Punjab-Haryana High Court
Jaswinder Kaur And Others vs Sukhraj Singh And Others on 23 December, 2022
FAO-1501-2017(O&M) &
FAO-541-2017(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) FAO-1501-2017(O&M)
Jaswinder Kaur and others
...Appellants
Versus
Sukhraj Singh and others
...Respondents
(2) FAO-541-2017(O&M)
New India Assurance Company Ltd.
...Appellant
Versus
Jaswinder Kaur and others
...Respondents
Date of Decision:-23.12.2022
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.K.B. Raheja, Advocate
for the appellants in FAO-1501-2017 and
for respondents No.1 to 4 in FAO-541-2017.
Mr.Rahul Pathania, Advocate
for the appellant in FAO-541-2017.
Mr.Vinod Gupta, Advocate
for the respondent No.3 in FAO-1501-2017.
****
H.S. MADAAN, J.
1. By this order, I shall dispose of two FAOs i.e. FAO-1501-
2017(O&M) filed on behalf of appellants Smt.Jaswinder Kaur and others
and FAO-541-2017(O&M) filed on behalf of appellant - New India
Assurance Company Ltd., which have arisen out of the same award.
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2. Briefly stated, facts of the case are that on 3.4.2015 Sukhraj
Singh deceased son of Darshan Singh along with his uncle Bhupinder
Singh @ Bhinder had gone to Engineering College, Ferozeshah to meet
Balwinder Singh, a cousin brother of Bhupinder Singh on separate
motorcycles; at about 9:00 a.m., deceased Sukhraj Singh riding his
motorcycle bearing registration No.PB-05-W/2477 came on the main
Moga Ferozepur GT Road and was proceeding towards Bus Stand,
Ferozeshah and in the meanwhile, a car Make Skoda bearing Temporary
No. CH-40-(T)3888 (hereinafter referred to as the offending car) was
coming from Ferozepur side at a very high speed without blowing any
horn being driven in a very rash and negligent manner by respondent No.1
Sukhraj Singh son of Jarnail Singh and struck against the motorcycle of
the deceased, due to the accident, the deceased Sukhraj Singh fell down
and suffered multiple injuries on his body; Bhupinder Singh @ Bhinder,
who was present there arranged a vehicle and removed Sukhraj Singh son
of Darshan Singh to the Civil Hospital, Ferozeshah, however keeping in
view his serious condition, after giving first aid, he was referred to GGS
Medical College and Hospital, Faridkot, where he succumbed to the
injuries on that very day at about 1.05 P.M. Postmortem examination was
carried out on the dead body of the deceased.
FIR No.49 dated 3.4.2015 under section 304-A of IPC was registered
against respondent No.1 Sukhraj Singh son of Jarnail Singh with Police
Station Ghall Khurd.
3. The legal representatives of the deceased, namely, Jaswinder
Kaur aged about 35 years - wife, minor daughters - Kirandeep Kaur and
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FAO-541-2017(O&M) -3-
Beant Kaur aged 17 years and 15 years, respectively and minor son
Akashdeep Singh aged about 14 years had brought a claim petition under
Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as
the Act) against the respondents i.e. Sukhraj Singh son of Jarnail Singh -
driver, Jatinder Singh - owner and New India Assurance Company Ltd. -
insurer of the Skoda car in question before Motor Accident Claims
Tribunal, Ferozepur (hereinafter referred to as the Tribunal). The mother
of the deceased, namely, Kanwaljit Kaur was also arrayed as respondent
No.4 in the said petition.
4. According to the claimants the deceased was working as
Mason and was owner of 1 ½ killas of land, where he used to sow
vegetables and thereafter would take the vegetables to markets for sale, in
that way, he was earning an amount of Rs.28,000/- per month and the
claimants were dependent upon the earnings of the deceased.
