Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Ms. Chhama Devi And Others on 25 May, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO No. 2 of 2013 a/w FAO No. 1/2013 and C.O. No.4027/2013, FAO Nos. 3, 4, 5 and 6 of 2013, FAO Nos. 133 and 134 of 2016.
Judgment reserved on: 9.5.2018 Date of decision: 25th May, 2018.
1. FAO No. 2 of 2013 Oriental Insurance Company Ltd.
r ...... Appellant
Versus
Ms. Chhama Devi and others ..... Respondents
2. FAO No. 1 of 2013 & C.O. No.4027/2013
Oriental Insurance Company Ltd. ...... Appellant
Versus
Ms. Chhama Devi and others ..Cross-Objectors/Respondent
3. FAO No. 3 of 2013
Oriental Insurance Company Ltd. ...... Appellant
Versus
Ms. Chhama Devi and others ..... Respondents
4. FAO No. 4 of 2013
Oriental Insurance Company Ltd. ...... Appellant
Versus
Smt. Kaushalya Devi and others ..... Respondents
5. FAO No. 5 of 2013
Oriental Insurance Company Ltd. ...... Appellant
Versus
Ms. Minakshi and others ..... Respondents
6. FAO No. 6 of 2013
Oriental Insurance Company Ltd. ...... Appellant
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Versus
Smt. Jaiwanti and others ..... Respondents
7. FAO No. 133 of 2016
.
Oriental Insurance Company Ltd. ...... Appellant
Versus
Smt. Meena Devi and others ..... Respondents
8. FAO No. 134 of 2016
Oriental Insurance Company Ltd. ...... Appellant
Versus
Sh. Nihal Singh and others ..... Respondents
For the appellant(s) : Mr. Lalit K. Sharma, Advocate, in all the appeals.
For the respondents : Mr. Naveen K. Bhardwaj, Advocate, for the respondents-claimants.
Ms. Suchitra Sen, Advocate, for
respondent-owner.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1Tarlok Singh Chauhan, Judge The common thread that connects all these appeals and cross objections are that, all arise out of an accident, which took place on 15.6.2010 wherein some of the passengers lost their lives, while some of them sustained injuries.
2. The claim petitions filed by the claimants were allowed by the learned Tribunal below and the awards so passed have been assailed by the Insurance Company. Except in FAO No. 1 of 2013, none of the claimants have preferred the cross-objections.
3. Apart from the above, the common case as pleaded by the claimants was that the accident in question was a direct result of rash Whether the reporters of the local papers may be allowed to see the Judgment?yes ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...3...
and negligent driving on the part of its driver Tulsi Ram alias Pushp Raj, who also died in the accident.
.
4. As regards the owner of the vehicle, his defence was that there was no rash and negligent driving on the part of the driver and the same occurred on account of sudden malfunctioning of the steering wheel of the vehicle.
5. Insofar as the Insurance Company is concerned, it had resisted all the claim petitions on the ground that the driver of the vehicle was not having valid and effective driving licence at the time of the accident and the vehicle was being plied in violation of the terms and conditions of the Insurance Policy as well as the provisions of the Motor Vehicles Act and, therefore, the claimants were also not entitled to be indemnified by the insurance company, even though, the vehicle in question was duly insured with it.
6. The Insurance Company has filed the instant appeals assailing the award mainly on the ground that in the FIR registered by Gauri Parshad, it was specifically mentioned that there were 14 persons travelling in the vehicle, whereas as per the Registration Certificate, the seating capacity of the vehicle was 10 (9+1). That apart, even the insurance policy indicated that the Insurance Company had covered the risk of 9+1 persons on board and thus on the face of this evidence, the learned Tribunal below could not have passed the impugned awards. It is further averred that the accident had occurred on account of malfunctioning of the steering wheel of the vehicle, which obviously was a direct result of over-loading of the vehicle and once this fact is proved, then the Insurance Company cannot be held liable for any liability ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...4...
exceeding over and above the insurance cover and the same is to be borne by the owner. Apart from that, it is averred that the award passed .
is excessive and, therefore, is required to be reduced so as to bring out in conformity with law.
