Himachal Pradesh High Court
National Insurance Company Limited vs Razia And Others on 12 May, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 392 of 2017 .
Reserved on: 28.04.2023
Decided on : 12.05.2023
National Insurance Company Limited ...Appellant
Versus
Razia and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Jagdish Thakur, Advocate.
For the respondents : Mr. Jai Ram Sharma, Advocate, vice Mr. Gaurav Gautam, Advocate, for respondents No. 1 and 2.
None for respondent No. 3.
Name of respondent No. 4stands deleted, vide order, dated 11.03.2015, passed by the learned MACT-II, Solan.
Virender Singh, Judge.
Appellant-Insurance Company has filed the present appeal, under Section 173 of the Motor Vehicles Act, 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/05/2023 20:44:14 :::CIS 21988 (hereinafter referred to as the 'MV Act') against award, dated 3rd April, 2017, passed by the learned Motor Accident .
Claims Tribunal-II, Solan, District Solan, H.P., Camp at Nalagarh (hereinafter referred to as the 'learned MACT').
2. By way of the award, dated 3rd April, 2017, the claim petition filed by respondents No. 1 and 2 (claimants), against respondents No. 3 (owner) and 4 (driver), and the appellant (insurer), has been allowed, by awarding compensation, to the tune of ₹ 14,49,000/-, alongwith 9% interest per annum, from the date of filing of the petition, till the realization of the amount.
3. However, the ultimate liability to pay the amount of compensation, alongwith up-to-date interest, has been fastened upon the appellant, being insurer of the offending vehicle.
4. For the sake of convenience, the parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned MACT.
5. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
::: Downloaded on - 12/05/2023 20:44:14 :::CIS 35.1. The claimants, being the parents of deceased Nazeer, had filed the claim petition, under Section 166 of the MV Act, .
seeking compensation, on account of the death of their son, Nazeer, in a road side accident.
5.2. According to the factual position, as pleaded in the claim petition, on 28th June, 2010, the son of the claimants was driving a Canter, bearing registration No. HP-12A-9277. While driving the said vehicle, when Nazeer reached at a place, known as Thathian Mahanta, Police Station Sarhali, District Taran Taaran, respondent No. 2-Lakha Singh came there, while driving bus, bearing registration No. PB-02 AZ-6595, owned by respondent No. 1, in a rash and negligent manner.
The said bus hit the vehicle (canter), being driven by Nazeer.
In the said accident, Nazeer sustained the fatal injuries on his head and other parts of the body. He was, thereafter, taken to the Hospital at Taran Taaran, where, he succumbed to the injuries.
5.3. The matter, regarding the accident in question, was reported to the police of Police Station Sarhali, where, FIR No. 62 of 2010, dated 28th June, 2010, under Sections 279, 337 and 304-A of the Indian Penal Code (hereinafter referred to as ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 4 'IPC') was registered against respondent No. 2. The autopsy of the dead body was conducted at Civil Hospital Taran Taaran.
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5.4. According to the claimants, they had spent a sum of ₹ 50,000/- on the last rites of the deceased. In the claim petition, the claimants have also pleaded about their bright past and bleak future.
5.5. According to them, their son, at the time of his death, was about 26 years of age and was driver by profession, and, as such, they have claimed the compensation to the tune of ₹ 10 Lakh, alongwith interest, at the rate of 12% per annum.
6. When put on notice, the claim petition was contested only by respondents No. 1 (owner) and 3 (Insurance Company), whereas, respondent No. 2 (driver) has not opted to contest the petition. As such, he was proceeded against ex-parte. Later on, due to the death of respondent No. 2 (driver), his name was ordered to be deleted from the array of the parties, vide order, dated 11th March, 2015, passed by the learned MACT.
7. Respondent No. 1 has contested the claim petition, by filing reply, in which, the preliminary objections, with regard to maintainability, cause of action and the petition ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 5 being bad for non-joinder of necessary parties, have been taken.
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7.1. On merit, the contents of the claim petition have mainly been denied for want of knowledge, however, the factum of accident has impliedly been admitted.
8. The Insurance Company of the vehicle, i.e. respondent No. 3, has filed its separate reply, in which, preliminary objections, regarding maintainability, that the driver of the vehicle was not having the effective and valid driving licence, and, that there is collusion between the claimants and respondent No. 2 (driver), have been taken.
8.1. On merit, the factual position, as pleaded in the claim petition, has been denied by respondent No. 3 (Insurance Company), mainly, for want of knowledge.
