Himachal Pradesh High Court
Oriental Insurance Company Limited vs Suman Devi And Others on 22 March, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.287 of 2015 Reserved on: 27.02.2024 Date of decision:22.03.2024 .
________________________________________________ Oriental Insurance Company Limited .....Appellant Versus Suman Devi and others ......Respondents ________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting?
________________________________________________ For the appellant: Mr. Ashwani K. Sharma, Senior Advocate, with Mr.Ishan Sharma, Advocate.
For the respondents: Mr. Adarsh Sharma, Advocate, for respondents No.1 to 3.
Mr. Karan Veer Singh, Advocate, for respondent No.4.
Mr. R.K. Sharma, Sr. Advocate, with Mr. Arun Kumar, Advocate, for respondent No.5.
Sushil Kukreja, Judge The instant appeal is maintained by the appellant/ Oriental Insurance Company (hereinafter referred to as "the appellant"), under Section 173 of the Motor Vehicles Act (for short "the Act"), against the award dated 31.03.2015, passed by the learned Motor Accidents Claim Tribunal, Chamba, Division 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 26/03/2024 20:31:18 :::CIS 2Chamba, H.P., in MAC Petition No.25/2013 (395/2013), with a prayer to set aside/modify the impugned award.
2. Succinctly, the facts giving rise to the present appeal .
are that petitioners Pritam Chand and Kanta Devi, filed a claim petition under Section 166 of the Act before the Tribunal below, whereby they sought compensation to the tune of rupees twenty lacs on account of death of their son Shri Gurmeet Singh.
However, during pendency of the said claim petition, petitioner No.1 Pritam Singh (father of deceased Gurmeet Singh) died and subsequently his legal heirs, namely, Suman Devi and Neelama Devi, were brought on record as petitioners No.1(a) & 1(b), respectively. As per the petitioners, deceased Gurmeet Singh died in a motor accident on 26.01.2013, involving vehicle (Mahindra Maxi Cab) bearing registration No.HP-02C-0145, near Lunni Char, Tehsil Bharmour District Chamba, H.P. It was further averred that on 26.01.2013 the deceased hired the vehicle in question and he was traveling from Village Siunr to Holi, which was being driven by one Devender Kumar (respondent No.4 herein) in a rash and negligent manner and when the said vehicle reached near village Machhater, the driver could not control it and the vehicle rolled down and fell in Ravi river, as a result of ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 3 which, the deceased sustained multiple injuries and ultimately died in District Hospital, Chamba on 28.01.2013
3. As per the petitioners, the deceased was 24 years old .
and he was working as mason and apart from this, he used to assist his parents in agriculture and was earning Rs.20,000/- per month. The offending vehicle was owned by one Sarola Ram (respondent No.5 herein) and it was insured with Oriental Insurance Company (appellant herein). It was also averred that the deceased was hale and hearty young man, hence, the petitioners sought compensation to the tune of rupees twenty lacs.
4. The Insurance Company/appellant filed reply to the claim petition, wherein preliminary objections were taken regarding maintainability, that the vehicle was over-loaded with 14 passengers against the seating capacity of 10, it was being driven in contravention of the terms and conditions of the insurance policy, the driver of the offending vehicle was not holding a valid and effective driving licence, the vehicle was being plied in contravention of the Motor Vehicles Act/Rules and it was not having valid route permit/fitness certificate. On merits, it was admitted that the deceased was travelling in the offending ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 4 vehicle, which was overloaded and the insured committed breaches to the terms and conditions of the Insurance Policy, thus, the insurance company is not liable to pay any .
compensation to the petitioners.
5. The driver of the offending vehicle (respondent No.4 herein) in his reply to the claim petition raised preliminary objection of maintainability and on merits, he denied the averments made in the claim petition for want of knowledge. He averred that he was not the driver of the vehicle bearing registration No.HP-02C-0145.
