Punjab-Haryana High Court
Oriental Insurance Company Limited vs Bharat Chawla And Ors on 23 September, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAOs 652, 653 and 1037 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Date of decision: 23.09.2014
1. FAO No. 652 of 2012
Oriental Insurance Company Limited ........ Appellant
Versus
Bharat Chawla .......Respondent
2. FAO No. 653 of 2012
Oriental Insurance Company Limited ........ Appellant
Versus
Neelam Chawla .......Respondent
3. FAO No. 1037 of 2012
Neelam Chawla and others ........ Appellants
Versus
Baljinder and others .......Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Jagjit Singh Chatrath, Advocate for
Mr. Ashwani Talwar, Advocate
for the Insurance Company
Mr. Inderjit Sharma, Advocate
for the claimants
None for respondents No. 2 and 3
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
MOHAN LAL BIMBRA
2014.10.09 11:11
I attest to the accuracy and
integrity of this document
Chandigarh
FAOs 652, 653 and 1037 of 2012 2
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
This order shall dispose of aforesaid three appeals as these have emerged out of common award dated 02.12.2011 passed by the Motor Accident Claims Tribunal, Yamuna Nagar at Jagadhri (for brevity, 'the Tribunal') whereby compensation has been awarded in regard to death of Vinod Kumar Chawla and injuries sustained by Bharat Chawla in a motor vehicular accident due to rash and negligent driving of trolla bearing No. HR 58-A 0547 by its driver Baljinder-respondent No. 1.
Some of the facts relevant for disposal of the appeal are that on 14.02.2010, Vinod Kumar Chawla (deceased) along with Bharat Chawla was going on Gohana-Rohtak road for Rewari in his car Verna bearing registration No. HR 43-A-1000 driven by Mahinder Yadav. As per the allegations, the aforesaid car was driven on correct side of the road at a normal speed. When they were out of Gohana, trolla bearing No. HR-58-A- 0547 was going ahead and driver of the car was in the process of overtaking said trolla after receiving a signal for overtaking from respondent No. 1 but he suddenly gave a right side cut to his trolla without any indication and as a result, the driver of the car could not control his vehicle and struck against road side tree. Vinod Kumar Chawla suffered grievous injuries and died on the spot. Bharat Chawla, the injured victim also sustained multiple injuries. FIR No. 57 dated 14.02.2010 for offence under Sections 279, 337, 338, 304-A of the Indian Penal Code was registered against respondent No. 1 at Police Station Gohana.
Respondents No. 1 and 2 (driver and owner of offending MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 3 vehicle) filed their joint reply denying all the averments set up in the application and their liability to pay compensation. It is averred that no accident has taken place with the vehicle in question and a false FIR was registered. The accident, if any, is caused due to rash and negligent driving of the car as its driver could not control his car while overtaking trolla on the main highway.
The insurance company (respondent No.3) also filed the reply denying the accident and entitlement of the claimants to get compensation. It is further pleaded that the trolla in question was being driven without a valid and effective driving licence and permit, in contravention of the terms and conditions of the insurance policy.
The controversy between the parties led to framing of following issues by the learned Tribunal:-
1. Whether accident took place on 14.02.2010 due to rash and negligent driving of vehicle bearing registration No. HR-58-A-0547 by respondent No. 1 Baljinder? OPP
2. If issue No.1 is proved in affirmative, to what amount of compensation petitioner Bharat Chawla is entitled for the injuries suffered by him and from whom? OPP (pertaining to petition titled as Bharat Chawla versus Baljinder etc.)
3. If issue No. 1 is proved in affirmative, to what amount of compensation petitioner Smt. Neelam Chawla etc are entitled for the death of Vinod Kumar Chawla and from whom? OPP (pertaining to petition titled as Smt. Neelam Chawla etc. versus Baljinder etc.).
