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2016 DIGILAW 2201 (HP)

Oriental Insurance Co. Ltd. v. Pushpa Devi

2016-10-07

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 26th September, 2011, passed by Motor Accident Claims Tribunal, Mandi, District Mandi, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.18,60,000/-, with interest at the rate of 7% per annum from the date of filing of the petition till realization, came to be awarded in favour of the claimants, and the insurer was saddled with the liability, (for short, the impugned award). 2. Facts of the case, in brief, are that on 3rd August, 2007, deceased Sanjeev Kumar, was going from Sundernagar to Mandi in his own car bearing registration No. HP-32-0294, when he reached near Valley View Hotel, truck bearing No. HP-34B-1351, being driven by respondent No.2 Subhash Chand rashly and negligently, hit the car, as a result of which Sanjeev Kumar sustained injuries and died on the spot. Hence, the claim petition for compensation to the tune of Rs.20.00 lacs. 3. Respondents resisted the claim petition by filing replies. 4. Following issues came to be framed by the Tribunal: “1. Whether respondent No.2 was driving the truck HP-34B-1351 on 3.8.2007 at 10.30 a.m. at Chakkar, in rash and negligent manner, resulting in the death of Sanjeev Kumar, as alleged? OPP 2. If issue No.1 is proved, to what amount and from whom the petitioners are entitled? OPP 3. Whether respondent No.2 was not having a valid and effective driving licence and was driving the vehicle in violation of the terms and conditions of the insurance policy? OPR-3 4. Whether the petition is not maintainable, as alleged? OPR 1 & 2 5. Whether the accident has occurred due to the rash and negligent driving of the deceased himself as alleged? OPR 1 & 2. 6. Relief.” 5. Claimants have examined three witnesses, namely, PW-1 Pushpa Devi (one of the claimants), PW-2 Partap Singh and PW-3 Rakesh Kumar. On the other hand, the owner and the driver stepped into the witness box as RW-1 and RW-2, respectively, and also examined ASI Suresh Kumar as RW-3. The insurer has not led any evidence. 6. The Tribunal after examining the pleadings and the evidence allowed the claim petition and saddled the insurer with the liability. 7. The claimants, the owner and the driver have not challenged the impugned award on any count, thus, the same has attained finality so far as it relates to them. The insurer has not led any evidence. 6. The Tribunal after examining the pleadings and the evidence allowed the claim petition and saddled the insurer with the liability. 7. The claimants, the owner and the driver have not challenged the impugned award on any count, thus, the same has attained finality so far as it relates to them. 8. Feeling aggrieved, the insurer has challenged the impugned award by way of instant appeal, on the grounds taken in the memo of appeal. 9. During the course of hearing the learned counsel for the appellant/insurer submitted that the Tribunal has wrongly come to the conclusion that Subhash Chand had driven the offending vehicle rashly and negligently and had caused the accident. In the absence of any appeal having been filed by the driver of the offending vehicle, can insurer urge that the accident was not the outcome of rash and negligent driving of the driver?. The answer is in the negative for the following reasons. 10. The Tribunal, after scanning the pleadings and the evidence, held that Subhash Chand (original respondent No.2) had driven the offending vehicle rashly and negligently at the relevant point of time and had caused the accident. Driver Subhash Chand and the insured had not questioned the said findings recorded by the Tribunal by filing appeal. 11. The insurer has not led any evidence in rebuttal and in support of the assertions made in the reply filed to the claim petition. The insurer has also not sought permission under Section 170 of the Motor Vehicles Act, 1988, (for short, the Act). 12. It being so, the Tribunal has rightly made discussion that the driver of the offending vehicle, namely, Subhash Chand had driven the offending vehicle rashly and negligently and had caused the accident. Accordingly, the findings recorded by the Tribunal on issue No.1 are upheld. 13. Onus to prove issue No.3 was on the insurer, has not led any evidence to discharge the same. On the contrary, it is seen from the records that the driving licence of the driver has been proved on record and stands exhibited as Ext.PW-1/D in the presence of the learned counsel for the parties. At the time of exhibiting the said document, no objection was raised by the insurer, therefore, it is precluded from raising any objection about the admissibility of the same at a later stage. 14. At the time of exhibiting the said document, no objection was raised by the insurer, therefore, it is precluded from raising any objection about the admissibility of the same at a later stage. 14. The Apex Court in case titled as Rakesh Kumar & Etc. vs. United India Insurance Company Ltd. & Ors. Etc. Etc., JT 2016 (6) SC 504, has held that once the licence was proved and marked in evidence without any objection by the insurance company, it had no right to raise any objection about its admissibility at a later stage. It is apt to reproduce paragraph 20 of the said decision hereunder: “20. First, the driver of the offending vehicle (N.A.-2) proved his driving license (Exhibit-R1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had no right to raise any objection about the admissibility and manner of proving of the license at a later stage (See Oriental Insurance Company Ltd. Vs. Premlata Shukla & Ors., 2007 13 SCC 476 and lastly, the Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason.” 15. Having said so, the findings recorded by the Tribunal on issue No.3 are upheld. 