Himachal Pradesh High Court
___________________________________________________________ vs Sh. Sandeep Sharma Son Of Sh Kuram Chand on 16 December, 2016
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH.
.
SHIMLA.
FAO(MVA) No. 146 of 2011.
Decision reserved on: 15.11.2016.
Date of decision: December 16,2016. ___________________________________________________________ Sh Oriental Insurance Company Ltd.
of ...Appellant.
Vs. Sh. Sandeep Sharma son of Sh Kuram Chand rt and others. ....Respondents.
Coram:
Hon'ble Mr. Justice P.S.Rana, Judge.
Whether approved for reporting1?.Yes.
For appellant. Mrs.Seema Sood, Advocate.
For respondents No.3 to 8. Mr. G.R.Palsra, Advocate.
For other respondents. None.
P.S.Rana, Judge.
Decision: Present appeal is filed under Section 173
of Motor Vehicles Act 1988 against award dated 24.2.2011 passed by Motor Accident Claims Tribunal-I Mandi to the Whether reporters of the Local papers are allowed to see the judgment? yes.::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 2
tune of Rs. 651000/-(Six lacs fifty one thousand) along with .
interest @ 9% per annum from the date of petition till realization in MAC Petition No. 34 of 2009 title Smt.Geeta Devi and others Vs. Sh. Sandeep Sharma and others.
Brief facts of the case:
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2. Smt. Geeta Devi and others filed claim petition under section 166 of Motor Vehicles Act 1988 pleaded therein that on dated 27.3.2008 near village and post office rt Kataula Tehsil Sadar District Mandi HP at about 11/11.30 PM Sohan Lal died when he was sitting in vehicle Tata Tipper No. HP 33B-1305 as mason-cum-labourer. It is pleaded that on dated 27.3.2008 deceased Sohan Lal boarded vehicle Tata Tipper No. HP 33B-1305 from village Batahan District Mandi and was going to village Kataula Tehsil Sadar District Mandi HP and when at about 11/11.30 PM vehicle reached near village Kataula vehicle was in excessive speed and driver of vehicle could not control vehicle due to excessive speed and vehicle was driven in rash and negligent manner. It is pleaded that driver of vehicle could not control vehicle as a result of which vehicle rolled down in rivulet. It is further pleaded that deceased along ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 3 with driver and conductor also rolled down. It is further .
pleaded that deceased sustained multiple grievous injuries and head injuries which proved fatal and deceased died at the spot. It is further pleaded that post mortem of deceased was conducted by medical officer zonal hospital Mandi on of 28.3.2008. The age of deceased is pleaded as 36 years at the time of accident. It is further pleaded that deceased was mason and agriculturist and monthly income of deceased rt pleaded as Rs.10000/- (Ten thousand) per month i.e. Rs.7500/- (Seven thousand five hundred) per month from mason and Rs.2500/- (Two thousand five hundred) per month from agriculture work. It is further pleaded that FIR No. 138 of 2008 dated 28.3.2008 was registered in police station Sadar District Mandi under sections 279, 337 and 304-A IPC. It is further pleaded that co-petitioner No.1 is widow of deceased, co-petitioners No. 2 to 5 are daughters and son of deceased and co-petitioner No. 6 is mother of deceased. It is further pleaded that deceased was only bread earner in the family and all petitioners were dependant upon deceased. Compensation to the tune of Rs. 2000000/-
(Twenty lac) sought.
::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 43. Per contra response filed on behalf of co-
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respondents No. 1 and 2 owner and driver of vehicle No. HP 33B 1305 wherein factum of accident is admitted by co-
respondents No. 1 and 2. It is pleaded that vehicle was not driven in rash and negligent manner. It is pleaded that of deceased was stone cutting mason-cum- labourer in stone mines of co-respondents No. 1 and deceased used to load and unload stones in vehicle of co-respondent No.1. It is rt pleaded that petitioners have claimed excessive compensation amount. It is pleaded that vehicle was duly insured with Insurance Company at the time of accident. It is pleaded that co-respondent No.3 Insurance Company is under legal obligation to indemnify owner. It is pleaded that accident took place due to mechanical defect. It is admitted that deceased was employed as stone cutting mason-cum-
labourer with co-respondent No.1 Sandeep Sharma owner of vehicle. It is admitted that on the day of accident deceased was travelling in vehicle to unload stones which were loaded at village Batahan and which were to be unloaded at village Kataula. Prayer for dismissal of petition sought. It is pleaded ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 5 that if petitioners are entitled to any compensation amount .
the same would be paid by Insurance Company.
