Himachal Pradesh High Court
________________________________________________ vs Mehboob & Others on 5 December, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 378 of 2015 Reserved on: 23.11.2023 .
Date of decision:05.12.2023 ________________________________________________ National Insurance Company Ltd .....Appellant Versus Mehboob & others ......Respondents ________________________________________________ of Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting?
rt ________________________________________________ For the appellant: Mr. Ashwani K. Sharma, Senior Advocate with Ms.Nisha,Advocate.
For respondents: Mr. Anirudh Sharma, Advocate, for respondents No.1 to 6.
Mr. Rajiv Rai, Advocate, for respondent No.7.
_______________________________________________ Sushil Kukreja, Judge The present appeal is maintained by the appellant-National Insurance Company against the award dated 15.05.2015, passed by the learned Motor Accident Claims Tribunal-III, Solan, District Solan, H.P., in MAC Petition No.12FTC/2 of 2009, whereby the claim petition, filed by respondents No.1 to 6-claimants (hereinafter referred to as 'the claimants') under Section 166 of the Motor 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/12/2023 20:32:10 :::CIS 2Vehicles Act (for short, 'MV Act'), was allowed.
2. Briefly stated the facts of the case giving rise to present appeal are that the claimants, being the dependents .
of deceased-Kalu, filed a claim petition under Section 166 of the MV Act before the learned Tribunal below, seeking compensation to the tune of Rs.20 lacs alongwith interest @ of 12% per annum from the respondents, i.e. owner and the insurer of the accidental vehicle. As per the claimants, on rt 15.05.2009, the deceased hired a pickup van bearing registration No. HR-37C-1142, which belonged to respondent No.7-Satpal, for transportation of his vegetables and fruits to Sabzi Mandi, Shimla. The deceased after unloading the consignment at Shimla, loaded potato and capsicum in the said vehicle at Shimla and proceeded towards Ambala Sabzi Mandi and when the aforesaid vehicle arrived at Shalaghat, the driver lost control over the vehicle due to high speed and it rolled down the hill, as a result of the accident, Kalu sustained multiple injuries and ultimately he succumbed to the injuries while he was being taken to the hospital.
3. As per the claimants, at the time of the accident, the deceased was 40 years of age and he was earning Rs.50,000/- per month by selling fruits and vegetables and ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 3 he also used to earn Rs.7,000/- per month by working as mason, but due to his untimely death, they lost their sole bread winner. They further averred that that the vehicle in .
question was insured with the National Insurance Company (appellant herein).
4. The owner of the vehicle in question (respondent of No.7 herein), who was also the driver of the vehicle, averred in his reply that the deceased had hired his vehicle for rt transporting his vegetables and fruits from Ambala to Sabzi Mandi, Shimla and on their way back, the said vehicle met with an accident. He denied that the accident had taken place due to his rashness or negligence and averred that the accident took place on account of the rashness and negligence of a motorcyclist. He denied his liability to pay the compensation, by taking a plea that his vehicle was duly insured with the insurance company, which would be liable to pay the compensation, if any.
5. The insurance company (appellant herein) filed separate reply to the claim petition, wherein preliminary objection of maintainability of the petition was raised on the ground that in the absence of furnishing necessary documents of the accidental vehicle and the driving license ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 4 of the Driver/Owner of the vehicle, it was not possible to admit that the accidental vehicle was duly insured with it and the same was being plied in accordance with the provisions .
of the Motor Vehicles Act and also in consonance with the insurance policy, if any, issued by the company. On merits, the Insurance Company denied the nature of the profession of of the deceased and his quantum of income and also the cause of the accident. The Insurance Company denied that rt the accidental vehicle was hired by the deceased to transport his fruits and vegetables and averred that at the time of the accident, the deceased was travelling as an unauthorized passenger in the vehicle, hence, the Insurance Company was not liable to pay any compensation to the claimants and prayed for dismissal of the claim petition.
