Himachal Pradesh High Court
Ranjeet vs Naveta And Ors on 3 August, 2021
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (MVA) No.3/2016
Reserved on: 30.7.2021
.
Decided on: 3.8.2021
Ranjeet ...... Appellant
Versus
Naveta and ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Appellant: Mr. Suneet Goel, Advocate.
For the Respondents: Mr. G. R. Palsra, Advocate, for
respondents No. 1 and 2.
Mr. Jagdish Thakur, Advocate, for
respondent No.3.
(Through Video Conferencing)
Justice Tarlok Singh Chauhan, J.
The instant appeal has been filed by the ownercum
driver of the vehicle, upon whom liability to pay the
compensation amount has been fastened by the learned Tribunal
below.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
...2...
2 Respondents No.1 and 2, being wife and mother of the
deceased Yash Kumar Sharma, filed a claim petition under
.
Section 166 of the Motor Vehicles Act before the learned Tribunal
below claiming therein compensation of Rs.50,00,000/ along
with interest and costs on account of death of Yash Kumar
Sharma, who died in a motor vehicle accident involving Jeep No.
HP37C6109 that took place on 18.5.2014 near Urla on
PathankotMandi Road allegedly due to rash and negligent
driving on the part of the appellant.
3 The alleged case of respondents No.1 and 2, as set out
in the claim petition, was that on 18.5.2014, the deceased Yash
Kumar Sharma along with his wife was on his way from Baijnath
to Mandi on his Motor Cycle bearing registration No. HP33D
8445 and when they reached near Urla at about 1:15 P.M., the
appellant, who was coming from Mandi side and driving his Jeep
bearing registration No. HP37C6109 in a rash and negligent
manner, hit the motor cycle of the deceased, as a result whereof,
the deceased and respondent No.1 fell down on the road and
received multiple grievous injuries. They were taken to CHC
Padhar, where Medical Office, on examination, declared Yash
Kumar Sharma, dead and gave medical treatment to respondent
...3...
No.1. An FIR of the accident vide report No.43, dated 18.5.2014
came to be registered at Police Station, Padhar, District Mandi. It
.
was averred that the deceased was running his own clinic at
Mehatpur being Medical Officer (Ayurvedic) and also used to hold
medical camps at various places. The deceased was having
established practice and reputation in his field. The deceased
was aged about 27 years at the time of his death and was earning
salary of Rs.40,000/ per month. Both respondents No. 1 and 2
were dependent upon the deceased.
4 The claim petition was resisted by the appellant
taking preliminary objection therein that the claim petition was
not maintainable. On merits, he denied all the averments
contained in the claim petition and alleged that the accident in
question had taken place due to rash and negligent driving of the
deceased himself.
5 The Insurance Company filed separate reply, wherein
it contested the petition on the grounds that the appellant was
not holding valid and effecting driving licence at the time of
accident and the vehicle was being driven in violation of terms
and conditions of the Insurance Policy. It was alleged that
though the vehicle in question was insured, however particulars
...4...
of the insurance policy were not supplied, therefore, there was no
contract of insurance with respondent No.2 and as such, it is not
.
liable to pay any compensation to the claimants.
6 The learned Tribunal, after evaluating the pleadings
and evidence of the parties, proceeded to award compensation of
Rs.35,89,000/ along with interest @ 9% per annum in favour of
the claimants.
7 I have heard the learned counsel for the parties and
have gone through the material placed on record.
8 The only reasoning why the liability to pay the
compensation amount was fastened upon the appellant was that
he had failed to prove on record the insurance of the vehicle.
However, along with the appeal, the appellant has filed an
application (CMP No. 200/2016), under Order 41 Rule 27 read
with Section 151 CPC, for leading additional evidence, wherein it
is averred that the vehicle in question was insured with
respondent No.3, i.e. National Insurance Company, which was
effective from 28.11.2013 to 27.11.2014.
9 It is averred in the application that the counsel
representing the appellant in the learned Tribunal below neither
filed the insurance policy before the Tribunal along with reply nor
...5...
informed the appellant about the date of evidence i.e.
31.10.2015. On the contrary, the counsel himself tendered the
.
copies of driving licence and registration certificate as Ext. R1
and R2 and closed the evidence on behalf of the appellant
without tendering the copy of the insurance policy and receipt of
payment of premium. As such, the appellant was precluded
from leading evidence regarding the insurance of the vehicle. It
is lastly averred that even the Insurance Company remained
silent about the offending vehicle being registered with it at the
time of accident, hence the application.
10 In the reply to the application filed by respondent
No.3Insurance Company, factum of the offending vehicle having
been insured with it has been candidly admitted. Once, that be
so, then obviously it is for the Insurance Company to satisfy the
award. Moreover, it was the duty of the Insurance Company to
have placed on record or produce the policy of insurance in terms
of the judgment rendered by the Hon'ble Supreme Court in
National Insurance Company Ltd. vs. Jugal Kishore and
ors., AIR 1988 SC 719, wherein it was observed as under:
"10. Before parting with the case, we consider it necessary to
refer to the attitude often adopted by the Insurance Companies,
as was adopted even in this case, of not filing a copy of the
...6...
policy before the Tribunal and even before the High Court in
appeal. In this connection what is of significance is that the
claimants for compensation under the Act are invariably not
.
possessed of either the policy or a copy thereof. This Court has
consistently emphasised that it is the duty of the party which is
in possession of a document which would be helpful in doing
justice in the cause to produce the said document and such
party should not be permitted to take shelter behind the abstract
doctrine of burden of proof. This duty is greater in the case of
instrumentalities of the State such as the appellant who are
under an obligation to act fairly. In many cases even the owner
of the vehicle for reasons known to him does not choose to
produce the policy or a copy thereof. We accordingly wish to
emphasise that in all such cases where the Insurance Company
concerned wishes to take a defence in a claim petition that its
liability is not in excess of the statutory liability it should file a
copy of the insurance policy along with its defence. Even in the
instant case had it been done so at the appropriate stage
necessity of approaching this Court in Civil Appeal would in all
probability have been avoided. Filing a copy of the policy,
therefore, not only cuts short avoidable litigation but also helps
the Court in doing justice between the parties. The obligation on
the part of the State or its instrumentalities to act fairly can
never be over emphasised."
