Himachal Pradesh High Court
The New India Assurance Company Ltd vs Inderjeet Singh & Ors on 23 December, 2022
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(MVA) No.08 of 2020 Reserved on 09.12.2022 Decided on 23rd December, 2022 .
The New India Assurance Company Ltd.
...Appellant Versus Inderjeet Singh & Ors.
...Respondents Coarm Hon'ble Mr. Justice Virender Singh, Judge 1Whether approved for reporting?
For the petitioner: Mr. Praneet Gupta, Advocate.
For the respondents: Mr. Rakesh Kumar Thakur, Advocate, for respondent No.1 and 2.
Virender Singh, Judge The appellant-New India Assurance Company has filed the appeal, under Section 173 of Motor Vehicles Act, 1988, (hereinafter referred to as 'the MV Act') against the award dated 04.10.2019, passed by learned Motor Accident Claims Tribunal-I, Solan, H.P., (hereinafter referred to as 'the learned MACT') in MAC Petition No. 23-S/2 of 2015.
2. By virtue of the award dated 04.10.2019, the learned MACT has allowed the petition, under Section 166 of MV Act, filed by respondent Nos. 1 and 2, titled as Inderjeet Singh and another ::: Downloaded on - 29/12/2022 20:32:38 :::CIS 2 versus Shiv Kumar and another. The learned MACT while allowing the petition, has awarded the amount of Rs. 37,74,444/- as compensation, to respondent Nos. 1 and 2 alongwith interest @ 6% .
per annum, from the date of filing of the petition, till the realization of the amount. The ultimate liability to pay the amount of compensation, has been fixed upon the appellant-Assurance Company.
3. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned MACT.
4. It is pertinent to mention here that initially the claim petition had been filed by the widow, son and daughter of late Sh.
Kehar Singh, however, on 29.03.2017, the name of claimant No.1 Smt. Amarjeet Kaur, Wd/o Sh. Kehar Singh, was ordered to be deleted, on account of her death, who, as per the death certificate, had died on 24.11.2016.
5. The claimants filed the claim petition, against the respondents, being owner-cum-driver and insurer of the vehicle, bearing registration No.HR-03C-7666. It is the case of the claimants that Sh. Kehar Singh, aged about 55 years, at the time of his death, was the employee of Punjab Tractors Ltd., and was earning Rs. 35,000/- per month as salary. The accident in question had taken place on 28.01.2014, at about 6:20 p.m., near ::: Downloaded on - 29/12/2022 20:32:38 :::CIS 3 Petrol Pump, Nanakpur, Pinjore, Tehsil Kalka, District Panchkula (Haryana). The information regarding the accident was given to Police Station Pinjore, where, a case, under Sections 279, 337, .
304-A IPC was registered against respondent No.1, vide FIR No. 26 of 2014 dated 29.01.2014. The accident, in question, had taken place, due to the rash and negligent driving of the vehicle No.HR-
03C-7666, by respondent No.1. In the said accident, Sh. Kehar Singh had sustained fatal injuries and was taken to PGI, Chandigarh, where, he had succumbed to the injuries. His postmortem examination was also conducted, vide postmortem report No.18641 at PGI, Chandigarh.
6. On the basis of above facts, the claimants have pleaded about their bright past and bleak future.
7. On all these submissions, a prayer has been made to allow the petition and to grant the compensation to the tune of Rs. 30,00,000/-, alongwith interest @ 12% per annum from the date of filing of the petition, till the realization of the whole amount.
8. When put on notice, the respondents have filed their respective replies.
9. The driver-cum-owner of the offending vehicle has filed his reply by taking the preliminary objections that the deceased himself was negligent and the claimants have suppressed the ::: Downloaded on - 29/12/2022 20:32:38 :::CIS 4 material facts regarding the contributory negligence. On merits, the factual position, regarding the accident in question and registration of FIR, has not been disputed. Reasserting his stand .
that the deceased himself was rash and negligent, it has been prayed that the claimants are not entitled for the compensation, as claimed by them, in the present lis.
10. The Insurance Company of the vehicle i.e. respondent No.2, has filed its separate reply by taking the preliminary objections, regarding the fact that respondent No.1 was not having the effective driving licence to drive the vehicle and vehicle in question was being plied in violation of terms and conditions of the Insurance policy. Like respondent No.1, a plea has also been taken that the accident in question had taken place due to rash and negligent driving of the deceased, while driving Scooter, bearing registration No.HR-49-3996. On merits, the factual position, as pleaded in the claim petition, has mainly been denied for want of knowledge.
11. The claimants have filed the rejoinder to the reply filed by respondent No.2.
12. From the pleadings of the parties, the following issues and additional issues were settled for determination and adjudication by the learned MACT vide orders dated 03.08.2016 and 11.04.2019:-
::: Downloaded on - 29/12/2022 20:32:38 :::CIS 51. Whether the accident was result of rash and negligent driving of the vehicle in question by respondent No.1 and the deceased died in the said accident?... OPP.
.
2. If issue No.1 is proved in affirmative, whether the petitioners are entitled to compensation. If so to what amount and from whom?...OPP
3. Whether the petition is not maintainable?...OPR
4. Whether the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident. If so, its effect?...OPR-2.
5. Whether the vehicle in question was being plied in violation of terms and conditions of the Insurance Policy without documents. If so, its effect?...OPR-2.
5-A Whether the vehicle No.HR-03C-7666 is not involved in the accident as alleged?...OPR-2.
