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2021 DIGILAW 130 (HP)

NEW INDIA ASSURANCE COMPANY LIMITED v. JYOTI BALA

2021-03-09

SANDEEP SHARMA

body2021
JUDGMENT : Sandeep Sharma, J. 1. Instant petition filed under S. 173 of the Motor Vehicles Act, 1988 (hereinafter, 'Act') lays challenge to Award dated 29.9.2016, passed by learned Motor Accident Claims Tribunal (III), Una, District Una, in M.A.C. Petition No. 52/2013/2012, whereby learned tribunal below, while allowing claim petition under S.166 of the Act, having been filed by the respondents Nos. 1 to 3/claimants (hereinafter, 'claimants'), saddled the appellant-Insurance company with the liability to pay a compensation of Rs.8,24,940/- alongwith interest at the rate of 9%, to the claimants. 2. Facts, as emerge from the record are that the claimants, by way of petition under S.166 of the Act, filed before Motor Accident Claims Tribunal (III), Una, District Una, claimed a sum of Rs. 10.00 Lakh as compensation on account of death of Smt. Saroj Kumari, who happened to be the mother of claimants Nos. 1 and 2 and wife of claimant No.3. According to the claimants, on 28.1.2011, respondent No.3 Lahori Ram had gone to Nanda Hospital alongwith his deceased wife, Saroj Kumari on motor cycle bearing registration No. HP19A-5708 but, while they were returning back to their home, a truck bearing registration No.HP64-6796, hit the motor cycle, as a consequence of which respondent No.3 and the deceased Saroj Kumari fell down on road and rear wheel of the truck crushed the head of the deceased, who died on the spot. Claimants Nos. 1 to 3 being dependent upon the deceased, filed claim petition before learned tribunal below, claiming compensation on account of mental agony and loss of love and affection. Besides above, claimants also claimed that a sum of Rs. 5,000/- spent by them on account of transportation of body of deceased from the hospital to Village Nakroh. 3. Respondents Nos. 4 and 5 being owner and driver of the vehicle filed a joint reply to the claim petition, claiming that the claimants are not entitled for any compensation because they were not dependent upon the deceased. Respondents though admitted that at the time of accident, vehicle was being driven by its driver, respondent No. 5, Jaswinder Singh, but denied that the accident took place on the relevant date, time and place. 4. Respondents though admitted that at the time of accident, vehicle was being driven by its driver, respondent No. 5, Jaswinder Singh, but denied that the accident took place on the relevant date, time and place. 4. Appellant-Insurance company, refuted the claim on the ground that the driver of the offending vehicle bearing registration No. HP64-6796 was not holding a valid and effective driving licence at the relevant time, as such, it is not liable to indemnify the insured. Besides above, appellant-Insurance company also took a stand that since at the time of accident, vehicle was being driven in violation of the terms and conditions of insurance policy and the Act, it cannot be saddled with the liability to indemnify the insured. 5. On the basis of pleadings adduced on record by respective parties, learned tribunal below framed following issues on 13.3.2014:- "1. Whether on 28.01.2011 at around 2.00PM .. chowk at Jhalera, the respondent No.2 was driving vehicle No. HP-64-6796 in a rash and negligent manner and by his rash and negligent driving, hit Smt. Saroj Kumari, who later on succumbed to injuries, as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? OPP 3. Whether petition is not maintainable? OPR 4. Whether the petition is bad for non-joinder of necessary parties? OPR 5. Whether the driver of truck No. HP-64-6796 was not holding valid and effective driving license? OPR-3 6. Whether the truck in question was being plied in violation of terms and conditions of insurance policy? OPR-3 7. Whether the present petition is result of collusion between petitioners and respondents No. 1 & 2? OPR-3 8. Relief." 6. Subsequently, vide impugned Award dated 29.9.2016, learned tribunal below, on the basis of evidence led on record by respective parties, allowed the claim petition and saddled the appellant-Insurance company with the compensation of Rs.8,24,940/- to be paid to respondents Nos. 1 to 3 alongwith simple interest at the rate of 9% per annum from the date of filing of petition till the date of realization. In the aforesaid background, appellant-Insurance company has approached this Court in the instant proceedings. 7. 1 to 3 alongwith simple interest at the rate of 9% per annum from the date of filing of petition till the date of realization. In the aforesaid background, appellant-Insurance company has approached this Court in the instant proceedings. 