Himachal Pradesh High Court
Between vs Naresh Kumar And Others on 15 July, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 15th DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
FIRST APPEAL FROM ORDER (FAO) NO. 4130 OF 2013
Between:-
ORIENTAL INSURANCE COMPANY
LIMITED, MYTHE ESTATE KAITHU,
SHIMLA - 171003, THROUGH ITS
SENIOR DIVISIONAL MANAGER.
THROUGH ITS SENIOR DIVISIONAL MANAGER.
r ...APPELLANT
(BY DR. LALIT K. SHARMA, ADVOCATE)
AND
1. NISHA KUMARI WD/O LATE SH. NIRANJAN SINGH;
2. SITTAL KUMAR, SON ]
3. INDU BALA, DAUGHTER ] OF LATE SH. NIRANJAN
SINGH;
ALL RESIDENTS OF VILLAGE KOHLA,
P.O. KHABLI, TEHSIL DEHRA,
DISTRICT KANGRA, H.P.
....RESPONDENTS/CLAIMANTS
4. PAWAN KUMAR S/O SH. DEVI CHAND,
R/O VILLAGE KASLOG, DISTRICT SOLAN
H.P. (DRIVER).
5. SURESH KUMAR S/O SH. DEVI CHAND
R/O VILLAGE KASLOG, DISTRICT SOLAN,
H.P. (OWNER).
.... RESPONDENTS.
(SH. NARESH KAUL, ADVOCATE, FOR R-1 TO R-3.
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2
NONE FOR RESPONDENTS NO. 4 AND 5).
RESERVED ON: 08.07.2022
DECIDED ON: 15.07.2022.
______________________________________________________________
.
This appeal coming on for pronouncement of
judgment this day, the Court delivered the following:
JUDGMENT
The appellant (hereinafter referred to as the 'insurer') has assailed award dated 22.5.2013 passed by learned Motor Accident Claims Tribunal-I, Kangra at Dharamshala (H.P.) in MACP (RBT) No. 67- G/II/2010/2007, whereby a sum of Rs.15,29,472/- along with interest at the rate of 7.5% per annum from the date of filing of petition till realization, was awarded in favour of respondents No.1 to 3 herein (for short 'claimants') and the insurer was saddled with liability to satisfy the award.
2. The claimants are the legal representatives of Sh. Niranjan Singh, who had died as the result of injuries received by him in a road accident. The compensation was claimed by the claimants under Section 166 of the Motor Vehicles Act, 1988 (for short the 'Act') by alleging that on ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 3 02.07.2006 at about 12.15 P.M. deceased Niranjan Singh was riding a scooter with one Sh. Rattan Singh on the pillion from Nadaun to Jwalamukhi. Truck No. HP-11B-
.
0284, driven by respondent No.4 herein (for short 'driver') came from opposite side in a very high speed. The driver was driving the truck in a rash and negligent manner. He could not control the truck and hit the scooter ridden by deceased Niranjan Singh. Fatal injuries were received by Sh. Niranjan Singh and as a result thereof, he died on the spot. The truck was owned by respondent No.5 herein (for short 'the owner')
3. The claimants specifically made an averment that FIR No. 125 of 2006 registered at Police Station, Jwalamukhi was not based on true facts and the same was lodged by the police in connivance with the owner and driver of the truck.
4. The deceased was stated to be 45 years of age at the time of death. As per the claimants, the deceased was a Government employee and was serving in Rural Development Department of Himachal Pradesh ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 4 Government. His monthly income was stated to be Rs.15,000/- approximately.
5. The owner and driver of the truck contested the .
petition by filing reply inter alia raising preliminary objection as to maintainability of the petition. On merits, it was alleged that the truck No. HP-11B-0284 was stationary at the time of the accident. The deceased Niranjan Singh had lost control while riding scooter and had smashed the scooter against parked truck. It was further submitted that the truck was parked on the side of the road. FIR No. 125 of 2006 was lodged with allegations of rashness and negligence against deceased Niranjan Singh. The police had submitted cancellation report as Niranjan Singh had died.
