Himachal Pradesh High Court
National Insurance Company ... vs New India Assurance Company on 25 May, 2022
Bench: Jyotsna Rewal Dua
Object 1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 25th DAY OF MAY 2022
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
FIRST APPEAL FROM ORDER Nos. 305 & 306 OF 2016
Between:-
1.
FAO NO. 305 OF 2016
NATIONAL INSURANCE COMPANY LIMITED,
CIRCULAR ROAD, HIMLAND HOTEL,
SHIMLA-171 001 H.P.
THROUGH ITS ADMINISTRATIVE
OFFICER (LEGAL) SHRI NARINDER NEGI.
.....APPELLANT
(BY MS. DEVYANI SHARMA, ADVOCATE)
AND
1. SH. MADAN LAL, SON OF SH. KAULA,
RESIDENT OF VILLAGE NAGROT,
P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA, H.P.
.....RESPONDENT/CLAIMANT
2. SMT. INDRA DEVI WIFE OF
LATE SH. GYAN CHAND DOGRA,
3. KUMARI RACHNA DAUGHTER OF
LATE SH. GYAN CHAND DOGRA,
4. KUMARI SAPNA DAUGHTER
OF LATE SH. GYAN CHAND DOGRA,
5. MOHIT SON OF
LATE SH. GYAN CHAND DOGRA
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6. SMT. RUKMANI MOTHER OF LATE
SH. GYAN CHAND DOGRA
(DELETED VIDE ORDER DATED 22.6.2016)
.
ALL RESIDENTS OF VILLAGE ZAL,
P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA, H.P.
(OWNER OF CAR (ALTO 800)
NO. HP-63B-1562).
7. SH. JAI GOPAL RAJTA ALIAS SUNIL
SON OF LATE SH. JOBAN DASS,
RESIDENT OF VILLAGE REOG,
P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA (DRIVER OF
CAR (ALTO 800)
NO. HP-63B-1562).
.....RESPONDENTS
(SHRI RAHUL SINGH, ADVOCATE, FOR R-1,
SH. PAWAN K. SHARMA, ADVOCATE, FOR
R-2 TO R-5 &R-7)
2. FAO NO. 306 OF 2016
NATIONAL INSURANCE COMPANY LIMITED,
CIRCULAR ROAD, HIMLAND HOTEL,
SHIMLA-171 001 H.P.
THROUGH ITS ADMINISTRATIVE
OFFICER (LEGAL) SHRI NARINDER NEGI.
.....APPELLANT
(BY MS. DEVYANI SHARMA, ADVOCATE)
AND
1. SMT. SHEELA DEVI
WIFE OF LATE SH. LIAQ RAM
2. MS. REENA DAUGHTER OF
LATE SH. LIAQ RAM
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3. MS. MANU DAUGHTER OF
LATE SH. LIAQ RAM
.
4. MS. RUCHIKA (MINOR) DAUGHTER
OF LATE SH. LIAQ RAM
5. MASTER AKHIL (MINOR) SON OF
LATE SH. LIAQ RAM
MINORS THROUGH THEIR MOTHER AND
NATURAL GUARDIAN SMT. SHEELA DEVI
WIFE OF LATE SH. LIAQ RAM.
ALL RESIDENTS OF VILLAGE NAGROT,
P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA, H.P.
.....RESPONDENTS/CLAIMANTS
6. SMT. INDRA DEVI WIFE OF
LATE SH. GYAN CHAND DOGRA,
7. KUMARI RACHNA DAUGHTER OF
LATE SH. GYAN CHAND DOGRA,
8. KUMARI SAPNA DAUGHTER
OF LATE SH. GYAN CHAND DOGRA,
9. MOHIT SON OF LATE
SH. GYAN CHAND DOGRA
10. SMT. RUKMANI MOTHER OF LATE
SH. GYAN CHAND DOGRA
(DELETED VIDE ORDER DATED 22.6.2016)
ALL RESIDENTS OF VILLAGE ZAL,
P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA, H.P.
(OWNER OF CAR (ALTO 800)
NO. HP-63B-1562).
11. SH. JAI GOPAL RAJTA ALIAS SUNIL
SON OF LATE SH. JOBAN DASS,
RESIDENT OF VILLAGE REOG,
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P.O. NARKANDA, TEHSIL KUMARSAIN,
DISTRICT SHIMLA (DRIVER OF
CAR (ALTO 800) NO. HP-63B-1562).
.
