Himachal Pradesh High Court
Oriental Insurance Company ... vs Rattni on 28 October, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28TH DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
FIRST APPEAL FROM ORDER NOS. 237 OF 2019 AND 233 OF 2021
Between:-
1. FAO NO. 237 OF 2019
ORIENTAL INSURANCE COMPANY LIMITED
THROUGH ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, MYTHE ESTATE,
KAITHU, SHIMLA-3
... APPELLANT
(BY MR. LALIT K. SHARMA AND
MR. DHANANJAY SINGH, ADVOCATES)
AND
1.
SMT. KANTA THAKUR
W/O SH. SOHAN LAL THAKUR;
2. SH. SOHAN LAL THAKUR
S/O SH. BASHRIA RAM,
BOTH RESIDENTS OF NEAR SHIV MANDIR,
BYE PASS ROAD, MALYANA,
TEHSIL AND DISTRICT SHIMLA-6.
RESPONDENTS/CLAIMANTS
3. SH. RAJ SHARMA
S/O SH. KIRAN LAL,
R/O FLAT NO. 179, APARTMENT KHANPUR,
TEHSIL KHARAR, DISTRICT MOHALI,
PUNJAB
4. SH. SANJAY KUMAR
S/O LATE SH. AKHTAR ALI,
R/O VILLAGE AND POST OFFICE MOHAL,
TEHSIL BHUNTAR, DISTRICT KULLU,
H.P.
RESPONDENTS
(MR. LALIT K. SEHGAL, ADVOCATE
FOR R-1 AND R-2
MR. MUNISH KUMAR GUPTA, ADVOCATE
::: Downloaded on - 31/01/2022 23:14:15 :::CIS
2
FOR R-3 AND R-4)
FAO NO. 233 OF 2021
1. SMT. KANTA THAKUR
W/O SH. SOHAN LAL THAKUR AGED 49 YEARS
.
2. SH. SOHAN LAL THAKUR
S/O SH. BASHRIA RAM,
BOTH RESIDENTS NEAR SHIV MANDIR,
BYE PASS ROAD, MALYANA,
SHIMLA-6, H.P.
... APPELLANTS/CLAIMANTS
(BY MR. LALIT K. SEHGAL, ADVOCATE)
AND
1. THE ORIENTAL INSURANCE COMPANY LTD.,
THROUGH ITS DIVISIONAL MANAGER,
MYTHE ESTATE, KAITHU, SHIMLA-3
2. SH. RAJ SHARMA
S/O SH. KIRAN LAL,
R/O FLAT NO. 179, APARTMENT KHANPUR,
TEHSIL KHARAR, DISTRICT MOHALI,
PUNJAB
3. SH. SANJAY KUMAR
S/O LATE SH. AKHTAR ALI,
R/O VILLAGE & P.O. MOHAL,
TEHSIL BHUNTAR, DISTRICT KULLU,
H.P.
RESPONDENTS
(MR. LALIT K. SHARMA AND
MR. DHANANJAY SINGH, ADVOCATES
FOR R-1
MR. MUNISH KUMAR GUPTA, ADVOCATE
FOR R-2 AND R-3)
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
Since both the appeals lay challenge to impugned Award dated
6.3.2019 passed by learned Motor Accident Claims Tribunal-III, Shimla,
Himachal Pradesh in MAC RBT case 22-S/2 of 2018/2017 titled Smt. Kanta
Thakur and another rvs. Raj Sharma and others, same were heard together
with the consent of the parties and are being disposed of vide instant common
judgment.
.
2. Vide FAO No. 237 of 2019, appellant-insurance company has laid
challenge to impugned Award as detailed herein above, whereby learned
Tribunal below, while allowing claim petition filed by respondents Nos. 1 and
2/claimants (hereinafter, 'claimants') saddled the appellant-insurance
company with the liability to pay compensation to the tune of Rs.15,42,000/- in
favour of the claimants with interest at the rate 9% per annum from the date
of filing of petition till realization, alongwith litigation costs of Rs.5,000/-.
3. By way of FAO No. 233 of 2021, claimants have approached this
court for enhancement of compensation amount awarded by learned Tribunal
below.
4. For the sake of brevity and clarity, facts of FAO No. 237 of 2019 are
being discussed herein.