6. The owner of the offending vehicle (respondent No.5 herein) in his reply to the claim petition, raised preliminary objection of maintainability of the petition and averred that the offending vehicle was comprehensively insured with the Insurance company, hence, the insurer was liable to indemnify the petitioners. On merits, the occurrence of accident as well as the death of the deceased was admitted and it was also admitted that the vehicle was owned by him. As per him, the petitioners were not dependents upon the deceased and the amount claimed was excessive. It was also admitted that the offending vehicle was hired by the deceased.
::: Downloaded on - 26/03/2024 20:31:18 :::CIS 57. The petitioners filed rejoinder to the reply filed by the insurance company, wherein the averments made in the reply were controverted and the averments made in the claim petition .
were reasserted and reiterated.
8. On the basis of the pleadings of the parties, the learned Tribunal below framed the following issues on 20.11.2013:-
"1. Whether deceased Gurmeet Singh died on 28 ar R.H. Chamba due to accident which took place on 26th January, 2013 near Lunni Ghar, Gram Panchayat Chanhouta, Tehsil Bharmour District Chamba, while travelling in vehicle No. HP02C-0145, which was being driven by respondent No.2 in a rash and negligent manner as alleged? OPP
2. If issue No.1 is proved in the affirmative, whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP
3. Whether the petition is not maintainable in the present form? OPR
4. Whether the vehicle in question was over loaded with passengers against the permissible limit of ten passengers and was being plied in contravention of terms and conditions of Insurance Policy and Motor Vehicle Act, if so, the effect thereto? OPR1
5. Whether the driver of the vehicle in question was not holding a valid and effective driving licence at the time of accident, as alleged? OPR1
6. Whether deceased Gurmeet Singh Devi and other passengers were travelling in the vehicle in question other than hire or reward and thus the respondent No.1 is not liable to pay the compensation, as alleged? OPR1
7. Whether the vehicle in question was not having a valid route permit and fitness certificate at the time ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 6 of accident, if so, the effect thereto? OPR1
8. Relief."
After deciding issues No.1 and 2 in favour of the petitioners and .
issues No.3 to 7 against the respondents, the claim petition was allowed and the petitioners were granted compensation to the tune of Rs.6,81,800/- alongwith interest, which was to be paid by the insurance company (appellant herein).
9. Feeling aggrieved/dissatisfied, the appellant/ insurance company preferred the instant appeal against award dated 31.03.2015 passed by the learned Tribunal below, with a prayer to set-aside/modify the impugned award.
10. I have heard the learned Senior Counsel for the appellant as well as learned counsel for respondents No.1 to 3, learned counsel for respondent No.4 and learned Senior Counsel for respondent No.5 and also carefully examined the entire record.
11. Learned counsel for the appellant/Insurance Company has firstly contended that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident as the driving licence was issued by the Registration and Licencing Authority (RLA), Bharmour on ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 7 27.03.2012 in favour of one Devender Kumar for driving Light Motor Vehicles (LMV) only. The vehicle, which was involved in the accident was a Mahindra Maxi Cab, which was a medium .
transport vehicle and there was no endorsement on the licence for driving a transport vehicle. Therefore, he contended that the liability to satisfy the Award was wrongly fastened upon appellant as no doubt the Appellant Insurance Company was insurer of offending vehicle but as per contract of insurance, liability of appellant Insurance Company would arise only when owner/insured would not commit any breach of terms and conditions of policy of insurance. He further contended that the owner/insured i.e. respondent No.5 herein is stated to have allowed the offending vehicle to be plied by respondent No.4 herein, who did not have the driving licence to drive offending vehicle and, therefore, liability ought to have been fastened upon owner of the offending vehicle. It is contended that finding on issue No.5 is bad in law as the learned Tribunal below has not taken into account the fact that respondent No.4/ driver of offending vehicle was having authorization to drive only LMV (Light Motor Vehicle) and not a medium passenger motor vehicle.
The medium passenger motor vehicle excludes within its ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 8 definition the light motor vehicle and, thus, the driver was not authorized to drive a medium passenger motor vehicle.
