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Himachal Pradesh High Court · body

2019 DIGILAW 1377 (HP)

Oriental Insurance Co. Ltd. v. Kunta Devi

2019-09-12

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, is, directed against the award, pronounced by the learned Motor Accident Claims Tribunal, Fast Track Court, Solan, District Solan, H.P., upon, Petition No. 11 FTC/2 of 05/06/08, wherethrough, compensation amount, borne in a sum of Rs. 14,32,760/-, stood assessed, vis-a-vis, the successors-in-interest, of, one Ram Gopal, and, thereon interest at the rate of 6% per annum, hence stood levied, and, was ordered, to, commence from the date of filing the petition, till its deposit or realization. The learned Tribunal, also, through, recoursing, the, mechanism, of, pay and recover, and, hence initially saddled, the apposite indemnificatory liability, upon, the insurer of the offending vehicle (Tipper) bearing registration No. HR-37A-1708, however, obviously, with, a, right bestowed, upon, the insurer, to, hence recover, in accordance with law, the afore compensation amount, from, respondents No. 1 and 2. 2. The registered owner of the offending vehicle, has not contested, the afore adoption, made hence by the learned Tribunal, in, the initially saddling, of, the apposite indemnificatory liability, upon, it. Consequently, hence the, saddling of the apposite indemnificatory liability rather initially, upon, the insurer of the offending vehicle, and, thereafter, the latter, being permitted, to, recourse the apt legal remedies, to realize the compensation amount, from, respondents No. 1 and 2, acquires conclusivity, and, finality. 3. The learned counsel, appearing for the aggrieved appellant, has challenged the returning, of, affirmative findings upon issue No.1, appertaining to the ill-fated collision, being a sequel of rash and negligent manner of driving, of, the offending vehicle, by respondent No.2, and, has also cast a challenge, vis-a-vis, the returning of dis-affirmataive findings, upon issue No.4, appertaining to, the, ill-fated collision, being a sequel, of, rash, and, negligent manner, of, driving, of, the Scooter, bearing No. PB-12E-2801, hence by its driver. 4. In his casting, the afore challenge, the learned counsel, for the aggrieved insurer, has, submitted before this Court, qua no credence being meteable, to, the deposition of PW-5, a purported ocular witness, to the occurrence, (a) given his not rendering, a, credible version, vis-a-vis, the relevant occurrence, (b) however, the afore submission, is both imaginary, and, flimsy, as it is not firmly rested, upon, his thoroughly reading, the, entire deposition, of, the afore, whereas, a wholesome perusal, of, his testification, as, embodied in his examination-in-chief, comprised in Ext. PW-5/A, and, in his cross-examination, unfolds (a) qua hence emerging candid, and, pointed ascription(s), qua commission, of, tort, of, negligence, rather, by, respondent No.2, (b) ascriptions whereof, are, comprised in the offending truck, occurring on, the inappropriate side of the road, whereas, the driver of the scooter hence maneuvering the, scooter onto, the appropriate side of the road, (c) and when the afore echoings, borne in Ext. PW-5/A, also remained unshattered, vis-a-vis, their apt vigors, even, during, the, course, of, cross-examination where to which, he stood subjected, to, (d) thereupon, the testimony of PW-5, is construable, to be a credible ocular account, vis-a-vis, the relevant mishap. Consequently, the afore submission, made before this Court, by the learned counsel, for, the insurer is rejected. 5. Be that as it may, the afore wholesome manner, of, readings by, this Court, of, the afore deposition of, PW5, also, constrains it to conclude qua neither, the insurer of the scooter being required to be impleaded, in the array of respondents, (i) nor, the adoption, of, the afore mechanism, in the impugned award qua the insurer, of, the offending vehicle, being amenable, for, making initial deposit, of, the compensation amount, and, thereafter, the apt reservation, of, a right, vis-a-vis, it, to, through recoursing the legal mechanism, hence recover it, from, the owner and driver of the offending vehicle, hence suffers, from, any gross legal fallibility. 6. Moreover, even though, the successors-in-interest, of, deceased, Ram Gopal, who, uncontrovertedly, in sequel, of, happening, of, the ill-fated collision, inter-se the offending truck, and, the scooter, though omitted to cast a challenge, vis-a-vis, the compensation amount, determined under the impugned award, (i) nonetheless, the afore omission of the claimants, to, hence recourse, the afore mechanism, would not bar them, to receive the benefits, of, Pranay Sethi's case, conspicuously, (ii) appertaining, to, meteings, of, apt hikes, and, escalations, vis-a-vis, the last drawn salary of deceased, comprised, in a sum of Rs. 10,930/-. 