Punjab-Haryana High Court
Seena Devi And Another vs Sukhrani And Others on 13 March, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:036371
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-7196-2011 (O&M)
Date of Decision: March 13, 2024
Seena Devi and another
...Appellants
VERSUS
Sukhrani and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Vikram Singh, Advocate
for the appellants.
Ms.Ramneek Kaur Sandhu, Advocate
for respondents No.1 to 5.
Mr.Subhash Goyal and Mr.Vipul Sharma, Advocates
for respondent No.7.
****
ARCHANA PURI, J.
Appellants Seena Devi and Master Sonu, who are LRs of
deceased Kapoor Singh (owner of of Trala bearing registration No.HR-56-
6194), have filed the present appeal to assail the Award dated 10.06.2010,
whereby, the insurance company was exonerated from the liability to make
the payment of the amount of compensation, as granted to the claimants by
learned Motor Accident Claims Tribunal.
The facts germane, to be noticed, are as follows:-
That, on 07.06.2008, Shiv Narayan along with Jhuri and some other
labourers, was going on Trala bearing registration No.HR-56-6194, for
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unloading the cement bags at Silani gate, Jhajjar. Mangat Ram (driver of the
offending vehicle) was driving the same, in a zig-zag manner and at very
high speed. The deceased and other labourers were sitting on the cement
bags in the said Trala. When they reached Kacha Badli road, near Anar
Mandi, Jhajjar, the driver of the said Trala suddenly made a cut, as a result
whereof, Shiv Narayan fell on the road and the wheel of the Tralla crossed
over him. Shiv Narayan received grievous injuries and he was taken to Civil
Hospital, Jhajjar, from where, he was referred to PGIMS, Rohtak, where he
was declared dead. In the claim petition, it was also averred that the
deceased was 35 years old, at the time of accident. He was labourer and
earning Rs.6,000/- per month.
Kapoor Singh, owner of the offending vehicle had since died
and therefore, the claim petition was filed qua his widow and son, namely
Seena Devi and Master Sonu, who were impleaded as respondents 2(a) and
2(b) respectively. They had filed the separate written statement, whereby,
they asserted about false case to have been registered against the driver and
that the injured had sustained injuries, due to his own negligence. Even, the
insurance company (respondent No.3 before learned Tribunal) had filed
separate written statement, wherein, besides taking preliminary objections, it
was also asserted that the deceased was travelling in the offending vehicle as
an authorized/gratuitous passenger and also that driver of the offending
vehicle was not holding valid and effective driving licence and that there
was no valid and effective permit route as well as fitness certificate.
On appraisal of the evidence, brought on record, while holding
the accident to have taken place due to rash and negligent driving of the
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offending vehicle by its driver Mangat Ram, the compensation was worked
upon, while taking the earnings of the deceased as Rs.3600/- per month and
after making deduction of 1/4th, on account of personal expenses, the
earnings were taken as Rs.2700/- per month, the annual whereof, was
worked upon as Rs.32,400/-. To the said amount, considering the deceased
to be 35 years old, multiplier of '16' was applied and the amount of
compensation was worked upon as Rs.5,18,400/-. Besides the same, an
amount of Rs.5000/- each was granted towards, 'funeral expenses', 'love
and affection' and 'loss of estate'. Further, on the count of 'loss of
consortium', another amount of Rs.5000/- was granted to the widow of the
deceased. Thus, the total compensation, in this manner was worked upon as
Rs.5,38,400/-.
Furthermore, while considering the Tralla in question, to be a goods
vehicle and taking the deceased as un-authorized passenger and concluded to
be gratuitous passenger, it was held that insurance company is not liable to
make the payment of the aforesaid compensation. Also, it was concluded
that the route permit and fitness certificate had not been produced by the
owner, therefore, it was held that vehicle was not having valid and effective
route permit and fitness certificate and on this account also, the insurance
company was held not liable to make the payment of the compensation. As a
result thereof, the liability was fastened jointly and severally, only upon
driver i.e. Mangat Ram and LRs of deceased Kapoor Singh, owner of the
vehicle in question.
Feeling aggrieved by the aforesaid Award, the LRs of deceased-
owner of the offending vehicle, namely Seena Devi and Master Sonu have
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filed the present appeal.
