Himachal Pradesh High Court
National Insurance Company ... vs Delhi Transport Corporation 2009 on 13 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 13th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
FIRST APPEAL FROM ORDER NO. 227 of 2019
Between:
NATIONAL INSURANCE COMPANY LIMITED,
OFFICE 10, 803A, 8TH FLOOR, TOWER NO.3,
KONNECTUS BUILDING, OPPOSITE NEW DELHI,
RAILWAY STATION, BHAVBHUTI MARG,
NEW DELHI, 110002 THROUGH ITS
ADMINISTRATIVE OFFICER (LEGAL),
NATIONAL INUSRANCE COMPANY DIVISIONAL OFFICE,
HIMLAND HOTEL, CIRCULAR ROAD, SHIMLA-1, H.P.
.... APPELLANT
(BY MR. JAGDISH THAKUR,
ADVOCATE)
AND
1. BALMA DEVI,
W/O LATE SH. HEM RAJ,
R/O VILLAGE NARAIN,
POST OFFICE SHARONTHA,
TEHSIL ROHRU, DISTRICT SHIMLA,
HIMACHAL PRADESH
2. ARTHIK,
S/O LATE SH. HEM RAJ,
3. SAPNA,
D/O LATE SH. HEM RAJ,
BOTH R/O VILLAGE NARAIN,
::: Downloaded on - 31/01/2022 23:25:37 :::CIS
2
POST OFFICE SHARONTHA,
.
TEHSIL ROHRU, DISTRICT SHIMLA,
HIMACHAL PRADESH THROUGH PETITIONER
NO.1 BALMA DEVI, W/O LATE SH. HEM RAJ
BEING MOTHER/NATURAL GUARDIAN
....RESPONDENTS/PETITIONERS
4. SHARDA DEVI,
W/O SH. SANJEEV
R/O VILLAGE NARAIN,
POST OFFICE SHARONTHA,
TEHSIL ROHRU, DISTRICT SHIMLA,
HIMACHAL PRADESH
(OWNER OF THE VEHICLE BEARING
REGISTRATION NO. HP-10A-9256).
5. SH. SANJEEV,
S/O SH. SHAYAM LAL,
R/O VILLAGE NARAIN,
POST OFFICE SHARONTHA,
TEHSIL ROHRU, DISTRICT SHIMLA,
HIMACHAL PRADESH
(DRIVER OF THE VEHICLE BEARING
REGISTRATION NO. HP-10A-9256).
....RESPONDENTS
(BY MR. D.S. NAINTA, ADVOCATE,
FOR RESPONDENTS NO. 1 TO 3)
(BY MR. DEEPAK BHASIN, ADVOCATE,
FOR RESPONDENTS NO.4 & 5)
Whether approved for reporting?.Yes
These appeals coming on for orders this day, the Court passed the following:
JUDGMENT
.
Instant appeal filed under Section 173 of the Motor Vehicles
Act, (herein after referred to as " the Act" ), lays challenge to award dated
16.3.2019, passed by the learned MACT-III, Shimla camp at Rohru, HP, in
MAC case No. 11-R/2 of 2017, titled Balma Devi and others v. Sharda Devi
and Ors, whereby the learned Tribunal below while allowing the claim
petition filed under Section 166 of the Act, having been filed by the
respondents-claimants No. 1 and 2 (in short "the claimants"), saddled the
Appellant-Insurance Company with liability to pay the compensation to the
tune of Rs. 13,30,000 a/w interest @ 9% from the date of filing of the
petition till realization.
2. Precisely, facts of the case as emerge from the record are that
the claimants filed petition under Section 166 of the Act, claiming therein
compensation to the tune of Rs. 30,00,000/- alongwith statutory interest
from the Appellant-Insurance Company as well as respondents No. 4 and 5
being owner and driver on account of death of Sh. Hem Raj, being his legal
heirs. Claimants claimed that on 13.2.2017, deceased Hemraj was going to
Tikkar in a vehicle bearing registration No.HP-10A-9256 alongwith other
occupants and at that relevant time vehicle was being driven by respondent
No.5, Sanjeev Kumar. Unfortunately, aforesaid vehicle met with an
accident, as a consequence of which, all the occupants got injured, but
person named Hem raj died on the spot. Factum with regard to accident
.
came to be reported to the police vide FIR No. 0012 of 2017 dated
13.2.2017, whereafter case under sections 279, 337 and 304-A of the IPC
was registered against respondent No.5. Claimants claimed that at the
time of the accident, deceased Hem Raj was 42 years old and he being
mason and plumber used to earn sum of Rs. 20,000/- per month.
