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2017 DIGILAW 161 (HP)

Oriental Insurance Company Limited v. Vijay Ram

2017-03-10

MANSOOR AHMAD MIR

body2017
JUDGMENT : Mansoor Ahmad Mir, J. 1. This appeal is directed against the award, dated 7th May, 2012, passed by the Motor Accident Claims Tribunal, Bilaspur, H.P. (for short “the Tribunal”) in Claim Petition No. 28 of 2010, titled Vijay Ram and Another vs. M/s. Naresh Kumar and Others, whereby the claim petition was allowed and compensation to the tune of Rs. 7,52,960/- alongwith interest at the rate of 7.5% per annum, came to be awarded 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. Feeling aggrieved, the insurer has filed the instant appeal challenging the impugned award. 4. Brief facts of the case are that on 19th January, 2010, at about 8.10 a.m. at village Kallar, deceased Chhota Ram was standing alongside the road on the left side and was waiting for bus, when the offending vehicle bearing No. HP 24A 6444, being driven by its driver namely Jogi Mohammad in a rash and negligent manner, came in a very high speed, could not negotiate the curve, fell into the deep gorge and crushed the deceased resulting into his death. It was averred that the claimants were the brothers of the deceased, as the deceased was not having wife and was issueless. The claimants filed the claim petition claiming compensation to the tune of Rs. 15.00 lacs, as per the break-ups given therein. 5. The claim petition was resisted by the respondents and following issues came to be framed by the Tribunal: “1. Whether the deceased died in a motor vehicle accident which took place on 19.1.2010 at about 8.10 A.M. at village and P.O. Kallar on NH-21, District Bilaspur, H.P. due to the rash and negligent driving of vehicle Bulker No. HP-24A-6444 by its d river respondent No. 2? OPP 2. If issue no. 1 supra is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP 3. Whether the petition is not maintainable? OPR-3 4. Whether the respondent no. 2 was not having any valid and effective driving licence to drive the vehicle in question at the relevant time, as alleged? OPR-3 5. If issue no. 1 supra is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP 3. Whether the petition is not maintainable? OPR-3 4. Whether the respondent no. 2 was not having any valid and effective driving licence to drive the vehicle in question at the relevant time, as alleged? OPR-3 5. Whether the vehicle in question was being plied without documents i.e. valid registration certificate, fitness certificate and valid route permit, as alleged? OPR-3 6. Relief.” 6. In order to prove their case, the claimants examined as many as five witnesses. On the other hand, the insurer, the insured/owner and the driver have not led any evidence. Thus, the evidence led by the claimants has remained un-rebutted. 7. During the course of hearing, the learned counsel for the appellant/insurer raised two-fold arguments: (i) The claim petition was not maintainable; (ii) The amount of compensation awarded by the Tribunal is excessive. 8. It is worthwhile to notice that the claimants have specifically pleaded in the claim petition that the deceased was their brother, was not having wife and was issueless. The learned counsel for the appellant/insurer argued that the claim petition, on behalf of the brothers, was not maintainable since they were not dependant upon the deceased. The argument of the learned counsel for the insurer is negatived for the reason that the claimants have pleaded and proved that they were dependant upon the deceased. The Tribunal, after relying upon the decisions of the Apex Court as well as this Court, has rightly made discussion in paragraph 14 of the impugned award and held that the claimants, being brothers, were entitled for compensation. 9. The findings recorded by the Tribunal on issue no. 1 are not in dispute and has also not been questioned before me. Accordingly, the findings returned on issue no. 1 are upheld. 10. As far as Issues No. 3 to 5 are concerned, onus to prove the same was on the insurer, has not led any evidence. Accordingly, the findings returned by the Tribunal on these issues are also upheld. 11. Coming to Issue No. 2, as has been discussed above, the claimants, being brothers, are entitled for compensation. The deceased, as per pleadings in the claim petition, was working as Beldar in PWD/Horticulture Department. The gross salary of the deceased was Rs. Accordingly, the findings returned by the Tribunal on these issues are also upheld. 11. Coming to Issue No. 2, as has been discussed above, the claimants, being brothers, are entitled for compensation. The deceased, as per pleadings in the claim petition, was working as Beldar in PWD/Horticulture Department. The gross salary of the deceased was Rs. 10,180/- per month, as is borne out from the salary certificate Ext.PW-3/A. The deceased was issueless and was also not having wife. Thus, after deducting 50% amount from the monthly income of the deceased towards his personal expenses, it can safely be held that the claimants lost source of dependency to the tune of Rs. 5,000/- per month. 12. As per the postmortem report Ext.PW-5/A and the pleadings, the deceased, at the time of accident, was 55 years of age. The Tribunal, after examining the record, has rightly taken the age of the deceased as 55 years at the time of death. The Tribunal has fallen in error in applying the multiplier of 9, while multiplier of 8 is just and appropriate in the instant case. 13. In view of the above discussion, the claimants are held entitled to Rs. 5,000/- x 12 x 8 = Rs. 4,80,000/- under the head ‘loss of source of dependency’. In addition, the claimants are also held entitled to Rs. 10,000/- each under the heads loss of love and affection and funeral expenses. 14. Having said so, Rs. 4,80,000/- + Rs. 20,000/- = Rs. 5,00,000/- are awarded as compensation to the claimants alongwith interest as awarded by the Tribunal. 15. The Registry is directed to release the award amount in favour of the claimants strictly in terms of the impugned award by depositing the same in their respective bank accounts or through payees account cheque. Excess amount, if any, be refunded to the appellant/insurer through its bank account or payees account cheque. 16. Send down the record after placing a copy of the judgment on the Tribunal's file.