Before proceeding further, it is pertinent to mention that along
with the appeal, an application bearing No.CM-30611-CII-2011, under
Order 41 Rule 27 CPC was also filed, at the instance of the appellants, for
seeking reception of National route permit, issued in the name of Kapoor
Singh, vis-a-vis, vehicle bearing registration No.HR-56-6194 i.e. offending
vehicle. The copy of the National route permit is Annexure A-1. Reply to
the aforesaid application was also filed.
At the very outset, it is pertinent to mention that in pursuance of
the filing of the National route permit, it was verified at the instance of the
insurance company. In fact, the insurance company has also produced on
record, copy of the verification report. Even, in the order dated 20.10.2015
passed by this Court, an observation was made by the Coordinate Bench that
counsel for the insurance company submits that on verification of the permit,
the same has been found to be valid, on the accident.
Perusal of Annexure A-1 reveals that National route permit is bearing
No.635 NP/07. It is issued in the name of Kapoor Singh (since deceased
owner) and relates to vehicle bearing registration No.HR-56-6194. It's
period of validity is from 18.05.2008 to 17.05.2009, which covers the date of
the accident also. The recitals of Annexures A-1, matches with the recitals
of the verification report, as furnished by the insurance company. In the
given circumstances, since the reception of this National permit is essential,
for the just decision of the case, without prejudice to the rights of the parties,
to be adjudicated on merits, the aforesaid application is allowed and the
National route permit is taken on record.
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Thus, it stands established that the offending vehicle was having
valid and effective route permit, at the relevant time of accident.
Now, proceeding further, it is pertinent to mention that the
offending vehicle is a Tralla, which is a goods carrier. It is categoric claim
of the claimants that deceased Shiv Narayan was sitting on the cement bags
and the Tralla, at the relevant time, was proceeding for unloading of the
bags, at Silani Gate, Jhajjar. In the transit, the accident had taken place and
the deceased fell down on the road, on account of rash and negligent driving
of the offending vehicle by its driver Mangat Ram and the same resulted into
sustaining of grievous injuries, on the person of Shiv Narayan, which proved
fatal.
In the light of the same, it was for the purpose of unloading of
cement bags, that the deceased was travelling in the vehicle in question and
therefore, cannot be treated to be gratuitous passenger. May it be so, as far as
insurance company is concerned, he would be termed to be a third party and
therefore, the insurance company would be liable to pay the compensation
and it cannot escape from its liability, while pleading that breach of terms of
the policy had taken place. Thus, in view of the aforesaid, the findings of
learned Tribunal, thereby, exonerating the insurance company, are hereby
set aside and therefore, the liability of the insurance company, is also held
to be joint and several with other respondents (before learned Tribunal) to
make the payment of the compensation to the claimants.
Besides the aforesaid, learned counsel for the appellants have
disputed the impugned Award, on the quantum of compensation. They
alleged that the income assessed by learned Tribunal is on higher side.
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Even, multiplier so applied, is on higher side and therefore, the
compensation, so worked upon, calls for reduction.
On the other hand, learned counsel for the claimants has
assiduously resisted the claim of the appellants. She submits that rather
learned Tribunal had taken the earnings of the deceased on lower side and
compensation worked upon is quite meagre, which calls for enhancement.
Besides the same, she also claimed enhancement under the conventional
heads.
Undisputedly, no appeal, as such, has been filed by the
claimants to seek enhancement. May it be so, but however, whole case opens
up before the Appellate Court, once the appeal has been filed, irrespective of
the person, who had filed the appeal.
In this regard, useful reference is made Sharanamma v. North
East Karnataka RTC, 2013 (11) SCC 517 , wherein, it was observed, as
herein given:-
"10. When an appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter shall be referred to as "the
Act"), before the High Court, the normal rules which apply to
appeals before the High Court are applicable to such an appeal
also. Even otherwise, it is well-settled position of law that when
an appeal is provided for, the whole case is open before the
appellate court and by necessary implication, it can exercise all
powers incidental thereto in order to exercise that power
effectively. A bare reading of Section 173 of the Act also
reflects that there is no curtailment or limitations on the powers
of the appellate court to consider the entire case on facts and
law."
In view of the aforesaid, appeal under Section 173 of the Motor
Vehicles Act and the applicability of Order 41 CPC, also not having been
excluded, the normal rules which apply to appeals before High Court, are
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applicable. More precise, provision to be considered is Order 41 Rule 33
CPC, which deals with power of Court of Appeal.
