Himachal Pradesh High Court
Iffco-Tokio Gen. Insurance ... vs New India Assurance Company ... on 13 December, 2021
Bench: Jyotsna Rewal Dua
Object 1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF DECEMBER 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
FIRST APPEAL FROM ORDER No. 527 of 2017
Between:-
IFFCO-TOKIO GEN. INSURANCE COMPANY LIMITED,
BRANCH AT SHIMLA THROUGH MR. ARUN MEHROTRA,
CSC HEAD CHD. CAMP DELHI, ITGI, IFFCO HOUSE,
NEHRU PLACE, NEW DELHI-19
.....APPELLANT
(BY SHRI VIRENDER SHARMA, ADVOCATE)
AND
1. SH. BAL BAHADUR S/O SH. RATTI RAM,
2. BHUPINDER KUMARI W/O BAL BAHADUR
3. KRISHNA D/O BAL BAHADUR
(BEING MINOR THROUGH HER FATHER
AND NATURAL GUARDIAN RESPONDENT NO. 1)
ALL C/O PREM BAHADUR, REGAL
BUILDING, LAKKAR BAZAR, SHIMLA, H.P.
.....RESPONDENTS/PETITIONERS
4. SH. MAN MOHAN KHANNA, REGAL
BUILDING LAKKAR BAZAR, SHIMLA
(SINCE THE ORIGINAL OWNER OF VEHICLE
MARUTI OMNI NO. HR-30C-2000
NAMELY SH. SHYAM KHANNA HAS DIED
::: Downloaded on - 31/01/2022 23:25:25 :::CIS
2
IN SAID ACCIDENT ON 14.5.2008,
THEREFORE, THE RESPONDENT NO. 4
HAS INHERITED THE ESTATE OF DECEASED)
.
5. SH. PARAMJEET S/O DEVINDER SINGH
R/O H NO. 136-A, KASTURBA ROAD,
RAJPURA, DISTT. PATIALA, PUNJAB
(OWNER CUM DRIVER OF VEHICLE
CANTER NO. HR-37A-5752)
6. THE NEW INDIA ASSURANCE CO. LTD.
THROUGH ITS DIVISIONAL MANAGER,
SDA COMPLEX, KASUMPATI, SHIMLA-9, HP.
r .....RESPONDENTS
(SHRI V.S. RATHOUR, ADVOCATE FOR R-1 TO R-3,
SH. ANUJ GUPTA, ADVOCATE FOR R-4,
SH. B.M.CHAUHAN, SENIOR ADVOCATE WITH
SH. M.S. KATOCH, ADVOCATE FOR R-6,
NEMO FOR R-5)
_________________________________________________________
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Learned Motor Accidents Claims Tribunal vide award
dated 28.12.2016 allowed the claim petition. The claimants were
granted compensation of Rs. 9,99,800/- alongwith interest @ 9% per
annum from the date of filing of the claim petition till its realization.
Liability to pay the compensation amount was fastened upon the
Insurer of the vehicle (Maruti Omni). Aggrieved, the Insurer/original
respondent No. 2 has preferred instant appeal.
.
2(i) Briefly put the facts are that on 14.5.2008, Khoom Lal
was travelling in Maruti Omni vehicle No. HR-30C-2000. The
vehicle was being driven by Shri Shyam Khanna, whose wife Smt.
Shivakshi and son Chaitanya were also travelling in the vehicle.
Khoom Lal was domestic servant of Shri Shyam Khanna. The
vehicle was going from Shimla to Delhi. The vehicle lost its balance
near Ethenic India Resort on GT Road, Sonipat. Shri Shyam
Khanna could not control the vehicle. It crossed over the road
divider, went on to the other side of the road and struck a Canter
bearing No. HR-37A-5752 coming from Delhi towards Sonipat. All
the occupants of the Maruti Omni vehicle including Khoom Lal died.
2(ii) Claim petition was preferred by the parents and minor
sister of deceased Khoom Lal claiming compensation of Rs.
15,00,000/- on account of death of Khoom Lal. The claimants
pleaded that the deceased was earning Rs. 15,000/- per month and
was aged around 18 years at the time of accident.