9. Thus, respondents No. 1 and 3 have prayed for the dismissal of the claim petition.
10. From the pleadings of the parties, the learned MACT has framed the following issues, on 8th December, 2015:
"1. Whether the accident in question resulting into the death of predecessor-in-interest of the petitioners was result of rashness and/or negligency on the part of Lakha Singh since deceased in colliding his speeding bus No. PB- 02AZ-6595 against Canter No. HP-12A-9277 driven by deceased, as alleged?::: Downloaded on - 12/05/2023 20:44:14 :::CIS 6
OPP
2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled to recover .
compensation in the sum of ₹ 10,00,000/- along with interest from respondents No. 1 to 3 jointly and/or severally, as alleged?
OPP
3. Whether the accident in question had occurred on account of rashness or negligency on the part of the deceased, as alleged, if so, its effect?
OPR-3
4. Whether the offending vehicle had not been plied by respondent No. 1 by possessing valid documents and driven by Lakha Singh without possessing valid driving licence, if so, its effect, r as alleged?
OPR-3
5. Relief."
11. Thereafter, the parties to the lis were directed to adduce evidence. Consequently, contesting parties to the lis have adduced the evidence.
12. After closure of the evidence, the learned MACT, after hearing the learned counsel appearing for the claimants, as well as, respondents No. 1 and 3, has allowed the claim petition and awarded compensation, to the tune of ₹ 14,49,000/-, alongwith interest, at the rate of 9% per annum, to the claimants, against the respondents, and, saddled respondent No. 3 (Insurance Company) with the ultimate ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 7 liability to pay the amount of compensation, alongwith up-to-
date interest.
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13. Feeling aggrieved from the said award, the present appeal has been preferred by the Insurance Company, before this Court, mainly, on the ground that the learned MACT has wrongly taken the income of the deceased as ₹ 8,000/- per month, as, there is no documentary proof adduced by the claimants, to demonstrate the said fact.
r They have not examined the owner of the vehicle, upon which, the deceased was allegedly employed as driver.
14. According to the appellant-Insurance Company, in the absence of any documentary proof, regarding the income of the deceased, the safest criterion, for the learned MACT, was to take the income of the deceased, on the basis of the minimum wages, prevalent at the time of the accident, i.e. in the year 2010.
15. Elaborating its stand, it is the further case of the appellant-Insurance Company, that, PW-1, Sh. Sharif, while appearing in the witness box, has not uttered anything about of the income of the deceased and, as such, according to the appellant, there is nothing on the record to demonstrate as to ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 8 how the learned MACT has taken the income of the deceased as ₹ 8,000/- per month.
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16. Similarly, the multiplier, which has been applied, in the present case, is also stated to be wrong, on the basis of the age of the deceased, whereas, according to the appellant, the same is liable to be taken on the basis of the age of the claimants, as the deceased was bachelor.
17. The findings of the learned MACT have further been assailed on the ground that the learned MACT has wrongly awarded 50% of the income of the deceased on account of his future prospects, whereas, according to the appellant, it is the admitted case of the parties that the deceased was not working in a regular establishment.
18. The award has also been assailed on the ground that the learned MACT has wrongly awarded a sum of ₹ 1,00,000/-, each, to the claimants, on account of love and affection.
19. Similarly, the rate of interest, which has been awarded by the learned MACT, has also been assailed by the appellant-Insurance Company, by way of the present appeal.
20. On the basis of the grounds of appeal, Mr. Jagdish Thakur, learned counsel appearing for the appellant-
::: Downloaded on - 12/05/2023 20:44:14 :::CIS 9Insurance Company, has prayed that the award, passed by the learned MACT, in the present case, is not sustainable in the .
eyes of law and the same is liable to be modified, in view of the grounds of appeal.
21. Per contra, the prayer, so made, by the learned counsel appearing for the appellant-Insurance Company has been opposed by Mr. Jai Ram Sharma, appearing vice Mr. Gaurav Gautam, learned counsel, for respondents No. 1 and 2.
He has supported the award passed by the learned MACT and prayed that the appeal sans merit and, as such, the same may kindly be dismissed.
22. In the present case, the controversy revolves around the income of the deceased, at the time of the accident. The proceedings under the MV Act are summary in nature, where, the liability of the tort feaser is to be fixed on the basis of the preponderance of probability. The strict rules of evidence are not applicable.
23. The factum of accident has not seriously been disputed by the respondents. This fact is demonstrated from the stand of the appellant-Insurance Company, as taken in the present appeal, as the appeal has been filed, contesting the ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 10 amount of compensation, awarded to the claimants. In other words, it can be said that the appellant-Insurance Company is .
not disputing its liability, but, has challenged the award, mainly, on the ground of quantum of compensation.
