Punjab-Haryana High Court
Puneet Kumar And Ors vs Darshan Kumar And Ors on 27 August, 2024
Author: Archana Puri
Bench: Archana Puri
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) FAO-7700-2015 (O&M)
Puneet Kumar and others
...Appellants
VERSUS
Darshan Kumar and others
...Respondents
(ii) FAO-7701-2015 (O&M)
Samasdeen
...Appellant
VERSUS
Darshan Kumar and others
...Respondents
(iii) FAO-7702-2015 (O&M)
Salima Begam and another
...Appellants
VERSUS
Darshan Kumar and others
...Respondents
(iv) FAO-7703-2015 (O&M)
Shehnaaz
...Appellant
VERSUS
Darshan Kumar and others
...Respondents
(v) FAO-7704-2015 (O&M)
Raveena
...Appellant
VINEET GULATI
2024.08.28 16:17
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Chandigarh
FAO-7700-2015 and connected case -2-
VERSUS
Darshan Kumar and others
...Respondents
(vi) FAO-7705-2015 (O&M)
Kajal
...Appellant
VERSUS
Darshan Kumar and others
...Respondents
(vii) FAO-7706-2015 (O&M)
Sohail Khan
...Appellant
VERSUS
Darshan Kumar and others
...Respondents
(viii) FAO-8360-2015 (O&M)
Salima Begam
...Appellant
VERSUS
Darshan Kumar and others
...Respondents
(ix) FAO-7824-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Gulzar Mohd and others
...Respondents
VINEET GULATI
2024.08.28 16:17
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Chandigarh
FAO-7700-2015 and connected case -3-
(x) FAO-7825-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Puneet Kumar and others
...Respondents
(xi) FAO-7826-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Sohail Khan and others
...Respondents
(xii) FAO-7827-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Raveena and others
...Respondents
(xiii) FAO-7830-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Balbir Chand and others
...Respondents
(xiv) FAO-7831-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
VINEET GULATI
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Chandigarh
FAO-7700-2015 and connected case -4-
Shenaaz and others
...Respondents
(xv) FAO-7832-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Gulzar Mohamad and others
...Respondents
(xvi) FAO-7833-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Salima Begum and others
...Respondents
(xvii) FAO-7834-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Abdul Aziz and others
...Respondents
(xviii) FAO-7835-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Samasdeen and others
...Respondents
(xix) FAO-7836-2015 (O&M)
United India Insurance Company
...Appellant
VINEET GULATI
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Chandigarh
FAO-7700-2015 and connected case -5-
VERSUS
Kajal and others
...Respondents
(xx) FAO-7837-2015 (O&M)
United India Insurance Company
...Appellant
VERSUS
Ruksana Begum and others
...Respondents
Date of Decision: August 27, 2024
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Ashwani Arora, Advocate
for the appellants-claimants
(in FAOs No.7700 to 7706 of 2015 and FAO-8360-2015).
Mr.Vikas Mohan Gupta, Advocate
for the appellant-insurance company
(in FAOs No.7824 to 7827 of 2015, FAOs No.7830 to 7837 of 2015) and
for respondent No.3-insurance company
(in FAOs No.7700 to 7706 of 2015 and FAO-8360-2015).
Mr.Naveen Batra, Advocate
for respondents-driver and owner
(in FAOs No.7824 to 7827 of 2015 and FAOs No.7830 to 7837 of 2015).
****
ARCHANA PURI, J.
These are two set of appeals filed by the claimants as well as the insurance company, to assail the Award dated 21.05.2015 passed by learned Motor Accident Claims Tribunal.
The first set of appeals, i.e. FAOs No.7700 to 7706 of 2015 and 8360-2015, have been filed by the appellants-claimants, thereby, questioning the adequacy of the compensation awarded by learned Tribunal, VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -6- on account of death of Krishna Devi as well as Muskan and also further, with regard to compensation awarded qua injuries caused to Samasdeen, Shehnaz, Raveena, Kajal, Sohail Khan and Salima Begam, in the accident in question.
The second set of appeals i.e. FAOs No.7824 to 7827 of 2015 and FAOs No.7830 to 7837 of 2015 have been filed by the insurance company, thereby, assailing the liability fastened upon it, together with driver and owner of the offending vehicle, to pay the compensation, awarded by learned Tribunal.
Though, the claim petitions were decided individually by learned Tribunal, but however, the claims arises from the same accident, therefore, the aforesaid bunch of appeals are taken up together for disposal.
For the convenience of discussion, the parties are referred to, as making appearance before learned Tribunal.
The facts germane, to be noticed, are as follows:-
That, on 01.04.2014, both the deceased together with all the injured, qua whom the claim petitions were filed, were going to village Jhirian, police station Kot Kehloor, District Bilaspur, to attend the marriage of niece of Noor Mohmmad, of their village in bus bearing registration No.PB-12K- 5152, being driven by Darshan Kumar-respondent No.1, at very high speed, in rash and negligent manner. The passengers of the bus requested the driver of the bus to drive the bus at slow speed, but he did not pay any heed. At about 6.15 p.m, when they reached near Baba Udho Mandir Nangal, the bus became out of control and suddenly, turned turtle, on left side of the road, as a result whereof, Krishana Devi and Muskan had died and various VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -7- other persons, stated aforesaid, had sustained injuries.
FIR No.39 dated 01.04.2014 under Sections 279, 337, 338 and 304-A IPC was registered at police station Nangal against the driver of the said bus.
In pursuance of the notice issued, respondents made appearance and filed their respective replies. Respondents No.1 and 2, driver and owner of the offending bus, contested the claim petitions, thereby, disputing the maintainability of the claim petitions and also alleged that no accident had ever taken place with the offending bus and the answering respondents have been falsely involved to secure compensation. Also, the claimants have no locus standi to file the claim petitions.
Respondent-insurance company, in its separate written statement, pleaded about the driver to be not holding valid and effective driving licence, as well as the vehicle was not having valid Registration Certificate, route permit and fitness certificate. Also, the insurance company pleaded that no accident, as such, had taken place with the vehicle in question and false and frivolous claim petitions have been filed, in collusion with respondents No.1 and 2. As such, a prayer was made for dismissal of the claim petitions.
