Himachal Pradesh High Court
Mall vs Smt. Ramdassi And Others on 22 September, 2021
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
FIRST APPEAL FROM ORDER No. 58 of 2016
Between:-
THE NEW INDIA ASSURANCE
CO. LTD, BHAGRA NIWAS, THE
MALL, SHIMLA, BRANCH
MANAGER THROUGH ITS
SENIOR DIVISIONAL
MANAGER, IIIRD FLOOR,
BLOCK NO. 7, SDA COMPLEX,
KASUMPTI, SHIMLA-171009
(INSURER OF VEHICLE NO.
HP-06A-0424).
...APPELLANT
(BY SHRI B.M. CHAUHAN, SENIOR
ADVOCATE, WITH MR. M.S. KATOCH,
ADVOCATE)
AND
1. SMT. ANUPAMA, WIDOW OF
SHRI RAVI BOGGA ALIAS MAM
RAJ, R/O VILLAGE AMARKOT,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR (H.P.).
2. SHRI RANBIR, S/O LATE SH.
RAVI BOGGA ALIAS MAM RAJ
(MINOR) THROUGH HIS
MOTHER AND NATURAL
GUARDINA SMT. ANUPAMA,
WIDOW OF SH. RAVI BOGGA
ALIAS MAM RAJ, R/O VILLAGE
AMARKOT, TEHSIL PAONTA
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2
SAHIB, DISTRICT SIRMAUR
(H.P.).
.
3. SHRI MOHIT, S/O LATE SH. RAVI
BOGGA ALIAS MAM RAJ
(MINOR) THROUGH HIS
MOTHER AND NATURAL
GUARDIAN SMT. ANUPAMA,
WIDOW OF SH. RAVI BOGGA
ALIAS MAM RAJ, RAJ, R/O
VILLAGE AMARKOT, TEHSIL
PAONTA SAHIB, DISTRICT
SIRMAUR (H.P.)
4. SHRI PANKAJ, S/O LATE SH.
RAVI BOGGA ALIAS MAM RAJ
(MINOR) THROUGH HIS
MOTHER AND NATURAL
GUARDIAN SMT. ANUPAMA,
WIDOW OF SH. RAVI BOGGA
ALIAS MAM RAJ, R/O VILLAGE
AMARKOT, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR
(H.P.).
5. KUMARI KOMAL, D/O LATE SH.
RAVI BOGGA ALIAS MAM RAJ
(MINOR) THROUGH HER
MOTHER AND NAURAL
GUARDIAN SMT. ANUPAMA,
WIDOW OF SH. RAVI BOGGA
ALIAS MAM RAJ, R/O VILLAGE
AMARKOT, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR
(H.P.)
...CLAIMANTS/RESPONDENTS
6. SMT. RAMDASSI, WIFE OF SHRI
JOGINDER KUMAR, R/O
VILLAGE KOCHARI, P.O. JEOSI,
TEHSIL RAMPUR BUSHAHR,
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3
DISTRICT SHIMLA (H.P.)
(OWNER OF VEHICLE NO. HP-
06A-0424).
.
7. SHRI MANGAL SINGH. S/O SHRI
RAM SINGH ALIAS GOPAL, R/O
VILLAGE BANETHI, TEHSIL
NAHAN, DISTRICT SIRMAUR
(H.P.) (DRIVER OF VEHICLE NO.
HP-06A-0424).
8. NATIONAL INSURANCE
COMPANY LTD. BRANCH AT
PAONTA SAHIB, DISTRICT
SIRMAUR (H.P.) (INSURER OF
MOTOR CYCLE NO. HP-17B-
1485) THROUGH ITS BRANCH
MANAGER.
...RESPONDENTS
(SHRI BIMAL GUPTA, SENIOR ADVOCATE,
WITH SHRI GURINDER SINGH PARMAR,
ADVOCATE, FOR R-1 TO R-5.
SHRI SERVEDAMAN RATHORE,
ADVOCATE, FOR R-6.
SHRI ANKUSH DASS SOOD, SENIOR
ADVOCATE, WITH MS. SHWETA JOOLKA,
ADVOCATE, FOR RESPONDENT NO. 7).
Whether approved for reporting? No.
__________________________________________________________
This appeal coming on for hearing this day, the Court passed
the following:
JUDGMENT
By way of this appeal, the appellant-Insurance Company
herein assails the Award, dated 24.09.2015, passed by the Court of
learned Motor Accident Claims Tribunal-II, Sirmaur District at Nahan, H.P.
in MAC Petition No. 87-N/2 of 2010, titled as Smt. Anupama and others
.
