Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Rai Singh Tanwar And Others on 14 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14TH DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
FIRST APPEAL FROM ORDER NO. 151 OF 2018
Between:-
ORIENTAL INSURANCE COMPANY LTD.,
MYTHE ESTATE, KAITHU,
SHIMLA-3, H.P.
THROUGH ITS
SENIOR DIVISIONAL MANAGER
... APPELLANT
(BY MR. LALIT K. SHARMA, ADVOCATE)
AND
1. SMT. PUSHPA RANA
WD/O SH. KHEM SINGH
2. KUMARI POOJA,
DAUGHTER OF LATE SHRI KHEM SINGH,
3. SH. BALA RAM
S/O LATE SH. KHEM SINGH
RESPONDENTS NO. 2 AND 3
BEING MINORS THROUGH
THEIR MOTHER AND NATURAL GUARDIAN,
SMT. PUSHPA RANA,
RESPONDENT NO.1.
RESPONDENTS/CLAIMANTS
4. RAI SINGH TANWAR
S/O LATE SH. JAWALA DASS,
RESIDENT OF VILLAGE RAIKA, POST OFFICE DOCHI,
TEHSIL JUBBAL, DISTRICT SHIMLA,
H.P.
THROUGH LEGAL REPRESENTATIVES
4(A) RAJINDER SINGH
4(B) KALAM SINGH
4(C) KALYAN SINGH; SONS;
4(D) VIDYA DEVI; DAUGHTER
4(E) LOKINDRA DEVI; WIDOW;
::: Downloaded on - 31/01/2022 23:26:00 :::CIS
2
OF LATE RAI SINGH TANWAR
ALL R/O VILLAGE RAIKA, P/O DOCHI
VILLAGE RIKA TEHSIL JUBBAL,
DISTT. SHIMLA (H.P.)
5. SH. DHARAM PAL
S/O SALIG RAM,
.
RESIDENT OF VILLAGE KHLAI,
POST OFFICE DHARASA,
SUB-TEHSIL TIKKAR,
DISTRICT SHIMLA, H.P.
RESPONDENTS
(BY MR. B.S. CHAUHAN,
SENIOR ADVOCATE WITH
MR.MUNISH DATWALIA, ADVOCATE
FOR R-1 TO R-3
MR. ASHISH VERMA, ADVOCATE,
FOR R-4(A) TO 4(E) r
MR. PRAVEEN KUMAR, ADVOCATE
FOR R-5)
Whether approved for reporting: yes.
This appeal coming on for orders this day, the court delivered the following:
J U D G M E N T
Instant appeal filed under S.173 of the Motor Vehicles Act
(hereinafter, 'Act') lays challenge to award dated 30.10.2017 passed by
learned Motor Accident Claims Tribunal-IV, Shimla, Himachal Pradesh in
M.A.C. Petition RBT No. 29-S/2 of 2014, titled Pushpa Rana and others vs.
Rai Singh Tanwar and others, whereby learned Tribunal below, while allowing
claim petition filed by respondents Nos. 1 to 3/claimants (hereinafter,
'claimants'), saddled the appellant-insurance company with the liability to pay
compensation to the tune of Rs. 20,47,500/- on account of death of Shri Khem
Singh, who unfortunately died in a motor accident on 11.11.2012.
2. Precisely, the facts of the case, as emerge from the record, are that
the claim petition under S. 166 of the Act, came to be instituted at the behest
of the claimants, wherein they claimed compensation to the tune of Rs. 20.00
Lakh on account of death of Khem Singh, being his legal heirs. Claimants
.
claimed that the above named Khem Singh had gone to Hatkoti on
11.11.2012 for loading the articles and thereafter he went to place Sanail, with
the person namely Dharam Pal, respondent No.5, for bringing the sand, which
was required for leveling and repairing the Dhaba near village Sundli.