4. Whether petitions are not maintainable? OPR MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 4
5. Whether terms and conditions of insurance policy pertaining to vehicle bearing registration No. HR 58-A-
0547 were violated, and therefore, respondent No. 3 stood absolved of its liability? OPR-3.
6. Relief.
The learned Tribunal permitted the parties to adduce evidence in support of their respective claims.
After having heard counsel for the parties and appraisal of evidence in the light of contentious issues raised in the case, the learned Tribunal determined issues No. 1 to 3 in favour of the claimants while issues No. 4 and 5 were jointly decided against the insurance company and as a result, the applications for grant of compensation in regard to death of Vinod Kumar Chawla and injuries to Bharat Chawla were allowed.
FAOs No. 652 and 653 of 2012 have been preferred by the insurance company to assail findings of the learned Tribunal on issue No. 1, whereas FAO No. 1037 of 2012 has been preferred by the claimants seeking enhancement of compensation in regard to death of Vinod Kumar Chawla.
The parties hereinafter shall be referred to as 'the insurance company' and 'the claimants' for facility of reference.
Counsel for the insurance company has argued with vehemence that the findings recorded by the learned Tribunal on issue No. 1 qua factum of the accident are erroneous and liable to be set aside. To substantiate his contention, counsel has carried me through statements of Mahinder Singh (PW4) driver of the ill-fated vehicle as well as Bharat Chawla, the injured victim (PW6). It is argued that in the first information report lodged at the instance of Bharat Chawla, there is no reference to the registration MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 5 particulars of the offending vehicle. It is further argued that the alleged offending vehicle has been indicted in the case later to justify claim of the victims for grant of compensation in regard to death of Vinod Chawla and injuries sustained by Bharat Chawla. It is further argued that Mahinder Singh, driver of the car in which the victims were travelling has not stated in his statement made to the police that the trolla in question touched Verna car, therefore, it cannot be held that the accident took place due to rashness and negligence on the part of driver of the offending vehicle. According to counsel, driver of the car while overtaking the trolla could not control his vehicle due to its fast speed and as a result, the car went out of his control and struck against a road side tree and for that reason, the victims sustained injuries.
Counsel for the claimants, while refuting contentions of counsel for the insurance company has submitted that proceedings conducted by the Tribunal are summary in nature and strict rules of evidence are not applicable to summary proceedings. It is further argued that statements of Mahinder Singh (PW4) and Bharat Chawla (PW6) coupled with the factum that driver of the offending vehicle was put to trial, on completion of due investigation in the first information report lodged at the behest of Bharat Chawla when examined in the light of fact that driver of the offending vehicle did not appear in the witness box to rebut case of the claimants, there is voluminous evidence on record to substantiate plea of the claimants that the accident took place due to rash and negligent driving of the offending vehicle by its driver Baljinder. It is further argued that even if it is accepted that the offending vehicle did not touch Verna car driven by Mahinder Singh in which the victims were travelling and the MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 6 driver of the car was compelled to divert the vehicle in order to avoid collision because of sudden cut applied by driver of the trolla without any indication when the car was in the process of overtaking the trolla after getting necessary clearance from the trolla going ahead, the driver, owner and insurer of the trolla cannot escape their liability to pay compensation to the occupants of the car.
The claimants have filed the appeal seeking enhancement of compensation in regard to death of Vinod Kumar Chawla. It is argued that the learned Tribunal has not taken into consideration earnings of the deceased in right perspective and did not award adequate compensation under conventional heads.
In reply, counsel for the insurance company has submitted that there are no valid grounds to enhance compensation in case the appeals filed by the insurance company are not allowed.
I have heard counsel for the parties and perused the records. The learned Tribunal, on a detailed consideration of rival submissions made by counsel for the parties in para 14 and 15 of the award, came to record its findings in para 16 onwards to hold that the claimants have successfully established their plea that the accident was caused by Baljinder-respondent No. 1 while driving the offending vehicle rashly and negligently thereby causing injuries to Bharat Chawla and Vinod Kumar Chawla. The learned Tribunal has rightly noticed that the Tribunal is required to hold a summary inquiry and not to act as a criminal Court so as to find out whether the claimants have their case beyond any shadow of doubt as held by this Court in Lakhu Singh and another v. Uday Singha and others, 2004 (4) PLR 507 (P&H).
