Himachal Pradesh High Court
Sunita Devi And Others vs Khem Dass And Others on 2 September, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1 2025:HHC:29665
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
FAO (MVA) No.160 of 2016 with
FAO (MVA) No.161 of 2016
Reserved on: July 7, 2025
Date of Decision: September 02, 2025
1. FAO (MVA) No.160 of 2016
Sunita Devi and others ....Appellants.
Versus
Khem Dass and others ..Respondents.
2. FAO (MVA) No.161 of 2016
Saroj Kumari and others ....Appellants.
Versus
Khem Dass and others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
FAO (MVA) No.160 of 2016
For the Appellant(s): Mr.Aman Parth Sharma, Advocate.
For the Respondent(s): Mr.Sanjeev Bhushan, Senior Advocate, with
Mr.Rajesh Kumar, Advocate, for
respondents No.1 and 2.
Mr.B.M. Chauhan, Senior Advocate, with
Mr.Amit Himalvi, Advocate, vice
Ms.Kamakshi Tarlokta, Advocate, for
respondent No.3.
FAO (MVA) No.161 of 2016
For the Appellant(s): Mr.Aman Parth Sharma, Advocate.
For the Respondent(s): Mr.Sanjeev Bhushan, Senior Advocate, with
Mr.Rajesh Kumar, Advocate, for
respondents No.1 and 2.
1
Whether reporters of the local papers may be allowed to see the judgment?
2 2025:HHC:29665
Mr.B.M. Chauhan, Senior Advocate, with
Mr.Amit Himalvi, Advocate, vice
Ms.Kamakshi Tarlokta, Advocate, for
respondent No.3.
Vivek Singh Thakur, J.
These appeals, arising out of the same accident, for involvement of common question of law, facts and similar evidence, required to be appreciated, are being decided by this common judgment.
2. Case of the appellants is that on 29.05.2010 at about 10.15 p.m., Anil Kumar (deceased) and Rajneesh Kumar (deceased), were talking with PW.5-Avinash Chand at Bamta Bridge, Chandpur, after parking Scooter bearing No.DL-75D-2746 on the side of the road. Avinash Chand was standing on the footpath, whereas, Anil Kumar (deceased) and Rajneesh Kumar (deceased) were standing near the Scooter. At that time, a Truck bearing No.HP-11B-7477, driven by respondent No.2-Tilak Raj (RW.2) in a rash and negligent manner came from Bilaspur side and ran over Rajneesh Kumar and Anil Kumar alongwith Scooter. Respondent No.2-Tilak Raj stopped the Truck at a short distance and, thereafter, reversed it and parked it alongwith the Scooter.
3. I have heard learned counsel for the parties and have also gone through the record.
4. On hearing sound of collision, PW.3 Devkinandan, who was at a distance of 50-100 meters away from the spot rushed to the spot and found Anil Kumar and Rajneesh Kumar lying on the road who were writhing in pain due to injuries. One Kaku was also present there. Truck driver reversed the truck and stopped it near 3 2025:HHC:29665 the boys and Scooter. Both injured were shifted to Government Hospital Bilaspur in a Tralla Jeep. PW.3-Devkinandan accompanied them to the Hospital, whereas, Avinash Chand went home. Anil Kumar was declared dead on reaching the Hospital, whereas, Rajneesh Kumar was admitted and thereafter, referred to PGI, Chandigarh. However, he succumbed to injuries.
5. Driver of the Truck did not accompany the injured to the Hospital, but he went to the Police Station and lodged FIR No.155 of 2010 (Ex.PW.2/A) in Police Station Sadar, Bilaspur, H.P., stating therein that when he was driving the Truck bearing No.HP- 11B-7477 for transporting cement from Darlaghat to Galod, District Hamirpur, H.P., a Scooter came from Bilaspur to Chandpur side, lights whereof were switched off and a Truck came from opposite side number of which could not be read by respondent No.2-Tilak Raj and as Headlights of that Scooter were off, Scooter rider hit the scooter on back side of his truck. On hearing sound of collision, he stopped the Truck and got down and saw that three persons, who were riding the Scooter bearing No.DL-7SD-2746, had hit the truck and the person who was driving the Scooter had died on the spot and the second person sitting behind him had suffered injuries and blood was oozing from the injuries and third person who was the last rider had not received any injury and he went Home immediately after the accident. On inquiry, name of Scooter rider came to know as Rajneesh Kumar and it was concluded that the accident had occurred on account of rash and negligent driving of the Scooter rider.
