Himachal Pradesh High Court
National Insurance Company Limited vs Sarita Kumari And Another on 16 December, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(MVA) No. 95 of 2021 a/w FAO (MVA) Nos. 96, 164 and 165 .
of 2021.
Reserved on : 02.12.2022.
Date of decision: 16.12.2022.
1. FAO(MVA) No. 95 of 2021.
National Insurance Company Limited ....Appellant.
Versus Sarita Kumari and another ....Respondents.
2. FAO(MVA) No. 96 of 2021.
National Insurance Company Limited ....Appellant.
Versus Sarita Kumari and another ....Respondents.
3. FAO(MVA) No.164 of 2021.
Sarita Kumari ....Appellant.
Versus
Devi Saran Negi and another ....Respondents.
4. FAO(MVA) No.165 of 2021.
Sarita Kumari ....Appellant.
Versus
Devi Saran Negi and another ....Respondents.
::: Downloaded on - 16/12/2022 20:36:09 :::CIS
2
Coram
.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the Appellant(s) : Mr. Jagdish Thakur, Advocate for the appellant-Company in FAO(MVA) Nos.95 & 96 of 2021 and for the respondent-
Company in FAO(MVA) Nos.
164 and 165 of 2021.
For the Respondent(s) : Mr. Raj Negi and Mr. Rajinder r Singh Thakur, Advocates, for respondent No.1 in FAO (MVA) Nos. 95 and 96 of 2021 and for the appellant in FAO (MVA) Nos. 164 and 165 of 2021.
Tarlok Singh Chauhan, Judge Since all these appeals arise out of the same accident, therefore, the same were taken up together for consideration and are being disposed of by a common judgment.
2. Aggrieved by the awards passed by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, Camp at Reckong Peo, (for short 'Tribunal') on 16.03.2019, the Insurance Company, on the one hand, has filed FAO (MVA) Nos. 95 and 96 of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 3 2021 and, the claimant, on the other hand, has filed FAO (MVA) Nos.
164 and 165 of 2021 for enhancement of the compensation amount.
.
3. As per the claimant, on 10.04.2014, her father Punai Uraw, had hired a vehicle bearing Registration No. HP-25B-0775 from Lippa to Jangi for transportation of his box, bags and beddings.
The vehicle in question was en route and at about 7.00 A.M. when reached near Village Jangi, Tehsil Moorang, District Kinnaur, H.P., the driver lost his control over the vehicle in question and it fell down in a 'Dhank' about 1200 metres from Lippa-Jangi link road to NH-5 and caused the death of her father Punai Uraw, her mother Vishni Devi and their children due to multiple injuries. The driver also died on the spot. The deceased Punai Uraw and Vishni Devi, were serving as 'Beldars' in H.P.P.W.D., Division Kalpa, Distt. Kinnaur, H.P. and were drawing salaries amounting to Rs. 21,032/- and 16,061/-, respectively.
An FIR bearing registration No. 7/2014 was registered with the police at Police Station, Pooh. The deceased were of the age of 42 and 38, respectively.
4. The claimant filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 (for short 'Act') claiming compensation to the tune of Rs. 45,00,000/- and 40,00,000/-, respectively.
::: Downloaded on - 16/12/2022 20:36:09 :::CIS 45. Since, respondent No.1 did not file any reply despite sufficient opportunities granted to him in this behalf, therefore, his right .
to file the same was struck off.
6. Respondent No.2-Insurance Company filed reply wherein preliminary objections qua maintainability, violation of terms and conditions of the insurance policy, the vehicle bearing registration No. HP-25B-0775 was being plied in breach of policy conditions, vehicle was being plied by its driver without effective driving licence and the deceased were travelling in the vehicle as gratuitous passengers, were taken. The deceased were of the age of 42 and 38 years at the time of the accident and were employed as 'Beldars' with HPPWD, Kalpa. The vehicle was insured in the name of Devi Saran.
The insurance policy was valid with effect from 06.09.2013 to 05.09.2014 and respondent-Insurance Company was not liable to indemnify the insured and the claimant had claimed an exaggerated amount of compensation. It was denied that the vehicle in question was hired by the deceased, his wife and children for loading their box, bags and beddings from village Lippa to Jangi.
7. From the pleadings of the parties, the learned Tribunal on 02.12.2016 framed the following issues in the claim petitions filed by the claimant :-
::: Downloaded on - 16/12/2022 20:36:09 :::CIS 5"1. Whether the accident in question resulting into the death of father of the petitioner was the result of rashness and negligency on the part of the driver (since .
deceased) in driving the ill-fated vehicle, as alleged? OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to claim compensation in the sum of Rs.45,00,000/- along with interest from the respondents, jointly and severally, as alleged? OPP.
