Himachal Pradesh High Court
National Insurance Company Ltd vs Smt. Kamla And Others on 22 July, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.296 of 2015 Date of Decision : 22.7.2015 .
National Insurance Company Ltd. ....Appellant.
versus Smt. Kamla and others ...Respondents.
of Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. For the Appellant : Mr. Jagdish Thakur, Advocate.
rt For the Respondents : Mr. K.R. Thakur and Mr. H.C. Sharma, Advocates.
Sanjay Karol, Judge CMPM No.227/2015 For the reasons set out in the application, which stand sufficiently explained, delay of 307 days in filing the appeal is condoned. Application stands disposed of.FAO No.296/2015
2. Certain undisputed facts have emerged on record. Claimants are the legal heirs of deceased Girdhari Lal, who died in an accident, while travelling in Vehicle No.HP-63-1185. Accident took place on ::: Downloaded on - 15/04/2017 18:37:29 :::HCHP ...2...
24.7.2010, near Alsindi on Shimla-Karsog Road. At the time of accident, deceased was 45 years of age.
Claiming income of the deceased to be `10,000/- per .
month, as legal heirs and dependents, claimants filed petition, under the provisions of Section 166 of the Motor Vehicles Act, 1966 (hereinafter referred to as the Act), claiming compensation of `10,00,000/- as loss of of income.
3. Based on the pleadings of the parties, rt Tribunal framed the following issues:
1. Whether deceased had died due to rash and negligent driving of vehicle No.HP-63-1185 by its driver as alleged? OPP
2. If issue No.1 is proved in affirmative to what amount of compensation petitioners are entitled and against whom? OPP
3. Whether deceased has himself contributed to accident as alleged and whether deceased was under influence of liquor as alleged? OPR-1
4. Whether vehicle was being driven in contravention of Motor Vehicles Act as alleged? OPR-2
5. Whether deceased was travelling as gratuitous passenger as alleged?OPR-2 ::: Downloaded on - 15/04/2017 18:37:29 :::HCHP ...3...
6. Whether driver did not hold valid and effective driving licence as alleged?
OPR-2
7. Whether petition has been filed by petitioners in collusion with .
respondent No.1 as alleged? OPR-2
8. Whether petitioners have no cause of action as alleged? OPR-2
9. Relief.
4. Issues stand answered in favour of the of claimants with the compensation being awarded in the following terms:-
rt"In view of my findings on above issues claim petition is partly allowed. Award to tune of ` 421000/- (Four lacs twenty one thousands) is awarded in favour of petitioners and against respondents. In addition to this interest at the rate of 9% per annum from date of petition till deposit of award amount is also awarded. In addition costs of petition to tune of ` 3000/-
(Three thousands) also awarded. Award amount will be deposited by insurance company within one month as required under Section 168(3) of Motor Vehicles act 1988.
Consortium amount will be paid to widow of deceased exclusively and remaining award amount will be divided in equal shares among all petitioners. Memo of costs be drawn accordingly. File after due completion be consigned to record-room."::: Downloaded on - 15/04/2017 18:37:29 :::HCHP
...4...
5. Factum of the accident, as a result of rash and negligent driving of the vehicle, on the part of the driver, stands established by the claimants, through .
the testimonies of Shri Hoshiar Singh (PW-1) as also Shri Mani Ram (PW-2). Perusal thereof, does not, in any manner, reveal the findings returned by the Tribunal to be perverse, illegal or erroneous.
of
6. That Girdhari Lal died as a result of the accident is not in dispute. HC Roop Singh (Pw-3) has rt proved FIR (Ex.PW-3/A) and Dr. Tarun Shastri (PW-4) has proved the postmortem report (Ex. PW-4/A).
7. Insurer (appellant herein) is essentially aggrieved of the amount of compensation towards dependency, so awarded by the Tribunal. By taking monthly income of the deceased to be `4,500/- and deducting `1,500/- therefrom, monthly income, for the purpose of dependency stands assessed @ `3,000/-.
8. Record reveals that claimants could not prove, by leading clear, cogent and convincing piece of evidence factum of gainful employment of the deceased. Also what was his income has not come on record.
::: Downloaded on - 15/04/2017 18:37:29 :::HCHP...5...
9. Be that as it may, it is a settled position of law, as has been held by Hon'ble Supreme Court of India, as also by this Court, that it would be permissible .
for the Court to presume the income of the deceased, minimum to the extent he would have earned, had he been working on daily-wage basis. [Govind Yadav vs. New India Assurance Co. Ltd., 2012 ACJ 28; Smt Rajo of Devi vs. M/s Kailash Giri Bus Service Society & others, Latest HLJ 2009 (HP) 14 and Smt. Pappi Devi & others rt vs. Kali Ram & others, Latest HLJ 2008 (HP) 1440.
10. At the time of occurrence of the accident, daily-wage paid by the Government was approximately `110/- per day. So taking the income of the deceased to be `3,300/- per month and deducting 1/3rd for personal expenses, dependency can be worked out to be `2,200/- per month or `26,400/- per year. Taking into consideration the age of the claimants, multiplier of 12 would be appropriate. Thus, applying this multiplier of 12, the claimants are held entitled to a compensation of `3,16,800/- in place of `3,96,000/- so awarded by the Tribunal. Claimants are also entitled to compensation for loss of consortium, funeral expenses, ::: Downloaded on - 15/04/2017 18:37:29 :::HCHP ...6...
conveyance expenses and interest, as awarded by the tribunal.
Thus, with the aforesaid modification in the .
impugned award, appeal stands disposed of, so also the pending application(s), if any.
( Sanjay Karol ),
July 22, 2015(sd) Judge.
of
rt
::: Downloaded on - 15/04/2017 18:37:29 :::HCHP