Himachal Pradesh High Court
National Insurance Company Ltd vs Dharmesh (Minor) Son on 24 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 24th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
FIRST APPEAL FROM ORDER NO. 263 of 2018
Between:
NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, HIMLAND HOTEL,
CIRCULAR ROAD, SHIMLA-1,
THROUGH ITS DIVISONAL MANAGER
....APPELLANT
(BY DR. LALIT SHARMA,
ADVOCATE)
AND
1. DHARMESH (MINOR) SON,
2. KUMARI RAMAN PREET
(MINOR) DAUGHTER,
3. SMT. PRIYANKA,
WIDOW OF SH. UJJAGAR SINGH,
S/O SH. SARADARA RAM,
ALSO MOTHER AND NATURAL
GUARDIAN OF MINOR
RESPONDENTS NO. 1 AND 2,
ALL R/O VILLAGE KISHANPURA,
PARGANA, DHARAMPUR,
TEHSIL BADDI,
DISTRICT SOLAN, H.P.
4. BHUPINDER SINGH,
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2
S/O SH. PRATAP SINGH
.
(OWNER-CUM-DRIVER OF
TRUCK NO. HP-12F-8513),
R/O VILLAGE BERSAN, PARGANA
AND TEHSIL NALAGARH,
DISTRICT SOLAN, H.P.
....RESPONDENTS
(BY MR. DINESH BHANOT,
ADVOCATE, FOR R-1 TO R-3)
Whether approved for reporting?. Yes.
r to
This appeal coming on for hearing this day, the Court passed the following:
JUDGMENT
Instant appeal filed under Section 173 of Motor Vehicles Act, 1988 (in short "the Act"), lays challenge to award dated 11.10.2017, passed by the learned Motor Accident Claims Tribunal-(II), Solan, District Solan, camp at Nalagarh, (in short "the Tribunal") in MAC Petition No.5-S/2 of 2016, titled Dharmesh and Ors. v. Bhupinder Singh and Anr, whereby the Tribunal below while allowing claim petition having been filed by the respondents-claimants (hereinafter referred to as "the claimants") under Section 166 of the Act, saddled the appellant-Insurance Company with liability to pay compensation to the tune of Rs. 15,85,000/- to the claimants alongwith interest @8% p.a. from the date of filing of the petition till deposit of the award amount on account of death of late Sh. Ujjagar Singh.
::: Downloaded on - 31/01/2022 23:07:19 :::CIS 32. Briefly stated facts, as emerge from the record, are that .
claimants No. 1 to 3, who happen to be children and widow of deceased Ujjagar Singh, preferred claim petition under Section 166 of the Act before the MACT below, seeking therein compensation to the tune of Rs.
21,00,000/- on account of death of Sh. Ujjagar Singh. Claimants averred in the petition that in the morning of 16.3.2015 at 10.45AM, when the deceased Ujjagar Singh was walking on the road side at village Manpura New Shiva Biogenetic Factory, one truck bearing registration No. HP-12F-
8513, being driven rashly and negligently by the owner cum driver, Sh.
Bhupinder Singh hit him, as a consequence of which, he sustained serious injuries. Though, at the first instance, above named person was taken to the Government Hospital Nalagarh and thereafter, was referred to PGI Chandigarh, but unfortunately, while he was on his way to PGI, he succumbed to the injuries and his dead body was again brought back to CHC Nalagarh, for postmortem. Vide FIR Ext.PW2/A, case was registered against respondent No.4. Claimants claimed that deceased was doing agricultural work and besides that he was also selling milk and as such, was earning sum of Rs. 50,000/- per month. Claimants claimed that since the offending truck was owned by respondent No.4 and was ensured with ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 4 Appellant-Insurance Company, they are liable to pay compensation to them .
being LRs of deceased Ujjagar Singh.
3. Aforesaid claim petition preferred by the Claimants came to be resisted by respondent No.4, who while taking preliminary objections of maintainability, cause of action and bad for non-joinder of necessary parties, denied the factum of accident of the offending truck on the relevant date, time and place. respondent No.4 also denied that he was driving the offending truck rashly and negligently. Appellant-Insurance Company beside raising preliminary objections of maintainability and collusiveness, claimed that offending truck was being plied in violation of terms and conditions of the insurance policy and as such, is not liable to indemnify the owner. Appellant-Insurance Company also denied accident of offending truck with deceased on the relevant date, time and place and claimed that petition being false and frivolous deserves to be dismissed.