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6. In aforesaid backdrop, claim petitions were preferred by dependent legal representatives of deceased Rajneesh Kumar and Anil Kumar.
7. FAO No.160 of 2016
(A) In this case, M.A.C. No.3/2 of 2012/11, titled as Sunita Devi & others vs. Khem Dass and others, was instituted on 15.12.2011 by parents and brother of deceased Rajneesh Kumar (26 years old).
(B) According to claimants, deceased Rajneesh Kumar was Scooter/Motor Mechanic at Scooter and Motor Workshop at Bilaspur, under Name and Style 'Rajneesh Automobiles'. He was earning more than `20,000/- per month and claimant No.1 being mother, claimant No.2 being unemployed brother and claimant No.3 being father were solely dependent upon earning of the deceased and deceased would have survived up to the age of 95 years on account of longevity of his family genes, and due to his death, claimants have also been deprived of love, affection and money and, thus, compensation of `15,00,000/- was claimed.
(C) Claim petition was opposed by the respondents by filing separate replies. The stand of owner- respondent No.1 and respondent No.2 Driver, was that deceased Rajneesh Kumar was driving the Scooter rashly and negligently without Headlights, in drunken state and he hit the Truck from behind under the 5 2025:HHC:29665 influence of alcohol and, therefore, Rajneesh Kumar himself was wrong doer and, thus, claimants were not entitled for any compensation from the respondents. Further that, in case Court comes to the conclusion that compensation is payable by the owner and driver, then respondent No.3 would be liable to indemnify the owner of the vehicle.
(D) Defence of Respondent No.3-Insurance Company in its reply is that respondent No.2-Driver was not having effective and valid Driving Licence and the Truck was being plied without any Route Permit, Fitness Certificate and Registration Certificate at the relevant point of time. Deceased Rajneesh Kumar was himself grossly negligent and accident had occurred on account of rash and negligent driving of Scooter driver, and Truck No.HP-11B-7477 was not even involved in the accident. Further that, Truck was being driven in violation of provisions of Motor Vehicle Act, 1988 (in short 'M.V. Act') as well as terms of the Policy of the Insurance, as respondent No.2-Tilak Raj was not having valid Driving Licence, there was no valid Route Permit, Fitness Certificate and Registration Certificate, and, therefore, Insurance Company was not liable to pay/indemnify owner of the vehicle.
(E) In rejoinder(s), plea taken in the claim petitions was reiterated.
6 2025:HHC:29665 (F) Claimants have examined PW.1-Sunita Devi, mother of deceased Rajneesh Kumar, PW.2-MHC Suresh Kumar, PW.3-Devkinandan, PW.4-Dr.G.D. Jassal, PW.5-Avinash Chand, PW.6-Baldev Kumar Dabra and have also relied upon documents. Ex.PW.1/A, examination-in-chief of Sunita Devi on affidavit, Ex.PW.2/A copy of FIR, Ex.PW.1/B copy of postmortem report of Rajneesh Kumar, Ex.PW.1/C Death Certificate of Rajneesh Kumar, Mark-B copy of Insurance Certificate and Ex.P-1 Voter Identity Card of Rajneesh Kumar, which is in the file of Amit Kumar at page 87. (G) Respondents Khem Dass(owner) and Tilak Raj(driver) have appeared as witnesses as RW1 and RW2 and they have placed reliance on Ex.RW.1/A copy of order of untraced report, Ex.RW.1/B copy of Registration Certificate, Ex.RW.1/C copy of Insurance Certificate, Ex.RW.1/D copy of Permit and Ex.RW.2/A copy of Driving Licence of Tilak Raj.
