Manager vs 2016 I.E.
2021 Latest Caselaw 3776 HP

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   IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                         .

                ON THE 9TH DAY OF AUGUST, 2021
                           BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
            FIRST APPEAL FROM ORDER No. 278 of 2019
Between:-
UNITED INDIA INSURANCE




COMPANY LTD., DIVISIONAL
OFFICE, TIMBER HOUSE,
CIRCULAR ROAD, SHIMLA-
171001  THROUGH       ITS

SENIOR        DIVISIONAL

MANAGER.
                                                ....APPELLANT
(BY SH. JAGDISH THAKUR, ADVOCATE)



AND
1. SMT. LATA DEVI, W/O




SH. TULE RAM.
2. SH. TULE RAM, S/O SH.





MANGAT RAM.
BOTH    RESIDENTS    OF
VILLAGE MATAL, POST





OFFICE OLWA, TEHSIL
ANI, DISTRICT KULLU,
H.P.
3. SH. BALBIR SINGH, S/O
SH.     DASMI      RAM,
RESIDENT OF VILLAGE
JAITY,   POST    OFFICE
KARANA, TEHSIL ANI,
DISTRICT KULLU, H.P.
(OWNER OF VEHICLE NO.




                                        ::: Downloaded on - 31/01/2022 22:50:52 :::CIS
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HP-35-0779).




                                                                    .

4. SH. RANJIT SINGH, S/O
SH. KARAM CHAND, R/O
VILLAGE DOGHRI, POST





OFFICE NIGAN, TEHSIL
ANI, DISTRICT KULLU,
H.P. (DRIVER OF VEHICLE
NO. HP-38A-9524).





                                      ...RESPONDENTS/PETITIONERS
(SH. YASHPAL RANA & SH. P.P. CHAUHAN, ADVOCATES, FOR R-
1 & 2.
SH. SANJAY RANTA & SH. RAJESH KAINTHLA, ADVOCATE,

FOR R-4

R-3 EX PARTE.
    __________________________________________________________


             This Appeal coming on for orders this day, the Court passed the
following:




                                JUDGMENT

By way of this appeal, the appellant-Insurance Company has

challenged Award, dated 01.09.2017, passed by the Court of learned Motor

Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District Shimla, H.P.

in MAC Petition No. 0000007 of 2016, titled as Smt. Lata Devi and another

Vs. United India Insurance Company Ltd. and others, which claim petition

stood disposed of by the learned Tribunal in the following terms:

"44. In the light of the findings recorded under

.

the aforementioned issues, the petition is allowed with

costs of Rs.3,000/- and consequently, a sum of Rs.5,65,000/-, i.e., Rs.5,40,000/- on account of loss of

income and Rs.25,000/- being expenditure towards funeral expenses, is awarded to petitioners alongwith interest @ 7.5% per annum with effect from

01.01.2016 i.e., the date of institution of the petition, till payment of the entire amount. Out of the aforesaid amount, 65% thereof is awarded to petitioner No. 1

being mother and rest is awarded to petitioner No. 2, being father. Further, interim compensation under Section 140 of the Motor Vehicles Act, if already paid

shall be liable to be deducted from the aforementioned compensation. 50% amount of the share of each

petitioner shall remain deposited in any fixed deposit scheme of any nationalized bank for a period of three

years. The amount s to be deposited by respondent No. 1, being the insurer of the vehicle. Memo of costs be

prepared accordingly. File after its due completion be consigned to record room."

2. Brief facts necessary for the adjudication of the present appeal

are that claimants approached the learned Motor Accident Claims Tribunal,

claiming compensation to the tune of Rs.13,00,000/- alongwith interest on

the ground that their son, on 31.10.2015, had hired the offending vehicle

.

from respondent No. 3 from Anni to transport cement bags. The vehicle was

owned by Shri Balbir Singh and the same was duly insured with the present

appellant. At around 7:30 p.m., when the vehicle reached near Chhwad

Nullah, near Chawai, the driver of the vehicle lost control of the same,

which resulted in an accident, on account of the rash and negligent driving

of the driver, leading to grievous head injury to their son, who subsequently

succumbed to the injury. According to the claimants, the age of the deceased

at the time of accident was 21 years. He was doing agricultural and

horticultural works and his earnings were to the tune of Rs.5000/- per

month. He was the sole bread earner and on account of his death, the

claimants were rendered helpless. It is on these grounds that the claim

petition was filed praying for the reliefs already enumerated hereinabove.

3. The petition was resisted, inter alia, by the present appellant on

the ground that the deceased was travelling in the vehicle as a gratuitous

passenger and the same was otherwise also being plied by the owner in

violation of the Insurance Policy, i.e., there was neither a valid registration

or fitness certificate of the vehicle nor the person driving the same was

possessing a valid Driving Licence. It was also the stand of the present

appellant that the petition stood filed by the claimants in collusion with the

.

owner of the vehicle and driver of the same.