2(iii) The owner-cum-driver of Canter Vehicle No. HR-37A-
5752 took up the stand that accident had occurred due to rash and
negligent driving of the Maruti Omni vehicle. The Insurer of the
Canter vehicle was also impleaded in the claim petition as
respondent No. 4. Respondent No. 2 in the claim petition was the
.
Insurer of Maruti Omni vehicle. Shri Manmohan Khanna was
impleded as respondent No. 1 as the legal heir of late Shri Shyam
Khana, the owner-cum-driver of ill fated Maruti Omni vehicle.
2(iv) After considering the pleadings, evidence and respective
contentions of the parties, learned Motor Accidents Claims Tribunal
held that the accident in question occurred on account of rash and
negligent driving of Maruti Omni vehicle. The compensation was
assessed at Rs.9,99,800/- with interest @ 9% per annum. The
liability to pay the assessed compensation alongwith interest was
fastened upon the appellant being the Insurer of Maruti Omni
vehicle. Aggrieved, the Insurer of Maruti Omni vehicle has preferred
the instant appeal.
3. Learned counsel for the appellant has raised two main
points in the instant appeal:
First that the accident did not occur solely on account of
negligent driving of Maruti Omni vehicle. The owner-cum-driver of
Canter vehicle was also guilty of contributory negligence. Therefore,
liability to pay the compensation amount should have also been
fastened upon and shared by owner-cum-driver of Canter vehicle
and in turn by its Insurer i.e. original respondent No. 4.
.
Second that the compensation has been incorrectly
assessed by the learned Motor Accidents Claims Tribunal.
4. I have heard learned counsel for the parties on both the
above points and with their assistance have seen the record.
4(a)
4(a)(i)
Contributory negligence
In support of the plea that the owner-cum-driver of
Canter vehicle was guilty of contributory negligence, reliance was
placed by learned counsel for the appellant upon paragraphs-22 and
24 of the claim petition, containing averments that the
"driver-cum-owner of Maruti Omni vehicle could not control
the vehicle, the vehicle after crossing the divider fell on the
road leading from Sonipat to Delhi. It met with an accident with
vehicle No. HR-37A-5752 which was coming to Delhi side and
was being driven by its driver in rash and negligent manner and
hit the said van."
Learned counsel for the appellant in order to establish contributory
negligence on part of owner-cum-driver of Canter vehicle also
pressed into service the FIR Ex.PW1/A. This FIR No. 132 was
registered on 15.5.2008 at the behest of Shri Manmohan Khanna,
who was recognized as legal heir of Shri Shyam Khanna (owner-
cum-driver of Maruti Omni vehicle, who died in the accident). The
FIR, inter-alia, contains the allegations that the driver of Omni Van
.
could not control it. The vehicle went on to the other side of the road
after crossing the divider and struck against a Canter vehicle coming
from the opposite side. That the driver of the Canter vehicle in a
negligent manner hit the Omni van. The Omni van turned turtle
occupants of Omni van.
r to
because of the impact. The accident resulted into the death of the
4(a)(ii) In 2021 (1) SCC 171, titled Anita Sharma and Others
Vs. New India Assurance Company Limited and Another,
Hon'ble Supreme Court reiterated well established principle that
strict principles of evidence and standards of proof like in a criminal
trial are inapplicable in MACT claim cases. The standard of proof in
such like matters is one of pre-ponderance of probabilities, rather
than beyond reasonable doubt. One needs to be mindful that the
approach and role of courts while examining evidence in accident
claim cases ought not to be to file fault with non-examination of
some best eye witnesses, as may happen in a criminal trial but
instead the material placed on record should be analysed to
ascertain whether claimant's version is more likely than not true.
Relevant paras of the judgment are extracted hereunder:-
"17. Unfortunately, the approach of the High Court was
not sensitive enough to appreciate the turn of events at
.
the spot, or the appellant claimants' hardship in tracing
witnesses and collecting information for an accident
which took place many hundreds of kilometers away in
an altogether different State. Close to the facts of the
case in hand, this Court in Parmeshwari v. Amir Chand,
viewed that: (SCC p.638, para 12).
