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2016 DIGILAW 2434 (HP)

Oriental Insurance Company Limited v. Dila Kumari

2016-11-18

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 16th January, 2012, passed by the Motor Accident Claim Tribunal (II), Mandi, H.P. (for short, “the Tribunal”) in Claim Petition No.90 of 2007, titled Dila Devi & another vs. Ram Singh & others, whereby a sum of Rs.2,80,000/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimants and the insurer was saddled with the liability (for short the “impugned award”). 2. The claimants, the owner-insured and the driver have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. Brief facts of the case are that on 23.8.2007 at about 2.30 pm at village Julah, the claimants were working in the fields and their son and daughter were playing nearby. Vehicle bearing registration No.HP-33-A-0376, being driven by driver, namely, Jai Parkash rashly and negligently, rolled down the road and the son of the claimants was crushed resulting into his instantaneous death, and their daughter also sustained injuries. Thus, the claimants filed claim petition before the Tribunal for grant of compensation to the tune of Rs.10,00,000/- as per break-ups given in the claim petition. 4. The claim petition was resisted by the respondents and following issues came to be framed by the Tribunal: “1. Whether deceased Rewat Singh died due to rash and negligent driving of Canter No.HP-33-A-0376 by respondent No.2 as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled for compensation, if so, to what amount and from whom? OPP 3. Whether the respondent No.2 was not holding a valid and effective driving licence at the time of accident? OPR-3 4. Whether the vehicle in question was being plied in contravention of the terms and conditions of the Insurance Policy? OPR-3 5. Relief.” 5. In order to prove their case, the claimants examined Devinder Kumar as PW-2, while one of the claimants, namely, Dila Devi appeared as PW-1. Driver of the offending vehicle stepped into the witness box as RW-2 and one Diwan Chand has been examined as RW-1. 6. Heard learned counsel for the parties and gone through the record. My issue-wise findings are as follows. Issue No.1 7. Driver of the offending vehicle stepped into the witness box as RW-2 and one Diwan Chand has been examined as RW-1. 6. Heard learned counsel for the parties and gone through the record. My issue-wise findings are as follows. Issue No.1 7. The Tribunal after examining the evidence held that the driver had driven the offending vehicle rashly and negligently and caused the accident. There is no challenge to the said findings recorded by the Tribunal. However, I have gone through the impugned award. The Tribunal has rightly made discussion in paragraphs 13 to 19 of the impugned award and held that Jai Parkash had driven the offending vehicle rashly and negligently and caused the accident. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld. 8. Before issue No.2 is taken up, I deem it proper to deal with issues No.3 and 4 at the first instance. Issue No.3 9. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident, has failed to discharge the onus. On the contrary, copies of the driving licence have been placed on record as Mark R-1 and R-2, a perusal whereof shows that, at the relevant point of time, the driver of the offending vehicle was having a valid and effective driving licence. Accordingly, findings returned by the Tribunal on issue No.3 are upheld. Issue No.4 10. Onus to prove this issue was on the insurer. It was for the insurer to plead and prove that the vehicle was being driven in contravention of the terms and conditions contained in the insurance policy. One of the grounds taken by the insurer in the memo of appeal is that the deceased was traveling in the offending vehicle as gratuitous passenger. The positive case of the claimants is that the deceased, at the time of accident, was playing in the fields and all of a sudden, the offending vehicle rolled down the road and fell on the deceased as a result of which the deceased got crushed and lost his life. The insurer has not led any evidence to prove that the deceased was traveling in the offending vehicle as gratuitous passenger. Thus, under no circumstance, it can be said that the deceased was traveling in the offending vehicle as a gratuitous passenger. The insurer has not led any evidence to prove that the deceased was traveling in the offending vehicle as gratuitous passenger. Thus, under no circumstance, it can be said that the deceased was traveling in the offending vehicle as a gratuitous passenger. Accordingly, the findings returned by the Tribunal on issue No.4 are upheld. Issue No.2. 11. This issue pertains to the quantum of compensation. It is moot question whether the insurer can question the adequacy of compensation. 12. 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. 13. 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. 14. 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. 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 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 Rs. 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to Rs. 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.” 15. Thus, the insurer can question the adequacy of compensation only if it has sought permission under Section 170 of the Motor Vehicles Act. 16. In the present case, it has to be seen whether the insurer has sought any such permission? 17. I have gone through the record, which does disclose that neither any such application was filed by the insurer nor such permission was granted. Learned counsel appearing on behalf of the insurer frankly conceded that no such permission was sought. 18. The amount of compensation appears to be meager. Unfortunately, the claimants have not questioned the impugned award on the ground of adequacy of compensation. Therefore, the same is reluctantly upheld and the appeal is dismissed. 19. The Registry is directed to release the award amount in favour of the claimants strictly in terms of the impugned award by depositing in their respective bank accounts or through payees account cheque. 20. Send down the record after placing a copy of the judgment on the Tribunal's file.