5. On getting notice, the respondents put in appearance.
Respondent No.1 filed written reply taking various objections that the
claim petition was not maintainable as no accident had taken place with
the Skoda car being driven by respondent No.1 belonging to respondent
No.2; as a matter of fact respondent No.1 was not present at the spot at the
time of accident and on 3.4.2015 at about 8.00 a.m., the car of the
answering respondent struck against a tree opposite main gate of
Engineering college, Ferozeshah and thereafter at about 9.00 A.M., the
vehicle of the deceased had met with an accident with unidentified
another vehicle, in which the deceased had died and a wrong criminal case
was got registered against the answering respondent to extort money. The
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answering respondent had submitted an application before Senior
Superintendent of Police, Ferozepur on 13.04.2015, which was marked to
SHO PS Ghall Khurd for inquiry; the answering respondent was Ex-
Sarpanch of village Khai Pheme Ke, Tehsil and District Ferozepur as well
as Vice President of Congress Party of District Ferozepur; a false FIR was
been got registered against him due to political rivalry at the instance of
the then ruling party MLA. The answering respondent No.1 denied any
liability to pay compensation to t he claimants.
6. The separate written statement filed on behalf of respondent
No.2 is almost on the similar lines as that of respondent No.1.
7. Whereas respondent No.3 insurance company in the written
reply filed by it had raised preliminary objections that claim petition was
false, frivolous and respondent No.1 driver of the car then having
temporary No. CH-40(T)-3883 now RC No.PB05AB-2100, was not
holding a valid and effective driving licence at the time of alleged
accident and as such no liability could be fastened on answering
respondent; the claim petition had been filed by the claimants in collusion
with the owner and driver of the offending vehicle in order to extort
money from the answering respondent. It was further the case of the
respondent No.3 that the owner of the car had committed breach of the
terms and conditions of the insurance policy since he had neither given
the information of accident to the answering respondent nor submitted
documents as required under Section 134-C of the Motor Vehicles Act;
owner of the car was plying it in violation of Motor Vehicles Act and
Rules because after lapse of statutory period, the registration certificate of
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the car was not got issued from the transport authorities, therefore the
owner could not bring the car on road, it being an unregistered vehicle.
Refuting the remaining assertions, such respondent prayed for dismissal
of the claim petition.
8. Respondent No.4 in the written reply filed by her conceded
the claim of the claimants.
9. The claimants filed the rejoinder reiterating their averments
as taken by them in the petition and denied the averments as taken
by the respondents in the written statements.
10. From the pleadings of the parties, following issues were
framed:
1. Whether Sukhraj Singh son of Darshan Singh had died on account
of injuries sustained by him in a motor vehicular accident which
took place on 03.04.2015 at about 9:00 a.m., in the area of opposite
Engineering College, Ferozeshah due to rash and negligent driving
of the car bearing temporary No.CH-34-(T)-3888 and now
registration NO.PB-05-AB/211 by respondent No.1? OPP.
2. Whether the claimants are entitled to compensation, if so to what
extent and from whom? OPP.
3. Whether the respondent No.1 was not having valid and effective
driving licence at the time of accident? OPR-3.
4. Relief.
11. Both the parties were given opportunities to lead evidence.
12. During the course of evidence of claimants, claimant No.1
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Jaswinder Kaur got her statement recorded as PW1 and vide her affidavit
Ex.PA, she reiterated on oath the case of the claimants as given in the
claim petition. She proved in evidence copy of Adhar Card as Ex.P1,
certified copy of order dated 5.6.2015 as Ex.P2, jamabandi for the year
2011-2012 as Ex.P3 and postmortem report as Ex.P4.
The next witnesses examined by the claimants was PW2
Bhupinder Singh, who through his affidavit Ex.PB provided the eye-
witness account of the incident deposing in line with the case of claimants
as given in the claim petition.
With that the evidence of the claimants got concluded.
13. In rebuttal, respondent No.1 Sukhraj Singh appeared as RW1
and through his affidavit Ex.RA he deposed as per his case as given in the
written reply. He proved copy of his driving licence as Ex.R1.
RW2 Jatinder Singh owner of the car, who is respondent
No.2 in the claim petition through his affidavit Ex.RB deposed as per his
version given in his written reply.
