Himachal Pradesh High Court
Shashi Kumar & Another vs Smt.Jhullo & Another on 1 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
FAO No. 288 of 2018
.
Reserved on : 25.04.2019
Date of Decision: May 1, 2019
Shashi Kumar & another ...Appellants.
Versus
Smt.Jhullo & another ..Respondents.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No.
For the Appellants: Mr.Vijay Chaudhary, Advocate.
For the Respondents: Mr.Jagdish Thakur, Advocate, for
respondent No.2.
Tarlok Singh Chauhan, J (Oral)
This appeal has been filed by owner and driver of the vehicle against the liability fastened upon them to pay compensation amount as awarded by Motor Accident Claims Tribunal, Chamba Division, H.P., in M.A.C. Petition No.262 of 2016, titled as Smt.Jhullo vs. The United India Insurance Company Limited & others.
2. The brief facts of the case are that respondent No.1- claimant, filed a claim petition claiming therein compensation of `25,00,000/- on account of death of Surjeet in a road accident, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 2which took place on 12.08.2016 involving the vehicle Bolero Camper bearing registration No.HP-73-7160 owned by respondent No.2. The vehicle was duly insured with respondent .
No.2.
3. It was pleaded that on 12.08.2016, the deceased was an occupant of Bolero Camper, which was being driven by appellant No.2. At about 6.00 pm, when the vehicle reached at a place Thapnai Nallah, Tehsil Bharmour, District Chamba, it went off the road and fell down, resulting into death of Surjeet. After the accident, FIR No.49 of 2016 dated 13.08.2016 was registered at Police Station, Bharmour, District Chamba.
4. The Insurance Company filed its reply, wherein it took preliminary objections regarding maintainability; driver of the vehicle was not holding a valid and effective licence; and intentionally breached the terms and conditions of the Insurance Policy. It is further averred that the deceased was travelling as a gratuitous passenger of the vehicle and therefore, Insurance Company was not liable to indemnify the owner.
5. Appellants filed a joint reply, wherein it is averred that the deceased alongwith one Surinder Kumar had hired the vehicle to carry their goods from Dhakog to Tarela and were travelling in the vehicle as owners of the goods. It is claimed that the vehicle had been properly parked by the side of the road by its driver after applying the hand brakes and placing a Gutka.
Driver alongwith deceased had disembarked from the vehicle to take tea. After having tea, the deceased had gone below the ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 3 road to urinate and at that time the retaining wall gave way due to the rain and the vehicle had fallen down on the deceased, causing his death. Therefore, the accident had not taken place .
due to rash and negligent driving of the driver. It was also claimed that the vehicle was duly insured with the Insurance Company and therefore, it was the Insurance Company, which was liable to indemnify them and pay the compensation.
6. From the pleadings of the parties, learned Tribunal vide its order dated 14.11.2016, framed the following issues:-
"1. Whether the petitioner is entitled to compensation on account of death of Surjeet due to the rash and negligent driving of vehicle No.HP 73-7160 by respondent No.3 on 12.8.2016 at about 6 PM at Thapnai Nallah, Tehsil Bharmour, District Chamba, as alleged?
OPP
2. If issue No.1 is proved in the affirmative, as to what amount of compensation, the petitioner is entitled to and from whom? OPP
3. Whether the petition is not maintainable in the present form? OPRs
4. Whether respondent No.3 was not holding a valid and effective driving license to drive the offending vehicle at the time of the accident, as alleged? OPR1
5. Whether the insured had intentionally breached the terms and conditions of the Insurance Policy and the provisions of Motor Vehicles Act, as alleged? OPR1 ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 4
6. Whether the deceased was travelling in the offending vehicle as a gratuitous passenger, as alleged? OPR1
7. Relief.
.
7. After recording evidence and evaluating the same, learned Tribunal had held the claimants to be entitled to compensation of `6,42,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition i.e. 06.12.2016 till the realization/deposit of the amount. This amount was ordered to be paid by the appellants by concluding that as the deceased was travelling in the vehicle as an unauthorized/gratuitous passenger in contravention to the Insurance Policy, the Insurance Company was not liable to indemnify the owner. The vehicle was being driven in contravention to the Policy.