5. Claimants filed a claim petition under S.166 of the Motor Vehicles
Act (hereinafter, 'Act') claiming therein compensation to the tune of Rs. 50.00
Lakh alongwith interest at the rate of 18% per annum from the date of filing of
the petition till realisation against appellant-insurance company and
respondents Nos. 3 and 4 on account of death of their son, Joginder Thakur in
an accident involving vehicle bearing registration No. PB-01A-7683. As per
claimants, accident took place on 20.6.2017, while deceased was driving
vehicle bearing registration No. HP-52A-0702. As per claimants, when vehicle
being driven by deceased Joginder Thakur reached Cinema Chowk,
Sundernagar, driver of vehicle bearing registration No. PB-01A-7683 lost
control over the vehicle and hit the car of the deceased, as a consequence of
which deceased suffered grievous injuries and ultimately expired. Factum
with regard to accident was reported to Police Station Sundernagar, by the
driver of offending vehicle and on the basis of same, FIR No. 116, dated
.
20.6.2017 was registered against deceased Joginder Thakur. Claimants
averred in the claim petition that the deceased was a student doing diploma in
motor mechanic from Polytechnic College, Sundernagar and had completed
ITI course from HP Takniki Shiksha Board. As per claimants, deceased, who
at the relevant time was 23 years of age, was earning Rs.25,000 per month
by doing part time job.
6. Respondents Nos. 3 and 4, filed a joint reply and refuted the claim
of the claimants, by stating that they are not entitled to any compensation
from them, rather the same is required to be paid by appellant-insurance
company, because at the relevant time, vehicle was insured with the
appellant-insurance company. Besides above, respondents Nos. 3 and 4 also
claimed that the deceased was not having a valid and effective driving licence
to drive the vehicle at the time of alleged accident. On merit, though
respondents Nos. 3 and 4 did not dispute the factum of accident but claimed
that same took place due to rash and negligent driving of the car bearing No.
HP-52A-0702, being driven by the deceased himself and not on account of
negligent driving bus driver, respondent No.4-Sanjay Kumar.
7. Appellant-insurance company, by way of separate reply, besides
taking objections with regard to non-joinder of necessary parties, though
admitted the accident involving vehicles bearing registration Nos. PB-01A-
7683 and HP-52A-0702 but pleaded in its reply that the accident took place
due to rash and negligent driving on the part of deceased, Joginder Thakur,
who hit the bus bearing registration No. PB-01A-7683, while driving his
vehicle bearing registration No. HP-52A-0702, as a consequence of which,
FIR No. 116 of 2017 was lodged against him. Appellant-insurance company
also claimed that the deceased was driving his vehicle without any valid and
.
effective driving licence to drive the same at the time of accident.
8. On the basis of aforesaid pleadings of the parties, learned Tribunal
below framed following issues on 27.3.2018:
"1. Whether deceased Joginder Singh died on account of rash and
negligent driving of respondent No. 2 as alleged? OPP
2. Whether the petitioners are entitled for compensation, if so to what
extent and from whom? OPP
3. Whether the petition is not maintainable in the present form as
alleged? OPR.
4. Whether the petition is bad for non-joinder of necessary parties as
alleged, if so to what effect? OPR-3
5. Whether the deceased was driving the vehicle bearing No. HP-2A-
0702 without having valid driving licence as alleged, if so to what
effect? OPR-3
6. Whether in alternative the liability to pay compensation is joint and
severel as alleged? OPR-3
7. Whether the drivers of the vehicles were driving the vehicle under
the influence of liquor as alleged, if so to what effect? OPR-3
8. Relief."
9. Subsequently vide impugned Award 6.3.2019, learned Tribunal
below, allowed the claim petition and held the claimants entitled to
compensation to the tune of Rs.15,42,000 with interest at the rate of 9% per
annum, from the date of filing of petition till realization. Since liability to pay
the compensation came to be saddled upon appellant-insurance company
being insurer, it has approached this court in the instant petition praying to set
aside impugned Award.
10. I have heard learned counsel for the parties and perused the
material available on record.
.
11. Having heard learned counsel for the parties and perused material
available on record, this court finds that primarily challenge to impugned
Award has been laid on the following grounds i.e.
(a) Since appellant-insurance company specifically proved on
record that FIR was lodged against deceased for his having
rashly and negligently driven the car bearing No. HP-52A-0702,
learned Tribunal below ought not have saddled appellant-
insurance company with liability to pay the entire amount of
compensation rather such amount was to be shared by insurer
of both the vehicles i.e. car as well as Volvo bus bearing
registration No. PB-01A-7683.
(b) Once the claimants failed to prove income of the deceased and
it is an admitted fact that at the time of accident, deceased was
a student, learned Tribunal below ought not have assessed his
income to be Rs.10,000 per month, rather, for determination of
monthly income of the deceased, learned Tribunal below ought
to have resorted to formula of minimum wages payable at the
time of accident.