RW3 Jasbir Singh, Nodal Officer, Idea Cellular, C-105,
Phase VII, Industrial Area, Mohali had brought the summoned call detail
with tower location record of Mobile No.98787 71002 and 98557 64820
providing copy of details of mobile No. 98557 64820 for 3.4.2005 as
Ex.P4 and the details of tower location as Ex.P5. He also proved copy of
call details of mobile No. 98787 71002 for 3.4.2015 as Ex.R6 and tower
location as Ex.R7. He placed on record photocopy of the application form
in respect of mobile No.98787 71002 stating that the connection was
issued in the name of Sukhraj Singh son of Jarnail Singh, resident of
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village Khai, Tehsil and District Ferozepur. He proved various other
documents.
RW4 Shiv Kumar, Data Entry Operator, DTO Office,
Ferozepur identified the signatures of Daljit Singh, Clerk on Ex.R16, who
is said to have been transferred to DTO Office, Bathinda.
14. After hearing arguments, the Tribunal vide award dated
28.10.2016 granted compensation of Rs.10,14,000/- to the claimants with
interest @ 9% per annum from the date of filing of the claim petition till
the date of passing of award, payable by respondents No.1 to 3 jointly and
severally. The manner in which the compensation is to be apportioned is
also given in the award.
15. The appellants/petitioners/claimants were dissatisfied with
the amount of compensation awarded to them by the Tribunal, whereas
respondent insurance company was not happy with the award. They have
approached this Court by way of filing separate appeals.
16. Notices of the appeals were issued to the respondents, who
put in appearance through counsel.
17. Since both the appeals have arisen out of the same award,
those are being taken up together for disposal.
18. I have heard learned counsel for the parties besides going
through the record.
19. A perusal of the award goes to show that the Tribunal had
taken the age of deceased to be 35 years and his monthly income to be
Rs.6,000/- per month considering the wages payable to casual labourer at
that time.
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20. I find that the income of the deceased taken by the Tribunal
at the rate of Rs.6,000/- per month is certainly on lower side. As per the
case of the claimants, the deceased was working as a meson and owned
about 1 ½ killas of land, where he was sowing vegetables, which he was
selling. Though the Tribunal might not have taken the income of the
deceased to be Rs.28,000/- per month in absence of any documentary
evidence but then taking his income as Rs.6,000/- per month is certainly
on somewhat lower side. Considering the facts and circumstances of the
case, in my view it would be proper and appropriate to take monthly
income of the deceased to be Rs.10,000/- per month.
21. Taking into view his age to be 35 years, in view of the
judgment National Insurance Company Limited Versus Pranay Sethi
and Ors., 2017(4) RCR(Civil)1009, an addition of 40% is to be made
towards future prospects. Doing that the monthly income of the deceased
is taken as Rs.10,000 + 4,000 = Rs.14,000/-.
22. The number of dependent family members in this case comes
out to be five, i.e. four of the claimants and 5th being mother of the
deceased, who is arrayed as proforma respondent No.4. Therefore, in
terms of the ratio of authority Smt.Sarla Verma and others Versus Delhi
Transport Corporation and Anr., 2009(3) RCR(Civil)77 where the
number of dependent family members are 4 to 6, deduction towards self-
expenses is to be taken as 1/4th. Doing that the dependency of claimants
comes out to Rs.10500/- (14000 - 3500)/- per month, annual dependency
comes out to Rs. 10500 x 12 = Rs.1,26,000/-.
23. The Tribunal has used multiplier of 16, which keeping in
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view the age of the deceased has been properly used. Doing that the
compensation payable comes out to Rs. 1,26,000 x 16 = 20,16,000/-.
24. Under the conventional heads, the Tribunal has awarded
Rs.25,000/- towards funeral expenses and Rs.1,00,000/ to petitioner No.1
Jaswinder Kaur, who is widow of deceased as consortium amount.
25. However, the legal position in that regard has been clarified
in subsequent judgment by the Apex Court i.e. Magma General
Insurance Co.Ltd. Versus Nanu Ram alias Chuhru Ram & Ors.,
2018(4) RCR(Civil) 333, wherein it was observed that amount of
Rs.40,000/- each is to be awarded to every claimant for filial consortium
and in view of judgment National Insurance Company Limited Versus
Pranay Sethi and Ors.(supra), which provides that while working out the
compensation payable under the conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, amount of Rs.15,000,
Rs.40,000/- and Rs.15,000/-, respectively should be awarded.