7. Since the question of liability of Insurance Company is common in all the cases, therefore, I would first deal with this aspect of the matter and only thereafter consider the quantum of compensation as the same would have to be worked out individually in all the cases.
8. As regards the contention regarding the steering wheel of the vehicle having suddenly stopped working, this was the precise defence taken by the Insurance Company as also the owner of the vehicle. However, save and except for the bald statement of the owner of the vehicle, neither the owner nor the Insurance Company has led any clear, cogent and convincing evidence in furtherance of their defence.
They did not even bother to place on record any mechanical report which could suggest or prove their defence, more particularly, when the onus to prove this fact was upon them.
9. On the other hand, the author of the FIR has stepped into the witness box and stated that the accident had taken place because of the rash and negligent driving on the part of its driver, who unfortunately died in the accident. This FIR was lodged promptly ruling out any manipulation or deliberation therein and in such circumstances, the learned Tribunal below has correctly concluded that the accident in question had taken place due to rash and negligent driving of the driver of vehicle No. HP-01M-4006.
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10. As regards the contention that the Insurance Company would only be liable to indemnify the owner with respect to 9+1 .
claimants, suffice it to say that this was not the defence taken by the Insurance Company before the learned Tribunal below nor had it claimed any issue regarding the same.
11. Even otherwise, the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. Reference in this regard can be made to a decision rendered by this Court in Oriental Insurance Company Ltd. vs. Shri Hitender Singh and others Latest HLJ 2016 (HP) 1167, wherein it was held as under:
"9. The insurer has failed to prove that the accident was outcome of overloading. It is beaten law of the land that overloading cannot be a ground to seek exoneration.
10. The Apex Court in the case titled as National Insurance Company Limited versus Anjana Shyam & others, reported in 2007 AIR SCW 5237 has laid down the same principles of law. It is also apt to reproduce para 15 of the judgment, herein:
"15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...6...
insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the .
contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
11. This Court in batches of appeals, FAO No. 257 of 2006 titled as National Insurance Company Ltd. versus Smt. Sumna @ Sharda & others, being the lead case, decided on 10.04.2015, FAO No. 224 of 2008, titled as Hem Ram & another versus Krishan Chand & another, being the lead case, decided on 29.05.2015, and FAO No. 256 of 2010 titled Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.6.2015, has laid down the same principle, which is not disputed by the learned counsel for the insurer.
12. The apex Court in case titled Lakhmi Chand versus Reliance General Insurance Co. Ltd. reported in (2016) 3 SCC 100, held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...7...
damage caused to the vehicle. It is apt to reproduce para 14 of the said judgment herein.
.
"14. The National Commission upheld the order of dismissal of the complaint of the appellant passed by the State Commission. The National Commission however, did not consider the judgment of this Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan[3]. In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance company was rejected. This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. This Court in the said case has held as under:-
"It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying.
In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...8...
so fundamental in nature so as to put an end to the contract, unless some factors existed which by .
themselves, had gone to contribute to the causing of the accident."
12. Thus, on the basis of the aforesaid discussion, I have no hesitation to conclude that the accident in question took place only on account of the rash and negligent driving of the driver of vehicle No. HP-
01M-4006 which was duly insured with the appellant and, therefore, it is liable to indemnify the owner of the liability that would virtually be fastened upon him.
13. As observed earlier, in this batch of appeals, FAO Nos. 1, 2, 3, 4, 5, 6 of 2013 and FAO Nos. 133 and 134 of 2016 are the cases of fatal accident and the claim petitions have been filed by their legal representatives/dependents and some of the passengers in these cases have lost their lives, while some of them have sustained injuries. As regards the passengers, who lost their lives, their dependents/legal representatives would now be required to be compensated in terms of the dictum of the Constitution Bench judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
14. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-
1 of the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two-Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...9...
Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
.
15. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire r to conspectus of law arrived at the following conclusions:-
"i) The two-Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation.
The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
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(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss to .
estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
16. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are self-
speaking.
17. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus:-
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...11...
of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his .
own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-
earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M- 9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used envisaged adopted in Trilok second in Second in Susamma Trilok Chandra as column in Schedule to Thomas Chandra clarified in the Table in MV Act (as Charlie Second seen from the Schedule to quantum of MV Act compensation ) (1) (2) (3) (4) (5) (6) Up to 15 - - - 15 20 years 15 to 20 16 18 18 16 19 years 21 to 25 15 17 18 17 18 ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...12...
years 26 to 30 14 16 17 18 17 years .
31 to 35 13 15 16 17 16years 36 to 40 12 14 15 16 15 years 41 to 45 11 13 14 15 14 years 46 to 50 10 12 13 13 12 years 51 to 55 9 11 11 11 10 years 56 to 60 8 10 9 8 8 years 61 to 65 6 8 7 5 6 years Above to 65 5 5 5 5 5 years
18. It would be noticed that except for one case being FAO No. 1 of 2013 cross-objections have been filed and in other cases, the claimants have not assailed the award by filing cross-objections or by filing separate appeals. But then, the law laid down by the Hon'ble Supreme Court is binding on this Court as per Article 141 of the Constitution of India and moreover, this Court in exercise of its power under Order 41 Rule 33 can always apply the appropriate multiplier.
19. Order 41 Rule 33 of the Code of Civil Procedure reads as under:-
"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised In favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...13...
have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such .
decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."
20. It cannot be disputed that the object of the aforesaid rule is to empower the Appellate Court to do complete justice between the parties. This rule gives the Court ample power to make an order appropriate to meet the ends of justice. It enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. The necessary condition for exercising the power under the rule is that the parties to the proceedings are before the Court and the question raised properly arises out of the judgments of the lower Court. In that event, the Appellate Court can consider any objection to any part of the order or decree of the Court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised and each case therefore must depend upon its own facts. Although, the general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily, the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. But in exceptional cases, the rule enables the Appellate Court to pass such decree or order as sought to have been ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...14...
passed even if such decree or order would be in favour of parties who have not filed any appeal.
.
21. The scope of the rule has repeatedly came up for consideration before the Hon'ble Supreme Court, but I need only refer to the judgment rendered in Pralhad and others vs. State of Maharashtra and another (2010) 10 SCC 458 wherein it was held:
"18.
The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass, or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provisions, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modeled on Order 59 Rule 10 (4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.
20. In Banarsi vs. Ram Phal (2003) 9 SCC 606, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate Court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of the appeal or who has filed the appeal ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...15...
or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to .
avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p. 619, para 15 : AIR para 15 at p. 1997).
It has also been held by this Court in Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 SCC (para 21), that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict.
22. In view of the aforesaid interpretation given to Order 41 Rule 33 CPC by this Court, we are of the opinion that the High Court denied the relief to the appellants to which they are entitled in view of the Constitution Bench decision in K.S. Paripoornan vs. State of Kerala, (1994) 5 SCC 593.by taking a rather restricted and narrow view of the scope of Order 41 Rule 33 CPC and also on a misconstruction of the ratio in Paripoornan."
22. As regards conventional charges, now in terms of the judgment in Pranay Sethi's case (supra), only reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses @ Rs.15,000/- Rs.40,000/- and Rs.15,000/-
respectively can be awarded. In such circumstances, the award as passed by the learned Tribunal is required to be modified as under:-
(i) FAO No. 2 of 2013:
Sr.No Award passed by the Tribunal Modified Award by this Court
Details/Particulars Details/Particulars
(i) Age of the deceased: 48 years
(ii) Assumed salary plus future Modified proved salary plus future
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prospects: Rs.3,500+0=Rs.3,500/- prospects: Rs.3,500+25% (3500+ 875)
=4,375/-
Annual: Rs.4,375x 12= Rs.52,500/-
.