(H) No evidence has been led either oral or documentary by the Insurance Company. (I) According to claimants, Rajneesh Kumar was earning `30,000/- per month. To substantiate the
claim, PW.6-Baldev Kumar Dabra has been examined, who in examination-in-chief has stated that Rajneesh kumar had come to him as apprentice to learn motor vehicle repair in Babby Automobiles being run by this 7 2025:HHC:29665 witness(Baldev Kumar Dabra). At that time, he was paying `100/- plus Diet allowance to him and, thereafter, for his own ill health, he (Baldev Kumar Dabra) rented out his shop to Rajneesh Kumar against payment of `3000/- per month about 4-5 years ago. From September 2010, Rajneesh Kumar was running the Workshop in the Name and Style 'Rajneesh Automobiles' and his income from the shop was about `25,000/- to 30,000/- per month because reputation and goodwill of this witness Baldev Kumar Dabra was also with business run by deceased. After death of Rajneesh Kumar, this witness brought the keys of the shop from his house and started running the shop in his own Name and Style 'Babby Automobiles' and is earning `25,000/- per month. In cross-examination, he has stated that he was running the shop since last 30- 35 years and because of heart disease he was not able to work and his work was being seen by the workers and he used to pay `1000/- per month to the boy (deceased), who was his employee in the Workshop, because he was apprentice yet. He has also admitted that Bobby Automobiles is not registered in any Government office and he had not submitted information at the time of employing Rajneesh Kumar to any Government office. Rajneesh Kumar had come to him in the year 2007. This witness-Baldev Kumar 8 2025:HHC:29665 Dabra has admitted that he was not having any licence for training of motor mechanic by self stating that he was extending training of his own volition and will. He has denied that there was no Workshop in the name 'Rajneesh Automobiles'. He has also admitted that he was not having any record to substantiate income of `25000/- per month.
(J) There is no document on record to substantiate the income @ `30,000/- per month being earned by deceased Rajneesh Kumar.
(K) PW.1-Sunita Devi in her examination-in-chief has claimed that deceased Rajneesh Kumar was earning more than `30,000/- per month, but she has also not placed on record any material to substantiate the said claim. Claim Petition was prepared on 15.11.2011 and filed on 02.01.2012.
(L) After taking into consideration material on record, MACT has dismissed the Claim Petition by concluding that version with respect to accident, propounded by the claimants, was not believable and the accident did not take place on account of rash and negligent driving of the Truck driver Tilak Raj. 8. FAO No.161 of 2016 (A) In this case, M.A.C. No.2/2 of 2012/11, titled Saroj Kumari & others vs. Khem Dass and others, was 9 2025:HHC:29665 instituted on 15.12.2011 by mother, widow and daughters of deceased Anil Kumar (34 years old). (B) According to claimants, deceased Anil Kumar was serving with 'Samrat Plywood Company' at Nalagarh and was earning `20,000/- per month and claimant No.1 being wife, claimant No.2 being mother and claimants No.3 and 4 being daughters were solely dependent upon earning of the deceased and due to his death, claimants have also been deprived of love, affection and money and, thus, compensation of `15,00,000/- was claimed.
(C) Claim petition was opposed by the respondents by filing separate replies. The stand of owner- respondent No.1 and respondent No.2 Driver, was that deceased Rajneesh Kumar was driving the Scooter rashly and negligently without Headlights, in drunken state and he hit the Truck from behind under the influence of alcohol and, therefore, Rajneesh Kumar himself was wrong doer and, thus, claimants were not entitled for any compensation from the respondents. Further that, in case Court comes to the conclusion that compensation is payable by the owner and driver, then respondent No.3 would be liable to indemnify the owner of the vehicle.
(D) Defence of Respondent No.3-Insurance Company in its reply is that respondent No.2-Driver was 10 2025:HHC:29665 not having effective and valid Driving Licence and the Truck was being plied without any Route Permit, Fitness Certificate and Registration Certificate at the relevant point of time. Driver of the scooter, deceased Rajneesh Kumar was himself grossly negligent and accident had occurred on account of rash and negligent driving of Scooter driver, and Truck No.HP-11B-7477 was not even involved in the accident. Further that, Truck was being driven in violation of provisions of M.V. Act as well as terms of the Policy of the Insurance, as respondent No.2-Tilak Raj was not having valid Driving Licence, there was no valid Route Permit, Fitness Certificate and Registration Certificate and therefore the Insurance Company was not liable to pay/indemnify owner of the vehicle.