12. It is pertinent to mention here that that in National .
Insurance Company limited Versus Annappa Irappa Nesaria alias Nesaragi and others, (2008) 3 SCC 464, it has been held that a driver who has a valid licence to drive a light motor vehicle, can drive light goods vehicle as well. That apart, the Hon'ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited, (2017) 14 SCC 663 has held that 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road-roller, ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 9 the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as .
enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form. The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14th November 1994, while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger only motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes.
It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act, i.e., light motor vehicle. The effect of amendment of Form 4 by insertion of "transport vehicle"
is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 10 vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. The relevant portion of the judgment .
is reproduced hereunder:
"55. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty (supra) is correct, however, for the reasons as explained by us is co rrect, however, for the reasons as explained by us.
56. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors. (2005) 7 SCC 364, this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus:
"24. Section 2(28) is a comprehensive definition of the ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 11 words "motor vehicle". Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included in the definition of the words "motor vehicle"
under Section 2(28). Similarly, the word "tractor" is defined in Section 2(44) to mean a motor vehicle which .
is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of "motor vehicle"
includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-trailer would constitute a "goods carriage"
under Section 2(14) and consequently, a "transport vehicle" under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Section 2(47) of the MV Act, 1988."
57. There is no dispute with the aforesaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore, the decision renders no help with the cause espoused by the insurer.
58. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 12 for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted .
when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
59. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post- amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions.Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 59 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed.
60. Thus we answer the questions which are referred to us thus:
60.1. 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 13 prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
60.2.A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be .
a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
60.3. The effect of the amendment made by virtue of Act No.54/1994 w.e.f.14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
60.4.The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
13. Although, this Court is conscious of the fact that the decision rendered by the Hon'ble Supreme Court in Mukund Dewangan's case (supra) has been referred to a larger Bench.
However, the said decision is yet not overruled and it has been ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 14 held by the Hon'ble Supreme Court in M/S Bajaj Alliance General Insurance Co. Ltd. Versus Rambha Devi & Ors., Civil Appeal No(s). 841/2018, dated 22.11.2023 that the during the .
pendency of the reference before the larger bench, the judgment of the three-Judge Bench in Mukand Dewangan (supra) shall continue to hold the field and all courts, tribunals and authorities shall, therefore, act on that basis. In the instant case, the driving licence has been issued by RLA, Bharmour on 27.03.2012 in favour of respondent No.4-Devender Kumar for driving Light Motor Vehicle (LMV) and the same was valid till 25.03.2032.
There is no dispute that the vehicle in question was Mahindra Maxi cab, which is a Light Motor Vehicle (LMV), laden weight of which is 2550 Kgs. and unladen weight is 1720 Kgs. In S. Iyyapan Vs. M/s United Indian Insurance Company Ltd. & anr., AIR 2013 Supreme Court 2262, the Hon'ble Supreme Court was considering a case where the offending vehicle was a Mahindra Maxi Cab and the driver was holding a driving licence to drive a light motor vehicle and it was held that merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, it cannot be said that the driver was not holding the licence to drive the ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 15 commercial vehicle. The relevant portion of the judgment is reproduced as under:-
"19. In the instant case, admittedly the driver was holding .
a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside"
14. In the present case also, the driver of the offending vehicle was having a valid and effective driving licence to drive light motor vehicle. Therefore, in view of the aforesaid judgements of the Hon'ble Apex Court, merely because of the fact that the driver did not get any endorsement on the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, it cannot be said that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident.
15. Learned counsel for the appellant/insurance company next contended that the vehicle in question was overloaded and was being plied in violation of the terms and conditions of the insurance policy at the time of the accident, therefore, the insurance company is not liable to pay any compensation. The ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 16 perusal of RC Ext. R4 reveals that the seating capacity of the vehicle involved in the accident, i.e. Mahindra Maxi Cab was '10' and its laden weight was 2550 Kg and unladen weight was 1720 .
Kg, as per copy of RC Ext.R4. Section 2 (22) of the Act defines "maxicab" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward.