4. The claim petition stood allowed by the learned Tribunal and a

sum of of Rs.5,65,000/- was awarded to the claimants alongwith interest

@7.5% per annum w.e.f. 01.01.2016. While arriving at the said figure,

learned Tribunal, inter alia, took the annual income of the deceased to be

Rs.30,000/- on the strength of the judgment of the Hon'ble Supreme Court

in Krishan Gopal Vs. Lala, (2014) 1 SCC 244. It also applied the multiplier

of 18, in view of the fact that the age of the deceased was 21 years. It also

observed that in view of the judgment of the Hon'ble Supreme Court in

Sarla Verma Vs. Delhi Transport Company, (2009) 6 SCC 121, 50% of the

notional income of the deceased was liable to be deducted towards his

personal and living expenses and further that in terms of the judgment of the

Hon'ble Supreme Court in Rajesh and others Vs. Rajbir Singh and others,

(2013) 9 Civil Court Cases 015, the annual income of the deceased was

liable to enhanced by 50% towards future prospects in view of the age of the

deceased. The Award so passed by the learned Tribunal stands assailed by

way of this appeal.

5. When the appeal was taken up for consideration today, learned

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counsel for the parties stated that the Award passed by the learned Tribunal

was liable to be modified to the extent as under:

(a) The future prospects assessed @50% by the learned Tribunal

required to be reduced to 40% in view of the judgment of the Hon'ble

Supreme Court in National Insurance Company Limited Vs. Pranay Sethi

and others, (2017) 16 Supreme Court Cases 680;

(b) The multiplier had to be applied by assessing the income of the

petitioner as under:-

Rs.30,000/- +Rs.12,000/-=Rs.42,000 per annum.

Half of Rs.42,000/-=Rs.21,000/- and Rs.21,000/- has to be

taken as the annual income of the deceased for the purpose of calculating

compensation, which is to be multiplied by the multiplier of 18 and the said

amount comes to Rs.3,78,000/-;

(c) Besides this, the claimants are entitled for parental consortium

to the tune of Rs.40,000/- each, in terms of the judgment of the Hon'ble

Supreme Court in Magma General Insurance Company Limited Vs. Nanu

Ram alias Chuhru Ram and others, (2018) 18 Supreme Court Cases 130;

(d) The claimants are also entitled to the loss of estate

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@Rs.15,000/- in terms of the judgment of the Hon'ble Supreme Court in

Pranay Sethi's case (supra) and funeral expenses awarded by the learned

Tribunal to the tune of Rs.25,000/- are to be reduced to Rs.15,000/- in terms

of the judgment of the Hon'ble Supreme Court in Pranay Sethi's case

(supra).

Accordingly, a joint prayer has been made that the appeal be disposed of by

modifying the Award passed by the learned Tribunal in the above terms.

6. Having heard learned counsel for the parties and perusing

the Award passed by the learned Tribunal as well as the record of the case

and the judgments relied upon by the learned counsel for the parties, this

Court concurs with the submission so made by learned counsel for the

parties that this appeal can be disposed of by modifying the Award passed by

the learned Tribunal, as the parties are unison that the Award passed by the

learned Tribunal requires modifications to be inconsonance with the law of

the land, as is applicable to them. Accordingly, this appeal is disposed of by

modifying the Award, dated 01.09.2017, passed by the Court of learned

Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District

Shimla, H.P. in MAC Petition No. 0000007 of 2016, titled as Smt. Lata Devi

and another Vs. United India Insurance Company Ltd. and others in the

.

following terms:

(i) Income of the deceased is retained at Rs.30,000/- per annum, as

assessed by the learned Tribunal.

(ii) Future prospectus are reduced from 50% to 40% in terms of the

judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra).

(iii) Total income by adding future prospects @40% of the deceased

is hereby assessed as Rs.30,000+Rs.12,000/-=Rs.42,000/- per annum. From

this, 50% is to be deducted, as income spent on personal expenses by the

deceased, in terms of the judgment of the Hon'ble Supreme Court in Sarla

Verma's case (supra). After deduction, per annum income of the deceased

comes to Rs.21,000/-.

(iv) Rs.21,000/- is to be multiplied with the multiplier of 18 and the

compensation to which the claimants shall now be entitled to is assessed at

Rs.3,78,000/-.

(v) Loss of parental consortium @Rs.40,000/- is payable to each of

the claimants in terms of the judgment of the Hon'ble Supreme Court in

Magma General Insurance Company Limited case (supra).

(vi) Claimants are also entitled to loss of estate @Rs.15,000/- as per

.

the judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra).

(vii) Funeral expenses are reduced from Rs.25,000/- to Rs.15,000/-

as per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case

(supra).

(viii) Total compensation thus comes to Rs.3,78,000/-+Rs.80,000/-

+Rs.15,000/-+Rs.15,000/- =Rs. 4,88,000/- and on this, interest is payable in

terms of the Award of the learned Tribunal.

7. At this stage, learned counsel for the claimants submits that the

Registry be directed to release the Award amount in favour of the claimants.

Registry is directed to release the amount in favour of the claimants in terms

of the judgment of this Court with up-to-date interest, in their bank accounts,

details whereof already stand provided in CMP Nos. 5512 and 5513 of 2019.

8. Learned counsel for the appellant submits that the

balance amount be also refunded back to the appellant-Insurance Company.

Ordered accordingly.

Registry is directed to refund back the balance amount to

the appellant-Insurance Company in terms of the judgment of this Court in

its bank account, details whereof shall be provided by the learned counsel

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for the appellant-Insurance Company with the Registry of this Court.

The Award passed by the learned Tribunal stands

modified, as mentioned hereinabove. Miscellaneous applications, if any,

also stand disposed of.

Ajay Mohan Goel) Judge August 09, 2021 (bhupender)