Uttarakhand High Court
Ghananand Belwal And Others ... ... vs Dinesh Chandra Sharma And Others on 18 August, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal from Order No. 155 of 2018
Ghananand Belwal and Others ... Appellants
Vs.
Dinesh Chandra Sharma and others ... Respondents
Advocate: Mr. Ayush Aggarwal, Advocate, holding brief of Mr. Akhil Kumar
Sah, Advocate, for the appellants.
Mr. M.K. Goyal, Advocate, for the respondent(s).
Mr. Ghanshyam Joshi, Advocate, for the respondent(s).
Hon'ble Sharad Kumar Sharma, J.
The claimants (appellants herein) have preferred this Appeal from Order under Section 173 of the Motor Vehicles Act, praying for enhancement of an award, then that as it was determined by the impugned award dated 20th May 2017, to the tune of Rs. 16,28,107/-, which stood denied, in its totality because the only compensation, which has been awarded by the learned Motor Accidents Claims Tribunal, has been assessed to be Rs. 3,21,893/- with the interest payable on it, as observed in the impugned order.
2. The learnt counsel for the appellants has argued, that in the proceedings, which were held before the learned Motor Accidents Claims Tribunal, by way of MACP Case No. 36 of 2013, Ghananand Belwal & Others Vs. Dinesh Sharma & Others, the claimants have contended, that in an accident, which has chanced on 8th December 2012, at about 5:30 p.m., the young son of the claimant, namely, late Mr. Rajesh Belwal, who was riding a Motorcycle and was 2 about to reached at Vinayak petrol pump, Khutani, all of a sudden, a Truck bearing registration No. UP-025T-8485, which was being driven negligently by the driver of the offending vehicle hit the motorcycle, as a consequence to which the owner of the vehicle, who was the pillion rider, had suffered grievous injuries, due to which he was immediately taken to Krishna Hospital, where he was kept under treatment, and later on he was declared to have met with the sad demise on 8th December 2012, due to injuries suffered by him in the accident.
3. As a consequence of the aforesaid ill-fated accident resulting into the death of the young son of the claimant who was at the relevant time of accident was of about only 27 years of age, it was alleged by the claimants, that he was national level swimming champion; apart from that, he was engaged in dealing with computer hardware and software business. It was alleged by the claimant that the deceased was also engaged with in various other activities, as it has been referred to in the claim petition, including performing the work of mobile repairing and also he was engaged in the business of astrology. It was also submitted that the deceased was also engaged with an NGO called B2R, as a Software Engineer and out of the aforesaid engagements, as referred to therein in the claim petition, he was having sufficient earning, by which he use to take care of himself 3 and the claimants, who were dependent on his income detailed above.
4. According to the claim petition, it was contended by PW1 i.e. the father of the deceased and the claimant who filed his written statement paper No. 45 (kha), that the cause of death of his son, was on account of rash and negligent driving of the driver of the vehicle, bearing registration No. UP-025T-8485, and hence, the liability of the payment of compensation it ought to have been fastened upon the owner of the vehicle, who was engaged in rash and negligent driving, resulting into an accident hitting the motorcycle, on which the deceased was travelling.
5. The Insurance Company, who was the opposite party No. 3, in the proceedings before the learned Motor Accident Claims Tribunal, had filed their written statement being paper No. 36 (kha), and denied the averments of the claim petition and even the factum of the accident and the manner in which it has chanced, as it has been referred to in the pleadings raised in the claim petition.
6. Further, the Insurance Company has contested the claim proceedings on the ground, that the claim proceedings were bad in the eyes of law, for the reason being, that the insurer of the motorcycle, who had met with 4 an accident with the offending Truck, was not made as a party to the proceedings and hence the proceedings suffered from the vices of non-joinder of the necessary parties. Apart from it, the other defense, which was taken by the Insurance Company i.e. paper No. 36 (kha), it was to the effect that on the date of the accident, the vehicle was not being driven under a valid license and permit, due to which, the Insurance Company couldn't be made liable to pay the compensation.
7. Based upon the aforesaid rival contentions included in the written statement which was filed by opposite party No. 2, the driver of the vehicle had filed paper No. 47 (ka). The learned Motor Accident Claims Tribunal had framed the following issues:-
१- �ा िदनांक ०८-१२-२०१२ को जब राजेश बेलवाल सायं ५:३० बजे िवनायक से पेट�ोल प� खुटानी की ओर जा रहा था तो अचानक िवनायक से लगभग १०० मीटर के पास जब मृतक अपनी साईड म� चल रहा था तो अचानक ट�क सं�ा यूपी- ०२५टी- ८४८५ के चालक ने ट�क को तेजी व लापरवाही से चलाते �ए तथा िवपरीत साइड म� जाकर राजेश बेलवाल की मोटर साईिकल म� ट�र मार दी, िजसम� उसे ग�ीर चोट� आई और दौरान ईलाज अ�ताल म� उसकी मृ�ु हो गयी?
