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2018 DIGILAW 345 (HP)

New India Assurance Company v. Kumbh Dei

2018-03-14

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/Insurance Company (hereinafter referred to as ''the appellant''). Subject matter of the present appeal is award, dated 31. 10. 2015, made by the learned Motor Accident Claims Tribunal, Shimla, (for short ''the learned Tribunal'') in M. A. C. case No. 110-S/2 of 2013, titled as Sh. Sada Nand and others versus New India Assurance Company and others, vide which the compensation to the tune of Rs. 19,78,000/- (Nineteen lacs seventy eight thousand) was awarded with interest @ 7. 5% per annum from the date of institution of the claim petition till its realization and costs assessed at Rs. 5,000/- came to be awarded in favour of the claimants. 2. As per the petitioners, deceased Devinder Kumar was travelling in vehicle No. HP-51A-1145, and died in the road side accident, which took place on 13. 7. 2013 at 7. 30 P. M. at Jajhar Nalah on DalashLuhari road. 3. The claimants No. 1 and 2 are the parents, claimant No. 3 is the wife and claimant No. 4 is the son of deceased Devinder Kumar driver of the vehicle No. HP-51A-1145. 4. The case of the claimants is that the accident took place due to the rash and negligent act of the driver, who unfortunately has also died in the accident in question. 5. The Insurance Company filed its reply, in which the preliminary objection qua the fact that the claim petition is not maintainable, the vehicle involved in the accident was being driven in violation to the provisions of Motor Vehicles Act as well as in contraventions to the terms and conditions of the insurance policy have been taken. It has also been pleaded that the deceased was travelling in the vehicle in question as gratuitous passenger. It has also been pleaded that the driver was not having a valid and effective driving licence and there was collusion between the claimants and the respondents No. 2 and 3. 6. The owner of the vehicle was Maneesh Kumar (respondent No. 2). He also filed his separate reply, in which, he denied the contents of the claim petition for want of knowledge. However, the factum of accident has been admitted and it has been admitted that the deceased was travelling in the vehicle with apples. 7. The L. Rs. 6. The owner of the vehicle was Maneesh Kumar (respondent No. 2). He also filed his separate reply, in which, he denied the contents of the claim petition for want of knowledge. However, the factum of accident has been admitted and it has been admitted that the deceased was travelling in the vehicle with apples. 7. The L. Rs. of the deceased driver has not chosen to file reply as the driver has expired in the accident. So, the legal representatives were made party and they were proceeded against exparte before the learned Tribunal below. 8. The above mentioned claims petition was resisted by the respondents/claimants before the learned Tribunal and the following issues came to be framed by the learned Tribunal below on 05. 8. 2014/30. 10. 2015: "1. Whether Sh. Virender Kumar was driving Bolero Camper bearing registration No. HP-51A-1145 on dated 13. 07. 2013 at place Jajhar Nala on Dalash-Luhari road in rash and negligent manner resulting in death of Vikas Sharma, as alleged? OPP. 2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP. 3. Whether vehicle was being driven in violation of terms and conditions of Insurance Policy, provisions of Motor Vehicles Act and Rules as alleged? OPR. 4. Whether deceased Devinder Kumar was travelling in the offending vehicle as unauthorized/ gratuitous passenger as alleged? OPR. 5. Whether deceased driver Virender Kumar was not holding valid and effective driving licence as alleged? OPR 6. Whether petition is not legally maintainable as alleged? OPR 7. Whether petition has been filed in collusion with respondents No. 2 & 3 as alleged? OPR-1. 8. Relief. " 9. The learned Tribunal, after examining the evidence, oral as well as documentary, held that the owner/insured-cum-driver of the offending vehicle had driven the same rashly and negligently at the time of accident and caused accident. 10. After deciding Issue Nos. 1 and 2 in affirmative and Issue Nos. 3 to 7 in negative, the learned Tribunal awarded this compensation amount. The Appellant/ Insurance Company assailed the present award on the following grounds: (1). 10. After deciding Issue Nos. 1 and 2 in affirmative and Issue Nos. 3 to 7 in negative, the learned Tribunal awarded this compensation amount. The Appellant/ Insurance Company assailed the present award on the following grounds: (1). That the impugned award under Section 166 of the Motor Vehicles Act is against the law and contrary to the facts and documents placed on the record, hence, liable to be quashed and set aside; (2) That the learned Motor Accident Claims Tribunal has fallen in grave error in awarding exaggerated/ exorbitant amount and passed an award by totally ignoring the well settled legal positions as lay down by the Hon''ble Supreme Court of India and the award is not only perverse, fanciful unjustifiable, unfair, arbitrary but also unreasonable. It has been submitted that the application moved under Section 170 of the MVA by the appellant was allowed by the learned Tribunal on 29. 10. 