National Insurance Company Ltd vs Kamlesh Sharma & Others
2023 Latest Caselaw 13679 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No.182 of 2011 & FAO (MVA) No.168 of 2011

.

Reserved on : 21st June, 2023

Date of Decision : 15th September, 2023

1. FAO No.182 of 2011.

National Insurance Company Ltd. ......Appellant

Versus

Kamlesh Sharma & Others ......Respondents

2. FAO(MVA) No.168 of 2011

Kamlesh Sharma & Another ......Appellants

Versus

Sarwan Singh & Others .....Respondents

Coram:

The Hon'ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?1

FAO No.182 of 2011

For the appellants : Mr. Rajiv Jiwan, Senior Advocate with Mr. Prashan Sharma, Advocate.

For the respondents : Mr. R.P. Singh, Advocate for respondent No.1 and 2.

                                                Respondents              No.3      to     7    already
                                                exparte.

                                                Mr. Jagdish Thakur, Advocate for
                                                respondent No.8.

Whether reporters of Local Papers may be allowed to see the judgment?

FAO No.168 of 2011

For the appellants : Mr. R.P. Singh, Advocate.

.

For the respondents : Respondents No.1 to 3, 5 & 6 already

exparte.

Mr. Rajiv Jiwan, Senior Advocate with

Mr. Prashant Sharma, Advocate for respondent No.4.

Mr. Jagdish Thakur, Advocate for respondent No.7.

Virender Singh, Judge
                   r                to

The above titled appeals are being disposed of by

common judgment, as, both these appeals have arisen out of

the award dated 18.12.2010, passed by learned Motor Accident

Claims Tribunal-II, Una H.P., (hereinafter referred to as the

'learned Tribunal'), in MAC Petition No.13 of 2006, titled as

Kamlesh Sharma & Another Versus Sarwan Singh & Others.

2. Parties to the present lis, are hereinafter referred to,

in the same manner, in which, they were referred to, by the

learned Tribunal.

3. Vide award dated 18.12.2010, the learned Tribunal

has awarded compensation to the petitioners to the tune of

Rs.4,09,000/-, along with interest, at the rate of 9% per annum,

from the date of filing the petition till realization of the amount.

The ultimate liability to pay the awarded amount has been

fastened upon respondent No.3-Insurance Company.

.

4. Feeling aggrieved from the said award, the

petitioners, as well as, the Insurance Company, have preferred

these appeals.

5. Brief facts, leading to filing of the present appeals,

before this Court, may be summed up, as under:-

5.1.

The petitioners, being parents of deceased Sanjay

Sharma, had filed the claim petition under Section 166 of the

Motor Vehicles Act, (hereinafter referred to as the 'M.V. Act')

against the respondents, being owner, driver and insurer of

vehicle No.HR-55C-5706 (hereinafter referred to as the

'offending vehicle'), as well as, against the owner, driver and

insurer of Indica Car bearing No.PB-10BG-5150.

5.2. The petitioners, have filed the petition, seeking

compensation on account of death of Shri Sanjay Sharma, in a

motor vehicle accident, involving the offending vehicle, as well

as, the vehicle owned by respondent No.4.

5.3 Elaborating their stand, it is the case of the

petitioners that the accident, in question, had taken place at

Shahbad, District Kurukshetra (Haryana) on 23.10.2005, at

about 6.30 a.m., when, Sanjay was travelling in Indica Car

No.PB10BG-5150 and was going from Ludhiana to his office at

Sahibabad, District Gaziabad, where, he was serving as Zonal

Manager Customer Care with Allied Nippon Ltd. A-12 Site-IV,

.

Industrial Area, Shahibabad District Gaziabad, U.P.

5.4. It is their case that when, the Indica Car, in which,

their son was travelling, being driven by respondent No.5,

reached near Shahbad, meanwhile, the offending vehicle, being

driven by respondent No.1, in a rash and negligent manner,

came there, without giving any signal and hit the Indica car. The

car was crushed and Sanjay received multiple injuries. Firstly,

he was taken to LNJP Hospital, Kurukshetra, where, he was

declared dead. According to them, Sanjay was sitting on the

back seat of Indica Car and accident, in question, has been

attributed to rash and negligent driving of respondent No.1,

while driving the offending vehicle.