4. Per contra separate response filed on behalf of Insurance Company pleaded therein that there is breach of terms and conditions of Insurance Policy. It is pleaded that of vehicle was driven without valid and effective R.C, route permit and fitness certificate. It is pleaded that the driver of vehicle involved in accident was not holding valid and rt effective driving licence at the time of accident. It is pleaded that deceased was travelling as gratuitous passenger in vehicle. It is pleaded that Insurance Company is not under legal obligation to indemnify the owner of vehicle. Prayer for dismissal of petition sought.
5. Motor Accident Claims Tribunal Mandi on dated 4.7.2009 framed following issues.
1.Whether on 27.3.2008 at about 11/11.30 PM near Kataula co-respondent No.2 was driving tipper No.HP 33B-1305 rashly and negligently and caused death of Sh Sohan Lal?. ...OPP
2. If issue No.1 is proved to what amount of compensation petitioners are entitled?.
..OPP.
::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 63. Whether driver of Tipper No. HP 33B-1305 .
was not holding a valid and effective driving license to drive the tipper at the time of accident?. ...OPR.
4. Whether co-respondent No.2 was driving Tipper No. HP 33B-1305 without route permit and fitness certificate?. .... OPR.
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5. Whether deceased was travelling as gratuitous passenger?. ... OPR.
6. Relief.
6. rt Learned Motor Accident Claims Tribunal decided issues No. 1 and 2 in affirmative and learned Motor Accident Claims Tribunal decided issues No.3 to 5 in negative.
Learned Motor Accident Claims Tribunal awarded compensation to the tune of Rs. 651000/- (Six lac fifty one thousand) along with interest @ 9% per annum from the date of petition till realization of amount.
7. Feeling aggrieved against award passed by learned Motor Accident Claims Tribunal Mandi Insurance Company filed present appeal under Motor Vehicle Act 1988.
8. Court heard learned Advocate appearing on behalf of Insurance Company and learned Advocate ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 7 appearing on behalf of respondents and also perused entire .
record carefully.
9. Following points arises for determination in present appeal.
1. Whether appeal filed by Insurance Compnay is liable to be accepted as mentioned in of memorandum of grounds of appeal.
2. Relief.
rt
10.Findings upon point No.1 with reasons:
10.1 PW1 H.C Suresh Kumar has stated that copy of FIR Ext PW1/A is correct as per original record. He has stated that FIR No. 138 of 2008 dated 28.3.2008 was registered under sections 279, 337 and 304-A IPC. He has stated that FIR was not personally written by him.
10.2 PW2 Smt. Geeta Devi has filed affidavit Ext.
PW2/A in examination-in-chief. There is recital in affidavit that on dated 27.3.2008 deceased was travelling in vehicle having registration No. HP 33B-1305 from Bathan to Kataula. There is recital in affidavit that at about 11/11.30 PM night when vehicle reached near Kataula then vehicle ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 8 rolled down from road due to rash and negligent driving of .
vehicle. There is recital in affidavit that driver of vehicle could not control the speed of vehicle. There is recital in affidavit that deceased sustained serious injuries and died at the spot. There is recital in affidavit that on dated 28.3.2008 post of mortem of deceased was conducted in zonal hospital Mandi.
There is recital in affidavit that accident took place due to rash and negligent driving of vehicle. There is recital in rt affidavit that FIR was recorded in police station. There is recital in affidavit that the age of deceased at the time of his death was 36 years. There is recital in affidavit that deceased was mason-cum-labourer at the time of death and he was employed by co-respondent No.1 Sandeep Sharma owner of vehicle involved in the accident. There is recital in affidavit that salary of deceased was Rs.7500/- (Seven thousand five hundred) per month. There is recital in affidavit that deceased used to perform additional agriculture work and used to earn Rs.2000/- (Two thousand) per month. There is recital in affidavit that all petitioners were dependant upon deceased. There is recital in affidavit that co-respondents No.2 to 5 are minors. PW2 also tendered in evidence copy of ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 9 family register Ext PW2/A, death certificate Ext PW2/B and .
post mortem report Ext PW2/C. She has stated that at the time of accident deceased was employed by owner of vehicle involved in accident for loading and unloading stones. She has denied suggestion that salary of her deceased husband of was not Rs.7500/- (Seven thousand five hundred).
10.3 PW3 Sh Lal Singh has filed affidavit in examination-in-chief.
rt There is recital in affidavit that deceased was known to him. There is recital in affidavit that deceased was mason. There is recital in affidavit that in the year 2007 deceased performed work of mason and Rs.200/-
per day paid to deceased by deponent. PW3 has admitted that deceased used to load and unload stones from vehicle of Sandeep Sharma co-respondent No.1. PW3 has denied suggestion that deceased did not work as mason in his house. PW3 has denied suggestion that mason used to earn Rs.150/- (One hundred fifty) per day and labourer used to earn Rs.100/- (One hundred) per day.