२- �ा किथत दुघ�टना मृतक �ारा �यं अपनी मोटर साईिकल को तेजी व लापरवाही से चलाने के कारण घिटत �ई ?
३- �ा यािचका म� मोटर साईिकल के पंजीकृत �ामी एवं बीमा क�नी को प�कार न बनाये जाने का दोष है, यिद हां तो प्रभाव?
४- �ा किथत दुघ�टना के िदनांक को दुघ�टना म� िल� वाहन ट�क सं�ा यूपी ०२५टी ८४८५ को बीमा शत� के अनु�प नहीं चलाया जा रहा था तथा वाहन चालक के पास वैध चालक लाईस�स उपल� नहीं था?
५- �ा याचीगण प्रितकर के �प म� कोई �ितपूित� पाने के अिधकारी ह�, यिद हां तो िकतना और िकस i{k से?5
8. The claimants in respect in support of their contention had adduced the oral testimony of PW1 Ghananand Belwal, PW2, Mr. Pawan Belwal; PW3 Mr. Hari Om Saini and oral testimony of PW4 Mr. Neeraj Belwal. Apart from it, he has also relied upon the documentary evidences, which were placed before the Court below along with the list paper number 6(ga).
9. Other documentary evidences, which were placed on record, were the registration certificate of the Truck, the Permit, the Insurance Policy, the Pollution Control Certificate, the copy of the First Information Report, as well as the postmortem report of the deceased, which was subject matter of consideration before the learned Motor Accident Claims Tribunal.
10. The learned Motor Accident Claims Tribunal, after considering the rival contentions including the oral testimony and documentary evidences, had conjointly decided issue numbers 1 and 2, with regards to the aspect of negligence, as to who was actually responsible for the ill- fated accident resulting into death of the son of the claimant.
11. The learned Motor Accident Claims Tribunal, while recording its finding on issue numbers 1 and 2 had considered the aspect of negligence and as per the findings 6 which had been recorded in para 20 of the impugned award, while making reference to the site map, which was placed on record as an exhibit paper number 68 (ga2). It rather shows that in fact it was a case, which was sought to be built-up by the owner of the vehicle as to be a case of contributory negligence, owing to the fact that there was a sufficient space which was available to the rider of the motorcycle, who could have every well avoided the accident, had he driven the motorcycle on the available space, the accident could have been avoided. But, however, ultimately, the learned Motor Accident Claims Tribunal, while deciding issue number 4, which related to as to whether the offending vehicle was being driven under the terms and conditions of the Insurance Policy, has recorded its finding, to the effect that in view of the scrutiny of the documents on record, the inference has been drawn that the driver of the offending vehicle in question on the date of the accident was having valid driving license, and the same was valid; apart from it, the transport validity of the vehicle was also subsisting on the date when the accident had chanced.
12. It was further observed, that on the scrutiny of paper number 73(ga), that the transport validity of the offending vehicle was extended for a further period w.e.f. 21st May 2013 to 20th may 2016. Apart from that, it had a valid 7 permit which was effective w.e.f. 1st November 2011 to 20th May 2013.
13. Ultimately, on appreciation of the evidence, the issue which would boil down and which has been rather stressed upon by the learned counsel for the claimants, seeking enhancement of the compensation, as it has been determined in the findings, which had been recorded on issue number 5, wherein the learned Motor Accident Claims Tribunal, while applying the principles, as it has been laid down in the judgement of Sarla Verma's as reported in 2009 (6) SCC 121, after making the requisite deduction, has determined the dependency as per the observations, which has been made in para 41 and 42 of the said judgment and has accordingly had applied the multiplier of '17'.
14. The learned counsel for the appellants/claimants has submitted, that all these procedural vitalities, which were considered are with regard to the circumstances, under which the accident has chanced, in relation to the validity of the document, which was being carried by the driver of the offending vehicle; irrespective of ignorant of the circumstances, under which the negligence could be attributed and determined by the learned Motor Accident Claims Tribunal.
