FAO/37/2016 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 37 of 2016 Decided on : 31.12.2024 United India Insurance Company Limited. …Appellant Versus Sh. Ankush Chauhan and others. …Respondents

Coram

Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the appellant : Mr. Vivek Negi, Advocate. For the respondents : Mr. Ajay Sharma, Advocate, for respondent No.1. Mr. Bhupender Pathania, Advocate, for respondent No.2. Ajay Mohan Goel, Judge (Oral) By way of this Appeal, the appellant-Insurance Company has assailed the Award passed by learned Motor Accidents Claims Tribunal (III), Shimla, H.P, in MAC Petiton No. 44-S/2 of 2012, titled Sh. Ankush Chauhan Vs. Smt. Seema Rani & Ors., decided on 17.10.2015, in terms whereof the claim petition filed by the claimant, was allowed by the learned 1Whether reporters of the local papers may be allowed to see the judgment?

Tribunal, in the following terms:- “As a result of my findings on all the issues above, I award a sum of Rs. 8,64,200/- (Rupees eight lacs, sixty four thousands and two hundred only) as compensation to the petitioner against the respondents with interest at the rate of 7.5% per annum from the date of petition, to the date of realization of the entire amount. This amount is inclusive of any amount, if any, awarded under Section 140 of the Motor Vehicles Act. Respondent Nos. 1 to 3 shall be vicariously liable to pay the amount of compensation to the petitioners. However, this amount of compensation shall be indemnified by respondent No. 3, United Insurance Company Limited. However, 50% of the award amount be released to the petitioner alongwith proportionate interest and 50% shall be invested under fixed deposit scheme in some Nationalized Bank for three years and he shall be entitled for periodical interest. Memo of costs be prepared and file, after due completion, be consigned to record room.”

2. Brief facts necessary for the adjudication of this appeal are that claimant Ankush Chauhan filed the claim petition on the ground that this mother Smt. Mridula Chauhan was on her way from Shimla to Jubal, in Tata Innova, bearing registration No. HP-01A-1444, which was owned by Smt. Seema Rani and driven by Sh. Sanjeev. The vehicle was insured with the present appellant-Insurance Company. When the vehicle reached Halai Dhar, Kotkhai at about 2:00 pm, it met with an accident on account of the rash and negligent driving of the driver, as a result whereof, the mother of the claimant lost her life. The deceased was looking after her Orchard and was earning a monthly income of Rs.50,000/- per month, by handling the management of the entire Orchard, which was about 20 bighas and was having about 600 Apple plants, from which annual return was of grossly Rs 8-10 lacs. The claimant claimed compensation to the tune of Rs 20,00,000/- with interest.

3. The driver and the owner of the vehicle denied the factum of accident having taken place on account of the rash and negligent driving of the vehicle and also took the stand that

the claim was exaggerated. It was further their stand that vehicle was duly insured and the accident had occurred due to the Act of God as the retaining wall of the road collapsed, on account of the ill weather.

4. The Insurance Company, inter alia, took the stand that the deceased was an unauthorized passenger, the driver was not possessing a valid and effective driving license to drive the vehicle and the vehicle was being driven in violation of the terms of the Insurance Policy.

5. On the basis of the pleadings of the parties, learned Tribunal framed the following issues:- “1) Whether Smt. Mridula Chauhan died as a result of rash and negligent deriving by respondent No. 2 on 16.02.2012 at Halai- dhar?...OPP.

If issue No. 1 is proved, to what amount. Of compensation petitioner the is entitled and from whom? ...OPP.

Whether petition is bad for non-joinder of heirs of Devinder Singh Thakur….OPR.

Whether respondent No. 2 was snot having valid and effective driving licence at the time of accident?.....OPR.

Whether Smt. travelling as Mridula Chauhan was gratuitous passenger? ….OPR

Relief.”

6. On the basis of the evidence led by the parties in support of their respective contentions, the issues so framed, were answered as under:- “Issue No.1 : Yes Issue No.2 : Yes Issue No.3 : No Issue No.4 : No Issue No.5 : No Issue No.6 : The petitioners are awarded Rs. 8,64,200/- as per operative portion of the award.”

7. The claim petition was allowed by awarding an amount of Rs 8,64,200/-, as already mentioned hereinabove.

8. Feeling aggrieved, the Insurance Company has preferred this appeal.

9. Learned counsel for the appellant has argued that besides the fact that the learned Tribunal has erred in not appreciating that the vehicle was being driven in violation of the terms and conditions of the policy and that the driver of the vehicle was not possessing a valid driving license, the Award is otherwise on the higher side as the enhancement to the income

of the deceased given by 30%, is not sustainable in the light of the subsequent judgments of the Hon’ble Supreme Court of India. He also argued that the compensation under the head of consortium and funeral expenses is also on the higher side and not in terms with the subsequent judgments passed by the Hon’ble Supreme Court of India. No other point was urged.

