Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Sunni Devi And Others on 6 May, 2024
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. : 147 of 2016 .
Reserved on : 18.04.2024
Decided on : 06.05.2024
Oriental Insurance Company Ltd. ...Appellant
Versus
Smt. Sunni Devi and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Deepak Bhasin, Senior Advocate, with Mr. Sambhav Bhasin, Advocate.
For the respondents : Mr. Nimish Gupta, Advocate, for respondents No. 1 to 4.
None for respondent No. 5.
Mr. Mohar Singh, Advocate, for respondent No. 6.
Virender Singh, Judge.
Appellant-Oriental Insurance Company has filed the present appeal, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act') 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/05/2024 20:34:19 :::CIS 2against award, dated 4th September, 2015, passed by the learned Motor Accident Claims Tribunal (I), Kangra at .
Dharamshala, H.P. (hereinafter referred to as 'learned MACT').
2. By way of the award, dated 4th September, 2015, the learned MACT has allowed MACP No. 30-K/11/15/2007, titled as Sunni Devi and others versus Shri Bishan Singh Parmar and others, and awarded a sum of ₹ 16,53,466/-, alongwith interest @ 7.5% per annum, from the date of filing of the claim petition, till the date of actual payment, in the following terms:
"In the light of my aforesaid findings on the aforesaid issues for determination the petition of the petitioners against the respondents succeeds and is hereby allowed with costs with pending and future interest at the rate of 7.5% per annum from the date of petition till the date of actual payment and a total amount of compensation of Rs. 16,53,466/- (Rs. Sixteen lacs fifty three thousand four hundred and sixty six only) is hereby awarded to the petitioners inclusive of the interim compensation on account of no fault liability. If interim compensation is already paid under section 140 of Motor Vehicles Act, then the same shall be deducted at the time of final payment.
The petitioner No. 2 is wife of the deceased and, therefore, she is entitled to 40% amount of the total compensation amount along with proportionate interest. The petitioner No. 1 being mother of the deceased shall be entitled to 10% of the total amount of compensation with ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 3 proportionate interest. The remaining amount shall be shared by petitioners No. 3 and 4 to the extent of equal shares. Since the petitioners No. 3 and 4 are minors, therefore, the amount of .
compensation of their shares shall be invested in FDRs in some Nationalized bank till they attain age of majority. Fifty percent amount of the share of the petitioner No. 2 shall also be invested in some Nationalized bank for a period of three years and the remaining fifty percent share of compensation of the petitioner No. 2 shall be released to her in cash for day to day expenses. So far as the compensation awarded to petitioner No. 1 is concerned, the entire amount of her share shall be released to her in cash because of her old age. Memo of costs be prepared accordingly. The file after doing the needful be consigned to the record room."
3. In terms of the said award, the ultimate liability to pay the amount of compensation, alongwith up-to-date interest, has been fastened upon the appellant-Insurance Company.
4. For the sake of convenience, the parties to the lis, are hereinafter referred to, in the same manner, as, were referred to, by the learned MACT.
5. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
5.1. Petitioners, being the legal representatives of deceased-Feni Ram Bhardwaj, have filed the petition, under Section 166 of the MV Act, seeking compensation, ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 4 on account of death of Feni Ram Bhardwaj, against the respondents, being the owner (respondent No. 1), driver .
(respondent No. 2) and insurer (respondent No. 3) of the vehicle No. RJ-22G-1185 (hereinafter referred to as 'the offending vehicle').
5.2. The claim petition has been filed, on the ground, that on 23rd November, 2006, Feni Ram was driving a truck, which was on its way, from Bhiwandi to Rajasthan, alongwith another truck, being driven by respondent No. 2. Both the trucks were stopped at Valsad Sugar Factory, as, the drivers wanted to take tea. After taking tea, respondent No. 2 had started the offending vehicle and Feni Ram, who was trying to sit in his truck, was hit by the offending vehicle, which was being driven by respondent No. 2, in a rash and negligent manner, due to which, Feni Ram came under the rear wheel of the offending truck and sustained injuries. He was taken to Valsad Kasturba Hospital, where, he was admitted after giving first aid, however, he died on 24th November, 2006.