24. The perusal of the claim petition shows that Column No. 6, which pertains to the monthly income of the person died, has been left blank in the claim petition. Simply, it has been mentioned in Column No. 4, that the deceased was employed as a driver on the tempo.
25. After framing the issues, when the claimants were directed to adduce the evidence, claimant No. 2 appeared in the witness box as PW-1 and filed his affidavit, Ex. PW-1/A, in which, he has mentioned the age of the deceased as 26 years, at the time of his death. His affidavit is silent about the monthly income of their son, during his life time.
26. In para-3 of the affidavit, he has simply pleaded about his indigent circumstances. Incidentally, in the cross-
examination, it has not been suggested to this witness by the learned counsel appearing for the Insurance Company that his son was not earning anything during his life time. A suggestion was, no doubt, put to him that his son was not ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 11 having a driving licence to drive the Canter. From this suggestion, no inference can be drawn that it has been .
suggested to him that his son was not earning anything during his life time. When the profession of the deceased, during his life time, as driver, has not been disputed, then, it cannot be presumed that he was not earning anything, during his life time.
27. The learned MACT, while deciding issue No. 2, has straightaway held that the monthly income of the deceased cannot be assessed less than ₹ 8,000/-, however, no reasons have been assigned by the learned MACT, for coming to this particular conclusion.
28. While deciding the amount of earnings of the deceased son of the claimants, some evidence should be there on the file, otherwise, the only course left for the learned MACT, was to consider the income of the son of the claimants, during his life time, as per the minimum wages, prevalent in the State, at the time of death of the son of the claimants.
29. The accident in question had taken place on 28 th June, 2010. At that time, Notification No. FIN-(PR)b(7)-15/98- III, dated 30th January, 2009, issued by the Principal ::: Downloaded on - 12/05/2023 20:44:14 :::CIS 12 Secretary (Finance) to the Government of Himachal Pradesh, regarding the rates of wages of daily wage workers and .
workers engaged on part-time basis, was in force. Taking the judicial notice of the said Notification, it can be held that the minimum wages of the person, working as a driver, were ₹ 150/- per day. Meaning thereby, the monthly income of the son of the claimants, at the time of his death, could be said to be ₹ 4500/-. r
30. The deceased, admittedly, was working in informal sector, as such, in view of the decision of the Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Limited versus Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, increase of 40% is to be made, on account of future prospects, had he been alive. Thus, adding 40% in the monthly income of the son of the claimants, his total monthly income comes to ₹ 4500 + ₹ 1800/- = ₹ 6300/-.
31. The deceased was bachelor, as such, deducting 50% of the earnings of the deceased, on account of his personal expenses, had he been alive, his contribution towards his family comes to ₹ 3150/- per month.
::: Downloaded on - 12/05/2023 20:44:14 :::CIS 1332. The learned MACT has rightly applied the multiplier of '17', taking into account the age of the deceased. While .
holding so, the view of this Court is fortified by the decision of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
The relevant para 59.7 of the said judgment, is reproduced, as under:
"59.7. The age of the deceased should be the basis for applying the multiplier."
33. However, the learned MACT has wrongly awarded a sum of ₹ 2,00,000/- under the head 'loss of love and affection'.
The claimants are held entitled for a sum of ₹ 40,000/-, each, on account of parental consortium, in view of the decision of the Hon'ble Supreme Court in Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 Supreme Court Cases
130.
34. In addition to the above, the claimants are also held entitled for a sum of ₹ 15,000/- under the head 'loss of estate' and ₹ 15,000/- under the head 'funeral expenses'.
35. Thus, the entitlement of the claimants, is adjudicated, as under:
1. Loss of income = ₹ 3150 x 12 x 17 = ₹ 6,42,600/-::: Downloaded on - 12/05/2023 20:44:14 :::CIS 14
2. Loss of parental consortium = ₹ 40,000/- x 2 = ₹ 80,000/-
3. Loss of estate = ₹ 15,000/-
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4. Funeral Expenses = ₹ 15,000/-
Total = ₹ 7,52,600/-
36. In view of the above, the claimants are entitled for a total compensation to the tune of ₹ 7,52,600/-. Hence, the award passed by the learned MACT is liable to be modified.
Ordered accordingly. r
37. The learned MACT has rightly awarded the rate of interest @ 9% per annum and the same is not liable to be interfered with.
38. No other point has been urged or argued.
39. Accordingly, the appeal is allowed and the award passed by the learned MACT is modified, in above terms.
40. Memo of costs be prepared accordingly.
41. Parties are left to bear their own costs.
42. Record be sent back.
( Virender Singh ) Judge May 12, 2023 ( rajni ) ::: Downloaded on - 12/05/2023 20:44:14 :::CIS