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7. The insurer has assailed the findings of learned
Tribunal. Exception has been taken to the findings of learned
tribunal in so far as the deceased was held to be occupant of
vehicle in the capacity of owner of goods. The quantum of
compensation awarded to the claimants has also been
challenged. It has been contended that the learned Tribunal
has assessed the monthly income of deceased Sh. Zakir
Hussain at Rs. 10,000/- without any evidence to that effect.
According to the insurer, learned Tribunal should have been
guided by the minimum wages payable under the Minimum
Wages Act at the relevant time. Further, the award of loss of
future prospects @ 50% has also been assailed as being
excessive. In addition, assessment of compensation under
the heads 'loss of estate', 'loss of love and affection' and 'loss
of consortium @ Rs. 1, 00,000/- each' has been said to be not
in conformity with the settled legal position. To similar effect,
the objection has been raised as to grant of Rs. 50,000/- as
compensation towards burial charges.
8. The insurer has also raised a new ground of
appeal that there was no subsisting contract of insurance
between the insurer and owner. The owner had not paid any
premium. Admittedly such a plea had not been raised by the
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insurer before learned tribunal. In order to prepare factual
foundation in pleadings and also to prove their contention,
the insurer has filed applications under Order 6 Rule 17 of
the Code of Civil Procedure, (for short 'CPC'), seeking leave to
amend the reply and another application under Order 41 Rule
27 of the Code, to lead additional evidence.
9. Noticeably, for amendment of reply, two
separate applications have been filed by insurer. One of the
applications has been numbered as CMP No. 1366/2019
and the other as CMP No. 5587 of 2018. CMP No. 1366 of
2019 is prior in time having been filed on 22.03.2017,
whereas CMP No. 5587 of 2018 was filed on 23.05.2018.
Thus, only subsequent application i.e. CMP 5587 of 2018
will be considered and the prior application CMP 1366 of
2019 having being rendered infructuous after filing of
subsequent application on same cause shall stand disposed
of as such.
10. The other application CMP No. 1367 of 2019
has been filed by the insurer under Order 41 Rule 27 of
CPC seeking leave to lead additional evidence. Yet, another
application has been filed by insurer as CMP No. 4120 of
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2019 seeking leave to file additional documents as a
supplement to the application CMP No. 1367 of 2019.
11. All the above applications are being taken for
decision alongwith the main appeal in order to avoid
repetition of narration of facts.
12. I have heard learned counsel for the parties and
have also gone through the record of the case carefully.
13. Learned Senior Counsel for insurer has
vehemently contended that after the passing of award by
learned Tribunal, the matter was got investigated by the
insurer and it was found that there was no policy of
insurance qua vehicle No. DL-1GC-2621. As per him, the
owner had not paid any premium to the insurer for the said
vehicle. He also submitted that on further verifications, it
has transpired that the policy of insurance allegedly
claimed by the owner to be of vehicle No. DL-1GC-2621,
was in fact issued for some other vehicle owned by one Mr.
P. Nagraj.
14. In order to consider the insurer's prayers for
amendment of reply and to lead additional evidence it will
be necessary to revert to the records of learned Tribunal.
During the entire proceedings before the learned Tribunal
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the insurer had not denied the existence of insurance
policy in respect of vehicle No. DL-1GC-2621, a copy of
which was tendered by the owner in his evidence. Hence,
the Tribunal had rightly not framed any issue as to the
existence or validly of policy of insurance. Accordingly, the
award came to be passed whereby the insurer has been
saddled with liability to satisfy the award.
15. The amendment sought by the insurer by way
of CMP No. 5587 of 2018 is as under:-
"1 (a) That there is no contract of insurance
between the respondent No.3 and respondent
No.1 Kamal Kumar as the offending vehicle
was at no point of time insured with the
respondent No.3.
"That the contents of para-15 of the petition
are wrong and hence denied vehemently.
There is no contract of insurance between the
respondent No.3 and respondent No. 1 Kumar
Kamal as the offending vehicle was at no
point of time insured with the respondent No.
3."
16. It is alleged by the insurer that it was not aware
about the correct factual position before passing of award
and thus, the amendment was being sought at the very
first opportunity after acquiring the knowledge of alleged
fraud being committed by the owner.
17. The proviso to Order 6 Rule 17 of CPC,
prohibits the amendment to the pleadings, in case, such
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amendment was sought after commencement of trial
unless the party seeking amendment satisfies the Court
that he could not seek such amendment before
commencement of trial despite due diligence.
18. In the case at hand, the party seeking
amendment is a public sector undertaking having benefit
of being advised on each and every technical or legal
aspect of the matter. In application for amendment, it has
been stated that despite due diligence, the insurer had not
been able to take the defence as is now sought to be taken.
