Himachal Pradesh High Court
United India Insurance Company Ltd vs Sh. Satya Nand And Others on 31 July, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 260 of 2009
Decided on: 31.07.2015
.
United India Insurance Company Ltd. ...Appellant.
Versus
Sh. Satya Nand and others ...Respondents.
of
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. Ashwani K. Sharma, Advocate.
For the respondents: Mr. H.C. Sharma, Advocate, for
respondents No. 1 and 2.
Nemo for respondent No. 3.
Mr. Sanjeev Kumar, Advocate, for
respondents No. 4 to 6.
Ms. Devyani Sharma, Advocate, for
respondent No. 7.
Mansoor Ahmad Mir, Chief Justice (Oral)
Challenge in this appeal is to the judgment and award, dated 10.04.2009, made by the Motor Accident Claims ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 2 : Tribunal, Shimla (for short "the Tribunal") in M.A.C.C. No. 38 S/2 of 2005, titled as Sh. Satya Nand and another versus Gulam .
Mohammad Lagoo and others, whereby compensation to the tune of ` 3,50,000/ with interest @ 9% per annum from the date of the petition till its realization was awarded in favour of the of claimants and the insurer came to be saddled with liability (for short "the impugned award").
2. rt The claimants, the owners, the drivers and one of the insurer have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. The appellantinsurer of the offending vehicle, i.e. truck, bearing registration No. JK01C5356, has questioned the impugned award on the grounds taken in the memo of appeal.
4. In order to determine the dispute involved in this appeal, it is necessary to give a flashback of the facts of the case, the womb of which has given birth to the appeal in hand.
5. The claimants, being the unfortunate parents of the deceasedRajesh Hetta, filed claim petition before the Tribunal for grant of compensation to the tune of ` 10,00,000/, as per the ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 3 : breakups given in the claim petition, on the ground that they have lost their son in a vehicular accident, which was caused by .
the driver, namely Shri Ali Mohammad, while driving truck, bearing registration No. JK01C5356, rashly and negligently, on 30.09.2004, at about 12.30 A.M. at Araipura Chowk on G.T. of Road, Gharaunda in District Karnal, Haryana. DeceasedRajest Hetta was a bachelor, who sustained injuries in the accident and rt succumbed to the injuries, leaving behind the unfortunate parents.
6. The claim petition was resisted by the respondents in the claim petition on the grounds taken in the respective memo of objections.
7. Following issues came to be framed by the Tribunal:
"1. Whether the death of Rajsh Heta has taken place due to rash and negligent driving of Truck bearing No. HP09A 0573 by its driver respondent No. 5, Devi Dutt Sharma and JK01C5356 by its driver, namely Ali Mohammed, respondent No. 2, as alleged? OPP
2. If issue No. 1 is held in affirmative, whether the petitioners/claimants are entitled to compensation, if so, to what amount and from which of the respondent? OPP ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 4 :
3. Whether the petition is not maintainable in the present form, as alleged? OPR3 .
4. Whether the accident took place due to the sole negligence of driver of vehicle bearing No. HP09A0572, as alleged? OPR3
5. Whether the respondent No. 3 is not liable to make payments to the of petitioners/claimants since there is violation of terms and conditions of the Insurance Policy, as alleged? OPR3 rt
6. Whether the driver of the vehicle bearing No. JK01C5356 was not having valid and effective driving licence to drive the said vehicle at the time of accident, if so, its effect? OPR3
7. Whether the petition is collusive, if so, its effect? OPR3
8. Whether the petition is not maintainable, as alleged? OPR4 and 5
9. Whether the petition is bad for mis joinder of necessary parties, as alleged? OPR4 and 5
10. Whether the claimants are estopped from filing the present petition as alleged? OPR4 and 5
11. Whether the claim petition is not maintainable against the respondent No. 6, as alleged? OPR6
12. Whether the driver of the vehicle bearing No. HP09A0572 was not having valid and effective driving licence at the time of accident, as alleged? OPR6 ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 5 :
13.Whether there was breach of terms and conditions of the Insurance Policy, if so, its .
effect? OPR6
10. Relief."
8. Claimants led evidence in support of their claim.
Shri Laxmi Nand, the General Power of Attorney of the owner of of truck, bearing registration No. HP09A0572, appeared in the witness box as RW1 and Smt. Shashi Saini, Administrative Officer of rt the insurerUnited India Insurance Company appeared in the witness box as RW2.
