Himachal Pradesh High Court
Shriram General Insurance Company Ltd vs R To on 30 December, 2022
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(MVA) No. 419 of 2019 .
Reserved on: 23.12.2022 Decided on : 30.12.2022 Shriram General Insurance Company Ltd.
...Appellant
Versus
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Ujagar Singh and others
...Respondents
___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?
________________________________________________ For the Appellant : Mr. Jagdish Thakur, Advocate.
For the respondents : Mr. Parkash Sharma, Advocate, for respondents No. 1 to 4.
Mr. Ajay K. Dhiman,
Advocate, for respondents
No. 5 and 6.
Virender Singh, Judge
The appellant, M/s Shriram General
Insurance Company Limited have filed the present ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 2 appeal under Section 173 of Motor Vehicles Act, (hereinafter referred to as "the M.V. Act"), against the award dated 10.4.2019, passed by learned .
Motor Accident Claims Tribunal (Additional District Judge, Sirmaur at Nahan), (hereinafter referred to as "the MACT") in MAC Petition No. 96N/2 of 2016.
2. By virtue of the award, which has been challenged by virtue of present appeal, learned MACT has awarded a sum of Rs. 5,01,000/ alongwith 9% interest per annum, from the date of filing of the petition, till realization of the amount, against the appellant, and in favour of respondents No. 1 to 4.
3. Parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned MACT.
4. The brief facts, leading to filing of the present appeal, before this Court, are summed up as under.
5. Petitioners No. 1 to 4, being sons of ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 3 deceased Uday Singh, have filed the petition, under Section 166 of the M.V. Act, against the respondents, seeking compensation of Rs.
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12,00,000/, on account of death of Uday Singh in a road accident, on 29.10.2015, at about 8:30 a.m., involving vehicle No. HP17B4688, owned by respondent No. 1, driven by respondent No. 2 and
5. to insured by respondent No. 3.
In the claim petition, it has been pleaded that on 29.10.2015, Uday Singh was traveling in bus No. HP17B4688. When, the said bus reached near Jalali (Mehlani) at about 8:30 a.m., respondent No. 2 could not control the bus, as he was driving the same in a rash and negligent manner. Consequently, the bus struck against a tree and rolled down from the road. Consequently, Uday Singh sustained fatal injuries and died on the spot. Age of the deceased, at the time of accident, has been mentioned as 60 years. His income is stated to be as Rs. 12,000/ per month, by following ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 4 the agricultural pursuits, growing vegetables and selling milk.
6. Information regarding the accident was .
given to the police of Police Station, Shillai, where FIR No. 67, dated 29.10.2015, was registered.
7. By pleading their bright past and bleak future, petitioners No. 1 to 4 have sought compensation of Rs. 12,00,000/ respondents, as prayed in the petition.
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8. When put on notice, the claim petition has been contested by the respondents.
Respondents No. 1 and 2 have filed their joint reply, in which, they have taken preliminary objection regarding maintainability of the claim petition.
9. On merits, factual position, in the claim petition, regarding accident and death of Uday Singh has not been disputed. However, the allegations regarding rash and negligent driving against respondent No. 2 have been denied by taking a plea that the accident in question has ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 5 taken place due to sudden mechanical failure of the offending bus.
10. The factum of registration of FIR, as .
pleaded in para9 of the claim petition, has been admitted by pleading that false case has been registered against respondent No. 2.
11. The Insurance Company, i.e. preliminary r to respondent No. 3, has filed its reply, separately by taking objections regarding maintainability, the driver of the offending bus not having a valid and effective driving license, the offending bus being plied in violation of terms and conditions of the Insurance policy and without permit and the petition being filed in collusion with respondents No. 1 and 2.
12. On merits, the factual position has been denied.
13. On the basis of above facts, respondents have prayed for dismissal of the claim petition.
::: Downloaded on - 05/01/2023 20:31:39 :::CIS 614. From the pleadings of the parties, learned MACT has framed the following issues, on 6.9.2017:
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"1. Whether the deceased Uday Singh died on account of rash and negligent driving of offending vehicle i.e. Bus bearing No. HP17B4688 by respondent No. 2 at place Jalali Mehlani on 29.10.2015 at about 8:15 a.m., as alleged? ..OPP
2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP
3. Whether the petition is not maintainable in the present form, as alleged? OPR3
4. Whether the petition has been filed by the petitioners in collusion with the respondents No. 1 & 2, if so, its effect? OPR3
5. Whether the driver of Bus bearing No. HP17B 4688 was not possessed of valid and effective driving license at the time of accident?..OPR3
6. Whether the offending vehicle was being driven in contravention of terms and conditions of the Insurance policy? ..OPR3
15. Thereafter, both the parties have led evidence.
16. After closure of the evidence and after hearing learned counsel for the parties, learned ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 7 MACT has awarded a sum of Rs. 5,01,000/, alongwith interest @ 9% per annum, in favour of petitioners and against respondent No. 3.
