Himachal Pradesh High Court
National Insurance Company Limited vs Smt. Usha Devi And Others on 18 March, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.: 107 of 2012
Date of Decision: 13.03.2019
.
__________________________________________________________________
National Insurance Company Limited ....Appellant.
Vs.
Smt. Usha Devi and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the appellant: Ms. Devyani Sharma, Advocate.
For the respondents:
r None.
Ajay Mohan Goel, Judge (Oral):
By way of this appeal, the appellantInsurance Company has assailed the award dated 28.11.2011, passed by the learned Motor Accident Claims Tribunal1, Solan in MAC Petition No. 9 S/2 of 2010, vide which, learned Tribunal while allowing the claim, has awarded an amount of Rs.4,57,000/ (including interim compensation, if any, granted) in favour of the claimants and against the respondents, as their joint and several liability with 7.5% interest per annum from the date of filing of petition till the realization of amount. Learned Tribunal has held that since the offending vehicle was proved to be insured, therefore, compensation was liable to be indemnified by the insurer.
2. Feeling aggrieved, the Insurance Company has filed this appeal.
1Whether the reporters of the local papers may be allowed to see the Judgment? ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP 2
3. Brief facts necessary for the adjudication of the appeal are as under:
Respondents No. 1 to 3 (hereinafter referred to as 'the .
petitioners') filed a claim petition under Section 163A of the Motor Vehicles Act on the pleadings that the petitioners were wife, mother and daughter of deceased Rajesh, respectively, who lost his life in an accident which took place on 17.02.2010 near Haripurdhar, Police Station Sangrah. Their claim was for grant of compensation on structured formula basis against respondent Sudesh Kumar Thakur, owner of the offending vehicle Maruti 800 bearing registration No. HP162951, as also the Insurance Company, i.e., the present appellant. According to the petitioners, the deceased was having income of Rs.40,000/ per annum, which he was earning by way of driving a Truck of his maternal uncle.
Owner of the vehicle did not dispute the accident or death of the deceased in the accident involving the offending vehicle, however, according to him, the offending vehicle was duly insured. Insurance Company took the preliminary objection that the petition was not maintainable as the accident had occurred when the deceased was himself driving the Car and as the deceased was not holding a valid and effective driving licence at the time of accident, the petitioners were not entitled for any compensation from the Insurance Company.
4. The following issues were framed by the learned Tribunal on 10.11.2009:
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"1. Whether the deceased Rajesh had died on account of the use of the motor vehicle?OPP
2. If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioners are .
entitled and from whom?OPP
3. Whether the vehicle was being plied in violation of terms and conditions of the insurance policy and the respondent No. 2 is not liable to pay the compensation? OPR3
4. Relief.
5. Issue No.1:
r to These issues were decided by the learned Tribunal as under:
Yes.
Issue No. 2: Rs.4,57,000/ from respondents 1 and 2 being joint and several liability to be indemnified by respondent No. 2.
Issue No. 3: No.
Relief: The petition is allowed as per operative
portion of award.
6. Learned Tribunal held that the cause of accident is not required to be proved in proceedings under Section 163 of the Motor Vehicles Act and as the deceased had lost his life due to accident arising out of the use of the motor vehicle, therefore, the petitioners being dependent of the deceased were entitled for compensation, which was assessed at Rs.4,32,000/. Learned Tribunal taking into consideration the statement of PW2 Yash Pal Thakur, who stated that he used to pay Rs.3300/ per month to the deceased for working for him as a Driver and assessed the income of the deceased to be Rs.3,000/ per month by ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP 4 treating the same to be minimum wages and after deducting 1/3rd as his personal expenses, assessed the loss of income as Rs.2000 x 12, i.e., Rs.24,000/ per annum. Multiplier of 18 was applied by the learned Trial .
