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Himachal Pradesh High Court · body

2016 DIGILAW 2671 (HP)

Hari Chand v. Chaya Kumari

2016-12-16

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 25th July, 2012, passed by the Motor Accident Claims Tribunal, Kullu, District Kullu, H.P., (for short, “the Tribunal”) in Claim Petition No.22 of 2011, titled Chaya Kumari and others vs. Hari Chand and others, whereby the claim petition was allowed and compensation to the tune of Rs.3,76,400/-, with interest at the rate of 9% per annum, came to be awarded in favour of the claimants No.1 and 3, and the owner and the driver came to be saddled with the liability, (for short the “impugned award”). 2. Feeling aggrieved, the owner and the driver have challenged the impugned award by the medium of instant appeal, the claimants have filed Cross Objections No. 172 of 2013 for enhancement of compensation, while the insurer has not laid challenge to the impugned award on any ground. 3. Facts of the case, in brief, are that on 14th May, 2011, at about 8.00 p.m., at Jhiri, District Mandi, H.P., original respondent No.2, namely, Karam Chand had driven the scooter bearing No. HP-34-7757 rashly and negligent, hit the deceased Pawan Kumar, as a result of which he sustained multiple injuries, was shifted to Zonal Hospital, Kullu, referred to PGI Chandigarh, where he succumbed to the injures, on 21st May, 2011. FIR bearing No.41/2011, dated 15.5.2011, was lodged at Police Station, Aut, District Mandi, H.P. It was pleaded that the deceased was running a tea shop and was earning Rs.8,000/- per month. Hence, the claim petition for compensation to the tune of Rs.10.00 lacs, as per the break-ups given therein. 4. The claim petition was resisted by the respondents by filing replies. On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether Pawan Kumar died on 14.5.2011 in a motor vehicle accident on account of rash and negligent driving of respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation and at what rate of interest, the petitioners are entitled? OPP 3. Whether the respondent-3 is liable to make payment of compensation as indemnifier? OPP 4. Whether the vehicle in question was driven in breach of terms and conditions of the insurance policy? OPR-3 5. Whether respondent No.2 was not having valid and effective driving licence to drive the vehicle? OPR-3 6. Relief.” 5. OPP 3. Whether the respondent-3 is liable to make payment of compensation as indemnifier? OPP 4. Whether the vehicle in question was driven in breach of terms and conditions of the insurance policy? OPR-3 5. Whether respondent No.2 was not having valid and effective driving licence to drive the vehicle? OPR-3 6. Relief.” 5. In order to prove their claim, the claimants examined PW-1 Dr.Akshit Chandel and PW-3 HC Khem Chand, while one of the claimants, namely, Sumit Kumar stepped into the witness box as PW-2. On the other hand, the driver and the owner have examined Devi Ram as RW-1while the insurer has not led any evidence. 6. The Tribunal, after scanning the evidence, held that the claimants have proved that Karam Chand had driven the scooter rashly and negligently on the fateful day and had caused the accident, in which the deceased sustained injuries and succumbed to the same lateron. The said findings recorded by the Tribunal on issue No.1 are not in dispute. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld. 7. Before I deal with issues No.2 and 3, I deem it proper to take up issues No.4 and 5 at the first place. Issue No.4 8. It is beaten law of the land that the insurer has to plead and prove that the owner of the offending vehicle has committed willful breach of the terms and conditions contained in the policy and mere plea here and there cannot be a ground for seeking exoneration. 9. The Apex Court in case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531 , has taken the similar view. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow: “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defences raised in the said proceedings; but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149 (2) of the Act.” 10. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 SCC 217 hereinbelow: “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran ingh case. If despite such information with the owner that the licence possessed by his driver is 8 :fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 11. Thus, it was for the insurer to plead and prove that the offending vehicle was being driven in violation of the terms and conditions contained in the insurance policy, has not led any evidence to that effect, thus, has failed to discharge the onus. The findings recorded by the Tribunal on issue No.4 are not legally and factually correct and are liable to be set aside. Accordingly, the findings on issue No.4 are set aside and the said issue is decided against the insurer. 