5.5. It is the further case of the petitioners that

information regarding the accident was given to the Police of

Police Station, Shahbad, District Kurukshetra, where, FIR

No.333 , dated 23.10.2005, was registered. Sanjay, at the time

of his death, was stated to be 30 years of age and was working

as Zonal Manager Customer Care and earning a sum of

Rs.20,000/- per month.

5.6. Lastly, the petitioners have pleaded about their bright

past and bleak future, on the ground that Sanjay was their only

son, as such, they have claimed the compensation, on account

of his untimely death.

.

5.7. During the pendency of the claim petition before the

learned Tribunal, Vishnu, owner of offending vehicle has been

impleaded, by the learned Tribunal as respondent No.2-A, vide

order dated 9.6.2009.

6. When put to notice, the claim petition has only been

contested by respondents 2-A, 3 and 6, whereas, respondents

No.1, 2, 4 and 5, have not opted to contest the petition, as such,

proceeded against exparte.

7. Respondent No.2-A, has filed its reply by taking the

preliminary objections that the petitioners have no enforceable

cause of action to file the petition; and they have concealed the

material facts.

7.1. On merits, the contents of the claim petition have

been denied mainly, for want of knowledge. The accident, in

question, is stated to be the result of rash and negligent driving

on the part of driver of Indica Car No.PB10-BG 5150 and,

according to him, a false FIR has been registered against the

driver of offending vehicle.

8. Respondent No.3 has also filed its separate reply by

taking the preliminary objections that the petition is not

maintainable, as, the accident, in question, had taken place due

to rash and negligent driving of the driver of Indica Car

No.PB10BG-5150, the driver of the offending vehicle was not

.

having the valid and effective driving licence; the offending

vehicle was being permitted to ply, in violation of the terms and

conditions of the Insurance Policy.

9. On merits, the contents of the claim petition have,

mainly, been denied for want of knowledge.

10.

Respondent No.6, has filed the reply by taking the

preliminary objections that driver of Indica Car was not holding

a valid and effective driving licence, as such, there is violation of

terms and conditions of the Insurance Policy; no cause of action

has been arisen to the petitioners to file the petition against

respondent No.6; and the petitioner is stated to be bad for non-

joinder of necessary parties.

11. On merits, the contents of the claim petition have,

mainly, been denied for want of knowledge.

12. Thus, the respondents have prayed for dismissal of

the claim petition.

13. From the pleadings of the parties, learned Tribunal

has framed the following issues vide order dated 14.05.2010:

1. Whether Shri Sanjay Kumar died because of the rash and negligent driving of Tralla No.HR-55C- 5706 by Shri Sarwan Singh as alleged? OPP.

2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled to the compensation as claimed, if so, its quantum and from whom?

OP Parties.

.

3. Whether the petitioners have a cause of action?

OPP

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

4. Whether the deceased was himself a tort-feasor as alleged. If so, its effect? OPR.

5. Whether Sh. Sarwan Singh was not holding and possessing a valid and effective license to drive the Tralla as alleged. If so, its effect?

r OPR.

6. Whether the accident resulted due to the rash and negligent driving of Shri Surinder Singh (respondent No.5) as alleged. If so, its effect?

OPR.

7. Whether the respondent No. 5 was not holding and possessing a valid and effective license to

drive the Car as alleged. If so, its effect? OPR.

8. Relief.

14. After framing the issues, the parties to the claim

petition, have adduced their respective evidence.

15. After closure of the evidence and hearing the learned

counsel for the parties, the learned Tribunal has allowed the

petition by awarding the compensation, as referred to above.

16. Aggrieved from the said award passed by the learned

Tribunal, the petitioners have preferred FAO No.168 of 2011, by

assailing the award passed by learned Tribunal, mainly, on the

ground that the amount of compensation, does not fall within

.

the definition of 'just compensation'.

