FAO/89/2016 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No.89 of 2016 &

FAO No.120 of 2016

Decided on: 31.12.2024 FAO No.89 of 2016

Sh. Dixit & others

… Appellants

Versus Shri Prakash Chand & others

… Respondents

FAO No.120 of 2016

National Insurance Company

… Appellant

Versus Smt. Sunita (since deceased) & others

… Respondents

Coram

Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?1 Yes ____________________________________________________ _ For the appellant(s)/ respondents :

Mr. Vinay Thakur, Advocate, in FAO

No.89 of 2016 and for respondents

No.5 and 6 in FAO No.120 of 2016.

Mr. Ashok Sud, Senior Advocate, with

Mr. Khem Raj, Advocate, for

respondents No.1 and 2 in FAO No.89

of 2016.

Mr. Ashwani K. Sharma, Senior

Advocate with Mr. Ishan Sharma,

Advocate, for the appellant in FAO

No.120 of 2016 and for respondent

No.3, in FAO No.89 of 2016

Ajay Mohan Goel, Judge (Oral)

Both these appeals arise out of award dated 31.10.2015, passed by learned Motor Accident Claims Tribunal, Shimla, Himachal Pradesh, in M.A.C. No.19-S/2 of 2013, titled as Smt. Sunita & others Versus Shri Prakash Chand & others.

Whether reporters of the local papers may be allowed to see the judgment?

2. Brief facts necessary for the adjudication of these appeals are that the claimants filed a Claim Petition on the ground that Shri Rajinder Kumar, husband of claimant Sunita and the father of other claimants, lost his life in an accident on 11.04.2013 on account of rash and negligent driving of the offending vehicle which was being driven by Kiran Kumar, owned by Prakash Chand and which was insured with the National Insurance Company. As per the claimant, the accident took place on 11.04.2013 at around 8:10 P.M. near Dhanda (Totu). The matter was reported to the police which led to the registration of FIR No.64 of 2013, dated 11.04.2013, under Section 279 and 304-A of the Indian Penal Code against Kiran Kumar. Shri Rajinder Kumar died on the spot itself. He was 51years old. He was working in Indian Agriculture Research Institute, Branch Office at Dhanda. His salary was Rs.24,182/- per month. The claimants prayed for compensation to the tune of Rs.50,00,000/- alongwith interest.

3. The owner and driver of the vehicle took the plea that the vehicle in issue, i.e. Truck bearing Registration No.HP-248-3551, did not meet with any accident, nor deceased died on account of rash and negligent driving of the driver.The Insurance Company took the plea that neither the driver of the vehicle was having a valid and effective Driving Licence, nor the vehicle was being plied in terms of the Insurance Policy.

4. On the basis of the pleadings of the parties, learned

Tribunal framed the following issues:-

“1) Whether the respondent No.2 was driving the Truck bearing No. HP-24B-3551 on dated 11.04.2013 near Dhanda (Totu), Shimla in a rash and negligent manner resulting into death of Rajinder Kumar, as alleged? OPP.

2) If issue No.1 proved in affirmative, whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP.

3) Whether the present claim petition is not maintainable? OPR-3.

4) Whether the respondent No.2 was not having valid and effective driving licence at the time of accident, if so, its effect? OPR-3.

5) Whether the vehicle was being driven in violation to the terms and conditions of the insurance policy as well as provisions of the M.V. Act, if so, its effect? OPR-3.

6. Relief.”

5. On the strength of evidence which was 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, Claimants are entitled to a

sum of Rs.21,23, 560/- as

compensation from the

respondents.

Issue No.3 : No.

Issue No.4 : No.

Issue No.5 : No.

Relief:

Claim petition is allowed as per

the operative part of the Award.”

6. Learned Tribunal awarded an amount of Rs.21,23,560/- in favour of the claimants alongwith interest. The claimants were held entitled for compensation from the respondents jointly and severally.

7. Feeling aggrieved, the award has been assailed by the Insurance Company, inter alia, on the ground that learned Tribunal erred in coming to the conclusion that the deceased lost his life on account of an accident involving the Truck and the accident took place due to the rash and negligent driving of the truck thereof. The Insurance Company further has taken the stand in the appeal that the deceased himself was negligent while crossing the road as he was drunk and therefore, the award passed by learned Tribunal is liable to be set aside/modified.

8. It was contended by learned Senior Counsel appearing on behalf of the Insurance Company that deceased lost his life after being hit by some other vehicle and in the absence of there being any eye-witness, the Truck insured with the Insurance Company was wrongly referred to be the offending Truck and this extremely important aspect of the matter was ignored by learned Tribunal. Learned Senior Counsel further submitted that as there is no evidence on record that as it was rash and negligent driving of the offending Truck by its driver which killed the deceased, the award is liable to be set aside. Learned Senior Counsel also submitted that

the award was not sustainable as learned Tribunal erred in not appreciating that the deceased was under the influence of liquor and the award was on the higher side.

9. On the other hand, learned counsel for the claimants submitted that as far as the finding returned by learned Tribunal that the deceased lost his life on account of rash and negligent driving of the driver is concerned, the same does not calls for any interference, but because the award is on the lower side, therefore, the same requires enhancement.