From the pleadings of the parties, issues were framed individually and evidence was adduced. On appraisal of the evidence, brought on record, learned Tribunal had granted compensation to the claimants. However, the liability of the respondents, to pay the adjudged compensation was held to be, joint and several and the claimants were also held entitled to interest @6% per annum, from the date of the claim petitions. In the eventuality of the payment, not being paid, within a period VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -8- of three months from the date of award, the claimants were held entitled to penal interest @8% per annum, from the date of claim petitions, till payment.
Feeling aggrieved by the extent of compensation granted, the appellants-claimants have filed first set of appeals, as stated aforesaid. Even, the insurance company has filed the second set of appeals aforesaid, thereby, questioning the liability fastened upon it, together with driver and owner of the offending bus, to pay the compensation, as assessed in the respective cases.
Learned counsel for the parties heard.
So far as, the fact of accident and manner of taking place of the same is concerned, it stands amply established from the material coming on record and the same has also not been disputed, as such, in the present appeals. Hence, this aspect, do not call for any further scrutiny.
Firstly, the first set of appeals is being taken up, one by one, to deal with the question of enhancement of the compensation awarded by learned Tribunal, in each case.
FAO-7700-2015 relating to MACT No.110 2014 Puneet Kumar and Balwinder Kumar, sons and Balbir Chand, husband of Krishna Devi, had filed the claim petition, for seeking compensation, on account of death of Krishna Devi, in the accident in question. It is the pleaded case of the claimants that deceased Krishna Devi was 48 years old and was housewife and indulging in dairy farming and her monthly income was Rs.20,000/-.
Puneet Kumar, one of the sons of deceased had stepped into VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -9- witness box as PW-1 and his affidavit is Ex.PW1/A. Even, Balbir Chand, husband of deceased Krishna Devi, had stepped into witness box as PW-2 and he also deposed about having witnessed the accident in question, as he was accompanying the deceased in the offending bus, at the relevant time. Furthermore, he had also got lodged the FIR. The death certificate of deceased is Ex.P2 and copy of post-mortem report is Ex.P3.
On appraisal of the evidence, brought on record, learned Tribunal had assessed the income of the deceased as Rs.6000/- per month, from dairy farming and services rendered by her towards family, annual whereof, comes to be Rs.72,000/-. Out of the same, 1/3rd was deducted, towards personal expenses and the residue loss of dependency was worked upon as Rs.48,000/-. Multiplier of '13' was applied and the compensation was worked upon as Rs.6,24,000/-. Besides the same, Balbir Chand, husband of the deceased was held entitled to Rs.50,000/-, on the count of 'loss of consortium' and another amount of Rs.20,000/- was granted, towards funeral expenses. Thus, the total compensation, awarded to the claimants was Rs.6,94,000/-, to be apportioned in equal shares.
However, as per prevalent settled law, the compensation worked upon aforesaid, calls for re-determination.
It has to be kept in mind that learned Tribunal constituted under the Motor Vehicles Act, as provided in Section 168 is required to make an Award, determining the amount of compensation, which is to be in the real sense, 'damages', which in turn, appears to be just and reasonable. Simultaneously, the statutory provisions clearly indicate that the compensation must be just and it cannot be bonanza, nor a source of profit, VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -10- but the same should not be pittance. The Courts are expected to have realistic approach and also have the duty to weigh various factors, to quantify the amount of compensation, which should be 'just'. Every method or mode adopted for assessing the compensation, has to be considered, in the background of 'just' compensation, which is pivotal consideration. Though, the expression 'just' provides a wide discretion to the Court, but however, determination has to be rational, to be done by the judicious approach. The expression 'just' denotes equitability, fairness and reasonableness and non- arbitrary. If it is not so, it cannot be concluded to be 'just'.
There are various categories of situations, which the Court encounter to make assessment of compensation, to be granted to the victims of the motor vehicular accident cases. One such category is of the non- earning victims, that the Courts are called upon to calculate the compensation for the homemakers. The grant of compensation for homemakers, on pecuniary basis, has been considered by the Courts, time and again.
In Lata Wadhwa vs. State of Bihar, 2001(8) SCC 197, emphasis was laid by the Court to determine the compensation, on the basis of services rendered by the homemaker to the house and on the basis thereof, it was observed that though there is no data for determination of compensation, but however, taking into consideration, multifarious services rendered by the housewives for managing the entire family, the value of the services should be assessed and compensation be worked upon.
In Arun Kumar Aggarwal vs. National Insurance Company Ltd., 2010(9) SCC 218, while considering the case of grant of compensation, VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -11- on account of death of a housewife, due to the motor vehicle accident, it was observed that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. Furthermore, it was observed that the gratuitous services, rendered by the wife with true love and affection to the children and her husband and managing the household affairs, cannot be equated with the services rendered by others. The Court also observed that though, it was impossible to quantify any amount, in lieu of the services rendered by the wife/mother, to the family, but however, for the purposes of award of compensation to the dependents, some pecuniary estimate has to be made of the services of the housewife/mother. In this context, it was held that the term "services" is required to be given a broad meaning and must be construed by taking into account, the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife.
Beneficial reference is also made to Kirti and another v/s Oriental Insurance Company Ltd., 2021(2) SCC 166, wherein, the Hon'ble Supreme Court, while considering the case of death of a homemaker, had observed, as herein given:-
"32. Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach. It is to be understood that in such cases the attempt by the Court is to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Courts must keep in mind the idea of awarding just compensation in such cases, looking to the facts and circumstances."
................ XX XXX XXX XX "35. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -12- value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation.
36. Whichever method a Court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case. The Court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively, nor so liberally as to make it a bounty to claimants [National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680; Kajal v. Jagdish Chand, (2020) 4 SCC 413]."
Therein, it was also held that effects of inflation would equally be applied to the cases of assessment of notional income of the homemaker and on this account, it was further held that the future prospects, also are required to be taken into consideration.
Thus, summing up, general observations were made regarding the issue of calculation of notional income for homemakers and grant of future prospects, with respect to them, for the purposes of grant of compensation, which was summarized, as follows:-
"a. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.
b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.
c. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.VINEET GULATI
2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -13- d. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally. e. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation."
