Punjab-Haryana High Court
National Insurance Co Ltd vs Ompati & Ors on 6 October, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No.7630 of 2014 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: 6.10.2014
FAO No.7630 of 2014
National Insurance Company Limited
---Appellant
Versus
Ompati and others
---Respondents
FAO No.7691 of 2014
National Insurance Company Limited
---Appellant
Versus
Ram Rati and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. Sandeep Suri, Advocate
for the appellant(s)
***
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
REKHA MITTAL, J.
By way of this order, I shall dispose of FAO No. 7630 of 2014 titled "National Insurance Company Limited vs. Ompati and others" and FAO No. 7691 of 2014 titled "National Insurance Company Limited vs. FAO No.7630 of 2014 -2- Ram Rati and others" as these have emerged out of common award dated 25.3.2014 passed by the Motor Accident Claims Tribunal, Hisar ( in short "the Tribunal") and involve identical questions of law and facts for adjudication.
Ompati and another (respondents) filed claim application under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act") in regard to death of Satpal @ Sonu, their son aged about 20 years in a motor vehicular accident which took place on 30.11.2012. Ram Rati and another filed application in regard to death of Satish, their son in the same accident on 30.11.2012.
As per case set up by the claimants, Satish and Stapal @ Sonu (since deceased), Surender, Monu and Naveen were coming from Rajgarh to village Dhansu in car bearing No. HR-20U-1236 driven by Narender son of Raja Ram, respondent No. 1 in a rash and negligent manner. When they crossed village Choudharywas, respondent No. 1 struck the offending vehicle into a truck and caused the accident. The occupants of the car received multiple injuries. Sonu died at the spot and Satish died on 21.12.2012 at Jindal Hospital, Hisar. Narender in connivance with police got registered FIR No. 1108 dated 30.11.2012 under Sections 279, 337 and 304-A of the Indian Penal Code at Police Station, Sadar Hisar against an unknown driver of a truck.
In the reply filed by the insurance company (appellant), involvement of vehicle in question was denied and so also entitlement of the applicants to claim compensation. It was averred that the vehicle was being driven against the terms and conditions of the insurance policy and FAO No.7630 of 2014 -3- respondent No. 1 was not holding a valid and effective driving licence to drive the vehicle.
The learned Tribunal, on appreciation of evidence adduced and rival submissions made by counsel for the parties answered Issue Nos. 1 and 2 in favour of the claimants while issue No. 3, the onus of which was laid upon the respondents, was answered against the respondents. The learned Tribunal assessed compensation to the tune of Rs. 11,04,030/- in regard to death of Satish and a sum of Rs. 9,35,000/- with regard to death of Sonu.
Counsel for the appellant has submitted that the award passed by the Tribunal is erroneous and liable to be set aside both in regard to its findings on the factum of accident and liability of insurance company. In the alternative, counsel submits that the insurance company may be given the right to recover the amount of compensation from Satyawan, owner of the vehicle as the alleged offending vehicle was being plied in violation of terms and conditions of the insurance policy. To substantiate his contention, it is argued that in the first information report, Narender, author of the FIR attributed rashness and negligence to the truck driven by an unknown driver which allegedly hit the car in which the deceased were travelling. It is further argued that as the said truck could not be identified, the claimants filed the applications by twisting facts and attributing rashness and negligence to the car driver namely Narender when otherwise possibility of collusion between the claimants and Narender is not ruled out. It is further argued that one of the alleged eye witness to the occurrence namely Anil was examined but name of Anil does not figure in the FIR lodged by Narender, being one of the occupants of the ill-fated car. FAO No.7630 of 2014 -4-
To challenge the findings of the Tribunal in regard to quantum of compensation, it is argued that the learned Tribunal has adopted multiplier in view of age of the victims/deceased in place of age of the claimants i.e. parents of the deceased, unmarried boys. It has wrongly allowed benefit of increase in income for future prospects as the matter in regard thereof is pending consideration before a Larger Bench of the Apex Court in view of reference made in Special Leave to Appeal (Civil)- 8058 of 2014 National Insurance Co. Limited vs. Pushpa and others.
Counsel has made a feeble attempt to argue that as the vehicle in question was being used for hire, owner/insured is guilty of violating the terms and conditions of the insurance policy which entitles the insurance company to recover the amount of compensation after discharging liability qua the claimants.