10.4 RW1 Sandeep Kumar Sharma owner of vehicle has also tendered affidavit in examination-in-chief. There is recital in affidavit that deponent is the owner of vehicle No. ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 10 HP 33B-1305. There is recital in affidavit that deceased was .
working as stone cutting mason-cum-labourer in stone mines of deponent. There is recital in affidavit that deceased also used to load and unload the vehicle owned by RW1 Sandeep Sharma. There is recital in affidavit that on dated of 27.3.2008 deceased was travelling in vehicle of RW1 to unload the stones which were loaded at village Batahan and were to be unloaded at village Kataula. There is recital in rt affidavit that due to mechanical defect accident took place.
There is recital in affidavit that vehicle was not driven in rash and negligent manner. There is recital in affidavit that deceased was travelling in vehicle as labourer of RW1 to unload the stones which were loaded in the vehicle. RW1 has denied suggestion that deceased was not working as labourer in vehicle. RW1 has stated that stones used to be loaded in vehicle manually. RW1 has denied suggestion that deceased was travelling as gratuitous passenger. RW1 has stated that he used to pay Rs.150/- per day to deceased for dressing hundred stones. RW1 has stated that deceased used to dress 80 to 100 stones in a day and RW1 has stated that he used to pay extra charges to deceased for loading and unloading ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 11 stones. RW1 has denied suggestion that accident did not .
take place due to mechanical defect.
10.5 RW2 Rup Singh has tendered affidavit in examination-in-chief. There is recital in affidavit that he was working as driver in vehicle No. HP 33B-1305 owned by Sh.
of Sandeep Sharma. There is recital in affidavit that on dated 27.3.2008 he was going to unload stones at village Kataula which were loaded by deceased Sohan Lal at village Batahan.
rt There is recital in affidavit that deceased was working as stone cutting mason-cum-labourer in the mines of Sh Sandeep Sharma. There is recital in affidavit that deceased also used to perform work of loading and unloading of stones. There is recital in affidavit that on dated 27.3.2008 deceased was travelling in vehicle involved in the accident to unload the stones at village Kataula. There is recital in affidavit that due to mechanical defect the vehicle could not be controlled and rolled down. There is recital in affidavit that vehicle was not driven in a rash and negligent manner.
RW2 has stated that at the time of accident three persons were travelling in vehicle i.e. RW2 Rup Singh, Soni Kumar conductor and deceased Sohan Singh labourer. RW2 has ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 12 stated that RW1 is the owner of mines at village Batahan.
.
RW2 has admitted that deceased Sohan Lal was working at the mines of Sh Sandeep Sharma for dressing of stones. He has admitted that there was lift system in the vehicle. Self stated that on the day of accident lift system was out of of order. RW2 has stated that lift system was out of order since week. RW2 has denied suggestion that deceased was working as dresser of stones only. RW2 has denied suggestion that lift rt system was in order at the time of accident. RW2 has denied suggestion that deceased was not travelling as labourer in the vehicle at the time of accident. RW2 has denied suggestion that deceased was travelling as gratuitous passenger. RW2 has denied suggestion that vehicle did not develop mechanical defect at the time of accident.
11. None appeared in the witness box on behalf of Insurance Company for oral testimony despite opportunity granted by Motor Accident Claims Tribunal.
12. Following documentaries evidence filed by parties. (1) Ext. PW1/A FIR No. 138 of 2008. (2) Ext PW2/A extract of family register issued by panchayat. (3) Ext PW2/B death certificate of Sohan Lal. (4) Ext RA insurance policy. (5) ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 13 Ext RB certificate of registration of vehicle No. HP 33B-1305.
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(6) Ext RC certificate issued by State Transport Authority Shimla. (7) Ext. RD driving licence. (8) Ext. RX package insurance policy issued by oriental insurance company. (9) Ext RY FIR No. 138 of 2008 dated 28.3.2008 under sections of 279, 337 and 304-A IPC.
13. Submission of learned Advocate appearing on behalf of Insurance Company that driver of vehicle No. HP rt 33B-1305 was not holding valid and effective driving licence to drive tipper at the time of accident and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.3 was upon Insurance Company. No official on behalf of Insurance Company appeared in the witness box in order to prove issue No.3. Hence adverse inference under Section 114
(g) of Indian Evidence Act 1872 is drawn against Insurance company. See AIR 1999 SC 1441 title Vidhyadhar Vs. Mankikrao and another. Also see AIR 1999 SC 1341 title Iswar Bhai C. Patel Vs. Harihar Behera and another.