815. In fact, the aforesaid principles, have been rather now with the change of law had been modified to be universally made applicable in all cases of death, which had chanced due to an accident, and in reference thereto the learned counsel for the claimants, has drawn the attention of this Court to the judgement of the Division Bench of the Madras High Court, as rendered in Civil Miscellaneous Appal No. 1428 of 2017, The Divisional Manager M/s United India Insurance Co. Ltd. Vs. R. Rekha and others, as decided by the Division Bench of the Madras High Court on 26th October 2017. The learned counsel for the appellants has particularly harped upon his argument for enhancement of the compensation, while making reference to para 28 of the said judgment, which is extracted hereunder:-
"28. As pointed out by IRDA in their report, the Policy to compensate the owner of the vehicle by virtue of Compulsory Personal Accident Cover was introduced 15 years ago. In the year 2002, the sum of Rs.1,00,000/- envisaged under Compulsory Personal Accident Cover might be sufficient to meet the medical expenses for treatment of the injured owner of the vehicle to certain extent. However, now 15 years have lapsed and the cost of medical treatment has sky-rocketed. Parallely, the country is witnessing a burgeoning vehicle population due to which, not a single day passes without a road accident in which unfortunate victims silently suffer bodily injury or death. The death or bodily injury so suffered by the victims of motor accident not only paralyse their life, but also cripple the entire family or his or her dependants. In case the owner of the vehicle happened to be the breadwinner of the family, it will cause a dent in the financial source of the family. On the other hand, due to the negligence of the owner of the vehicle, if a third party suffers bodily injury or even death, such third party or his family members will get adequate compensation from the insurance company befitting to the pecuniary loss sustained by the injured or on account of the death of the deceased. On the contrary, if the owner of the vehicle himself sustain bodily injury or dies in a motor accident, due to his or her 9 own negligence, the owner of the vehicle or his or her family members will not get compensation befitting to the actual pecuniary loss of the deceased or injured, but only a lump sum compensation of Rs.1,00,000/-. It is unfortunate that the owner of the vehicle who pays premium amount for the risks that may be confronted by the third party or due to any other factor, is not getting adequate compensation in the event of his or her death or bodily injury. Therefore, having regard to the above factual matrix, taking note of the escalation in the cost of living, particularly the cost of medical treatment, we direct the IRDA to enhance the Compulsory Personal Accident Cover from the existing Rs.1,00,000/- to atleast not less than Rs.15,00,000/- so that the amount of Rs.15,00,000/- will add to some succor or solace to the victims of road accidents, who are the owner of the vehicle, who may incidentally sustain bodily injury or death. Further, an option can be given to the insured/owner of the vehicle to pay higher premium amount to get enhanced compensation over and above Rs.15,00,000/- in case the owner of vehicle so desires to such enhanced compensation in the event of any untoward motor accident which may result in bodily injury or death. However, before resorting to enhance the premium for getting compensation under the Compulsory Personal Accident Cover, IRDA shall also have consultation with all the stake holders. Such an exercise can be undertaken and completed by IRDA within a period of six months from the date of receipt of a copy of this Judgment."
16. In view of the aforesaid principle, as it has been laid down, that irrespective of the circumstances of the accident or the appreciation of the validity of the documents or the circumstances under which the accident has chanced resulting into the determination of the liability or the aspect pertaining to negligence, as to on whom the liability of compensation, it is to be fastened, rather a unified principal has been laid down to be made applicable by the Division Bench of the Madras High Court, that in all cases, invariably owing to the principles, which have been generalized to be made applicable in the cases of compulsory personal 10 accident covers, that an amount of not less than Rs. 15,00,000/- is to be paid to the claimant, in an event, where on account of the injuries which has been suffered by the victim, even if it a case which has resulted into a death, the compensation ought to have been determined at a minimum, at least to Rs. 15,00,000/- in order to add to the solace and provide adequate reprive, to the victims of the road accident, as well as to their dependants in those case of accidental deaths.
17. Based on the aforesaid judgement of the Division Bench of the Madras High Court, rather a GR has been issued by India Motor Tariff (IMT), 2002, which mandates a directing to all the General Insurance Companies, carrying a motor insurance businesses and to provide a personal accident cover for the owner and the driver of the offending vehicles, and the minimum liability, which has been determined by the Hon'ble Madras High Court, to be made payable as referred to hereinabove, has been taken as to be the parameters for determining the minimum compensation, which has to be made payable. Clause 3 of the aforesaid GR bearing reference number IRDA/NL/CIR/MOTP/ 158/09/2018 dated 20th September 2018 in its para 3, which is extracted hereunder, which has laid down a general guiding principle of fixing a minimum liability of Rs. 15,00,000/-. Para 3 of the GR reads as under:-
"3. In the meantime, the Hon'ble High Court of Judicature at Madras has, vide its judgement dated 26th October, 2017 in the matter of Civil 11 Miscellaneous Appeal No. 1428 of 2017 (United India Insurance Co Ltd Vs R. Rekha & Ors), issued directions to IRDAI which reads as under.