3. Whether the offending vehicle had been plied by respondent No.1 contrary to the provisions of the Motor Vehicle Act and terms and conditions of the insurance policy, as alleged? OPR-3.
4. Whether the petition has been filed in collusion with respondent No.1, as alleged? OPR-3.
5. Whether the deceased was travelling in the offending vehicle as gratuitous passenger, as alleged? OPR-3.
6. Relief."
"1. Whether the accident in question resulting into the death of mother of the petitioner was the result of rashness and negligency on the part of the driver (since deceased) in driving the ill-fated vehicle, as alleged? OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to claim compensation in the sum of Rs.40,00,000/- along with interest from the respondents, jointly and severally, as alleged? OPP.::: Downloaded on - 16/12/2022 20:36:09 :::CIS 6
3. Whether the offending vehicle had been plied by respondent No.1 contrary to the provisions of the Motor Vehicle Act and terms and conditions of the insurance .
policy, as alleged? OPR-2.
4. Whether the petition has been filed in collusion with respondent No.1, as alleged? OPR-2.
5. Whether the deceased was travelling in the offending vehicle as gratuitous passenger, as alleged? OPR-2.
6. Relief."
8. After recording evidence and evaluating the same, the learned Tribunal below allowed the claim petitions and awarded compensation to the tune of Rs. 17,99,000/- and 14,75,000/-, respectively along with interest @ 7% per annum from the date of the petition till the deposit of the amount. Respondent No.2 was directed to deposit the amount of compensation within 45 days.
9. Learned counsel for the Insurance Company would argue that the instant case is case of no evidence of negligence and, therefore, in such circumstances, even if, the accident is said to have taken place, the liability to pay the compensation could not have been fastened upon the Insurance Company, especially, when it was so proved on record that the deceased were travelling as gratuitous passengers in the vehicle in question.
::: Downloaded on - 16/12/2022 20:36:09 :::CIS 710. I have heard the learned counsel for the parties and have gone through the records of the case.
.
11. At the outset, it needs to be observed that it is well-known that in a case related to motor accident claim, the claimants are not required to prove the case as is required to be done in a criminal case.
12. Reference in this regard can conveniently be made to a judgment rendered by the Hon'ble Supreme Court in Kusum Lata and others vs. Satbir and others (2011) 3 SCC 646. In matters like this, the Courts and Tribunals are required to take a holistic view of the matter and it is necessary to determine that strict proof of accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities and the standard of proof beyond reasonable doubt cannot be applied. (Refer: Bimla Devi and others vs. Himachal Road Transport Corporation and others, (2009) 13 SCC 530).
13. The claimant is the daughter of the deceased, who belongs to the State of Jharkhand and it would be extremely harsh and otherwise unwarranted to place a very strict proof of the mode ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 8 and manner of the accident upon the claimant. Rather, this is a fit case where doctrine of res ipsa loquitur needs to be applied.
.
14. In taking this view, I am supported by the judgment of the Hon'ble Supreme Court in N.K.V. Bros. (P.) Ltd. vs. M.Karumai Ammal and others, AIR 1980 SC 1354, more particularly, the observations contained in para-3, which read thus:-
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no- fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 9 Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third .
factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
15. The Hon'ble Supreme Court r has otherwise repeatedly held that the approach of the Tribunals while dealing with such matters where it is extremely difficult to get evidence have to be sensitive enough to appreciate the turn of events at the spot or the appellant-
claimants' hardship in tracing witnesses and collecting information for an accident when they themselves were not present at the accident spot. Further, the Courts/Tribunals must be mindful of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable to MACT case as the the standard of proof in such like matters is one of preponderance of probabilities, rather than to prove beyond reasonable doubt. The Courts/Tribunals have to be mindful that the approach and role of Courts/Tribunals while examining evidence in accident claim cases ought not to be to find fault with non-
examination of some best eyewitnesses, as may happen in a criminal ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 10 trial; but, instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant's version is .
more likely than not true. The Courts/Tribunals in matters of this nature are required to take holistic view and to bear in mind that strict proof of evidence caused by a particular bus in a specific manner may not be possible to be done by the claimants. The Courts/Tribunals must take into account first the legal effect of the failure to cross-examine the crucial witnesses on crucial issues.
16. Motor Vehicles Act is a benevolent piece of legislation.
Certain guiding principles have evolved over the years which form the bedrock for evaluating the evidence and determining the compensation under the Motor Vehicles Act. Some of these principles may be stated thus:-
(i) Tribunals are free to evolve their procedure and they are not guided strictly by the principles of Civil Procedure Code.