5.3. The information, regarding the accident was given to Police Station Valsad City, where, FIR No. 162 of ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 5 2006, was registered, under Sections 279, 337 and 304A IPC, read with Sections 177 and 184 of the MV Act.
.
5.4. The age of deceased-Feni Ram, at the time of accident, has been pleaded to be 35 years and is stated to be working as driver. His salary is claimed to be ₹ 6,000/-
per month.
5.5. The petitioners have pleaded about their bright past and bleak r future and as such, have sought compensation, from the respondents.
6. When put to notice, respondent No. 1 has opted not to contest the claim petition. Respondent No. 2 has contested/resisted the claim petition and filed his reply, by taking the preliminary objections that the petitioners have no cause of action; and that the petition is not maintainable.
6.1. The contents of paras No. 1 to 6, 10 to 13, 18and 19 have been denied for want of knowledge, whereas, no reply has been filed with regard to paras No. 7, 17, 20, 22 and 23. The contents of paras 8 and 9 of the claim petition have been admitted, with regard to the registration of the FIR. It has been pleaded that the accident in ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 6 question had taken place due to the negligence of the deceased himself.
.
6.2. Respondent No. 3-Insurance Company of the offending vehicle has filed the separate reply, by taking the preliminary objections, that no accident had taken place with the offending vehicle, as, such, the present petition is not maintainable against respondent No. 3; the petitioners are not entitled for any compensation; the driver of the offending vehicle was not having a valid and effective driving licence; and the offending vehicle was being permitted to ply in violation of the terms and conditions of the Insurance Policy; and, the petition is bad for mis-
joinder of necessary parties.
6.3. On merits, the contents of the claim petition have mainly been denied for want of knowledge.
6.4. Thus, the respondents have prayed for the dismissal of the claim petition.
7. The petitioners have filed replication, denying the preliminary objections, as well as, the contents of the reply, by virtue of which, the claim petition has been contested.
::: Downloaded on - 06/05/2024 20:34:19 :::CIS 78. From the pleadings of the parties, the learned MACT has framed the following issues, vide order, dated .
30th September, 2008:
"1. Whether the respondent No. 2 due to his rash and negligent driving of the offending vehicle RJ-22 G-1185 struck it against deceased Feni Ram at Valsad on 23.11.2006 in Gujrat and caused his death on 24.11.2006?
OPP
2. If issue No. 1 is proved in affirmative, whether the petitioners being legal heirs of the deceased are entitled to compensation from the respondents? If so to what amount and who is liable to pay the same out of the respondents?
OPP
3. Whether the petition is not maintainable in the present form and the petitioners have no cause of action to file this petition as alleged?
OPR-2 and 3
4. Whether this tribunal has no jurisdiction to entertain this petition as alleged?
OPR-3
5. Whether the respondent No. 2 was not having valid and effective driving license to drive the offending vehicle on the day of accident as alleged?
OPR-3
6. Whether the respondents No. 1 and 2 have violated the terms and conditions of the insurance policy if so its effect?
OPR-3
7. Whether the offending vehicle RJ-22G-1185 had not been insured with respondent No. 3? If so, its effect?
OPR-3 ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 8
8. Whether the petitioners have filed the petition in collusion with respondents No. 1 and 2? If so its effect?
OPR-3 .
9. Whether the respondents No. 1 and 2 were plying the offending vehicle without fitness certificate, registration certificate and route permit? If so, its effect?
OPR-3
10. Whether the petition is bad for non joinder of necessary parties? If so, who are the other necessary parties?
OPR
11. rRelief."
9. Thereafter, the parties to the lis were directed to adduce evidence.
10. After closure of the evidence, the learned MACT, upon hearing the learned counsel appearing for the parties, has allowed the claim petition and awarded the amount of compensation, as mentioned above, and saddled the Insurance Company with the ultimate liability to pay the amount of compensation, alongwith interest.
11. Feeling aggrieved from the said award, the present appeal has been preferred by the Insurance Company, mainly, on the ground that the sine quo non for granting the compensation to the petitioners, i.e. the claimants, by the insurer of the offending vehicle, has not ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 9 been considered by the learned MACT, as, the deceased himself was tort feasor, as such, no claim, on account of .
his death ought to have been given to the petitioners.
