National Insurance Company ... vs Kumari Ranju And Ors
2023 Latest Caselaw 15485 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO(MVA) No. : 495 of 2015 a/w FAO(MVA) No.200/2018

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                                                 Reserved on:             16.09.2023

                                                 Decided on:             06.10.2023





     1.FAO (MVA) No. 495 of 2015

National Insurance Company Limited.

....Appellant.

Versus

Kumari Ranju and Ors.

...Respondents.

2.FAO (MVA) No. 200 of 2018

Smt. Kusuma @ Kusum & Ors. through LRs Ranju & Ors.

....Appellants.

Versus

Amarjit Singh and Ors.

...Respondents.

Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 No

For the appellant(s) : Mr. Ashwani Kumar Sharma, Senior Advocate, with Mr. Ishan Sharma, Advocate, for the appellant in FAO No. 495 of 2015 and for respondent No. 3 in FAO No. 200 of 2018.

1 Whether reporters of the local papers may be allowed to see the judgment?

For the respondent(s) : Mr. S.D. Gill, Advocate, for the appellants in FAO No. 200 of

.

2018 and for respondents No.2

and 3 in FAO No. 495 of 2015.

: Mr. Naveen Saini, Advocate, for respondents No. 4 to 7.

Satyen Vaidya, Judge

Both these appeals are being decided by

award.

r to a common judgment as these arise from the same

2. Appellants in FAO No. 200 of 2018 were

the claimants before learned Motor Accident Claims

Tribunal (for short 'The Tribunal'). They had filed the

petition under Section 166 of the Motor Vehicles Act,

for grant of compensation on account of the death of

late Sh. Kirpal. The original respondent No. 1 was the

owner of offending vehicle. He died during the

pendency of the petition before learned Tribunal and

was substituted through his legal representatives

(hereinafter to be referred as 'owner'). Sh. Santosh

Kumar, respondent No. 2 in FAO No. 200 of 2018

was impleaded as driver (hereinafter to be referred as

'driver') appellants herein was the insurer

(hereinafter to be referred as 'insurer' of offending

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vehicle').

3. The case of the claimants was that their

predecessor Sh. Kirpal was working as Mason-cum-

Supervisor with Contractor, namely, Sh. Ashok

Tiwari. On 06.09.2010, Sh. Kirpal alongwith others

were engaged

in construction work at place near

Kishanpura, District Solan. A tractor bearing No. HP-

12A-6921 being driven by the driver in rash and

negligent manner caused the accident which resulted

in death of Sh. Kirpal besides injuries to many

other.

4. The age of deceased Sh. Kirpal was

stated to be 42 years at the time of death. It was

claimed that deceased was earning Rs. 400/- per

day. In the above background, the compensation of

Rs. 30 lacs was claimed.

5. The claimant Smt. Kusuma @ Kusum is

the wife and claimants No. 2 and 3 are the children

of late Sh. Kirpal.

6. The owner and driver contested the

petition on the ground that the accident was not

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caused by the Tractor. The allegation of rashness

and negligence against the driver was specifically

denied. A defence was raised that the accident was

caused by some speeding Truck which involved the

Tractor also. The factum of deceased earning

r to Rs. 400/- per day was also denied.

7. The insurer denied its liability by alleging

breach of terms of the policy. It was alleged that the

driver was not possessing valid and effective driving

license at the time of accident. The vehicle was being

driven in violation of the provisions of the Act and in

breach of terms and conditions of policy. The Tractor

at the time of accident was not possessing fitness

certificate.

8. Learned Tribunal awarded a sum of Rs.

19,47,200/- with 7% interest per annum on the

awarded amount from the date of filing of the

petition. The claimants by way of FAO No. 200 of

2018 have sought the enhancement, whereas the

insurer by way of FAO No. 495 of 2015 has assailed

the award being illegal and exorbitant.

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9. I have heard learned counsel for the

parties and have also gone through the records of the

case carefully.

10. The compensation has been quantified

by learned Tribunal by considering the income of

deceased at Rs. 12,000/- per month. Reliance has

been placed on the statements r of PW-1,Sh. Ashok

Tiwari and PW-4 Ms. Mamta. Sh. Ashok Tiwari was

the Contractor with whom the deceased was working.

While deposing before the Court, said witness had

categorically stated that the deceased Sh. Kirpal was

working with him as Mason-cum-Supervisor and was

being paid Rs. 400/- per day by him. Similarly,

PW-4 Ms. Mamta, being the daughter of deceased,

had stepped into a witness box and deposed that

the deceased was earning Rs. 12,000/- per month.