16. The onus was upon the appellant/insurance company to lead evidence that the overloading was the main cause of the accident. However, no evidence has been led by the insurer in this respect. On the other hand, the perusal of FIR Ext.PW1/A shows that the accident in question was caused due to the rash and negligent driving of the vehicle by its driver. The driver of the offending vehicle while appearing in the witness-box as RW-1 categorically denied in cross examination that the accident took place due to the overloading of the vehicle. The appellant/ insurance company has failed to lead any evidence to suggest that the overloading of the vehicle contributed in any manner to the accident in question.
17. In B.V. Nagaraju Versus Oriental Insurance Co.
Ltd., Divisional Officer, Hassan, (1996) 4 SCC 647, it has been ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 17 held in para-7 of the judgment as under:-
"7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in .
the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Sikand's case this Court paved the way towards reading down the contractual Clause by observing as follows :-
".......When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's "Breach of Contract" vide paragraph 251. To quote :
"Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wise exclusion clauses ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 18 defining a promisor's contractual obligations. For example, in Glynnn v. Margetson & Co. [1893 AC 351, 357], Lord Halsbury, L.C. stated:
'It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance .
look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard ...... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societed' Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract."
18. In Lakhmi Chand Versus Reliance General Insurance, (2016) 3 SCC 100, the Supreme Court referred to its earlier judgment in B.V. Nagaraju's case (supra) wherein it was held that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. Para-16 of the judgment is reproduced as under:-
"16. It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent- Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held Further, as has been held in the case of B.V. Nagaraju that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 19 the contract to an end, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was in fact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR No.66 of 2010 was registered for the offences .
referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in Lakhmi Chand v. Reliance General Insurance is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.
19. In the present case also, as observed earlier, the appellant/insurance company had failed to lead any evidence to suggest that the overloading of the vehicle contributed in any manner to the accident in question, rather in view of the evidence on record, it has been established that the accident had occurred on account of rash and negligent driving of the offending vehicle by its driver. Therefore, the contention of the learned counsel for the appellant that the insurance company is not liable to pay any compensation to the petitioners on account of overloading of the offending vehicle is devoid of any force.
20. Learned counsel for the appellant/insurance company lastly contended that the learned Tribunal below had awarded compensation in favour of the petitioners/respondents, which is on the higher side. The learned Tribunal below has awarded a compensation of Rs.6,81,800/- alongwith interest @ 9% per ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 20 annum.
21. Now, the question which arises for consideration before this Court is as to what compensation should be awarded .
to the petitioner in the present case. The perusal of the record reveals that petitioner No.1-Pritam Chand, who was father of deceased Gurmeet Singh, had died during pendency of the claim petition before the learned Tribunal below and subsequently his legal heirs were brought on record as petitioners No.1(a) & 1(b).
Petitioner No.2-Kanta Devi is mother of the deceased. At the time of the accident, deceased Gurmeet Singh was 24 years of age as per copy of Pariwar Register Ext.PW2/C. As per the petitioners, the deceased was working as mason and apart from this, he used to assist his parents in agriculture and was earning Rs.20,000/- per month. However, the petitioners in support of their contention have not produced any cogent and satisfactory evidence establishing the exact income of the deceased. The learned Tribunal below had assessed the monthly income of the deceased at Rs.4,500/- by doing odd jobs like labourer at the time of his death.
22. Dealing with the issue of notional income of the deceased is imperative to determine the loss of dependency and ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 21 overall quantum of the compensation towards death of the deceased. As observed earlier, on perusal of the record, it is found that there exists no documentary evidence which .
establishes monthly income of the deceased or the nature of occupation undertaken by him. As per the petitioners, the deceased was working as mason and apart from this, he used to assist his parents in agriculture. The only evidence available on record is that the deceased used to earn Rs.20,000/- per month by doing the work of mason and by assisting in agriculture is the testimony of his mother Kanta Devi i.e. PW-2. However, the said testimony is not supported with any documentary evidence.