(ii) The test in the claim petitions is preponderance of probabilities. Claimant is not required to prove the accident beyond doubt as required under the criminal proceedings.(Bimla Devi vs. Himachal RTC, (2009) 13 SCC 530.
(iii) Absence or non-production of FIR or the result of criminal trial does not have any bearing on the result of ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 11 claim petition. (Minu Rout vs. Satya Pradyumna Mohapatra, (2013) 10 SCC 695.
(iv) Production of FIR and the report filed under .
Section 173 Cr.P.C. indicting the offending vehicle in the prima facie evidence to prove the accident.(N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and Ors., (1980) 3 SCC
457.
(v) Examination of some best eye-witness is not the requirement in the motor-accident claims. Non-
examination thereof is not fatal. (Anita Sharma vs. New India Assurance Co. Ltd., (2021) 1 SCC 171.
(vi) Site plan prepared by the Investigating Agency alone is not sufficient to prove the plea of contributory negligence. Onus to prove plea of negligence always lies on the respondent.(Sunita and others vs. Rajasthan State Road Transport Co. & Anr. (2020) 13 SCC 486.
vii) Some discrepancies are bound to appear in the ocular evidence as memory fades with the passage of time. (Ram Naresh vs. State of U.P. (2010) 15 SCC 252.
viii) Where best evidence has been withheld by the owner of the offending vehicle, adverse inference has to be drawn. (Smt. Laxmibai vs. Karnataka State Road Transport. (2001) 5 SCC 59.
(ix) Admission by owner of involvement of vehicle is not binding upon the driver of the vehicle (Saroj and others vs. Het Lal and others. (2011) 1 SCC 388.
(x) Failure to cross- examine the witness despite opportunity having been provided amounts to tacit ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 12 admission of the testimony of the said witness. (Anita Sharma vs. New India Assurance Co. Ltd. (2021) 1 SCC 171. .
(xi) Mere non-lodging of FIR or report by the injured is no ground to reject the claim petition when the other evidence is satisfactory to prove the claim. (Ravi vs. Badrinarayan, (2011) 4 SCC 693.
(xii) Whole evidence has to be considered for recording finding. Evidence should not be read in isolated parts. Similarly, hairsplitting of a statement made by the witness is not permissible. Whole testimony has to be seen not isolated sentences. (Sunil Kumar Sambhudayal Gupta and ors. vs. State of Maharashtra, (2010) 13 SCC 657.
17. In Anita Sharma and others vs. New India Assurance Company Limited and another (2021) 1 SCC 171, the Hon'ble Supreme Court reiterated the view earlier taken in Parmeshwari vs. Amir Chand, (2011) 11 SCC 635 that it is very difficult to trace witnesses and collect information for an accident which took place many hundreds of kilometers away and in a situation of this nature, the Tribunal has rightly taken a holistic view of the matter.
18. This Court is not oblivious to the fact that the normal rule is that it is for the plaintiff to prove negligence but as in some accident cases hardship is caused to the plaintiff as the true cause of the ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 13 accident is not known to him but is solely within the knowledge of the defendant, who caused it. The plaintiff can prove the accident but .
cannot prove how it happened to establish negligence on the part of the defendant. This hardship in many cases can be avoided by applying the principle of res ipsa loquitur. The general purport of the words "res ipsa loquitur" is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied, the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have taken place in a manner which does not connote negligence on its part.
19. Applying the aforesaid judgments to the instant cases as also applying the ratio of res ipsa loquitur and from a perusal of the copy of the FIR, it is duly established on record that the accident took place because of the rash and negligent driving of the driver of the vehicle bearing registration No. HP-25B-0775. Therefore, it is established on record that the deceased had died on account of rash and negligent driving of the vehicle in question.
::: Downloaded on - 16/12/2022 20:36:09 :::CIS 1420. Now the moot question is whether the deceased were travelling in the vehicle in question as gratuitous passengers or were .
travelling as owners of goods after hiring the vehicle?
21. The evidence led by the parties establishes on record beyond doubt that as regards Punai Uraw, father of the claimant, there is sufficient evidence to show that he was travelling in the vehicle as owner of the goods and returning back to his native place with such goods. This is not only so established and duly proved by the claimant in her statement, but also tested in the cross examination conducted by the owner of the vehicle and such statement has not been shattered in the cross-examination conducted by the Insurance Company. However, as regards mother Vishni Devi, there is no evidence whatsoever to establish that she was travelling in the vehicle as owner of the goods, rather, it appears that she was simply accompanying her husband while going back to their native village after the father of the claimant had hired the vehicle.
