Himachal Pradesh High Court

Kewal Ram And Another vs Neelam And Others on 19 March, 2021

Bench: Tarlok Singh Chauhan

    IN THE HIGH COURT OF HIMACHAL PRADESH,
                   SHIMLA.




                                                                                .
                                           FAO(MVA) No.36 of 2013                               with





                                           FAO(MVA) No. 575 of 2016.

                                           Date of decision: 19.03.2021.





    1.         FAO(MVA) No. 36 of 2013.

    Kewal Ram and another                                                       .....Appellants.

                                        Versus

    Neelam and others

    2.         FAO(MVA) No. 575 of 2016.

    Kewal Ram and another
                            r                 to                            ....Respondents.



                                                                             .....Appellants.

                                        Versus

    Rita Devi and others                                                    ....Respondents.



    Coram




    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    Whether approved for reporting?1 No





    For the Appellant (s) :                      Mr. Jeevesh Sharma, Advocate,
                                                 in both the appeals.





    For the Respondents :                        Ms. Reena Thakur, Advocate,
                                                 for respondents No. 1 to 8 in
                                                 FAO(MVA) No. 36 of 2013 &
                                                 for respondents No. 1 to 4 in
                                                 FAO(MVA) No. 575 of 2016.

                                                 Mr.   Lalit    K.    Sharma,
                                                 Advocate,   for   respondent
    1
        Whether reporters of Local Papers may be allowed to see the Judgment ?Yes




                                                             ::: Downloaded on - 22/03/2021 19:51:56 :::HCHP
                                    2




                                No.9 in FAO(MVA) No. 36 of
                                2013 and for respondent No.5
                                in FAO(MVA) No. 575 of 2016.




                                                           .

    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the fastening of the liability to pay

the compensation amount, the owner and driver of the

vehicle have filed the instant appeals.

Since common question of law and facts arises for

consideration in these appeals, therefore, they were taken up

together for hearing and are being disposed of by a common

judgment.

3. Claimants-respondents filed two separate claim

petitions under Section 166 of the Motor Vehicles Act, 1988

(for short 'Act') before the learned Motor Accident Claims

Tribunal-II, Shimla, H.P. for grant of compensation on account

of death of Beli Ram (in M.A.C. No. 23-S/2 of 2007) and one

Jia Lal (in M.A.C. No. 20-S/2 of 2007) in an accident of vehicle

No. HP-63-0438 which had taken place on 26.06.2006 near

Darol at about 7.30 a.m. Both the deceased had hired the

vehicle and were travelling in the aforesaid vehicle along with

vegetables.

4. Respondents No.1 and 2 filed a joint reply and

admitted the accident involving vehicle No. HP-63-0438 on

the relevant date, time and place as well as death of Beli Ram

and Jia Lal, but denied that the accident took place due to

rash or negligent driving of respondent No.2. According to

respondents, when respondent No.2 was negotiating a deep

curve, then all of a sudden, a mechanical defect developed in

road and rolled down.

r to the vehicle, as a result of which, the vehicle went out of the

As per them, the vehicle was duly

insured with respondent No.3 and respondent No.2 was

having a valid and effective driving licence.

5. Respondent No.3 filed its separate reply and

contested the petition on the ground that the vehicle was not

insured with it and the vehicle was being plied in

contravention of provisions of Act and Rules framed

thereunder inasmuch as there were no valid registration

certificate, fitness certificate and route permit in respect of

the vehicle at the relevant time. The insurance policy was

obtained by the insured by concealing material facts. Further,

the driver was not having valid and effective driving licence

and this fact was within the knowledge of the owner of the

vehicle. According to the respondent, the deceased were

travelling as gratuitous passengers and, thus, there was

breach of terms of the insurance policy.

6. The petitioners filed rejoinder(s) and reasserted

their claim as pleaded in the petition by denying the

averments made in the reply of respondent No.3. The

petitioners also reiterated that the deceased had hired the

vehicle in question for carrying vegetables to Shimla and they

were not travelling as gratuitous passengers.