In Pannalal vs State of Bombay and others, AIR 1963 SC 1516 ,
with respect to Order 41 Rule 33, the Hon'ble Apex Court held that wide
wording of Order 41 Rule 33 CPC, was intended to empower the appellate
court, to make whatever order it thinks fit, not only as between the appellant
and the respondent, but also as between respondent and a respondent. It
empowers the appellate court, not only to give or refuse relief to the
appellant, by allowing or dismissing the appeal, but also to give such other
relief to any of the respondent as "the case may require".
Furthermore, the Hon'ble Apex Court in Chaya vs. Bapusaheb,
1994(2) SCC 41, held that this provision i.e. Order 41 Rule 33 C.P.C, is
based on a salutary principle that the appellate court should have the power
to do complete justice between the parties. The rule confers a wide
discretionary power on the appellate court to pass such decree or order as
ought to have been passed or as the case may require, notwithstanding the
fact that the appeal is only with regard to a part of the decree or that the
party in whose favour the power is proposed to be exercised, has not filed
any appeal or cross-objection.
In this backdrop, for doing justice and to award just
compensation, provisions of Order 41 Rule 33 CPC are to be invoked.
In the given circumstances, the submissions, so made by
learned counsel for the claimants for seeking enhancement of the
compensation, should be taken into consideration, as the case re-opens.
In the light of the aforesaid, it is pertinent to mention that the
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deceased was asserted to be working as a labourer and earnings Rs.6000/-
per month. However, learned Tribunal had considered the earnings of the
deceased to be Rs.3,600/- per month, which was at par with the minimum
wages, prevalent at the relevant time in the State of Haryana. However, to
this amount, considering the age of the deceased to be 35 years, addition of
40% ought to be made, on the count of 'future prospects', as per National
Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR
(Civil) 1009. Making it to be so, the income of the deceased is worked upon
as Rs.3600+1440(40%)=Rs.5,040/-.
Considering the number of dependents of the deceased, as per
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR
(Civil) 77, the deduction to the extent of 1/4th has to be made, on the count
of 'personal expenses'. Thus, making this deduction, the loss of dependency
comes to be Rs.5040-1260(1/4th)=Rs.3780/-, annual whereof, comes to be
Rs.45,360/-.
Considering the age of the deceased, as per Sarla Verma's case,
appropriate and suitable multiplier, to be applied is '15' and by applying the
same, the loss of dependency, works out to be Rs.45360x15=Rs.6,80,400/-.
Besides the aforesaid, under the conventional heads, as per
Pranay Sethi's case (supra), the compensation ought to be paid, on the count
of 'loss of consortium', 'loss of estate' and 'funeral expenses'. As per
'Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram
and others, 2018 (18) SCC 130', whosoever are the dependents of the
deceased/claimants, are entitled to 'parental', 'spousal' or 'filial'
consortium, as required.
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In view of the same, appellants-claimants are entitled to
compensation, on the aforesaid counts. However, taking into consideration
the enhancement as provided in Pranay Sethi's case (supra), to the extent of
10%, after every three years of passing of the judgment, the compensation
payable, on the count of 'loss of consortium' is to the extent of Rs.48,400/-,
to each of the claimants and on the similar pattern, on the counts of 'loss of
estate' and 'funeral expenses', the compensation payable, comes to be
Rs.18,150/-, on each count.
Considering the same, the compensation payable to claimants,
on account of death of Shiv Narayan, is re-computed, as herein given:-
Loss of dependency : Rs.6,80,400/-
Loss of consortium : Rs.1,93,600/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.9,10,300/-
As such, the enhanced compensation, after the deduction of
compensation awarded by the Tribunal comes to be Rs.9,10,300-
5,38,400=Rs.3,71,900/-. Out of the enhanced compensation, respondents-
claimants No.2 to 5, are held entitled to Rs.50,000/- each and respondent-
claimant No.1 is held entitled to residue amount of Rs.1,71,900/-. On the
enhanced amount of the compensation i.e. Rs.3,71,900/-, the appellants-
claimants shall be entitled to the interest, at the rate of 6% per annum, from
the date of filing of the present appeal, till realization of the enhanced
amount of compensation. As already observed aforesaid, the driver, owner
and insurance company are held liable jointly and severally, to pay the
compensation to the claimants.
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In view of the aforesaid terms, the present appeal stands
allowed, with the modification of enhancement of compensation.
The pending civil misc. applications, if any, stand disposed of.
March 13, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
