(By Sh.Praneet Gupta vs Puran Chand &
2021 Latest Caselaw 3944 HP

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                                REPORTABLE/NON-REPORTABLE
          IN THE HIGH COURT OF HIMACHAL PRADESH AT
                           SHIMLA
                   ON THE 16th DAY OF AUGUST, 2021




                                                          .
                              BEFORE





           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





               FIRST APPEAL FROM ORDER NO.404 OF 2019
    Between:-
    THE NEW INDIA ASSURANCE COMPANY
    LIMITED, BRANCH OFFICE BHAGRA





    NIWAS, THE MALL, SHIMLA, HIMACHAL
    PRADESH, THROUGH ITS DEPUTY
    MANAGER,     THE     NEW     INDIA
    ASSURANCE CO. LTD; DIVISIONAL
    OFFICE, 3RD FLOOR, BLOCK-7, SDA

    COMPLEX, SHIMLA-171 009 HIMACHAL
    PRADESH

    (BY SH.PRANEET GUPTA, ADVOCATE)
                                                        ...APPELLANT



         AND




    1.   BIMLA DEVI
         WIDOW OF LATE SH.CHANDI PRASHAD





         SHARMA,
         RESIDENT OF VILLAGE HADYANA, P.O.
         DANGYAR, TEHSIL PACHHAD, DISTRICT
         SIRMOUR, HIMACHAL PRADESH





    2.   JYOTSANA
         D/O   LATE   SH.CHANDI   PRASHAD
         SHARMA,
         RESIDENT OF VILLAGE HADYANA, P.O.
         DANGYAR, TEHSIL PACHHAD, DISTRICT
         SIRMOUR, HIMACHAL PRADESH

    3.   SACHIN SHARMA
         S/O   LATE   SH.CHANDI  PRASHAD
         SHARMA,
         RESIDENT OF VILLAGE HADYANA, P.O.
         DANGYAR, TEHSIL PACHHAD, DISTRICT
         SIRMOUR, HIMACHAL PRADESH




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    4.   DEEPAK SHARMA
         S/O   LATE   SH.CHANDI  PRASHAD
         SHARMA,
         RESIDENT OF VILLAGE HADYANA, P.O.
         DANGYAR, TEHSIL PACHHAD, DISTRICT
         SIRMOUR, HIMACHAL PRADESH




                                                           .

         (BY SH.ASHOK K. TYAGI, ADVOCATE)

    5.   PURAN CHAND
         S/O SH.VIDYA DUTT,





         RESIDENT OF VILLAGE HADYANA, P.O.
         DANGYAR, TEHSIL PACHHAD, DISTRICT
         SIRMOUR, HIMACHAL PRADESH

                                                          ...RESPONDENTS





         (NONE FOR RESPONDENT NO.5)


                This appeal coming on for orders this day, the Court

    passed the following:
                            JUDGMENT

FAO No.404 of 2019

Present appeal has been preferred by the Insurance

Company against award dated 11.03.2019, passed by the Motor

Accident Claims Tribunal-I (hereinafter referred to as the 'MACT')

Sirmaur, District at Nahan, H.P., in M.A.C.Petition No.172-MAC/2

of 2015, titled as Bimla Devi Sharma & others vs. Puran Chand &

another, whereby the MACT has awarded compensation in favour

of respondents No.1 to 4 amounting to `55,97,548/- alongwith

interest @ 9% per annum from the date of filing of the petition

till its realization to be apportioned amongst petitioners in the

ratio of 55:15:15:15.

2. The appeal has been preferred mainly on the ground

that the MACT has failed to appreciate that though FIR Ex.PW.2/B

was lodged on 21.08.2015, but the police had recorded the

statement regarding accident only on 22.11.2015 indicating that

a false case was cooked up just to get compensation. Whereas,

.

from this fact only inference which could be drawn is that

deceased himself was negligent and also the MACT has mis-

appreciated Ex.PW.1/A and Ex.PW.1/B salary certificates/

statements in its right perspective and has wrongly taken gross

income instead of net income for the purpose of calculation of

the quantum of compensation and the income tax payable was

also to be deducted for arriving at just and fair compensation.

