Himachal Pradesh High Court
Smt. Gian Vati & Others vs Smt. Pushpa Devi & Another on 16 October, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
FAOs No. 38 & 200 of 2009
Reserved On : 09.10.2015
Date of decision: 16.10.2015
_________________________________________________
FAO No. 38 of 2009
of
Smt. Gian Vati & others ......Appellants.
Versus
Smt. Pushpa Devi & another
rt ....Respondents.
FAO No. 200 of 2009
Oriental Insurance Company ...Appellant
Versus
Smt. Gian Vati & others ....Respondents.
__________________________________________________
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir,
Mir, Chief Justice.
Whether approved for reporting? Yes.
FAO No. 38 of 2009
For the appellants : Mr. Rakesh Dhaulta, Advocate.
For the respondents: Mr. Anil Chauhan, Advocate, for
respondent No. 1.
Mr. G.C. Gupta, Senior Advocate
with Mr. Abhay Gupta, Advocate,
for respondent No. 2.
FAO No. 200 of 2009
Mr. G.C. Gupta, Senior Advocate
with Mr. Abhay Gupta, Advocate.
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP
2
.
Mr. Rakesh Dhaulta, Advocate, for
respondents No. 1 to 4.
Mr. Anil Chauhan, Advocate, for
respondent No. 5.
__________________________________________________
Mansoor Ahmad Mir, Chief Justice (oral)
of Challenge in these appeals is to the award, dated 12th November, 2008, passed by the Motor Accident rt Claims Tribunal, Shimla (hereinafter referred to as "the Tribunal") in MAC Petition No. 19-S/2 of 2007, whereby compensation to the tune of ` 7,98,000/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization, was awarded in favour of the claimants and the insurer was saddled with liability (for short, "the impugned award"), on the grounds taken in the memo of appeal.
2. The claimants have questioned the impugned award by the medium of FAO No. 38 of 2009, on the ground of adequacy of compensation.
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 33. By the medium of FAO No. 200 of 2009, the .
insurer has challenged the impugned award on the ground that the owner has committed willful breach.
4. The owner-insured and driver have not questioned the impugned award on any count. Thus, it has of attained finality so far as it relates to them.
5. rt The claimants have prayed for enhancement of compensation. The insurer has prayed that it be exonerated and the owner be saddled with liability. It has also pleaded in its appeal that the award amount is excessive.
In order to determine the issues, it is
6. necessary to give a brief summary of the case, the womb of which has given birth to the instant appeal.
7. The claimants have pleaded in the claim petition that on 25.09.2006, deceased Mohi Ram Jodhta was traveling in the vehicle-Truck bearing registration No. HP-62-0945 alongwith potatoes. The said truck met with an accident at 12.30 p.m. near Nihari-Barvi, Tehsil ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 4 Kotkhai, District Shimla, which was being driven by driver, .
namely, Het Ram, rashly and negligently, caused injuries to Mohi Ram Jodhta, who succumbed to the said injuries.
It is also averred in the claim petition that the income of the deceased was not less than `50,000/- per month, of being a Government contractor and horticulturist. The owner has admitted Para No. 24 of the claim petition.
rt Thus, it is an admitted fact that the deceased was traveling in the offending truck as owner of potatoes.
8. The respondents contested the claim the petition on the grounds taken in their replies.
9. Following issues came to be framed by the Tribunal:
"i) Whether the death of Mohi Ram Jodhta was caused in the accident in question due to the rash and negligent driving of truck No. HP-62-
0945 by its driver, as alleged?
..OPP
ii) Whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents?
....OPP ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 5 .
iii) Whether the petition is not competent and maintainable, as alleged?
..OPP
iv) Whether the deceased was traveling in the vehicle in question, as a gratuitous passenger, if so, its effect?
....OPR-2
v) Whether the vehicle in question was of being driven at the time of accident in violation of terms and conditions of the Insurance Policy? ....OPR-2
vi) rt Relief."
10. The parties have led evidence. The Tribunal after scanning the evidence, oral as well as documentary, held that driver Het Ram has driven the offending vehicle, rashly and negligently, on 25.09.2006, at about 12.30 p.m., near Nihari-Barvi, Tehsil Kotkhai, District Shimla, caused the accident, as a result of which, deceased Mohi Ram Jodhta sustained injuries and succumbed to the same.
Issue No. 1.
11. The claimants have proved issue No. 1. The findings returned by the Tribunal on this issue are not in dispute. Accordingly, the same are upheld.
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 6Issue No. 2.
.
12. The claimants have specifically averred in the claim petition that they are entitled to ` 20,00,000/-, as per the break-ups given in the claim petition. They have of placed on record revenue documents Ext. PW-1/A to Ext.
PW-1/D and copy of letter dated 6th June, 2005, Ext. PW.
rt 1/E, indicating that the officials of the Forest Corporation had awarded contracts to deceased Mohi Ram Jodhta.
The claimants were dependants upon deceased, who was earning `4.00 to `5.00 lacs per annum, by working as a contractor and `2.00 to `2.5 lacs per annum from orchard.
13. The Tribunal after scanning the evidence held that deceased was earning `12,000/- per month. It has discussed in para-18 of the impugned award the statement of Sardar Singh (PW-5), Clerk in the Himachal Pradesh Forest Corporation and has given details about the income of the deceased.
