Himachal Pradesh High Court
Divisional Office vs Pranay Sethi And Others on 18 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18TH DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
FIRST APPEAL FROM ORDER NO. 431 OF 2016
Between:-
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, HIMLAND HOTEL,
CIRCULAR ROAD, SHIMLA-171001
THROUGH ITS
ADMINISTRATIVE OFFICER (LEGAL)
NATIONAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE,
HIMLAND HOTEL, CIRCULAR ROAD,
SHIMLA-171001
... APPELLANT
(BY MR. JAGDISH THAKUR, ADVOCATE)
AND
1. SMT. VANDANA
S/O LATE SH. SANJU
2. SMT. KAMLA
W/O SH. PREETAM
3. SH. PREETAM
S/O SH. CHANDI
RESIDENTS OF VILLAGE AND POST OFFICE PARALA,
TEHSIL THEOG, DISTRICT SHIMLA,
PRESENTLY RSIDING CHAUHAN COTTAGE,
NEAR SUBZI MANDI, BHATTA KUFFAR,
SHIMLA, H.P.
RESPONDENT/PETITIONER
4. SH. DAVINDER SHARMA
S/O SH. VIJAY RAM,
R/O VILLAGE KALAHAR, POST OFFICE KIAR,
TEHSIL THEOG, DISTRICT SHIMLA,
H.P.
5. SH. SANT RAM,
S/O SH. PARAS RAM,
R/O VILLAGE SAMBAR,
POST OFFICE KIAR,
::: Downloaded on - 31/01/2022 23:27:43 :::CIS
2
TEHSIL THEOG, DISTRICT SHIMLA, H.P.
RESPONDENTS
(BY MR. RAMAN SETHI, ADVOCATE
FOR R-1 TO R-3
.
MR. B.N. MEHTA, ADVOCATE
FOR R-4 AND 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 24.5.2016 passed by learned
Motor Accident Claims Tribunal, Shimla, District Shimla, Himachal Pradesh in
MAC Petition No. 1-S/2 of 2015, whereby learned Tribunal below, while
allowing claim petition having been 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. 22,94,000/- alongwith interest
at the rate of 9% per annum, to the claimants, from the date of filing of
petition, till realization.
2. Precisely, the facts of the case, as emerge from the record, are that
the claimants filed a claim petition under S.166 of the Act, seeking claim of
Rs. 26,98,000 alongwith interest at the rate of 9% per annum on account of
death of one Sanju, being his dependents/legal representatives, averring
therein that the deceased was working as a Cleaner in vehicle bearing
registration No. HP-9C-2572, owned by respondent No.4 and he was earning
Rs. 12,000/- per month. Claimants claimed that the aforesaid vehicle being
driven by respondent No.5, met with an accident on 18.11.2014, near
Dhilogarh, on Chhaila Mohari road, as a consequence of which, deceased
Sanju suffered injuries and later on succumbed to the same. FIR No. 177,
dated 18.11.2014, qua rash and negligent driving of respondent No.5 came
to be lodge at Police Station Theog. Claimants claimed that the deceased was
the sole bread winner of the family and after his death, they have lost their
.
support and as such, are liable to be compensated adequately.
3. Claim put forth by claimants came to be resisted by respondents
Nos. 4 and 5 being owner and driver, who though have not denied the factum
of accident but claimed that the vehicle at that time was not being driven in
rash and negligent manner. Both the respondents claimed that accident took
place due to sudden defect in the vehicle.
4. Appellant-insurance company refuted the claim on the ground that
the deceased was sitting in the vehicle as an unauthorized passenger and
driver of the vehicle was not having valid and effective driving licence and as
such, it cannot be fastened with liability to indemnify the insured.
5. On the basis of pleadings of parties, learned Tribunal below framed
following issues:
"(1) Whether Sanju died in a rod side accident on 18.11.2014
at about 4.45 P.M. near Dhilogarh involving vehicle No.
HP-09C-2572 being driven by respondent No.3 in a rash
and negligent manner? OPP
(2) If issue No. 1 is proved in affirmative, to what amount of
compensation and from whom the claimants are entitled
to? OPP
(3) Whether the claim petition is not maintainable ? OPR-2
(4) Whether the driver of the vehicle was not having a valid
and effective driving licence at the time of driving the
vehicle, if so, its effect? OPR-2
(5) Whether the driver was permitted to ply the vehicle in
violation fo the terms and conditions of the insurance
policy as well as the provision of contract of insurance?OpR-2
(6) Whether there is a collusion between the claimants and
respondents no. 1 and 3? OPR
.
(7) Relief"
6. Subsequently vide impugned Award dated 24.5.2016, learned
Tribunal below allowed the claim petition and awarded sum of Rs. 22,94,000/-
as compensation alongwith interest at the rate of 9% per annum from the date
of petition till realization. Since the appellant-insurance company, being
insurer, came to be fastened with liability to pay compensation, it has
approached this court in the instant proceedings.
7.
Having heard learned counsel for the parties and perused material
available on record, vis-à-vis the reasoning assigned by learned Tribunal
below in the impugned Award, this court finds that appellant-insurance
company has laid challenge to award primarily on following grounds.
(a) Since the claimants failed to lead/place cogent and convincing
documentary evidence with respect to occupation and monthly
income of the deceased, there was no occasion for it to asses
income of the deceased at Rs. 9000/- by applying guess work.
(b) Learned Tribunal below has erred, while awarding amounts
under certain conventional heads in violation of judgment
rendered by Hon'ble Apex Court in National Insurance
Company Limited vs. Pranay Sethi and others, AIR 2017
SC 5157.