"12. The other ground on which the High Court
dismissed the case was by way of disbelieving the
testimony of Umed Singh, PW 1. Such disbelief of the
High Court is totally conjectural. Umed Singh is not
related to the appellant but as a good citizen, Umed
Singh extended his help to the appellant by helping
her to reach the doctor's chamber in order to ensure
that an injured woman gets medical treatment. The
evidence of Umed Singh cannot be disbelieved just
because he did not file a complaint himself. We are
constrained to repeat our observation that the total
approach of the High Court, unfortunately, was not
sensitised enough to appreciate the plight of the
victim.
15. In a situation of this nature, the Tribunal has
rightly taken a holistic view of the matter. It was
necessary to be borne in mind that strict proof of an
accident caused by a particular bus in a particular
manner may not be possible to be done by the
claimants. The claimants were merely to establish
their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable
doubt could not have been applied."
(emphasis supplied)
18. The failure of the respondents to cross examine the
solitary eye witness or confront him with their version,
.
despite adequate opportunity, must lead to an inference
of tacit admission on their part. They did not even
suggest the witness that he was siding with the
claimants. The High Court has failed to appreciate the
legal effect of this absence of cross-examination of a
crucial witness.
21. Equally, we are concerned over the failure of the High
Court to be cognizant of the fact that strict principles of
evidence and standards of proof like in a criminal trial are
inapplicable in MACT claim cases. The standard of proof
in such like matters is one of preponderance of
probabilities, rather than beyond reasonable doubt. One
needs to be mindful that the approach and role of Courts
while examining evidence in accident claim cases ought
not to be to find fault with nonexamination of some best
eyewitnesses, as may happen in a criminal trial; but,
instead should be only to analyze the material placed on
record by the parties to ascertain whether the claimant's
version is more likely than not true.
22. A somewhat similar situation arose in Dulcina Fernandes
v. Joaquim Xavier Cruz4 wherein this Court reiterated
that: (SCC p.650, para 7)
"7. It would hardly need a mention that the plea of
negligence on the part of the first respondent who
was driving the pickup van as set (2013) 10 SCC
646. up by the claimants was required to be decided
by the learned Tribunal on the touchstone of
preponderance of probabilities and certainly not on
the basis of proof beyond reasonable doubt. (Bimla
Devi v. Himachal RTC" (emphasis supplied)"
In Sunita & Ors Vs. Rajasthan State Road Transport
.
Corporation & Anr., 2020 (13) SCC 486, it was held that in motor
accident claim cases, once the foundational fact, namely, the actual
occurrence of the accident, is established, then the Tribunal's role
would be to calculate the quantum of just compensation if the
accident had taken place by reason of negligence of the driver of a
motor vehicle and, while doing so, the Tribunal would not be strictly
bound by the pleadings of the parties. Notably, while deciding cases
arising out of motor vehicle accidents, the standard of proof to be
borne in mind must be of preponderance of probability and not the
strict standard of proof beyond all reasonable doubt which is
followed in criminal cases.
In a recent judgment rendered by Hon'ble Apex Court on
1.10.2021 in Civil Appeal No. 6151 of 2021, titled National
Insurance Company Ltd. Versus Chamundeswari & ors., the
case of the respondents-claimants was that all of a sudden the
driver of Eicher van turned towards right side without giving any
signal or indicator. In the said accident driver of Maruti car died and
several other passengers in the car suffered injuries. The
respondents pleaded negligence on part of driver of Eicher van as
he had taken a wrong turn without giving any signal or indicator, as
such, accident occurred only due to negligence of driver of Eicher
.
van. The claims Tribunal allowed the claim with a finding that there
was contributory negligence on part of drivers of both the vehicles.
In appeal, the High Court recorded a finding that the accident
occurred only on account of negligence of driver of Eicher van.