Lastly, it is contended on behalf of the appellant that the vehicle

in question was not involved in accident and it was implicated

only for enabling claimants to get compensation.

3. I have gone through the record and evidence placed

on record by the parties before the MACT.

4. In preliminary objections taken in the reply filed by

the Insurance Company before MACT, it has been contended that

vehicle in question referred in the claim petition, was not

involved in the accident and was falsely implicated in order to

claim undue compensation and further that deceased himself

was rash and negligent in driving the vehicle and, therefore,

Insurance Company of the vehicle, implicated in the accident, is

not liable to pay compensation.

5. Claimants have examined four witnesses and have

proved on record relevant documents i.e. salary certificates

Ex.PW.1/A, Ex.PW.1/B and salary slip Ex.PW.1/C, accident

information report Ex.PW.2/A, copy of FIR Ex.PW.2/B, salary

statement Ex.PW.2/C, MLC and postmortem of deceased Chandi

Prashad Sharma Ex.PW.2/D, Ex.PW.2/E, Insurance Policy

.

Ex.PW.2/F, Registration Certificate Ex.PW.2/G, driving licence of

Puran Chand Ex.PW.2/H and copy of jamabandi Ex.PW.3/B.

6. Respondent No.5-Puran Chand has placed on record

copy of registration certificate Ex.R-1, copy of driving licence

Ex.R-2 and Insurance Policy Ex.R-3.

7. Insurance Company has not brought any oral

evidence or documentary evidence except Policy schedule-cum-

certificate of insurance Ex.RX on record.

8. Though preliminary objections have been taken in

the reply with respect to false implication of the vehicle in

question and also that deceased himself was rash and negligent,

but no evidence to substantiate this pleading has been led by the

appellant-Insurance Company. Therefore, I do not find any

ground to interfere in the findings returned by the MACT on this

count.

9. So far as plea taken that instead of gross income net

income was to be taken into consideration and income tax was to

be deducted from the salary of the deceased is concerned, I find

that though in the year 2015 income tax of `3903/- was

deducted from the salary of the deceased, however, from the

salary statement Ex.PW.1/B and salary slip Ex.PW.1/C it is

evident that as per latest statement of income, no income tax

was deducted from 01.03.2015 to August 2016 and during this

period no income tax had been deducted. Same is also evident

from salary slip Ex.PW.1/C. Therefore, this plea of the appellant-

Insurance Company is also not sustainable.

.

10. In view of aforesaid discussion, I find that grounds on

which appeal has been filed are not sustainable on perusal of

record of the MACT and accordingly appeal is dismissed.

CMP Nos.9021, 9023, 9095 and 9097 of 2021

11. Though applications have been filed on behalf of the

applicants-claimants to release the amount in their favour,

however, it is noticeable that applicants-Jyotsana and Sachin

Sharma are too young, therefore, it would be in their interest

that instead of release of entire amount of compensation 50%

amount falling in their share is to be released at this stage.

12. Accordingly, amount falling in share of applicants-

respondents No.1 and 4, alongwith up-to-date interest, in terms

of final judgment is ordered to be released in their favour, as per

their entitlement and according to their shares, by remitting the

same in their bank accounts, mentioned in para-5 of the

applications, photocopies of front pages of Pass Books whereof

have been annexed with those applications.

13. Also, 50% of amount of compensation for which

applicants-respondents No.2 and 3 are entitled in terms of the

award passed by the MACT, alongwith its up-to-date interest, is

directed to be released in their favour, by remitting the same in

their bank accounts mentioned in para-5 of the applications,

photocopies of front pages of Pass Books whereof have been

annexed with those applications.

14. Application(s) stand disposed of accordingly.

.

(Vivek Singh Thakur), Judge.

    August 16, 2021
          (Purohit)





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