(c) Learned Tribunal below ought not have awarded interest at the
rate of 9% per annum, on the amount of compensation, rather
the same ought to have been awarded as per lending rate of
interest payable at the time of filing of the petition.
Learned counsel for the appellant-insurance company placed
reliance upon judgment reported in Latest HLJ 2018 HP 750
12. True it is, that the FIR Ext. RW-1/A, dated 20.6.2017, was lodged at
the behest of respondent No.4 Sanjay Kumar, who at the time of alleged
.
accident was driving the offending vehicle, but mere registration of FIR at the
behest of driver of offending vehicle is not sufficient to conclude that at the
time of alleged accident, deceased was driving car bearing registration No.
HP-52A-0702 in rash and negligent manner, rather such fact was required to
be proved by appellant-insurance company by leading cogent and convincing
evidence.
13. Interestingly, in the case at hand, respondent No.4 Sanjay Kumar,
driver of offending vehicle bearing registration No. PB-01A-7683, stepped
into witness box as RW-3 and deposed by way of affidavit, Ext. RW-3/A that
on 20.6.2017 he was driving the bus from Manali to Chandigarh. He stated
that at about 12.30 PM (midnight), when he reached Purana Bus Stand,
Sundernagar, car bearing registration No. HP-52A-0702 came in high speed
and driver of the car left his side and dashed against his bus. This witness
further stated that the accident took place due to sheer negligence of
deceased Joginder Thakur. This witness further deposed that the FIR dated
20.6.2017, was lodged against driver of vehicle bearing registration No. HP-
52A-0702. In his cross-examination this witness denied that the accident took
place due to his rash and negligent driving and also denied that to save
himself he got the FIR lodged against the deceased and managed the things
to show that driver of car was negligent. This witness further stated that
around 35 persons were occupying the bus at the time of the accident and
none of them received injuries.
14. Appellant-insurance company with a view to prove negligent driving
of the deceased examined RW-4/ HC Sanjeev Kumar, who deposed that the
FIR No. 116 was registered on 20.6.2017 and he had investigated the case.
He deposed that during investigation, it was found that the driver of the car
.
was negligent and accident took place due to his negligence.. This witness
stated that a cancellation report was filed in the FIR and same was accepted
by learned Additional Chief Judicial Magistrate, Sundernagar. This witness in
his cross-examination by learned counsel for respondent Nos. 3 and 4 stated
that as per site plan, Ext. RW-4/B, driver of car left his side and hit bus. He
stated that during investigation, it was found that the driver of the car was
driving the vehicle in rash and negligent manner at the time of accident. In
cross-examination by learned counsel for the claimants, he stated that in the
site plan, Ext. RW-4/B, the car was shown on its own side. He further
deposed that the accident did not take place in his presence and medical
examination of driver was not got done. This witness also admitted that the
statements of the occupants of the bus were not recorded as they had refused
to do so.
15. Careful perusal of aforesaid statements made by RW-3 and RW-4
namely Sanjay Kumar and HC Sanjeev Kumar, clearly suggests that after
alleged accident, RW-3 Sanjay Kumar had got registered FIR against the
deceased alleging therein that the accident took place due to his rash and
negligent driving. Police after completion of investigation filed cancellation
report. Though RW-4 Sanjeev Kumar deposed that during investigation, it was
found that driver of car was negligent and the accident took place on account
of rash and negligent driving by the deceased, but in his cross-examination by
learned counsel for the claimants, he admitted that in site plan, Ext. RW-4/B
car was shown on its own side. If it is so, it is not understood that on what
basis this witness deposed that during investigation it was found that
deceased was rash in driving. Most importantly, in the case at hand, entire
claim of the appellant-insurance company as well as respondents Nos. 3 and
.
4 with regard to rash and negligent driving by deceased is based upon the
solitary statement of RW-3 Sanjay Kumar, driver of the offending vehicle.
16. Once, it has specifically come in the statement of RW-4 HC
Sanjeev Kumar and RW-3 Sanjay Kumar that at the time of accident, 35
persons were traveling in the offending vehicle/Volvo bus, it is not understood
that what prevented the police from examining aforesaid occupants of the
bus. Since RW-3 Sanjay Kumar is an interested party in the case and there
are allegations of rash and negligent driving against him, his statement with
regard to rash and negligent driving, if any, by deceased, cannot be treated as
a gospel truth, especially when one of the witnesses namely PW-2 Brij
Mohan, who was traveling in the car, deposed that at the relevant time, he
was traveling with deceased in the car and was sitting on front seat of car. He
deposed that near Bhojpur Bazaar, when deceased tried to negotiate a
curve, offending vehicle, came from Mandi side, which was overtaking a light
vehicle, going ahead of him and while doing so, bus came to their side and hit
the car. This witness has categorically stated that the accident took place due
to rash and negligent driving of the offending vehicle by respondent No.4.