10. On the other hand, learned counsel for the claimant submitted that there is no infirmity in the Award, and in fact, the learned Tribunal has passed the Award strictly on the basis of the evidence on record. He submitted that all the issues have been decided by the learned Tribunal strictly on the basis of the material on record, which clearly prove that the appellant- Company was not able to prove before the learned Tribunal that there was any breach of the policy as alleged. Learned counsel for the claimant also submitted that the Award of compensation is reasonable and needs no interference.

11. Learned counsel for the owner of the vehicle has submitted that the vehicle was not being driven in violation of the terms and conditions of the policy as alleged and further, there are definite findings given by the learned Tribunal on

Issue No. 4 and as these findings are based on the evidence on record and there is no misreading of record on the part of the Tribunal while deciding this issue, the appeal being devoid of any merit, deserves dismissal.

12. I have heard learned counsel for the parties and also carefully gone through the Award under challenge as well as the record of the case.

13. A perusal of the issues demonstrates that learned Tribunal had framed an issue as to whether the driver of the vehicle was not having a valid and effective driving license at the time of accident. While answering this issue, learned Tribunal held that the Insurance Company could not lead any cogent and satisfactory evidence to demonstrate that the driver of the offending vehicle was not having a valid and effective driving license at the time of the accident or that the vehicle was being driven contrary to the provisions of the Motor Vehicles Act. It held that RW2 Ms. Shashi Saini deposed in the Court that though in terms of the report of the Investigator, the driver was not having a valid and effective driving license, however, she admitted that the investigation was conducted by

Mr. P S Chandel and she could not say as to whether the driving license of the driver was valid or not. Mr. P.S Chandel, who entered the witness box as PW3 and who had conducted the investigation, in his cross-examination admitted that the information which was received by him under the Right to Information Act, from the concerned office of Nalagarh, neither mentioned the name nor the address of the driver, holding the purported driving license, which according to the Insurance Company, not a valid and effective driving license. Learned Tribunal also took note of the fact that the owner of the vehicle had duly stated that she had verified the driving license and had also taken the driving test of the driver before engaging him. It was on the basis of said material on record that learned Tribunal held that the Insurance Company was not able to prove any infringement of the policy. During the course of the hearing of this case, learned counsel for the appellant on the basis of the record of the case could not demonstrate that these findings were perverse or not borne out from the record of the case. I have also carefully gone through the entire record including the statements of the witnesses and the findings that

have been returned by the learned Tribunal, discussed above, are strictly in consonance with the statement of the witnesses and the evidence on record. Therefore, this Court does not finds any merit in the contention of the appellant that the Tribunal erred in holding that the vehicle was not being driven in violation of the terms of the Insurance Policy or that the driver was not having a valid license to drive the vehicle.

14. As far as the issue of the grant of compensation by giving an enhancement by 30% to the assessed income of the deceased is concerned, learned Tribunal while calculating the limitation, took into consideration the fact that as the deceased was 42 years old and as her income was assessed to be Rs.6,500/- per month thereafter, after carrying out necessary deductions, it enhanced the same by 30% to assess the compensation.

15. Hon’ble Supreme Court of India in National Insurance Company Limited Vs. Pranay Sethi & Ors. (2017) 16 SCC 680, has been pleased to hold that in the case of the deceased, whose age was between 40 to 50 years, addition of 25% in the established income of the deceased towards future

prospects, would be reasonable.

16. In the light of this fact, this Court is of the considered view that the enhancement by 30% as granted by the learned Tribunal has to be reduced to 25% as has been held by the Hon’ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Ors. (supra) and to that extent the Award under challenge is modified by holding that the enhancement shall be that the compensation be calculated by grant of 25 enhancement in the established income of the deceased instead of 30%. Further, to do justice to the parties, the Award of Rs. 1,00,000/- for lost of consortium is reduced from Rs. 1,00,000/- to Rs.40,000/- and funeral expenses is also reduced from Rs.25,000/- to Rs.15,000/- as per Pranay Sethi’s case (supra).

17. This Court is interfering with the Award for the reason that the reasonable figures which have been worked out under the heads of loss of consortium and funeral expenses, so stand determined by the Hon’ble Supreme Court in Pranay Sethi’s case (supra). Rest of the Award passed by the learned Tribunal is not being interfered with and the appeal is partly allowed, in above terms.

18. Accordingly, the appeal stands disposed of, in terms, mentioned hereinabove. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

(Ajay Mohan Goel) Judge

December 31, 2024

(Shivank Thakur)