(iii) After deduction of 1/3rd of After deduction of 1/3rd of Rs.52,500 :
Rs.3,500/- = Rs.2400/- = Rs.35,000/- per annum.
(iv) Annual: Rs.2400x12=Rs.28,800/-
(v) Multiplier of 13: Multiplier of 13: Rs.35,000 x13
Rs.28,800x13=Rs.3,74,400/- =Rs.4,55,000/-
(vi) Loss of contribution towards family Loss of consortium = Rs.40,000/-
=Rs,3,74,400/-
(vii) Funeral expenses: Rs.5,000/- Funeral expenses: Rs.15,000/-
(viii) Loss to estate = Rs.25,000/- Loss to estate : Rs.15,000/-
(ix) Total Award: Rs.4,04,400/- plus Total Modified Award: Rs.5,25,000/-
interest @ 7.5% per annum from plus interest @ 7.5% per annum from
the date of filing of the petition the date of filing of the petition i.e.
i.e. 27.7.2010. 27.7.2010.
Ordered accordingly.
(ii) FAO No. 1 of 2013 & C.O. No. 4027 of 2013
23. The only claimants Chhama Devi and Meena Devi were held to be the legal representatives of deceased Sh.Chand, whereas the claimants Kaushalya Devi, Monika and Minakshi were not dependent on the income of the deceased as per the decision of the Hon'ble Supreme Court in 2007 (3) ACC 365 case titled Manjuri Bera vs. Oriental Insurance Company. It is held therein that 'legal representative is one who suffers on account of death of a person due to Motor Vehicle Accident' and, therefore, in terms of the aforesaid ratio, the claimants No.3 to 5 were rightly held to be not entitled to the compensation.
However, in terms of Manjuri Bera's case itself, even if the claimants are not proved to be the dependent on the earning of the deceased, liability in terms of Section 140 of the Motor Vehicles Act does not ceases because of absence of dependency and quantum cannot be less than the liability referred under Section 140 of the Motor Vehicles Act.
As against the conventional amounts, the claimants now would be entitled to the following amounts:
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Sr.No Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars
(i) Loss of Estate Rs. 50,000/- Rs. 15,000/-
.
(ii) Funeral charges Rs.5,000/- Rs. 15,000/-
(iii) Loss of consortium = Nil. Rs.40,000/-
Total Award: Rs.55,000/- plus Total modified award Rs.70,000/- plus interest @ 7.5% per annum from interest @ 7.5% per annum from the the date of filing of the petition i.e. date of filing of the petition i.e. 27.7.2010. 27.7.2010.
Ordered accordingly. In view of the above, the appeal filed by the appellant-Insurance Company is dismissed and the cross-
(iii) FAO No. 3 of 2013:
r to objections filed by the claimants are partly allowed.
Sr.No Award passed by the Tribunal Modified Award by this Court
Details/Particulars Details/Particulars
(i) Age of the deceased: 46 years
(ii) Assumed salary plus future Modified proved salary plus future
prospects: Rs.3,000+0=Rs.3,000/- prospects: Rs.3,000+25% (3000+ 750) =3,750/-
Annual: Rs.3,750x 12= Rs.45,000/-
After deduction of 1/3rd of After deduction of 1/3rd of Rs.45,000 :
(iii) Rs.3,000/- = Rs.2000/- = Rs.30,000/- per annum.