Cross-examination conducted upon this witness, nowhere suggests that the
opposite party was able to shatter his testimony or was able to extract
something contrary to what he stated in his examination-in-chief.
17. Statement of PW-1 Sohan Lal reveals that he had given in writing to
police that FIR RW-1/a, was wrongly recorded against his son, which fact has
not been disputed by the respondents but there is no explanation qua the
enquiry, if any conducted by the police after receipt of aforesaid report made
by PW-1 in writing.
18. At this stage, learned counsel for the appellant-Insurance Company
.
vehemently argued that once FIR Exhibit RW-4/B has been relied by
claimants and in the claim petition they have taken some other stand by
claiming that the accident occurred due to rash and negligent driving of
respondent No.4 Sanjay Kumar, driver of offending vehicle, they could not
have been awarded any compensation on account of rash and negligent
driving on the part of respondent No.4 as claimed by them in the claim
petition. In support of the aforesaid plea, learned counsel for the appellant
placed reliance National Insurance Company Limited vs. Rattni, wherein
Hon'ble Apex Court has held that though FIR is not a substantial piece of
evidence, but tribunal while dealing with the claim set up by claimants, is
bound to look into the contents of the FIR.
19. There cannot be any quarrel with the aforesaid proposition of law
but in the case at hand, FIR, Exhibit RW-1/A has not been relied upon by the
claimants, rather same has been tendered in evidence by appellant-insurance
company and owner of the offending vehicle/Volvo Bus. Though perusal of
FIR Exhibit RW-1/A suggests that the claimants had alleged that the accident
took place due to rash and negligent driving of deceased but as has been
taken note herein above, cancellation report was filed and no investigation
was carried out. Moreover, there is no document suggestive of the fact that
the complainant, Sanjay Kumar, respondent No.4, ever filed objections
against the cancellation report.
20. Apart from driver of offending vehicle, no other witness came to be
adduced by either of respondents to prove the fact that at the time of alleged
accident, vehicle was being driven in a rash and negligent manner by
deceased whereas, PW-2 Brij Mohan categorically deposed that at the time of
.
accident, offending vehicle was being driven in rash and negligent manner by
respondent No.4 and accident occurred due to the rash and negligent driving
of the offending vehicle. As per aforesaid witness, driver of offending vehicle
hit the car of deceased, while overtaking another vehicle and as such, this
court sees no illegality and infirmity in the finding of learned Tribunal below
that at the time of accident, offending vehicle was being driven in rash and
negligent manner by respondent No.4 and not by the deceased.
21. Hon'ble Apex Court in K. Amusha & Ors v. Regional Manager,
Shriram General Insurance Co. Ltd., [Petition(s) for Special Leave to
Appeal (C) No(s). 14360/2016, decided on 6.10.2021], has held that to
establish contributory negligence, some act or omission, which materially
contributed to the accident or the damage, should be attributed to the person
against whom it is alleged. Hon'ble Apex Court has held in the judgment
(supra) as under:
"13. Therefore, the entire reasoning of the High Court on Issue No.1 is
riddled with inherent contradictions. To establish contributory negligence,
some act or omission, which materially contributed to the accident or the
damage, should be attributed to the person against whom it is alleged. In
Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and Others
(2002) 6 SCC 455 this Court quoted a decision of the High Court of
Australia in Astley v. Austrust Ltd.(1999) 73 ALJR 403 , to hold that
"...where, by his negligence, one party places another in a situation of
danger, which compels that other to act quickly in order to extricate
himself, it does not amount to contributory negligence, if that other acts in
a way which, with the benefit of hindsight is shown not to have been the
best way out of the difficulty". In fact, the statement of law in Swadling v.
Cooper 1931 AC 1 , that "...the mere failure to avoid the collision by taking
some extraordinary precaution, does not in itself constitute negligence...",
was also quoted with approval by this Court. Therefore, we are compelled
.
to reverse the finding of the Tribunal and the High Court on the question of
contributory negligence."
22. in the case at hand, there is no evidence available on record, save
and except the statement of respondent No.5 that the accident was caused
due to the rash and negligent driving of the car by the deceased, rather, PW-
2, Brij Mohan, (occupant of the car of the deceased) has categorically stated
that the driver of the offending vehicle (Volvo Bus) hit the car of the deceased,
resulting in the accident in question.