Vs. Smt. Ramdassi and others, which petition stood decided by the
learned Tribunal in favour of the claimants therein by holding them entitled
for compensation to the tune of Rs.13,27,000/- alongwith interest at the
rate of 9% per annum from the date of filing of petition till the final
realization of the amount.
2. Brief facts necessary for the adjudication of this appeal are as
under:-
Respondents No. 1 to 5 herein (hereinafter referred to as 'the
claimants') filed a petition under Section 166 of the Motor Vehicles Act
before the learned Tribunal, inter alia, on the ground that deceased Ravi
Bagga was the husband of claimant No. 1 and father of claimants No. 2 to
5. He lost his life in an accident between his Motorcycle bearing
registration No. HP-17B-1485 and the offending vehicle, i.e., Mahindra
Pick-Up bearing registration No. HP-06A-0424 on 14.03.2010 at about
8:30 p.m. According to the claimants, this accident took place on account
of the rash and negligent driving of Mahindra Pick-Up by its Driver. The
deceased at the relevant time was having monthly income of Rs.12,000/-
and his age was 40 years. Accordingly, compensation to the tune of
Rs.15,00,000/- was prayed for.
3. The claim petition was resisted by the respondents therein.
The owner as well as driver of the Vehicle, who were impleaded as
.
respondents No. 1 and 2 before the learned Tribunal denied the accident
having taken place due to rash and negligent driving and they also
contested the case on the ground of maintainability and cause of action.
4. Respondent No. 3, i.e., the present appellant contested the
claim petition, inter alia, on the ground that the vehicle was being plied in
violation of the Insurance Policy and the claim petition was a result of
collusion between the claimants and respondents No. 1 and 2. According
to the Insurance Company, the vehicle insured by it, i.e., the offending
vehicle, was falsely involved in the accident to obtain compensation.
5. Respondent No. 4 before the learned Tribunal contested the
petition on the ground that the deceased was not having a valid and
effective driving licence at the time of accident.
6. On the basis of pleadings of the parties, the following issues
were framed by the learned Tribunal:-
"1. Whether deceased Ravi Bogga died on
account of rash and negligent driving of offending
vehicle i.e., Mahindra Pick Up bearing No. HP-06A-
0424 by respondent No. 2, Mangal Singh on
14.3.2010 at about 8:30 p.m. near Vohra Hospital,
Paonta Sahib, as alleged? ..OPP
2. Whether the petitioners are entitled to
compensation amount, if so, from whom and what
.
extent? ..OPP
3. Whether the petition is not maintainable in the
present form?...OPR 1, 3 & 4.
4. Whether Mahendra Pick Up bearing No. HP-
06A-0424 was being plied in contravention of terms
and conditions of the Insurance Policy?...OPR-3
5. Whether the driver of Mahindra Pick Up was
not possessed of valid and effective driving licence
at the time of accident? ....OPR-3
6.
Whether the petition has been filed in collusion
with respondents No. 1 & 2, if so its effect? .OPR-3
7. Whether deceased was not possessed of valid
and effective driving licence to drive motor cycle No.
HP-17B-1485 at the time of accident? ....OPR-4.
8. Relief."
7. On the basis of evidence produced on record by the parties
in respect of their respective contentions, the issues so framed, were
answered by the learned Tribunal in the following terms:
"Issue No. 1 : Yes.
Issue No. 2 : Yes as per operative part of
the Award.
Issue No. 3 : No.
Issue No. 4 : No.
Issue No. 5 : No.
Issue No. 6 : No.
Issue No. 7 : Yes.
Relief : The petition allowed as per
operative portion of the
.
Award."
