Punjab-Haryana High Court
The Oriental Insurance Company Limited vs Asha Devi And Others on 18 October, 2012
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O. No.4534 of 2012 (O&M)
Date of Decision : October 18, 2012
The Oriental Insurance Company Limited, Karnal
....Appellant
Versus
Asha Devi and others
....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. R.K. Bashamboo, Advocate
T.P.S. MANN, J.
The Insurance Company has filed the present appeal for challenging the award dated 10.4.2012 passed by the Motor Accidents Claims Tribunal, Sonepat whereby claimants/ respondents No.1 to 6 were awarded compensation to the tune of Rs.5,70,800/- for the untimely death of their bread earner Lokesh @ Lovkesh in a motor vehicular accident and the appellant, alongwith respondent No. 7 being driver and respondent No.8 being owner of the offending vehicle, was held jointly and severally liable to pay the said amount.
In their petition filed under Section 166 of the Motor Vehicles Act, 1988, the claimants had averred that on 13.3.2011 deceased Lovkesh alongwith Kalu was returning to Rambir Bhatta after purchasing grocery. At about 6.30 p.m., when they reached near Rambir Bhatta, the offending vehicle, which was a motor F.A.O. No.4534 of 2012 (O&M) -2- cycle bearing registration No. HR-10N-4078, driven by Madan Lal in a rash and negligent manner at a high speed in a zigzag manner came from Gohana side and struck against Lovkesh after coming on the wrong side. As a result, Lovkesh suffered multiple and grievous injuries. Kalu, who was accompanying Lovkesh lost his consciousness for some time and, therefore, while reporting the matter to the police wrongly gave the registration number of the offending motor cycle as HR-10D-2934 whereas it was actually HR-10N-4078. The motor-cyclist was caught at the spot and had disclosed his name as Madan Lal. When the people who had gathered there started looking after Lovkesh, the motor- cyclist managed to escape from the spot. Lovkesh was taken to PGIMS, Rohtak where he breathed his last on 21.3.2011 on account of injuries suffered in the accident. On the statement of Kalu, FIR No. 46 dated 14.3.2011 under Sections 279 and 337 IPC was registered and after the death of Lovkesh, offence under Section 304-A was also added. After thorough investigation, the police arrested Madan Lal and challaned him for the aforementioned offences. Claiming that the deceased was their sole bread earner and employed with Rambir Bhatta Company and getting Rs.8,000/- per month, the claimants sought compensation to the tune of Rs.15,00,000/-. F.A.O. No.4534 of 2012 (O&M) -3-
The driver and owner of the offending motor cycle opposed the claim petition and denied that their motor cycle was involved in the accident. The Insurance Company also filed a separate written statement and denied the averments made in the claim petition. It was also stated that the claim petition had been filed in collusion with the driver and owner of the motor cycle in order to extract compensation.
The parties went to trial on the following issues :-
1. Whether death of deceased Lovkesh alias Lokesh was caused on account of motor vehicular accident dated 13.3.2011 caused by respondent No.1 by his rash and negligent driving while driving offending vehicle No.HR-
10N-4078? OPP
2. If issue No.1 is decided in favour of claimants, whether the petitioners are entitled to claim amount as claimed in the claim petition and from whom ? OPP
3. Whether the petition is not maintainable in the present form ? OPR
4. Whether the petitioners have no locus standi to file the present petition ? OPR
5. Whether no cause of action has arisen to the petitioners to file the present petition ? OPR
6. Whether the insurance company respondent No.3 is not liable to pay compensation as the F.A.O. No.4534 of 2012 (O&M) -4- respondent No.1 was not holding valid and effective driving licence on the date of alleged accident ? OPR -3
7. Whether the Insurance Company respondent No.3 is not liable to pay compensation as the respondents No.1 and 2 have contravened, violated, infringed and breached the terms and conditions of the Insurance Policy ? OPR -3
8. Relief.
In support of their case, the claimants examined PW1 Rajuva, PW2 ASI Satpal Singh, PW3 Asha Devi and PW4 Kalu. They also tendered in evidence copy of MLR as Ex.P6 and copy of post-mortem report as Ex.P7. However, no evidence was led either by the driver and the owner of the offending vehicle or by the Insurance Company.
