Himachal Pradesh High Court
National Insurance Company Ltd vs Of on 2 June, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
FAO No. 443 of 2014
Date of Decision : June 2 , 2016
National Insurance Company Ltd. ... Appellant
Versus
of
Smt. Ritu Sharma & others ... Respondents
Coram: rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. Ashwani K. Sharma, Senior Advocate, with
Mr. Nishant Kumar, Advocate, Advocate, for the
appellant.
For the respondent : Mr. Bimal Gupta, Sr. Advocate, with Mr. Vineet
Vashista, Advocate, for respondents No. 1 to 3.
Mr. Vishal Bindra, Advocate, for respondents No. 4
and 5.
Sanjay Karol, J. (oral)
In this appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), the insurer (appellant herein) has assailed the award dated 22.3.2014, passed by learned Motor Accidents Claim Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 2Tribunal-II, Sirmaur District at Nahan, H.P., in Claim Petition No. 74-N/2 of 2009, titled as Smt. Ritu Sharma & others vs. .
Sh. Pawan Verma & others.
2. On 22.11.2008, vehicle bearing No. HP-18B-0008 owned by Pawan Verma (respondent No. 4) and driven by Atikant Verma (respondent No. 5) met with an accident.
of Ashish Sharma was one of the passengers who died on the spot. His legal heirs i.e. wife (respondent No. 1), minor child rt (respondent No. 2) and mother (respondent No. 3) claimed compensation to the tune of `45 lacs by way of a petition filed under the provisions of Section 166 of the Act.
Allegedly, deceased, aged 35 years, who was M.A. in Economics was gainfully employed as Sales Executive in a private firm and drawing a salary of `29,166/- per month.
3. Based on the pleadings of the parties, Tribunal framed the following issues:-
"1. Whether Ashish Sharma @ Ashu had died on account of the rash or negligent driving of Car No. HP-18-B-0008 by respondent No. 2 Atikant Verma on 22.11.2008 at about 11.30 a.m. at Dhanoi Nala, as alleged? OPP ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 3
2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners .
are entitled to and from whom? OPP
3. Whether the driver of the vehicle in
question did not possess a valid and effective driving licence at the relevant time, as alleged?
OPR of
4. Whether the petition has been filed by the petitioners in collusion with respondent Nos. 1 & 2, as alleged? OPR 5. rt Relief."
4. Based on the material on record and the evidence led by the parties, the issues came to be decided in favour of the claimants and the petition allowed in the following terms:-
"26. In view of the aforesaid findings, the present petition is partly allowed and compensation of `35,15,000/- (Rupees thirty five lacs fifteen thousand only) along with interest at the rate of 7.5% per annum from the date of filing the petition till the date of deposit of amount. The amount shall be deposited by respondent No. 3 within a period of two months from today failing which respondent would be liable to pay interest at the rate of 12% per annum from the date of award. Amount of compensation, if already awarded and released in favour of petitioners ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 4 under Section 140 of Motor Vehicles Act shall be adjusted in the award."
.
5. Undisputedly, neither the claimants nor the owner and the driver have assailed the impugned award dated 22.3.2014.
6. The Insurer, in terms of the present appeal has of laid challenge to the same on the following grounds:
(i) In the proceedings arising out of F.I.R.
rt pertaining to the very same incident, the trial Court, while acquitting the accused, found the accident not as a result of rash or negligent driving on the part of driver Atikant Verma;
(ii) In relying upon the salary certificate (Ext.
PW-3/A) the Tribunal committed grave illegality, which stands fortified from the report dated 25.9.2014 issued by the Insurance Investigator;
(iii) In any event, from the salary certificate, necessary income tax and professional tax deductions were required to be carried out, which was not so done; and
(iv) The appellant is a public sector undertaking and the amount of claim, which is highly exaggerated, is against public interest.
7. To justify the first two contentions, appellant in this appeal, has filed two applications being CMP No. 20800 ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 5 of 2014 and CMP No. 7517 of 2015 seeking permission to place on record certain documents and lead additional .
evidence.