4. On the basis of aforesaid pleadings adduced on record by the respective parties, Tribunal below framed following issues:-
"1.Whether on the morning of 16.03.2015 around 10:45 a.m at place village Manpura, Tehsil Baddi, District Solan, on the public highway, respondent No.1 was driving vehicle/truck bearing registration No. HP-12F-8513 rashly and negligently which resulted in causing death of predecessor of the petitioners Ujjagar Singh a pedestrian when he was knocked down by the aforesaid truck, as alleged? OPP.::: Downloaded on - 31/01/2022 23:07:19 :::CIS 5
2.Whether the petitioners being legal heirs/dependants are entitled .
for compensation, as prayed for? OPP.
3.Whether petition of the petitioner is not maintainable? OPR.
4.Whether the petition of the petitioner is bad for non-joinder of necessary parties. OPR-1
5.Whether the aforesaid truck was being plied in violation of terms and conditions of the insurance policy? OPR-2
6.Whether the respondent No.1 was driving the aforesaid truck without having valid driving licence? OPR-3.
7.Relief."
Learned court below on the basis of evidence led on record by the respective parties though held respondent No.4 and Appellant-Insurance Company, jointly and severely liable to pay sum of Rs.15,85,000/-
alongwith interest @8% p.a., from the date of filing of the petition till deposit, but saddled Appellant-Insurance Company with liability to pay the aforesaid amount being insurer of respondent No.1. In the aforesaid background, appellant-Insurance Company has approached this Court in the instant proceedings, praying therein to set-aside impugned award passed by the learned Tribunal below in as much as Appellant-Insurance Company has been saddled with liability to pay the compensation.
5. Having heard learned counsel for the parties and perused material available on record, this Court finds that primarily challenge to the award impugned in the instant proceedings has been laid on following two ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 6 grounds; 1., Since claimants failed to place on record Legal Heirs certificate, .
there was no occasion, if any, for the Tribunal below to award compensation in favour of the claimants on account of death of Sh. Ujjagar Singh, and; 2.
Learned Tribunal below fell in gross error while awarding excess amount of compensation while deciding issue No.2.
6. As per the claimants, amount of compensation awarded in the conventional heads is in total violation of judgment passed by the Hon'ble Apex Court in National Insurance Co. Ltd. V. Pranay Sethi and Ors, (2017) 16 SCC 680. Mr. Lalit Sharma, learned counsel representing the Appellant-Insurance Company vehemently argued that once no Legal Heir Certificate ever came to be rendered on record by the claimants, court below ought not have granted compensation in their favour being LRs of the deceased Ujjagar Singh. He further submitted that court below could not have awarded any amount on account of love and affection and amount awarded on account of loss of estate, funeral expenses and consortium is on higher side and as such, award needs to be modified in terms of law laid down by the Hon'ble Apex Court in Pranay Sethi's case supra. Lastly, Mr. Lalit Sharma, argued that since deceased was not in government service, court could not have granted addition of 50% on account of future prospects, rather addition on account of future prospects, could be made ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 7 by an addition of 40% keeping in view the age of the deceased as well as his .
being self employed.
7. Mr. Dinesh Bhanot, learned counsel representing the respondents-claimants supported the impugned award and claimed that there is no illegality and infirmity in the same and same is based upon the proper appreciation of the evidence as well as law laid down by the Hon'ble Apex Court in various judgments as have been taken note by the learned Tribunal below while passing the impugned judgment.