(iv) Annual: Rs.2000x12=Rs.24,000/-
(v) Multiplier of 13: Multiplier of 13: Rs.30,000 x13
Rs.24,000x13=Rs.3,12,000/- =Rs.3,90,000/-
(vi) Loss of contribution towards family Loss of consortium = Rs.40,000/-
=Rs,3,12,000/-
(vii) Funeral expenses: Rs.5,000/- Funeral expenses: Rs.15,000/-
(viii) Loss to estate = Rs.25,000/- Loss to estate : Rs.15,000/-
(ix) Total Award: Rs.3,42,000/- plus Total Modified Award: Rs.4,60,000/-
interest @ 7.5% per annum from plus interest @ 7.5% per annum from
the date of filing of the petition the date of filing of the petition i.e.
i.e. 27.7.2010. 27.7.2010.
Ordered accordingly.
(iv) FAO No. 4 of 2013:
Sr.No Award passed by the Tribunal Modified Award by this Court
Details/Particulars Details/Particulars
(i) Age of the deceased: 32 years
(ii) Assumed salary plus future Modified proved salary plus future
prospects: Rs.3,500+0=Rs.3,500/- prospects: Rs.3,500+40% (3500+ 1400) =4,900/-
Annual: Rs.4,900x 12= Rs.58,800/-
(iii) After deduction of 1/3rd of After deduction of 1/4th of Rs.58,800 :
Rs.3,500/- = Rs.2400/- = Rs.44,100/-
(iv) Annual: Rs.2400x12=Rs.28,800/-
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(v) Multiplier of 16: Multiplier of 16: Rs.44,100 x 16
Rs.28,800x16=Rs.4,60,800/- =Rs.7,05,600/-
(vi) Loss of consortium =Rs.25,000/- Loss of consortium = Rs.40,000/-
.
(vii) Funeral expenses: Rs.5,000/- Funeral expenses: Rs.15,000/-
(viii) Loss to estate = Rs.25,000/- Loss to estate : Rs.15,000/-
(ix) Total Award: Rs.5,15,800/- plus Total Modified Award: Rs.7,75,600/-
interest @ 7.5% per annum from plus interest @ 7.5% per annum from
the date of filing of the petition the date of filing of the petition i.e. i.e. 27.7.2010. 27.7.2010.
Ordered accordingly.
(v ) FAO No. 5 of 2013:
Sr.No
(i)
(ii) r to Award passed by the Tribunal Details/Particulars Age of the deceased: 23 years Modified Award by this Court Details/Particulars Assumed salary plus future Modified proved salary plus future prospects: Rs.3,000+0=Rs.3,000/- prospects: Rs.3,000+40% (3000+ 1200) =4,200/-
Annual: Rs.4,200x 12= Rs.50,400/-
(iii) After deduction of 1/3rd of After deduction of 1/3rd of Rs.50,400 :
Rs.3,000/- = Rs.2000/- = Rs.33,600/- per annum.
(iv) Annual: Rs.2000x12=Rs.24,000/-
(v) Multiplier of 18: Multiplier of 18: Rs.33,600 x 18
Rs.24,000x18=Rs.4,32,000/- =Rs.6,04,800/-
(vi) Loss of consortium =Rs.25,000/- Loss of consortium = Rs.40,000/-
(vii) Funeral expenses: Rs.5,000/- Funeral expenses: Rs.15,000/-
(viii) Loss to estate = Rs.25,000/- Loss to estate : Rs.15,000/-
(ix) Total Award: Rs.4,87,000/- plus Total Modified Award: Rs.6,74,800/-
interest @ 7.5% per annum from plus interest @ 7.5% per annum from
the date of filing of the petition the date of filing of the petition i.e. i.e. 27.7.2010. 27.7.2010.
Ordered accordingly.
(vi) FAO No. 6 of 2013.
24. Admittedly in this case the deceased was minor of 17 years of age. In the case of Kishan Gopal and another vs. Lala and others (2014) 1 SCC 244, the Hon'ble Supreme Court had awarded a sum of `4,50,000/- for the death of a minor child aged about 10 years. The accident in that case had taken place on 19.7.1992, whereas the accident in the instant case had taken place on 15.6.2010.