11. Learned counsel for the insurer has laid

challenge to testimony of both the above witnesses by

referring to the cross-examination conducted on

behalf of the owner. It has been contended that the

version of PW-1 could not be taken as a gospel truth

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as he had not produced any documentary proof

either in respect of his occupation as Contractor or

the employment of deceased with him as a Mason. It

was further submitted that no documents had been

produced on record by PW-1 to show that he was

paying deceased Rs. 400/- per day. To similar effect

is the challenge made to statement of PW-4. It was

submitted that she was the married daughter and

could not be said to be aware about the income of her

father. Learned counsel for the insurer has also

placed on record the notification issued by Labour

Department for the relevant period when accident

had taken place and on its strength has maintained

that the daily wages of skilled workmen was much

less than what is claimed by the claimants.

12. I have given my thoughtful consideration

to the contention raised on behalf of the insurer and

in my considered view, the same deserves to be

rejected. The notification issued by Labour

Department regarding daily wages payable to

workmen cannot be put into use for the reason that

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there is a direct evidence in the instant case with

respect to the income of the deceased. The

statements of PW-1 and PW-4 cannot be ignored only

for the reason that the document with respect to

payment of salary has not been produced on record.

Noticeably,

conducted rno

cross-examination

on these witnesses on behalf of the has been

insurer. Even otherwise there is nothing to discredit

their version. Viewed from another angle, the claim

regarding the wages received by the deceased cannot

be said to be abnormal or exorbitant. It is common

knowledge that in private sector, the daily wages are

higher than what is determined by the Government.

The reasons are obvious and one of such being

extended working hours besides target oriented jobs.

Thus, the findings returned by the learned Tribunal

on the income of the deceased cannot be faulted

with. An amount equivalent to 1/3rd of the wages

earned by deceased is required to be deducted

towards his personal expenses and the remainder

after such deduction i.e. Rs. 12000/- minus Rs.

.

4000/- = Rs. 8000/- will be the monthly loss of

dependency.

13. Learned counsel for the insurer has

further stated that learned Tribunal has erred in

allowing 30% addition to the income of the deceased

on account of future prospects, whereas it had to be

25% in terms of the judgment passed r in Pranay

Sethi (2017) 16 SCC 680. The contention, so

raised, needs to be accepted. In para-59.3 of Pranay

Sethi (supra), the addition of 30% is prescribed for a

person within the age group of 40-50 years provided

he had permanent job. In other cases, for same age

group, the addition has been prescribed at 25%, vide

para-59.4 of the judgment. Thus by addition of Rs.

2000/- per month towards future prospects the total

monthly dependency can be calculated at Rs.

10,000/-.

14. It has also been submitted that the award

of Rs. 1,00,000/- each to the appellants, on account

of 'loss of consortium' and Rs. 25,000/- towards

'funeral charges' is also on higher side. The

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contention so raised on behalf of insurer also deserve

to the accepted.

15. As per the mandate in Pranay Sethi

(supra) and Magma General Insurance Company

Limited Vs. Nanu Ram alias Chuhru Ram and

others, (2018) 18 SCC 130, the claimants were

entitled to Rs. 40,000/- each for 'loss of consortium'.

They were further entitled to Rs. 15,000/- towards

'Funeral Charges' and another sum of Rs. 15,000/-

towards 'loss of estate'.

16. The age of deceased was 42 years,

therefore, multiplier of 14 has rightly been applied as

per Sarla Verma (2009) 6 SCC 121. The total loss of

dependency, thus, comes to Rs.

10,000x12x14=16,80,000/-.By adding Rs.1,20,000/-

towards 'loss of consortium', Rs. 15,000/- as

'Funeral Charges' and further Rs.15,000/- for 'loss of

estate', the total payable compensation to the

petitioner is Rs. 18,30,000/- instead of Rs.

19,47,200/- as assessed by the learned Tribunal.

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16. The claimants have not been able to place

on record any convincing material to suggest

enhancement in the compensation.

17. Accordingly, both these appeals are

disposed of by modifying the award dated

02.07.2014, passed by learned Motor Accident

Claims Tribunal-I, Solan, H.P, in MAC Petition No.

9-S/2 of 2014/2010, in aforesaid terms. It is clarified

that the amount of compensation as assessed above

shall be payable with interest @ 7% per annum from

the date of filing of the petition before the Tribunal till

actual payment or deposit by the insurer, whichever

is earlier.

18. Pending miscellaneous application(s), if

any, shall also stand disposed of.

                                                 (Satyen Vaidya)
    6th October, 2023                                 Judge
         (sushma)










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