.....RESPONDENTS
(SHRI RAHUL SINGH, ADVOCATE, FOR R-1
TO R-5,
SH. PAWAN K. SHARMA, ADVOCATE, FOR
R-6 TO R-9 &R-11)
_________________________________________________________
These appeals coming on for part heard this day,
the Court delivered the following:
JUDGMENT
These appeals involve overlapping questions and
pertain to an accident, which took place on 18.3.2013 involving
motor vehicle No. HP-63B-1562. Original claimants in FAO No.
306 of 2016 are the legal heirs of Shri Liaq Ram who died in the
accident, whereas Shri Madan Lal who suffered injuries in the
same accident was the original claimant in FAO No. 305 of
2013.
Being connected and involving overlapping
questions, both appeals are taken up together for disposal.
FAO No. 306 of 2016
2. Respondents No. 1 to 5 filed claim petition under
Section 166 of the Motor Vehicles Act claiming compensation of
Rs. 30,00,000/- (Rupees thirty lacs only) on account of death of
Shri Liaq Ram in a motor vehicle accident involving vehicle No.
HP-63B-1562 which occurred on 18.3.2013. The claimants
.
pleaded that Liaq Ram was 51 years of age at the time of
accident and was earning Rs. 20,000/- per month. That the
accident occurred due to rash and negligent driving of the
vehicle by respondent No. 11 Shri Jai Gopal Rajta. On
consideration of the pleadings and the evidence, learned Motor
Accident Claims Tribunal held that the accident in question had
taken place due to rash and negligent driving of the vehicle by
respondent No. 11 in which Liaq Ram sustained fatal injuries.
His monthly income was assessed at Rs. 12,000/- per month.
On that basis, the payable compensation was worked out and
the claimants were held entitled to compensation amount of Rs.
14,06,000/- alongwith interest @ 7.5% per annum from the date
of filing of the petition. Liability to pay the compensation
amount was fastened upon the Insurer. Aggrieved, the Insurer
has preferred the instant appeal.
3. During hearing of the case, learned counsel for the
appellant confined her submissions on following two grounds:
(i) The vehicle was being driven by its driver Shri Gyan
Chand Dogra, who did not possess driving licence,
therefore, the liability to pay the compensation
amount could not be fastened upon the
appellant/Insurer.
.
(ii) The income of the deceased Shri Liaq Ram
had been assessed by learned Tribunal on a very
higher side.
4. I have heard learned counsel for the parties on the
aforesaid two points. These points are separately being
discussed hereinafter:-
5. Driver of ill-fated vehicle No. HP-63B-1562.
5(i) The contention of learned counsel for the appellant
is that the vehicle in question was being driven by Shri Gyan
Chand Dogra at the time of accident who did not possess
driving license, therefore, the appellant could not have been
fastened with the liability to pay the compensation amount as
the vehicle was being driven in breach of terms and conditions
of the Insurance Policy. In support of these submissions,
reliance was placed upon the contents of FIR No. 29 of 2013
(Ex.PW3/B). Referring to this document, learned counsel for
the appellant submitted that the FIR records that the vehicle in
question was being driven by its owner Gyan Chand.
Statement of Shri Vivek Suman (RW-1) was also pressed into
service in support of this contention. RW-1 in his affidavit
furnished by way of examination-in-chief (Ex.RW-1/A) stated
that at the time of lodging of Own Damage Claim by the legal
.
heirs of late Shri Liaq Ram, the Insurer had asked them to
supply the driving licence of Insured (Gyan Chand). Since the
legal heirs could not supply the driving licence of Gyan Chand,
they came up with a story that at the time of accident the
vehicle was being driven by Jai Gopal. The story was cultivated
since Gyan Chand had no driving licence.
Learned counsel for the appellant argued that the
FIR was the first document prepared after the accident in
question. The claimants i.e. the legal heirs of late Shri Liaq
Ram did not dispute this document which recorded that the
vehicle in question at the time of the accident was being driven
by its owner Gyan Chand. Therefore, the findings recorded by
the learned Tribunal that vehicle at the time of accident was
being driven by Jai Gopal, are contrary to the evidence on
record.
5(ii) Per contra, learned counsel appearing for
respondents No. 1 to 5 submitted that the vehicle in question
was being driven by Jai Gopal (respondent No. 11) at the time
it met with the accident. The FIR Ex.PW3/B was registered on
the basis of statement of one Shri Amar Chand. Said Shri
Amar Chand was not produced as a witness by the Insurance
Company. The contents of the FIR in this regard cannot be
.
treated to be proved, more so in view of the final report
presented by the investigating agency for cancelling the FIR.