Issues No. 1, 4 and 9:
9. The Tribunal after scanning the evidence, oral as well as documentary, held that the accident was outcome of rash and negligent driving of the offending vehicle, i.e. truck, bearing registration No. JK01C5356, by its driver and accordingly decided issues No. 1, 4 and 9 in favour of the claimants. The findings returned by the Tribunal on issues No. 1, 4 and 9 have not been questioned by the appellantinsurer in the memo of appeal. Accordingly, the findings returned by the Tribunal on issues No. 1, 4 and 9 are upheld.::: Downloaded on - 15/04/2017 18:40:13 :::HCHP
: 6 :
10. Before I deal with quantum of compensation, I deem it proper to determine issues No. 3, 5 to 8 and 10 to 13.
.
Issues No. 3, 5 to 8 and 10 to 13:
11. It was for the insurers of both the vehicles involved in the accident to prove these issues, have not been able to of prove the same. Thus, the Tribunal has rightly decided the said issues in favour of the claimants and against the insurers.
12. rt It is apt to record herein that during the pendency of the appeal, the appellantinsurer has moved an application, being CMP No. 444 of 2009, in terms of Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (for short "CPC") before this Court seeking permission to place on record certain documents by way of additional evidence in order to prove that the ownerinsured has committed breach of the terms and conditions of the insurance policy as the offending vehicle was being plied without valid route permit at the time of the accident.
13. The appellantinsurer has not led any evidence before the Tribunal, now, cannot be allowed to defeat the ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 7 : purpose of granting compensation, that too, at belated stage, by moving an application for leading additional evidence. Even .
otherwise, the application is not maintainable for the simple reason that the appellantapplicant has annexed certificate issued by Regional Transport Officer, Srinagar, Kashmir, issued of on 10.01.2008, which discloses that the route permit of the offending vehicle was valid upto 17.06.2008. No such proof has rt been placed on record indicating that the route permit of the offending vehicle issued in the year 2004, i.e. at the relevant point of time, was for the said route. Thus, virtually, the application is misconceived. Hence, CMP No. 444 of 2009 is dismissed.
14. Having said so, I am of the considered view that the Tribunal has rightly saddled the appellantinsurer with liability.
Accordingly, the findings returned by the Tribunal on issues No. 3, 5 to 8 and 10 to 13. are upheld.
Issue No. 2:
15. The Tribunal has assessed the income of the deceased to be ` 3,000/ per month. The claimants have not ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 8 : questioned the same and have also not made a murmur about the same. Accordingly, it is held that the deceased was earning .
` 3,000/ per month. 50% was to be deducted towards personal expenses of the deceased, being bachelor, in view of the ratio laid down the Apex Court in Sarla Verma (Smt.) and others of versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex rt Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Thus, it can be safely said that the claimants have lost source of income to the tune of ` 1,500/ per month.
16. The Tribunal has rightly applied the multiplier of '14', is just and appropriate in view of the latest decision of the Apex Court in a case titled as Munna Lal Jain and another versus Vipin Kumar Sharma and others, reported in JT 2015 (5) SC 1, read with the judgments (supra).
17. Viewed thus, the claimants are held entitled to compensation to the tune of ` 1,500 x 12 x 14 = ` 2,52,000/. The amount awarded by the Tribunal under the head 'conventional ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP : 9 : charges' to the tune of ` 14,000/ is maintained.
18. Accordingly, total compensation to the tune of .
` 2,52,000/ + ` 14,000/ = ` 2,66,000/ is awarded in favour of the claimants.
19. Registry is directed to release the awarded amount of in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper rt identification with a further direction to release the excess amount in favour of the appellantinsurer through payee's account cheque.
20. Send down the record after placing copy of the judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice July 31, 2015 ( rajni ) ::: Downloaded on - 15/04/2017 18:40:13 :::HCHP