8. Record reveals that in the claim petition so filed on 28.5.2009, it stood specifically mentioned that the accident occurred purely on account of rash and negligent of driving on the part of Atikant Verma. Also F.I.R. No. 71/2008 dated 22.11.2008 came to be registered at Police Station rt Renukaji, Distt. Sirmaour, under the provisions of Sections 279, 337, 304-A of the Indian Penal Code. Record further reveals that to establish the factum of negligence on the part of the driver, claimants examined eye witness Jitender Thakur (PW-5) and no evidence was led by the present insurer. The judgment so passed in proceedings arising out of F.I.R. No. 71/2008 came to be delivered on 21.10.2010 itself. Whether such judgment has attained finality or not is a different matter but it is fact that the insurer chose not to lead any evidence, much less place the said judgment on record before the Authority below. Record further reveals that the salary certificate came to be proved on record through the testimonies of claimant Ritu Sharma (PW-4) as ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 6 also Vivek Sharma (PW-3), employer of the deceased, whose statement was recorded in the Court on 7.5.2010.
.
The factum of employment of the deceased with M/s Rajat Minerals Pvt. Limited as Sales Executive came to be recorded in the claim petition to which, in response, the insurer simply denied the averments made in para-6.
of Record reveals that pursuant to the recording of the statement of Vivek Sharma (PW-3) on 7.5.2010, in whose rt testimony the salary certificate came to be exhibited as Ext.
PW-3/A, additional witnesses of the claimants and one witness of the owner came to be examined. Despite opportunity afforded, the insurer chose not to lead any evidence and in fact on 26.7.2013, the learned counsel made the following statements:
"Statement of Sh. Mukul Garg Adv. counsel for the respondents No. 1 and 2.
W/oath 26.7.2013.
Stated that I tender in evidence copy of RC Ex. RA and closed the evidence on behalf of respondents No. 1 and 2."
AND "Statement of Sh. P. S. Chauhan, Adv. counsel for respondent No. 3.
W/oath 26.7.2013 Stated that I tender in evidence copy of Insurance Policy Ext. RX."
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 79. The insurer ought to have taken due care in .
defending its case as is so required in law. It is not that the insurer was taken by surprise and was unaware of the case set up by the claimants. The claimants, at the threshold had set up a claim of `45 lacs. They had attributed negligence to of the driver. They had also disclosed the factum of employment in the claim petition. The insurer had ample rt opportunity of having the matter investigated/examined at its own level and produced the material or evidence in rebuttal. Decision rendered by the Criminal Court was not a new fact which came to be discovered by the appellant subsequent to the passing of the impugned award. It being a different matter that the said decision would be of no binding force in the instant proceedings. Insofar as the report of the Investigator is concerned, it reads as under:
"To The Manager National Insurance Co. Ltd.
CRO-II, T.P. HUB 8, India Exchange Place (7th Floor) Kolkata - 700001 Sub: Verification of Income & Occupation of deceased "Mr. Ashish Sharma" from the employer RAJAT MINERALS PVT. LTD.
Your Ref: HO/Motor TP/2014-15/Misc/1 ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 8 Sir, Under signed hereby reported that as per your instruction I visited the address of employer RAJAT .
MINERALS PVT. LTD. of 9/12, Lalbazar Street, E-Block, 4th Floor, Kolkata 7000001 but not found any existence of such name of office a that floor and on my enquiry nobody could remember such name of office. At last being harassed and finding no other alternative, I was compelled to send a letter addressed to the said employer under Regtd. with A/D on 15.09.2014. But it was return by the post office with remarks "Insufficient address wanting of room number hence Not Known" dated 17.09.2014 which is enclosed for your kind perusal and doing the needful.
Thanking you, rt Yours faithfully, Sd/-
Swaraj Bhattacharyya Insurance Claim Investigator."
10. Significantly, it is not the report of the Investigator that as on the date of the occurrence of the accident, the employer company was not having its office at the address stated in the certificate (Ext. PW-3/A). The employer was a company incorporated under the Companies Act, 1956. It ought to have had its registered office. The Investigator chose not to examine the matter and the record of the registration of Company. Significantly no doubt with regard to the existence of the company or the company having its office at the place mentioned in the certificate was ever exhibited at the time of examination of ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 9 Vivek Sharma (PW-3), CEO of the employer company. The Company, after few years may have shifted its address. All .
that the insurer now wants to do, could have been done during the pendency of the claim petition which came to be decided after a period of five years. Hence insurer had sufficient long time for placing on record the evidence which of is now sought to be done.