Claimants alleged that, while the deceased was on his way to Sundli from the
Laxmi Stone Crusher, vehicle bearing registration No. HP-63-0627, being
driven by respondent No.4 Rai Singh Tanwar, and owned by respondent No.5
Dharam Pal, met with an accident, as a consequence of which, all the
occupants of the vehicle suffered injuries. Though, all the injured including
deceased Khem Singh were referred to IGMC Shimla, but unfortunately,
Khem Singh succumbed to his injuries and expired. FIR No. 68, dated
12.11.2012, under Ss. 279, 337 and 340A IPC came to be lodged against
respondent No.4. Claimants averred that the deceased was 38 years of age
and was hale and hearty at the time of accident. It is claimed by the claimants
that he was earning Rs. 20,000/- per month from the orchard and Rs. 15,000/-
per month from his Dhaba. Claimants claimed that on account of untimely
death of Khem Singh, they have lost support and as such, they need to be
awarded compensation to the tune of Rs.20.00 Lakh.
3. Claim petition came to be resisted by respondents Nos. 4 and 5,
being driver and owner, respectively of the vehicle. Though these
respondents did not deny the factum with regard to accident but claimed that
the accident did not occur due to rash and negligent driving of the respondent
No.4, rather the road at the spot of accident was slippery due to snow and the
vehicle skidded backwards and went off the road, resulting in the accident.
4. Appellant-insurance company opposed the claim of claimants on
the ground that at the time of accident, ill-fated vehicle was being plied in
.
violation of terms and conditions of the insurance policy. Appellant-insurance
company further claimed that the driver of the vehicle was not having valid
and effective driving licence to driver the vehicle at the time of accident, as
such, it cannot be fastened with liability to indemnify the insured.
5. On the basis of pleadings of the parties, learned Tribunal below,
framed following isues:
"1. Whether Sh. Khem Singh died in motor vehicle accident
which took place on 11.11.2012 at about 9.30/10.00 PM at
place Shari Nala near Jubbal, on account of rash and
negligent driving of driver of vehicle No. HP-63-0627, as
alleged? OPP
2. Whether the petitioners are entitled for compensation, if so,
then what should be the quantum? OPP.
3. Whether the petition is not maintainable, as alleged? OPR
4. Whether the petitioners have no cause of action, as alleged?
OPR
5. Whether Sh. Khem Singh was traveling in the alleged
vehicle as un-authorized gratuitous passenger, as alleged?
OPR
6. Whether vehicle in question was being driven in
contravention of the salient provision of M.V. Act, as
alleged? OPR
7. Whether the driver was not possessing valid and effective
driving licence., as alleged? OPD
8. Relief."
6. Subsequently, vide impugned Award dated 30.10.2012, learned
Tribunal below having taken note of the pleadings of the parties and evidence
led on record by them, held appellant-insurance company and respondent No.
5 Dharam Pal, owner of vehicle, jointly and severally liable to pay
.
compensation to the claimants, and directed appellant-insurance company to
indemnify the insured and as such, it has approached this court in the instant
proceedings, praying therein to set aside the impugned Award passed by
learned Tribunal below.
7. Having heard learned counsel for the parties and perused material
available on record, this court finds that primarily challenge to the award
impugned in the instant proceedings, has been laid on one ground i.e.
deceased Khem Singh was traveling as a gratuitous passenger in the vehicle,
as such, appellant-insurance company could not be held liable to pay the
compensation. Besides above, learned counsel for the appellant while inviting
attention of this court to judgment rendered by Hon'ble Apex Court in
National Insurance Company Limited vs. Pranay Sethi and others, AIR
2017 SC 5157, argued that no amount on account of loss of love and
affection could be awarded. He also argued that learned Tribunal below has
erred while granting Rs. 1.00 Lakh and Rs.25,000/- as consortium and
funeral charges, respectively and in terms of Pranay Sethi (supra), only Rs.
40,000/- each as consortium and Rs. 15,000/- on account of funeral charges
could have been awarded.