3. Aforesaid claim put forth by the claimants came to be resisted
by the Appellant-Insurance Company as well as respondents No. 4 and 5,
who, in their reply, though nowhere disputed the factum with regard to the
accident, but claimed that the accident did not occur on account of rash
and negligent driving of the driver of the bus, which was coming from
Tikkar side. Appellant-Insurance company claimed that since vehicle was
being driven in violation of the terms and conditions of the insurance policy
and driver of the vehicle was not holding effective and valid licence, it
cannot be fastened with the liability to indemnify the insured.
4. On the basis of pleadings adduced on record by the respective
parties, learned MACT below farmed following issues:
"1. Whether deceased Hem Raj died on 13.02.2017 at place
Kasheni Kainchi, Tehsil Rohru due to rash and negligent
driving of respondent No.2, while he was driving vehicle
bearing registration No.HP-10A-92567? OPP
2. In case, issue No. 1 is proved in affirmation, whether the
petitioners are entitled for compensation, if so, to what
extent and from whom? OPP
3. Whether the petition is not maintainable as alleged? OPR
.
4. Whether the accident in question had taken place due to
rash and negligent driving of bus driver who was coming
from opposite side? OPR-1 and 2
5. Whether the respondent No. 2 was not having valid and
effective driving licence, as alleged? OPR-3
6. Whether the vehicle in question was being driven in
contravention of terms and condition of insurance policy, as
alleged? OPR-3
7. Whether the deceased was travelling in the ill-fated
vehicle as gratuitous passenger, as alleged? OPR-3
8. Whether the petition is bad for non-joinder of necessary
party, as alleged? OPR-3
9. Relief"
5. Subsequently, vide judgment dated 16.3.2019, learned
Tribunal below on the basis of pleadings as well as evidence adduced on
record by the respective parties, held the Appellant-Insurance Company
and respondents No. 4 and 5 jointly and severally liable to pay the
compensation to the tune of Rs. 13,30,000/- to the claimants alongwith
interest @ 9% from the date of filing of the petition till its realization. But
since Appellant-Insurance Company being insurer was directed to
indemnity the insured, it has approached this court in the instant
proceedings, praying therein to set-aside the aforesaid award passed by the
court below.
6. Having heard learned counsel for the parties and perused
.
material available on record, this Court finds that primarily, challenge to
the impugned award has been laid on the ground of quantum.
7. Mr. Jagdish Thakur, learned counsel for the Appellant-
Insurance Company, while making this Court to peruse the evidence led on
record vehemently argued that since at no point of time, it ever came to be
proved that deceased at the time of his death was doing work of
mason/plumber and he was earning sum of Rs. 20,000/- p.m., court below
while assessing his monthly income ought have resorted to the provisions
of Minimum Wages Act. He further argued that in the case at hand, court
below without any basis, considered monthly income of the deceased Hem
Raj to the tune of Rs. 9,000/- which, otherwise, being on higher side,
deserves to be reduced/modified.
8. In the case at hand, pleadings as well as evidence led on record
by the claimants clearly reveal that though claimants claimed that the
deceased was working as mason/plumber at the time of his death, but no
cogent and convincing evidence ever came to be led on record with regard
to occupation and monthly income of the deceased and the court below
while applying the guess work, considered monthly income of the deceased
to the tune of Rs. 9000/-.
9. It is well settled by now that in the absence of any specific
.
evidence with regard to income, court is necessarily required to resort to
the provisions of Minimum Wages Act, especially in the cases where
deceased or insured is stated to be skilled or semi skilled worker. Though
in the case at hand, there is no material available on record that the
deceased Hem Raj was skilled mason/plumber, but even if his income is
taken as of plumber/mason, same cannot be said to be Rs.9000 p.m.