MOHAN LAL BIMBRA2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 7
In the case at hand, Mahinder Singh and Bharat Chawla have corroborated each other that the occurrence took place when the driver of the car was in the process of overtaking the offending vehicle going ahead of the car and that also after getting clearance from the driver of the trolla and said driver all of a sudden without any further indication made a right turn. Mahinder Singh's statement was recorded by the police under Section 161 of the Code of Criminal Procedure (in short, 'Cr.P.C.') on the day of occurrence itself and said statement is marked as Ex.P13. The statement makes a specific reference to the registration particulars of the offending vehicle. It is also proved on record that on completion of investigation in the FIR lodged at the instance of Bharat Chawla, report under Section 173 Cr.P.C. Ex. P12 was submitted and the driver of the offending vehicle has been put to trial for causing the accident. There is nothing on record to suggest that PWs Bharat Chawla and Mahinder Singh had any animosity with Baljinder-respondent No. 1 to get him implicated in criminal proceedings for causing the accident. Baljinder did not appear in the witness box to counter statements of Mahinder Singh and Bharat Chawla or depose about the manner in which the occurrence in question took place when otherwise respondent Nos. 1 and 2 in their reply have admitted presence of the offending vehicle on the spot at the time of accident. Keeping in view the facts obtaining in the case, I find no merit in contentions of the insurance company that the learned Tribunal has committed any error much less illegality in returning findings on issue No. 1 in favour of the claimants and against the respondents.
This brings the Court to the appeal filed by the claimants seeking enhancement of compensation in regard to death of Vinod Kumar MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 8 Chawla. The learned Tribunal has assessed income of the deceased at Rs.79,556.00 per month for a period of three years during which the deceased was to function as President, District Consumer Disputes Redressal Forum, Rewari by taking into consideration his last pay drawn and giving benefit of pay revision in view of notification issued by the government and thereafter his income has been assessed at Rs.30,000.00 per month and multiplier of 12 has been adopted as the deceased was in the age group of 51-55 years, in view of judgment of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121.
Counsel for the claimants contends that in view of number of dependents on earning of the deceased, the learned Tribunal has wrongly allowed deduction to the extent of 1/3rd in place of 1/4th as per law laid down by the Apex Court in Sarla Verma's case (supra), I do not find any error in the findings of the Tribunal in regard to assessment of income of the deceased, multiplier adopted and deduction to the extent of 1/3rd in the circumstances of the present case that son of the deceased namely Bharat Chawla is gainfully employed and his daughter Nitika is married. However, the learned Tribunal has awarded compensation under conventional heads to the extent of Rs.15,000.00 i.e. Rs.10,000.00 for transportation of dead body and last rites and Rs.5,000.00 for loss of consortium to widow of the deceased. The widow of the deceased shall be entitled to an amount of Rs.1,00,000.00 towards loss of consortium and love and affection. The claimants shall be entitled to an amount of Rs.25,000.00 each for expenses incurred on funeral and last rites and loss of estate. The enhanced amount of compensation of Rs.1,35,000.00 shall be payable to widow - Neelam Chawla with interest at the rate of 7.5% per annum from the date of petition MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh FAOs 652, 653 and 1037 of 2012 9 till payment thereof. However, in case the Insurance Company deposits the amount within a period of 45 days in the Tribunal, the enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till realization.
In view of the above, FAO Nos. 652 and 653 of 2012 are dismissed and FAO No. 1037 of 2012 is partly allowed in the aforesaid terms.
(Rekha Mittal) Judge 23.09.2014 mohan MOHAN LAL BIMBRA 2014.10.09 11:11 I attest to the accuracy and integrity of this document Chandigarh