Hon'ble Apex Court considered the categoric evidence available on
record of the case and concurred with the findings of the High Court
by holding that in view of the evidence on record, there was no
reason to give weightage to the contents of the FIR. That if any
evidence before the Tribunal runs contrary to the contents of the
FIR, then the evidence which is recorded before the Tribunal has to
be given weightage over the contents of the FIR. That each case is
to be judged having regard to the facts of the case and evidence on
record. The relevant para from the judgment is extracted
hereinafter:
"8. It is clear from the evidence on record of PW-1 as
well as PW-3 that the Eicher van which was going in front of
the car, has taken a sudden right turn without giving any signal
or indicator. The evidence of PW-1 & PW-3 is categorical and
in absence of any rebuttal evidence by examining the driver of
Eicher van, the High Court has rightly held that the accident
occurred only due to the negligence of the driver of Eicher van.
It is to be noted that PW-1 herself travelled in the very car and
PW-3, who has given statement before the police, was
.
examined as eye-witness. In view of such evidence on record,
there is no reason to give weightage to the contents of the First
Information Report. If any evidence before the Tribunal runs
contrary to the contents in the First Information Report, the
evidence which is recorded before the Tribunal has to be given
weightage over the contents of the First Information Report. In
the judgment, relied on by the appellant's counsel in the case of
Oriental Insurance Company Limited v. Premlata Shukla and
Others, this Court has held that proof of rashness and
negligence on the part of the driver of the vehicle, is therefore,
sine qua non for maintaining an application under Section 166
of the Act. In the said judgment, it is held that the factum of an
accident could also be proved from the First Information Report.
In the judgment in the case of Nishan Singh and Others v.
Oriental Insurance Company Limited, this Court has held, on
facts, that the car of the appellant therein, which crashed into
truck which was proceeding in front of the same, was driven
negligently by not maintaining sufficient distance as
contemplated under Road Regulations, framed under Moor
Vehicle Act, 1988. Whether driver of the vehicle was negligent
or not, there cannot be any straitjacket formula. Each case is
judged having regard to facts of the case and evidence on
record. Having regard to evidence in the present case on hand,
we are of the view that both the judgments relied on by the
learned counsel for the appellant, would not render any
assistance in support of his case."
4(a)(iii) In the facts of instant case, the findings recorded by the
learned Motor Accidents Claims Tribunal with respect to the accident
having been caused because of rash and negligent driving of the
Maruti Omni vehicle do not call for any interference. This is for the
.
following reasons:
a) The claimants were not present at the spot when the
accident occurred. They were not eye witnesses to the accident. A
single line averment in the claim petition about the negligent driving
of Canter vehicle as the cause of accident cannot be read in
isolation in disregard to other evidence available on record.
b) Shri Manmohan Khanna, at whose behest FIR No. 132
was registered at Police Station, Rai, District Sonipat (Haryana) on
15.5.2008 was also not an eye witness to the accident, yet the
allegations levelled by him in the FIR, if read into totality, do not
make out that the accident occurred on account of rash and
negligent driving of the Canter vehicle. The allegations simplicitor
were that the driver of Maruti Omni lost control over the vehicle. The
vehicle crossed the divider, went on to the other side of the road and
there it struck with an oncoming Canter vehicle from the opposite
side. The impact caused the accident resulting into death of all the
occupants of Maruti Omni vehicle.
c) On the basis of FIR No. 132 of 2008, a criminal case No.
380-1/2008 was registered against the owner-cum-driver of Canter
vehicle. Shri Manmohan Khanna, the author of the FIR appeared in
the criminal case as PW2 and deposed that he did not know for
.
whose fault the accident took place. The criminal case resulted in
acquittal of the owner-cum-driver of Canter vehicle vide judgment
dated 2.9.22011.
d) The owner-cum-driver of the Canter vehicle stepped into
the witness box as RW1 and reiterated his stand as pleaded in the
reply to the claim petition that the accident did not occur on account
of any negligence on his part. That he was carefully driving the
Canter vehicle on the correct side of the road. That suddenly a
Maruti Omni vehicle from the other side of the road crossed the
divider in the middle of the road and struck against Canter vehicle.