Reliance is placed on judgment dated 23.4.2018, rendered by this Court in
FAO No. 43 of 2018, titled Reliance General Insurance Company
Limited v. Ishwar Singh and Ors, , wherein it has been categorically held
that in the absence of any specific evidence/documentary evidence of
income of the deceased, the income is to be taken/assessed on the basis of
minimum wages prevalent at the time of the accident. Relevant paras of
the aforesaid judgment read as under:
"10. After having carefully heard the arguments advanced
by the learned counsel representing the parties and perused
the record, this Court finds considerable force in the
argument of Mr. Jagdish Thakur, learned counsel for the
appellant-Insurance company that claimant has not led on
record specific evidence to prove his income. No doubt,
claimant has claimed that he was studying in class 12th at
the time of the accident and was doing part time work by
selling milk, but no evidence has been led on record in this
regard. Needless to say, learned Tribunal below in the
absence of specific evidence, if any, led on record by the
claimant with regard to his income, ought to have assessed
income on the basis of minimum wages prevalent at the time
of the accident. In this regard reliance is placed upon the
judgment rendered by Hon'ble Apex Court in Govind Yadav
versus New India Assurance Company Limited, 2012(1) ACJ
.
28, wherein it has been held as under:-
"17. A brief recapitulation of the facts shows that
in the petition filed by him for award of
compensation, the appellant had pleaded that at
the time of accident he was working as helper
and was getting salary of Rs. 4,000/- per month.
The Tribunal discarded his claim on the premise
that no evidence was produced by him to prove
the factum of employment and payment of salary
by the employer. Learned Tribunal then proceeded
to determine the amount of compensation in lieu
of loss of earnings by assuming the appellant's
income to be Rs. 15,000/- per annum. On his part,
the learned single Judge of the High Court
assumed that while working as a cleaner,
appellant may have been earning Rs. 2,000/- per
month and accordingly assessed the
compensation under the first head. Unfortunately,
both the Tribunal and the High Court overlooked
that at the relevant time minimum wages payable
to a worker were Rs.3,000/- per month. Therefore,
in the absence of other cogent evidence, Tribunal
and the High Court should have determined the
amount of compensation in lieu of loss of earnings
by taking the appellant's notional annual income
as Rs. 36,000/- and the loss of earnings on
account of 70 percent permanent disability as
Rs.25,200/- per annum. The application of
multiplier of 17 by the Tribunal, which was
approved by the High Court, will have to be
treated as erroneous in view of the judgment in
Sarla Verma V. Delhi Transport Corporation 2009
ACJ 1298(SC). In para 21 of that judgment, the
court has indicated that if the age of the victim of
an accident is 24 years, then the appropriate
multiplier would be 18. By applying that
multiplier, we hold that the compensation
payable to the appellant in lieu of the loss of
earnings would be Rs.4,53,600/-."
11. Reliance is also placed upon the judgment passed by this
Court in Smt. Pappi Devi and others versus Kali Ram and
others, Latest HLJ2008 (Himachal Pradesh) 1440, which
reads as under:-
"6. It has come in the statement of claimant Smt.
Kala Devi (PW-1) that the deceased while working
as a labourer and also selling milk was having an
income of Rs. 4000/- per month. Importantly,
there is no cross-examination on this point at all.
But the fact of the matter, is that no documentary
.
evidence has been placed on record to prove the
income. This is the only evidence with regard to
income of the deceased on record.
7. It has come on record that the deceased was
illiterate and working as a labourer. In my view,
his income determined by the Tribunal i.e. Rs.50/-
per day, is on the lower side. Taking the deceased
to be employed as a daily wager, the minimum
wages paid by the government in the year, 2001
to the labourers was more than Rs.70/- per day.
This is not disputed at the Bar. Therefore, the
same can be made the basis for determining the
income of the deceased. Thus, the monthly income
of the deceased is determined as Rs.70x30
Rs.2100/- and after deducting 1/3rd of the
amount i.e. Rs.700/- for the purpose of
dependency is determined as Rs.1400/-."
10.
Reliance is also placed upon judgments passed by this Court in
case titled Govind Yadav v. New India Assurance Company Limited,
2012(1) ACJ 28, Mast Ram v. Yogesh Azta and Ors, decided on
4.5.2017, FAO No. 488 of 2016, ICICI Lombard v. Kala Devi and Ors in
FAO No. 9 of 2019 dated 30.5.2019, National Insurance Company
Ltd. v. Kamal Kishore and Ors., decided on 5.7.2019 and Minimum
wages notification for the year, 2016 by the State of HP.