In this final report (Ex. PW-3/A), the investigating agency on the
basis of investigations carried out in the matter had submitted
that Amar Chand had wrongly recorded in his statement about
the vehicle in question being driven by Gyan Chand Dogra at
the time of accident. That the investigation carried out by the
police revealed that at the time of accident the vehicle was
being driven by Jai Gopal. The statement of Shri Jai Gopal who
appeared in the witness box as RW-3 was also highlighted by
the learned counsel. In his examination-in-chief furnished by
way of affidavit (Ex. RW3/A) said Shri Jai Gopal Rajta affirmed
that he was driving the vehicle when it met with the accident.
Learned counsel also submitted that Shri Madan Lal, who
suffered injuries in the same accident, while appearing as PW1
in support of his claim petition (subject matter of FAO No. 305
of 2016) stated that the vehicle in question was being driven
by Jai Gopal Rajta at the time of accident.
5(iii) After hearing learned counsel for the parties and
going through the record, it becomes quite clear that the vehicle
in question was being driven by respondent No.11 Shri Jai
Gopal at the time of the accident. This is for the following
.
reasons:
5(iii)(a) It is well settled that while deciding cases arising out
of motor vehicle accidents, the standard of proof to be born in
mind must be of preponderance of probability and not the strict
standard of proof beyond all reasonable doubts which is
followed in criminal cases. In 2021 (1) SCC 171, titled Anita
Sharma and Others Vs. New India Assurance Company
Limited and Another, Hon'ble Supreme Court reiterated well
established principle that strict principles of evidence and
standards of proof like in a criminal trial are inapplicable in
Motor accident claim cases. The standard of proof in such like
matters is one of preponderance of probabilities, rather than
beyond reasonable doubt. One needs to be mindful that the
approach and role of courts while examining evidence and
material placed on record in accident claim cases is to analyse
to ascertain whether claimant's version is more likely than not
true. Relevant paras of the judgment are extracted hereunder:-
"17. Unfortunately, the approach of the High Court was not
sensitive enough to appreciate the turn of events at the spot, or
the appellant claimants' hardship in tracing witnesses and
collecting information for an accident which took place many
hundreds of kilometers away in an altogether different State.
Close to the facts of the case in hand, this Court in
Parmeshwari v. Amir Chand, viewed that: (SCC p.638, para 12).
.
"12. The other ground on which the High Court dismissed
the case was by way of disbelieving the testimony of Umed
Singh, PW 1. Such disbelief of the High Court is totally
conjectural. Umed Singh is not related to the appellant but as a
good citizen, Umed Singh extended his help to the appellant by
helping her to reach the doctor's chamber in order to ensure
that an injured woman gets medical treatment. The evidence of
Umed Singh cannot be disbelieved just because he did not file
a complaint himself. We are constrained to repeat our
observation that the total approach of the High Court,
unfortunately, was not sensitised enough to appreciate the
plight of the victim.
15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in a
particular manner may not be possible to be done by the
claimants. The claimants were merely to establish their case on
the touchstone of preponderance of probability. The standard of
proof beyond reasonable doubt could not have been applied."
(emphasis supplied)
22. A somewhat similar situation arose in Dulcina Fernandes v.
Joaquim Xavier Cruz, (2013) 10 SCC 646, wherein this Court
reiterated that: (SCC p.650, para 7)
"7. It would hardly need a mention that the plea of negligence
on the part of the first respondent who was driving the pickup
van as set up by the claimants was required to be decided by
the learned Tribunal on the touchstone of preponderance of
probabilities and certainly not on the basis of proof beyond
reasonable doubt. (Bimla Devi v. Himachal RTC" (2009) 13
SCC 530."
(emphasis supplied)"
5(iii)(b) In the instant case the FIR Ex.PW3/B was
registered at the instance of one Amar Chand who presumably
stated that the vehicle was being driven by its owner Gyan
Chand. As per the FIR, Amar Chand only saw the vehicle after
the accident. He himself had not seen Gyan Chand driving the
.
vehicle. The fact remains that the Amar Chand was not
produced by the appellant as a witness in support of its
contention that vehicle was not driven by Jai Gopal Rajta or that
it was being driven by Gyan Chand.
5(iii)(c)
In its final report seeking cancellation of the FIR, the
investigating agency reported that their investigation disclosed
that the complainant Amar Chand had incorrectly stated about
the vehicle in question having been driven by Gyan Chand.