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 714. In para-19 of the impugned award, the .
Tribunal has discussed that the income of the deceased during the years 2003-2004 was `1,67,820/- from orchard and `30,000/- from agricultural vocation. It is of apt to reproduce paras 18 & 19 of the impugned award herein:
rt '18. PW-5 Sardar Singh, Clerk of H.P. Forest Corporation has testified that Mohi Ram was working as a Contractor. He has proved in evidence letter of Award, Ex. PW-1/E, issued on 6.6.2005. He has further testified that during the years, 2000-2005 about 10 works were allotted in favour of Mohi Ram of the cost of different amounts. He has approved in evidence tax deduction certificate, Ex. PW-1/A, according to which tax of Rs.
17,089/- and an amount of Rs.3,832/- during the years, 2005- 6 was deducted as tax at source.
He has further testified that an amount of Rs. 39,363/- during the years, 2001-02, Rs. 5,265/- during the years, 2002-03 and an amount of Rs. 41,725/- in the same years had been deducted as tax at source which fact could not be disputed by way of cross-examination.
19. PW-8, sh. Minti, Sr. Tax Assistant has testified that during ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 8 the years, 2003/04, the income of .
Mohi Ram was assessed at Rs.
1,67,820/- and Rs. 30,000/- from agricultural upon which tax of Rs. 19,925/- was paid. He has proved in evidence the intimation slip, Ex.
PW-8/A, and further testified that during the years, 2004-05, agricultural income of deceased of was Rs. 1,50,000/- per annum. The intimation slip of which has been proved as Ex. PW-8/B.
15. rtIt appears that the Tribunal has correctly assessed the income of the deceased to the tune of `12,000/- per month, but has fallen in an error in deducting 1/3rd of his income towards the personal expenses of the deceased. 1/4th was to be deducted towards his personal expenses, keeping in view the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, another reported in AIR 2009 SC 3104 read with Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR (SCW) 3120.
3120. Accordingly, it is held that the ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 9 claimants have lost source of dependency to the tune of ` .
9,000/- per month.
16. The Tribunal has also fallen in an error in applying the multiplier of '8'. The age of deceased at the time of accident was 51 years. The multiplier of '9' is of applicable in view of the 2nd Schedule appended to the Motor Vehicles Act, 1988 read with the ratio laid down by rt the Apex Court in Sarla Verma's case, supra.
17. Accordingly, it is held that the claimants are entitled to ` 9,000/- x 12 = `1,08,000 x 9 = 9,72,000/-, under the head ' loss of dependency'.
18. The Tribunal has awarded ` 30,000/- under the head 'conventional charges', which is too meager. The claimants are held entitled to ` 10,000/- under the head 'loss of consortium' , `10,000/- under the head 'loss of estate', `10,000/- under the head 'loss of love and affection' and ` 10,000/- under the head 'funeral expenses'.
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 1019. Having said so, it is held that the claimants .
are entitled to compensation to the tune of ` 9,72,000/-
+ 10,000/- + 10,000/- + 10,000/- +10,000/-, total amounting to ` 10,12,000/- with 7.5% interest per annum of form the date of filing of the claim petition.
Issue No. 3.
20. rt The insurer has not led any evidence to prove this issue. Even otherwise, learned Counsel for the insurer was not able to show how the claim petition was not maintainable. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld.
Issue No. 4.
21. It was for the insurer to plead and prove that the deceased was traveling in the offending vehicle as a gratuitous passenger, has not led any evidence. Thus, it has failed to discharge the onus.
22. The claimants have specifically averred in para 24 of the claim petition that the deceased was traveling in the offending vehicle as owner of potatoes. At ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 11 the cost of repetition, the owner and driver have admitted .
the said fact. Thus, the findings returned by the Tribunal on Issue No. 4 are upheld.
Issue No. 5.
23. It was also for the insurer to plead and prove of that the owner has committed any willful breach, has not led any evidence. However, the documents, i.e. Ext. RW-
rt 1/A, Driving Licence and Ext. RW-1/B Insurance Policy, prove that the driver was having a valid and effective driving licence at the relevant time. Thus, the insurer has failed to prove this issue. Accordingly, the findings returned by the Tribunal on issue No. 5 are upheld.
24. Learned Counsel for the insurer argued that there was collusion between the truck owner, driver and claimants. It was for the insurer to plead and prove the same, has not led any evidence to prove the said fact.
25. The insurer is directed to deposit the enhanced amount within six weeks from today before the Registry. The Registry is directed to release the amount ::: Downloaded on - 15/04/2017 19:13:39 :::HCHP 12 already deposited and the enhanced amount on .
deposition, in favour of the claimants, strictly as per the terms and conditions, contained in the impugned award.
through payees' account cheque.
26 Having said so, FAO No. 200 of 2009 filed by of the insurer is dismissed.
27. The amount of compensation is enhanced, as rt indicated above. Accordingly, the impugned award is modified and FAO No. 38 of 2009, 2009 filed by the claimants is allowed.
28. Send down the records after placing a copy of the judgment on the file of the claim petition.
October 16,
16, 2015
2015. (Mansoor Ahmad Mir),
Mir),
(hemlata) Chief Justice
::: Downloaded on - 15/04/2017 19:13:39 :::HCHP