19. The inability of a party to seek amendment in
pleading before commencement of trial should be proved
despite exercise of due diligence. The term "due diligence"
in above context cannot be construed to be mere formal
expression of words. It has to be established by the party
seeking amendment that meaningfully due diligence had
been exercised by it. However, in the case at hand the
reply was filed on behalf of the insurer before learned
Tribunal after verification of its contents by the Senior
Divisional Manager, Divisional Office, Shimla. Now as per
the new stand of insurer the contents of reply filed by it
before learned Tribunal were factually incorrect, meaning
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thereby that the said senior officer had not taken due care
to verify the facts before signing and verifying the contents
of the reply. Hence, the exercise of due diligence at the end
of insurer was seemingly missing. That being so, the
insurer does not qualify the test prescribed by proviso to
Order 6 Rule 17 of the CPC.
20. The insurer has claimed that it has got the
matter investigated through an investigator. An FIR has
also been registered and the investigation is going on.
Thus, there is no indefeasible or conclusive proof that the
stand now taken by insurer is correct and the one earlier
taken was not so. The insurer can get its score settled with
the owner by way of independent proceedings and in case
the insurer succeeds in proving its case it may claim the
amount from the owner in accordance with law. The
insurer will have liberty to make such claim in accordance
with law.
21. Even otherwise, the fact sought to be
incorporated by way of amendment will lead to a de-novo
trial as to questions of fact. The claim of the claimants
cannot be defeated. It can be noticed that the accident had
taken place on 01.10.2014. The claimants have already
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been fighting the legal battle for more than ten years. The
dispute, if any, as is alleged to have arisen between the
insurer and the owner cannot be used to deny the
claimants their dues keeping in view the beneficial nature
of legislation. In this view of the matter also, the
amendment sought to be made cannot be said to be
necessary for adjudication of real matter in controversy i.e.
the entitlement of claimants to compensation.
22. Thus, the application for amendment of reply
filed by the insurer is dismissed.
23. The insurer by way of additional evidence
intends to prove the fact that the owner had allegedly
committed cheating and fraud and also to prove the fact
that the policy which is claimed to have been issued for
vehicle No. DL-1GC-2621 by owner, in fact, was issued for
some other vehicle belonging to Mr. P. Nagraj.
24. Since, there is no such pleadings of insurer on
record, the proof of facts not pleaded cannot be allowed.
The amendment as sought by the insurer has already been
declined.
25. The insurer has not been able to satisfy the
requirements of order 41 rule 27 of the Code. The absence
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of due diligence at the end of insurer already has been
found to be missing. Keeping in view the nature of instant
proceedings as also the right of insurer to seek its claims,
if any, from the owner separately, this court does not find
the evidence sought to be produced by insurer necessary
for adjudication of this appeal.
26. Accordingly, CMPs No. 1367/2019 and 4120 of
2019 are also dismissed.
27. As regards the assessment of income of
deceased the evidence on record sufficiently suggests that
the occupation of deceased was that of a merchant dealing
with the sale of apple crop in the market. The learned
Tribunal has assessed the income of deceased at Rs.
10,000/- per month.
28. At the time of hearing of instant appeal, learned
Senior Counsel for the appellant submitted that the
learned Tribunal should have made the assessment of
income of deceased on the basis of minimum wages
payable during the relevant period as the income of the
deceased was not documented anywhere. He has placed on
record notification dated 24.05.2014 issued by the
Government of H.P., detailing the minimum wages
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applicable to the different categories of workmen in the
year 2014. Learned counsel for the appellant placed
reliance on the judgment passed by Hon'ble Supreme
Court on 17.10.2022 in Civil Appeal No. 7593 of 2022,
titled as Manusha Sreekumar and Ors. Vs. The United
India Insurance Co. Ltd. (2022) 17 SCC 321 and
judgment dated 07.02.2025, passed by Hon'ble 'Supreme
Court in Civil Appeal No. 2209 of 2025, titled as
Jitendra Vs. Sadiya and others, 2025 SCC Online SC
261 to assert that when the definite proof as to income of a
person is lacking the Tribunal can be guided by the rates
of wages prescribed under Minimum Wages Act.
29. The proposition that in absence of documented
income of a victim of motor vehicle accident, the wages
fixed under Minimum Wages Act and some guess work can
act as yardstick to determine such income, is not
disputed, however, its application depends on facts of
each case. In the case at hand, the evidence was led that
the deceased was earning around Rs. 15,000/- per month.
The wife of the deceased had also made deposition to such
effect. There cannot be any better person than wife to
know about the income of her husband, as she runs the
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household from the money provided to her by the
husband. In the instant case, the deceased had not less
than six dependents and it cannot be presumed that he
could run his household with a lesser amount than
Rs. 10,000/- per month.