(E) In rejoinder(s), plea taken in the claim petitions was reiterated.
(F) Claimants have examined PW.1-Saroj Kumari, wife of deceased Anil Kumar, PW.2-MHC Suresh Kumar, PW.3- Devkinandan, PW.4-Dr.G.D. Jassal, PW.5-Avinash Chand, PW.6-Bharpur Singh and have also relied upon documents. Ex.PW.1/A examination-in-chief of Saroj Kumari on affidavit, Ex.PW.6/A and Ex.PW.6/B Salary Certificates of Anil Kumar, Ex.PW.2/A copy of FIR, Ex.PW.1/B copy of postmortem report of Anil Kumar, 11 2025:HHC:29665 Ex.PW.1/C Death Certificate of Anil Kumar and Mark-B copy of Insurance Certificate.
(G) Respondents Khem Dass(owner) and Tilak Raj(driver) have appeared as RW1 and RW2 and they have placed reliance on Ex.RW.1/A copy of order in untraced report, Ex.RW.1/B copy of Registration Certificate, Ex.RW.1/C copy of Insurance Certificate, Ex.RW.1/D copy of Permit and Ex.RW.2/A copy of Driving Licence of Tilak Raj.
(H) No evidence has been led either oral or documentary by the Insurance Company. (I) According to claimants, Anil Kumar was
earning `20,000/- per month. To substantiate the claim, PW.6-Bharpur Singh, has been examined, who has placed on record Salary Certificates Ex.PW.6/A and Ex.PW.6/B and extract of Salay and Wages Register Ex.PW.6/C. He has further submitted that every year 10% increment is given to the employees of the Company, and had Anil Kumar been alive, he would have been earning `5300-5500/- per month.
(J) PW.1-Saroj Kumar in her examination-in-chief has claimed that deceased Anil Kumar was earning `20,000/- per month, but she has also not placed on record any material to substantiate the said claim. Claim Petition was prepared on 15.11.2011 and filed on 02.01.2012.
12 2025:HHC:29665 (K) After taking into consideration material on record, MACT has dismissed the Claim Petition by concluding that version with respect to accident, propounded by the claimants, was not believable and the accident did not take place on account of rash and negligent driving of the Truck driver Tilak Raj.
9. MACT has dismissed the Claim Petition by disbelieving the version of the claimants on the ground that claim of the claimants was that deceased and Scooter had been crushed by the speeding Truck, but there is nothing on record, including medical evidence, injuries mentioned in postmortem report, to substantiate that deceased and Scooter was crushed by Truck; that Avinash Chand neither shifted Anil Kumar and Rajneesh Kumar to the Hospital nor informed or made statement to the police regarding the accident, and, thus his conduct was suspicious, creating cloud on his trustworthiness being contrary to normal conduct of reasonable prudent man; that deposition of PW.3-Devkinandan was not of any help to the claimants as he had not witnessed the accident, but was at a distance from the spot; and that claimants have failed to establish rash and negligent driving of the Truck involved in the accident.
10. MACT has also relied upon statement of respondent No.2-Tilak Raj (RW.2) on the basis of his deposition and his conduct informing the police immediately after the accident. The contents of FIR have also been taken into consideration believing version of the Truck driver (respondent No.2).
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11. MACT has also considered the fact of submission of untraced report by the Investigating Officer in case FIR Ex.PW.2/A and passing of order by the Judicial Magistrate, First Class Ex.RW.1/A because of death of deceased Rajneesh Kumar, who was accused for rash and negligent driving of the Scooter, with further observation that no Protest Petition was ever filed against untraced report nor petitioners at any point of time lodged complaint against lodging of FIR on wrong facts before the superior police officers. Ultimately, MACT has held that accident indeed was a result of rash and negligent driving of the Scooter by Rajneesh Kumar.
