Himachal Pradesh High Court
Sh. Dixit & Others vs Shri Prakash Chand & Others on 31 December, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:16969-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.89 of 2016 &
FAO No.120 of 2016
Decided on: 31.12.2024
FAO No.89 of 2016
Sh. Dixit & others ... Appellants
Versus
Shri Prakash Chand & others ... Respondents
FAO No.120 of 2016
National Insurance Company ... Appellant
Versus
Smt. Sunita (since deceased)
& others ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
____________________________________________________ _
For the appellant(s)/
respondents : Mr. Vinay Thakur, Advocate, in FAO
No.89 of 2016 and for respondents
No.5 and 6 in FAO No.120 of 2016.
Mr. Ashok Sud, Senior Advocate, with
Mr. Khem Raj, Advocate, for
respondents No.1 and 2 in FAO No.89
of 2016.
Mr. Ashwani K. Sharma, Senior
Advocate with Mr. Ishan Sharma,
Advocate, for the appellant in FAO
No.120 of 2016 and for respondent
No.3, in FAO No.89 of 2016
Ajay Mohan Goel, Judge (Oral)
Both these appeals arise out of award dated 31.10.2015,
passed by learned Motor Accident Claims Tribunal, Shimla,
Himachal Pradesh, in M.A.C. No.19-S/2 of 2013, titled as Smt.
Sunita & others Versus Shri Prakash Chand & others.
1 Whether reporters of the local papers may be allowed to see the judgment?
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2. Brief facts necessary for the adjudication of these
appeals are that the claimants filed a Claim Petition on the ground
that Shri Rajinder Kumar, husband of claimant Sunita and the
father of other claimants, lost his life in an accident on 11.04.2013
on account of rash and negligent driving of the offending vehicle
which was being driven by Kiran Kumar, owned by Prakash Chand
and which was insured with the National Insurance Company. As
per the claimant, the accident took place on 11.04.2013 at around
8:10 P.M. near Dhanda (Totu). The matter was reported to the police
which led to the registration of FIR No.64 of 2013, dated 11.04.2013,
under Section 279 and 304-A of the Indian Penal Code against Kiran
Kumar. Shri Rajinder Kumar died on the spot itself. He was 51years
old. He was working in Indian Agriculture Research Institute,
Branch Office at Dhanda. His salary was Rs.24,182/- per month.
The claimants prayed for compensation to the tune of
Rs.50,00,000/- alongwith interest.
3. The owner and driver of the vehicle took the plea that
the vehicle in issue, i.e. Truck bearing Registration No.HP-248-3551,
did not meet with any accident, nor deceased died on account of
rash and negligent driving of the driver.The Insurance Company took
the plea that neither the driver of the vehicle was having a valid and
effective Driving Licence, nor the vehicle was being plied in terms of
the Insurance Policy.
4. On the basis of the pleadings of the parties, learned
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Tribunal framed the following issues:-
“1) Whether the respondent No.2 was driving the Truck
bearing No. HP-24B-3551 on dated 11.04.2013 near
Dhanda (Totu), Shimla in a rash and negligent manner
resulting into death of Rajinder Kumar, as alleged? OPP.
2) If issue No.1 proved in affirmative, whether the
petitioners are entitled for compensation, if so, to what
amount and from whom? OPP.
3) Whether the present claim petition is not maintainable?
OPR-3.
4) Whether the respondent No.2 was not having valid and
effective driving licence at the time of accident, if so, its
effect? OPR-3.
5) Whether the vehicle was being driven in violation to the
terms and conditions of the insurance policy as well as
provisions of the M.V. Act, if so, its effect? OPR-3.
6. Relief.”
5. On the strength of evidence which was led by the parties
in support of their respective contentions, the issues so framed were
answered as under:-
"Issue No.1 : Yes
Issue No.2 : Yes, Claimants are entitled to a
sum of Rs.21,23, 560/- as
compensation from the
respondents.
Issue No.3 : No.
Issue No.4 : No.