11. The language of Order 41 Rule 27 CPC is rt evidently clear. Except for certain exceptions, party is prohibited from placing on record additional evidence (oral or documentary). In the instant case, Authority below had not refused to admit evidence. This Court either for pronouncement of judgment or for other substantial cause does not require the documents sought to be produced on record to be produced. The only question which therefore needs to be considered is as to whether the insurer has been able to establish that notwithstanding insistence of due diligence, the evidence which is sought to be now produced "could not" after exercise of due diligence, be produced before the Court below.
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 102. The apex Court, after considering the principles laid down in its earlier decisions K. Venkataramiah vs. A. .
Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn. of Greater Bombay vs. Lala Pancham, AIR 1965 SC 1008;
Soonda Ram vs. Rameshwarlal, (1975) 3 SCC 698; Syed Abdul Khader vs. Rami Reddy, (1979) 2 SCC 601; Haji of Mohammed Ishaq vs. Mohd. Iqbal & Mohd. Ali & Co., (1978) 2 SCC 493; State of U.P. vs. Manbodhan Lal Srivastava, AIR rt 1957 SC 912; S. Rajagopal vs. C.M. Armugam, AIR 1969 SC 101; State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568;
State of Uttaranchal vs. Sunil Kumar Singh Negi, (2008) 11 SCC 205; Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732; and Sant Lal Gupta vs. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336, in Union of India vs. Ibrahim Uddin & another, (2012) 8 SCC 148 has observed that:
"48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 11 consideration the relevance of the document in respect of the issues involved in the case and the .
circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that of the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record rt reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."
[Emphasis supplied]
12. The apex Court in Atma S Berar vs. Mukhtiar Singh, (2003) 2 SCC 3 has held the power of the Court to take note of subsequent events to be well-settled and undoubted. However, it is accompanied by three riders:
firstly, subsequent event should be brought promptly to the notice of the Court; secondly, it should be brought to the notice of the Court consistently with rules of procedure enabling Court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party.::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 12
13. As already observed, claimants had already set out their claim based on (i) negligence of the driver and (ii) .
salary certificate issued by the employer. Now both of these facts were in the knowledge of the insurer and had they exercised due diligence, they could have had the matter followed up and investigated properly in opposition of the of claim set up by the claimants. It was to their knowledge that the F.I.R., as a result of the accident, stood registered. It rt was a serious case and death had taken place. Despite complete paraphernalia available with the insurer, they chose not to ascertain the outcome of the proceedings and any evidence. In the applications, it is not so disclosed as to when the factum of passing of the judgment in criminal proceedings came to their notice. Thus they have concealed relevant facts. As such, both the applications, devoid of any merit, are dismissed.
14. Now, coming to the merits of the case, one finds that in support of the claim petition, through the testimony of Dr. Parmesh Dogra (PW-1), claimants have proved on record the post mortem report of the deceased (Ext. PW-
1/A). Death was on account of injury to brain due to blunt ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 13 force or impact. To establish the accident, claimants have examined HHC Bhagmal (PW-2) and Jitender Thakur (PW-5).
.
PW-2 has proved on record the F.I.R. No. 71/08, dated 22.11.2008 (Ext. PW-2/A) so registered against the driver.
Now PW-5 is the spot witness. Categorically he has deposed that the accident in question was as a result of rash and of negligent driving on the part of the driver of the vehicle in question. Upon being cross examined by the insurer, he rt denied having made a contradictory statement in the proceedings pending before the Court of Judicial Magistrate 1st Class, Nahan. Perhaps the insurer was aware of such fact yet no endeavour was made to confront the witness with such statement and from his testimony in the present proceedings, it cannot be said that the witness has not stated the truth. The conduct of the witness stands unimpeached. He is the one who got recorded the F.I.R.
registered by reporting the first version to the police.
15. The decision in criminal proceedings, in the given facts and circumstances would have no persuasive, much less binding effect on the present proceedings.
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 1416. It be also observed that neither the owner nor the driver stepped into the witness box to establish the fact .
other that the one which stands proved on record by the claimants. Only Bansi Ram (RW-1) stands examined for proving the genuineness of driving license (Ext. RW-1/A).
17. Hence, negligence on the part of the driver of stands established on record.
18. The accident took place on 22.11.2008. Through rt the testimony of Ritu Sharma, wife of the deceased, who proved certificate (Ext. PW-4/B), it is evidently clear that the deceased was born on 27.8.1974. That claimants are his legal heirs also stand proved through the legal heir certificate (Ext. PW-4/C). Thus as on the date of death, age of the deceased was 34 years.