7. On the pleadings of the parties, the following

issued were framed on 02.01.2009 by the learned Tribunal:

FAO(MVA) No. 36 of 2013.

"1. Whether the death of Beli Ram took place by use of vehicle No. HP-63-0438 by respondent

No.2? OPP.

2. If issue No.1 is proved, what amount of compensation the petitioners are entitled to and

from whom? OPP.

3. Whether the petition is not maintainable in the present form? OPR.

4. Whether the driver was not having valid and effect driving licence? OPR-3.

5. Whether the vehicle was being plied in contravention of the route permit? OPR-3.

6. Whether the deceased was a gratuitous passenger? OPR-3.

7. Relief."

.

FAO(MVA) No. 575 of 2016.

"1. Whether the death of Jia Lal took place by use of vehicle No. HP-63-0438 by respondent No.2?

OPP.

2. If issue No.1 is proved, what amount of compensation, the petitioners are entitled to and

from whom? OPP.

3. Whether the petition is not maintainable in the present form? OPR.

4. Whether the driver was not having valid and effect driving licence? OPR-3.

5. Whether the vehicle was being plied in

contravention of the route permit? OPR-3.

6. Whether the deceased was a gratuitous passenger? OPR-3.

7. Relief."

8. It would be noticed that liability to pay

compensation amount was fastened upon the owner and

driver only on the ground that even though the vehicle in

question was a Light Motor Vehicle (LMV), but there was no

endorsement on the licence to drive LMV transport vehicle

which endorsement was made on the licence only on

18.06.2005 i.e. within four days of the issuance of driving

licence to the driver, as is evident from common paragraph

22 of both the judgments which reads as under:

"22. Sh. Nokh Ram RW5 has further stated that the endorsement authorizing the respondent No.2 to drive

LMV transport was made on his licence, on 18.06.2005, i.e. within four days of the issuance of driving licence to drive LMV. This endorsement, dated

18.6.2005, authorizing him to drive LMV transport, is clearly contrary to provisions of Section 7(1) of the Act and has no meaning in the eyes of law. It has to be

taken that it was a driving licence simplicitor to drive

LMV only. The offending vehicle was insured as goods vehicle with the insurance company as is evident from Ex. RW6/A. The respondent No.2, thus was not having

a valid and effective driving licence to drive this vehicle at the time of the accident. So there was breach of terms of the driver clause of the insurance

policy. In these circumstances, the insurance company

has no liability to indemnify the award, that is passed against the respondents No.1 and 2. As such, issues

No.1, 2 and 4 are decided in positive, whereas, issue No.6 is decided in negative."

9. In such circumstances, the moot question is

whether an endorsement was infact required to be separately

made with the licence for driving a transport vehicle.

10. The issue is no longer res integra in view of three

Judge Bench decision of the Hon'ble Supreme Court in

Mukund Dewangan vs. Oriental Insurance Company

Limited (2017) 14 SCC 663, wherein it has been

categorically held that the definition of the "Light Motor

Vehicle" under Section 2(21) of the Act includes transport

vehicle of the class and weight defined therein. The transport

vehicle or omnibus

vehicle weight r to would be light motor vehicle, gross

of which, as also a motor car or tractor or

roadroller, unladen weight of which, does not exceed 7500 kg

and can be driven by holder of licence to drive light motor

vehicle and no separate endorsement is required to drive

such transport vehicle.

11. Since, it is not disputed by either of the parties

that the driver was holding a valid LMV licence and other

norms, coverage and terms and conditions are fulfilled, the

Insurance Company cannot absolve itself from its liability and

same in turn cannot be fastened upon the owner.

12. As regards the quantum of compensation, as has

been argued vehemently by Shri Jeevesh Sharma, Advocate,

for the appellants, I really do not find any merit in the same.