7. Since, the learned tribunal, has not granted, the, requisite hikes or accretions towards future prospects, vis-a-vis, the per mensem income, of, the deceased, hence in 50% per centum thereof rather thereon, thereupon it, has committed, a, gross legal fallacies, given the law laid down by the Hon'ble Apex Court, and, encapsulated in a case titled as National Insurance Co. 7. Since, the learned tribunal, has not granted, the, requisite hikes or accretions towards future prospects, vis-a-vis, the per mensem income, of, the deceased, hence in 50% per centum thereof rather thereon, thereupon it, has committed, a, gross legal fallacies, given the law laid down by the Hon'ble Apex Court, and, encapsulated in a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700, the relevant paragraph No.61, extracted hereinafter, hence, permitting, the, meteings, of, afore hikes, vis-a-vis the afore last drawn per mensem, of, the deceased:- "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "thereupon, and, in consonance therewith the afore deceased Ram Gopal, is entitled for meteing(s), of, 50% increases, in his apposite per mensem income, as, borne in a sum of Rs. 10,930/-, increases whereof, are, computed to stand borne, in a sum of Rs. 16,395/-. Significantly, the number of dependents, of, the deceased, are, 5, hence, 1/4th deduction, is, to be visited, upon, a sum of Rs. 16,395/-, hence, after making, the, aforesaid apt deduction, vis-a-vis, the afore sum, the per mensem dependency, hence comes to Rs. 12,296/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs. 12,296/- x 12= Rs.1,47,552/-. After applying thereto, the apposite multiplier of 16, thereupon, the total compensation amount, is assessed in a sum of Rs. 1,47,552/- x 16 = Rs.23,60,832/- (Rs. Twenty three lacs, sixty thousand, eight hundred and thirty two only). 8. 12,296/- x 12= Rs.1,47,552/-. After applying thereto, the apposite multiplier of 16, thereupon, the total compensation amount, is assessed in a sum of Rs. 1,47,552/- x 16 = Rs.23,60,832/- (Rs. Twenty three lacs, sixty thousand, eight hundred and thirty two only). 8. Furthermore, the quantification, of damages, by the learned Tribunal, vis-a-vis, the widow of the deceased, and, the other claimants (i) under the head, "loss of consortium", "Loss of love and affection", "loss of estate" and "funeral expenses" is (a) in, conflict with the mandate of the Hon'ble Apex Court rendered in Pranay Sethi's case (supra), (b) wherein, it has been expostulated, that, reasonable figures, under conventional heads, namely, loss to estate, loss of consortium only, vis-a-vis, the widow of the deceased, and, funeral expenses rather being quantified only upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively. Consequently, the award, of, the learned tribunal is interfered, to the extent aforesaid, of, its determining not, in, consonance therewith, the, compensation, under, the aforesaid heads, vis-a-vis, the widow of the deceased, as also, vis-a-vis, the other claimants. Accordingly, in addition to the aforesaid amount of Rs.23,60,832/-, the claimants, are, entitled under conventional heads, namely, loss to estate, loss of consortium, only, vis-a-vis, the widow of the deceased, and, funeral expenses, sums of Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively, whereupon, the total compensation wheretowhich, the respondents/claimants, are, entitled to, comes to Rs.23,60,832 + Rs.15,000/- + Rs.40,000/- + Rs.15,000/- = Rs.24,30,832 (Twenty four lacs, thirty thousand, eight hundred and thirty two only). 9. For the foregoing reasons, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants are held entitled, to, a total compensation amount of Rs.24,30,832 (Twenty four lacs, thirty thousand, eight hundred and thirty two only) along with interest, at the rate of 6% per annum, from, the date of filing of the petition, till its realization. 10. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, vis-a-vis, insurer of the offending vehicle, i.e. appellant herein, with liberty reserved to it, to thereafter, through recoursings, of, apt legal mechanism(s), hence recover the compensation amount, from, respondents No. 6 and 7 herein. The amount of interim compensation, if already awarded, be adjusted in the aforesaid compensation amount, at, the time of final payment. The aforesaid amount of compensation, be apportioned, in the manner, as ordered by the learned tribunal. The amount of interim compensation, if already awarded, be adjusted in the aforesaid compensation amount, at, the time of final payment. The aforesaid amount of compensation, be apportioned, in the manner, as ordered by the learned tribunal. The shares of the minor children, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable, vis-a-vis, their mother, only when she explains, of, its being required, for, the upkeep, and, benefit of her minor children. All pending applications also stand disposed of. Records be sent back forthwith. JUDGMENT : Sureshwar Thakur, J. The instant appeal, is, directed against the award, pronounced by the learned Motor Accident Claims Tribunal, Fast Track Court, Solan, District Solan, H.P., upon, Petition No. 11 FTC/2 of 05/06/08, wherethrough, compensation amount, borne in a sum of Rs. 14,32,760/-, stood assessed, vis-a-vis, the successors-in-interest, of, one Ram Gopal, and, thereon interest at the rate of 6% per annum, hence stood levied, and, was ordered, to, commence from the date of filing the petition, till its deposit or realization. The learned Tribunal, also, through, recoursing, the, mechanism, of, pay and recover, and, hence initially saddled, the apposite indemnificatory liability, upon, the insurer of the offending vehicle (Tipper) bearing registration No. HR-37A-1708, however, obviously, with, a, right bestowed, upon, the insurer, to, hence recover, in accordance with law, the afore compensation amount, from, respondents No. 1 and 2. 2. The registered owner of the offending vehicle, has not contested, the afore adoption, made hence by the learned Tribunal, in, the initially saddling, of, the apposite indemnificatory liability, upon, it. Consequently, hence the, saddling of the apposite indemnificatory liability rather initially, upon, the insurer of the offending vehicle, and, thereafter, the latter, being permitted, to, recourse the apt legal remedies, to realize the compensation amount, from, respondents No. 1 and 2, acquires conclusivity, and, finality. 3. The learned counsel, appearing for the aggrieved appellant, has challenged the returning, of, affirmative findings upon issue No.1, appertaining to the ill-fated collision, being a sequel of rash and negligent manner of driving, of, the offending vehicle, by respondent No.2, and, has also cast a challenge, vis-a-vis, the returning of dis-affirmataive findings, upon issue No.4, appertaining to, the, ill-fated collision, being a sequel, of, rash, and, negligent manner, of, driving, of, the Scooter, bearing No. PB-12E-2801, hence by its driver. 4. 4. In his casting, the afore challenge, the learned counsel, for the aggrieved insurer, has, submitted before this Court, qua no credence being meteable, to, the deposition of PW-5, a purported ocular witness, to the occurrence, (a) given his not rendering, a, credible version, vis-a-vis, the relevant occurrence, (b) however, the afore submission, is both imaginary, and, flimsy, as it is not firmly rested, upon, his thoroughly reading, the, entire deposition, of, the afore, whereas, a wholesome perusal, of, his testification, as, embodied in his examination-in-chief, comprised in Ext. PW-5/A, and, in his cross-examination, unfolds (a) qua hence emerging candid, and, pointed ascription(s), qua commission, of, tort, of, negligence, rather, by, respondent No.2, (b) ascriptions whereof, are, comprised in the offending truck, occurring on, the inappropriate side of the road, whereas, the driver of the scooter hence maneuvering the, scooter onto, the appropriate side of the road, (c) and when the afore echoings, borne in Ext. PW-5/A, also remained unshattered, vis-a-vis, their apt vigors, even, during, the, course, of, cross-examination where to which, he stood subjected, to, (d) thereupon, the testimony of PW-5, is construable, to be a credible ocular account, vis-a-vis, the relevant mishap. Consequently, the afore submission, made before this Court, by the learned counsel, for, the insurer is rejected. 5. Be that as it may, the afore wholesome manner, of, readings by, this Court, of, the afore deposition of, PW5, also, constrains it to conclude qua neither, the insurer of the scooter being required to be impleaded, in the array of respondents, (i) nor, the adoption, of, the afore mechanism, in the impugned award qua the insurer, of, the offending vehicle, being amenable, for, making initial deposit, of, the compensation amount, and, thereafter, the apt reservation, of, a right, vis-a-vis, it, to, through recoursing the legal mechanism, hence recover it, from, the owner and driver of the offending vehicle, hence suffers, from, any gross legal fallibility. 6. 6. Moreover, even though, the successors-in-interest, of, deceased, Ram Gopal, who, uncontrovertedly, in sequel, of, happening, of, the ill-fated collision, inter-se the offending truck, and, the scooter, though omitted to cast a challenge, vis-a-vis, the compensation amount, determined under the impugned award, (i) nonetheless, the afore omission of the claimants, to, hence recourse, the afore mechanism, would not bar them, to receive the benefits, of, Pranay Sethi's case, conspicuously, (ii) appertaining, to, meteings, of, apt hikes, and, escalations, vis-a-vis, the last drawn salary of deceased, comprised, in a sum of Rs. 10,930/-. 