8. Since the factum with regard to accident as well as rash and
negligent driving by respondent No.4 are not in dispute, this court sees no
reason to refer to the factual matrix of the case, which by and large stands
admitted by the contesting parties. Moreover, challenge to the impugned
award has been laid specifically qua finding of learned Tribunal below
returned on issue No.5, whereby plea having been raised by appellant-
insurance company that at the time of accident deceased was travelling as a
gratuitous passenger, has been negated. In the case at hand, onus to prove
.
this issue was upon appellant-insurance company, but careful perusal of
evidence led on record by respective parties, nowhere suggests that the
appellant-insurance company was able to discharge the onus to prove that at
the time of accident deceased was travelling as a gratuitous passenger, rather
evidence available on record, clearly proves that at the time of accident,
Khem Singh, was travelling in the ill-fated vehicle as an owner of sand.
9. Maan Singh, Assistant Manager of the appellant-Insurance
Company, while appearing as RW-5, deposed that the vehicle in question was
insured with the appellant-Insurance Company with effect from 27.3.2012 to
26.3.2013. He placed on record copy of the insurance policy, Ext. RW-5/B
and copy of terms and conditions of the insurance policy, etc. RW-5/C. He
stated that their company has declined the claim of the claimants as
unauthorized passengers were found sitting in the vehicle at the time of
accident. He deposed that investigation was conducted by one Kamal
Narayan at the instance of the appellant-Insurance Company and he
submitted his report, Ext. RW-3/A. This witness further stated that there were
four persons including the driver of the vehicle at the time of accident, out of
which two were found to have consumed liquor, thereby violating the terms
and conditions of the insurance policy and provisions of the Motor Vehicles
Act, as such, insurance company was not liable to indemnify the insured. He
deposed that the driver ran away from spot after accident and there were 4
persons traveling at the time of accident in the vehicle. He deposed that the
vehicle was empty and three persons were gratuitous passenger and sitting
unauthorizedly in vehicle, as seating capacity of vehicle is 3 only. In his cross-
examination, this witness admitted that the driver was found to have valid and
effective driving licence, Ext. RW-1/D at the time of accident. He feigned
.
ignorance about the factum whether the appellant-insurance company has
been held liable to pay Rs. 1,29,172/- alongwith interest at the rate of 9% per
annum by learned consumer court.
10. Kamal Narayan, RW-3 deposed that he conducted investigation at
the instance of the appellant-insurance company. He proved his report, Ext.
RW-3/A. In his cross-examination, this witness admitted that he did not record
statements of witnesses at the spot during investigation. He feigned ignorance
about the fact that whether the deceased had hired vehicle from respondent
No.5 to go to Hatkoti, for unloading articles and thereafter he went to place
Sanail, with respondent No.2, driver to bring sand for leveling and repairing
his Dhaba near village Sundli. He also feigned ignorance qua th fact that how
many days after the accident, he visited the spot.
11. If the aforesaid evidence led on record by appellant-insurance
company is read in conjunction, it nowhere supports the case of the appellant-
Insurance Company, that at the time of accident, deceased Khem Singh, was
traveling in the vehicle as a gratuitous passenger. Heavy reliance has been
placed upon investigation report, Ext. RW-3/A submitted by Kamal Narayan
but since he failed to associate any independent witness of occurrence, while
conducting investigation, learned Tribunal below rightly ignored the same. To
the contrary claimants, successfully proved on record, by leading cogent and
convincing evidence that at the time of accident, deceased was traveling in
vehicle as owner of sand.
12. PW-4 Kishan Singh, who was working as Munshi in Stone Crusher
stated that the sand was loaded in the vehicle bearing registration No. HP-63-
0627 at about 6-7 PM and thereafter, vehicle went to Jubbal and met with
accident. He also stated that besides above, there were two other persons in
.
the vehicle.
