent interest from the date of institution of payment till the actual payment is made. In compliance of directions of this Court, the insurance company has deposited the entire awarded amount. Let the amount of compensation, so modified by this Court, be paid to the claimants as per their respective shares. The excess amount, if any, shall be returned to the appellant-insurance company along with the interest earned thereon. It is further directed that in no case, the amount paid in excess to the claimants, shall be recoverable. By modifying the impugned award to the above extent, this appeal also stands disposed of. The excess amount, if any, shall be returned to the appellant-insurance company along with the interest earned thereon. It is further directed that in no case, the amount paid in excess to the claimants, shall be recoverable. By modifying the impugned award to the above extent, this appeal also stands disposed of. A.O. No. 486 of 2011 In this matter, judgment was rendered by learned Additional District Judge/IV FTC/MACT Dehradun on 16.8.2011, whereby the award of Rs.7.30 lakh was decreed against the insurance company along with 6 percent interest thereon from the date of filing the petition till realization. In the present controversy, deceased Dinesh Singh Jayada was working in M/s R.K. Firm as Supervisor, drawing the monthly salary of Rs.6,000/- or Rs.72,000/- per annum. The Tribunal has made 1/3rd deduction towards the personal expenses of the deceased, making it to Rs.48,000/- per annum, which is the loss caused to the bereaved family. Age of the deceased was 29 years, so, as per the Sarla Verma case, the multiplier of ‘17’ should have been applied instead of ‘15’. By doing so, the amount of compensation comes to Rs.8,16,000/-. I do not find any ground to interfere with the amount of Rs.5,000/- towards funeral expenses besides Rs.5,000/- towards loss of love and affection. Thus, the total compensation is determined as Rs.8,26,000/- (rupees eight lakh twenty six thousand only) which shall also earn the interest @6 percent per annum from the date of filing the petition till it is actually paid. The award stands modified to the above extent. Difference of the amount shall be deposited by the insurance company before the concerned Tribunal within six weeks from today, which, in turn, shall be paid to the claimants as their respective shares. The appeal is disposed of in the above terms. A.O. No. 487 of 2011 In this matter, a sum of Rs.9,90,856/- was awarded against the insurance company along with 7 percent interest per annum. The salary certificate of the deceased Gulabu Lal was filed showing his monthly income as Rs.13,623/- viz. Rs.1,63,476/- per annum. He has left behind his wife Smt. Shurma Devi, aged about 45 years and two adult sons as dependents. The Tribunal has rightly made 1/3rd deduction towards the personal expenses, making it to the tune of Rs.1,08,984/-. The salary certificate of the deceased Gulabu Lal was filed showing his monthly income as Rs.13,623/- viz. Rs.1,63,476/- per annum. He has left behind his wife Smt. Shurma Devi, aged about 45 years and two adult sons as dependents. The Tribunal has rightly made 1/3rd deduction towards the personal expenses, making it to the tune of Rs.1,08,984/-. Since, the deceased was ‘59’ years of age, hence as per the authority of Sarla Verma, the multiplier of ‘9’ has also correctly been applied making it to Rs.9,80,856/-. I do not find any ground to interfere with the amount of Rs.5,000/- each awarded towards the funeral expenses and loss of consortium respectively. So, the claimants are entitled to get Rs.9,90,856/- as the total amount of compensation. However, the interest, so awarded, is hereby reduced to 6% percent instead of 7% as awarded by the Tribunal. The difference of amount will, accordingly, be exchanged by the parties. This appeal also stands disposed of in the above terms. A.O. No.522 of 2011 In this matter, an amount of Rs.11,34,720/- has been awarded by the Tribunal as compensation along with 7 percent annual interest from the date of filing of petition. Deceased Vipin Kumar was drawing the monthly salary of Rs.8,270/- and if it is multiplied by ‘12’, it becomes Rs.99,240/- per annum. Since he was an unmarried youth of 25 years, hence he would spend at least one-half towards his personal expenses. By doing so, it comes to Rs.50,000/- in round figure. The Tribunal has rightly applied the multiplier of ‘17’. So, after applying such multiplier on the sum of Rs.50,000/-, it becomes Rs.8.50 lakh. Thus, the impugned award is modified to the tune of rupees eight lakh and fifty thousand. At the same time, the interest is also modified to 6 percent per annum from the date of filing the petition till the date of actual payment. The difference of amount would, accordingly, be exchanged by the parties and shall be disbursed as such. The appeal stands disposed of accordingly. Application for cross-objection (CLMA 13773/2015) This application has been filed in A.O. No.522/2011 but none turns up to press the same and over and above, such objections have been filed with the delay of 211 days, wherefor no plausible explanation has been given. So, the delay condonation application (CLMA 13772/ 15) is rejected. Consequently, the cross-objections are also dismissed. Application for cross-objection (CLMA 13773/2015) This application has been filed in A.O. No.522/2011 but none turns up to press the same and over and above, such objections have been filed with the delay of 211 days, wherefor no plausible explanation has been given. So, the delay condonation application (CLMA 13772/ 15) is rejected. Consequently, the cross-objections are also dismissed. The amount lying in the Court, as statutory deposit, in all the above-titled appeals, be remitted back to the concerned Tribunal. Let a copy of this judgment along with LCR of all the cases be also sent to the concerned Tribunal for doing the needful.