Punjab-Haryana High Court
Mandeep & Anr vs New India Assurance Co & Ors on 2 March, 2020
Equivalent citations: AIRONLINE 2020 P AND H 194
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.5125 of 2014 (O&M)
DATE OF DECISION: 02.03.2020
Mandeep and another .....Appellants
versus
The New India Assurance Company Ltd. and others
.....Respondents
C.M. No.11336-CII-2017 and
FAO No.3483 of 2017 (O&M)
Sayra
.....Appellant
versus
Mandeep and others
.....Respondents
CORAM:- HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr. Ashish Gupta, Advocate for the appellants in
FAO No.5125 of 2014
Mr. Farukh Abdullah, Advocate for the appellant in
FAO No.3483 of 2017
Mr. Radhey Shyam Sharma, Advocate for Insurance
Company
..
ALKA SARIN, J.:
This order shall dispose of the abovementioned two appeals bearing FAO No.5125 of 2014 preferred by the driver and owner and FAO No.3483 of 2017 preferred by the claimant against the award dated 04.03.2014. The appeal by the driver and the owner has been filed on the ground that the Insurance Company has wrongly been exonerated and the liability has been fastened on the driver and the owner while the claimant, dissatisfied with the compensation awarded, has preferred the appeal.
The facts relevant to the present case are that on 02.01.2013 at about 2 o'clock the deceased Aftab and the 1 of 7 ::: Downloaded on - 15-03-2020 06:01:09 ::: FAO No.5125 of 2014 & - 2 - FAO No.3483 of 2017 driver, namely, Saheed were performing their respective duties on vehicle bearing registration No. HR-55-E-1101. The deceased Aftab, who was conductor of the said vehicle, was removing stones from the tyre near Village Atta in the area of Police Station Rozka-Meo when vehicle bearing registration No. HR-74- A-0245, which was being driven by respondent No.1 (in FAO No.3483 of 2017) in a rash and negligent manner, came from behind and struck against the deceased Aftab, as a result of which Aftab received multiple grievous injuries and died on the spot. An FIR was registered regarding the said accident. A claim petition was filed by the parents and siblings of Aftab. In the claim petition, it was stated that Aftab was working as a conductor and was earning Rs.10,000/- per month and that all the claimants were dependent upon the deceased. It had further been stated that an amount of Rs.60,000/- had been spent on transportation of the dead body and last rites of the deceased.
Upon notice, respondent Nos.1 and 2 (in FAO No.3483 of 2017) filed a written statement raising the preliminary objections regarding the maintainability, locus standi and concealment of material facts. On merits, the factum of the accident was denied. It was further asserted that the FIR was falsely registered against respondent No.1 (in FAO No.3483 of 2017) on the statement of the complainant. Respondent No.3 (in FAO No.3483 of 2017), i.e., the Insurance Company filed its written statement taking various preliminary objections and one of the objections raised was that the driver of the offending vehicle was not holding a valid and effective driving licence and that the owner of the vehicle was guilty of breach of terms and conditions of the policy. On merits, the factum of the accident was denied.
2 of 7 ::: Downloaded on - 15-03-2020 06:01:09 ::: FAO No.5125 of 2014 & - 3 - FAO No.3483 of 2017 On the basis of the pleadings of the parties and evidence on the record, the Tribunal awarded an amount of Rs.5,92,000/- along with interest @ 7.5% per annum from the date of filing of the claim petition till realisation, to be paid only to the mother, i.e., appellant in FAO-3483-2017. The Insurance Company was exonerated. Aggrieved by the finding whereby the Insurance Company had been exonerated, the driver and the owner of the offending vehicle have preferred FAO No.5125 of 2014 and the claimant, dissatisfied with the amount awarded, has preferred FAO No.3483 of 2017.
I have heard the learned counsel for the parties.
Firstly, dealing with the contention raised by the learned counsel for the appellants in FAO No.5125 of 2014, preferred by the driver and the owner qua exoneration of Insurance Company, it has been contended by the learned counsel for the appellants that the Insurance Company has been exonerated by the Tribunal only on the basis of a verification report, Ex.R1, regarding the driving licence held by respondent No.1 (in FAO No.3483 of 2017) wherein it was stated that the licence was not found to have been issued at the serial number shown in the driving licence. Hence, the Tribunal has held that the driver was not holding a valid driving licence on the date of occurrence of the accident. It has been contended by the learned counsel for the appellants that mere production of the verification report, without the same having been proved in accordance with law, could not have been made the basis for exonerating the Insurance Company. He further contends that the Insurance Company has failed to establish that the driver was holding an invalid driving licence. In support of this contention, he has relied upon 3 of 7 ::: Downloaded on - 15-03-2020 06:01:09 ::: FAO No.5125 of 2014 & - 4 - FAO No.3483 of 2017 2016(2) PLR 478--Reliance General Insurance Company Ltd. vs. Vijay and others; 2017(2) PLR 759-National Insurance Co. Ltd., Chandigarh vs. Kanwaljit Kaur and others; 2001(2) RCR (Civil) 248 National Insurance Co. vs. Surjeet Kaur; and 1999 ACJ 1262-National Insurance Company Ltd. vs. Santosh and others, which is a Division Bench judgment of this Court.