8. The appellants have filed this appeal merely on the ground that the findings recorded by the learned Tribunal below are perverse and therefore, are liable to be set aside.
9. I have heard the learned counsel for the parties and have also gone through the record of the case.
10. It would be noticed that the Insurance Company, in its reply, had taken a specific objection that the vehicle at the time of accident was being plied in contravention to the provisions of the Motor Vehicles Act and also the terms and conditions of the Insurance Policy. Now, in order to ascertain as to whether the deceased as a gratuitous passenger or owner of the goods was travelling in the offending vehicle, it would be ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 5 necessary to first advert to the pleadings of the parties and thereafter to the evidence led in this behalf. The claimant in a application for compensation has only stated that the deceased .
was travelling in the offending vehicle and has not specifically stated that the deceased was travelling as the owner of the goods.
11. It is vehemently argued by Mr.Vijay Chaudhary, learned counsel, that the pleadings before the Tribunal are governed and regulated by the Himachal Pradesh Motor Vehicle Rules, 1999 and in terms thereof, pleadings only to conform to the format as referred to in Rule 215, which read thus:-
"215. Application for claims for compensation:-
Every application for claims of compensation to be made under section 166 shall be in HP Form LII-MACT-A."
12. Placing reliance on the judgment of a Division Bench of Karnataka High Court in H.V. Narayana Rao vs. A.R. Ravi and others, 2004 ACJ 271, it is argued that the form as prescribed under the Rules for claim of compensation does not require the claimant to state "actionable negligence" against the person, who caused the accident.
13. I am completely in agreement with the said submission as the prescribed form is undoubtedly a poor substitute for a plaint and there is no reason for insistence on the pleadings through its columns. Therefore, the prescribed form cannot be treated as a plaint.
::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 614. Nonetheless, it cannot be ignored that the specific stand taken by the appellants, in their reply to the claim petition, was that the deceased was travelling in the vehicle as owner of .
the goods as is evident from para 10 of the reply, which reads thus:-
"Para No.10 That the para No.10 of the petition is admitted to be correct. The deceased alongwith one Sh.Surinder Kumar had hired the vehicle to carry their goods from Dhakog to Tarela and were travelling by the vehicle as owner of goods."
15. The claimant filed rejoinder and simply stated that para 10 of the petition is reaffirmed. Now, if one would to advert to column No.10 of the claim petition, it simply reads as under:-
10.Was the person in Yes, the deceased was respect of whom travelling by the vehicle compensation is claimed, involved in the accident.
travelling by the motor vehicle involved in accident.
16. Now adverting to the reply of the Insurance Company, it would be noticed that the specific defence taken by it in para 5 of the reply, was to the effect that the deceased was unauthorized gratuitous passenger in the vehicle and therefore, his risk was not covered and as such Insurance Company was not liable to pay any compensation. In rejoinder filed to this reply, it is simply stated that para 5 of the preliminary objections was incorrect and hence denied.
17. In case the evidence of PW.3, Smt.Jhullo Devi, is adverted to, it would be noticed that she in support of her claim ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 7 petition, for the first time, claimed that the deceased was not travelling in the offending vehicle as owner of the goods and had hired the vehicle for transporting "household articles". While .
filing rejoinder to the reply of the owner and driver, who had claimed that the deceased alongwith Surinder Kumar had hired the vehicle to carry their goods from Dhakog to Tarela and were travelling by the vehicle as owner of the goods, claimant specifically did not admit the contention and merely averred that the deceased was travelling in the vehicle in question.
18. The owner of the goods, Shashi Kumar, appeared as RW.1 and stated that the deceased alongwith Surinder, a shopkeeper, had hired his vehicle to transport their goods i.e. Maize, Rajmah and vegetables etc. from village Dhakog to their respective places. As per this witness, deceased was running a grocery shop, but then it is not the case set up by the claimant that the deceased was running any shop, rather it is the pleaded case that the deceased was working as a Mason and was also carrying out his agricultural pursuits and by rearing milch cattle in order to earn his livelihood.