19. On oath, PW-4, has categorically deposed that her husband who was a Post Graduate in Economics was serving as a Sales Executive with M/s Rajat Miners Pvt. Ltd.
Kolkata and drawing a salary of `29,166/- per month. The witness has categorically denied the salary certificate to be fictitious or the deceased not to have been gainfully employed.
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 1520. Salary certificate (Ext. PW-3/A) stands proved on record by Vivek Sharma (PW-3), CEO of the Company who .
has categorically deposed that since June, 2008 the deceased was working as a Sales Executive on monthly salary of `29,000/-. According to this witness, the deceased who was M.A. (Economics) had rich experience in mineral.
of To prove salary certificate he had produced the original record. No suggestion with regard to either existence of the rt company or the address given on the certificate was put to this witness. Crucially this witness was cross examined by the insurer to a limited extent. His entire statement is reproduced as under:
"PW-3 Vivek Sharma, CEO, M/s Rajat Minerals Pvt. Ltd. Calcutta. OSA 7.5.10.
Stated that deceased Ashish Sharma s/o Sh.
Sukhdev Raj Sharma was working as Sales Executive in our Com. on a monthly salary of `29000/-. He had joined in June 2008 and remained with us till his death. I had issued certificate Ext. PW 3/A. He was M.A. Economics & rich experience in Minerals. I have brought the original record of his salary.xx xx by Sh. P. S. Chauhan, Advocate, for No. 3
The original record shows the salaries of various employee & their signatures in token of the receipts of the salary. It is the computerized record ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 16 which is not signed nor reqd. to be so. It is not a false certificate.
.
xx xx by 1 and 2
Nil. (opp. Afforded)."
21. The insurer could not extract from the witness as to whether the record produced by him did not bear the signatures of the deceased. The witness has categorically of denied the suggestion of the certificate being false.
22. Keeping in view the settled principle of law, the rt burden which is required to be discharged by the claimants in the nature of proceedings with which the court is dealing, factum of employment and the salary drawn by the deceased stands established on record. To this extent no error can be found with the findings returned by the authority below.
23. Principle for determining compensation payable in a case of death stands reiterated by the apex Court in Sarla Verma (Smt.) & others vs. Delhi Transport Corporation & another, (2009) 6 SCC 121 in the following terms:-
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 17
(b) income of the deceased; and
(c) the number of dependants.
.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and of
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinants are standardized, there will be rt uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay."
24. Now significantly in the very same decision it is also held that the Court has to take into account the component of future prospects and as such, necessary additions are required to be made for the same. In para-24 of the report, Court held addition by 50% of actual salary in a case where the deceased is below 40 years to be reasonable.
25. In Neeta w/o Kallappa Kadolkar & others vs. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (2015) 3 SCC 590 even in a case of ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 18 private employment, future prospects were taken into consideration for determining the loss of dependency.
.
26. Now if 50% (age of the deceased being 34 years) is added to the aforesaid amount, the annual income of the deceased comes to `5,25,000/- (`3,50,000 + `1,75,000).
27. However in the light of decisions rendered by the of apex Court in Oriental Insurance Company Ltd. vs. Ram Prasad Varma & others, (2009) 2 SCC 712; Sarla Verma rt (Smt.) & others vs. Delhi Transport Corporation & another, (2009) 6 SCC 121; Shyamwati Sharma & others vs. Karam Singh & others, (2010) 12 SCC 378; and Vimal Kanwar & others vs. Kishore Dan & others, (2013) 7 SCC 476 the incidence of professional tax, statutorily deductible on the salary drawn by the deceased is to be accounted for.
28. The question which arises for consideration is as to what is that statutory deduction which is required to be carried out from the income of the deceased. To assist the Court Sh. Bimal Gupta, learned Sr. Advocate, draws attention to the rates of income tax pertaining to the year in question (2009-2010), which reads as under:
Income Slab Rates of Income Tax
Upto ` 1,50,000 Nil;
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP
19
`1,50,000 to `3,00,000 10 per cent of the
amount by which the
total income exceeds
.
`1,50,000;
`3,00,000 to `5,00,000 `15,000 plus 20 per
cent, of the amount by
which the total income
exceeds ` 3,00,000;
`5,00,000 and above `55,000 plus 30 per
cent, of the amount by
which the total income
exceeds `5,00,000.
of
29. Thus after statutory deduction, total annual rt income of the deceased, for the purposes of determining the compensation would be ` 4,60,625/- [`5,25,000 -
`62,500 (tax) - `1250 (Edu. Cess @ 2%) - `625 (Higher Edu. Cess @ 1%)].
