Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Sumitra Devi And Others on 2 December, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
FAOs No. 441 & 442 of 2012
Decided on: 02.12.2016
FAO No. 441 of 2012
Oriental Insurance Company Ltd. ...Appellant.
of
Versus
Smt. Sumitra Devi and others
rt ...Respondents.
.........................................................................................................
FAO No. 442 of 2012
Oriental Insurance Company Ltd. ...Appellant.
Versus
Smt. Sunita Devi and others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
FAO No. 441 of 2012
For the appellant: Mr. Ashwani K. Sharma, Senior
Advocate, with Mr. Jeevan Kumar,
Advocate.
For the respondents: Mr. Karan Singh Kanwar, Advocate,
for respondents No. 1 to 7.
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2
Mr. Deepak Kaushal, Advocate, for
respondents No. 8 to 10.
........................................................................................................
.
FAO No. 442 of 2012
For the appellant: Mr. Ashwani K. Sharma, Senior
Advocate, with Mr. Jeevan Kumar,
Advocate.
For the respondents: Mr. Karan Singh Kanwar, Advocate,
of
for respondents No. 1 to 6.
Mr. Deepak Kaushal, Advocate, for
respondents No. 7 to 9.
rt
Mansoor Ahmad Mir, Chief Justice. (Oral)
Both these appeals are outcome of one vehicular accident, thus, the same are being clubbed and decided by this common judgment.
2. Challenge in FAO No. 441 of 2012 is to award, dated 30th July, 2012, made by the Motor Accident Claims TribunalII, Sirmaur District at Nahan, H.P. (hereinafter referred to as "the Tribunal") in MAC Petition No. 52N/2 of 2007, titled as Sumitra Devi and others versus Ritesh Aggarwal and others, whereby compensation to the tune of ₹ 5,34,400/ with interest @ 7.5% per annum from the date of filing of the claim petition till its realization came to be ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 3 awarded in favour of the claimants and the insurer was saddled with liability (hereinafter referred to as "impugned .
awardI").
3. Subject matter of FAO No. 442 of 2012 is award, dated 30th July, 2012, made by the Tribunal in MAC Petition of No. 15N/2 of 2008, titled as Sunita Devi and others versus Shri Ritesh Kumar Aggarwal and others, whereby rt compensation to the tune of ₹ 5,01,000/ with interest @ 7.5% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants and the insurer was saddled with liability (hereinafter referred to as "the impugned awardII").
4. The claimants, driver and ownersinsured of the offending vehicle have not questioned the impugned awards on any count, thus, have attained finality so far the same relate to them.
5. Appellantinsurer has called in question both the impugned awards on the grounds taken in the respective memo of appeals.
::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 46. In order to determine both these appeals, it is necessary to give a brief resume of the facts of the cases, the .
womb of which has given birth to the appeals in hand.
7. The claimants in both the claim petitions invoked the jurisdiction of the Tribunal by the medium of respective of claim petitions for grant of compensation, as per the breakups given in the respective claim petitions, on the ground that they rt became the victims of the vehicular accident, which was caused by the driver, namely Shri Yash Pal, while driving truck No. HP513277, rashly and negligently on 5 th August, 2007, at about 10.30 P.M., at Mandoli, in which deceased Satpal and Hari Singh sustained injuries and succumbed to the said injuries.
8. The respondents in both the claim petitions resisted the same on the grounds taken in the respective memo of objections.
9. On the pleadings of the parties, a similar set of issues came to be framed by the Tribunal in both the claim petitions on 14th July, 2008. Thus, I deem it proper to reproduce the issues framed in one of the claim petitions, i.e. ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 5 MAC Petition No. 52N/2 of 2007 (subject matter of FAO No. 441 of 2012) herein:
.
"1. Whether the deceased Satpal died in an accident which was the result of rash and negligent driving of the vehicle by respondent No. 3, Yash Pal, as alleged? OPP
2. If issue No. 1 is proved, to what of amount of compensation, the petitioners are entitled to and from whom? OPP
3. Whether the risk of the deceased was rt not covered under the Insurance Policy? OPR4
4. Whether the deceased was an un autorized passenger in the offending vehicle? OPR4
5. Whether the driver of the vehicle was not possessed of a valid and effective driving licence at the time of accident? OPR4
6. Whether the petition has been filed in collusion with respondents No. 1 to 3? OPR4
7. Relief."
10. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation in favour of the claimants in the respective claim petitions and saddled the insurer with liability in terms of the impugned awards.
::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 611. Learned Senior Counsel appearing on behalf of the appellantinsurer argued that the Tribunal has fallen in an .
error in saddling the appellantinsurer with liability in both the claim petitions on three counts:
(i) That the deceased were not labourer/employee or the pedestrian, of but were travelling in the offending vehicle as unauthorized passengers; rt (ii) That adequate opportunity was not granted to the appellantinsurer to lead evidence; and
(iii) That the amount awarded is excessive;
12. All these grounds are not tenable for the reasons to be recorded hereinafter.
FAO No. 441 of 2012:
13. The claimants have specifically pleaded in the claim petition that deceasedSatpal was working as a labourer with the offending vehicle and was travelling in the same as a labourer at the time of the accident, which stands admitted by ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 7 the ownerinsured and driver of the offending vehicle in their reply.