17. The award has also been assailed, on the ground

that while deciding the claim petition, the learned Tribunal has

not followed the verdict of the Hon'ble Supreme Court in Sarla

Verma & Others versus Transport Corporation and Others

(2009) 6 Supreme Court Cases, 121 and wrong multiplier

has been applied, by considering the age of petitioner No.1,

Smt.Kamlesh Sharma, who is mother of deceased Sanjay

Sharma.

18. Similarly, the award has also been assailed on the

grounds that the learned Tribunal has wrongly considered the

monthly income of the deceased; and that the documentary

evidence has not been properly considered by the learned

Tribunal.

19. On the basis of the above facts, a prayer has been

made by the petitioners to allow the appeal and to enhance the

compensation.

20. The Insurance Company of the offending vehicle, has

also preferred FAO No.182 of 2011, by assailing the award

passed by learned Tribunal, by virtue of which, liability has been

fastened upon respondent No.3 to pay the amount of

compensation.

.

21. The award has been challenged on the ground that

the learned Tribunal has wrongly awarded the interest @ 9% per

annum, from the date of filing of the petition, whereas,

respondent No.3, has been served, in the case, only on

9.3.2009, as such, according to the appellant, the petitioners are

22.

r to only entitled to interest from 9.3.2009 and not from 2.3.2006,

when, the petition was filed.

On the basis of these facts, a prayer has been made

by the Insurance Company to allow the appeal, as prayed for.

23. In order to decide these appeals, it would be just and

proper for this Court to discuss the oral, as well as, the

documentary evidence adduced by the parties to the petition,

before the learned Tribunal.

24. After framing of the issues, the petitioners have

examined PW-2 Dr. Manjeet Singh, SMO, C.H. Kurukshetra, who

has conducted the postmortem examination on the dead body of

the deceased and proved the copy of the same as Ex.PW-2/A.

25. Petitioner No.1, Kamlesh Sharma, appeared in the

witness-box as PW-3, and filed her affidavit as Ex.PW-3/A, which

is almost based upon the assertions, as contained in the claim

petition.

26. In the cross-examination, this witness has deposed

that she is 55 years of age and her husband has retired as Junior

.

Engineer in the year 2004. He is getting the pension. According

to her, the accident, in question, had not taken place, in her

presence.

27. PW-4, Ramesh Chand, has been examined, as an eye

witness to the accident, in question. He has filed his affidavit,

Ex.PW-4/A, in which, he has categorically stated that on

23.5.2005, he was travelling on his motorcycle, when, he

reached at Shahbad Chowk, then, he noticed Indica Car

No.PB10 BG-5150, being driven by its driver, coming from

Ambala side, at a normal speed. Meanwhile, the offending

vehicle, being driven by respondent No.1, came there, in a rash

and negligent manner, and without giving any signal, turned the

offending vehicle on the road towards Shahbad and hit the

Indica Car. Consequently, the indica car was crushed and

injured were taken to Kurukshetra Hospital, where, Sanjay was

declared dead. He has levelled the allegations of rash and

negligent driving against respondent No.1.

28. In the cross-examination, this witness has deposed

that the accident, in question, had taken place in his presence.

Rest, he has denied all the suggestions, which were put to him,

by the learned counsel appearing for respondent No.2A.

.

29. PW-5, Constable Satish Kumar No.185, Additional

MHC Police Station, Shahbad has proved the copy of FIR No.333

dated 23.10.2005, as Ex. PW-5/A. According to him, after

investigation, the report under Section 173(2) Cr.P.C., has been

submitted in the Court, which has been filed against Sarwan

Singh son of Sardar Singh.

30. to PW-6, Neeraj Sharma, has proved the fact that Sanjay

Sharma, was working in their Company. He has proved his

salary slip, as Ex.PW-6/B, certificate issued by the Company, as

Ex.PW-6/C. He has explained the term CTC, as mentioned in

Ex.PW-6/C, as 'cost to company'.

31. This is the entire evidence adduced by the petitioners.

32. First of all, coming to the submissions, as made by

learned counsel appearing for the Insurance Company, qua the

fact that the liability, cannot be fastened upon respondent No.3,

to pay the interest, from the date of filing of the petition, the

same is liable to be rejected, as the petitioners, when, filed the

petition, had mentioned the fact that the name of the Insurance

Company, is to be disclosed by respondents No.1 and 2.

