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2019 DIGILAW 657 (HP)

Oriental Insurance Co. Ltd. v. Darshna Devi

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, where through, it, casts, a, challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal (I), Kangra at Dharamshala, H.P., upon, MACP No. 13-N/II/2011, as stood, cast therebefore, under, the provisions of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), (i) AND, whereunder, compensation amount comprised, in, a sum of Rs.16,34,472/- alongwith interest accrued thereon, at the rate of 7.5% per annum, and, commencing from, the date of petition till realization thereof, stood, assessed, vis-avis, the dependents of the deceased, one Jaipal Singh, (ii) who met his end, in sequel to a collision which occurred inter se the offending vehicle bearing registration No. HP69-0900, driven by Brij Lal, respondent No.7 herein, and, vehicle bearing No. HP38A-8427, driven by Ravinder Kumar, respondent No.8 herein. The apposite indemnificatory liability thereof, was, fastened upon the insurer of the offending vehicle, appellant herein. 2. The learned counsel appearing, for, the appellant/insurer, does not, contest the factum, of, occurrence of demise, of, the afore deceased Jaipal Singh, arising, from, a motor vehicle accident, and, purportedly in the manner as disclosed in the claim petition, and, also enunciated, in, the apposite postmortem report, borne in Ex.PW1/A, wherein, ante mortem injuries, as, noticed, on the body of the deceased, are, rather therein spelt out to be, a, sequel of a road side accident. 3. Be that as it may, the learned counsel appearing for the insurer/appellant herein, has with utmost vigour, made a serious attempt, to, dislodge, the affirmative findings rendered by the learned tribunal upon issue No.1, and, the disaffirmative findings recorded upon issue No.3. The principal reason which stands espoused by the learned counsel, for the insurer, to, make the afore submission before this Court, is, anvilled, (a) upon the factum of an FIR borne in Ex.PW2/A, standing lodged at the police station concerned, by Brij Lal, respondent No.7 herein, with ascriptions therein, vis- a-vis, Ravinder Kumar, respondent No.8 herein, being, the, tortfeasor, and, a report under Section 173 of the Cr. P. C., inconsonance therewith, rather standing instituted before the criminal court concerned. P. C., inconsonance therewith, rather standing instituted before the criminal court concerned. However, the afore lodging of the FIR, and, in sequel thereto, the, institution of a report under Section 173 of the Cr.P.C., before the criminal court concerned, would not either distract this Court nor create any hindrance, for this Court, to delve into, and, incisively scrutinize, the, testimony of, an, independent ocular witness, One Rattan Chand, to the occurrence, and, who stepped into the witness box as PW-4, (a) as, given dehors the afore, the MACT concerned, and, thereafter this Court, is/are both, under law, rather enjoined to record findings, independent, from the one rendered by the criminal court of competent jurisdiction, vis-a-vis, the factum of tort of negligence, being committed, by respondent No.7, or by respondent No.8, the respective drivers of the offending vehicle, and, of vehicle bearing No.HP-38A-8427. However, this Court, would be constrained to not mete, the, gravest and deepest reliance thereto, only upon, his testification borne in his examination-in-chief, and, the one borne in his cross-examination, rather unveiling qua his being not an eye witness to the occurrence, or upon there existing mutual inter se contradictions. However, this Court, would be constrained to not mete, the, gravest and deepest reliance thereto, only upon, his testification borne in his examination-in-chief, and, the one borne in his cross-examination, rather unveiling qua his being not an eye witness to the occurrence, or upon there existing mutual inter se contradictions. A wholesome reading of the testification, rendered by afore PW-4 Rattan Chand, (b) unveils, that the relevant tort of negligence, in sequel whereto, the collision occurred inter se vehicle bearing No. HP-38A-8427, and, the offending vehicle, rather being a sequel, of, the rash, and, negligent manner of driving, of, the offending vehicle by respondent No.7, (c) and, when his afore testification, borne in his examination-in-chief remains unscathed, vis-a-vis, its vigour, even during the course, of, an ordeal of an exacting crossexamination, (d) and, nor when therein occurs any suggestion with any echoing qua his not being, an, ocular witness to the occurrence, nor when obviously his