12. No doubt FIR was registered by Truck driver immediately after the accident, however, contents thereof, are not only unbelievable, but also have not been supported by deposition of RW.2-Tilak Raj, who had lodged FIR.
13. In FIR, it was stated that when RW.2-Tilak Raj was crossing Chandpur Bridge, a Scooter coming behind the Truck was without lights and a Truck with lights came from opposite side and because of that Scooter rider hit the Truck being driven by Tilak Raj with force, and when Tilak Raj got down, he found that three persons were riding the Scooter, and Scooter rider had died. Whereas, second rider was injured and third rider did not receive any injury and he went home. In reply filed to the petition as well as in deposition in the Court, there is no reference of Truck coming from opposite side with lights and hitting the Scooter by Rajneesh Kumar on account of Headlight of that Truck.
14. RW.1-Khem Dass is not an eye witness. He has deposed on the basis of information supplied by RW.2-Tilak Raj.
14 2025:HHC:29665 Therefore, his deposition is not relevant with respect to the facts and circumstances on the spot. But documents placed on record by him, i.e. copy of order dated 03.05.2011 Ex.RW.1/A, Registration Certificate Ex.RW.1/B, Insurance Certificate Ex.RW.1/C and Permit Ex.RW.1/D are relevant for deciding the claim petitions.
15. On behalf of Insurance Company, no question has been put to RW1 Khem Dass doubting validity of these documents at the time of accident. Only question with respect to currency period of Insurance has been put to these witnesses. In response whereto, it was deposed that Insurance Policy was valid from 31.07.2009 to 30.07.2010. Accident had taken place on 25.09.2010.
16. RW.2-Tilak Raj in the Court has stated that when he was crossing Chandpur Bridge, a Scooter hit the Truck from the back side with force, and he noticed three persons riding the Scooter collided with rear side of the Truck. This statement is in contradiction of the story told by him to the police at the time of lodging the FIR, wherein he had stated that accident took place due to Truck coming from opposite side with lights resulting into accident. He has also stated in FIR as well as deposition in the Court that he stopped the Truck, got down and saw three persons riding the Scooter. At the same time, he has stated that collision had taken place and one person had died; second person had suffered injuries; and third person had not suffered any injury. When accident had already taken place on the back side of the Truck, it is impossible and beyond imagination that driver of the truck, got down after stopping the Truck after collision and saw three persons riding the Scooter. He could have seen three persons riding the 15 2025:HHC:29665 Scooter, if he had stopped the Truck before the accident and had got down before collision. If he got down after the accident then how and for what reason he arrived at a conclusion that three persons were sitting on the Scooter and the person, who died was driver of the Scooter and second person, who had received injuries was middle rider and the person, who did not receive any injury was the last rider. Therefore, version given in the FIR read with deposition of this witness in the Court, is not only contradiction but also highly unbelievable and improbable.
17. No doubt, miracles do happen, but claim petition is not to be decided on the basis of exceptions unless established by leading cogent, reliable and convincing evidence which is missing in present case, and, therefore, present petition has to be decided on the basis of principle of preponderance of probability.
18. The fact stated in the FIR and deposition of RW2 in the Court is that three persons were on the spot, out of them two were injured and third person was not injured. In fact, it substantiates the version of the claimants that Avinash Chand was standing on the footpath and Rajneesh Kumar and Anil Kumar alongwith Scooter were on the road and Truck being driven by Tilak Raj hit and ran over the Scooter and two persons and third person was pedestrian and thus was not harmed.
19. Copy of order of untraced report submitted by Investigating Officer, passed on 03.05.2011 by Judicial Magistrate, First Class, Bilaspur (Ex.RW/1/A) depicts that no notice was ever given to the claimants or other interested persons except to the complainant. Complainant was RW.2-Tilak Raj. He had lodged 16 2025:HHC:29665 report regarding the accident. Even contents of FIR did not disclose any rash and negligent driving on the part of Rajneesh Kumar, rather it says that accident took place on account of Headlights of the Truck coming from opposite side number of which could not be noticed by Tilak Raj. Probably for shifting allegation and liability of rash and negligent driving upon deceased Rajneesh Kumar, RW.2- Tilak Raj has not stated in his deposition in the Court anything about Truck coming from opposite side. Therefore, either story told to the police is false or deposition of RW.2 in the Court is false. In any case, it creates doubt about veracity of this witness.