In this backdrop, considering the minimum wages of unskilled worker, prevalent at the relevant time to be Rs.6447/- per month, the notional earnings of the housewife, who indulges in multi-tasking, can conveniently be taken as Rs.7000/-. From the said amount, 1/3rd is to be deducted on account of 'personal expenses', which is to the extent of Rs.2333/- and the residue amount works out to be Rs.4667/- per month.
To the said amount, keeping in view the age of the deceased, as per Pranay Sethi's case (supra), addition of 25%, on the count of 'future prospects' has to be made and total amount of earnings comes to be Rs.4667+1167(25%)=Rs.5834/- per month, annual whereof, comes to be Rs.70,008/-.
Considering the age of the deceased, as per Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77, the suitable and appropriate multiplier to be applied in the present case is '13' and by applying this multiplier, the loss of dependency comes to be Rs.70008x13=Rs.9,10,104/-.
Besides the same, as per 'Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others, 2018 (18) SCC 130', the claimants are entitled to compensation, on the loss of consortium, be it 'parental', 'spousal' or 'filial'. Taking into consideration, the claimants to be husband and two sons of deceased Krishna Devi, all of them are entitled VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -14- to compensation, on the count of 'spousal', 'parental' consortium. As held in Pranay Sethi's case (supra), with the enhancement clause of 10%, after every three years of the passing of the judgment, the compensation payable, at present, on the count of 'loss of consortium is to the extent of Rs.48,400/- i.e. Rs.48,400x3=Rs.1,45,200/-. Likewise, on the counts of 'loss of estate' and 'funeral expenses', the compensation payable, comes to be Rs.18,150/-, on each count.
Considering the same, the compensation payable to claimants, on account of death of Krishna Devi, is re-computed, as herein given:-
Loss of dependency : Rs.9,10,104 /-
Loss of consortium : Rs.1,45,200/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.10,91,604/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.10,91,604- 6,94,000=Rs.3,97,604/-.
FAO-7707-2014 relating to MACT No.123 of 2014 The present case relates to the injuries sustained by appellant- claimant Samasdeen, in the accident in question. It is the pleaded case of claimant Samadeen that he was 14 years old, at the time of accident and was student of 9th class in Government High School. It is further pleaded that his monthly income be assessed as Rs.10,000/-. It was also asserted that the claimant had sustained multiple grievous injuries on left eye, head, left arm, shoulder and other parts of the body.
The mother of the claimant, namely, Bholi Devi had stepped into VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -15- witness box as PW-1 and deposed, in consonance with the pleaded case.
Regarding the quantum of compensation, learned Tribunal, while taking into consideration the medical bills, had awarded an amount of Rs.5487/-, on account of medical expenditure. Besides the same, for the loss of amenities, pain and suffering, disfigurement, as revealed from photograph Ex.P14 and transportation, had granted, another amount of Rs.20,000/-. In total, compensation awarded was Rs.25,487/-.
Even though, no doctor, as such, has been examined, but however, the treatment record was tendered into evidence by learned counsel, which is Ex.P15 to Ex.P17. Considering the Motor Vehicles Act to be beneficial legislation, the said record, as such, can be taken into consideration, while making assessment of the compensation. From the same, it is evident that there was gaping of scalp and treatment was extended for the same. The photograph Ex.P14, coming on record, reveals about the disfigurement of the claimant, on account of injuries sustained. Even though, no disability, as such, has been assessed, but definitely, the compensation awarded, calls for the enhancement.
So far as, the medical expenditure is concerned, the amount has been appropriately granted as Rs.5487/-. However, consolidated amount, as granted by learned Tribunal, needs to be bifurcated. Considering the kind of injuries sustained, definitely, for some period of time, the appellant-claimant must have been put on highly nutritious diet for healing process and thus, on this count, an amount of Rs.20,000/- is granted. Even, on the count of 'transportation', another amount of Rs.10,000/- is granted. The appellant- claimant, ought to have passed through trauma and must have gone through VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -16- 'pain and suffering' for some period of time and on this count, another amount of Rs.20,000/- is granted. Beside the same, on the count of 'attendant charges' another amount of Rs.10,000/- is granted.
Considering the same, the compensation payable to appellant- claimant Samasdeen, is re-computed, as herein given:-
Medical bills : Rs.5487/-
Nutritious diet : Rs.20,000/-
Transportation charges : Rs.10,000/-
Pain and suffering : Rs.20,000/-
Attendant charges : Rs.10,000/-
Total : Rs.65,487/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.65,487- 25,487=Rs.40,000/-.
FAO-7702-2015 relating to MACT No.116-2014 Salima Begam and Guljar Mohammad, parents of Muskan, had filed the claim petition, for seeking compensation, on account of death of Muskan, in the accident in question. It is the pleaded case of the claimants that deceased Muskan was 7 years old and was student of 3 rd class, in Government Middle School. It was asserted that her income be assessed as Rs.15,000/- per month. Salima Begam, mother of the deceased, had stepped into witness box as PW-1 and in her affidavit Ex.PW1/A, had deposed in consonance with the pleaded case. The copy of the post-mortem report of deceased is Ex.P2.
On appraisal of the evidence, brought on record, learned Tribunal, while considering the age of the deceased to be 7 years and her VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -17- being student, assessed the notional income as Rs.24,000/- per annum. Considering the age of the mother to be 35 years and as that of father to be 40 years, multiplier of '15' was applied and the compensation was worked upon as Rs.3,60,000/-. Besides the same, the claimants were granted Rs.20,000/- towards 'funeral expenses' and Rs.50,000/- towards 'love and affection'. In total, the compensation granted was Rs.4,30,000/-.
However, the work on of the compensation aforesaid, also calls for re-determination.
Learned counsel for the appellants-claimants, while making reference to 'Kishan Gopal and another v/s Lala and others, 2013(4) RCR (Civil) 276' and also while making further reference to 'Meena Devi v/s Nunu Chand Mahto @ Nemchand Mahto and others, 2022(4) RCR (Civil) 553', had made a submission that the notional earnings of the deceased, in the minimum, ought to be taken as Rs.30,000/- per annum.