30. Even from the perusal of the minimum wages of
different categories as shown in the notification provided
by learned counsel for insurer, it is found that the highest
wages per day were payable to the categories like
Instructors was @ Rs. 350/- per day, to the Junior
Engineers and Draftsman etc.@ Rs. 380 per day and to
Hydrogeologist @ Rs. 440 per day. Though, the income of
the deceased could not be compared with the categories of
the workers detailed in the aforesaid notification, yet in
view of the established fact that the deceased was working
as merchant, his category definitely could not be equated
with the unskilled or semi-skilled workers. In case certain
categories of workers were being paid minimum wages @
Rs. 350/- or Rs. 380/- per day, the assessment of Rs.
10,000/- per month in the case of deceased Sh. Zakir
Hussain cannot be said to be unreasonable. Another fact
that cannot be lost sight of while making a guess work in
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such like matter is that a merchant or business man in
ordinary circumstances have to work for long hours during
the day unlike the workmen who are entitled to fixed
minimum wages for specified number of hours. The
workmen also become entitled to extra remuneration for
working overtime.
31. Thus, there is no material on which this Court
may take a view different than the view taken by learned
Tribunal with respect to the monthly earning of deceased.
32. The other contention of the insurer that the
Tribunal has wrongly awarded loss of future prospects @
50% needs to be upheld. Admittedly, the deceased was not
employed in any permanent establishment, therefore, his
loss of future prospects were to be assessed @ 40% in
terms of the judgment passed by Hon'ble Supreme Court
in National Insurance Company Ltd. Vs. Pranay Sethi,
(2017) 16 SCC 680.
33. Further, the award of amounts under the
heads loss of estate, loss of love and affection, loss of
consortium @ Rs. 1, 00,000/- each also needs to be
interfered with in order to bring these in terms of
judgment passed in Pranay Sethi's (supra) and Magma
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General Insurance Company Limited Vs. Nanu
Ram alias Chuhru Ram and others, (2018) 18 SCC
130.
34. Thus, the compensation payable to the
claimants can be quantified as under: -
Loss of dependency
Monthly Income Rs.10,000/-
Add 40% (Rs. 4000/-) towards
Loss of future prospects
Rs.10,000+Rs.4000=Rs 14,000
Less 1/4th on personal expenses
Rs.14,000- Rs. 3500=Rs 10,500
Total loss of dependency
Rs.10500X12X15=Rs18,90,000/-
Loss of Consortium:Rs.40,000X6=Rs. 2,40,000/-
Loss of estate Rs. 15,000/-
Burial Charges Rs. 15,000/-
Total Rs. 21,60,000/-
35. The claimants shall also be entitled to interest
@ 7.5% per annum on the entire award amount from the
date of petition till actual realization.
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36. The insurer has not been able to prove on
record that the deceased was travelling as gratuitous
passenger in the vehicle.
37. In light of above discussion, the appeal is
partly accepted and the award dated 27.10.2016, passed
by learned Motor Accident Claims Tribunal, Shimla, H.P.
in MAC No. 5-S/2 of 2015, is modified to the extent, as
detailed above. The apportionment of compensation
amount between the claimants shall be in the same ratio
as ordered by learned Tribunal.
38. The appeal is, accordingly disposed of, so also
the pending miscellaneous application(s), if any.
39. By way of this petition, the insurer has assailed
the order dated 20.03.2018, passed by learned Motor
Accident Claims Tribunal-II, Shimla, in MACP No. 17-S/2
of 2015, whereby the application of the insurer to amend
the reply has been dismissed.
40. For adjudication of this petition, it is relevant
to notice that the cause for filing MAC petition No. 17-S/2
of 2015 has arisen from the same accident involving same
vehicle as is the subject matter of FAO No. 37 of 2019
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decided hereinabove Obviously, the insurer is common in
both the cases.
41. The reasons, on which the application (CMP No.
5587 of 2018) for amendment of reply had been filed by
the insurer in FAO No. 37 of 2019, the same reasons
weighed with insurer for filing application for amendment
of reply in MACP No. 17-S/2 of 2015. The only difference is
that in FAO No. 37 of 2019, the application was moved at
appellate stage and in MACP No. 17-S/2 of 2015, the
application was moved before the decision by learned
Motor Accident Claims Tribunal. However, the result
cannot be different. The petition for amending the reply
deserves to be dismissed in MACP No. 17-S/2 of 2015 for
the same reasons as have been assigned by this Court for
dismissing the application CMP No. 5587 of 2018 in FAO
No. 37 of 2019. The said reasons will apply mutatis
mutandis for dismissal of the instant petition. In addition
to the reasons for which the application of the insurer for
amendment of reply has been dismissed by learned Motor
Accident Claims Tribunal-II, in MACP No. 17-S/2 of 2015,
the reasons assigned by this Court for dismissing CMP
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No. 5587 of 2018 in FAO No. 37 of 2019 shall also be read
into the order.
42. The petition, is accordingly, disposed of, so
also the pending miscellaneous application(s), if any.
(Satyen Vaidya)
1st April, 2025 Judge
(sushma)