8. Claim petition having been filed by the claimants clearly suggests that claimants No. 1 and 2 are minor children of late Sh. Ujjagar Singh, whereas Smt. Priyanka is his widow. Claimants claimed in the claim petition that they being LRs of Deceased are entitled to compensation to the tune of Rs. 21,00,000/- In paras 18 to 20, claimants besides disclosing their relationship with the deceased have categorically claimed themselves to be class-I heirs of the deceased and as such, it is not understood that on what basis, it is being claimed by the Appellant-
Insurance Company that since claimants failed to place on record Legal Heir Certificate, no amount could be awarded in their favour. Moreover, plea of Legal Heir Certificate raised at this stage never came to be raised by way of written statement filed by the Appellant-Insurance Company nor ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 8 suggestion, if any, was put to the claimants. Otherwise also, claimants by .
making specific averment in the claim petition that they are legal heirs of the deceased had discharged their onus as far as they are entitled to the compensation on account of death of late Sh. Ujjagar Singh, being his LRs is concerned. Reply to paras 18 to 20 of the petition, wherein factum with regard to relationship of the claimants with the deceased as well as their entitlement to the compensation being his Legal Heir has been specifically pleaded by the claimants, nowhere suggests that specific denial, if any, ever came to be made on behalf of the Appellant-Insurance Company, rather Appellant-Insurance Company while denying the same for want of knowledge specifically pleaded that claimants be put to the strict proof to prove the contents of these paras. Besides above, as has been taken note herein above, no suggestion worth the name ever came to be put to the claimants or their witnesses with regard to their being LRs, if any, of deceased Ujjagar Singh. This court is of the view that claimants while specifically pleading that they are legal Heirs of the deceased had discharged their onus and now, it was upon the Appellant-Insurance Company to rebut the same by leading cogent and convincing evidence, if it was not convinced that the claimants are the Legal Heirs of the deceased ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 9 Ujjagar Singh. Hence, no interference in the impugned award is called for .
on the aforesaid ground.
9. Since there is no specific challenge laid to the findings rendered by the Tribunal below qua the rash and negligent driving of respondent No.4 as well as death of deceased Ujjagar Singh on account of his having suffered injuries in the alleged incident, there is no occasion for this court to deal with that aspect of the matter. Similarly, this court finds that no challenge has been laid to the loss of dependency calculated by the Tribunal below on the basis of monthly income i.e. 7000 pm, and as such, this court needs not to elaborate/touch upon that aspect at this stage.
However, having carefully perused judgment rendered by the Hon'ble Apex Court in Pranay Sethi's case, this court finds force in the submission of Dr. Lalit Sharma, learned counsel representing the Appellant-Insurance Company that Tribunal below has erred in awarding certain amounts under the conventional heads. The Hon'ble Apex Court in its judgment rendered in National Insurance Co. Ltd. V. Pranay Sethi and Ors, (2017) 16 SCC 680 has held that no amount, if any, can be awarded under the head of loss of love and affection and as such, award made in this regard by the learned Tribunal below needs to be modified. Para 59 of Pranay Sethi's judgment reads as under:-
::: Downloaded on - 31/01/2022 23:07:19 :::CIS 10"59. In view of the aforesaid analysis, we proceed to record .
our conclusions:-
59.1. The two-Judge Bench in Santosh Devi 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, 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.
59.2 As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
59.3 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 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4 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 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.::: Downloaded on - 31/01/2022 23:07:19 :::CIS 11
59.5 For determination of the multiplicand, the deduction .
for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
59.6 The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
59.7 The age of the deceased should be the basis for applying the multiplier.
59.8 Reasonable figures on conventional heads, namely, loss of 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% in every three years."
10. As per the aforesaid judgment of Hon'ble Apex Court, 40% of addition is required to be made in the case of person, who was in private employment and if his age was less than the age of 40. In the case at hand, admittedly, deceased was not in government service, rather he was doing his private/agricultural work and as such, Tribunal below erred in making addition of 50% on account of future prospects. On this aforesaid count, award also deserves to be interfered
11. Similarly, this court finds that on account of funeral expenses and loss of estate, only sum of Rs. 15,000/- could be awarded, whereas in the instant case, Tribunal below has awarded sum of Rs. 1,00,000/- on ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 12 account of loss of consortium and loss of estate and sum of Rs. 25000/- on .
account of funeral expenses. On account of loss of consortium, only sum of Rs. 40,000/- could be awarded to the wife of the deceased as espousal consortium. No sum on account of loss of affection to the minor children i.e. claimants No. 1 and 2 could be awarded and as such, on the aforesaid these counts, award needs to be modified accordingly.