Issue No.5 : No.
Relief: Claim petition is allowed as per
the operative part of the Award."
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6. Learned Tribunal awarded an amount of Rs.21,23,560/-
in favour of the claimants alongwith interest. The claimants were
held entitled for compensation from the respondents jointly and
severally.
7. Feeling aggrieved, the award has been assailed by the
Insurance Company, inter alia, on the ground that learned Tribunal
erred in coming to the conclusion that the deceased lost his life on
account of an accident involving the Truck and the accident took
place due to the rash and negligent driving of the truck thereof. The
Insurance Company further has taken the stand in the appeal that
the deceased himself was negligent while crossing the road as he
was drunk and therefore, the award passed by learned Tribunal is
liable to be set aside/modified.
8. It was contended by learned Senior Counsel appearing
on behalf of the Insurance Company that deceased lost his life after
being hit by some other vehicle and in the absence of there being
any eye-witness, the Truck insured with the Insurance Company
was wrongly referred to be the offending Truck and this extremely
important aspect of the matter was ignored by learned Tribunal.
Learned Senior Counsel further submitted that as there is no
evidence on record that as it was rash and negligent driving of the
offending Truck by its driver which killed the deceased, the award is
liable to be set aside. Learned Senior Counsel also submitted that
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the award was not sustainable as learned Tribunal erred in not
appreciating that the deceased was under the influence of liquor and
the award was on the higher side.
9. On the other hand, learned counsel for the claimants
submitted that as far as the finding returned by learned Tribunal
that the deceased lost his life on account of rash and negligent
driving of the driver is concerned, the same does not calls for any
interference, but because the award is on the lower side, therefore,
the same requires enhancement.
10. I have heard learned counsel for the parties and have
also carefully gone through the award under challenge.
11. The Issues framed by learned Tribunal have already
been quoted by me hereinabove. While deciding Issue No.1, learned
Tribunal held that Rajinder Kumar lost his life on account of rash
and negligent driving of the driver of the Truck, i.e. respondent No.2
before learned Tribunal on 11.04.2013. While arriving at the said
finding, learned Tribunal took into consideration the fact that the
FIR in issue, i.e. FIR No.64 of 2013, dated 11.04.2013 was lodged
against driver Kiran Kumar and PW-3 Dr. Gian Thakur, who was
examined by the claimants to prove that Rajinder Kumar had died in
the road side accident involving the offending Truck, deposed in the
Court that he had visited the spot in Case FIR No.64 of 2013, on
12.04.2013 and on the spot he noticed blood stained as well as food
articles and also a black coloured bag lying at the spot. This witness
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also stated that he inspected the offending Truck which was parked
in Tara Devi Junkyard, from which also he lifted the blood stains
from the differential of the Truck and blood stains, food articles,
stains were also found and lifted from there. Learned Tribunal also
observed that no complaint was lodged by the owner of the driver of
the Truck to the higher authorities that a false FIR stood registered
against the driver.
12. Having carefully perused the record of the case, this
Curt is of the considered view that the findings returned by the
learned Tribunal to the effect that the deceased lost his life in the
accident involving the Truck in issue, insured with the present
appellant, are clearly borne out from the record of the case. The
contention of learned Senior Counsel that no accident took place as
alleged and the Truck in issue was not involved in the accident is
negated by the reply of the said Insurance Company to the claim
petition. A perusal thereof demonstrates that the stand taken in the
reply by the insurance company was that the deceased was under
the influence of intoxication and may be responsible for the accident.
It was further its stand that, the vehicle in question was not
possessing valid Registration Certificate, Route Permit at the time of
the accident and therefore, the Insurance Company was not liable to
indemnify the claimants. These contents of the reply amount to
implied admission on the part of the Insurance Company before the
learned Tribunal that the vehicle indeed was involved in the
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accident, in which, deceased lost his life but its contention was thatthe vehicle was being driven in violation of the terms and conditions
of the Insurance Policy and further may be as the deceased was
intoxicated, this might have led to the accident. Therefore, the
contention of learned Senior Counsel that the Truck was not at all
involved in the accident cannot be accepted and findings returned by
the learned Tribunal that deceased lost his life in an accident
involving said Truck are, clearly borne out from the record of the
case.