23. It is a trite law that in absence of any evidence, documentary or otherwise, to establish the earnings of the deceased, the Courts should determine the income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. In Govind Yadav Vs. New India Assurance Co. Ltd., 2012 ACJ 28 Supreme Court cases, it has been held by the Apex Court as under:-
"17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as helper and was getting salary of Rs.4,000 per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 22 and payment of salary by the employer. Learned Tribunal then proceeded to determine the amount of compensation in lieu of loss of earnings by assuming the appellant's income to be Rs.15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a cleaner, .
appellant may have been earning Rs.2,000 per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that the relevant time minimum wages payable to a worker were Rs.3,000 per month. Therefore, in the absence of other cogent evidence, Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earnings by taking the appellant's notional annual income as Rs.36,000 and the loss of earnings on account of 70 percent permanent disability as Rs.25,200 per annum."
24. Thus, in the absence of any cogent and satisfactory evidence on record with respect to the earning of the deceased, the reference can be made to the minimum wages payable at the relevant time in the State of Himachal Pradesh. The accident in question had occurred on 26.01.2013 and the minimum wages payable in the year 2013 to the un-skilled worker were Rs.4,500/-
per month. Thus, the learned Tribunal below rightly fixed the income of the deceased as Rs.4500/- per month as per the minimum wages Act. The Hon'ble Apex Court in National Insurance Company Limited Versus Pranay Sethi & others, (2017) 16 SCC 680 observed the following with regard to grant of compensation under the head "Future Prospects". Para 59.4 of the said judgment reads as under as under:-
::: Downloaded on - 26/03/2024 20:31:18 :::CIS 23"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 aforesaid income means the income minus the tax component."
The deceased was of the age of 24 years at the time of his premature death, as such, an addition of 40% of the established income of the deceased has to be granted under the head "Future Prospects'', therefore, Rs.1,800/- can be added towards his income on this Count. Hence, total income of the deceased can be assessed as Rs.6,300/- per month. Since the deceased was bachelor, as such, out of his total monthly income, 50% of the income has to be deducted towards personal and living expenses of the deceased.
25. In Sarla Verma and others Versus Delhi Transport Corporation and another, (2009) 6 SCC 121, the Apex Court held that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 24 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 .
for 66 to 70 years. Para-42 of the judgment is reproduced as under:-
"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M- 14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
26. In the case on hand, since the deceased was 24 years of age at the time of her death, therefore, as per the judgment of the Hon'ble Supreme Court in Sarla Verma's case (supra), the appropriate multiplier would be '18'. At the time of his death, the deceased was 24 years of age and the parents of the deceased were dependants upon him, however, during pendency of the claim petition, petitioner No.1-Pritam Chand (father of deceased Gurmeet Singh) died, hence, his LRs were brought on record as petitioners No.1(a) & 1(b), who are sisters of the deceased. The language of Section 166 of the Act makes it clear that an application for compensation arising out of an ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 25 accident can be filed by all or any of the legal representatives of the deceased. This provision does not speak of dependants or all such legal representatives being dependent upon the .
deceased. hence, petitioners No.1(a) and 1(b), being sisters of the deceased are entitled to the loss of contribution to the family, though they may not, in strict sense, being dependent upon the deceased.
27. Thus, after fixing the notional monthly income of the deceased at Rs.6,300/ (4500 +1800) and after deducting 50% amount from the income of the deceased for his own use, i.e. Rs.3,150/-, the total dependency comes to Rs.3,150/- per month.
By applying the multiplier of '18' as per the settled law, the compensation under the head loss of dependency is re-fixed as Rs.6,80,400/- (3150 x12 x18).
28. The learned counsel representing the petitioners contended that since learned Tribunal below has failed to award certain amount under the conventional heads i.e. filial consortium and loss of estate, this Court while exercising power under Order 41 Rule 33 CPC may proceed to award the same in favour of the petitioners. On the other hand, learned Senior Counsel for the appellant, while seriously opposing the aforesaid prayer made on ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 26 behalf of the claimants, contended that since no cross-appeal ever came to be filed on account of claimants, this Court has no power to award an extra amount/enhance the amount already .
awarded by the learned Tribunal below in the instant proceedings.