The learned Tribunal has granted the compensation in

question by according reasons as contained in paras 17 and

18 of the respective judgments which read as under:

FAO(MVA) No. 36 of 2013.

"17. As stated earlier, the deceased was an agriculturist having good chunk of agricultural land. He must be earning income from that land, by selling vegetables in the market. However, there is no

further convincing evidence, except the bald statements of Smt. Neelam, and PW4 Sh. Devinder Singh, that the deceased also used to work as a

mason/carpenter. The petitioners or Sh. Devinder

Singh, have not produced any documentary evidence showing that the deceased worked as a mason also. If the deceased, had been working as a mason, he must

have purchased some machinery, tools etc, and also executed some receipts etc. towards payment of his

charges but no such documents have been produced on record. So no findings can be given that the

deceased was having some additional income by working as mason/carpenter. The deceased was 51

years old at that time, as is evident from the copy of pariwar register Ex.PW3/B. He was maintaining a family of nine members, and in these circumstances, his income can be assessed at Rs.5000/- per month. The family of the deceased consisted of nine members including him, therefore, 1/5 of his income i.e. Rs.1000/- per month, is to be deducted towards

personal expenses. The loss of dependency thus comes to Rs.4000/- per month.

18. The claimants are the wife, children, of whom

.

are minor, and mother of the deceased. The wife was

aged around 40 years at that time. The multiplier of 11 will be applicable in this case. The loss of

dependency thus comes to Rs.4000x 12x 11= Rs.5,28,000/-. The petitioner No.1 being the widow, is further entitled for Rs.10,000/- towards loss of

consortium. The petitioners are also entitled for Rs.10,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. The compensation payable to

the petitioners thus comes to Rs.5,28,000/-+10,000/-

+10,000/+10,000/-=5,58,000/-. The petitioner No.1 being widow, shall be entitled for 30% of the compensation. The rest of the compensation shall be

shared by the remaining petitioners amongst themselves equally. The share of the minor petitioners No. 5 to 8, shall remain deposited in the

FDRs in the Nationalized Bank till they attain age of majority."

FAO(MVA) No. 575 of 2016.

"17.As stated earlier, the deceased was an agriculturist having good chunk of agricultural land. He must be earning income from that land, by selling vegetables in the market. However, there is no further convincing evidence, except the bald statements of Smt. Rita Devi and PW4 Sh. Daulat Ram that the deceased also used to run a hotel at Naina. The

petitioners or Sh. Daulat Ram, have not produced any rent receipt showing that the building was actually hired for running a hotel. If the deceased, had been

.

running, a hotel, he must have been purchasing goods,

for his hotel from the market but no such documents evidencing sale transaction, have been produced on

record. So no findings can be given that the deceased was having some additional income from his hotel. The deceased was 33 years old at that time and in these

circumstances, in income can be assessed at Rs.5000/- per month. The family of the deceased consisted of five members including him, therefore 1/4th of his

income i.e. Rs.1250/- per month, is to be deducted

towards personal expenses. The loss of dependency thus comes to Rs.3,750/- per month.

18. The claimants are the wife,,minor children and

mother of the deceased. The wife was aged around 25 years at that time. The multiplier of 16 will be applicable in this case. The loss of dependency thus

comes to Rs.3750x12x16=Rs.7,20,000/-. The petitioner No.1, being the widow, is further entitled for Rs.

10,000/- towards loss of consortium. The petitioners are also entitled for Rs.10,000/- towards funeral expenses

and Rs.10,000/- towards loss of estate. The compensation payable to the petitioners thus comes to Rs.7,20,000+ 10,000+ 10,000+ 10,000=Rs.7,50,000/-. The petitioner No.1 being the widow, shall be entitled for 30% of the compensation, petitioners No.3 and 4, 25% each of the compensation, whereas petitioner No.2 being the mother of the deceased, shall be

entitled for remaining 20% of the compensation awarded by this Tribunal. The share of the minor petitioners No.3 and 4, shall remain deposited in the

.