6. The learned Tribunal below framed the following issues on 20.04.2011 for consideration and adjudication:-
"1.Whether on 15.05.2009, deceased Kalu was coming from Shimla to Ambala alongwith his vegetables in vehicle bearing registration No. HR-34-1142 and when he reached near Shalaghat the vehicle fell down on the road due to rash and negligent driving of respondent No. 2 and in the accident deceased sustained various injuries and died while he was on the way to hospital at Solan, as alleged? OPP
2. Whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP
3. Whether the accident was the result of rash and negligent driving of the motor cyclist? OPR 1 &2 ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 5
4. Whether the deceased petitioner was travelling in vehicle bearing registration No. HR-34-1142 as an unauthorized and gratuitous passenger, as alleged? OPR3
5. Whether no insurance policy has been issued by .
respondent No. 3 ensuring the owner against the risk of passenger simplicitor travelling in his vehicle Mahindra Pick UP and thus the petition is not maintainable against respondent No. 3? OPR3
6. Relief."
7. The learned Tribunal, after deciding issues No.1 of & 2 in favour of the petitioners-claimants and issues No.3 to 5 against the respondents, i.e., owner-cum-driver of the rt vehicle and the Insurance Company, allowed the claim petition filed by the claimants and they were held entitled to compensation to the tune of Rs.13,53,500/- alognwith interest and costs of Rs.3,000/-, to be paid by the Insurance Company. Feeling aggrieved and dissatisfied, the appellant-
Insurance Company preferred the instant appeal, praying therein to allow the appeal by setting aside the impugned award.
8. I have heard the learned Senior Counsel for the appellant as well as the learned counsel for respondents No.1 to 6 and learned counsel for respondent No. 7 and also gone through the entire record carefully.
9. Learned Senior Counsel for the appellant-
insurance company contended that at the time of the ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 6 accident, the deceased was travelling in the empty vehicle as a gratuitous passenger as there were no goods found in the vehicle, as such, the insurance company is not liable to pay .
any amount of compensation to the claimants as the vehicle was being plied in violation of the terms and conditions of the insurance policy. He further contended that the learned of Tribunal below had fallen into error in directing the payment of huge amount of compensation to the claimants on account rt of death of the deceased in the accident in question.
10. The first question, which arises for consideration before this Court, is as to whether at the time of the accident in question, the deceased was travelling in vehicle as an unauthorized/gratuitous passenger as contended by the learned Senior Counsel for the appellant. The case of the claimants is that the deceased had hired the vehicle in question and gone to Shimla alongwith other persons to sell vegetables and fruits at Sabzi Mandi, Shimla and after unloading the same, they were returning back in the vehicle.
PW-1/A Kasiran, who was the widow of the deceased, tendered in evidence her affidavit Ext. PW1/A by way of examination-in-chief, wherein she deposed that on 15.05.2009, the deceased alongwith some other persons ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 7 had hired the vehicle in question to sell the vegetables and fruits at Sabzi Mandi, Shimla and when they were coming back in the said vehicle, it met with an accident, as a result of .
which he died in the accident. PW-2 Sarif, who was one of the occupants in the vehicle in question, also tendered his affidavit Ext. PW2/A by way of examination-in-chief, wherein of he corroborated the statement of PW1/A. Both of them were cross-examined at length by the learned counsel for the rt appellant-insurance company, but nothing favourable could be elicited from their cross-examination. The owner of the vehicle Satpal appeared in the witness box as RW1 and tendered in evidence his affidavit Ext. RW1/A by way of examination-in-chief. In cross-examination, he denied that the deceased was travelling as an unauthorized passenger in the offending vehicle at the time of the accident in question. He also denied that the goods of the deceased were not loaded in the vehicle.
11. The onus was upon the appellant-insurance company to prove that the deceased was travelling as an authorized/ gratuitous passenger in the vehicle in question at the time of the accident. However, no evidence has been led by the insurance company to prove the same. On the other ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 8 hand, from the evidence led by the claimants, it has been proved on record that the deceased had hired the vehicle in question for transporting his vegetables and fruits at Sabzi .