That the vehicle at the time of the accident was being driven by
Jai Gopal. Learned counsel for respondents No.1 to 5 submitted
during hearing of the case that on the basis of the final report,
the FIR No. 29/2013 was cancelled. It that is so, then even
otherwise reliance on the said FIR for the purpose of pointing
out that the vehicle in question was being driven by Gyan
Chand and not by Jai Gopal, is misplaced.
5(iii)(d) Respondent No. 11 Jai Gopal while appearing as
RW-3 has himself admitted that he was driving the vehicle in
question on the date it met with accident. It is not in dispute
that Jai Gopal was in possession of valid driving licence
(Ext.RW2/A) which was valid up to 10.9.2023. In terms of this
licence he was authorized to drive light motor vehicle.
.
For the foregoing reasons, I find no infirmity in the
findings recorded by the learned Motor Accident Claims Tribunal
that the accident had occurred due to rash and negligent driving
of the vehicle by respondent No. 11 i.e. Jai Gopal Rajta. The
point is answered accordingly.
6. Quantum of compensation
r to
Learned Tribunal has assessed the monthly income
of the deceased Shri Liaq Ram as Rs, 12,000/- per month.
1/3rd deduction on account of his personal expenses was
made, thereby making his monthly contribution @ Rs. 8,000/-.
Taking into consideration the law laid by Hon'ble Apex Court in
Sarla Verma versus DTC, 2009(6)SCC 121, the multiplier of
11 was applied and the entitlements of the claimants was
worked out as under:
i) Loss of dependency
a) Rs. 8,000/-x12x11 = Rs. 10,56,000/-
ii) Loss of estate = Rs. 1,00,000/-
iii) Loss of love and
affection = Rs. 1,00,000/-
iv) funeral charges = Rs. 50,000/-
v) loss of consortium = Rs. 1,00,000/-
Total = Rs. 14,06,000/-.
6(i) The contention advanced by learned counsel for the
.
appellant/Insurer is that the monthly income of the deceased
has been assessed at a very higher rate. There is no basis for
such assessment. Learned counsel for the appellant contended
that the claimants had not proved their assertion of deceased's
earning Rs. 20,000/- per month by leading cogent evidence.
The statements of wife of deceased (PW1) and that of Shri
Rohit (PW2) could not have been accepted as gospel truth in
respect of the income of the deceased. There was no
documentary evidence available on record to prove the pleaded
income of the deceased at Rs. 20,000/- per month. In the facts
and circumstances of the case, there was no basis for the
learned Tribunal to hold that deceased might have been earning
Rs. 12,000/- per month.
6(ii) Defending the assessment of income of the
deceased, made by learned Tribunal, learned counsel for the
original claimants (respondents No. 1 to 5) submitted that in
para-6 of their claim petition, the claimants had specifically
asserted that deceased was earning Rs. 20,000/- per month.
The Insurer had not specifically denied the contents of the para
in its reply. Its pleaded denial for want of knowledge has to be
construed as an admission on part of the Insurer. Learned
counsel for the original claimants submitted that the widow of
.
the deceased while appearing as PW1 had categorically stated
that her husband used to earn Rs. 20,000/- per month from
agriculture and horticulture pursuits. Learned counsel drew
attention to the affidavit of the widow of the deceased
(Ex.PW1/A) wherein she has stated having apple orchard and
land at village Nagrot and village Zal in district Shimla.
Reference was also made to the statement of PW2 Rohit who in
his affidavit furnished in examination-in-chief (Ex.PW2/A)
affirmed and declared that deceased Liaq Ram used to work on
his (Rohit's) orchard on contract and that deceased used to
earn Rs. 1,00,000 to 1,50,000/- from the contract of the apples
of the orchard.
6(iii) From the submissions advanced by learned
counsel for the parties and perusal of record, what comes out is
that deceased was about 51 years of age at the time of his
death. The statement of deceased's wife furnished by way of
affidavit in examination-in-chief (Ex.PW1/A) wherein she stated
having apple orchard and land, was not questioned in cross-
examination by the appellant. Rather a suggestion was given
to her by the Insurer/appellant that deceased was an orchardist
and agriculturist by profession, which she admitted. The
implication is that the deceased's engagement as agriculturist
.
and horticulturist pursuits was not denied by the Insurer. The
accident had taken place on 18.6.2013. Even the wages for
skilled labourer under the Minimum Wages Act in the year
2013-2014 were around Rs. 6000/- per month. In 2022 (1)
SCC 198 titled Chandra alias Chandaram and another Vs.