20. As noticed supra, notice of cancellation/untraced report, was sent to complainant only and complainant was Tilak Raj and he conveyed no objection for cancellation/untraced report, but when no notice was issued to the family of deceased persons/claimants, then there was no occasion for them to come to know about registration of FIR alleging rash and negligent driving of Rajneesh Kumar and cancellation thereof. No other document has been placed on record by the respondents, so as to depict that at any point of time, Investigating Officer had associated and interrogated the family of deceased persons, Devkinandan or Avinash Chand despite the fact that presence of Avinash Chand on the spot has been admitted by Tilak Raj in FIR though as a third rider of scooter, who had not received injuries.
21. Even presence of Devkinandan on the spot is also substantiated from the postmortem report, wherein he has been cited as a witness, who had identified dead bodies of Anil Kumar and Rajneesh Kumar.
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22. In aforesaid facts and circumstances, version of PW.3- Devkinandan and PW.5-Avinash Chand, who have corroborated the material particulars in their deposition appear to be more probable and reliable and, therefore, MACT, after discarding their version, has arrived at wrong conclusion that Tilak Raj only was not driving the Truck rashly and negligently, but it was only Rajneesh Kumar, who was driving the Scooter in a rash and negligent manner.
23. MACT has referred injuries received by deceased persons to return finding that version of crushing the deceased persons alongwith Scooter by Truck was not believable. Firstly, crushing by vehicle in all eventualities, does not mean that every time it depicts or used to denote crushing of the victim or vehicle under wheels of offending vehicle. In deposition in the Court, claimants have alleged that deceased were ran over/crushed (Kuchalna) by offending Truck and translation of Kuchalna at every time cannot be crushed or ran over by the vehicle under the tyre of offending vehicle. Otherwise also, it was claimed in the petition that deceased persons and Scooter had been crushed by offending Truck and to substantiate it they have relied upon postmortem report as proved by Dr. G.D. Jassal, which indicates that Anil Kumar had suffered fracture in the skull, fracture of left tibia and fibula and fracture of left femur. Whereas, Rajneesh Kumar had suffered fractrure of skull, fracture of both sides of ribs and fracture of right shoulder. In case Rajneesh Kumar had collided with Truck while driving Scooter, then being a person siting in front side of Scooter, he was likely to receive more injuries than the pillion rider Anil Kumar. Here Anil Kumar had suffered more injuries than Rajneesh 18 2025:HHC:29665 Kumar. Therefore, also collusion of Scooter being driven by Rajneesh Kumar on the back side of Truck is not substantiated from the injuries.
24. Further, it was claim of the respondents that deceased were not crushed by the Truck, but had received injuries in collision with Truck. Therefore, it was for the respondents to put suggestion to the Expert, i.e. PW.4 Dr.D.S. Jassal that injuries suffered by deceased persons could not have been suffered in an accident crushing/running over the Scooter and deceased persons by the truck. But despite granting opportunity no question in this regard has been put to the Expert. Plea of claimants which is not disputed or clarified by cross-examining the Expert, cannot be said to have been rebutted by the respondents only by putting questions to the claimants' witnesses, which was denied by the said witnesses.
25. Finding of MACT that behaviour of Avinash Chand was contrary to natural behavour is also not acceptable because behavior of different persons in the same circumstances may differ. In present case also, conduct and reaction of a person on witnessing an accident and death of two friends in front of him, who were talking with him a few seconds before their death, may result in different and divergent response and conduct depending upon shock bearing capacity of a person. A person witnessing such accident may be in deep shock leading to decision to leave the spot and to go home. Whereas, in the same circumstances, another person, who may be able to bear such shock may act promptly to shift the injured persons to the Hospital and also try to approach 19 2025:HHC:29665 the police. In such events, straitjacket behaviour cannot be expected from an eye witness.