6. The insurer also contested the claim petition of the claimants by filing a separate reply. It was alleged that the vehicle involved in the accident was being driven in violation of the terms and conditions of policy of insurance. The allegation of collusion between the claimants and owner of truck was leveled. Contributory ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 5 negligence on part of deceased Niranjan Singh was also alleged.
7. Learned Tribunal framed the following issues:
.
1. Whether on account of negligence and rashness on the part of respondent No.1 while driving HP-11B-
0284 on 2.7.2006 caused death of Niranjan ?OPP
2. If issue No. 1 is proved, to what compensation the petitioners are entitled and from whom? OPP
3. Whether deceased Niranjan Singh was himself negligent in driving Motor Cycle HP-36-8373?OPR
4. Whether respondent No.1 was not holding valid and effective driving licence at the time of accident? OPR
5. Whether offending vehicle was being driven in violation of terms and conditions of the insurance policy?OPR
6. Whether deceased Niranjan Singh contributed towards the accident? OPR
7. Relief.
8. Issues No.1 and 2 were decided in favour of the claimants and the award as noticed above was passed.
9. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
10. The fact in issue was whether the accident had occurred due to rash and negligent driving of deceased Niranjan Singh or of the driver of the truck?
::: Downloaded on - 15/07/2022 20:03:36 :::CIS 611. In view of rival claims, the initial onus to prove rash and negligent driving of the driver of the truck rested on the claimants.
.
12. Sh. Jagdev Singh PW-2 was examined by claimants as their witness. Sh. Jagdev Singh had narrated the eye witness account of the accident by way of an affidavit Ext.PW-2/A, tendered in evidence. As per the version of PW-2, on 02.07.2006 at about 12.00 -
12.15 P.M he was on way to his home from Nadaun.
When he reached village Fatehar, he noticed truck No. HP-11B-0284 coming from opposite side. The truck was being driven by at a high speed in a negligent manner due to which the driver of the truck lost control over the vehicle and hit the scooter ridden by Niranjan Singh with Rattan Singh on pillion. He further stated that Niranjan Singh was riding the scooter on his side at a slow speed.
13. From the trend of cross-examination of PW-2 on behalf of insurer, the presence of this witness on spot at the time of accident was not disputed. It was suggested to him that the truck was already parked and the rider of ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 7 the scooter was riding in high speed and as a result thereof had lost control and caused accident. Though towards the end, a suggestion was made to him that he .
was not present on the spot, which was denied by PW-2.
A suggestion disputing the presence of PW-2 on spot at the time of accident, after testing his veracity as to spot position by making detailed cross-examination, will not help the case of insurer.
14. Thus, the claimants had discharged the initial burden.
15. On the other hand, respondents examined RW-1 Sh. Pawan Kumar, driver of the truck. In his examination-
in-chief, RW-1 denied the occurrence of any accident with his vehicle. He further stated that at the time of accident, his vehicle was parked. In cross-examination on behalf of claimants, RW-1 admitted that an accident involving the scooter and truck had taken place and both the riders on the scooter had died. He further stated that police reached on spot after 15-20 minutes and he had got recorded the report with the police. RW-1 nowhere stated ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 8 that PW-2 Jagdev Singh was not present on the spot at the time of accident. Further there is no corroboration to the version given by the driver of the vehicle. Admittedly, .
this witness was interested to see the success of defence raised by him. Moreover, much reliance could not be placed on the statement of this witness for the reasons firstly that he would definitely put forth a version which would save him and secondly, even the FIR Ext. PW-5/A did not mention the driver of the truck to be the informant.
16. Dr. Lalit K. Sharma, Advocate, learned counsel for the insurer placed strong reliance on the contents of FIR Ext.PW-5/A, wherein the factum of rash and negligent driving of deceased Niranjan Singh was mentioned as cause of accident. He further submitted that the claimants themselves had proved the FIR Ext.PW-5/A on record, therefore, the contents of the document have to be read in evidence.
17. It is trite that mere exhibition of a document will not by itself be sufficient to prove its contents. The record ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 9 reveals that an official of Police Station, Jwalamukhi was examined as PW-5, who had brought the records summoned from him which included the original record of .