7. Having heard learned counsel for the parties and perused the material available on record, this court finds that primarily challenge to the impugned award has been laid by the appellant-Insurance company on two grounds viz., (1) amount awarded under conventional heads is on higher side and is against the judgment rendered by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, (2017) AIR SC 5157 and (2) since the vehicle in question was being driven by its driver without any valid and effective driving licence, learned Tribunal below ought not have burdened the appellant-Insurance Company with the compensation to be awarded to the claimants. 8. Though, careful perusal of the Award impugned in the instant proceedings, certainly reveals that learned Tribunal below, while awarding certain amounts under the conventional heads has failed to take note of law laid down by Hon'ble Apex Court in Pranay Sethi (supra), however, having carefully scanned the evidence available on record, this Court finds no merit in the other grounds raised by appellant-Insurance Company. Since the complainants have successfully proved on record that at the time of alleged accident, respondent No.5 i.e. driver was having valid and effective driving licence and vehicle in question was not being plied in violation of the terms and conditions of the insurance policy, appellant-Insurance Company has been rightly held liable to indemnify the insured. 9. Though, in the instant case, appellant-Insurance Company has made an attempt to carve out a case that the claimants were unable to prove that the deceased Saroj Kumari expired after being hit by the truck in question, but there is overwhelming evidence available on record, suggestive of the fact that on the date of alleged accident, the offending vehicle hit the motor cycle being driven by claimant No.3, as a consequence of which, respondent No.3 as well as deceased, Saroj Kumari sustained serious injuries. Moreover, this Court finds from the record that the appellant-Insurance Company did not lead any evidence in this case, and as uch, there appears to be no occasion for this Court to accept the aforesaid contentions raised on behalf of the appellant-Insurance Company, at this stage. Moreover, this Court finds from the record that the appellant-Insurance Company did not lead any evidence in this case, and as uch, there appears to be no occasion for this Court to accept the aforesaid contentions raised on behalf of the appellant-Insurance Company, at this stage. 10. However, learned counsel appearing for the appellant-Insurance Company, while referring to Pranay Sethi (supra) argued that the amount awarded under the heads of loss of love and affection is wrong and further higher amounts have been awarded under the heads of loss of consortium and funeral charges are on higher side. In Pranay Sethi (supra), Hon'ble Apex Court has held as under: "59. 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." 10. As per judgment (supra), no amount could have been awarded under the head of loss of love and affection and as such, award deserves to be modified on this account also. Further the amounts under other heads of loss of consortium to claimant No.3 and funeral charges also require to be assessed as per Pranay Sethi (supra). Besides this, learned Tribunal below has not awarded any sum under the head of loss of estate, which is required to be given to the claimants as per judgment (supra). 11. At this stage, learned counsel for the appellant-Insurance Company argued that this Court has no power to award any extra amount/enhance the amounts already awarded by learned Tribunal below, since no cross-objections/appeal has been filed by the claimants. On the issue of power of an appellate court to make additional award, reference may be made to a judgment rendered by Hon'ble Apex Court in Ranjana Prakash and others vs. Divisional Manager and another, (2011) 14 SCC 639 , whereby, it has been held that amount of compensation can be enhanced by an appellate court, while exercising powers under Order 41 Rule 33 CPC. It would be profitable to reproduce following para of the judgment herein:- "Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, alongwith the owner, even though the claimants had not challenged the non-grant of relief against the insurer." 12. In view of the discussions made supra and the law laid down by Hon'ble Apex Court in the afore-cited judgments, this Court deems it fit to modify the award passed by learned Tribunal below as under: Head Amount (Rs.) Loss of dependency (to claimants Nos. 1 to 3 only) 599940 Loss of estate (to claimants Nos. 1 to 3 only) 15000 Funeral charges (to claimants Nos. 1 to 3 only) 15000 Total 629940 Loss of consortium payable to claimant No.3 40000 Total compensation 669940 13. This Court however does not see any reason to interfere with the rate of interest awarded on the amount of compensation and multiplier applied, and as such, same are upheld. 14. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is disposed of and impugned award passed by learned Tribunal below is modified to aforesaid extent only. Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.