11. In the case at hand, accident in question occurred in the year,
13.2.2017, meaning thereby minimum wages payable at that particular
time is required to be taken into consideration for assessing income of the
deceased. It is not in dispute that w.e.f 1.4.2017, minimum wages
prevalent in the State of HP qua the category of worker engaged in the
construction or maintenance of roads or building, operations, stone
breaking and stone crushing was Rs. 227 per day, and as such, monthly
.
income of the deceased Hem raj comes out to be 227x30= Rs.6810/-.
12. Since deceased at the time of the accident, was 42 years old
and was in self employment, he is/was required to be given addition of 25%
on account of future prospects in terms of judgment passed by the Hon'ble
Apex Court in National Insurance Co. Ltd. V. Pranay Sethi and Ors,
(2017) 16 SCC 680. Vide aforesaid judgment, the Hon'ble Apex Court has
also held that no amount, if any, can be awarded under the head of loss of
love and affection and as such, award made in this regard by the learned
Tribunal below needs to be modified. Para 59 of Pranay Sethi's judgment
reads as under:-
"59. In view of the aforesaid analysis, we proceed to record
our conclusions:-
59.1. The two-Judge Bench in Santosh Devi should have been
well advised to refer the matter to a larger Bench as it was
taking a different view than what has been stated in Sarla
Verma, a judgment by a coordinate Bench. It is because a
coordinate Bench of the same strength cannot take a
contrary view than what has been held by another
coordinate Bench.
59.2 As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
59.3 While determining the income, an addition of 50% of
.
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition
should be 30%, if the age of the deceased was between 40 to
50 years. In case the deceased was between the age of 50 to
60 years, the addition should be 15%. Actual salary should
be read as actual salary less tax.
59.4 In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component.
59.5 For determination of the multiplicand, the deduction
for personal and living expenses, the tribunals and the
courts shall be guided by paragraphs 30 to 32 of Sarla
Verma which we have reproduced hereinbefore.
59.6 The selection of multiplier shall be as indicated in the
Table in Sarla Verma read with paragraph 42 of that
judgment.
59.7 The age of the deceased should be the basis for
applying the multiplier.
59.8 Reasonable figures on conventional heads, namely, loss
of estate, loss of consortium and funeral expenses should be
Rs. 15,000/, Rs. 40,000/- and Rs. 15,000/- respectively. The
aforesaid amounts should be enhanced at the rate of 10% in
.
every three years."
13. 1/3rd of the income is required to be deducted towards
personal expenses of the deceased. Learned tribunal below taking note of
the age of the deceased has rightly applied multiplier of 14. In the
aforesaid background loss of dependency after applying multiplier of 14 is
calculated as 9,53,400/-. Apart from above, this Court finds that tribunal
below has erred in not awarding filial consortium in favour of claimants 2
and 3, who at the time of the accident, were minor and as such, sum of Rs.
40,000/- each, is required to be awarded in their favour.
14. Reliance is placed upon judgment passed by the Hon'ble Apex
Court in case titled Magma General Insurance Co. Ltd. V. Nanu Ram
alias Chuhru Ram and Ors, (2018) 18 SCC 130, which has been also
taken note of, in The New India Assurance Co. Ltd. V. Smt. Somwati
and Ors, in Civil appeal No. 3093 of 2020 (a/w connected matters),
wherein it has been held that consortium is not limited to spousal
consortium and it also includes parental consortium as well as filial
consortium. Having taken note of the aforesaid judgment rendered by
Three-Judge Bench of the Hon'ble Apex Court in Magma General
Insurance's case (supra), the Hon'ble Apex Court in its latest judgment
.
passed in Somwati's case (supra) has held as under :-
"35. The Constitution Bench in Pranay Sethi has also not under
conventional head included any compensation towards 'loss of
love and affection' which have been now further reiterated by
three- Judge Bench in United India Insurance Company Ltd.
(supra). It is thus now authoritatively well settled that no
compensation can be awarded under the head 'loss of love and
affection'.