8. The claim petition was allowed by the learned Tribunal.
Learned Tribunal returned the findings that deceased Ravi Bagga indeed
died in an accident on 14.03.2010 at about 08:30 p.m., which took place
near Vohra Hospital, Paonta Sahib, on account of the rash and negligent
driving of the offending vehicle by its Driver Mangal Singh. While returning
these findings, learned Tribunal relied upon the statements of the
witnesses produced by the claimants, which also included the eye
witnesses. Learned Tribunal further held that though according to the
claimants, the deceased, who was working as a building contractor, was
having monthly income of Rs.12,000/- , yet no document was placed on
record by the claimants to substantiate this fact. It thereafter held that
keeping in view the facts and circumstances of the case and the fact that
the deceased was a hale and hearty young man aged 40 years, he must
be having at least the income of a daily wager and on these basis, the
income of the deceased was assessed at Rs.4,000/- per month. Learned
Tribunal relied upon the copy of parivar register Ex. PW3/B while returning
the findings that the date of birth of the deceased was 11.05.1970. On
these basis, by placing reliance upon the judgments of the Hon'ble
Supreme Court in Sarla Verms Vs. DTC, 2009(6) SCALE 129 as well as
Rajesh and others Vs. Rajbir Singh and other, (2013) 9 Supreme Court
.
Cases 54, learned Tribunal held that as the deceased was 40 years old at
the time of his death, 30% is to be added in the income of the deceased
as future prospectus and on these basis, it assessed the income of the
deceased to be Rs.5200/- per month. After deducting 1/4th towards
personal and living expenses, learned Tribunal by applying the multiplier
of 12, assessed the loss of dependency as Rs.3900/-
x12x15=Rs.7,02,000/-. Learned Tribunal also granted Rs.1,00,000/- as
loss of consortium to petitioner No. 1-widow, Rs.25,000/- as funeral
expenses and Rs.1,00,000/- under the head of loss to the estate. It also
granted Rs.1,00,000/- each as loss of love and affection to claimants No.
2 to 5 and, thus, assessed total compensation payable to the petitioners at
Rs.13,27,000/- alongwith interest at the rate of 9% per annum from the
date of filing of petition till the final realization of the amount. Learned
Tribunal also held that as the offending vehicle was duly insured with
respondent No. 3, i.e., the present appellant, as was evident from
Insurance Policy Ex. RW1/B, therefore, said Insurance Company was
ordered to indemnify the awarded amount.
9. Feeling aggrieved, the respondent No. 3-Insurance Company
has preferred this appeal.
10. Learned Senior Counsel appearing for the appellant has
argued that the Award passed by the learned Tribunal is not sustainable in
.
the eyes of law, for the reason that the learned Court has erred in not
appreciating that the accident in issue was a result of contributory
negligence of the deceased while driving the vehicle, as he was not
having a valid driving licence. He has further argued that the driver of
Mahindra Pick-Up was not possessing a valid driving licence, which
would be evident from the application, which has been filed under Order
41, Rule 27 of the Code of Civil Procedure with the prayer that the
appellant be permitted to lead additional evidence. He has also argued
that the calculations which have been made by the learned Tribunal call
for modifications in terms of the judgment passed by the Hon'ble Supreme
Court in NIC Vs. Pranay Sethi and others 2017(2) TNMAC 609
Supreme Court and, therefore also, the award is bad in law.
11. On the other hand, learned counsel for the respondents,
including learned counsel for the claimants have argued that the award
passed by the learned Tribunal does not suffer from any infirmity, as far as
the findings returned on the issues framed by the learned Tribunal are
concerned, but in case the award is to be modified now in terms of the
law, as has been laid by the Hon'ble Supreme Court in Pranay Sethi's
case (supra), then this Court in exercise of the powers vested in it under
Order 41, Rule 33 of the Code of Civil Procedure should in the interest of
justice, modify the award by taking into consideration not only the
.
judgment passed by the Hon'ble Supreme Court in NIC Vs. Pranay Sethi
and others 2017(2) TNMAC 609 Supreme Court, but also the judgment
of the Hon'ble Supreme Court in New India Assurance Company
Limited Vs. Somawati and others (2020) 9 Supreme Court Cases 644
12. I have heard learned counsel for the parties and have also
gone through the award passed by the learned Tribunal as well as the
record of the case.
13. I will first deal with the application which has been filed under
Order 41, Rule 27 of the Code of Civil Procedure by the appellant,
wherein, a prayer has been made to place on record the additional
evidence. The appellant/applicant by way of this application intends to
place on record the documents appended therewith as Annexure A-1, on
the basis of which, it intends to prove that the licence possessed by the
driver of the ill-fated vehicle was a fake licence, as the same was never
issued by the licencencing office concerned. The Claim Petition was filed
in the year, 2010 and the same was decided by the learned Tribunal on
24.09.2015. The application under Order 41, Rule 17 of the Code of Civil
Procedure has been filed by the appellant/applicant during the pendency
of this appeal on 23.01.2016. The documents, on which it intends to rely
upon stand issued, that too, on the request of the appellant-Insurance
Company on 10th September, 2015. Order 41, Rule 27 of the Code of Civil
.