12. While placing reliance upon latest judgment passed by the Hon'ble Apex Court in case titled The New India Assurance Co. Ltd. V. Smt. Somwati and Ors, in Civil appeal No. 3093 of 2020 (a/w connected matters), Mr. Dinesh Bhanot, learned counsel representing the claimants submitted that sum of Rs. 40,000/- each, is also required to be awarded in favour of claimants No. 1 and 2 being filial consortium.
Otherwise also, Hon'ble Apex Court in its judgment rendered in case titled Magma General Insurance Co. Ltd. V. Nanu Ram alias Chuhru Ram and Ors, (2018) 18 SCC 130, which has been also taken note of, in Somwati's case, has laid down that consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. Having taken note of the aforesaid judgment rendered by Three-Judge Bench of the Hon'ble Apex Court in Magma General ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 13 Insurance's case (supra), the Hon'ble Apex Court in its latest judgment .
passed in Somwati's case (supra) has held as under :-
"35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.
36. The word 'consortium' has been defined in Black's law Dictionary, 10th edition. The Black's law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:-
"Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium.
Filial consortium A child's society, affection, and companionship given to a parent.
Parental consortium A parent's society, affection and companionship given to a child.
Spousal consortium A spouse's society, affection and companionship given to the other spouse."
37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-
Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), 'consortium' to all the three claimants was thus awarded. Paragraph 87 is quoted below:-
"87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-
i) Loss of Estate: Rs. 15,000
ii) Loss of Consortium:
a) Spousal Consortium: Rs.40,000 ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 14
b) Parental Consortium: 40,000 x 3 = Rs.
.
1,20,000
iii) Funeral Expenses: Rs. 15,000"
38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss of consortium' but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.
39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.
40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head 'loss of love and affection'. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head 'loss of love and affection."
13. At this stage, learned counsel for Appellant-Insurance Company vehemently argued that no amount, if any, can be awarded in the appeal filed by the Appellant-Insurance Company in favour of the claimants, especially when no cross appeals, praying therein for enhancement of compensation have been filed by the claimants. However, this Court is not in agreement with the aforesaid submissions having been ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 15 made on behalf of the Appellant-Insurance Company. On the issue of .
power of appellate court to make an additional award, reference is made to Ranjana Prakash and Ors. V. Divisional manager and Ors (2011) 14 SCC 639, whereby it has been held that amount of compensation can be enhanced by an appellate court while exercising powers under Order 41 Rule 33 CPC, relevant para of the aforesaid judgment is reproduced herein below:
"Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer."
14. It is quite apparent from the aforesaid judgment rendered by the Hon'ble Apex Court that this Court while exercising power under Order 41 Rule 33 CPC can proceed to award compensation even in those cases, where no cross appeals have been filed. It is not in dispute that learned ::: Downloaded on - 31/01/2022 23:07:19 :::CIS 16 Tribunal below while passing impugned award has not awarded amount, if .
any, on account of loss of estate and espousal consortium as well as filial consortium to claimant No.1 to 3 and as such, award to that extent needs to be modified.
15. In view of the discussions made supra and the law laid down by Hon'ble Apex Court in the afore-cited judgments, this Court deems it fit to modify the award passed by learned Tribunal below as under:
Head Amount in
Rs.
1
Monthly income (per 7,000
month)
2 Future prospects, 40% 9,800
Addition (7,000+2800)
3 As deceased has left 6,600
behind three legal heirs,
1/3rd of (i) and (ii)
deducted as personal
expenses of deceased i.e.
3200 (9800-3200)
4 Compensation after 11,88,000
multiplier of 15 is
applied (6600 x 12x 15)
5 Loss of consortium i.e. 1,20,000
Rs. 40,000 each in
favour of the claimants
(40,000x3)
6 loss of estate (in favour 15,000
of wife)
7 Funeral expenses 15,000
8. Total compensation 13,61,400/-
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17
.
16. This Court, however, does not see any reason to interfere with the rate of interest awarded on the amount of compensation and multiplier applied, and as such, same are upheld.
17. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is partly allowed and impugned award passed by learned Tribunal below is modified to aforesaid extent only. Accordingly, present appeal is disposed of, alongwith all pending applications, if any. Interim directions, if any, are vacated.
24th September, 2021 (Sandeep Sharma),
(manjit) Judge
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