Per contra, the learned counsel for the Insurance Company has contended that the Insurance Company has rightly been exonerated on the basis of the verification report, Ex.R1. However, he was unable to show any judgment contrary to the case law cited by learned counsel for the appellants. Though the verification report, Ex.R1, had been produced to show that the driver of the offending vehicle was not holding a valid and effective licence on the date of the occurrence of the accident, however, the fact remains that no one from the Licensing Authority was examined to prove the said verification report. It is a settled proposition of law that by mere marking a document as an exhibit does not dispense with the requirement of proving the same. The Supreme Court in the case of Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others, AIR 1971 Supreme Court 1865, had considered a similar question and held that mere marking of an exhibit does not dispense with the proof of the document. In para-15 of the said judgment, it was held as under:-
"15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger 4 of 7 ::: Downloaded on - 15-03-2020 06:01:09 ::: FAO No.5125 of 2014 & - 5 - FAO No.3483 of 2017 payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs."
The same view has been reiterated in the judgments relied upon by the learned counsel for the appellants. In view of the law laid down, this Court is of the considered opinion that the finding, whereby the Insurance Company has been exonerated, deserves to be set aside. A perusal of the evidence on record shows that the verification report, Ex.R1. was not proved on the record by producing any person from the Licensing Authority. That being so, the said verification could not have been relied upon.
In view of the settled law, the finding recorded by the Tribunal exonerating the Insurance Company is, hence, set aside.
Now, dealing with the arguments raised by the learned counsel for the appellant in the appeal preferred by the claimant, i.e., FAO No.3483 of 2017, it has been contended that the deceased, at the time of the accident, was 21 years of age and that the Tribunal has not granted the compensation as per the law laid down in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, 2009(6) Supreme Court Cases 121, National Insurance Company Ltd. vs. Pranay Sethi and others, 2017 (16) Supreme Court Cases 680 and Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, (2018) 18 Supreme Court Cases 130. It has further been contended that the Tribunal had failed to grant any compensation towards future prospects, conventional heads and parental consortium.
5 of 7 ::: Downloaded on - 15-03-2020 06:01:09 ::: FAO No.5125 of 2014 & - 6 - FAO No.3483 of 2017 Per contra, the learned counsel for the Insurance Company has contended that a just and proper compensation has been granted by the Tribunal and, hence, there is no scope for enhancement. It was further contended that there was a huge delay in filing of the present appeal and, therefore, on that ground alone the appeal ought not to be entertained.
In rejoinder, the learned counsel for the appellant stated that the delay in filing the appeal was on account of the fact that the appellant was not aware that further appeal could be preferred against the award passed by the Tribunal and it was only recently, through a relative that the appellant found out that she could approach the High Court for enhancement of the compensation. Learned counsel for the appellant, however, states that he would not claim the interest for the delay period.
In view of the very fair statement made by learned counsel for the appellant in FAO No.3483 of 2017, the delay in filing the appeal is condoned and C.M. No.11336-CII-2017 seeking condonation of 1029 days' delay in filing the appeal accordingly stands disposed of.
This Court finds that the Tribunal while awarding the compensation has not granted future prospects as also that the amounts awarded under the conventional heads are on lower side. Additionally, the Tribunal has also failed to award any amount towards parental consortium. In view of the law laid down by the Supreme Court in the cases of Smt. Sarla Verma (supra), Pranay Sethi (supra) and Magma General Insurance Company Limited (supra), I deem it just and proper to award the following compensation.
Sr.No. Head Compensation Awarded
1. Monthly income ---- `5,250/-
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FAO No.5125 of 2014 & - 7 -
FAO No.3483 of 2017
2. Annual income ---- `63,000/-
3. Annual dependency of ---- `31,500/-
claimant(s) after 50%
deduction towards
personal expenses
4. Annual dependency ------ ` 44,100/- (31500+12600)
after adding future
prospects @ 40%
5. Multiplier of 18 ---- ` 7,93,800/- (44100x18)
6. Loss of estate ------ ` 15,000/-
7. Funeral expenses ------ ` 15,000/-
8. Filial consortium to ------ ` 40,000/-
mother
Total compensation ---- `8,63,800/-
Enhanced amount of
---- `2,71,800/- (863800-592000)
compensation:
The enhanced amount of compensation shall carry an interest @ 7.5% per annum from the date of filing of the claim petition till its realisation. However, while calculating the interest, the period of delay, which occurred in filing of the present appeal, shall be reduced accordingly.
In view of the above, FAO No.5125 of 2014 is allowed and the finding of the Tribunal exonerating the Insurance Company is hereby set aside and FAO No.3483 of 2017 is allowed in the above-mentioned terms. The award of the Tribunal is modified accordingly.
(ALKA SARIN) JUDGE 02.03.2020 parkash NOTE:
Whether speaking/non-speaking: Speaking Whether reportable: YES/NO 7 of 7 ::: Downloaded on - 15-03-2020 06:01:09 :::