26. Doing that the compensation payable is worked out to be
Rs.22,46,000/-
(20,16,000+40000+40000+40000+40000+40000+15000+15000), payable
by respondents No.1 to 3 jointly and severally.
27. In this way, the enhanced amount comes out to
Rs.12,32,000/- ( 22,46,000 - 10,14,000).
28. The claimants would be entitled to get interest @ 7.5% per
annum from the date of filing of the appeal till actual realization on the
enhanced amount of Rs.12,32,000/-.
29. The Tribunal has apportioned the compensation between all
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the claimants in equal shares. However, considering the fact that claimant
No.1 Jaswinder Kaur has been rendered as a widow on accounting of
loosing her husband in the motor vehicular accident and would be
required to run the household affairs managing food, clothing for herself
and her children and education for her children, she deserves to be granted
more share in the compensation. Accordingly her share is enhanced to
40% of the compensation amount, whereas remaining claimants No.2 to 4
would get 20% of the compensation amount each. They are minors,
therefore their shares be deposited in the form of FDR with some
nationalized bank for the period till they attained majority.
30. With such modification, the FAO-1501-2017 is allowed
partly with costs.
31. The stand of the appellant insurance company in FAO-541-
2017 is that at the time of accident, the car in question was having
temporary registration number and after lapse of statutory period, the
regular registration number of the car was not got issued within time, as
such the car could not have been taken on road and if it was so done by
the owner - insured, then he himself is liable and insurance company has
no liability to pay any compensation. In support of that contention,
learned counsel for the appellant insurance company has referred to
judgment Narinder Singh Versus New India Assurance Co. Ltd. and
others, 2014 ACJ 2421 wherein it was observed that using a vehicle on
public road without registration is an offence punishable under Section
192 and a fundamental breach of terms and conditions of the policy and
the owner is not entitled to be reimbursed by the insurance company for
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damage of the vehicle in accident.
32. This judgment does not help the appellant - insurance
company in any manner because that related to own damage claim and not
the claim payable to a third party. It was observed in the judgment in
question that when a vehicle is being used without registration and it
meets with an accident, the insurance company is not liable to pay
compensation. But liability of the insurance company towards third party
claim remains and the insurance company can certainly not repudiate
claim for that very reason.
33. Learned counsel for the respondents/claimants has referred to
few judgments in support of his contentions that the insurance company is
not absolved of its liability under these circumstances. The first judgment
referred to by him was National Insurance Company Ltd. Versus Jaspal
Kaur @ Jaspreet Kaur @ Jass and others, FAO No.2749-2016(O&M)
decided on 27.8.2016 by this Court, wherein it was observed that in terms
of Section 149 of the Motor Vehicles Act, 1988 non registration of the
vehicle is not one of the defences enumerated under Section 149(2) of the
Act and that non-registration of the vehicle does not amount to breach of
terms of the insurance policy.
Counsel for the claimants has further referred to judgment
Joby Thomas and others Versus Annamma Augustine and Ors., MACA
No.3041-2009 decided on 17.3.2010 by Kerala High Court, wherein it
was observed that mere non registration of the motor vehicle does not
amount to a violation of conditions of policy under Section 149 of the Act
and it does not absolve the insurance company of its liability.
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He also pressed in service National Insurance Company
Ltd. Versus Kamal Kishore and others, FAO(MVA) No.564 of 2018
decided on 5.7.2019 by Himachal Pradesh High Court, wherein it was
observed that on the ground of lapse of temporary registration of vehicle,
the insurance company cannot be exonerated from liability in case of third
party risk.
34. Therefore, the verdict given by the Tribunal in that regard is
correct and no interference is called for. The insurance company can
certainly be not absolved of its liability to pay compensation to claimants,
who are third party for any alleged violation of terms and conditions.
35. FAO-541-2017 filed on behalf of the insurance company
stands dismissed.
23.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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