In Lata Wadhwa and others vs. State of Bihar and others, 2001(4) RCR (Civil) 673 (SC), the Hon'ble Supreme Court, held that while computing compensation, distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years, can be made. Further, it was also observed that the compensation determined for the children, for all age group, could be doubled, of what is stated in Schedule II of the Motor Vehicles Act, as the determination was made grossly inadequate and the loss of children is irrecuperable and no amount of money could compensate the parents. The principles laid down in aforesaid case, was made applicable to the facts in the case of Krishan Gopal's case (supra) and it was considered as 'just and reasonable' to take notional VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -18- income of Rs.30,000/- and applying the multiplier as laid down in Sarla Verma's case (supra), observed as herein given:-
"In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000x15=4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTS v. Susamma Thomas, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."
In 'Kurvan Ansari alias Kurvan Ali and another v/s Shyam Kishore Murmu and another, 2022 (1) SCC 317', the Hon'ble Supreme Court was of the view that it was necessary to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living and the notional income of a child aged about 10 years was considered as Rs.10,000/-.
Before adverting to the case in hand, it is pertinent to mention that in Krishan Gopal's case (supra), the accident had taken place on 19.07.1992. In Meena Devi's case (supra), the Hon'ble Supreme Court had considered the case of death of a 12 year child, in a motor vehicular accident and while granting compensation, had observed that the principles laid down in case of Kishan Gopal's case (supra), are aptly applicable to the facts of the case (in hand), and thus, took the notional earnings as Rs.30,000/- including future prospects and applied the multiplier of '15' (in view of the VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -19- decision of the Hon'ble Apex Court Sarla Verma's case (supra) and the loss of dependency was worked upon to be Rs.4,50,000/- and addition of Rs.50,000/- was made under the conventional heads. The total compensation was worked upon as Rs.5,00,000/-.
However, it should be noted that in Meena Devi's case (supra), the date of accident was 29.07.2003.
Taking guidelines from the aforesaid case law, the annual notional earnings of the deceased are taken as Rs.30,000/- and after applying the multiplier of '15', the compensation is worked upon as Rs.4,50,000/-.
As per Magma's case (supra), whosoever are the dependents of the deceased/claimants, are entitled to 'parental', 'spousal' or 'filial' consortium, as required. Thus, the parents of the deceased, are entitled to 'filial' consortium, on the count of 'loss of consortium'. As per Pranay Sethi's case (supra), the compensation payable, at present, on the count of 'loss of consortium' is to the extent of Rs.48,400/- i.e. Rs.48,400x2=Rs.96,800/-. Likewise, on the counts of 'loss of estate' and 'funeral expenses', the compensation payable, comes to be Rs.18,150/-, on each count.
Considering the same, the compensation payable to claimants, on account of death of Muskan, is re-computed, as herein given:-
Loss of dependency : Rs.4,50,000/-
Loss of consortium : Rs.96,800/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.5,83,100/-
As such, the enhanced compensation, after the deduction of VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -20- compensation awarded by the Tribunal comes to be Rs.5,83,100- 4,30,000=Rs.1,53,100/-.
FAO-7703-2015 relating to MACT No.111-2014 The present case relates to the injuries sustained by appellant- claimant Shehnaaz, in the accident in question. It is the pleaded case of claimant Shehnaaz that she was 11 years old, at the time of accident and was student of 7th class. It is further pleaded that the claimant had received multiple grievous injuries on her right arm and other parts of the body. She was firstly taken to BBMB Hospital, Nangal, where from, she was referred to PGI, Chandigarh, where she remained admitted. Aslam Khan, father of the claimant had stepped into witness box as PW-1 and in his affidavit Ex.PW1/A, had deposed in consonance with the pleaded case and proved medical bills. Furthermore, Dr.Sampat, Senior Resident, Department of Orthopedic, PGI, Chandigarh, has been examined as PW-3, who deposed about the patient to have been admitted on 02.04.2014 and she had suffered injuries in the road side accident. There was right humerous fracture Grade- II, on the person of Shehnaaz. She was operated upon on 03.04.2014 and was discharged on 05.04.2014. The nature of the injury was grievous. There was suture wound on the head measuring 2x2 cm. The discharge and follow up card is Ex.P1, which also states about admission in PGI on 02.04.2014 and discharge on 05.04.2014. She was diagnosed to be a case of "# ® supra condylar humorus communited grade II ē out deficit."
Learned Tribunal had granted the amount of medical bills, which was to the extent of Rs.27,898/- and besides the same, for loss of amenities, pain and suffering and transportation, another amount of VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -21- Rs.10,000/- was granted. Accordingly, the compensation granted was Rs.37,898/-
Even though, no disability, as such, has been assessed, but however, from the testimony of PW-3 Dr.Sampat read with the discharge and follow up card, the injuries, so suffered, stand amply established. She was also operated upon on 03.04.2014 and suture wound was present on the head. Considering the same, the compensation granted is on lesser side.
So far as, medical bills are concerned, the total of the medical bills, which is to the extent of Rs.27,898/-, ought to be taken into consideration. Besides the same, the consolidated amount of Rs.10,000/-, on various counts, as done by learned Tribunal, ought to be bifurcated.
It should be kept in mind that the child of such age, soon after the accident, on account of injuries sustained, must have remained in agony and trauma and thus, on the count of 'pain and suffering', it is appropriate to grant an amount of Rs.30,000/-. Besides the same, she must have been put on highly nutritious diet for healing process and thus, on this count, an amount of Rs.20,000/- is granted. Even, she must have been looked after by an attendant. May be the parents of the child had looked after her, but definitely, they must have also diverted their time from some gainful employment and spent time with the child, to look after the child. Thus, on the count of 'attendant charges', another amount of Rs.20,000/- is granted. Besides the same, an amount of Rs.20,000/- is granted, on the count of 'transportation', during the process of the admission of the child in the hospital and for follow up treatment.
Considering the same, the compensation payable to appellant- VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -22- claimant Shehnaaz, is re-computed, as herein given:-
Medical bills : Rs.27,898/-
Pain and suffering : Rs.30,000/-
Nutritious diet : Rs.20,000/-
Attendant charges : Rs.20,000/-
Transportation charges : Rs.20,000/-
Total : Rs.1,17,898/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.1,17,898- 37,898=Rs.80,000/-.