Mandi, Shimla, as such, it has become clear that the deceased was travelling alongwith his goods in the vehicle in question at the time of the accident. The contention of the of learned Senior Counsel that the vehicle was empty at the time of the accident, therefore, the insurance company is not rt liable to pay any amount of compensation, deserves to be rejected as from the evidence on record, it has become clear that after unloading the vegetables and fruits at Shimla, the deceased was coming back in the vehicle in question. In New India Assurance Company Limited Versus Smt. Kanta Singha, 2022(3) Him L.R. (HC) 1469, this Court in para-21 of the judgment held as under:-
"21. In M/s Vishal Enterprises and another vs. Smt. Lajja Devi and others 2016 (3) Him.L.R. 1549, a Co-ordinate Bench of this Court has held as under:
"20. This Court in a case titled as National Insurance Co. Ltd. Versus Kamla and others, reported in 2011 ACJ 1550, has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. Ltd. Versus Cholleti Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person, who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to be an unauthorized/gratuitous passenger."::: Downloaded on - 07/12/2023 20:32:10 :::CIS 9
12. In the instant case, since the deceased, who had hired the vehicle for transporting his vegetables and fruits to .
Sabzi Mandi Shimla and was returning back in the same vehicle, which met with an accident, hence, he cannot be said to be an unauthorized/gratuitous passenger.
13. The learned counsel representing respondents of No.1 to 6-claimants contended that since learned Tribunal below has failed to award certain amount under the rt conventional heads i.e. consortium and loss of estate, this Court while exercising power under Order 41 Rule 33 CPC may proceed to award the same in favour of the claimants.
On the other hand, learned Senior Counsel for the appellant, while seriously opposing the aforesaid prayer made on behalf of the claimants, contended that the learned Tribunal below had fallen into error in directing the payment of huge amount of compensation to the claimants on account of death of the deceased in the accident in question. He also contended that since no cross-appeal ever came to be filed on account of claimants, this Court has no power to award an extra amount/enhance the amount already awarded by the learned Tribunal below.
::: Downloaded on - 07/12/2023 20:32:10 :::CIS 1014. In the instant case, the Claimants have admittedly not filed a cross appeal which gives rise to a .
question whether this Court can enhance the compensation in the absence of a substantive appeal or cross objection. In Ranjana Prakash and Ors. Vs. Divisional manager and of Ors (2011) 14 SCC 639, it has been held that Order 41 Rule 33 CPC enables an appellate court to pass any order which rt ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections.
This power is entrusted to the appellate court to enable it to do complete justice between the parties. Relevant paras of the aforesaid judgment read as under:-
6. ....But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation.
Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 11 the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.
7. This principle also flows from Order 41 Rule 33 .
of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete of justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other rt parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 12 owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of .
compensation. "
15. In Nagappa versus Gurudayal Singh, (2003) 2 SCC 274, the Hon'ble Apex court has held that :-
" 13. Hence, as stated earlier, it is for the Tribunal of to determine just compensation from the evidence which is brought on record despite the fact that claimant has not precisely stated the amount of damages of compensation which he is entitled to. rt If evidence on record justifies passing of such award, the claim cannot be rejected solely on the ground that claimant has restricted his claim...
16. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and give an opportunity to the parties to produce relevant evidence.
21. For the reasons discussed above, in our view, under the M.V. Act., there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition. "::: Downloaded on - 07/12/2023 20:32:10 :::CIS 13
16. In Ramla versus National Insurance Co. Ltd.
(2019) 2 SCC 192, the Hon'ble Supreme Court has reiterated these principles and has observed that the Motor .
Vehicle Act is a beneficial and welfare legislation and the Courts are duty bound to award just compensation, which is reasonable on the basis of the evidence produced on record.
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17. In Ningamma and another versus United India Insurance Co. Ltd., (2009) 13 SCC, 710, the Apex Court rt has observed that :-
" 34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. "
18. Thus, in view of the aforesaid judgments passed by the Hon'ble Apex Court, this Court while exercising power under Order 41 Rule 33 CPC can proceed to award compensation even in those cases, where no cross appeals/cross-objections have been filed in order to do complete justice between the parties. It is not in dispute that ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 14 learned Tribunal below while passing impugned award has not awarded any amount on account of loss of estate and consortium to claimant No.1 & 3 to 6, hence, in my .
considered view, the compensation awarded by the Tribunal cannot be considered to be 'just compensation as such, the award to that extent needs to be modified.