23. Though in the case at hand, claimants claimed that their son
(deceased) was earning Rs.25,000/- per month by doing part time job, but
since no evidence ever came to be led on record on their behalf with regard to
aforesaid claim, learned Tribunal below, while applying guess work,
proceeded to consider monthly income of deceased to be Rs. 10,000/-.
24. It has been repeatedly held by Hon'ble Apex Court and this court
that in cases, where no specific evidence is available on record with regard to
monthly income of the injured/deceased, courts having regard to the nature of
the job of injured/deceased, should assess income as per minimum wages
payable at that time in terms of the Minimum Wages Act. This court in
Reliance General Insurance Company Limited vs. Ishwar Singh reported
in Latest HLJ 2018 HP 750 has held that in the absence of specific evidence,
if any, led on record by the claimant(s) with regard to income, tribunal should
assess the income on the basis of minimum wages prevalent at the time of
the accident in the Government sector.
25. In the case at hand, accident, occurred in the year 2017, when the
minimum wages of unskilled labourer were Rs.333/-, per day, as has been
.
fairly admitted by learned counsel for the parties and as such, no illegality
and infirmity can be said to have been committed by learned Tribunal below
while assessing monthly income of deceased to be Rs. 10,000/-. Apart from
above, Hon'ble Apex Court in V. Mekala vs M. Malathi & Anr, (CIVIL APPEAL
NO. 4880 OF 2014 (Arising out of SLP(C) No. 16561 of 2013) decided on
25.4.2014) took income of student at Rs. 10,000/- per month.
26. In view of above, no interference if any is called for qua the
aforesaid aspect of the matter.
27. Learned Tribunal below while awarding sum of Rs. 15,42,000/- to
the claimants has saddled appellant-insurance company with interest at the
rate of 9% per annum from the date of petition till realization, which otherwise
appears to be on higher side.
28. Section 171 of the Act, though talks about interest to be awarded on
compensation amount but it has been specifically provided in the aforesaid
provision that Tribunal may direct that in addition to the amount of
compensation simple interest shall also be paid at such rate and from such
date not earlier than the date of making the claim.
29. In the instant case, claim was filed in the year 2017 i.e. 17.7.2017,
meaning thereby that learned Tribunal below could have awarded interest on
the amount of compensation at the lending rate of interest, prevalent at that
time. At the time of filing of the petition, lending rate of interest was 6.50 p.a.
and as such, same needs to be modified accordingly.
30. In FAO No. 233 of 2021, claimants have made prayer for
enhancement of amount of compensation on the ground that they have not
been paid certain amounts under conventional head(s) in terms of National
Insurance Company Limited vs. Pranay Sethi and others, AIR 2017 SC
.
5157. Besides above, it has been also claimed that learned Tribunal below
has wrongly assessed the income of the deceased as Rs.10,000/-, whereas it
ought to have been Rs.25,000/-.
31. As far as assessment of income of deceased is concerned, this
court in earlier part of judgment has held that learned Tribunal below has
rightly assessed income of deceased as Rs.10,000/- as such, claim for
enhancement of award on this ground deserves outright rejection. However,
having taken note of the fact that no amount on account of loss of consortium
has been awarded to the claimants, being parents of the deceased, this court
deems it fit to award Rs. 40,000/- each to the claimants, in light of the
judgment rendered by Hon'ble Apex Court in Magma General Insurance Co.
Ltd. v. Nanu Ram and Ors., Civil Appeal No. 9581 of 2018 decided on
18.9.2018.
32. Consequently in view of above, instant appeal having been filed by
the appellant-insurance company deserves to be allowed and rate of interest
awarded on the amount of compensation deserves to be modified to 6.5% per
annum.
33. In view of above, impugned award is modified to the extent that in
addition to already awarded amount of Rs. 15,42,000/-, the claimants are held
entitled to Rs.40,000/- each on account of parental consortium, thus the total
amount of compensation would be Rs.15,42,000+80,000/- = 16,12,000/- and
the claimants shall be entitled to interest on the aforesaid amount at the rate
of 6.5% per annum, from the date of filing of the petition, till realisation.
Apportionment of the compensation amount inter se the claimants shall be
the same as held by learned Tribunal below.
34. Both the appeals are accordingly disposed of. All pending
.
miscellaneous applications are also disposed of. Interim directions, if any, are
vacated.
(Sandeep Sharma),
Judge
October 28, 2021
(vikrant)
r to