FAO-7704-2015 relating to MACT No.113-2014 The present case has been filed by claimant-Raveena, on account of injuries sustained by her in the accident in question. It is the pleaded case of the appellant-claimant that she was 20 years old and skilled worker and was doing the sewing and stitching of clothes. She asserted her monthly income to be Rs.25,000/-. On account of the accident, she had sustained multiple and grievous injuries on her face and other parts of the body and amputation of her left arm. She was firstly taken to BBMB Hospital, Nangal, from where, she was referred to PGI, Chandigarh, where she remained admitted from 02.04.2014 to 22.04.2014 and again, thereafter, she was admitted in BBMB Hospital, for treatment.
The claimant herself stepped into witness box as PW-1 and in her affidavit Ex.PW1/A, deposed in consonance with the pleaded case. Furthermore, various documents were also tendered into evidence. PW-2 Jiwan Jyoti, mother of the deceased, also deposed on similar lines, in her affidavit.
VINEET GULATI2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -23- The next witness examined was PW-3 Dr.Avtar Singh, Civil Hospital, Anandpur Sahib, who was member of the medical board, who assessed the disability to be 80%, which is permanent in nature. He proved the disability certificate, which is Ex.PW3/A. PW-4 Dr.Ved Parkash Rao, Senior Resident, Plastic Surgery, PGI Chandigarh, deposed that left upper limb was crushed. It was a crush injury. There was head injury, on the person of Raveena. The left arm of Raveena was amputated and they had done grafting, on the head of Raveena.
Considering the evidence, brought on record, learned Tribunal had taken into consideration the medical bills of Rs.86,601/- and furthermore, while considering the claimant to be skilled worker, had taken her earnings as Rs.5,000/- per month. Considering the extent of disability to be 80%, the loss of earning was worked upon as Rs.4000/- per month/-, the annual whereof, comes to be Rs.48,000/-. Considering the age of the claimant, multiplier of '18' was applied and loss of income was worked upon as Rs.8,64,000/-. Besides the same, for the loss of enjoyment of life, pain and suffering and prospects of marriage, another amount of Rs.1,50,000/- was granted and Rs.8000/- was granted, on the count of 'transportation'. In total, the compensation awarded was Rs.11,08,601/-.
However, the aforesaid work on of the compensation, calls for enhancement. Various counts have been given amiss by learned Tribunal, which ought to be taken into consideration. From the evidence adduced, it stands amply established that the left arm of 20 years old damsel was amputated. The claimant was indulging in sewing and stitching work. Her matriculation certificate has been proved as Ex.P56. Even, she had VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -24- undergone Skilled Development Training Programme, in the trade of Cutting, Stitching and Embroidery, which was conducted at Women Empowerment Centre, National Fertilizers Ltd. Village Bella Dhyani, Naya Nangal. The said certificate is Ex.P57.
Therefore, in the given circumstances, in view of the vocation followed by the claimant, she ought to be taken as skilled worker. Considering it to be so, in modest estimate, as per minimum wages existing at the relevant time, income of Raveena, can conveniently be taken as Rs.8000/- per month. So, the annual loss is assessed to be Rs.96,000/-.
Considering the age of the claimant, the suitable and appropriate multiplier to be applied is '18' and by application of the same and also multiplying the same with 80% of disability and dividing the same by 100, as per standard multiplier process, the loss is assessed as 96000x18x80/100=Rs.13,82,400/-.
For the purposes of healing process, she must have also been put on highly nutritious diet, for some period of time and thus, on this count, an amount of Rs.40,000/- is granted.
Besides the same, looking at the kind of injuries sustained by the appellant-claimant, it is quite obvious that on account of use of the conveyance for 'to and fro' to the hospital, substantial amount must have been spent by the family of the appellant-claimant. Thus, on the count of 'transportation charges' another amount of Rs.20,000/- is granted.
Considering the amputation of her left arm, though, the claimant, with passage of time, is bound to adept herself to become self- reliant, but still certain grey areas will always remain, where she would VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -25- require help of other person, to complete certain household chores. Taking into consideration the same and also considering the fact that for some period of time, after the sustaining of injuries, definitely, she must have been looked after by at least by one attendant. May he or she be a family member, who must have diverted his/her own time, from any form of gainful employment, which could have generated some income. Thus, on the count of 'attendant charges', the claimant is held entitled to an amount of Rs.1 lakh.
Considering the nature of injuries, duly proved, the appellant- claimant is entitled to compensation on the count of 'loss of marriage prospects' and on this count, another amount of Rs.2 lakh is granted.
Thus, on various counts, as detailed aforesaid, the compensation is re-computed as herein given:-
1. Medical bills : Rs.86,601/-
2. Loss of income : Rs.13,82,400/-
3. Nutritious diet : Rs.40,000/-
4. Transportation charges : Rs.20,000/-
5. Attendant charges : Rs.1,00,000/-
6. Loss of Marriage prospects : Rs.2,00,000/-
Total : Rs.18,29,001/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.18,29,001-
11,08,601=Rs.7,20,400/-.
FAO-7705-2015 relating to MACT No.129-2014 The claim petition was filed by Kajal, on account of injuries sustained in the accident in question. It the pleaded case of the claimant that VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -26- she was 11 years old, at the relevant time and was student of 7 th class. It was asserted that her monthly earnings be taken as Rs.10,000/-. She had sustained multiple grievous injuries, on her head and other parts of the body. The mother of the claimant, namely Seema Devi, had stepped into witness box as PW-1 and in her affidavit Ex.PW1/A, she had deposed in consonance with the pleaded case. Furthermore, PW-2 Dr.Onkarvir Singh, Medical Officer, BBMB Hospital, has been examined, who had extended treatment to the claimant, when she was admitted in Emergency in BBMB Hospital. This witness deposed about injury on scalp with skin loss, for which, she was put on treatment. Though, she was referred to PGI, but however, the attendant of the patient requested for her treatment in the BBMB, Hospital. Furthermore, the doctor also deposed that she was taken to OT and sutures were applied and dressing was done. She was discharged on 07.04.2014.