13. Now as far as the contention of learned Senior
Counsel that the deceased was in an intoxicated condition when the
accident took place is concerned or that it is a case of contributory
negligence are concerned, no issue to this effect was framed at the
instance of the Insurance Company and no evidence was led by the
Insurance Company to substantiate this contention of its. In the
said backdrop, now the Insurance Company cannot be allowed to
rake up this issue in appeal and assail the award on the said
ground.
14. As far as compensation awarded by learned Tribunal is
concerned, in terms of the appeal filed by the Insurance Company,
there is no challenge thereto in the grounds of appeal. On the other
hand, learned Counsel for the appellants in the appeal filed on
behalf of the claimants, submitted that the same calls for
enhancement.
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15. On the issue of determination of the compensation on
the basis of the employment/salary of the deceased, his age and
multiplier etc., learned Counsel could not convince the Court that
the awarded compensation required any enhancement.
16. However, in terms of the impugned award, learned
Tribunal deducted 1/3rd from the income assessed as the amount
which the deceased would have been spending upon himself, the
award requires modification because the deduction of 1/3rd amount
is bad and the same ought to have been 1/4th instead of 1/3rd.
17. In United India Insurance Company Limited vs.
Satinder Kaur alias Satwinder Kaur and others (2021) 11 Supreme
Court Cases 780, Hon’ble Supreme Court has been pleased to hold
that where the deceased was married, the deduction towards
personal and living expenses should be 1/3rd if the number of
dependents upon the deceased is 2-3 and it should be 1/4th if the
number of dependents upon the deceased is 4-6. In the present
case, as the number of dependents upon the deceased were four,
who all incidentally were the claimants before the learned Tribunal,
the deduction for personal and living expenses in said circumstances
should have been 1/4th and not 1/3rd of the income assessed. The
award is accordingly ordered to be modified to this extent.
18. In the impugned award, learned Tribunal has awarded
an amount of Rs.1.00 Lac under the head of loss of love and
affection, Rs. 50,000 under the head of funeral expenses and Rs.
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1.00 Lac under the head of loss of consortium. In United India
Insurance Company Limited vs. Satinder Kaur (supra), Hon’ble
Supreme Court has been pleased to hold that as loss of love and
affection is comprehended in loss of consortium, therefore, the
Tribunals and the High Courts are directed to award compensation
for loss of consortium, which is a legitimate conventional head by
observing that there is no justification to award compensation
towards loss of love and affection as a separate head. Similarly, for
funeral expenses, Rs.15,000/- have been ordered to be awarded. In
light of the fact that now it stands recognized that consortium is to
be granted to the children also upon premature death of the parent
as parental consortium.
19. Accordingly, in terms of the judgment of Hon’ble
Supreme Court of India in N. Jayasree and others vs.
Cholamandalam MS General Insurance Company Limited (2022)
14 Supreme Court Cases 712, by modifying the award under
challenge, the claimants are held entitled to the following
compensation:-
(a) Loss of estate = Rs. 16,500/-
(b) Funeral expenses = Rs. 16,500/-
(c) Spousal consortium = Rs. 44,000/-
(d) Parental consortium = Rs. 44,000x3
=Rs.1,32,000/-
Besides this, as ordered hereinabove, loss of dependency be now
calculated after deducting 1/4th as deduction towards personal and
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living expenses of the deceased instead of 1/3rd. The amount
awarded under the head of loss of love and affection is set aside.
Rest of the award is not disturbed, except modifications ordered
hereinabove.
Both the appeals stand disposed of in above terms.
Pending miscellaneous application(s), if any, also stands disposed of
accordingly.
(Ajay Mohan Goel)
Judge
December 31, 2024
rishi/narender