19. Apart from the above, there is no document produced by the appellants, in support of their claim that the deceased, on the fateful day, had hired the vehicle. Even though, Shashi Kumar (RW.1) did state that he had kept receipt book and had issued such receipt to the deceased, but neither he brought the receipt book nor the counterfoils of the same in the Court.
Moreover, a specific case put forth by PW.3 was that the ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 8 deceased hired the vehicle for transporting "household articles"
and was not transporting the goods of grocery shop, as claimed by RW.1. Therefore, learned Tribunal has rightly come to the .
conclusion that the vehicle had in fact not been hired by the deceased, who in fact was travelling in the vehicle as a gratuitous passenger.
20. Learned counsel for the appellants argued that the learned Tribunal had ignored the plea of co-passenger Surinder Kumar, who appeared as RW.2 and testified that the deceased had hired the vehicle and was returning with the goods at the time of accident and therefore, the claim for compensation was required to be indemnified by the Insurance Company.
21. This plea is again without merit as admittedly Surinder Kumar (RW.2) is the informant of the FIR (Ex.PW.1/A), wherein he had claimed that he alone had hired the vehicle for carrying his articles to his shop from Dhakog to Tarela. It is further mentioned therein that at around 6.45 pm, when the vehicle reached Tarela and was being unloaded, he found the box of Jaggery to be missing, whereupon, all the occupants of the Jeep started returning back to Dhakog and on the way he met the deceased, who thereafter sat in the vehicle and at a place near Thapnai Nallah, the box of Jaggery was found on the road.
There is no mention in the FIR of the vehicle being hired by the deceased at any point of time. Therefore, no fault can be found with these findings of the learned Tribunal to the effect that the ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 9 deceased was travelling in the vehicle as unauthorized and gratuitous passenger.
22. A faint attempt, at this stage, was made by the .
learned counsel for the appellants to contend that Surinder Kumar (RW.2) has not supported the contents of FIR while appearing as a witness. However, even this plea of the appellants cannot be accepted as it is established on record that the appellants took no pleas whatsoever to bring it to the notice of the statutory authorities regarding the contents of the FIR or the so called wrong description contained therein. Thus, defence as put forth by the appellants, is clearly of an afterthought and therefore, cannot be accepted. There is no dispute that the vehicle was registered as a commercial vehicle and there was no insurance cover qua the passenger travelling therein. Therefore, the Tribunal committed no error in concluding that the gratuitous passengers cannot be ordered to be compensated from the Insurance Company and it is the owner and the driver of the vehicle, who alone are liable to make good the compensation amount.
23. It is, therefore, vehemently urged by the learned counsel for the appellants that the award passed by the Tribunal below is highly excessive and therefore, deserves to be modified accordingly. I again find no merit in this submission as admittedly the age of the deceased was 28 years and his income on the basis of Principle of Minimum Wages Act had been assessed at `6,000/- which comes to `72,000/- per annum.
::: Downloaded on - 01/05/2019 22:00:23 :::HCHP 10Thereafter, the Tribunal deducted 50% towards personal and living expenses of the deceased as he admittedly was bachelor and the claimant is his mother. Therefore, on such basis, income .
of the deceased was assessed at `36,000/- per annum and a multiplier of 17 was applied. In this way, the total dependency of the family worked out at `6,12,000/- and thereafter, claimants were held entitled to a sum of `15,000/- each under head loss of estate and `15,000/- towards funeral expenses, in view of the law laid down by the Hon'ble Constitution Bench of the Supreme Court in National Insurance Company vs. Pranay Sethi and others, 2017 ACJ 2700.
24. Lastly, it is vehemently urged by the learned counsel for the appellants that the interest, as awarded by the learned Tribunal, is highly excessive. Even this contention deserves to be rejected as the Tribunal below has only granted interest @ 7.5% per annum, which keeping in view the current rate of interest as given by the Banks on long term deposit, cannot in any way be said to be excessive.
25. In view of the aforesaid, I find no merits in this appeal and the same is accordingly dismissed, leaving the parties to bear the costs.
Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan), Judge.
May 1, 2019 (Purohit) ::: Downloaded on - 01/05/2019 22:00:23 :::HCHP