11 It is next argued by Mr. Suneet Goel, that the award
passed by the learned Tribunal below is not sustainable as the
same is not in tune with the judgment rendered by a
Constitutional Bench of the Hon'ble Supreme Court in National
...7...
Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ
2700 and is based upon earlier judgments of the Hon'ble
.
Supreme Court, which in turn have now been overruled, in
Pranay Sethi's case.
12 This position is not seriously disputed even by the
learned counsel for the respondents.
13 Once that be so, then the loss of dependency after
granting increase of 40% towards future prospects on the
established income of the deceased and deducting 1/3rd on
account of personal expenses, would come to Rs.14934/ per
month and Rs. 1,79,208/ per annum and after applying
multiplier of 17 as the deceased was 29 years of age at the time
of accident, the compensation payable to the claimants on
account of annual loss of dependency would come to
Rs.30,46,536/(Rs.1,79,208/x17) in terms of the judgment of
the Hon'ble Supreme Court in Pranay Sethi's case and the
compensation would now work out to be as under:
Sr. Award passed by the Modified Award by this Court
No. Tribunal
1 Loss of dependency to the Loss of dependency to the family:
family: Rs.32,64,000/ Rs.30,46,536/
2 Loss of consortium to Loss of consortium to claimant
claimant No.1: No.1: Rs.40000/
Rs.1,00,000/
3 Loss of filial consortium to Loss of filial consortium to
...8...
appellant No.2: NIL appellant No.2: Rs.40,000/ as
per Nanu vs. Magma GIC Ltd.
4 Loss of Love and affection: Loss of love and affection: NIL
.
Rs.1,00,000/
5 Loss of estate: Rs.1,00,000/ Loss of estate: Rs.15,000/
6 Funeral expenses: Rs.25,000 Funeral expenses: Rs.15,000/
7 Total:RS.35, 89,000/ Total: Rs.31,56,536/
14 At this stage, Mr. Jagdish Thakur, Advocate, learned
counsel for the Insurance Company, would argue that even the
interest awarded by the learned Tribunal is on the higher side
and the same ought to be 6% and strong reliance in support
thereof has been placed on judgment rendered by learned Single
Judge of this Court in FAO No. 4010/2013, titled Sumitra
Devi vs. Krishan Lal & ors., dated 1.4.2021 and another
recent judgment of the Hon'ble Supreme Court in Civil Appeal
Nos.1849018491 of 2017, titled Uttar Pradesh Sate Road
Transport Corporation vs. National Insurance Company Ltd.
Ors, dated 14.7.2021.
15 In Sumitra Devi's case, learned coordinate Bench of
this Court while awarding the interest @ 6% has observed as
under:
"18. The learned Tribunal below has rightly awarded
interest at the rate of 6% per annum on the amount of
compensation as such, there appears to be no justification
...9...
to further increase the rate of interest. Mr. Maan Singh,
learned Counsel representing the appellant/claimant while
.
placing reliance upon certain judgments contended that
claimant is entitled to interest at the rate of 9% per annum,
but such prayer of him cannot be accepted for the reason
that there is no provision under Motor Vehicles Act to
award interest, save and except Section 171 of M.V. Act,
which only speaks about simple interest, however, courts
while awarding interest on the compensation have been
awarding interest on the basis of prevalent market rate of
interest. Since, there is no specific provision under Motor
Vehicles Act with regard to rate of interest, court while
awarding interest can definitely resort to Section 34 of
CPC, which provides that court while passing money
decree can award interest at such rate, which is deemed to
be reasonable. It is not in dispute that in the year, 2013
prevalent rate of interest was 6% and even as of today it is
less than 6% and as such, prayer for increase in rate of
interest deserves outright rejection being wholly
untenable."
16 The Hon'ble Supreme Court in Uttar Pradesh Sate
Road Transport Corporation's case (supra) while awarding the
interest @ 6% has simply observed as under:
"(11) In view of above, we permit the appellantCorporation to
withdraw the said amount with accrued interest thereon if any,
and direct the first respondentNational Insurance Co. Ltd. to
deposit a sum of Rs.1,82,000/ along with interest on the above
...10...
compensation amount at the rate of 6% per annum from the date
of filing of the claim petition till the date of deposit..........."
.
17 It is more than settled that the judgment if not of the
learned coordinate bench of this Court then of the Hon'ble
Supreme Court is binding on this Court. Therefore, the interest
granted by the learned Tribunal below @ 9% per annum shall
now stand substituted to 6% per annum.
18 In view of aforesaid discussions, the impugned award
dated 10.11.2015 is modified to the extent that the claimants
would now be entitled to a total compensation of Rs.31,56,536/
instead of Rs.35,89,000/ along with interest @ 6% per annum,
to be paid by respondent No.3Insurance Company to be
apportioned between them as ordered by the learned Tribunal,
from the date of filing of the petition till its realization. Pending
application(s), if any, also stands disposed of. The parties are left
to bear their own costs.
19 The instant appeal is allowed, in the aforesaid terms,
so also the pending application(s), if any, leaving the parties to
bear their own costs.
3.8.2021 (Tarlok Singh Chauhan)
(pankaj) Judge