On appraisal of the evidence, brought on record, learned Tribunal had granted compensation, on the count of medical expenditure, on the basis of the medical bills, to the extent of Rs.13,885/-. Besides the same, for the loss of amenities, pain and suffering, another amount of Rs.20,000/- was granted. Thus, in total, the compensation granted was Rs.33,885/-.
In view of the doctor having examined, it is evident that the seat of injury is head, where there was stated to be skin loss and sutures were applied and the doctor had also stated there to be chances of disfigurement in the form of hair loss. Considering the same, besides the medical bills of Rs.13,885/-, on various counts, like special diet, pain and suffering, attendant charges, chances of hair loss, this Court, deems it appropriate to grant consolidated amount of Rs.50,000/- over and above the amount of VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -27- medical bills. Thus, the total compensation, works out to be Rs.63,885/-.
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.63,885- 33,8851=Rs.30,000/-.
FAO-7706-2015 relating to MACT No.121-2014 The present case was filed by appellant-claimant Sohail Khan, to seek compensation, on account of injuries sustained by him, in the accident in question. It is the pleaded case of the claimant that he was 15 years old, at the time of accident and he was student of 10 th class. It was also asserted that his monthly be taken as Rs.10,000/- per month. It is the pleaded case that he had sustained multiple grievous injuries on his left foot and other parts of the body. The mother of the claimant, namely Raj Dulari, had stepped into witness box as PW-1 and in her affidavit Ex.PW1/A, she had deposed in consonance with the pleaded case.
PW-2 Dr. Avtar Singh, who was member of the board of doctors, who assessed the disability, has proved the disability certificate, which is Ex.PW2/A and he also deposed about the assessment of the disability to be 30%, which was permanent. In the disability certificate, it was observed that there was amputation of left foot.
On appraisal of the evidence, brought on record, learned Tribunal had granted an amount of Rs.20,142/-, on the basis of the medical bills. Besides the same, the monthly earnings of the claimant was assessed as Rs.5,000/- and there was loss of 30% on the basis of the disability certificate and the loss of income was assessed as Rs.1500/-, annual whereof, comes to be Rs.18,000/-. Considering the age of the claimant, VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -28- multiplier of '14' was applied and the loss of income, on account of disability was worked upon as Rs.3,24,000/-. Besides the same, for the loss of amenities, enjoyment of life, pain and suffering, another amount of Rs.20,000/- was granted and for transportation and special diet, an amount of Rs.6000/- was granted. In total, the compensation granted was Rs.3,70,142/-.
However, the assessment of income is on lower side, which now is taken as Rs.6,000/- per month. However, on account of amputation of left foot, in the minimum, the functional disability, can conveniently be taken to be 50% and thus, the loss of earnings comes to be Rs.3000/- per month, annual whereof, works to be Rs.36,000/-. Considering the age of the claimant, multiplier of '18' is to be applied. By application of the aforesaid multiplier, the loss of income, comes to be Rs.6,48,000/-.
For the purposes of healing process, he must have also been put on highly nutritious diet, for some period of time and thus, on this count, an amount of Rs.25,000/- is granted.
Considering the amputation of his left foot, though, the claimant, with passage of time, is bound to adept himself to become self- reliant, but for some period of time, after the sustaining of injuries, definitely, he must have been looked after by at least by one attendant. Thus, on the count of 'attendant charges', the claimant is held entitled to an amount of Rs.50,000.
Besides the same, looking at the kind of injuries sustained by the appellant-claimant, it is quite obvious that on account of use of the conveyance for 'to and fro' to the hospital, substantial amount must have VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -29- been spent by the family of the appellant-claimant. Thus, on the count of 'transportation charges' another amount of Rs.25,000/- is granted.
Keeping in view the nature of injuries sustained, on the count of 'future medical expenses', another amount of Rs.2 lakh is granted.
Considering the nature of injuries, duly proved, the appellant- claimant is entitled to compensation on the count of 'loss of marriage prospects' and on this count, another amount of Rs.2 lakh is granted.
Besides the same, the compensation granted by learned Tribunal, on the count of 'medical expenditure' to the extent of Rs.20,142/- is appropriate.
Thus, on various counts, as detailed aforesaid, the compensation to be granted to claimant-Sohail Khan, is re-computed as herein given:-
1. Loss of income : Rs.6,48,000/-
2. Nutritious diet : Rs.25,000/-
3. Attendant charges : Rs.50,000/-
4. Transportation charges : Rs.25,000/-
5. Future medical expenses : Rs.2,00,000/-
6. Loss of marriage prospects : Rs.2,00,000/-
7. Medical expenditure : Rs.20,142/-
Total : Rs.11,68,142/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.11,68,142-
3,70,142=Rs.7,98,000/-.
FAO-8360-2015 relating to MACT No.117-2014 The present case relates to the compensation granted, on account of injuries sustained by Salima Begam, in the accident in question. It is pleaded case of the claimant that she was 33 years old, at the time of VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -30- accident and she was skilled worker and doing work of stitching clothes and dairy farming. She asserted that her earnings be assessed as Rs.15,000/- per month.
The claimant herself stepped into witness box as PW-1 and in her affidavit Ex.PW1/A, had deposed in consonance with the pleaded case. Furthermore, PW-2 Dr.Avtar Singh, had proved the disability certificate, which is PW2/A and deposed about the extent of disability to be 40%, which was permanent. PW-3 Dr.Ved Parkash Rao, Senior Resident, Plastic Surgery, PGI Chandigarh, has deposed about Salima to have received crush injury, on her left hand and when she came to PGI, middle and index finger of her left hand, were already amputated and there was wound upon left hand and she was operated upon. The joint was flapped and thereafter, she was discharged from hospital. The report of operation of Salima, is Ex.P1, which reveals about the injuries sustained by her.