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17. Feeling aggrieved from the said award, the present appeal has been filed before this Court on the ground that the impugned award is based on surmises and conjectures and the same has been passed by the learned MACT, appreciating the documents, filed by the parties.
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18. The award has also been challenged on the ground that the petitioners are literate and they were not dependent on the income of the deceased, as such learned MACT has wrongly awarded the compensation to them.19. In this regard, respondent No. 3
(appellant) has relied upon the statement of PW1.
To buttress its stand, the respondent No. 3 has relied upon the judgment of Hon'ble Supreme Court in, Manjuri Bera Vs. Oriental Insurance Company Limited, reported in 2007(2) ACJ 1279.::: Downloaded on - 05/01/2023 20:31:39 :::CIS 8
20. The award has further been assailed on the ground that learned MACT has wrongly assessed the income of the deceased @ Rs. 6,000/ .
per month, without there being any documentary evidence to this effect. According to respondent No. 3, in absence of any documentary evidence, income of the deceased should be considered by learned MACT, on the basis of minimum wages, prevailing at the time of accident, and in the year 2015, the minimum wages, in the State of H.P., as per the notification issued by the State of Himachal Pradesh, were Rs. 170/ per day, or Rs. 5100/ per month.
21. The award has further been assailed on the ground that learned MACT has wrongly considered the age of deceased as 55 years, at the time of accident, whereas, petitioner No. 1, while appearing in witness box, as PW1, has given his age as 45 years on 23.8.2018, which means that at the time of his birth, the deceased was about 10 ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 9 years of age, which is not possible.
22. Lastly, the award has also been assailed on the ground that the learned MACT has .
wrongly awarded the interest @ 9% per annum, which is on the higher side, and the same ought to have been @ 6% per annum, as held by the Hon'ble Supreme Court in New India Assurance Company Limited vs. Shanti Bopanna reported in 2018 (12) SCC 540.
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23. On all these submissions, Mr. Jagdish Thakur, Advocate, appearing for the appellant, has prayed that the appeal may kindly be allowed by setting aside the impugned award.
24. In order to decide the controversy involved in the present case, it would be just and appropriate for this Court to discuss the oral as well as documentary evidence, adduced by the parties, before the learned MACT.
25. After framing the issues, when petitioners were directed to adduce the evidence, petitioner No. 1 ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 10 appeared in the witness box and filed his affidavit Ext.
PW1/A.
26. In the said affidavit, he has asserted the .
factual position, as contained in the claim petition. He has given his age as 45 years and given the age of his father Uday Singh as 60 years. Whatsoever he has deposed about his age, stands falsified from the legal heir certificate, produced by him. In the legal heir certificate, Ext. PW1/C, age of Ujagar Singh (petitioner No. 1) has been mentioned as 50 years.
27. In such situation, the age of deceased, as pleaded in the claim petition, as 60 years, cannot be accepted as gospel truth. Similarly, the age of the deceased, mentioned as 55 years, is also not liable to be accepted, in view of the legal heir certificate, Ext.
PW1/C, which was issued on 24.2.2016, as in the said certificate, the age of Ujagar Singh (petitioner No. 1) has been mentioned as 50 years, then his deposition made on 23.3.2018, about his age being 45 years, is liable to be ignored. If the age of Ujagar Singh, petitioner No. 1 (PW1), on 24.2.2016 was 50 years, then, at the time of ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 11 accident on 29.10.2015, his age can be said to be 49 years. In such situation, learned MACT has not properly considered the age of the deceased, at the time of .
accident.
28. The claimants, being legal heirs of deceased Uday Singh, are entitled to file claim petition, but, the fact whether they were dependent upon the earnings of Uday Singh, during his lifetime, has to be specifically pleaded and proved by the claimants.
29. In para22 of the claim petition, following lines have been pleaded:
"The petitioner suffered huge financial losses, as the deceased was the only bread earner of the family."
30. Petitioner No. 1, in his affidavit, has deposed the facts, which were beyond pleadings. He has put forward the plea of his disablement to the extent of 50%. In the absence of documentary proof to probabilize the said plea, his said statement, that too, beyond the pleadings, cannot be accepted as gospel truth.