.
14. It is apt to reproduce para 11 of the joint reply filed by the ownerinsured and driver of the offending vehicle herein:
of "11. That the contents of para 23 & 24 of the claim petition are wrong hence emphatically denied except that the deceased was the labourer on the truck.
rt It is also submitted that the accident took place due to the mechanical failure."
(Emphasis added)
15. Hence, it is admission on the part of the owner insured and driver of the offending vehicle that deceased Satpal was employed by them with the offending truck as a labourer.
16. I have gone through the registration certificate of the offending vehicle, which is on the record as Ext. R4, the perusal of which does disclose that the seating capacity of the offending vehicle including the driver is '3+1'.
17. The factum of insurance is admitted. The insurance policy is on the record as Ext. R3. While going through the details of premium paid, which is contained in the ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 8 Schedule of Premium of the insurance policy, it is crystal clear that premium has been paid for liability of employee/driver .
also. Thus, the risk of deceasedSatpal, being the labourer with the offending vehicle, was covered.
18. The insurer has not led any evidence to dislodge of the evidence led by the claimants. It is apt to record herein that the claimants' evidence was closed in terms of order, rt dated 4th March, 2009. Thereafter, the file remained on the dockets of the Tribunal till 25th July, 2012, for recording the respondents' evidence, on which date also no RWs were present despite the fact that eight opportunities were already granted in their favour and the evidence was ordered to be closed. Thus, it cannot lie in the mouth of the appellant insurer that adequate opportunities were not granted to it to lead evidence.
19. The claimants are seven in number. The Tribunal, after taking the income of deceasedSatpal to be ₹ 3600/ per month, has rightly deducted onefifth towards his personal expenses in view of the law laid down by the Apex Court in the case titled as Sarla Verma (Smt) and others versus Delhi ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 9 Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, which was upheld by a larger .
Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in 2013 AIR SCW 3120.
20. The deceased was 31 years of age at the time of the of accident. The multiplier of '15' applied by the Tribunal is just and appropriate in view of the ratio laid down by the Apex rt Court in Sarla Verma's and Reshma Kumari's cases (supra) read with the Second Schedule appended with the Motor Vehicles Act, 1988 (hereinafter referred to as "MV Act").
21. Viewed thus, the amount awarded cannot be said to be excessive in any way, rather, is meagre. But, the claimants have not questioned the adequacy of the compensation, thus, the same is maintained.
FAO No. 442 of 2012:
22. The claimants have specifically pleaded that deceasedHari Singh was walking as a pedestrian by the side of the road when he was hit by the offending vehicle. They have also led evidence to substantiate their claim.
::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 1023. PW1, namely Shri Shammi Kumar, has specifically stated that he was present on the spot at the time .
of the accident and when deceasedHari Singh was walking alongside the road, he was hit by the offending vehicle. Thus, it can be safely held that deceasedHari Singh was a third of party and his risk was covered in terms of the insurance policy.
24. rt The insurer has not led any evidence in rebuttal despite various opportunities and the respondents' evidence was ordered to be closed by the Tribunal vide order, dated 25 th July, 2012. Thus, it cannot be said that adequate opportunities were not granted to the insurer to lead evidence.
25. The claimants are six in number. The Tribunal, after taking the income of deceasedHari Singh to be ₹ 3600/ per month, has rightly deducted onefourth towards his personal expenses in view of the law laid down by the Apex Court in the case titled as Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, which was ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 11 upheld by a larger Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in .
2013 AIR SCW 3120.
26. The deceased was 32 years of age at the time of the accident. The multiplier of '15' applied by the Tribunal is just of and appropriate in view of the ratio laid down by the Apex Court in Sarla Verma's and Reshma Kumari's cases rt (supra) read with the Second Schedule appended with the MV Act.
27. Having said so, the amount awarded cannot be said to be excessive in any way, rather, is meagre. But, the claimants have not questioned the adequacy of the compensation, thus, the same is maintained.
28. All the three points raised and argued by the learned Senior Counsel appearing on behalf of the appellant insurer are answered accordingly.
29. Having glance of the above discussions, the Tribunal has rightly made the impugned awards, are well reasoned and legal one, need no interference.
::: Downloaded on - 15/04/2017 21:40:20 :::HCHP 1230. Accordingly, the impugned awards are upheld and both the appeals are dismissed.
.
31. Registry is directed to release the awarded amount in favour of the claimants in both the claim petitions strictly as per the terms and conditions contained in the respective of impugned awards through payee's account cheque or by depositing the same in their respective bank accounts after rt proper identification.
32. Send down the record after placing copy of the judgment on each of the Tribunal's files.
(Mansoor Ahmad Mir) Chief Justice December 2, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 21:40:20 :::HCHP