26. It is also apt to record that MACT has placed reliance upon untraced report which was prepared by the Investigating Officer without associating Avinash Chand and Devkinandan in investigation and also on the part of Magistrate by accepting untraced report without issuing notice to the family members of deceased, who were likely to suffer adverse impact of such cancellation report alleging rash and negligent driving on the part of deceased Rajneesh Kumar. For having been prepared without associating all stakeholders, it cannot be used against them.
27. It is apparent from the above discussion that there is sufficient material to hold that accident occurred due to rash and negligent driving of Tilak Raj (Truck Driver). Therefore, respondents No.1 and 2 are liable to pay compensation.
28. Though, claim has been made that Rajneesh Kumar was earning `30,000/- per month and PW.6-Baldev Kumar Dabra has appeared to prove this fact, however, there is no document on record to substantiate that Rajneesh Kumar was earning `30,000/- per month. Income @ `30,000/- per month means that Rajneesh Kumar was earning `3,60,000/- per year, but there is no document on record with respect to any Income Tax return filed by him or any other Tax paid by him or any other book record kept by him properly during course of his business.
29. Baldev Kumar Dabra has claimed that now he is also earning `30,000/- per month. His version also appears to be highly improbable that according to him, because of his ill health, he had 20 2025:HHC:29665 handed over his business to Rajneesh Kumar, but after death of Rajneesh Kumar, he is again running the same business and earning `25,000/- per month, but he had handed over his business to Rajneesh Kumar against payment of `3000/- only with claim that Rajneesh Kumar was earning `25,000/- to 30,000/- per month on account of his(Baldev Kumar Dabra) reputation and goodwill. The version of this witness is not convincing. Thus there is no cogent or reliable evidence on record to establish that deceased Rajneesh Kumar was earning `30,000/- per month.
30. It has come in evidence as also stated in the Claim Petition that Rajneesh Kumar was a Scooter/Motor mechanic. In absence of any material on record, it can be guessed that at least he was earning `100/- per day and he may not be earning every day, but even if it is considered that he was earning every day, then also, his income can be taken as `3000/-per month. He was 26 years old bachelor, therefore, by applying principle of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680; and Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram & others, (2018) 18 SCC 130, after deducting 50%, multiplicand will come to `1500/- and annual loss of income would be 1500x12 and by adding 40% future income and applying multiplier of 17, total amount of compensation would be 1500x12=18000+7200(40%)=25200x17=4,28,400/-.
31. In terms of Pranay Sethi and Magma cases supra, in addition to the above amount of compensation of `4,28,400/-, the claimants are also entitled for `15,000/- for loss of estate, `15,000/- for funeral expenses, and the claimants are also entitled for 21 2025:HHC:29665 `40,000/- each on account of loss of consortium. Therefore, the total compensation comes to `428400+15000+15000+120000 (40000 x 3=120000, as there are three claimants) = `5,78,000/-.
32. It has been claimed that deceased Anil Kumar was earning `20,000/- per month. PW.6-Bharpur Singh has been examined to prove his monthly income contrary to the claim put forth in the petition as well as in deposition of PW.1-Saroj Kumari. Salary Certificates placed on record by PW.6-Bharpur Singh, depict that in the month of May 2010 Anil Kumar was entitled for total salary of `3107/- and Salary Certificate Ex.PW.6/B indicates that he was entitled for monthly gross salary of `3567/-. Extract of Register produced by PW.6 also indicates that Anil Kumar had received Wages of `2699/- for the relevant month.
33. In view of above material on record, it can be inferred that at the most, at the time of accident, Anil Kumar was entitled for gross salary of `3567/- say `3600/-. He was 37 years old, and there are four claimants, therefore, by applying Pranay Sethi's and Magma's cases, 1/4th is to be deducted from his monthly salary of `3600/- and, therefore, multiplicand will come 3600-900=`2500 and annual loss of income would be 2500x12 and by adding 40% future income and applying multiplier of 15, total amount of compensation would be `2500 x 12=30,000+12,000(40%)=42000 x 15=`6,30,000/-.
