Himachal Pradesh High Court
Oriental Insurance Company ... vs Lekh Ram Son Of Shri Govind Ram & Others on 12 May, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
FAO No. 426 of 2010
Decision reserved on 4th May 2016
Date of Decision 12th May, 2016
________________________________________________________
Oriental Insurance Company Ltd.through its Sr.Divisional Manager
....Appellant/Co-respondent No.3
of
Versus
Lekh Ram son of Shri Govind Ram & others
rt ......Respondents/Claimants
________________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes. __________________________________________________________ For the Appellant: Mr. Deepak Bhasin Advocate.
For Respondents 1& 2: Mr. Rajiv Rai, Advocate For Respondents Nos.3 & 4: Mr. Manoj Thakur, Advocate. _____________________________________________________________ P.S. Rana, Judge.
Decision Present appeal is filed under Section 173 of Motor Vehicles Act 1988 against the award passed by learned Motor Accident Claims Tribunal Ghumarwin District Bilaspur H.P. camp at Bilaspur in MAC petition No. 36 of 2006 title Lekh 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 2Ram and others vs. Noor Deen and others decided on 29.7.2010.
Brief facts of the case .
2. Brief facts of case as pleaded are that Lekh Ram and others filed claim petition under Section 166 of Motor Vehicles Act 1988 pleaded therein that on 5.6.2006 deceased Smt. Shakuntla Devi was approaching to village Bharari to of attend the marriage of her relative on scooter having registration No. HP-24-9045 along with her husband as a pillion rider and when scooter reached near PWD plant at rt Bhager truck No. HP-24-A-8525 came from back side in very rash and negligent manner which was driven by co-
respondent No. 2 and hit the scooter on back side due to which petitioner No.1 sustained grievous injuries on body and Shakuntla Devi died at the spot due to shock and haemorrhage. It is pleaded that said accident took place due to rash and negligent driving of co-respondent No.2. Age of deceased pleaded as 45 years and occupation of deceased pleaded as housewife and agriculturist. Monthly income of deceased Shakuntla pleaded as `5000/- (Rupess five thousand only) per month. It is pleaded that petitioner No. 1 is husband of deceased and petitioner No. 2 is son of deceased.
::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 3Compensation to the tune of ` 15 lacs (Rupees fifteen lacs) sought.
3. Per contra response filed on behalf of co-
.
respondents Nos. 1 and 2 pleaded therein that deceased had died due to rash and negligent driving of scooter No. HP-24- 9045 and further pleaded that petitioners have no locus standi to file the present petition. It is pleaded that present petition of is bad for non-joinder of parties. Factum of accident is admitted. Prayer for dismissal of petition sought.
4. Per contra separate response filed on behalf of co-
rt respondent No. 3 pleaded therein that claim petition is not maintainable and present petition is bad for non-joinder of necessary parties. It is pleaded that owner and insurer of scooter No. HP-24-9045 are necessary parties. It is pleaded that truck No. HP-24A-8525 was plied without registration, fitness certificate and valid route permit and Insurance Company is not liable to indemnify the owner. It is pleaded that petitioners were not dependant upon deceased Shakuntla Devi. Prayer for dismissal of petition sought.
5. As per the pleadings of parties learned MACT framed following issues on 28.4.2007:-
1. Whether deceased Smt. Shakuntla Devi died on 5.6.2006 in a road accident due to rash and negligent driving of truck No.HP24A-8525 by respondent No. 2 as alleged? OPP ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 4
2. If issue No.1 is proved in affirmative whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP
3. Whether the accident took place at the relevant .
date, time and place due to rash and negligent driving of driver of scooter No. HP-24-9045 that is petitioner No.1 as alleged? ......OPR-2
4. Whether the pettion is not maintainable as alleged? .....OPR
5. Whether the petition is bad for non-joinder and mis-joinder of necessary parties as claimed?
of ......OPR-3
6. Whether truck No. HP-24A-8525 was being driven by unauthorised person having no valid rt and effective driving licence at the time of accident as alleged if so its effect? OPR-3
7. Whether the vehicle in question (Truck No.HP-
24A-8525) was being plied without RC, fitness certificate and valid route permit as alleged if so its effect? .....OPR-3
8. Relief.
6. Learned Motor Accident Claims Tribunal decided issues Nos. 1 and 2 in affirmative and issues Nos 3 to 7 in negative. Learned Motor Accident Claims Tribunal awarded compensation amount to the tune of ` 361000/- (Rupees three lacs sixty one thousand only) along with interest at the rate of 9% per annum from the date of filing petition till payment.