Mukesh Kumar Yadav and others, Hon'ble Apex Court held
that 'in absence of salary certificate, the minimum wage
notification can be a yardstick, but at the same time, cannot be
an absolute one to fix the income of the deceased. In absence
of documentary evidence on record, some amount of
guesswork is required to be done, but at the same time, the
guesswork for assessing the income of the deceased should
not be totally detached from reality. Merely because claimants
were unable to produce documentary evidence to show the
monthly income of the deceased, same does not justify
adoption of lowest tier of minimum wage while computing the
income. There is no reason to discard the oral evidence of the
wife of the deceased deposing about the income of the
deceased.'
Using some guess work, the income of the
deceased is taken as Rs.9,000/- per month. The deceased is
.
survived by five dependents i.e. his widow, three daughters and
one son. Accordingly, ¼ deduction for personal expenses was
required to be carried out on his total assessed income of
Rs. 9,000/-. The calculation of amount of compensation thus is
re-worked out as under:
Income taken
r Rs. 9,000/- to
¼ deduction for personal Rs. 2,250/- per month
expenses
Loss of dependency 9,000-2,250 Rs. 6,760/- per month
Loss of dependency 6750x12x11 Rs. 8,91,000/-
Loss of future prospects Rs. 89,100
(10%)
Total compensation 8,91,000+89,100 Rs. 9,80,000/-
Loss of Estate Rs. 16,500/-
Funeral Charges Rs. 16,500/-
Consortium (including 44,000x5 Rs. 2,20,000/-
parental consortium)
Total award 9,80,100+2,20,000+16,500 Rs. 12,33,100/-
+16,500
In view of above discussion, present appeal is partly
allowed. The impugned award passed by the learned Motor
Accident Claims Tribunal, Shimla in M.A.C.C. No. 104-S/2 of
2013 is modified to the extent indicated above. The remaining
terms and conditions of the impugned award including the
interest component shall remain the same. 50% of the awarded
amount will go to the widow of the deceased i.e. respondent No.
1 and remaining amount of compensation shall be shared
.
equally by respondents No. 2 to 5.
7. FAO No. 305 of 2016
7(i) Respondent No. 1 was the original claimant before
the Learned Motor Accident Claims Tribunal. Vide award dated
31.10.2015 he was held entitled for compensation of Rs.
3,49,528/- alongwith interest @7.5% per annum from the date
of filing the petition till realization of the amount. Liability to pay
the compensation amount was fastened upon the Insurance
Company. Aggrieved, the instant appeal has been filed by the
insurer.
7(ii) Learned counsel for the Appellant has pressed the
same very two points which were raised in FAO No. 306 of
2016 i.e. (i) the vehicle in question was driven by its owner Shri
Gyan Chand who did not possess the driving licence and (ii) the
compensation assessed was on the higher side. The first point
has already been adjudicated above against the appellant in
FAO No. 306 of 2016. In respect of the claim of compensation
learned Tribunal has determined the age of the deceased at the
time of accident as 48 years and his income was assessed at
Rs. 10,000/- per month.
7(iii) The injured-claimant was held entitled to
compensation of Rs. 56,000/- on account of pain and suffering
.
for having been hospitalized for 28 days. On account of 5%
permanent disability suffered by him to his hip joint, Rs.
50,000/- was awarded on account of loss of enjoyment of life.
By taking the period of claimant's hospitalization and
convalescence as five months, he was held entitled to
Rs.10,000x5=50,000/- on account of loss of earnings and
earning capacity. 5% permanent disability suffered by him and
chances of increase in this disability with advancement in age
was also considered while determining the loss of earnings and
earning capacity. For suffering 5% permanent disability, the
injured was held entitled to a sum of Rs.500x12x13=
Rs.78,000/-. On the basis of proved bills, he was also held
entitled to Rs.75,528/- and conveyance charges of Rs. 10,000/-.
In all the claimant was held entitled to compensation to the
tune of Rs.3,49,528/- alongwith interest @ 7.5% per annum. In
the facts and circumstances of the case, this amount cannot be
said to be on higher side. Hence, no case is made out for the
interference.
In view of above discussion, I find no merit in these
appeals and the same are accordingly dismissed. Pending
miscellaneous application(s), if any, shall also stand disposed
of.
.
Jyotsna Rewal Dua
Judge
25th May, 2022
(vs)
r to