Court taking into consideration the fact that the age of the deceased was claimed to be 29 years by petitioner No. 1 and as per post mortem report, the age was shown as 27 years. Learned Tribunal also ordered funeral expenses of Rs.25,000/ to be paid to the petitioners. Learned Tribunal also held that the Insurance Company had failed to prove violation of the terms and conditions of the Insurance Policy and, therefore, in the absence thereof, the liability to compensate the petitioners was that of the Insurance Company on behalf of the owner of the vehicle which was duly insured.
7. Feeling aggrieved, the award stands assailed by the Insurance Company, inter alia, on the grounds: (a) that the impugned award is not sustainable as learned Tribunal has erred in not appreciating that there was breach of the terms and conditions of the Insurance Policy; (b) that as the deceased himself was negligent in driving the offending vehicle, therefore also, liability could not be fastened upon the Insurance Company; and (c) that even otherwise, the amount awarded by the learned Tribunal is on the higher side.
8. I have heard learned counsel for the appellant and have also gone through the impugned award, as also the record of the case.
9. During the course of arguments, appellant could not point out as to which particular Clause of the Insurance Policy stood breached ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP 5 by the owner of the vehicle. The unfortunate accident took place on 17.02.2010 and it is a matter of record that as on the date when the accident took place, the vehicle was duly insured. In this factual matrix, .
onus was completely upon the Insurance Company to prove by placing cogent evidence on record that there was a breach of the terms and conditions of the Insurance Policy, which the Insurance Company has failed to prove. There is not even an iota of evidence on record to suggest that there was any breach of the terms and conditions of the Insurance Policy.
10. to The contention of learned counsel for the appellant that as the accident had purportedly occurred on account of the negligence on the part of the deceased, therefore, the Insurance Company was not liable to indeminify is also without any merit.
11. A three Judges Bench of the Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Sunil Kumar and another, Accidents Claims Journal 2018 (Volume I) 1, has now clearly and categorically held that grant of compensation under Section 163A of the Motor Vehicles Act on the basis of structured formula is in the nature of a final award and adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. Hon'ble Supreme Court also held that though Section 163A of the Act does not specifically exclude a possible defence of the insurer based on negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP 6 by the insurer and/or to understand the provisions of Section 263A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, .
namely final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. Hon'ble Court has held that to understand Section 163A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act, which would not only be self contradictory but also defeat the very legislative intention. Hon'ble Supreme Court has thus held that in a proceeding under Section 163A of the Motor Vehicles Act, it is not open for the Insurance Company to raise any defence of negligence on the part of the victim.
12. This principle has thereafter been reiterated by the Hon'ble Supreme Court in Shivaji and another Vs. Divisional Manager, United India Insurance Co. Ltd. and others, Accidents Claims Journal 2018 (Volume IV) 2161 by again holding that in proceedings under Section 163A of the Act, the Insurance Company cannot raise any defence of negligence on the part of the victim to counter the claim of the claimant.
13. Coming to the 3rd ground taken by the learned counsel that the amount awarded is excessive, in my considered view, the same is also without any merit. Learned Tribunal, taking into consideration the fact ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP 7 that the deceased was earning his livelihood as a Driver, took his monthly income to be Rs.3000/, which by no stretch of imagination can be termed to be on the higher side. Thereafter, learned Tribunal has .
deducted 1/3rd amount from the same towards personal expenses of the deceased and on the balance of Rs.2000/, the compensation paid to the petitioner has been assessed. As during the course of arguments, it could not be seriously disputed that the age of the deceased at the time of his death was 27 to 29 years, it cannot be said that the multiplier of 18 applied by the learned Tribunal is on the higher side. Therefore, it cannot be declared that the amount of compensation assessed by the Tribunal payable to the petitioners was on the higher side. The amount assessed by the learned Tribunal is reasonable and calls for no interference.
14. In view of the discussion held hereinabove, as there is no merit in the present appeal, the same is accordingly dismissed. No order as to costs. Miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge March 13, 2019 (bhupender) ::: Downloaded on - 19/03/2019 22:05:14 :::HCHP