``Enhance the Compulsory Personal Accident Cover from the existing Rs.1,00,000/- to at least not less than Rs.15,00,000/- so that the amount of Rs.15,00,000/- will add to some succor or solace to the victims of road accidents, who are the owner of the vehicle, who may incidentally sustain bodily injury or death. Further, an option can be given to the insured/owner of the vehicle to pay higher premium amount to get enhanced compensation over and above Rs.15,00,000/- in case the owner of vehicle so desires to such enhanced compensation in the event of any untoward motor accident which may result in bodily injury or death. ``
4. In accordance with the above directions of the Hon'ble High Court of Judicature at Madras, the Authority, in exercise of the powers conferred by Section 14 (2) (i) of the IRDA Act 1999 and in consultation with the stakeholders, hereby issues the following modifications to General Regulation (GR) -36 of India Motor Tariff,2002 on Compulsory Personal Accident Cover for Owner-Driver.
(i) All General Insurers carrying on motor insurance business shall provide CPA Cover for Owner-Driver under Liability Only, under Section III of Package Policies to all classes of vehicles and Bundled Covers wherever applicable.
(ii) A minimum Capital Sum Insured (CSI) of Rs.15,00,000/-shall be provided under CPA Cover for Owner-Driver under Liability Only, under Section III of Package Policies to all classes of vehicles and Bundled Covers wherever applicable at the premium rate of Rs. 750/- per annum for annual policy. This rate will be valid until further notice.
(iii) A higher CSI may be provided over and above Rs.15,00,000/-through Optional Covers under Liability Only and under Section III of Package Policies/ Bundled Covers on payment of additional premium at the option of the Insured.
(iv) In view of the above changes, the current Add on covers offering enhanced CPA Cover for Owner-Driver under Section III of Package Policies and Bundled Covers up to CSI of Rs.15,00,000/-shall stand withdrawn. However, Insurers willing to offer CSI over and above Rs.15,00,000/- may revise/file Add on cover under Liability only, Package Policies and Bundled Covers. It is suggested the higher CSI in such Add on cover may be in multiples of Rs. 1,00,000/-.
or Rs. 5,00,000/-.
(v). As regards premium payable for CPA cover under long term motor policies, insurers may price them in line with their current approach for pricing. Should the Authority find the pricing approach in variance from their general pricing philosophy/approach and not in line with actuarial principles, suitable direction may be issued by the Authority. Insurers may start issuing such covers effective from the date of receipt of this circular even while ensuring that the filing for these is done under File and Use Guidelines on or before 25th October, 2018.
(vii). All other extant provisions applicable for Motor Third Party Insurance shall continue to apply.
This Circular shall come into effect immediately. Please acknowledge this circular and confirm having noted its contents.
This is issued with the approval of the competent authority."
1218. In that eventuality, since the aforesaid ratio, laid down by the Hon'ble Madras High Court, has been given a shape of a subordinate welfare legislation by issuance of GR on 20th September 2018, exclusively based upon the aforesaid principle, to enhance the Compulsory Personal Accident Cover, which remains untrammeled by any of the conditions of the accident, which is subject matter of consideration before the learned Motor Accident Claims Tribunal, in the cases of death, where the minimum compensation has been determined to be made payable to an amount of not less than Rs. 15,00,000/-, in that eventuality; this Appeal from Order, would partially stand allowed; the claimants would be held to be entitled to at least receive a total sum of Rs. 15,00,000/-, in all, after excluding the amount of award, already determined to be made payable by the learned Motor Accident Claims Tribunal, to the tune of Rs. 3,21,893/- as determined by the impugned award dated 20th May 2017.
19. Accordingly, after deducting the aforesaid amount, already awarded, the balance amount, as determined by the Division Bench judgement dated 26th October 2017 of the Madras High Court, the balance amount of enhanced compensation, would be paid to the claimants accordingly by the Insurance Company i.e. Respondent No. 3, herein this Appeal from Order.
1320. Subject to the aforesaid reasoning, the present Appeal from Order stands partly allowed, based upon the aforesaid ratio of the Division Bench of Madras High Court. Accordingly, the learned Motor Accident Claims Tribunal/District Judge, Nainital, is hereby directed to ensure compliance of the judgment, as rendered today, directing the Insurance Company, to ensure to pay the enhanced compensation.
(Sharad Kumar Sharma, J.) 18.08.2022 Mahinder/