6. Relief.
13. After closure of the evidence and having heard the learned counsel for the parties, learned MACT has allowed the petition, by awarding the compensation of Rs. 37,74,444/-
14. Feeling aggrieved from the said award, the Insurance Company has filed the present appeal, mainly on the ground that learned MACT has awarded the excessive amount of compensation, without there being any evidence to that effect.
15. The award has specifically been challenged on the ground that the learned MACT has wrongly applied the multiplier of "11" instead of "9" and the compensation has been awarded to the claimants, who are not dependent upon the deceased.
::: Downloaded on - 29/12/2022 20:32:38 :::CIS 616. The award has also been challenged on the ground that the reasonable opportunities to lead evidence had not been .
given to the appellant, as the requisite steps had not been taken by the appellant to summon the witnesses.
17. The learned MACT, according to the appellant, has not taken into consideration the plea of contributory negligence, in this case.
18. On all these submissions, a prayer has been made to allow the appeal, by modifying the amount of compensation, so awarded.
19. As stated above, in this case, the factum of accident, as well as, registration of the FIR against respondent No.1 has not been disputed by respondent No.1. In this background, this Court has to consider as to whether the awarded amount falls within the definition of 'just compensation.'
20. Perusal of the evidence, which has been adduced by the claimants, before the learned MACT, shows that the age of deceased has been mentioned as '55' years, at the time of his death. Claimant No.1 Inderjeet Singh, while appearing in the witness box, as PW-1, has also given the same age, in his affidavit, filed in the examination-in-chief.
::: Downloaded on - 29/12/2022 20:32:38 :::CIS 721. The factual position regarding the age of deceased has not been controverted by learned counsel appearing for the driver-
cum-owner as well as by learned counsel representing the .
Insurance Company. A factual position asserted by the witness in his examination-in-chief, if not controverted in the cross-examination, amounts to be admitted by the opposite party.
22. In the postmortem report, Ex. PW-1/C, the same age of the deceased i.e. 55 years, has been mentioned by the doctor. In the absence of any evidence, contrary to the age of the deceased, as mentioned in the petition, deposed by PW-1 as well as mentioned in the postmortem report, this Court has no legal hesitation to accept that the age of deceased-Kehar Singh at the time of his death, was 55 years and, thus, the learned MACT has rightly applied the multiplier of '11', which is the appropriate multiplier, in the present case.
23. The learned MACT has taken the earnings of the deceased, at the time of his death, as Rs. 37,000/- per month and rightly deducted 1/3rd amount of his earnings, on account of his personal expenses, had he been alive. The learned MACT has rightly added the amount, on account of his future prospects, and then concluded that the contribution of the deceased towards his family comes to Rs. 3,40,404/- per annum. Thus, the said findings of the learned MACT are not required to be interfered with.
::: Downloaded on - 29/12/2022 20:32:38 :::CIS 824. So far as the argument raised by learned counsel appearing for the Insurance Company, with regard to the reasonable opportunities to lead evidence, has not been given to it, .
is concerned, perusal of the record shows that the evidence of the claimants was closed on 06.06.2017 and thereafter, the case was adjourned for 17.07.2017 and then on 02.08.2017. On both the dates, no effective proceedings could be conducted, on account of absence of the learned Presiding Officer. On 09.08.2017, the case was adjourned for 20.09.2017, for RWs, by giving the opportunity to the respondents to obtain dasti summons. Respondent No.1 has closed his evidence on 30.11.2017 and then specific time was given to respondent No.2 to adduce the evidence by passing the order to take steps within a period of seven days.
25. On 11.04.2019, while framing the additional issues, the case was adjourned for the evidence of respondent No.2. Bare perusal of the record shows that the list of witnesses was filed, but DM was not deposited. On 01.05.2019, the following order was passed by the learned MACT:-
"No RWs on behalf of the respondent No.2 are present nor any steps taken. Adjournment sought is allowed as last opportunity. To come up for evidence of respondent No.2 on 08.05.2019. RWs be produced on self responsibility".::: Downloaded on - 29/12/2022 20:32:38 :::CIS 9
26. Thereafter, on 08.05.2019, after recording the evidence of one RW on behalf of respondent No.2-Insurance Company, the case was adjourned for 24.05.2019. Dasti summons .
were ordered to be issued and, then, on 24.05.2019, the evidence of respondent No.2 was closed, as despite sufficient opportunities granted by the learned MACT, respondent No.2 could not adduce the evidence.
27. In view of the above zimni orders, this Court is satisfied that the reasonable opportunities have already been granted by the learned MACT to respondent No.2-Insurance Company and no fault can be found in the order passed by the learned MACT for closing the evidence of respondent No.2 on 24.05.2019. The proceedings before the learned MACT are summary in nature, where the liability of tort feasor is fixed on the basis of preponderance of the probability.
28. At the cost of repetition, the learned MACT has given the sufficient opportunities to the respondents to lead the evidence. The evidence of the claimants and respondent No.2 was closed on 06.06.2017 and 24.05.2019, respectively and thereafter, the case was decided on 04.10.2019. Meaning thereby, the case remained fixed for RWs for sufficient long time.
::: Downloaded on - 29/12/2022 20:32:38 :::CIS 1029. Considering all these facts, there is no occasion for this Court to interfere with the award passed by the learned MACT. Accordingly, the award passed by the learned MACT is .
upheld and the appeal is dismissed.
Pending application(s), if any, also stand(s) disposed of.
(Virender Singh) Judge December 23, 2022 (Vinod) ::: Downloaded on - 29/12/2022 20:32:38 :::CIS