36. The word 'consortium' has been defined in Black's law
Dictionary, 10th edition. The Black's law dictionary also
simultaneously notices the filial consortium, parental
consortium and spousal consortium in following manner:-
"Consortium 1. The benefits that one person, esp. A
spouse, is entitled to receive from another, including
companionship, cooperation, affection, aid, financial
support, and (between spouses) sexual relations a claim
for loss of consortium.
Filial consortium A child's society, affection, and
companionship given to a parent.
Parental consortium A parent's society, affection and
companionship given to a child.
Spousal consortium A spouse's society, affection and
companionship given to the other spouse."
37. The Magma General Insurance Company Ltd. (Supra) as
well as United India Insurance Company ltd.(Supra), Three-
Judge Bench laid down that the consortium is not limited to
spousal consortium and it also includes parental consortium as
well as filial consortium. In paragraph 87 of United India
Insurance Company Ltd. (supra), 'consortium' to all the three
claimants was thus awarded. Paragraph 87 is quoted below:-
"87. Insofar as the conventional heads are concerned,
.
the deceased Satpal Singh left behind a widow and
three children as his dependants. On the basis of the
judgments in Pranay Sethi (supra) and Magma General
(supra), the following amounts are awarded under the
conventional heads:-
i) Loss of Estate: Rs. 15,000
ii) Loss of Consortium:
a) Spousal Consortium: Rs.40,000
b) Parental Consortium: 40,000 x 3 = Rs.
1,20,000
iii) Funeral Expenses: Rs. 15,000"
38. Learned counsel for the appellant has submitted that
Pranay Sethi has only referred to spousal consortium and no
other consortium was referred to in the judgment of Pranay
Sethi, hence, there is no justification for allowing the parental
consortium and filial consortium. The Constitution Bench in
Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss
of consortium' but the Constitution Bench had not addressed
the issue as to whether consortium of Rs.40,000/- is only
payable as spousal consortium. The judgment of Pranay Sethi
cannot be read to mean that it lays down the proposition that
the consortium is payable only to the wife.
39. The Three-Judge Bench in United India Insurance Company
Ltd. (Supra) has categorically laid down that apart from
spousal consortium, parental and filial consortium is payable.
We feel ourselves bound by the above judgment of Three Judge
Bench. We, thus, cannot accept the submission of the learned
counsel for the appellant that the amount of consortium
awarded to each of the claimants is not sustainable.
40. We, thus, found the impugned judgments of the High Court
awarding consortium to each of the claimants in accordance
with law which does not warrant any interference in this
appeal. We, however, accept the submissions of learned counsel
for the appellant that there is no justification for award of
compensation under separate head 'loss of love and affection'.
The appeal filed by the appellant deserves to be allowed
insofar as the award of compensation under the head 'loss of
love and affection."
15. In view of the discussions made supra and the law laid down
.
by Hon'ble Apex Court in the afore-cited judgments, impugned award
passed by learned Tribunal below needs to be modified to the following
extent:
Heads Amount in Final amount
Rs. after
deduction
/addition
1 Loss of dependency
a) Income Rs. 6810 per
month with 25% addition on
future prospects)
6810x25/100= 1702
i.e. 6810+1702=8512 9,53,400 9,53,400
b) 1/3rd deduction on
personal expenses i.e.
8512/3=2837
c) Loss of dependency
=8512-2837=5675
d) Annual dependency
5675x12=68100
with multiplier of 14 i.e.
68100x14= 9,53,400/-
2. loss of estate (in favour of 15,000 15,000
wife)
3. Loss of consortium 1,20,000 1,20,000
(Rs.40,000 each to the
claimants)
4. Funeral expenses 15,000 15,000
Total compensation 11,03,400/-
16. Interest @ 9% awarded by the learned tribunal below also
.
appears to be on higher side and as such, same is modified to 7.5% from
the date of filing of the petition till its deposit.
17. Consequently, in view of detailed discussion made herein above
and law laid down by the Hon'ble Apex Court, present appeal is partly
allowed and impugned award dated 16.3.2019, passed by learned MACT
below in MAC Case No. 11-R/2 of 2017, is modified to aforesaid extent
only. Needless to say, claimants would be entitled to the interest @ 7.5% on
the aforesaid total amount of compensation instead of 9%. Accordingly,
present appeal is disposed of, alongwith all pending applications, if any.
Interim directions, if any, are vacated.
13th December, 2021 (Sandeep Sharma),
(manjit) Judge