25. Therefore, keeping in view the entirety of the facts and circumstances of the case, more particularly the high cost of living and inflation, I am of the considered view that the ends of justice would be ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...19...
subserved in case the award, as passed by the learned Tribunal, is modified and the petitioners are held entitled to a sum of `6,75,000/-
.
plus interest @ 7.5% per annum from the date of filing of the petition i.e. 27.7.2010.
(vii) FAO No. 133 of 201626. Now, adverting to the case where the claimants have sustained injuries, it would first be necessary to advert to the principles with regard to the compensation for injuries. The law in this regard is well settled and reference can conveniently be made to the decision of the Hon'ble Supreme Court in Raj Kumar vs. Ajay Kumar and another (2011) 1 SCC 343, wherein it was held as under:
"19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability.
The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...20...
depending upon the nature of profession, occupation or job, age, education and other factors."
.
27. In assessing the compensation payable the settled principle needs to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. This was so held in a recent decision rendered by three Hon'ble Judge Bench of the Hon'ble Supreme Court in Jagdish vs. under:
r to Mohan and others AIR 2018 SC 1347, wherein it was observed as "8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together with its amenities;
(iv) Medical expenses including those that the victim may
be required to undertake in future; and
(v) Loss of expectation of life.
In Sri Laxman alias Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd, 2011 12 Scale 658, this Court held:
"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...21...
suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life .
and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."
In K Suresh v New India Assurance Company Ltd., 2012 12 SCC 274 , this Court adverted to the earlier judgments in Ramesh Chandra v Randhir Singh, 1990 3 SCC 723 and B Kothandapani v Tamil Nadu State Transport Corporation Limited, 2011 6 SCC 420. The Court held that compensation can be granted for disability as well as for loss of future earnings for the first head relates to the impairment of a person's capacity while the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself.
In Govind Yadav v New India Insurance Company Limited, 2011 10 SCC 683 , this Court adverted to the earlier decisions in R D Hattangadi v Pest Control (India) (Pvt) Ltd., 1995 1 SCC 551, Nizam's Institute of Medical Sciences v Prasanth S. Dhananka, 2009 6 SCC 1,Reshma Kumari v Madam Mohan, 2009 13 SCC 422 , Arvind Kumar Mishra v New India Assurance Company Limited, 2010 10 SCC 254 , and Raj Kumar v Ajay Kumar, 2011 1 SCC 343, and held thus:
"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...22...
enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." (Id at page .
693).
These principles were reiterated in a judgment of this Court in Subulaxmi v MD Tamil Nadu State Transport Corporation, Civil Appeal No. 7750 of 2012, decided on 1 November, 2012 (Reported in 2012 AIR SCW 5945) delivered by one of us, Justice Dipak Misra (as the learned Chief Justice then was)."
28. Similar reiteration of law can be found in another recent judgment delivered by the same Bench on the same date i.e. 6.3.2018 in ICICI Lombard General Insurance Company Limited vs. Ajay Kumar Mohanty and another (2018) 3 SCC 686, wherein it was observed as under:
"8. In arriving at the quantification of compensation, we must be guided by the well settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the person's capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.
9. In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd, (2011)10 SCC 756, this Court held thus: (SCC p.762, para 15) "15. "The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...23...
life and enjoy amenities, which he would have enjoyed but for the disability caused due to the .
accident."
10. In Govind Yadav v New India Insurance Company Limited, 2011 10 SCC 683, this Court after referring to the pronouncements in R.D. Hattangadi v Pest Control (India) (P) Ltd., 1995 1 SCC 551, Nizam's Institute of Medical Sciences v Prasanth S. Dhananka, 2009 6 SCC 1, Reshma Kumari v Madam Mohan, 2009 13 SCC 422, Arvind Kumar Mishra v New India Assurance Co. Ltd., 2010 10 SCC 254, Raj Kumar v Ajay Kumar, 2011 1 SCC 343 held thus: (Govind Yadav Case, SCC p. 693, para 18) "18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities which he would have enjoyed but for the disability caused due to the accident."
