Himachal Pradesh High Court
Smt. Vidya Devi vs Shri Naresh Kumar And Another on 19 June, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAOs (MVA) No. 301 and 637 of 2008.
Judgment reserved on 5.6.2015.
.
Date of decision: 19th June,2015.
1. FAO No.301 of 2008.
Smt. Vidya Devi .....Appellant
Versus
Shri Naresh Kumar and another ...Respondents.
2. FAO No.637 of 2008.
Naresh Kumar .....Appellant
Versus
Smt. Vidya Devi and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes For the appellant(s): Mr.J.L. Bhardwaj, and Mr. Vikram Thakur, Advocate, vice Mr. M.A. Khan, Advocate, for the appellants in both the appeals.
For the respondent(s): Mr. Vikram Thakur, Advocate, vice Mr. M.A. Khan, Advocate, for respondent No. 1 in FAO No. 301 of 2008 and Mr. J.L. Bhardwaj, Advocate, for respondent No. 1 in FAO No. 637 of 2008.
Mr. Lalit K. Sharma, Advocate, for respondent No. 2 in FAO No. 301 of 2008 and Mr. G.C. Gupta, Sr. Advocate, with Ms. Meera Devi, Advocate, for respondent No. 2 in FAO No. 637 of 2008.
__________________________________________________ Mansoor Ahmad Mir, Chief Justice.
These two appeals are outcome of a common judgment and award dated 1.3.2008, passed by the Motor Accident Claims Tribunal, Fast Track Court Shimla, H.P. in MAC No.62-S/2 of 2005/2001, whereby compensation to the tune of Rs.2,03,000/- alongwith 9% interest and cost to the tune of Rs.1000/- came to be awarded in 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. Yes ::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -2- favour of the claimant and the insured was saddled with the liability.
2. Both these appeals are being taken up .
together for disposal in the given circumstances.
3. The claimant has filed FAO No. 301 of 2008 for enhancement of compensation and the insured has filed FAO No.637 of 2008, for exonerating him from the liability and saddling the insurer with the liability.
4. r Claimant Smt. Vidya Devi, being the victim of a vehicular accident filed claim petition before the Tribunal for the grant of compensation on the grounds taken in the memo of claim petition. It is averred in the claim petition that his son, namely, Sh. Vidya Sagar 21 years of age was agriculturist and horticulturist by profession, hired truck No. HP-51-2587 from Kumarsain to Rampur for bringing the karyana articles for his shop, which he was running in his village Khaneti. The said truck is stated to be owned by Shri Naresh Kumar respondent No. 1 and Shri Gopal Singh was driving the said vehicle. The said vehicle met with an accident due to carelessness and negligence of driver Gopal Singh and FIR No. 24/2001 dated 21.3.2001 came to be registered in police station Kumarsain. It is further stated that the whole family is facing starvation as well as remains under deep grief and shock and the claimant has been deprived of the source of income hope/help in the old age and love and affection of her son.
::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -3-5. Respondents have resisted the averments contained in the claim petition and following issues came to be framed.
.
(i) Whether the driver of the truck bearing No. HP-
51-2587 was driving the said truck on 21.3.2001 at about 1 AM near Sainj, Tehsil Kumarsain, Distt. Shimla in rash and negligent manner resulting in death of Vidya Sagar, as alleged? OPP.
(ii) If issue No. 1 is proved, whether the petitioner is entitled for compensation, if so from whom? OPP
(iii) Whether the truck in question was being driven without Route permit, registration certificate etc. at the time of accident, as alleged? OPR-2.
(iv) Whether the driver of the said truck was not having valid and effective driving licence at the time of accident, as alleged? OPR-2.
(v). Relief.
6. Claimant examined as many as six witnesses and stepped herself into the witness box as PW1.
7. The respondents have not examined any witness except ASI Sham Lal as (RW-1).
8. The findings returned by the Tribunal on issue No. 1 are not in dispute. The question of quantum as well as who is to be saddled with the liability, is in dispute, in both these appeals.
9. The claimant, by the medium of FAO No. 301of 2008, has prayed that the amount awarded is too meager thus, has disputed the adequacy of compensation.
::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -4-10. Owner Naresh Kumar has questioned the impugned award by the medium of FAO No. 637 of 2008 on the ground that the vehicle was insured and the driver .
was having a valid and effective driving license, thus the insurer was to be saddled with the liability.
11. I have gone through the record and the evidence on the file. The Tribunal has rightly decided issue No. 1 in favour of the claimant and is also not in dispute. Thus, the findings so returned on the said issue are upheld.
12. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 and 4.
13. It is worthwhile to mention herein that the respondents have not pressed both these issues before the Tribunal, thus came to be decided against the respondents. Respondent No. 2, i.e., the insurer had to discharge the onus, failed to do so. Insured has not questioned the findings.
14. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving license, in order to seek exoneration, has not led any evidence and has failed to discharge the onus. Thus, it can be safely held that the driver was having a valid and effective driving license.
15. It was for the insurer to plead and prove that the owner has committed any willful breach and the vehicle was being driven in violation of the route permit ::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -5- and the Registration certificate, has not discharged the said onus. Accordingly, both these issues are decided in favour of the claimant and against the owner, driver and .
insurer.
16. Now adverting to issue No. 2. The Tribunal has fallen in an error in taking the income of the deceased as Rs.3,000/- per month and loss of source of dependency to the tune of Rs.1,000/-. Admittedly, the deceased was 21 years of age at the time of the accident.
It is pleaded that he was agriculturist and horticulturist by profession and was earning not less than Rs.12,000/- per month. By a guess work, it can be safely held that he would have been earning Rs.6,000/- per month. He was an unmarried youth and would have contracted marriage.
After all, the mother has lost a budding son, helping hand in her old age and source of income, therefore, has lost source of dependency to the tune of 50% of Rs.6000/-, i.e., Rs.3000/- per month, in view of ratio laid down in Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120.
17. Thus, the claimant has lost source of dependency to the tune of Rs.3000/- per month. The age of the deceased was 21 years at the time of accident, the ::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -6- just and appropriate multiplier to be applied is "14" in view of Sarla Verma, supra read with Munna Lal Jain and another versus Vipin Kumar Sharma and others .
reported in JT 2015 (5) SC 1. It is apt to reproduce paras 12 and 14 of the said judgment herein:
"12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote:
"36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section
166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish
(a) age of the deceased; (b) income of the deceased; and (c) the number of dependants.
To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma."
13. xxxxxxx xxxxxxxx xxxxxxxxxx
14. The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court."
18. Viewed thus, the claimant is entitled to Rs.3000x12x14=Rs.5,04,000/-+Rs.1000/-costs=Rs.5,05,000/-.
Accordingly, the amount awarded is enhanced to ::: Downloaded on - 15/04/2017 18:23:28 :::HCHP -7- Rs.5,05,000/- with 9% interest, as awarded by the Tribunal.
19. The question is who is to be saddled with the .
liability? The Tribunal has fallen in an error in saddling the insured with the liability for the reasons that the vehicle was duly insured. It was for the insurer to satisfy the award. Accordingly, the insurer is saddled with the liability. The insurer is directed to deposit the entire amount within six weeks from today. On deposit, Registry is directed to release the amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award, through payees' cheque account.
20. The statutory amount deposited by the insured be released to the claimant as costs.
21. The impugned award is modified as indicated hereinabove and the appeals are disposed of accordingly.
22. Send down the record forthwith, after placing a copy of this judgment.
June 19, 2015, (Mansoor Ahmad Mir)
(cm Thakur) Chief Justice.
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