According to the Insurance Company, the plea of collusion has also not been properly adjudicated by the learned MACT.
12. It is the further case of the Insurance Company that it has been proved on the record that, at the time of accident, the offending vehicle was permitted to ply in violation of the terms and conditions of the Insurance Policy and, as such, the learned MACT, according to the Insurance Company, has wrongly held that the driver was having the licence to drive the offending vehicle.
13. Highly relying upon the interrogatories, Ex. RY, it has been argued on behalf of the Insurance Company that the driving licence or its validity, as on the date of accident, has not been proved. The driving licence was issued on 9th August, 2000, for Transport Vehicle, which was valid only for three years and the same does not carry any renewal endorsement.
::: Downloaded on - 06/05/2024 20:34:19 :::CIS 1014. The other ground of attack is that the learned MACT has wrongly awarded a sum of ₹ 2,00,000/- to the .
children of the deceased, under the head 'loss of love and affection' and ₹ 25,000/- has also wrongly been awarded to the petitioners, on account of transportation of the dead body.
15. On the basis of the above facts, Mr. Deepak Bhasin, learned Senior Counsel appearing on behalf of the Insurance Company, has prayed that the appeal may kindly be allowed, by setting aside the impugned award, by dismissing the claim petition.
16. Per contra, the prayer, so made, by the learned counsel appearing for the appellant, has been opposed by the learned counsel appearing for the respondents, on the ground that the learned MACT has rightly fastened the ultimate liability to pay the amount of compensation upon the Insurance Company, as the Insurance Company has miserably failed to prove any willful violation of the terms and conditions of the Insurance Policy.
17. On all these submissions, a prayer has been made to dismiss the appeal.
::: Downloaded on - 06/05/2024 20:34:19 :::CIS 1118. To decide the controversy, involved in the present case, the evidence, adduced by the parties, to .
prove/probabilize their respective stand, is to be seen.
19. Kamla Devi, wife of the deceased, appeared in the witness box as PW-1 and deposed, as per the submissions, as made in the claim petition, regarding the accident, as well as, the income of her husband, to be ₹ 6,000/- per month. She has named truck No. RJ-22G-
1185 (offending vehicle), to be the vehicle, involved in the accident in question. However, whatsoever, she has deposed with regard to the accident, is not liable to be taken into consideration, as, in the opening line of her cross-examination, she has deposed that the accident in question had not taken place in her presence.
20. Learned counsel appearing for the petitioners has tendered documents, Ex. P-1 to P-14, in evidence, and closed the evidence.
21. To rebut this evidence, respondent No. 2 (driver) appeared in the witness box as RW-1 and filed his affidavit Ex. RW-1/A, disclosing therein, that on 23rd November, 2006, at about 7.45 p.m., he was driving the offending ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 12 vehicle. When, he was at Valsad, he was reversing his truck and meanwhile, Feni Ram, who was driving the .
another truck, had alighted down from his vehicle and come under the offending vehicle. According to this witness, accident had taken place due to the negligence of Feni Ram. This witness has deposed that he was having a valid and effective driving licence and proved the copy of the same as Ex. RW-1/A.
22. In his cross-examination, this witness has deposed that his licence was issued by RTO, Mumbai Central, Old Bodyguard Lane, Tardeo. He has denied that on the date of accident, his driving licence was not valid.
He has given the number of his driving licence as MH01 20070009708. He has further deposed that his driving licence was renewed on 9th April, 2007. Self stated that it has been renewed on various occasions. He has admitted that he was not having any documentary proof with regard to the validity of the driving licence on 23rd November, 2006.
23. The learned counsel appearing for the Insurance Company has tendered the extract of the driving ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 13 licence, as Ex. RX; answer to the interrogatories as Ex. RY and the Insurance Policy of the offending vehicle as Ex. RZ.
.