deposition, borne in his examination-in-chief, is not, contradicted by his deposition comprised in his crossexamination, (e) thereupon, with witness Ravinder Kumar, also testifying that on the fateful day, while his father, being a member of the Barat, hence, traveling in vehicle bearing No. HP-38A-8427, and, after a collision occurring inter se the afore vehicle, and, the offending vehicle, in sequel, to, the negligent manner of driving, of, the offending vehicle by its driver, rather injuries befalling, upon, his father, (f) and, whereafter he was taken for treatment to Nurpur, and, subsequent whereto he was referred for treatment to Pathankot, and, rather the afore succumbing, to the, injuries, hence, in the afore interregnum, (g) and, when the afore testification is unblemished, by any contradiction therewith, hence, erupting in his cross-examination, (h) thereupon, it is believable qua FIR borne in Ex.PW2/A, being lodged by Brij Lal, respondent No.7 herein, at the back of Ravinder Singh, respondent No.8, (i) with, the further corollary qua no dependence therefrom, hence, being drawable, by the afore driver of the offending vehicle, upon, Ex.PW2/A, and, also upon, the report subsequent thereto filed under Section 173 of the Cr.P.C., before the criminal court concerned. Contrarily, it is to be concluded qua the tort of negligence, being aptly concluded, by the learned tribunal concerned, to stand committed by the driver of the offending vehicle, one Brij Lal, respondent No.7 herein, and, the findings rendered in the affirmative, upon, issue No.1, and, the findings rendered in the disaffirmative, upon issue No.3, rather being not amenable for any interference by this Court. 4. Furthermore, the learned tribunal, has not, committed, any error, while construing, the, per mensem income of the deceased Jaipal Singh, hence, being borne in a sum of Rs.13,884/-, and, its further making 1/4th deduction, vis-a-vis, his afore per mensem income, and, towards his personal expenses, and, thereafter its further, calculating the per mensem dependency of the deceased, in, a sum of Rs. 10,413/-, also does not suffer from any fallibility. Moreover, the application, of, a multiplier of 11, vis-a-vis, the sum calculated, under, the head "annual dependency", also does not suffer from any perversity. However, the learned tribunal while calculating the total compensation, has, inadvertently applied the multiplier of the 12, vis-a-vis the sum of annual dependency. Consequently, applying the apposite multiplier of 11, vis-a-vis, the sum of annual dependency, the total compensation is quantified in a sum of Rs.13,74,516/- {Rs.1,24,956/-(annual dependency) x 11}. 5. Furthermore, the quantification, of damages, by the learned Tribunal in a sum of Rs.1 lac, vis-a-vis, the claimant No.1, widow of the deceased, (i) under the head, "loss of consortium", (ii) quantification, of a sum of Rs.25,000/-, vis-a-vis, the claimants, under the head, "Funeral Charges", (iii) and quantification of a sum of Rs.10,000/-, vis-a-vis, the claimants, under the head "transportation charges", is in, conflict with the mandate of the Hon'ble Apex Court rendered in National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700 (iv) wherein, it has been expostulated, that reasonable figures, under conventional heads, namely, loss to estate, loss of consortium, vis-avis, the widow of the deceased, and, funeral expenses being quantified only upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively. Accordingly, in addition to the aforesaid amount of Rs.10,95,120/-, 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, as such, the total compensation to which the petitioners are entitled comes to Rs.13,74, 516/-+ Rs.15,000/- + Rs.40,000/- + Rs.15,000/-= Rs.14,44,516/-(Rs. Fourteen lacs, forty four thousand, five hundred sixteen only). 6. For the foregoing reasons, the appeal filed by the insurer is partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants, are, held entitled to a total compensation of Rs.14, 44, 516/-(Rs. Fourteen lacs, forty four thousand, five hundred sixteen only), along with interest @ 7.5 % per annum, from, the date of petition till the date, of, deposit, of the compensation amount. The indemnificatory liability, vis-a-vis, compensation amount shall be of the insurer of the offending vehicle, i.e. appellant herein. The afore amount of compensation be apportioned amongst the claimants/respondents No.1 to 5 in the manner as ordered by the learned tribunal. The amount of interim compensation, if any, awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. All pending applications also stand disposed of. Records be sent back forthwith.