Procedure reads as under:-
"Order XLI, Rule-27. Production of additional
evidence in Appellate Court.--(1) The parties to
an appeal shall not be entitled to produce
additional evidence, whether oral or documentary,
in the Appellate Court. But if --
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document
to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause, the Appellate Court may allow
such evidence or document to be produced, or
witness to be examined.
(2) Wherever additional evidence is allowed to
be produced by an Appellate Court, the Court shall
record the reason for its admission."
14. Hon'ble Supreme Court in Karnataka Board of Wakf Vs.
.
Govt. of India 2004 (10) SCC 779 has been pleased to hold that a party
is not entitled to produce additional evidence unless it is shown that
evidence could not be produced before the learned Trial Court despite the
exercise of due diligence.
15. In Jagdish Prasad Vs. Shivnath 2019 (6) SCC 82, the
"28.
rUnder to
Hon'ble Supreme Court has been pleased to hold as under:-
Order XLI Rule 27
production of additional evidence, whether oral or
CPC,
documentary, is permitted only under three
circumstances which are:(I) Where the trial Court
had refused to admit the evidence though it ought
to have been admitted;(II) the evidence was not
available to the party despite exercise of due
diligence; and(III) the appellate Court required the
additional evidence so as to enable it to pronounce
judgment or for any other substantial cause of like
nature. An application for production of additional
evidence cannot be allowed if the appellant was not
diligent in producing the relevant documents in
lower Court. However, in the interest of justice and
when satisfactory reasons are given, the Court can
receive additional documents."
Thus, from the above, it is evident that an application under Order 41,
Rule 27 of the Code of Civil Procedure can be entertained by the Court by
.
permitting a party to lead additional evidence in case the party satisfies
the Court that despite due diligence, it could not produce the said
evidence before the learned Trial Court. In the present case, the appellant
has failed to demonstrate as to why the documents which it now intends to
place on record, could not be placed and proved by it before the learned
Tribunal despite due diligence. This demonstrates that filing of the
application by the appellant is nothing, but an attempt to fill up the lacunae
and this is not the intent or purpose of Order 41, Rule 27 of the Code of
Civil Procedure. Accordingly, this Court holds that the application which
has been filed by the appellant/applicant under Order 41 Rule 27 of the
Code of Civil Procedure cannot be allowed and the same is accordingly
dismissed.
16. Now, coming to the contention of the appellant that the award
passed by the learned Tribunal is not sustainable on the ground that the
deceased as well as the driver of Mahindra Pick-Up were not possessing
valid licence, a perusal of record of the case demonstrates that the
appellant herein has failed to lead cogent evidence before the learned
Tribunal to prove these facts. In fact, while deciding Issue No. 5, learned
Tribunal has held that the appellant herein had taken an objection that the
driver of the offending vehicle was not having an effective and valid driving
licence at the time of accident, but respondent No. 2 before the learned
.
Tribunal had proved the copy of driving licence Ex. RW2/A and in terms of
this driving licence, he was duly authorized to drive a motorcycle
alongwith LMV/LTV. The licence was valid up to 03.02.2013 and no
evidence was produced by the Insurance Company to demonstrate that
this was a fake licence. Similarly, as far as the issue of the deceased
possessing a valid driving licence is concerned, record demonstrates that
the onus to prove this issue was not upon the present appellant but upon
the National Insurance Company, which demonstrates that no such plea
was taken by the present appellant before the learned Tribunal. That
being the case, now in appeal, this issue cannot be agitated by the
appellant.
17. Now, this Court will come to the issue of grant of
compensation in favour of the claimants by the learned Tribunal. The age
of the deceased at the time of death was 40 years and this stands
corroborated on record by an entry in the parivar register Ex. PW3/B, in
terms whereof, the date of birth of the deceased was 11.05.1970. Now,
coming to the income of the deceased, learned Tribunal assessed the
income of the deceased at Rs.4,000/- per month by holding that the
deceased being a hale and hearty person of 40 years of age, must be
earning equivalent to a daily wager. Though the claimants had claimed
monthly income of the deceased to be Rs.12,000/- per month on the
.
ground that he was a Building Contractor, but learned Tribunal disbelieved
their contention on the ground that no evidence was placed on record by
the claimants in this regard. In this background, the income of the
deceased assessed by the learned Tribunal is reasonable and calls for no
interference. The multiplier which has been applied by the learned
Tribunal in the present case is of 15, which also calls for no interference.