I have heard counsel for the appellant and perused the case file. Indisputably, there is no denial that Satish and Satpal @ Sonu, occupants of car bearing HR-20U-1236 driven by Narender, respondent No. 1 on the fateful day of 30.11.2012, sustained injuries in the motor vehicular accident and as a result, Sonu died on the spot and Satpal succumbed to the injuries later on 21.12.2012. To prove the factum of accident being the result of rash and negligent driving on the part of Narender, Surender and Anil, other travellers in the ill-fated car appeared in the witness box and reiterated plea of the claimants that accident was caused due to rash and negligent driving of Narender, respondent No. 1. Surender and Anil have corroborated each other that they had gone to Rajgarh for attending marriage. Much stress has been laid by counsel on the facts narrated in the FAO No.7630 of 2014 -5- first information report lodged at the behest of Narender, none else than the driver of the alleged offending vehicle to assail version given by PWs. Narender did not appear in the witness box to substantiate his version given in the FIR. There is every possibility that Narender lodged the FIR in order to escape his criminal liability for causing the accident resulting in death of two young boys. However, it remains a fact that in the first information report lodged by Narender, he has categorically mentioned about the deceased and PWs Surender and Anil being the occupants of car bearing No. HR-20U-1236 driven by him. This apart, first information report is not a substantive piece of evidence and, at best, it can be used for the purpose of corroboration or contradiction during examination of the person at whose behalf it was lodged. Keeping in view evidence adduced by the claimants by examining Surender PW4 and Anil PW5 and in absence of any rebuttal to their testimony, I do not find any merit in the contention of the appellant that the learned Tribunal has mis-directed itself in returning its findings on Issue No. 1 against the respondents. I would hasten to add that contention raised by counsel that name of Anil PW5 does not figure in the FIR, is contrary to record as Anil has been described as Monu son of Bhopal in the FIR and Anil has described himself as Anil @ Monu son of Bhopal in his affidavit Ex. PW5/A tendered in evidence by way of examination in chief.
So far as contention of the appellant in regard to multiplier and benefit of increase in income for future prospects, the plea of the insurance company is devoid of merit thus, untenable. The Hon'ble Supreme Court of India in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (3)RCR (Civil) 77 and Reshma Kumari and others vs. FAO No.7630 of 2014 -6- Madan Mohan and another 2013(2) RCR(Civil) 660 has laid down certain principles with regard to multiplier, deduction for personal expenses, increase in income for future prospects in case of permanent employee etc. In the said case, the court while dealing with the question of deduction has taken into consideration the death of a young boy who is unmarried and compensation is claimed by his parents. In view of the ratio laid down in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (3)RCR (Civil) 77 and the judgment passed by the Apex Court in Amrit Bhanu Shali and others. Vs. National Insurance Company Limited and others 2012(4) R.C.R.(Civil)343, the learned Tribunal has correctly applied multiplier of 18 in view of age of the deceased. So far as the plea with regard to pendency of matter before a Larger Bench in view of reference made in Special Leave to Appeal (Civil)- 8058 of 2014 National Insurance Co. Limited vs. Pushpa and others, till the time the judgment in Rajesh and others vs. Rajbir Singh and others (2013)3 RCR (Civil) 170 rendered by a three Judge Bench is modified or reversed, it will hold the field for determination of compensation. Under these circumstances, I do not find any error in the findings of the Tribunal, adopting multiplier of 18 and allowing benefit of increase in income for future prospects.
This brings the court to the plea in regard to violation of the terms and conditions of the insurance policy. The insurance company has not raised any specific plea in the reply that the insured is guilty of violating the terms and conditions of the policy by plying the vehicle on hire or for reward. In absence of any such plea, no issue was framed by the Tribunal in this regard. Admittedly, no evidence has been led by the FAO No.7630 of 2014 -7- insurance policy to prove that Satyawan the insured has given the car for use by Satish and others on payment basis. The mere fact that Surender PW4 has stated during cross examination that the car was hired by Satish is not sufficient to prove that the car was taken on payment basis by Satish. Anil PW5 had stated that car was owned by his cousin so no fare was paid by him. Keeping in view evidence on record, it is difficult to record a finding in favour of the insurance company that the alleged offending vehicle was being used for hire or reward in violation of terms and conditions of the insurance policy.
For the reasons aforesaid, the appeals are dismissed in limine.
(Rekha Mittal) Judge 6.10.2014 paramjit