14. Submission of learned Advocate appearing on behalf of Insurance Company that driver was driving the ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 14 vehicle without route permit and fitness certificate and on .
this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.4 was upon Insurance Company. No official on behalf of Insurance Company appeared in witness box in order to of prove issue No.4. Hence adverse inference under section 114
(g) of Indian Evidence Act 1872 is drawn against Insurance Company in view of ruling cited supra.
rt
15. Submission of learned Advocate appearing on behalf of Insurance Company that deceased was travelling as gratuitous passenger in vehicle at the time of accident and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.5 was upon Insurance Company. No official on behalf of Insurance Company appeared in the witness box in order to prove issue No.5. Hence adverse inference under section 114 (g) of Indian Evidence Act 1872 is drawn against Insurance Company in view of ruling cited supra.
16. Submission of learned Advocate appearing on behalf of Insurance Company that there was lift system in the tipper for loading and unloading purpose and deceased ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 15 used to dress stones only and on this ground appeal be .
allowed is rejected being devoid of any force for reasons hereinafter mentioned. The driver of vehicle namely RW2 Rup Singh who is eye witness of incident has specifically stated in positive manner that on the day of accident lift system of the of vehicle involved in accident was out of order. RW2 Rup Singh has stated in positive manner that deceased was travelling in vehicle as labourer to unload the stones at village Kataula.
rt Testimony of RW2 Rup Singh is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of RW2 Rup Singh. Insurance Company did not adduce in rebuttal oral evidence in order to rebut the testimony of driver of vehicle who is the eye witness of incident.
17. Submission of learned Advocate appearing on behalf of Insurance Company that terms and conditions of insurance policy violated by the owner and Insurance Company is not under legal obligation to indemnify the owner and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. No official on behalf of Insurance Company appeared in witness ::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 16 box in order to prove violation of terms and conditions of .
insurance policy. Insurance Company did not prove breach of terms and conditions of insurance policy as required under law. It is well settled law that breach of terms and conditions of Insurance Company should be proved by of Insurance Company in positive, cogent and reliable manner.
The plea of Insurance Company that terms and conditions of insurance policy flouted by owner is defeated on the concept rt of ipse dixit (Assertion made without proof).
18. Submission of learned Advocate appearing on behalf of Insurance Company that compensation awarded by learned Motor Accident Claims Tribunal is on higher side is rejected being devoid of any force for reasons hereinafter mentioned. Smt. Geeta Devi is the widow of deceased, Sita Devi, Leela Devi, Krishna Devi minors are daughters of deceased, Hoshiar Singh minor is son of deceased and Smt. Pati Devi is the mother of deceased. It is proved on record that all applicants who applied for compensation were dependant upon deceased at the time of his death. It is also proved on record that deceased was employed as mason-
cum-labourer by co-respondent No.1 at the time of accident.
::: Downloaded on - 15/04/2017 21:45:39 :::HCHP 17RW1 Sandeep Sharma has specifically stated when he .
appeared in witness box that he used to pay Rs.150/- to deceased for dressing hundred stones. He has stated that deceased used to dress eighty to hundred stones in a day. He has stated that he used to pay extra charges for loading and of unloading stones in vehicle. Testimony of RW1 Sandeep Sharma remained un-rebutted on record. Testimony of RW1 Sandeep Sharma relating to payment to deceased is reliable, rt trustworthy and inspires confidence of Court. In view of above stated facts it is held that learned Motor Accident claims Tribunal has rightly assessed monthly income of deceased to the tune of Rs. 4500/- (Four thousand five hundred) per month. It is held that learned Motor Accident Claims Tribunal has legally deducted 1/3rd of income of deceased as personal expenses. It is held that learned Motor accident Claims Tribunal has legally assessed the contribution of deceased towards applicants to the tune of Rs.3000/- per month. It is held that as the age of the deceased at the time of accident was 36 years learned Motor Accident Claims Tribunal has rightly applied multiplier of 16.
It is held that learned Motor Accident Claims Tribunal has ::: Downloaded on - 15/04/2017 21:45:40 :::HCHP 18 legally awarded additional compensation to the tune of .
Rs.10000/- (Ten thousand) for love and affection. It is held that learned Motor Accident Claims Tribunal has legally awarded compensation for funeral expenses to the tune of Rs.15000/-(Fifteen thousand) See 2009 (6) SCC 121 Sarla of Verma and others Vs. Delhi Transport Corporation and another. See AIR 2013 SCW 3120 Reshma Kumari and others Vs. Madan Mohan and others. In view of above stated rt facts and case law cited supra point No.1 is decided in negative.
Point No.2(Relief).
19. In view of findings on point No.1 appeal is dismissed. Parties are left to bear their own costs. File of learned Motor Accident Claims Tribunal be sent back forthwith along with certified copy of decision. FAO(MVA) No. 146 of 2011 is disposed of. Pending applications if any also disposed of.
(P.S.Rana) Judge.
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