7. Since, the learned tribunal, has not granted, the, requisite hikes or accretions towards future prospects, vis-a-vis, the per mensem income, of, the deceased, hence in 50% per centum thereof rather thereon, thereupon it, has committed, a, gross legal fallacies, given the law laid down by the Hon'ble Apex Court, and, encapsulated in a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700, the relevant paragraph No.61, extracted hereinafter, hence, permitting, the, meteings, of, afore hikes, vis-a-vis the afore last drawn per mensem, of, the deceased:- "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "thereupon, and, in consonance therewith the afore deceased Ram Gopal, is entitled for meteing(s), of, 50% increases, in his apposite per mensem income, as, borne in a sum of Rs. 10,930/-, increases whereof, are, computed to stand borne, in a sum of Rs. 16,395/-. Significantly, the number of dependents, of, the deceased, are, 5, hence, 1/4th deduction, is, to be visited, upon, a sum of Rs. 16,395/-, hence, after making, the, aforesaid apt deduction, vis-a-vis, the afore sum, the per mensem dependency, hence comes to Rs. 12,296/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs. 12,296/- x 12= Rs.1,47,552/-. After applying thereto, the apposite multiplier of 16, thereupon, the total compensation amount, is assessed in a sum of Rs. 1,47,552/- x 16 = Rs.23,60,832/- (Rs. Twenty three lacs, sixty thousand, eight hundred and thirty two only). 8. 12,296/- x 12= Rs.1,47,552/-. After applying thereto, the apposite multiplier of 16, thereupon, the total compensation amount, is assessed in a sum of Rs. 1,47,552/- x 16 = Rs.23,60,832/- (Rs. Twenty three lacs, sixty thousand, eight hundred and thirty two only). 8. Furthermore, the quantification, of damages, by the learned Tribunal, vis-a-vis, the widow of the deceased, and, the other claimants (i) under the head, "loss of consortium", "Loss of love and affection", "loss of estate" and "funeral expenses" is (a) in, conflict with the mandate of the Hon'ble Apex Court rendered in Pranay Sethi's case (supra), (b) wherein, it has been expostulated, that, reasonable figures, under conventional heads, namely, loss to estate, loss of consortium only, vis-a-vis, the widow of the deceased, and, funeral expenses rather being quantified only upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively. Consequently, the award, of, the learned tribunal is interfered, to the extent aforesaid, of, its determining not, in, consonance therewith, the, compensation, under, the aforesaid heads, vis-a-vis, the widow of the deceased, as also, vis-a-vis, the other claimants. Accordingly, in addition to the aforesaid amount of Rs.23,60,832/-, the claimants, are, entitled under conventional heads, namely, loss to estate, loss of consortium, only, vis-a-vis, the widow of the deceased, and, funeral expenses, sums of Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively, whereupon, the total compensation wheretowhich, the respondents/claimants, are, entitled to, comes to Rs.23,60,832 + Rs.15,000/- + Rs.40,000/- + Rs.15,000/- = Rs.24,30,832 (Twenty four lacs, thirty thousand, eight hundred and thirty two only). 9. For the foregoing reasons, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants are held entitled, to, a total compensation amount of Rs.24,30,832 (Twenty four lacs, thirty thousand, eight hundred and thirty two only) along with interest, at the rate of 6% per annum, from, the date of filing of the petition, till its realization. 10. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, vis-a-vis, insurer of the offending vehicle, i.e. appellant herein, with liberty reserved to it, to thereafter, through recoursings, of, apt legal mechanism(s), hence recover the compensation amount, from, respondents No. 6 and 7 herein. The amount of interim compensation, if already awarded, be adjusted in the aforesaid compensation amount, at, the time of final payment. The aforesaid amount of compensation, be apportioned, in the manner, as ordered by the learned tribunal. The amount of interim compensation, if already awarded, be adjusted in the aforesaid compensation amount, at, the time of final payment. The aforesaid amount of compensation, be apportioned, in the manner, as ordered by the learned tribunal. The shares of the minor children, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable, vis-a-vis, their mother, only when she explains, of, its being required, for, the upkeep, and, benefit of her minor children. All pending applications also stand disposed of. Records be sent back forthwith.