30. Since the deceased was married and claimants are his wife, mother and a minor child, deduction of 1/3rd is required to be carried out for his personal expenses. Hence for the purpose of determining compensation as well as dependency of the claimants, total annual income of the deceased works out to `3,07,084 (`4,60,625 - `1,53,541).
31. Now multiplier of 15 rightly stands applied by the Tribunal and as such loss of dependency which the claimants would be entitled to works out to be `46,06,260/-
(`3,07,084 X 15) ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 20
32. It is not in dispute that the vehicle in question stood insured with the insurer. There is no challenge to the .
validity of the driving license of the person who was driving the vehicle at the time of occurrence of the accident. As such, liability is rightly fastened upon the insurer.
33. The dependency of the claimants is not an issue.
of
34. Still further, two issues require consideration. In the absence of any specific challenge laid to the impugned rt award, is it just, proper and legal for this Court to have taken into account the component of future prospects or not?
35. Sh. Ashwani Sharma, learned Senior counsel invites attention of this Court to the provisions of the Himachal Pradesh Motor Vehicles Rules, 1999. While doing so it is contended that Rule 232 does not make the provisions of Order 41 Rule 33 CPC applicable to the proceedings before the Claim Tribunal. In support, reliance is sought on the decision rendered by this Court in Amriti Devi & others vs. Kamal Kumar & others, 1991 ACJ 1127 (Vol. 2).
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 2136. The contention is not only misconceived but also fallacious. The relevant Rule applicable is not 232 but 233 .
which deals with the form and manner of appeals against the awards of Claims Tribunal, which in any event stand amended in the year 2005, making the provisions of Order 41 Rules 22 and 33 CPC specifically applicable therein.
of
37. Hence, in the absence of any appeal/objections having been filed, this Court has sufficient powers in rt passing an order, determining the amount of compensation which is just, fair and reasonable, more so, in the light of the ratio of law laid down by the apex Court in Ranjana Prakash & others vs. Divisional Manager & another, (2011) 14 SCC 639 to the effect that power entrusted to the appellate court is to enable it to do complete justice between the parties and provisions of Order 41 Rule 33 CPC can be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability. However, there is a caveat in exercise of such powers, and that being that it cannot be invoked to get a larger and/or higher relief. In terms of paras- 7 and 8 of the ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 22 said report, this Court cannot award compensation higher than the one which stands awarded by the Tribunal. Of .
course, there is no bar for the Court to examine the facts and by applying the relevant principles, determine such compensation which is just, fair and reasonable, with the limitation of the sum not exceeding the amount awarded of by the Tribunal in terms of the impugned award.
38. The fact that the insurer is a public sector rt undertaking would not make any difference in determining the compensation, due and admissible which is also just, fair and reasonable. Law does not create such distinction.
The insurer, even as a public sector undertaking has ventured in the field of commercial transaction. It is a commercial venture undertaken to make profit. And above all, an instrumentality of a State cannot be allowed to adopt such a stand. They are duty bound to discharge their statutory/contractual obligations and not push a victim in distress to litigation for adjudication of his rights. Of their own, after proper investigation, they ought to have themselves paid the amount of compensation.
39. No other contention raised.
::: Downloaded on - 15/04/2017 20:33:22 :::HCHP 2340. Hence for all the aforesaid reasons, impugned award 22.3.2014, passed by learned Motor Accidents Claim .
Tribunal-II, Sirmaur District at Nahan, H.P., in Claim Petition No. 74-N/2 of 2009, titled as Smt. Ritu Sharma & others vs. Sh. Pawan Verma & others, is modified only to the following extent:
of
(i) Loss of dependency stands determined as `46,06,260/- as claimed by the claimants.
rt However in view of the principle of law laid down by the apex Court in Ranjana Prakash (supra), claimants shall be entitled to only a sum of `34,95,000/- on this count, as awarded by the Tribunal.
(ii) Rest of the award shall remain as it.
41. For all the aforesaid reasons, appeal filed by the insurer is disposed of accordingly.
Pending applications, if any, also stands disposed of accordingly.
(Sanjay Karol), Judge.
June 2 , 2016 (PK) ::: Downloaded on - 15/04/2017 20:33:22 :::HCHP