7. Feeling aggrieved against award passed by learned Motor Accident Claims Tribunal Insurance Company ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 5 filed present appeal under Section 173 of Motor Vehicles Act 1988.
8. Court heard learned Advocate appearing on behalf .
of parties and also perused the entire record carefully.
9. Following points arise for determination in this appeal:-
Point No.1 of Whether award passed by learned MACT Ghumarwin camp at Bilaspur is perverse and based upon non-appreciation of oral as well as rt documentary evidence adduced by parties as alleged in memorandum of grounds of appeal?
Point No.2 Relief.
10. Findings upon point No.1 with reasons:-
10.1 PW1 Lekh Ram has stated that on 5.6.2006 he and his deceased wife Shakuntla Devi were going on scooter No. HP-24A-9045 and when they reached at Bajari plant at Bhager truck No. HP-24A-8525 came in rash and negligent manner and struck with scooter. He has stated that truck dragged his deceased wife upto 20-25 metres and deceased Shakuntla died at the spot. He has stated that police officials came at the spot and he was brought to civil hospital Ghumarwin for medical treatment. He has stated that post mortem of his deceased wife was conducted and further stated that accident ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 6 took place due to rash driving of truck driver. He has stated that monthly income of deceased was ` 5000/- (Rupees five thousand only) per month. He has stated that FIR was also .
registered. He has stated that copy of FIR is Mark-A and copy of post mortem is Ext.PW1/A and copy of driving licence is Ext.PW1/C and copy of family regisrter is Ext.PW1/B. He has stated that his deceased wife used to sell 2 Kg. of milk to Piare of Lal and used to sell 2 Kg of milk to Chet Ram. He has stated that ` 15 lacs (Rupees fifteen lacs only) compensation be awarded. He has denied suggestion that accident took place rt due to his fault. He has denied suggestion that scooter was skidded. He has denied suggestion that he was driving the scooter in very rash and negligent manner. He has denied suggestion that deceased did not use to sell milk.
10.2 PW2 Hemant Sharma has stated that he is running the chemist shop. He has stated that on 5.6.2006 at about 10.45 AM when he was going from Kandror to Ghumarwin in his maruti car he saw that truck having registration No. HP-
24A-8525 came in rash and negligent manner and further stated that truck hit the scooter and dragged the pillion rider upto 10-15 feet. He has stated that pillion rider died due to rash and negligent driving. He has denied suggestion that ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 7 scooter was skidded and also denied suggestion that accident took place due to fault of scooter driver.
10.3 PW3 Piar Singh has stated that he is running the .
shop of Karyana. He has stated that Lekh Ram and his deceased wife were known to him. He has stated that deceased Shakuntla used to perform agriculture work and she was in good state of health. He has stated that deceased used of to sell milk and he used to purchase 2 Kg. milk from deceased.
He has denied suggestion that deceased did not use to sell the milk. He has denied suggestion that he has deposed false rt because deceased was his neighbour.
10.4 PW4 Rattanu Ram HC No. 80 has stated that he is posted in P.S. Ghumarwin District Bilaspur as I.O. and he has brought the record of FIR No. 93 of 2006 dated 5.6.2006 registered under Sections 279, 337, 304-A IPC. He has stated that copy of FIR is Ext.PW4/A. He has stated that criminal case was filed in the Court of Additional Chief Judicial Magistrate against co-respondent No.2 i.e. driver of truck No. HP-24A-
8525.