12. As far as issue No.5 is concerned, it has been proved on record that the driver, namely, Karam Chand, was having a valid and effective driving licence to drive a Light Motor Vehicle. The driving licence has been proved on record as Ext.RW-1/A, a perusal of which does disclose that the driver was competent to drive a Light Motor Vehicle. As far as issue No.5 is concerned, it has been proved on record that the driver, namely, Karam Chand, was having a valid and effective driving licence to drive a Light Motor Vehicle. The driving licence has been proved on record as Ext.RW-1/A, a perusal of which does disclose that the driver was competent to drive a Light Motor Vehicle. It was nowhere stipulated in the said driving licence that the driver was not competent to drive a motor cycle or scooter. The Tribunal has fallen into an error in holding that the driver was not having a valid and effective driving licence to drive the offending vehicle. Accordingly, the findings returned by the Tribunal on issue No.5 are liable to be set aside and the same are set aside. The said issue is decided against the insurer. 13. In so far as issue No.3 is concerned, the factum of insurance is admitted. As has been discussed above, the insurer has failed to prove that the offending vehicle was being driven, at the relevant point of time, in contravention of the terms and conditions contained in the insurance policy. Therefore, this issue is decided in favour of the claimants and against the insurer and the insurer is held liable to pay the compensation. 14. Coming to issue No.2, which pertains to the quantum of compensation, the deceased, as has been pleaded, was running a tea shop at the time of accident and was earning Rs.8,000/- per month. Qua the income of the deceased, no documentary proof has been proved on record, but, it has come in the statement of PW-2 Sumit Kumar that the deceased was earning Rs.8,000/- per month, which has remained uncontroverted. The Tribunal has wrongly assessed the income of the deceased at Rs.4,000/-. As per the pleadings and the evidence on record, it can safely be said that the deceased was earning Rs.6,000/- per month i.e. Rs.200/- per day. Thus, it is held that the deceased, at the time of death, was earning Rs.6,000/- per month and after deducting 1/3rd towards his personal expenses, loss of source of dependency to the claimants can be said to be Rs.4,000/- per month. 15. The Tribunal has wrongly applied the multiplier of 11. The deceased, at the time of accident, was 55 years of age. 15. The Tribunal has wrongly applied the multiplier of 11. The deceased, at the time of accident, was 55 years of age. In view of the law laid down 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, multiplier of 10 is just and appropriate and is applied in the present case. 16. Having said so, the claimants are held entitled to Rs.4,000/- x 12 x 10 = Rs.4,80,000/- under the head ‘loss of source of dependency’. 17. In addition, the claimants are also held entitled to Rs.10,000/- each, i.e. Rs.40,000/- in all, under the heads ‘loss of estate’, ‘loss of love and affection’, ‘loss of consortium’ and ‘funeral expenses’. 18. Apart from the above, the claimants have superficially pleaded in the claim petition and also proved by leading evidence that the deceased, after the accident, remained admitted in the hospital w.e.f. 14th May, 2011 (the date of accident) till 21st May, 2011, when he succumbed to the injuries sustained by him. Thus, during this period, the claimants would have spent considerable amount for the treatment of the deceased. Thus, supposedly, I award Rs.50,000/- under the head ‘treatment’. 19. Having said so, the claimants are held entitled to compensation to the tune of Rs.4,80,000/- + Rs.40,000/- + Rs.50,000/- = Rs.5,70,000/-. 20. The Tribunal has also fallen into an error in awarding interest at the rate of 9% per annum. It is beaten law of land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281 ; Santosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 SCC 738 ; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & Ors. versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 Supreme Court Cases 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434 , and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 21. Having said so, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the deposit thereof. 22. Yet again, the Tribunal has wrongly not awarded anything in favour of claimant Sumit Kumar, who is the son of the deceased. Accordingly, it is held that the amount of compensation shall be apportioned amongst all the claimants equally. 23. The amount of compensation, alongwith interest, shall be deposited by the insurer before the Tribunal below within a period of eight weeks from today and on deposit, the same be released in favour of the claimants forthwith. In case the owner/appellant has already deposited the amount of compensation, the same be released in his favour alongwith up-to-date interest accrued thereon, through payee’s account cheque, after the amount is deposited by the insurer and released to the claimants. 24. In view of the above discussion, the appeal and the cross objections are allowed and the impugned award is modified, as indicated above. The appeal and cross objections stand disposed of accordingly.