That the accident occurred because of negligent driving of the
Maruti Omni vehicle. This witness stood by his stand even in his
cross-examination by the Insurer of the Canter vehicle.
There is no evidence on record to demonstrate that the
owner-cum-driver of the Canter vehicle was guilty of contributory
negligence.
In view of the foregoing reasons, I do not find any
infirmity with the findings of learned Motor Accidents Claims Tribunal
that the accident in question was caused due to rash and negligent
driving of Maruti Omni vehicle. The liability to pay the compensation
amount was, therefore, correctly fastened upon the appellant being
.
Insurer of the said vehicle. Point No. 1 raised by the appellant is
decided against it.
4(b) Compensation amount
4(b)(i) Deceased Khoom Lal was admittedly working as
domestic servant with Shri Shyam Khanna at the time of accident.
This fact has been admitted in reply by Shri Manmohan Khanna,
who has been held to be the legal heir of late Shri Shyam Khanna.
There is no dispute between the parties that the age of deceased at
the time of accident was 15 years. The claimants i.e. parents and
minor sister of deceased Khoom Lal asserted that he was being paid
Rs. 15,000/- per month as domestic servant. However, no evidence
to this effect was placed on record. Learned Tribunal assessed the
income of the deceased on the basis of Minimum Wages Act at Rs.
5400/- per month i.e. Rs. 180/- per day. . In this regard, it would be
appropriate to refer to Govind Yadav vs New India Assurance Co.
Ltd., 2012 ACJ 28 wherein it was 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. The Tribunal then
proceeded to determine the amount of compensation in lieu of
loss of earning 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, the
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, the Tribunal and the High Court should have
determined the amount of compensation in lieu of loss of
earning by taking the appellant's notional annual income as
Rs.36,000/- and the loss of earning on account of 70%
permanent disability as Rs.25,200/- per annum."
In absence of any contemporary record and proof of
earning, the reference should be made to the minimum wages
payable at the relevant time. During hearing of the case, learned
counsel for the appellant placed on record the minimum wages rate
admissible in the State of Himachal Pradesh as on 31.12.2008.
According to the document, Rs. 100/- was the minimum wage per
day as on 31.12.2008 in the State of Himachal Pradesh. This was
not denied by learned counsel for the respondents. Proceeding
from there, the earning of the deceased Shri Khoom Lal would come
to Rs. 3000/- per month. Learned Tribunal though based the
assessment of compensation on the minimum wages for
.
determining the income of the deceased, however, fell into error in
assessing the minimum wages at Rs. 180/- per day. The accident in
question had occurred on 14.5.2008. As per the notification placed
on record by learned counsel for the appellant (not denied by
learned counsel for the respondents), the minimum wages as on
31.12.2008 in the state of Himachal Pradesh were Rs. 100/- per day.
Proceeding from there the compensation in terms of the judgment
rendered in (2017) 16 SCC 680, titled National Insurance
Company Limited versus Pranay Sethi and others is worked out
as under:
i) Monthly earning - Rs. 3000/-
ii) 40% increase in income
of deceased - Rs. 1200/-
iii) Total income - Rs. 3000 +1200= 4200
iv) 50% deduction - Rs. 2100
v) Multiplier - 18
vi) Total compensation - 2100X12X18=4,53,600/-
vii) Compensation under conventional heads
Sr. No. Head Compensation awarded
i) Loss of estate Rs. 16,500/-
ii) Loss of love and Rs. 88000/-
affection
.
iii) Funeral expenses Rs. 16,500/-
Total compensation amount= Rs.4,53,600+1,21,000
=Rs. 5,74,600/-.
In view of above discussion, present appeal is partly
allowed. The impugned award passed by the learned Motor
Petition RBT to
Accidents Claims Tribunal-IV-Shimla, District Shimla in MAC
No. 10-S/2 of 2014/12 is modified to the extent
indicated above. The remaining terms and conditions of the
impugned award including the interest component shall remain the
same. The appeal stands disposed of accordingly, so also the
pending application(s), if any.
Jyotsna Rewal Dua
Judge
13th December, 2021
(vs)