11. Following documentaries evidence filed by the parties. (1) Ext.PW4/A is FIR No. 93 of 2006 dated 5.6.2006 registered under Sections 279, 337 and 304-A IPC in P.S. Ghumarwin District Bilaspur H.P.(2) Ext.PW1/A is post mortem ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 8 report of deceased aged 45 years as per post mortem report deceased had died due to shock and haemorrhage. (3) Ext.PW1/B is family register issued by Panchayat Secretary .
G.P. Raghunathpura. (4) Ext.PW1/C is driving licence of Lekh Ram co-petitioner No.1 and co-petitioner No.1 was legally competent to drive motor cycle with gear and without gear.
(5) Ext.R-1 is goods carrier permit of vehicle No. HP-24A-8525.
of (6) Ext.R2 is certificate of registration of vehicle No. HP-24A-
8525 registered in the name of co-respondent No.1 Shri Noon Deen. (7) Ext.R3 is insurance policy of vehicle No.HP-24A-8525 rt wherein vehicle involved in accident was duly insured w.e.f.
12.5.2006 to 11.5.2007 and premium to the tune of ` 13950/-
(Rupees thirteen thousand nine hundred fifty only) was also received by Oriental Insurance Company. (8) Ext.R4 is driving licence of co-respondent No.2 Khalil Mohammed whereby driver was legally competent to drive HTV. (9) Ext.R5 is certificate issued by P.S. Ghumarwin wherein driving licence of Khalil Mohammad took into possession by police in criminal case registered under Sections 279, 337 and 304-A IPC.
12. Submission of learned Advocate appearing on behalf of appellant that accident took place due to rash and negligent driving of scooter having registration No. HP-24A-
9045 is rejected being devoid of any force for the reasons ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 9 hereinafter mentioned. Insurance Company did not adduce any evidence on record in order to prove that accident took place due to rash and negligent driving of scooter No. HP-24- .
A-9045. No official on behalf of insurance company appeared in witness box. Hence adverse inference under Section 114 (g) of Indian Evidence Act 1872 is drawn against the appellant. It was held in case reported in AIR 1999 SC 1441 title Vidyadhar vs. of Mankikrao and another that if party did not appear in witness box then adverse inference should be drawn against the party. Also see AIR 1999 SC 1341 title Ishwar Bhai C. Patel vs. rt Harihar Behera and another. PW1 Lekh Ram, PW2 Hemant Sharma eye witnesses of incident have stated in positive manner that accident took place due to rash and negligent driving of truck No. HP-24A-8525. Testimonies of PW1 Lekh Ram and PW2 Hemant Sharma are trustworty, reliable and inspire confidence of Court. There is no evidence on record that PW1 Lekh Ram and PW2 Hemant Sharma have hostile animus against driver or owner of truck No. HP-24A-8525 at any point of time.
13. Submission of learned Advocate appearing on behalf of appellant that petition is not maintainable is rejected being devoid of any force for the reasons hereinafter mentioned. In present case petitioner No.1 is husband of ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 10 deceased and petitioner No.2 is son of deceased. As per Section 166 of Motor Vehicles Act 1988 legal representatives of deceased can file petition under Section 166 of Motor .
Vehicles Act 1988. It is held that petitioners being legal representatives of deceased are legally competent to file petition under Section 166 of Motor Vehicles Act 1988.
14. Submission of learned Advocate appearing on of behalf of appellant that present petition is bad for non-joinder of necessary parties is also rejected being devoid of any force for the reasons hereinafter mentioned. Onus to prove issue rt No. 5 was upon Insurance Company. No official on behalf of insurance company appeared in the witness box in order to prove issue No. 5. Hence adverse inference under Section 114(g) of Indian Evidence Act 1872 is drawn against Insurance Company in view of ruling cited supra.
15. Submission of learned Advocate appearing on behalf of appellant that truck No. HP-24A-8525 was driven by an unauthorised person having no valid and effective driving licence at the time of accident and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Onus to prove issue No. 6 was upon insurance company. No official on behalf of insurance company appeared in witness box for purpose of cross ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 11 examination. Issue No. 6 is an issue of facts. Hence adverse inference under Section 114(g) of Indian Evidence Act 1872 is drawn against the insurance company.