FIR No.125 of 2006. On such basis a photocopy of the FIR was exhibited as Ext.PW-5/A. In cross-examination on behalf of owner and driver, PW-5 had clarified that he did not investigate the case in pursuance to FIR No. 125 of 2006. He was not the scribe of the document.
18. The contents of FIR Ext.PW-5/A do not clearly reveal that who was the person who had informed the police officials regarding the cause of accident as recorded therein. The FIR records that some police officials were holding inquiry in relation with DDR No.12 dated 02.07.2006 and when they reached village Fatehar, they found the truck No. HP-11B-0284 standing on one side and scooter No. HP-36-8373 lying on its left side. Two persons named Niranjan Singh and Rattan Singh were found lying dead on the spot. On inquiry, it was found that the rider of scooter No. HP-36-8373 had lost control ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 10 over the scooter as he was in high speed and hit the scooter on the left side of the truck.
19. H.C. Gurdeep Singh No.101 on whose .
information FIR Ext.PW-5/A was recorded has been examined as RW-3 before learned Tribunal. As per this witness, he was not an eye witness to the accident. He had reached the spot after half an hour when he had received telephonic information regarding the occurrence of accident. Noticeably, RW-3 had not disclosed the name of informant. Nothing has been stated by this witness as to what was the basis for arriving at hypothesis that the cause of accident was rash and negligent driving of the rider of the scooter. From the above evidence, it cannot be said that contents of FIR were duly proved.
20. In view of above analysis, the contents of FIR Ext.PW-5/A cannot be relied upon for adjudging the cause of accident. Rather, scrutiny of the finding recorded by the learned Tribunal that the accident was caused due to rash and negligent driving of driver of the truck cannot be faulted especially keeping in view the statement of ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 11 PW-2 and there being no effective rebuttal from the respondents.
21. Sections 166 and 168 of the Motor Vehicles Act, .
empowers to Tribunals and Courts with jurisdiction to award just compensation. The appeal is continuation of proceedings undertaken before the Tribunal constituted under the Act. It is the bounden duty of the Tribunals or/and Courts to conclude on just compensation on the basis of material on record. In Pappu Deo Yadav vs. Naresh Kumar and others, AIR 2020 (SC) 4424, the Hon'ble Supreme Court has held as under:
"8. This court has emphasized time and again that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives...."
22. The insurer has not disputed the age of deceased Niranjan Singh to be 45 years at the time of death. As per judgment passed by the Hon'ble Supreme ::: Downloaded on - 15/07/2022 20:03:36 :::CIS 12 Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121, multiplier of 14 has been made applicable for the age .
between 41 to 45 years. In the instant case, learned Tribunal had assessed the dependency by applying the multiplier of 13 which should have been 14, therefore, an amount of Rs.9612 x 12 x 14 = 16,14,816/- is liable to be paid by the insurer to the claimants on account of loss of contribution.
23. Further keeping in view the ratio of judgments passed by the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others (2017) 16 SCC 680 and Magma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram and others (2018) 18 SCC 130, the claimants are entitled to a sum of Rs.15,000/- under the head 'loss of estate', Rs.15,000/- for funeral charges and Rs.40,000/-
to each claimant i.e. Rs.1,20,000/- under the head 'loss of consortium'.
::: Downloaded on - 15/07/2022 20:03:36 :::CIS 1324. Thus, the impugned award needs to be modified to the extent that the claimants are held entitled to following amounts:
.
1.Loss of contribution = Rs.9612X12X14 =Rs.16,14,816/-
2. Loss of estate = Rs. 15,000/-
3. Funeral charges = Rs. 15,000/-
4. Loss of consortium = Rs. 1,20,000/- (Rs.40,000X3) Total = Rs.17,64,816/-
Claimants are further held entitled to interest at the rate of 7.5% per annum from the date of petition till its deposit or payment to the claimants whichever is earlier. It is clarified that the apportionment made by the learned Tribunal in the impugned award shall remain the same.
25. The appeal is accordingly disposed of. The impugned award is modified only to the extent as detailed above. The pending application(s), if any, also stands disposed of.
July 15, 2022 (Satyen Vaidya)
(GR) Judge
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