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Himachal Pradesh High Court · body

2016 DIGILAW 192 (HP)

Oriental Insurance Co. v. Usha Kumari

2016-03-04

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice, (Oral) 1. These appeals are directed against the judgment and award dated 19.8.2008, made by the Motor Accident Claims Tribunal Hamirpur, H.P. in MAC Petition No. 8 of 2007, titled Usha Kumari and others versus Vinay Kumar and others, for short “the Tribunal”, whereby compensation to the tune of Rs.15,81,000/- alongwith interest @ 7.5% per annum was awarded in favour of the claimants, hereinafter referred to as “the impugned award”, for short. 2. Owner and driver have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. 3. The claimants, by the medium of FAO No. 358 of 2009, have questioned the impugned award on the ground that the Tribunal has fallen in an error in assessing the compensation and have sought enhancement of compensation. 4. The insurer, by the medium of FAO No. 17 of 2009, has sought exoneration and in the alternative the amount awarded is on the higher side. 5. The claimants had approached the Motor Accident Claims Tribunal, Hamirpur by filing claim petition for the grant of compensation to the tune of Rs.25 lacs, as per the break-ups given in he claim petition. 6. Respondents No. 2 and 3 have filed objections and ex parte proceedings were drawn against respondent No.1. 7. The owner has admitted paras 8 and 9 of the claim petition. It is apt to reproduce paras 8 and 9 of the reply filed by respondent No. 2-owner. “8 & 9. admitted to be correct.” 8. This clinches the issue, so far as it relates to the question of negligence. However, the Tribunal has framed the issues. The claimants have led evidence. Owner and insurer have not led any evidence. 9. Keeping in view the admission made by the owner reproduced hereinabove, read with the evidence led by the claimants, there is sufficient evidence to hold that the driver, namely, Vinay Kumar has driven the vehicle rashly and negligently on the date of the accident and caused the accident in which Pawan Kumar lost his life. Thus, the findings returned on issue No. 1 are upheld. 10. Before I deal with issue No. 2, I deem it proper to deal with issue No. 3, at the first instance. It was for the insurer to lead evidence, has not led any evidence. Thus, the findings returned on issue No. 1 are upheld. 10. Before I deal with issue No. 2, I deem it proper to deal with issue No. 3, at the first instance. It was for the insurer to lead evidence, has not led any evidence. However, the driving licence has been produced on the record, which do disclose that the driver was having a valid and effective driving licence, as recorded in para 20 of the impugned award. Thus, the insurer has failed to discharge the onus. Accordingly, the findings returned on this issue are upheld. 11. Admittedly, the deceased was Assistant Manager with M/s Global Agri System Private Limited in New Delhi. The appointment order Ext. PW1/A is on the record. PW2 Sukh Ram stated that the monthly income of the deceased was Rs.12000/-. The Tribunal has rightly held that the deceased was earning Rs.12,000/- per month and after deductions held that the claimants have lost source of dependency to the tune of Rs.8000/- but has fallen in an error in applying the multiplier of “16” whereas multiplier of “15” is applicable as per the 2nd Schedule of the Motor Vehicles Act, read with Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. 12. The Tribunal has awarded a sum of Rs.25000/- under the head “conventional charges”, Rs.10,000/- under the head “loss of consortium” and Rs.10,000/- under the head “love and affection” but has not awarded any amount under the head funeral expenses. Thus, I deem it proper to award Rs.10,000/- under the head funeral expenses. 13. Thus, the claimants have lost source of dependency to the tune of Rs.8000/-x12x15= Rs.14,40,000/- plus Rs.25000/- under the head “conventional charges”, Rs.10,000/- under the head “loss of consortium” Rs.10,000/- under the head “love and affection” and Rs.10,000/- under the head funeral expenses. Total a sum of Rs.14,95,000/-, with interest as awarded by the Tribunal. 14. Having said so, the impugned award is modified as indicated hereinabove. 15. The insurer is directed to deposit the amount, if not already deposited, in this Registry within six weeks from today. Total a sum of Rs.14,95,000/-, with interest as awarded by the Tribunal. 14. Having said so, the impugned award is modified as indicated hereinabove. 15. The insurer is directed to deposit the amount, if not already deposited, in this Registry within six weeks from today. The Registry is directed to release the same in favour of the claimants, strictly in terms of the conditions contained in the impugned award, and excess amount, if any, with interest, if accrued, be released in favour of the insurer, through payees cheque account. 16. Both the appeals are disposed of accordingly. 17. Send down the record forthwith, after placing a copy of this judgment.