.
16. Submission of learned Advocate appearing on behalf of appellant that vehicle in question was plied without RC, fitness certificate and valid route permit and on this ground appeal be allowed is rejected being devoid of any of force for the reasons hereinafter mentioned. Onus to prove issue No. 7 was upon insurance company. No official from Insurance Company appeared in witness box to prove issue rt No. 7. As issue No. 7 is issue of facts adverse inference under Section 114(g) of Indian Evidence Act 1872 is drawn against insurance company in view of ruling cited supra.
17. Submission of learned Advocate appearing on behalf of appellant that vehicle i.e. truck was driven in violation of terms and conditions of insurance policy and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. No official on behalf of insurance company appeared in witness box in order to prove that vehicle was driven in violation of terms and condtions of insurance policy. Hence adverse inference under Section 114(g) of Indian Evidence Act 1872 is drawn against the insurance company in view of ruling cited supra.
::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 1218. Submission of learned Advocate appearing on behalf of appellant that compensation for loss of dependency is granted on higher side and on this ground appeal be .
accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Learned MACT has assessed the monthly income of deceased as `3000/- (Rupees three thousand only) per month. Learned MACT has deducted 1/3rd of notional income towards personal expenses of deceased.
Learned MACT has assessed the dependency of petitioners to the tune of ` 2000/- per month and learned MACT has applied rt multiplier of 14. Hon'ble Apex Court of India in case reported in (2009)6 SCC 121 title Sarla Verma vs. DTC held that multiplier of 14 should be applied wherein age of deceased is between 41 to 45 years. As per post mortem report Ext.PW1/A placed on record age of deceased Shakuntla Devi was 45 years. It is held that learned MACT has rightly assessed the monthly income of deceased and further held that MACT has rightly applied the multiplier of 14 in view of ruling cited supra after deducting personal expenses of deceased.
19. Submission of learned Advocate appearing on behalf of appellant that learned MACT has awarded excess compensation to the tune of ` 10000/- (Rupees ten thousand only) on the loss to estate in violation of ruling reported in ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 13 (2009)6 SCC 121 title Sarla Verma vs. DTC is partly answered in yes and partly answered in no. Hon'ble Apex Court of India in ruling cited supra has held that ` 5000/- (Rupees five .
thousand only) should be granted in the head of loss to estate.
In view of above stated facts loss of estate is reduced to `5000/-(Rupees five thousand only) from ` 10000/- (Rupees ten thousand only). It is well settled law that ruling of Apex of Court is binding upon all Courts as per Article 141 of Constitution of India.
20. rt Submission of learned Advocate appearing on behalf of appellant that learned MACT has also granted excess interest at the rate of 9% per annum in violation of ruling reported in (2009)6 SCC 121 title Sarla Verma vs. DTC is partly answered in yes and partly answered in no. In view of ruling cited supra rate of interest is reduced to 6% from 9%. Hence compensation awarded by learned MACT is modified to this extent only.
(A) Compensation for loss of `336000/-(Rupees three
dependency awarded: lac thirty six thousand only)
(B) Loss of estate awarded: `5000/-(Rs.five thousand only)
(C) Loss of consortium `10000/- (Rupees ten
awarded: thousand only).
(D) Funeral expenses `5000/- (Rs.five thousand only)
awarded: ______________________________
(E) Total compensation awarded `356000/-(Rs.Three lac fifty six thousand only) ______________________________ ::: Downloaded on - 15/04/2017 20:20:08 :::HCHP 14 Point No. 1 is answered accordingly.
(Point No.2) Relief .
21. In view of above findings appeal is partly allowed.
Compensation amount is slightly reduced to Rs.356000/-
(Rupees three lac fifty six thousand only). Interest is also reduced from 9% to 6% from date of petition till realization.
Award of learned MACT is slightly modified to this extent only.
of File of learned MACT along with certified copy of this decision be sent back forthwith. No order as to costs. FAO stands rt disposed of. Pending miscellaneous application(s) if any also stands disposed of.
May 12,2016 (P.S. Rana)
(ms). Judge
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