22. As regards, the determination of compensation, the question is no longer res integra as the compensation has now to be determined in light of the judgment passed by the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and thereafter as per judgment of the ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 15 Constitution Bench in National Insurance Co. Ltd. vs. Pranay Sethi and others (2017) 16 SCC 680.
.
23. Applying the ratio of Pranay Sethi's case (supra) to the facts of the instant cases, the claimant would be entitled to the following compensation:-
FAO(MVA) No. 164 of 2021.
Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars Age of the deceased: 42 years Age of the deceased: 42 years
(i) Income of deceased: Rs.21,000/- Income : Rs.21,000/-
(ii) No addition on account of future 30% addition : Rs.21,000x30/100=Rs.6,300/-
prospects given Total Income : Rs.21,000/-+ Rs.6,300/-=
(iii) Total Income : Rs. 21,000/- Rs.27,300/-
(iv) No. of dependent 1 as loss of Rs.27,300/2= Rs.13,650/-
dependency taken : Rs10,500/-as per Sarla Verma vs. DTC.
(v) Multiplier of 14 Multiplier of 14
(vi) Annual Income: Rs.1,26,000/- Annual Income : Rs. 1,63,800/-
(vii) Loss of Income : Rs. 17,64,000/- Loss of Income : Rs. 22,93,200/- (Rs.1,63,800
(Rs.1,26,000x14) X 14)
(viii) Loss of love and affection: Not payable
Rs.10,000/-
(ix) Loss of Estate : Not paid Loss of Estate : Rs.15,000/- (NIC vs. Pranay
Sethi)
(x) Loss of Funeral Expenses: Rs.25,000/- Loss of Funeral Expenses : Rs.15,000/-(NIC
vs. Pranay Sethi)
(xi) Loss of Consortium : Not paid Loss of Consortium: Rs.40,000/-(NIC vs.
Pranay Sethi)
Total : Rs.17,99,000/- plus interest @ Total : Rs. 23,63,000/- plus interest @ 7% per 7% per annum. annum.
FAO(MVA) No. 165 of 2021.
Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars Age of the deceased: 38 years Age of the deceased: 38 years
(i) Income of deceased: Rs.16,000/- Income : Rs.16,000/-
::: Downloaded on - 16/12/2022 20:36:09 :::CIS 16(ii) Addition on account of future 50% addition to be given as deceased was prospects: Not given "Beldar" with PWD: Rs.8,000 as per NIC vs. Pranay Sethi.
(iii) Total Income : Rs. 16,000/- Total Income : Rs.16,000+ Rs.8,000/-= .
Rs.24,000/-
(iv) Annual Income: Rs.16,000x12= Annual Income : Rs.24,000x12=Rs.2,88,000/-.
Rs.1,92,000/-
(v) ½ on account of Personal Expenses ½ of Rs. 2,88,000/-= Rs.1,44,000/-
as number of dependent is 1 as per Sarla Verma vs. DTC:
Rs.1,92,000/2= Rs.96,000/-
(vi) Multiplier of 15 Multiplier of 15
(vii) Loss of Income : Loss of Income : 1,44,000x15=Rs.21,60,000/-
Rs.96,000x15=Rs.14,40,000/-
(viii) Loss of love and affection: Not payable
Rs.10,000/-
(ix) Loss of Estate : Nil Loss of Estate : Rs.15,000/-
(x) Loss of Funeral Expenses: Rs.25,000/- Loss of Funeral Expenses : Rs.15,000/-
(xi) Loss of Consortium : Nil Loss of Consortium: Rs.40,000/-
Total : Rs.14,75,000/- plus interest @ Total : Rs. 22,30,000/- plus interest @ 7% per
7% per annum. annum.
24. Since, this Court has already held that Vishni Devi mother of the claimant was not travelling in the vehicle as owner of the goods, therefore, she is entitled to compensation to be paid by the owner Shri Devi Saran Negi of the vehicle bearing registration No. HP-25B-
0775. Whereas, in the case of Punai Uraw father of the claimant, she is held entitled to compensation to be paid by the Insurance Company.
25. In view of the aforesaid discussion and for the reasons stated above, FAO Nos. 95 and 96 of 2021 are dismissed, whereas, FAO Nos. 164 and 165 of 2021 are allowed in the aforesaid terms. The claimant is held entitled to the modified award amount of Rs.23,63,000/- and Rs.22,30,000/-, respectively, plus interest at the ::: Downloaded on - 16/12/2022 20:36:09 :::CIS 17 rate of 7% per annum, leaving the parties to bear their own costs.
Pending application(s), if any, shall also stand disposed of.
.
(Tarlok Singh Chauhan)
th
16 December, 2022. Judge
(krt)
r to
::: Downloaded on - 16/12/2022 20:36:09 :::CIS