33. There is no ambiguity in the addresses of

respondents No.1 and 2, as summons were served against them,

but, both of them, have not opted to contest the petition, as

such, were proceeded against exparte on 11.12.2006. No fault

.

can be attributed, for this to the petitioners. Situation would

have been otherwise, had respondents No.1 and 2 been

appeared and disclosed the factum of the address of respondent

No.3 and then, the petitioners would have impleaded the

Insurance Company, as party, within the reasonable time.

Moreover, this type of objection has not been taken by

respondent No.3, while filing its reply to the claim petition,

before the learned Tribunal. This objection has been taken, for

the first time, by way of the present appeal.

34. The provisions of M.V. Act, are beneficial peace of

legislation and when, there is no negligence or inaction, on the

part of the petitioners, then, acceptance of the plea of the

Insurance Company, would be nothing, but, giving premium to

respondent No.3, for the inaction on the part of respondents

No.1 and 2, in not contesting the petition.

35. The next question, which arises for determination,

before this Court, is about the fact whether the amount of

compensation, which has been awarded by learned Tribunal to

the petitioners, falls within the definition of 'just compensation'.

36. The age of the deceased Sanjay Kumar has been

pleaded as 30 years. However, in the postmortem report Ex.PW-

.

2/A, the age of the deceased has been mentioned as 25 years.

37. Hence, there is no legal hesitation, for this Court, to

accept the age of the deceased, as 25 years, as pleaded by the

petitioners, at the time of his death. The deceased has been

proved to be working as Zonal Manager Customer Care with

District Gaziabad, U.P.

r to Allied Nippon Limited, A-12 Site-IV, Industrial Area, Shahibabad,

38. By examining PW-6, petitioners have proved two

documents Ex.PW-6/B and Ex.PW-6/C. Ex. PW-6/B, is the salary

slip, for the month of October, 2005.

39. As per the claim petition, the monthly income of

deceased Sanjay Sharma, has been pleaded, as Rs.20,000/- per

month. Similarly, petitioner No.1 Kamlesh, while appearing in

the witness-box, has filed her affidavit Ex.PW-3/A, in which, she

has also asserted the income of her son, as Rs.20,000/- per

month. However, from the documentary evidence, which has

been adduced by examining PW-6, especially the document

Ex.PW-6/C, the monthly income of deceased Sanjay Sharma, is

proved to be Rs.11,288/-, per month CTC.

40. CTC is a term, which means, the total salary package

of the employee, inclusive of all monthly components, such as,

basic pay, reimbursements, various allowances, and all annual

components, such as, gratuity, annual variable pay, annual

.

bonus, etc. In such situation, this Court has no hesitation to hold

that his monthly salary was Rs.11288/- per month.

41. The learned Tribunal, has wrongly taken the monthly

income of the deceased, as Rs.5664/-, on the basis of document

Ex.PW-6/B. PW-6/B, is a document, showing the salary of

deceased Sanjay Sharma, for the month of October, 2005.

Sanjay met with fatal accident on 23.10.2005 and this document

cannot be said to be the document depicting the actual salary of

deceased Sanjay Kumar during his lifetime.

42. The document Ex.PW-6/C, if seen, in the light of the

explanation, as given by PW-6, in his cross-examination, in

which, he has categorically stated that the CTC, includes

Provident Funds, Bonus, DA, House Rent, Travelling Allowance,

then, the findings of learned Tribunal, holding the salary of

Sanjay Sharma, as Rs.5664/- per month, do not stand in the

judicial scrutiny of this Court. As such, his monthly salary comes

to Rs.11288/-, as mentioned, in the documents Ex.PW-6/C.

43. The petitioners are parents of deceased Sanjay

Sharma. Deceased, admittedly, was a bachelor. The learned

Tribunal, has applied the multiplier of 11, considering the age of

petitioner No.1, Smt.Kamlesh Sharma, who is mother of

deceased Sanjay Sharma. The said approach of the learned

Tribunal is also not sustainable in the eyes of law, in view of the

.

decision of the Constitutional Bench of Hon'ble Supreme Court in

National Insurance Company Limited versus Pranay Sethi

& others, (2017) 16 Supreme Court Cases 680. Relevant

para-59.7 of the judgment is reproduced as under:-

"59.7. The age of the deceased should be

the basis for applying the multiplier."