10. I have heard learned counsel for the parties and have also carefully gone through the award under challenge.

11. The Issues framed by learned Tribunal have already been quoted by me hereinabove. While deciding Issue No.1, learned Tribunal held that Rajinder Kumar lost his life on account of rash and negligent driving of the driver of the Truck, i.e. respondent No.2 before learned Tribunal on 11.04.2013. While arriving at the said finding, learned Tribunal took into consideration the fact that the FIR in issue, i.e. FIR No.64 of 2013, dated 11.04.2013 was lodged against driver Kiran Kumar and PW-3 Dr. Gian Thakur, who was examined by the claimants to prove that Rajinder Kumar had died in the road side accident involving the offending Truck, deposed in the Court that he had visited the spot in Case FIR No.64 of 2013, on 12.04.2013 and on the spot he noticed blood stained as well as food articles and also a black coloured bag lying at the spot. This witness

also stated that he inspected the offending Truck which was parked in Tara Devi Junkyard, from which also he lifted the blood stains from the differential of the Truck and blood stains, food articles, stains were also found and lifted from there. Learned Tribunal also observed that no complaint was lodged by the owner of the driver of the Truck to the higher authorities that a false FIR stood registered against the driver.

12. Having carefully perused the record of the case, this Curt is of the considered view that the findings returned by the learned Tribunal to the effect that the deceased lost his life in the accident involving the Truck in issue, insured with the present appellant, are clearly borne out from the record of the case. The contention of learned Senior Counsel that no accident took place as alleged and the Truck in issue was not involved in the accident is negated by the reply of the said Insurance Company to the claim petition. A perusal thereof demonstrates that the stand taken in the reply by the insurance company was that the deceased was under the influence of intoxication and may be responsible for the accident. It was further its stand that, the vehicle in question was not possessing valid Registration Certificate, Route Permit at the time of the accident and therefore, the Insurance Company was not liable to indemnify the claimants. These contents of the reply amount to implied admission on the part of the Insurance Company before the learned Tribunal that the vehicle indeed was involved in the

accident, in which, deceased lost his life but its contention was that the vehicle was being driven in violation of the terms and conditions of the Insurance Policy and further may be as the deceased was intoxicated, this might have led to the accident. Therefore, the contention of learned Senior Counsel that the Truck was not at all involved in the accident cannot be accepted and findings returned by the learned Tribunal that deceased lost his life in an accident involving said Truck are, clearly borne out from the record of the case.

13. Now as far as the contention of learned Senior Counsel that the deceased was in an intoxicated condition when the accident took place is concerned or that it is a case of contributory negligence are concerned, no issue to this effect was framed at the instance of the Insurance Company and no evidence was led by the Insurance Company to substantiate this contention of its. In the said backdrop, now the Insurance Company cannot be allowed to rake up this issue in appeal and assail the award on the said ground.

14. As far as compensation awarded by learned Tribunal is concerned, in terms of the appeal filed by the Insurance Company, there is no challenge thereto in the grounds of appeal. On the other hand, learned Counsel for the appellants in the appeal filed on behalf of the claimants, submitted that the same calls for enhancement.

15. On the issue of determination of the compensation on the basis of the employment/salary of the deceased, his age and multiplier etc., learned Counsel could not convince the Court that the awarded compensation required any enhancement.

16. However, in terms of the impugned award, learned Tribunal deducted 1/3rd from the income assessed as the amount which the deceased would have been spending upon himself, the award requires modification because the deduction of 1/3rd amount is bad and the same ought to have been 1/4th instead of 1/3rd.

17. In United India Insurance Company Limited vs. Satinder Kaur alias Satwinder Kaur and others (2021) 11 Supreme Court Cases 780, Hon’ble Supreme Court has been pleased to hold that where the deceased was married, the deduction towards personal and living expenses should be 1/3rd if the number of dependents upon the deceased is 2-3 and it should be 1/4th if the number of dependents upon the deceased is 4-6. In the present case, as the number of dependents upon the deceased were four, who all incidentally were the claimants before the learned Tribunal, the deduction for personal and living expenses in said circumstances should have been 1/4th and not 1/3rd of the income assessed. The award is accordingly ordered to be modified to this extent.

18. In the impugned award, learned Tribunal has awarded an amount of Rs.1.00 Lac under the head of loss of love and affection, Rs. 50,000 under the head of funeral expenses and Rs.

1.00 Lac under the head of loss of consortium. In United India Insurance Company Limited vs. Satinder Kaur (supra), Hon’ble Supreme Court has been pleased to hold that as loss of love and affection is comprehended in loss of consortium, therefore, the Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head by observing that there is no justification to award compensation towards loss of love and affection as a separate head. Similarly, for funeral expenses, Rs.15,000/- have been ordered to be awarded. In light of the fact that now it stands recognized that consortium is to be granted to the children also upon premature death of the parent as parental consortium.

19. Accordingly, in terms of the judgment of Hon’ble Supreme Court of India in N. Jayasree and others vs. Cholamandalam MS General Insurance Company Limited (2022) 14 Supreme Court Cases 712, by modifying the award under challenge, the claimants are held entitled to the following compensation:-

(a) Loss of estate = Rs. 16,500/-

(b) Funeral expenses = Rs. 16,500/-

(c) Spousal consortium = Rs. 44,000/-

(d) Parental consortium = Rs. 44,000x3

=Rs.1,32,000/- Besides this, as ordered hereinabove, loss of dependency be now calculated after deducting 1/4th as deduction towards personal and

living expenses of the deceased instead of 1/3rd. The amount awarded under the head of loss of love and affection is set aside. Rest of the award is not disturbed, except modifications ordered hereinabove.

Both the appeals stand disposed of in above terms. Pending miscellaneous application(s), if any, also stands disposed of accordingly.

(Ajay Mohan Goel)

Judge December 31, 2024 rishi/narender