On appraisal of the evidence, brought on record, learned Tribunal had assessed the earnings of the claimant as Rs.5,000/- per month and loss of earnings, while taking into consideration 40% disability, was worked upon as Rs.2000/- per month, the annual whereof, comes to be Rs.24,000/-. Considering the age of the claimant, multiplier of '16' was applied and the loss of income was assessed as Rs.3,84,000/-. Besides the same, for the loss of amenities, enjoyment of life, pain and suffering, another amount of Rs.20,000/- is granted and for special diet and transportation, lumpsum amount of Rs.10,000/- is granted. Even, on the basis of the medical bills, the amount awarded was Rs.21,288/-. In total, the compensation granted as Rs.4,35,288/-.
VINEET GULATI2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -31- However, the aforesaid compensation, do call for re- determination. The claimant was indulging in tailoring work, prior to the accident in question, relating to which, no evidence, as such, has come on record. As such, considering her to be housewife, her earnings are taken as Rs.7000/- per month. While considering the disability to be 40%, the loss of income, comes to be Rs.2800/-, annual whereof, comes to be Rs.33,600/-. Considering the age of the claimant, the suitable and appropriate multiplier to be applied is '16', and the loss of earnings is worked upon as Rs.33600x16=Rs.5,37,600/-.
So far as, the medical expenditure is concerned, the amount has been appropriately granted as Rs.21,288/-. Considering the kind of injuries sustained, definitely, for some period of time, the appellant-claimant must have been put on highly nutritious diet for healing process and thus, on this count, an amount of Rs.20,000/- is granted. Even, on the count of 'transportation', another amount of Rs.20,000/- is granted. The appellant- claimant, ought to have passed through trauma and must have gone through 'pain and suffering' for some period of time and on this count, another amount of Rs.40,000/- is granted. Beside the same, on the count of 'attendant charges' another amount of Rs.20,000/- is granted. Keeping in view the nature of injuries sustained, on the count of 'future medical expenses', another amount of Rs.50,000/- is granted.
Considering the same, the compensation payable to appellant- claimant Salima Begam, is re-computed, as herein given:-
Medical bills : Rs.21,288/-
Loss of income : Rs.5,37,600/-
Nutritious diet : Rs.20,000/-
VINEET GULATI
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FAO-7700-2015 and connected case -32-
Transportation charges : Rs.20,000/-
Pain and suffering : Rs.40,000/-
Attendant charges : Rs.20,000/-
Future medical expenses : Rs.50,000/-
Total : Rs.7,08,888/-
As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.7,08,888- 4,35,288=Rs.2,73,600/-.
In the aforesaid claim petitions, which have been considered while making enhancement of compensation, in the afore-mentioned appeals, after awarding compensation, learned Tribunal had fastened the liability upon the respondents i.e. driver, owner and insurer of the offending bus, to be joint and several. However, aggrieved by the same, the insurance company has filed the second set of appeals, particulars whereof, have been given in the earlier portion of the judgment, out of which, FAOs No.7825 to 7827, 7831 to 7833, 7835 and 7836 of 2015, relate to the claimants, qua whom, the compensation has been enhanced, in the first set of appeals. Besides the same, the other appeals have also been filed by the insurance company i.e. FAOs No.7824, 7830, 7834 and 7837 of 2015, thereby, assailing their liability to pay the compensation, worked upon by learned Tribunal.
Keeping in view the denial of accident and involvement of respondents No.1 and 2, in the accident in question and also, considering the plea of violation of terms and conditions of the insurance policy, as pleaded by insurance company, in their reply, at the very outset, learned counsel for the insurance company submitted that the bus bearing registration No.PB- VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -33- 12K-5152, was being driven, in contravention of the terms and conditions of the insurance policy. The insurance company had examined RW-1 Parveen Kumar, Clerk, O/o Regional Transport Authority, Patiala, to prove that the offending bus was not having permit to ply as contract carriage.
On the contrary, learned counsel for the respondents-driver and owner, assiduously submitted that the permit was there to ply the bus and the accident had taken place, within the jurisdiction of Nangal, therefore, the insurance company, as such, cannot be absolved from its liability. It is further submitted that learned Tribunal had appreciated the evidence in correct perspective and therefore, the claim of the insurance company is bereft of merits.
Sections 2(28) and 2(31) of the ibid Act, that defines "motor vehicle" or "vehicle" and "permit", are reproduced herein below:-
"(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres; (31) "permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;"
On a perusal of both the definitions, it is quite clear that a permit has to be issued by the competent authority, under the Act, for use of a motor vehicle, as a transport vehicle. The emphasis is on the words "use" as well as "transport vehicle".
Section 2(47) states that "transport vehicle" means a public VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -34- service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Section 66 stipulates the necessity for permits. Sub-section (1) thereof, provides that no owner of a motor vehicle shall use or permit the use of the vehicle, as a transport vehicle, in any public place, whether or not, such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted or countersigned by the Regional or State Transport Authority or any prescribed authority. Various provisos have been appended to the main provision, stipulating conditions for use of the vehicle and purpose of carriage of goods vehicle. Section 66 also carves out certain exceptions to Sub-section (1), which need not be referred for the purposes of the controversy in hand.
In the case in hand, the Registration Certificate of the offending vehicle has been proved. Even, the driving licence of Darshan Kumar has been proved, which authorizes the driver to drive a "transport vehicle" and the period of the validity depicted therein, also covers the date of accident. Thus, on the count of driver not possessing valid and effective driving licence, the plea of the insurance company does not hold any ground.
However, the insurance company had also taken the plea that there was violation of terms and conditions of the policy, as the offending vehicle did not possess the route permit. The insurance policy, proved in each case, reveals that the effective period of the insurance covers the date of accident. Therein, there is also mention made about the limitations, as to use of the vehicle in question, which reads as herein given:-
"The policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 or such carriage falling under Subsection 3 of Section 66 of the Motor Vehicles Act, 1988. The policy does not cover use for:-VINEET GULATI
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FAO-7700-2015 and connected case -35-
a) Organized Racing
b) Pace Making
c) Reliability Trials
d) Speed Testing
e) Use whilst drawing a trailer except the towing (other than for reward) of any disabled mechanically propelled vehicle"
In the column of limits of liability, it states, as follows:-
"Under Section II-I(i) Death or bodily injury in respect of any one accident; As per Motor Vehicles Act 1988 Under Section II-I(ii) Damage to third party properly in respect of any one claim or series of claims arising out of one event:
750000/-"
The route permit of the bus in question has also been proved in respective cases. The holder of the permit is Vinay Kumar and the permit is in respect of bus service of state carriages, thereby, depicting the area for which permit is valid. It is mentioned as that from Nangal to Matour, via various places in Punjab. The permit allowed four trips daily.