44. As such, the learned Tribunal has wrongly considered

the age of petitioner No.1 as the basis to choose the multiplier.

45. Age of the deceased has been proved as 25 years, at

the time of his death, as such, multiplier of 18 would be just and

appropriate multiplier, to be applied, in this case.

46. Now, the next question, which arises for

determination of this Court is with regard to the deduction of the

amount on account of personal expenses, had deceased Sanjay

Sharma been alive. The learned Tribunal, has rightly deducted

the 50% amount, on account of personal expenses, had he been

alive.

47. Perusal of the award shows that the learned Tribunal

has not added any amount on account of future prospects of

Sanjay Sharma. Hon'ble Supreme Court, in Pranay Sethi's case

supra, has held that 50% of the actual salary to the income of

deceased towards future prospect are to be added.

.

48. In the document Ex.PW-6/C, nothing has been

mentioned with regard to the fact that he was not in permanent

job. As such, being guided by the decision of Hon'ble Supreme

Court in Pranay Sethi's case supra, the monthly income of the

deceased comes to Rs.11288+5644=16932/- per month.

his   monthly    contribution
                     r              to

Deducting 50% of the amount, on account of personal expenses,

towards his parents, comes to

Rs.8466/-.

49. Applying the multiplier of 18 on the amount of

contribution, the total loss of contribution comes to

Rs.8466x12x18=Rs.18,28,656/-.

50. The Hon'ble Supreme Court in Magma General

Insurance Company Limited versus Nanu Ram alias

Chuhru Ram and others, (2018) 18 Supreme Court Cases

130, has enhanced the scope of awarding compensation under

the head 'loss of consortium'. Paras 21 to 24 of the said

judgment are reproduced as under:-

"21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses `spousal consortium', `parental consortium', and `filial consortium'. The

right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual

.

relations with the deceased spouse:

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a

husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-peration, affection, and aid of the other in every conjugal relation".

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

21.3. Filial consortium is the right of the parents

to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child

during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

22. Consortium is a special prism reflecting

changing norms about the status and worth of actual relationships. Modern jurisdictions world- over have recognized that the value of a child's consortium far exceeds the economic value of the

compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head

of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However,

.

there was no clarity with respect to the principles

on which compensation could be awarded on loss of filial consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father

and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium.

51. Therefore, in view of Nanu Ram's case supra, each of

the claimants are held entitled for the consortium, which is

assessed at Rs.40,000/-, which comes to Rs.80,000/-

(Rs.40,000x2). The petitioners are also held entitled to a sum of

Rs.15,000/- under the head 'Funeral Expenses' and Rs.15,000/-,

under the head 'Loss of Estate'.

52. As such, the petitioners are held entitled to a sum of

Rs.18,28,656/- + Rs.80,000 + Rs.15,000/- + Rs.15,000/-=

Rs.19,38,656/-, along with interest @ 9% per annum, from the

date of filing of the claim petition till the realization of the whole

amount, from the respondents. However, the ultimate liability to

pay the amount is upon respondent No.3, being insurer of the

offending vehicle.

53. No other point has been urged or argued.

54. In view of the above discussion, FAO No.182 of 2011,

filed by the Insurance Company, is ordered to be dismissed,

.

whereas, FAO (MVA) No.168 of 2011, filed by the petitioners is

allowed by modifying the award passed by the learned Tribunal

and the amount of compensation is enhanced from Rs.4,09,000/-

to Rs.19,38,656/-, along with interest @ 9% per annum, from the

date of filing of the petition, till the realization of the whole

Company.

r to amount, with upto date interest, by respondent No.3-Insurance

55. However, keeping in view the facts and

circumstances of the present case, there shall be no order so as

to costs.

56. Memo of costs be prepared.

57. Pending application(s), if any, are also disposed of.

Record be sent back.

                                               (Virender Singh)
September 15, 2023 (ps)                              Judge