These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v MD Tamil Nadu State Transport Corporation, 2012 10 SCC 177."
29. In the claim petition filed by the petitioner, she has sought compensation to the tune of Rs.15,00,000/- on account of the injuries ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...24...
sustained by her in the accident. The petitioner pleaded that she remained admitted in Zonal Hospital, Mandi w.e.f. 16.6.2010 to .
25.6.2010 for the treatment of injuries sustained by her in the accident.
She further alleged that on account of the accident, her pregnancy got terminated. The learned Tribunal below awarded following compensation under the non-pecuniary loss:
Sr.No 1. Non-Pecuniary Loss Amount awarded by the learned Tribunal.
(i). Pain and suffering Rs. 1,00,000/-
(ii) Loss of enjoyments of life Rs. 25,000/-
(iii). Shortened expectation of life. Rs. Nil.
2. Pecuniary Damages:
(i) Loss of earning and earning Rs. 25,000/-
capacity
(ii) Medical expenses Rs. NIL
Misc. Charges
(i) Taxi Charges Nil.
(ii)
Special Diet and attendant charges Rs. 15,000/-
Total Compensation: Rs.1,65,000/-
30. It is vehemently contended by Mr. Lalit K. Sharma, learned counsel for the appellant that the compensation awarded by learned Tribunal below in absence of any proof, is very much on the higher side.
However, I find myself unable to agree with this submission, more particularly, when the appellant has not questioned the findings of the learned Tribunal below with regard to the termination of the pregnancy of the claimant in the accident in question.
31. Apart from the above, once it was established on record that the petitioner/claimant remained admitted in the hospital w.e.f.
16.6.2010 to 25.6.2010, obviously she would have incurred a considerable amount towards medical expenses and other miscellaneous expenses for which no compensation has been awarded by the learned Tribunal below.
::: Downloaded on - 26/05/2018 23:01:28 :::HCHP...25...
32. Therefore, in the given facts and circumstances, it cannot be said that the compensation of Rs.1,65,000/- as awarded by the .
learned Tribunal below is on the higher side. This Court cannot be unmindful of the fact that in such like cases it is difficult to assess the exact amount of compensation for pain and agony suffered by the claimant. No amount of money can restore of physical frame of the claimant i.e. why it has been stated by the Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "as far as the money can compensate" because it is impossible to equate human sufferings or personal deprivation with money.
33. Even otherwise, in similar facts and circumstances, the Hon'ble Supreme Court in National Insurance Company Limited vs. Kusuma and another (2011) 13 SCC 306 has awarded a consolidated amount of Rs.1,80,000/- towards pain and suffering as also for the loss of unborn child.
(viii) FAO No. 134 of 201634. Once, it is not in dispute that the claimant remained admitted in Zonal Hospital, Mandi w.e.f.16.6.2010 to 24.6.2010, then obviously, he would have incurred expenditure towards medication apart from other miscellaneous charges under which head, no amount has been awarded in favour of the claimant.
35. Now, taking into consideration the entire facts and circumstances of the case, an amount of Rs.50,000/- as compensation awarded by the learned Tribunal below on account of the injuries ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP ...26...
sustained by the claimant, cannot be said to be in any manner excessive.
.
36. In view of the aforesaid discussion, all the appeals (FAO Nos. 1, 2, 3, 4, 5, 6 of 2013 and FAO Nos. 133 and 134 of 2016 filed by the appellant-Insurance Company and the cross-objection No. 4027 of 2013 are disposed of in the aforesaid terms, leaving the parties to bear their own costs. Registry is directed to place a copy of this judgment on the files of connected matters.
( Tarlok Singh Chauhan ) th 25 May, 2018. Judge (GR) ::: Downloaded on - 26/05/2018 23:01:28 :::HCHP