24. In this case, vide order, dated 18 th November, 2009, the application, under Order 26 Rule 4 CPC read with Section 151 CPC, for issuance of interrogatories for examination of witnesses, has been allowed by the learned MACT and the learned Civil Judge (Senior Division) Valsad (Gujarat) hasr been appointed as commission for examination of Dr. H.M. Desai, Chief Medical officer, Gunvantrai Chuni Lal Sheth Surgical Hospital, Jawahar Lal Nehru Road, Valsad; Dr. Sanjeev Desai, Medical Surgeon, Kasturba Vaidyakiya Rahat Mandal, Kasturba Hospital, Lala Lajpat Rai Road Valsad (Gujarat) and MHC of Police Station Valsad (Gujarat) Rural.
25. Pursuant to this, the Commission has recorded the statement of Dr. Rohan Ashokbhai Patel. According to this witness, Dr. H.M. Desai had conducted the post mortem examination of the dead body of the deceased on 24th November, 2006 and issued the post mortem Note No. 210/2006, according to which, the cause of death was ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 14 shock and haemorrhage, resulting from rupture of femoral vessels with crush injuries.
.
26. Dr. Sanjiv, from Kasturba Hospital, has stated that Feniram Rosanlal Bhardwaj was examined by him on 23rd November, 2006, when, he was admitted on 11.30 p.m. and he died at 04.40 a.m. on 24th November, 2006.
27. Promodbhai was serving as Police Inspector of Valsad City Police Station, at the relevant point of time.
According to him, FIR No. 162 of 2006 was registered with Valsad Rural Police Station against Manoharlal Rosanlal Bhardwaj, under Sections 279, 337, 304-A IPC and 177 & 184 of the MV Act. He has stated that since, the accident had taken place within the jurisdiction of Police Station Valsad City, as, such, CR No. 204/2006 was prepared and charge sheet had been filed by the said Police Station, against Manohar Lal. The said case is stated to be pending in the Court of learned third Additional Senior Civil Judge, Valsad.
28. As per the interrogatories submitted by the Insurance Company, Ex. RY, driving licence is bearing No. MH01 20070009708. As per document, Ex. RY, the said ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 15 licence has been issued by Assistant Regional Transport Office, Mumbai (Central) on 9th February, 1999 and the .
same was valid for Transport Vehicles up to 25 th October, 2015 and Non-transport Vehicles up to 8 th February, 2019.
The said interrogatories are reproduced, as under:
Sr. No. Question Answer
1. Whether driving This office has
licence no MH01 issued licence No.
20070009708 date MH01
of issue 20070009708 to
09/02/1999 has Shree Manohar Lal
r been issued by on dt. 09/02/1999
your office in the valididty dt. TR is
name of Manohar 25/10/2015 & NT
Lal s/o Roshanlal is 08/02/2019 for
if so then from the class of LMV NT
which date to & HGV (The copy of
which date the the licence extract is
same is valid and annexed herewith
what category of for perusal.
vehicle the same
has been issued to
drive the vehicle?
2. Whether said Driving class are as
driving licence has follow:
been renewed by 1-LMV (NT)
your office, if so 2-HGV
then mention the Validity for (NT) class
period of renewal 08/02/2019
and for which Transport class
category of vehicle validity 26/10/2012
the same is to 25/10/2015.
authorized to
drive the vehicle?
29. This document is too short to hold that on the date of the accident, i.e. 23rd November, 2006, respondent ::: Downloaded on - 06/05/2024 20:34:19 :::CIS 16 No. 2 was not holding a valid and effective driving licence to drive the offending vehicle. The interrogatories were .
issued on 17th April, 2015, after about nine years from the date of accident. Moreover, no specific question has been mentioned in the interrogatories, regarding the validity of the driving licence for Heavy Transport Vehicle, as, on the date of accident.
30. The onus was upon the Insurance Company to prove that on the day of accident, i.e. 23rd November, 2006, respondent No. 2 was not having a valid and effective driving licence, which, the Insurance Company has failed to discharge.
31. No other point has been urged or argued.
32. In view of the discussions made hereinabove, there is no substance in the appeal. The same is, therefore, dismissed.
33. No order as to costs.
34. Record be sent back.
( Virender Singh ) Judge May 06, 2024 ( rajni ) ::: Downloaded on - 06/05/2024 20:34:19 :::CIS