8. Learned counsel for the appellant, while inviting attention of this
court to judgments dated 23.4.2018 rendered in in FAO No. 43 of 2018, titled
Reliance General Insurance Company Limited vs. Ishwar Singh and judgment
dated 13.12.2021 rendered in FAO No. 227 of 2019, titled NIC Ltd. vs. Balma,
contended that in cases, where there is no specific proof with regard to
income of deceased, courts, while considering compensation, are required to
resort to provisions of Minimum Wages Act.
.
9. Mr. Raman Sethi, Advocate, learned counsel for the claimants,
contended that since it has come in evidence that deceased was being paid
Rs.9,000 by owner of vehicle, learned Tribunal below rightly assessed his
income at Rs. 9,000/- per month. While fairly admitting that learned Tribunal
below has wrongly awarded some amounts under conventional heads, Mr.
Sethi, also admitted that in light of Pranay Sethi supra, 40% addition, in place
of 50% on account of future prospect could be given keeping in view the fact
that the deceased was 21 years old at the time of accident and was in self
employment. He further submitted that in light of Pranay Sethi and Magma
General Insurance Co. Ltd. v. Nanu Ram and Ors., Civil Appeal No.
9581 of 2018 decided on 18.9.2018, sum of Rs. 40,000/- each, is/was
required to be awarded to the claimants, on account of consortium. Mr. Sethi,
invited attention of this court to judgment dated 7.9.2021 passed by this court
in FAO No. 450 of 2017, titled National Insurance Company Limited vs.
Herinder and others, to claim that in similar facts, income of mason has been
taken as Rs.12000 in the year, 2012, and as such, impugned Award passed
by learned Tribunal below in this regard is not required to be interfered with.
10. Pleadings and evidence adduced on record by respective parties
clearly reveal that though the claimants claimed that the deceased was
working as a Helper-cum-Cleaner in the ill-fated vehicle and was being Rs.
9,000/- per month, but admittedly no documentary evidence ever came to be
led on record to prove occupation as well as monthly income of the deceased.
Though owner of the vehicle namely Davinder, while deposing as RW-1 in his
statement/affidavit, Ext. RW-1/A, admitted that the deceased was being paid
Rs. 9,000/- per month but that may not be sufficient to prove monthly income
of the deceased. At the first instance, claimants, are/were under obligation to
.
prove occupation of the deceased at the time of accident and thereafter,
evidence, if any, with regard to salary is/was required to be led on record.
Save and except the oral testimony of RW-1, there is no material available on
record to prove occupation and monthly income of the deceased, as such,
learned Tribunal below while assessing monthly income of the deceased,
ought to have resorted to provisions of Minimum Wages Act, as has been
held in Ishwar Singh and Balma (supra), wherein it has been held that in the
absence of documentary proof of income, reference is to be made to the
minimum wage prevalent at the time of accident.
11. In the case at hand, accident took place in the year 2014, and as
such, wages payable to unskilled/skilled labour in that year, are/were to be
taken into consideration, while assessing monthly income of the deceased.
Since appellant-insurance company has not been able to refute that at the
time of accident, deceased was working as a Helper-cum-Cleaner, this court,
deems it fit to assess income of the deceased as Rs. 6000 in place of
Rs.9000/-, as assessed by learned Tribunal below. Otherwise also, by
applying provisions of Minimum Wages Act, monthly income of the deceased
on the basis of monthly wages of the year 2014, would be approximately Rs.
5400 and as such, this court deems it fit to assess same at Rs. 6,000/-.
However, while calculating loss of dependency, 1/3rd deduction is to be made
from the income of deceased, as per in Sarla Verma v. Delhi Transport
Corporation (2009) 6 SCC 121.
12. Similarly, as per law laid down in Pranay Sethi, only 40% addition
on account of loss of future prospects could be given to the claimants in place
of 50%, since the deceased was not in regular employment and was 21 years
of age. So far multiplier is concerned, same has been rightly applied by
.
learned Tribunal below, in view of the latest law. Thus the loss of dependency
would be assessed as under:
Established monthly income of deceased Rs.6000
Income after addition of 40% Rs.8400
Net income after deduction of 1/3rd amount i.e. Rs.5600
8400x1/3=2800
Net loss of dependency 5600x12x18 Rs.12,09,600
13.
Learned Tribunal below also awarded certain amounts under
conventional heads i.e. loss of love and affection, which could not be awarded
in terms of Pranay Sethi. Similarly in terms of Pranay Sethi, only sums of Rs.
15,000/- each could have been awarded for loss of estate and funeral charges
but learned Tribunal below has awarded Rs. 1.00 Lakh and Rs. 50,000/- each
under aforesaid head, as such, the award needs to be modified to the afore
extent also.
14. Similarly, as per Magma (supra), Rs. 40,000/- each ought to have
been awarded to the claimants as consortium but learned Tribunal below has
awarded Rs. 1.00 Lakh to claimant No.1, which also needs to be modified.
15. 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."
16. Consequently in view of above, award passed but learned Tribunal
below needs to be modified in following manner.
Head Amount
(Rs.)
Loss of dependency 1209600
Consortium at the rate of Rs.40,000/- each to all 120000
the claimants
Funeral charges 15000
Loss of estate 15000
Total compensation 1359600
17. So far interest rate awarded by learned Tribunal below is
concerned, same calls for no interference.
18. 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.
.
19. All pending miscellaneous applications, if any, are disposed of.
Interim directions, if any, are vacated.
(Sandeep Sharma),
Judge
December 18, 2021
(vikrant)
r to