After hearing counsel for the parties and going through the records, the Tribunal relied upon the evidence of PW4 Kalu, which was found corroborated by evidence of PW2 ASI Satpal Singh, lodging of FIR and statement under Section 161 Cr.P.C., the MLR and the post-mortem report to hold that the accident was a result of rash and negligent driving of motor cycle bearing registration No. HR-10N-4078. The monthly income of the deceased was assessed as Rs.3,600/- or Rs.43,200/- per annum. After deducting 1/4th out of the said amount which the deceased might be spending upon himself, the annual dependency was F.A.O. No.4534 of 2012 (O&M) -5- calculated as Rs.32,400/-. The deceased being in the age group of 26-30 years at the time of his death, multiplier of '17' was applied in terms of the decision of the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 so as to determine the total dependency as Rs.5,50,800/-. Awarding further amount of Rs.5,000/- for funeral and transportation expenses, Rs.7,500/- for loss of estate and Rs.7,500/- to Smt. Asha Devi for loss of consortium, the total compensation was assessed as Rs.5,70,800/-. As regards the liability, the Tribunal held that no evidence was led by the Insurance Company to establish that Madan Lal was not having effective and valid driving licence or that the owner of the offending vehicle had violated terms and conditions of the insurance. Accordingly, the Insurance Company, the driver and the owner of the offending vehicle were held jointly and severally liable to pay the compensation amount.
Learned counsel for the appellant-Insurance Company has submitted that while making statement before the police, PW Kalu had described the registration number of the offending vehicle as HR-10D-2934. It was subsequently changed as HR-10N-4078 with the sole purpose of claiming compensation from the Insurance Company whereas the motor cycle bearing registration No. HR-10N-4078 was not involved in the accident. F.A.O. No.4534 of 2012 (O&M) -6-
It is true that while making statement to the police, Kalu had given the registration number of the offending motor cycle as HR-10D-2934. However, it may be noticed that the accident had taken place on 13.3.2011 at about 6.30 p.m. Immediately thereafter, Lovkesh was taken by Kalu to a hospital where he was medically examined on the same evening at 9.02 p.m. While reporting the matter to the police, Kalu, apart from describing the registration number of the motor cycle, also stated that it was Madan Lal son of Kartar Singh, caste Dhanak, resident of Adarsh Nagar, near International School, Sonepat, who was the driver of the motor cycle. On his statement, the police had registered FIR No.46 Ex.P1 on 14.3.2011 at 11.50 a.m. The registration number of the offending motor cycle as HR-10D- 2934 which inadvertently crept in his statement came to the notice of Kalu on 15.3.2011 and at that point of time, the police recorded supplementary statement Ex.P2 of Kalu so as to incorporate the correct registration number of the offending motor cycle. In order to contradict the stand of Kalu that motor cycle bearing No. HR-10N-4078 was not involved in the accident, Madan Lal could have stepped into the witness-box but he did not do so for reasons best known to him. Further, a perusal of the statement of PW4 Kalu recorded by the Tribunal would reveal that in his affidavit by way of examination-in-chief, he described the registration number of the offending motor cycle as HR-10N- F.A.O. No.4534 of 2012 (O&M) -7- 4078. During his cross-examination, he deposed that he had mentioned number of the motor cycle involved in the accident as HR-10N-4078 and in the FIR also he had mentioned the same number. He stated that he did not remember the number of the motor cycle which was earlier got recorded by him. However, none of the respondents in the claim petition confronted him with his statement made to the police on the basis of which FIR was registered. In the absence of PW4 Kalu being not confronted with his previous statement, the respondents in the claim petition cannot derive any benefit of said Kalu describing the registration number of the offending motor cycle wrongly, in the first instance and substituting it at a later stage. Therefore, it cannot be said that the accident was caused by motor cycle bearing registration No. HR-10D-2934 or that motor cycle bearing registration number HR-10N-4078 was not involved in the accident.
Counsel for the appellant has challenged the assessment made by the Tribunal while granting compensation. However, from the records available, it stands established that the Tribunal had not relied upon the oral assertions made by the claimants that the deceased was earning Rs.8,000/- per month. On the other hand, his notional income was taken as Rs.3,600/- keeping in view the minimum wages applicable to unskilled worker. The size of the family being 6, not more than 1/4th F.A.O. No.4534 of 2012 (O&M) -8- income could have been deducted as personal expenses of the deceased. Similarly, the deceased being in the age group of 26- 30 years, multiplier of '17' has been rightly awarded in terms of the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra).
In view of the above, no case is made out for any interference in the award passed by the Tribunal whereby the claimants/respondents No.1 to 6 have been held entitled to receive compensation amount to the tune of Rs.5,70,800/-.
The appeal is without any merit and, therefore, dismissed.
( T.P.S. MANN )
October 18, 2012 JUDGE
satish