16. Onus to prove issues No.4 and 5 was on the owner and the driver, have not led any evidence to prove the said issues. The Tribunal, after scanning the evidence, has rightly come to the conclusion that the owner and the driver have failed to discharge the onus cast on them and prove these issues. The owner and the driver have not challenged the said findings. Accordingly, the same are upheld as having attained finality. Issue No.2 17. Keeping in view the discussion made hereinbelow, the insurer cannot question the adequacy of compensation. 18. The owner and the driver have not challenged the said findings. Accordingly, the same are upheld as having attained finality. Issue No.2 17. Keeping in view the discussion made hereinbelow, the insurer cannot question the adequacy of compensation. 18. In terms of the mandate of Sections 147 and 149 of the Act, read with the terms and conditions contained in the insurance policy, the insurer has limited grounds available, but, it can contest the claim petition on other grounds provided permission in terms of Section 170 of the Act has been obtained. 19. It is apt to reproduce Section 170 of the Act herein: “170. Impleading insurer in certain cases. - Where in the course of any inquiry, the claims Tribunal is satisfied that – (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.” 20. The insurer can seek permission to contest the claim petition on all grounds available to it and in case permission has not been sought and granted, it is precluded from questioning the award on adequacy of compensation or any other ground, which is not otherwise available to it. 21. This question arose before the Apex Court in the case titled as United India Insurance Co. Ltd. Versus Shila Datta & Ors., reported in 2011 AIR SCW 6541, and the matter was referred to the larger Bench. 22. The question again arose before the Apex Court in the case titled as Josphine James versus United India Insurance Co. Ltd. & Anr., reported in 2013 AIR SCW 6633. It is apt to reproduce paras 8, 17 and 18 of the judgment herein: “8. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no. The question again arose before the Apex Court in the case titled as Josphine James versus United India Insurance Co. Ltd. & Anr., reported in 2013 AIR SCW 6633. It is apt to reproduce paras 8, 17 and 18 of the judgment herein: “8. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no. 433/2005 and the review petition, the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagi's case and instead, placing reliance upon the Bhushan Sachdeva's case. Nicolletta Rohtagi's case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta, 2011 10 SCC 509 . Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagi's case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore, the impugned judgments and awards are liable to be set aside. 9. to 16. ........... 17. The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs. 6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs. 6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (2002) 7 SCC 456 : AIR 2002 SC 3350 : 2002 AIR SCW 3899, and earlier decisions wherein this Court after interpreting Section 170 (b) of the M. V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to though the correctness of the aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court. 18. In view of the aforesaid reasons, the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same, the Insurance Company had only limited defence to contest in the proceedings as provided under Section 149 (2) of the M.V. Act. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5,000/- and applying 14 multiplier, is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma v. Delhi Transport Corporation, 2009 6 SCC 121 instead of applying the principle laid down in Baby Radhika Gupta's case regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Section 170 (b) of the M.V. Act. In view of the aforesaid reason, the High Court should not have allowed the appeal of the Insurance Company as it has got limited defence as provided under section 149(2) of the M.V. Act. Therefore, the impugned judgment and award is vitiated in law and hence, is liable to be set aside by allowing the appeal of the appellant.” 23. Thus, the insurer can question the adequacy of compensation only if it has sought permission under Section 170 of the Act. In the present case, it has to be seen whether the insurer has sought any such permission? 24. During the course of hearing, the learned counsel for the insurer frankly conceded that no permission was granted under Section 170 of the Act. 25. Having said so, it is held that the insurer cannot challenge the impugned award on the ground of adequacy of compensation. 26. Factum of insurance is admitted. Thus, the insurer has been rightly saddled with the liability. 27. Notwithstanding above, I have gone through the impugned award and the record. The deceased, at the time of accident, was 37 years of age, was a government employee and was drawing salary to the tune of Rs.14,094/- per month as per salary certificate Ext.PW-3/A. The Tribunal after making deduction, has rightly concluded that the deceased was earning Rs.1,24,000/- per annum. Keeping in view the age of the deceased, the Tribunal has rightly applied multiplier of 15, as has been held by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120 read with the 2nd Schedule attached with the Act. 28. In addition, the Tribunal has awarded Rs.5,000/- each under the heads ‘loss of estate’ and ‘funeral charges’; and Rs.10,000/- under the head ‘consortium’. The amount awarded under the former two heads appears to be on the lower side, however, since the claimants have not questioned the impugned award, therefore, the same is reluctantly upheld. 29. Having regard to the above discussion, the impugned award is upheld and the appeal is dismissed. The amount awarded under the former two heads appears to be on the lower side, however, since the claimants have not questioned the impugned award, therefore, the same is reluctantly upheld. 29. Having regard to the above discussion, the impugned award is upheld and the appeal is dismissed. The Registry is directed to release the awarded amount forthwith in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in their respective bank accounts.