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19. In Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, rt reported in (2018) 18 Supreme Court Cases 130, the Hon'ble Supreme Court has held as under:-
"21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
21.1. Spousal consortium is general defined as rights pertaining to the relationship of a husband-wife which allows compensation o the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and taining".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 15 parent is to lose their child during their lifetime. Children are valued for their love affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual .
relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of love, affection, care and companionship of the deceased child."
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20. While placing reliance upon the judgment passed by the Hon'ble Apex Court in New India Assurance rt Company Limited Vs. Somwati and Ors, (2020) 9 SCC 644, the learned counsel representing the claimants submitted that claimant No.2 being mother and claimants No.3 to 6 being sons/daughter of the deceased are also entitled for consortium @ Rs.40,000/- each,. The Hon'ble Apex Court in its judgment rendered in case titled Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Ors., (2018) 18 SCC 130, which has been also taken note of, in Somwati's case, has laid down that consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium.
Having taken note of the aforesaid judgment rendered by the Hon'ble Apex Court in Magma General Insurance's case ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 16 (supra), the Hon'ble Apex Court in its latest judgment passed in Somwati's case (supra) has held as under:-
"34. The Constitution Bench in Pranay Sethi has also .
not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
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35. The word 'consortium' has been defined in Black's law Dictionary, 10th edition. The Black's law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:-
rt "Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium.
Filial consortium A child's society, affection, and companionship given to a parent. Parental consortium A parent's society, affection and companionship given to a child.
Spousal consortium A spouse's society, affection and companionship given to the other spouse."
36. In Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), 'consortium' to all the three claimants was thus awarded. Paragraph 87 is quoted below:-
"87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-::: Downloaded on - 07/12/2023 20:32:10 :::CIS 17
i) Loss of estate: Rs. 15,000
ii) Loss of consortium:
a) Spousal consortium: Rs.40,000
b) Parental consortium: 40,000x3 = Rs. 1,20,000
iii) Funeral Expenses: Rs. 15,000"
.
37. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss of consortium' but the Constitution Bench had not addressed the issue as to whether consortium of of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.
rt
38. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.
39. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head 'loss of love and affection'. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head 'loss of love and affection."
21. In view of the law laid down by Hon'ble Apex Court in the afore-cited judgments, the claimants are entitled to loss of estate of Rs.15,000/-, claimants No.1, being mother of the deceased is entitled to filial consortium of Rs.40,000/-, claimants No.3 to 6 are entitled to parental ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 18 consortium of Rs.40,000/- each and claimant No.2, being widow of the deceased, is entitled to spousal consortium of Rs.40,000/-. The amount awarded under the head .
funeral expenses needs to be reduced to 15,000/-.
Therefore, this Court deems it fit to modify the award passed by learned Tribunal below as under:-
of Head Amount
(i) Loss of dependency Rs.12,28,500/-
(ii) Funeral expenses Rs.15,000/-
rt
(iii) Loss of estate
(iv) Spousal consortium Rs.15,000/-
Rs.40,000/- (payable to
respondent No.2)
(v) Parental consortium Rs.1,60,000/-(Rs.40,000/-
payable to each of
respondents No.3 to 6)
(vi) Filial consortium Rs.40,000/- (payable to
respondent No.1)
Total compensation awarded Rs.14,98,500/-
22. This Court, however, does not see any reason to interfere with the rate of interest awarded on the amount of compensation.
23. Consequently, in view of detailed discussion made here-in-above and the law laid down by the Hon'ble Apex Court, the appeal is dismissed and the impugned award dated 15.05.2015 passed by learned Tribunal below is modified to the aforesaid extent only.
24. The present appeal is disposed of accordingly, so ::: Downloaded on - 07/12/2023 20:32:10 :::CIS 19 also the pending applications, if any. Interim directions, if any, are vacated.
.
( Sushil Kukreja ) Judge December 05, 2023 (VH) of rt ::: Downloaded on - 07/12/2023 20:32:10 :::CIS