31. In the crossexamination, he has stated ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 12 that he is an agriculturist by profession and having 10 bighas of land. Agriculture is stated to be their family pursuit. Petitioners No. 2 to 4 are also stated to be .
following agriculture pursuit. All the four brothers are stated to be married and having their children, who are being looked after by themselves. He has also deposed that when deceased Uday Singh was alive, even then they used to look after their children. Hence, the sole statement of petitioner No. 1, is not sufficient to conclude that the petitioners were dependent on the income of deceased Uday Singh, during his lifetime. No copy of Pariwar Register or ration card has been placed on record to show that all the petitioners were living in the joint family, of which Uday Singh was 'Karta'.
32. In such situation, findings of the learned MACT, awarding the compensation to the claimants on account of loss of contribution of the deceased to the petitioners, is not liable to be accepted.
33. The Hon'ble Supreme Court, in its decision in Manjuri Bera vs. Oriental Insurance Company Ltd. (2007) 10 SCC 643, has held that ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 13 even if there was no dependence, there is a loss to the estate and a person who is a legal representative, but not dependent can yet be a beneficiary of the estate. It .
shall be apposite to refer to the necessary observations, as mentioned in the said judgment, paras 11 to 14 of which are reproduced as under:
"11. According to Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. [1987]3SCR404 a legal representative is one who ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 14 suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
13. There are several factors which have to be noted. The liability under Section 140 of the Act does not .
cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement.
Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.
14. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163A.
34. In view of the decision of Hon,ble Supreme Court in Manjuri Bera's case (supra), this Court is of the view that learned MACT has wrongly held that the claimants are dependent on the earnings of deceased Uday Singh. As such, the findings of learned MACT, to that extent, are liable to be interfered with.
35. In other words, it can be stated that on account of loss of dependency, petitioners were not entitled for ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 15 compensation, as they were not dependent on the earnings of Uday Singh, during his life time, but this does not mean that petitioners are not entitled for any relief in this case. They are .
entitled only for the loss of estate, which shall not be less than the amount of 'no fault liability', under Section 140 of M.V.Act.
36. The Hon'ble Supreme Court in Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, (2018) 18 Supreme Court Cases 130, has enhanced the scope of awarding compensation under the head 'loss of consortium'. Paras 21 to 24 of the said judgment are reproduced as under:
"21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses `spousal consortium', `parental consortium', and `filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 16 allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".
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21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child.
An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 17 filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity .
with respect to the principles on which compensation could be awarded on loss of filial consortium.
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium."
37. In view of the above fact, the claimants are held entitled for a sum of ₹ 50,000/ under the head 'loss of estate' and ₹ 15,000/ under the head 'funeral expenses'. Apart from the above, the claimants are also held entitled for a sum of ₹ 50,000/ each, under the head 'parental consortium' (claimants No. 1 to 4).
38. Thus, the claimants are held entitled to compensation to the tune of ₹ 50,000 + ₹ 15,000/ + ₹ 2,00,000/ ( ₹ 50,000/x4) = total ₹ 2,65,000/, from the insurer, as the liability has been fastened upon the insurer, by the learned MACT, which has not been assailed by the insurer.
39. Learned MACT has awarded interest @ 9% per annum, which is also liable to be interfered with.
::: Downloaded on - 05/01/2023 20:31:39 :::CIS 1840. In view of the prevailing rate, it would be just and appropriate, for this Court, to award interest @ 6.5% per annum, alongwith interest, from the date of filing of the claim petition, till the .
realization of the whole amount.
41. Before parting with the judgment, this Court must express its concern about the manner, in which the petition is being decided. No doubt, petitioners are the sons of deceased Uday Singh, as such, being legal representatives, they have every right to maintain the claim petition, but, in the absence of specific pleadings as well as evidence regarding the dependency of the claimants/petitioners on the income/earnings of the deceased, learned MACT should not have ventured into the award amount on account of loss of dependency. It seems that learned MACT has swayed away with the emotions that the M.V. Act is the social and beneficial piece of legislation, irrespective of the fact that awarding compensation by accepting such type of claims, the Courts are encouraging the citizens of this Country, towards claiming easy money, in the unfortunate event of death of the member of their family.
42. In view of the above, the appeal is partly allowed and the impugned award dated 10.4.2019, passed by learned ::: Downloaded on - 05/01/2023 20:31:39 :::CIS 19 MACT in claim petition No. 96N/2 of 2016, is modified, to the aforesaid extent and the claimants are held entitled to compensation to the tune of Rs. 2,65,000/ , as described above, .
alongwith interest @ 6.5% per annum, from the date of filing of the claim petition, till the realization of the whole amount. No order as to costs.
43. Records be sent back.
(Virender Singh) Judge 30.12.2022 Kalpana ::: Downloaded on - 05/01/2023 20:31:39 :::CIS