18. Before proceeding further, it is pertinent to mention that in
National Insurance Company Limited Vs. Pranay Sethi and others
(2017) 16 Supreme Court Cases 680, the Hon'ble Supreme Court has
been pleased to hold that while determining the income, an addition of
50% of actual salary to the income of the deceased towards future
prospectus should be made, where the deceased had a permanent job
and was below the age of 40 years. Hon'ble Supreme Court has also held
that the addition should be 30%, if the age of the deceased was between
40 to 50 years and 15%, if the age was between 50 to 60 years. In case
the deceased was self-employed or was on a fixed salary, then, addition
of 40% of the established income has to be given where the deceased
was less than 40 years old and 25% where the deceased was between 40
to 50 years. The increase has to be 10% where the age of the deceased
was 50 to 60 years. Hon'ble Supreme Court has also held that the loss of
estate, loss of consortium and funeral expenses should be Rs.15,000/-,
.
Rs.40,000/- and Rs.15,000/-, respectively.
19. Thereafter, in New India Assurance Company Limited Vs.
Somawati and others (2020) 9 Supreme Court Cases 644, the Hon'ble
Supreme Court has further been pleased to hold that consortium at the
rate of Rs.40,000/- is payable to children and parents also.
20. Now, in this background, if one peruses the award under
challenge, one finds that an amount of Rs.25,000/- has been awarded
under the head funeral expenses, which has to be reduced to Rs.15,000/-.
Similarly, an amount of Rs.1,00,000/- has been granted under the head of
loss to the estate, which amount also has to be reduced to Rs.15,000/-.
Loss of consortium to the widow has also been assessed at Rs.1,00,000/-
by the learned Tribunal, which also has to be reduced to Rs.40,000/-. But,
besides the widow claimant, other claimants are also entitled for
consortium at the rate of Rs.40,000/- each.
21. Accordingly, this appeal is allowed to the extent that the
amounts awarded by the learned Tribunal under the heading of funeral
expenses and loss of estate are reduced to Rs.15,000/- under each head,
whereas, the amount of consortium awarded in favour of the claimant
widow is reduced from Rs.1,00,000/- to Rs.40,000/-. However, in exercise
of powers so conferred upon this Court under Order 41, Rule 33 of the
Code of Civil Procedure, it is ordered that an amount of Rs.40,000/- under
.
the heading of consortium shall also be payable to other four claimants in
addition to the widow. Besides this, an amount of Rs.1,00,000/-, which has
been granted as loss of love and affection to claimants No. 2 to 5 by the
learned Tribunal is also held to be not payable to them, as no amount can
be paid to the claimants under this head. The proportion in which the
award amount has been distributed by the learned Tribunal in favour of
the claimants is not disturbed and the rate of interest is also not disturbed.
It is also observed that the amount of interim compensation, if awarded
shall be adjusted against the final compensation amount, as determined in
this judgment. Appeal is disposed of in above terms. Miscellaneous
applications, if any, stand disposed of.
CMP No. 10449 of 2021
22. By way of this application, applicants- Mohit, Ranbir and
Komal have prayed that as they have attained the age of majority,
therefore, they may be permitted to pursue the case in their own capacity
by discharging Smt. Anupama as their guardian. In order to substantiate
the fact that the applicants have attained the age of majority, they have
appended their Matriculation Certificates with the application.
23. In view of the averments made in the application as well as
taking into consideration the documents appended with the same, this
.
application is allowed, as prayed for and the applicants are permitted to
pursue the case in their own capacity by discharging Smt. Anupama as
their guardian. The application stands disposed of.
CMP No. 10448 of 2021
24. By way of this application, the applicants- Smt. Anupama and
Sh. Mohit have prayed for release of amount in their favour.
25. Having heard learned counsel for the parties and after
perusing the averments made in the application, the same is allowed and
the amount falling to the share of the applicants alongwith up-to-date
interest, in terms of the judgment passed by this Court, is directed to be
released in their favour. The amount be remitted directly into the bank
accounts, as per particulars mentioned in the application. The application
stands disposed of.
(Ajay Mohan Goel)
Judge
September 22, 2021
(bhupender)