29. In Ranjana Prakash and Ors. Vs. Divisional manager and Ors (2011) 14 SCC 639, it has been held that to do complete justice between the parties, the amount of compensation can be enhanced by an Appellate Court while exercising powers under Order 41 Rule 33 CPC, even if the respondent had not filed any appeal or cross-objections. Relevant para of the aforesaid judgment reads as under:-
"7.This principle also flows from Order 41 Rule 33 CPC which 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......."
30. Thus, in view of the aforesaid judgment passed by the ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 27 Hon'ble Apex Court, this Court while exercising power under Order 41 Rule 33 of CPC can proceed to make such further or other order which ought to have been passed in order to do .
complete justice between the parties even in those cases, where no cross appeals/cross-objections have been filed. It is not in dispute that learned Tribunal below while passing impugned award has not awarded any amount on account of loss of estate and filial consortium to the mother of the deceased, as such, the award to that extent needs to be modified.
31. In Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 Supreme Court Cases 130, the Hon'ble Supreme Court has held as under:-
"21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium".
The right to consortium would include the company, care, help comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
21.1. Spousal consortium is general defined as rights pertaining to the relationship of a husband-wife which allows compensation o the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 28 protection, affection, society, discipline, guidance and taining".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes .
great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of love, affection, care and companionship of the deceased child."
32. While placing reliance upon the judgment passed by the Hon'ble Apex Court in New India Assurance Company Limited Vs. Somwati and Ors, (2020) 9 SCC 644, the learned counsel representing the petitioners submitted that petitioner No.2 being mother of the deceased is also entitled for consortium @ Rs.40,000/-. The Hon'ble Apex Court in its judgment rendered in case titled Magma General Insurance Co. Ltd. (supra) which has also been 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 the Hon'ble Apex Court in Magma General Insurance's case (supra), the ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 29 Hon'ble Apex Court in its latest judgment passed in Somwati's case (supra) has held as under:-
"34. 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'.
35. 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."
36. In 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
b) Parental consortium: 40,000x3 = Rs. 1,20,000
iii) Funeral Expenses: Rs. 15,000"::: Downloaded on - 26/03/2024 20:31:18 :::CIS 30
37. 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.
38. 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.
39. 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."
33. Further in the case of Pranay Sethi's case (supra), the Hon'ble Supreme Court has held that for the conventional heads, namely, "Loss of Estate", "Loss of Consortium" and "Funeral Expenses" amount of compensation is fixed as Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/-, respectively and the aforesaid figures quantified by the Apex Court have to be enhanced on percentage basis, at the rate of 10%, in a span of every three years. Accordingly, by taking the increase @ 10%, ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 31 after every three years, under the conventional heads, the petitioners are entitled to Rs.19,965/- for loss of estate, Rs.19,965/- as funeral expenses and petitioner No.2 i.e. the .
mother of the deceased, is entitled to Rs. 53,240/- towards loss of filial consortium. Accordingly, the total amount of compensation comes out as under:-
Head Amount
(i) Loss of dependency Rs.6,80,400-/-
(ii) Funeral expenses Rs.19,965,/-
(iii) Loss of estate Rs.19,965/-
(iv) Filial consortium Rs.53,240/- payable to petitioner
No.2/ respondent No.3)
Total compensation awarded Rs.7,73,570/-
34. The aforesaid amount of compensation awarded in favour of the petitioners shall be shared by them in the following apportionment:-
Petitioners No.1(a) & 1(b): 15% each Petitioner No.2 : 70%.
35. Consequently, in view of detailed discussion made here-in-above and the law laid down by the Hon'ble Apex Court, the impugned award stands modified. The remaining terms of the impugned award, including the interest component, shall remain the same. The appeal stands disposed of in the above terms, so ::: Downloaded on - 26/03/2024 20:31:18 :::CIS 32 also the pending applications, if any.
( Sushil Kukreja ) .
Judge
March 22, 2024
(VH)
r to
::: Downloaded on - 26/03/2024 20:31:18 :::CIS