34. In terms of Pranay Sethi and Magma cases supra, in addition to the above amount of compensation of `6,30,000/-, the claimants are also entitled for `15,000/- for loss of estate, `15,000/- for funeral expenses, and the claimants are also entitled for 22 2025:HHC:29665 `40,000/- each on account of loss of consortium. Therefore, the total compensation comes to `630000+15000+15000+160000 (40000 x 4=160000, as there are four claimants) = `8,20,000/-.
35. Deceased were third party, therefore, respondent No.3- Insurance Company is duty bound to pay compensation to the claimants, in view of provisions of Section 147 of the M.V. Act.
36. It is also apt to record that documents placed on record by Khem Dass, Registration Certificate Ex.RW.1/B, Insurance Cover Note Ex.RW.1/C and Route permit Ex.RW.1/D. Owner of the Truck is Parago Devi, however, Khem Dass has appeared as RW.1, deposing in the Court that Truck No.HP.11B- 7477 is owned by his mother, but he was having General Power of Attorney on her behalf to run the Truck and from his statement, it is apparent that he was managing affairs and he has entered in the shoes of the owner, therefore, though registered owner is Parago Devi, but respondent No.1-Khem Dass is not only her son, but General Power of Attorney, who is in helm of affairs of managing and running the Truck, therefore, he is ostensible owner.
37. RW.1-Khem Dass has placed on record Ex.RW.1/B Registration Certificate, Ex.RW.1/C Insurance Certificate, Ex.RW.1/D Route Permit. From the documents placed on record, it is evident that Registration Certificate/Fitness Certificate, Permit of offending vehicle were valid upto 11.8.2010 and 8.9.2010 respectively, therefore, on the date of accident, i.e. 29.05.2010, Registration Certificate/Fitness and Permit were 23 2025:HHC:29665 valid. Apart from validity of these documents, insurance cover/policy was also valid on the date of accident. Ex.RW.1/C is Insurance Cover Note placed on record on behalf of owner of the Truck. This Insurance Cover Note was valid from 31.07.2009 at 00:00: to Midnight of 30.07.2010. Accident took place on 29.5.2010.The vehicle was insured with respondent No.3- Insurance Company as required under the M.V. Act. There is nothing on record to depict that there was any breach of terms and conditions of Insurance Policy or violation of provisions of Motor Vehicles Act by the owner and driver of the vehicle. Therefore, Insurance Company would be liable to indemnify the owner or driver to pay compensation to the claimants under Section 147 of Motor Vehicles Act.
38. In view of above discussion, appeals filed by the claimants are allowed and order dated 26.10.2015 passed by MACT in Claim Petitions is set aside and respondents No.1 and 2 are held liable for payment of compensation to the claimants. Respondent No.2 was driver of respondent No.1 and for rash and negligence of employee, respondent No.1 is liable under vicarious liability to pay compensation on account of wrong committed by his employee. Though respondents No.1 and 2 are jointly and severally liable for payment of compensation to the claimants, however, it shall be duty of respondent No.3 Insurance Company to pay compensation to claimants amounting to `5,78,400/- in FAO No.160 of 2016 and amounting to `8,20,000/- in FAO No.161 of 2016 alongwith interest @ 6% (in 24 2025:HHC:29665 both the appeals) from the date of filing of the petition till realization thereof either making payment to claimants or depositing the same in the Registry of the Court on or before 30th September, 2025.
39. In FAO No.160 of 2016, out of compensation of `4,58,000/-, Sunita Devi and Shashi Bhushan (mother and father of deceased) shall be entitled for 40% each and remaining 20% shall be payable to brother Jiwanshu. In addition, each of them shall be entitled for loss of consortium at the rate of `40,000/-.
40. In FAO No.161 of 2016, out of compensation of `6,60,000/-, Saroj Kumari (widow of deceased) shall be entitled for 40%, Kamlesh (mother deceased) shall be entitled for 20%, and Asha Sharma and Nidhi Sharma (daughters of deceased) shall be entitled for 20% each. In addition, each of them shall be entitled for loss of consortium at the rate of `40,000/-.
Appeals are allowed and disposed of in aforesaid terms. Pending application(s), if any, also stand disposed of.
(Vivek Singh Thakur), Judge.
September 02, 2025 (sd/Purohit/ms)