Furthermore, other relevant columns are No.9 and 11, which reads, as herein given:-
"9.Whether goods may be carried or any or all of the vehicle solely or in addition to passengers, and conditions subject to which goods may be carried.
10. xxx xxx xxx.
11. A conductor shall be carried on the vehicles at all times when they are in use as stage carriages of contract carriages."
Also, column No.15 of this route permit states that "this permit shall to the extent as specified in entry 9 above be deemed to be a public carrier's permit."
Column No.16 states "Not more than vehicles of the service may VINEET GULATI be used by the holder of the permit as contract carriage within the areas 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -36- herein under specified and subject to the following conditions:-
"17. When the vehicles are not in use the shall not be halted in any public except at a stand or parking place appointed by the competent authority under section 117 of the act.
Other relevant portion of the route permit is as herein given:-
18. (1) A vehicle of the service permitted by entry 16 above to be used as a contract carriage may be used as such outside the area specified in entry 16 above or other areas or route in respect of which this permit has been countersigned, provided that on each occasion when the holder of the permit seeks so to use a vehicle be obtained special pass from the officer incharge the tehsil or sub-tehsil in which he has his principal place of business or other authority appointed by the Regional Transport Authority for the purpose.
(2) No special pass shall be made valid for more than one outward and return trip and not more than one special pass shall be issued at any one time, not shall any special pass allow the holder to enter."
Even though, this route permit is valid for the movement on the route, as specified in the permit, but however, there is fine line of distinction, as to the disputed question of fact arising, as to whether, the necessary compliance of obtaining of licence/special pass for proceeding to Bilaspur, carrying a marriage party, was done or not.
It is categoric claim made in all the claim petitions, about the persons affected, to have proceeded towards village Jhirian, P.S. Kot Kehloor, District Bilaspur, to attend the wedding of niece of Noor Mohammad. Thus, the offending bus was being used as contract carriage. RW-1 Parveen Kumar, Clerk, O/o Regional Transport Authority, Patiala, has been examined by the insurance company, who had proved the summoned record of route permit, issued in the name of Vinay Kumar and he also categorically stated that permit is stage carriage permit and the bus is to ply, VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -37- between the route, as mentioned in the said permit. Also, further he stated that as per this route permit, the bus could not be booked for marriage party. In case of booking of the bus for marriage party, special permit was required to be taken from RTA separately. It is pertinent to mention that even though, owner and driver of the bus in question, had joined the proceedings and were contesting the claim petitions and had also conducted cross- examination of this witness, but no cross-examination has been conducted, thereby, depicting about any special pass to have been taken by them.
Section 70 of the Motor Vehicles Act deals with the recitals to be mentioned in the application for permit and Section 72, deals with grant of stage carriage permit by the Regional Transport Authority and clause (2) (xviii) of the same, states about the Regional Transport Authority, having laid the conditions, subject to which, the vehicle may be used as a contract carriage and sub-clause (xxi) states that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority.
Likewise, Section 73 deals with essential recitals to be mentioned for contract carriage permit, which contains two clauses; (a) the type and seating capacity of the vehicle; (b) the area for which the permit is required; (c) any other particulars which may be prescribed.
Section 74 deals with the grant of contract carriage permit by Regional Transport Authority, in accordance with the application or with such modifications, as it deems fit or refuse to grant such a permit. Proviso is also there, which is reproduced, as herein given:-
"Provided that no such permit shall be granted in respect of any area not specified in the application."VINEET GULATI
2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh
FAO-7700-2015 and connected case -38- Furthermore, Section 88 deals with the validation of permits for use outside region, in which granted, calls for counter signature by the State Transport Authority of the other State or by the Regional Transport Authority concerned and it further lays down, the conditions under which, they are exempted, which in fact, does not cover the cases under consideration.
It is demonstrable from the material on record that the occupants of the offending bus, proceeded in the bus to attend the wedding of the niece of Noor Mohammad at village Jhirian, P.S. Kot Kehloor, District Bilaspur. It is spelt out further that no fare having charged, meaning thereby, for all intents and purposes, it was a contract carriage, for which purpose, as condition laid down in the permit, proved in evidence, there was requirement of obtaining of special pass and since the bus was proceeding to District Bilaspur, Himachal Pradesh, the counter signing of permit by STA of the other State was the necessary requirement. However the same, even though, be overlooked, as the accident had taken place, within the jurisdiction of Nangal, as evident from FIR, but no special pass was obtained by the owner.
Throughout, the owner had been contesting the various claim petitions, in hand. Since the contest of liability to pay the compensation was raised by the insurance company in the reply itself, but even then, the owner had not stepped into witness box. Nothing has been brought on record by the insured to prove that he had a special pass of the vehicle. In such situation, so far as, insurance company is concerned, the principle of 'pay and recover' shall be applicable. The insurance company is required to pay VINEET GULATI 2024.08.28 16:17 I attest to the accuracy and authenticity of this document Chandigarh FAO-7700-2015 and connected case -39- the compensation amount to the claimants with interest, but with the stipulation that it shall be entitled to recover the same from the owner and driver of the offending vehicle.
In this context, the insurance company, as such, is entitled to recovery rights by following the principles of 'pay and recover'. Thus, the second set of appeals filed by the insurance company, as such, are hereby allowed, in view of aforesaid terms.
So far as, the first set of appeals are concerned, as per the work on, given in the earlier portion of the judgment, the compensation stands enhanced and as such, the appeals are allowed. On the enhanced amount of the compensation, as worked upon aforesaid, the appellants-claimants shall be entitled to the interest, at the rate of 6% per annum, from the date of filing of the respective appeals, till realization of the enhanced amount of compensation. However, the other conditions, with regard to the apportionment and disbursement of the compensation, shall remain the same.
August 27, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
VINEET GULATI
2024.08.28 16:17
I attest to the accuracy and
authenticity of this document
Chandigarh