2014; (3) That the learned Tribunal below has wrongly fastened the liability on the appellant despite the fact that the appellant has categorically pleaded and proved on record that the vehicle was plied in violation of the terms and conditions of the insurance policy; (4) That the findings of the learned Tribunal below on Issue No. 4 is without any evidence and pleadings. The contemporaneous record produced on record clearly shows that two persons were travelling as gratuitous passengers. The petitioners nowhere pleaded that deceased was travelling as a owner of the goods; (5) That the learned Tribunal below has acted upon wrong principle of law by awarding extremely high/exorbitant compensation. The learned Tribunal below has drawn inference about the deceased occupation and income without any cogent and reliable oral or documentary evidence on record. It has been submitted that the learned Tribunal below should not allow a misfortune to turn into windfall. The income after deduction of 1/3 should have been assessed as Rs. 8,000/- instead of Rs. 9,000/-; (6) That the learned Tribunal below has awarded highly excessive compensation without their being any documentary evidence on record. The claimants have failed to prove on record the earning of the deceased and the figure of earning taken by the learned Tribunal below was without any basis 11. 8,000/- instead of Rs. 9,000/-; (6) That the learned Tribunal below has awarded highly excessive compensation without their being any documentary evidence on record. The claimants have failed to prove on record the earning of the deceased and the figure of earning taken by the learned Tribunal below was without any basis 11. Learned counsel for the appellant has argued that Insurance Company is not liable to pay the amount of compensation and further that amount as awarded is against the law as settled by the Hon''ble Supreme Court of India in Special Leave Petition(Civil) No. 25590 of 2014, decided on 31. 10. 2017, titled National Insurance Company Limited versus Pranay Sethi and others, and the amount is thus required to be reduced. 12. On the other hand, learned counsel appearing for the respondents have argued that the Insurance Company has no right to assail the award and the appeal be dismissed. 13. In rebuttal, the learned counsel for the appellant has argued that as per the decision of the Hon''ble Supreme Court in Special Leave Petition(Civil) No. 25590 of 2014, titled National Insurance Company Limited versus Pranay Sethi and others, the award be modified. 14. To appreciate the arguments of the learned counsel appearing on behalf of the parties, I have gone through the record of the appeals carefully. 15. As far as the negligence of the driver of the vehicle is concerned, PW1, Pooja Devi by filing her affidavit Ex. PW-1/A in examination in chief shows that the same is based upon the contents of the claim petition. Further, the facts speaks to itself. 16. Pw2, H. C. Anil Kumar, Police Station, Anni, District Kullu, proved the copy of the F. I. R. , Ext. PW-2/A, registered at Police Station, Anni. He deposed that due to the death of the driver in the accident, in question, the proceedings in the FIR have been dropped. However, the case of the Assurance Company is that in the F. I. R. there is nothing to show that the deceased was travelling as the owner of the vehicle. So far as the death is concerned, PW3, Dr. Manish Thakur, who conducted the postmortem examination of the dead body of the deceased, has explained that the deceased died in the motor accident. Copy of the F. I. R. (Ext. PW-2/A) is on the record. So far as the death is concerned, PW3, Dr. Manish Thakur, who conducted the postmortem examination of the dead body of the deceased, has explained that the deceased died in the motor accident. Copy of the F. I. R. (Ext. PW-2/A) is on the record. It has been mentioned in the FIR that the accident in question had taken place due to the rash and negligent driving of the driver of the vehicle No. HP-51A1145. Unfortunately the driver, against whom the allegations of rash and negligent driving have been levelled by the claimants, had also died in the accident in question. In this case, there is no eye witnesses to the accident in question as all the occupants as well as the driver died in the accident. Keeping in view the allegations, which have been mentioned in the FIR, according to which, the road was wide enough, this Court is of the view that the accident had taken place due to the rash and negligent driving of the driver and the registration of FIR is prima facie proof for rash and negligent driving against the driver of the ill-fated vehicle. 17. Further, from the record, it is clear that it was the driver who was driving the vehicle in such a rash and negligent manner that he could not control the vehicle and resultantly, the accident took place and the deceased died. Further, the facts speaks of itself. So, this Court is of the considered view that the accident in question, took place due to the rash and negligent driving of the vehicle in question, in which the deceased received fatal injuries. 18. The deceased was 32 years of age and his income has rightly been assessed as Rs. 8,000/- per month on the basis of record available and he is entitled for 40% increase as per the judgment of the Hon''ble Supreme Court. So, taking into consideration the age of the deceased, the multiplier of 16 is required to be applied as he has left behind his parents, wife & child and taking into consideration this, it can safely be held that he was spending 1/3rd amount on himself and contributing rest amount to the family. So, if we make 06 units, 2/3rd comes to the share of the family. So, the claimants are entitled to the compensation as under: Rs. 8400-00x12x16 Rs. 16,12,800=00 (a) Consortium Rs. So, if we make 06 units, 2/3rd comes to the share of the family. So, the claimants are entitled to the compensation as under: Rs. 8400-00x12x16 Rs. 16,12,800=00 (a) Consortium Rs. 40,000=00 (b) Funeral expenses Rs. 15,000=00 (c) Loss of estate Rs. 15,000=00 Total Rs. 16,82,800=00 19. So, the claimants are entitled for compensation to the tune of Rs. 16,82,800/- alongwith interest @ 7. 5 % per annum. 20. Accordingly, the compensation is apportioned between the claimants as under: (i) Claimant No. 1 15% (ii) Claimant No. 2 15% (iii) Claimant No. 3 30% (iv) Claimant No. 4 20% 21. The award is modified to the above extent and the costs of the petition is assessed as Rs. 5,000/-. Thus, the appeal is disposed of accordingly. 22. Pending applications, if any, shall also stands disposed of accordingly.