13. Rai Singh Tanwar (RW-1) owner of offending vehicle, in his cross-
examination conducted by learned counsel for the claimants, admitted that
vehicle was loaded with sand and deceased Khem Singh and his son were in
the vehicle as owner of the sand. He deposed that there was no unauthorized
passenger in the vehicle at the time of accident.
14. Dharma Pal (RW-2), driver of offending vehicle stated in his cross-
examination that there was no unauthorized passenger sitting in the vehicle
sitting at the time of accident.
15. Ram Bahadur, PW-3, who happens to be eye-witness of the
accident, deposed that he is a labourer and was working near Shari Nala. He
deposed that on 11.11.2012, vehicle bearing registration No. HP-63-0627,
came from Hatkoti side at a high speed and fell down the road. He deposed
that accident occurred at about 0-10 PM at night, due to rash and negligent
driving of the driver of the vehicle. He deposed that vehicle was loaded with
sand, in which three persons were sitting including the driver of the vehicle.
16. Having scanned the entire evidence led on record by parties, qua
issue No. 5, this court finds no illegality or infirmity in the findings returned by
learned Tribunal below that at the time of accident, deceased was traveling in
the vehicle as owner of goods and as such, no interfere if any is called for.
However, having carefully perused judgment rendered by Hon'ble Apex Court
in Pranay Sethi,(supra), amount awarded by learned Tribunal below under
conventional heads needs to be modified. Similarly Rs. 15,000/- on account
of funeral charges. Besides this, Rs. 15,000/- is required to be awarded on
account of loss of estate in terms of Pranay Sethi (supra). Admittedly in
terms of Pranay Sethi (supra), no amount can be awarded under loss of love
.
and affection. Similarly, only Rs. 40,000/-each is required be awarded to the
claimants on account of consortium in terms of Magma General Insurance
Co. Ltd. v. Nanu Ram and Ors., Civil Appeal No. 9581 of 2018 decided
on 18.9.2018.
17. At this stage, learned counsel for the appellant-Insurance
Company argued that this Court has no power to award any extra
amount/enhance the amounts already awarded by learned Tribunal below,
since no cross-objections/appeal has been filed by the claimants. On the
issue of power of an appellate court to make additional award, reference
may be made to a judgment rendered by Hon'ble Apex Court in Ranjana
Prakash and others vs. Divisional Manager and another (2011) 14 SCC
639, whereby, it has been held that amount of compensation can be
enhanced by an appellate court, while exercising powers under Order 41
Rule 33 CPC. It would be profitable to reproduce following para of the
judgment herein:-
"Order 41 Rule 33 CPC enables an appellate court to pass
any order which ought to have been passed by the trial court
and to make such further or other order as the case may
require, even if the respondent had not filed any appeal or
cross-objections. This power is entrusted to the appellate
court to enable it to do complete justice between the parties.
Order 41 Rule 33 CPC can be pressed into service to make
the award more effective or maintain the award on other
grounds or to make the other parties to litigation to share the
benefits or the liability, but cannot be invoked to get a larger
or higher relief. For example, where the claimants seek
compensation against the owner and the insurer of the
vehicle and the tribunal makes the award only against the
owner, on an appeal by the owner challenging the quantum,
.
the appellate court can make the insurer jointly and severally
liable to pay the compensation, alongwith the owner, even
though the claimants had not challenged the non-grant of
relief against the insurer."
18. Consequently in view of above, award passed but learned Tribunal
below needs to be modified in following manner.
Head Amount
(Rs.)
Loss of dependency 1822500
Consortium at the rate of Rs.40,000/- each to all 120000
the claimants
Funeral charges 15000
Loss of estate 15000
Total compensation 1972500
19. So far interest rate awarded by learned Tribunal below is
concerned, same calls for no interference.
20. 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 passed by learned Tribunal below is modified to the
aforesaid extent only.
21. All pending miscellaneous applications, if any, are disposed of.
Interim directions, if any, are vacated.
(Sandeep Sharma),
Judge
December 14, 2021
(vikrant)
