High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH.

SHIMLA

FAO No. 87 of 2015.

Decision reserved on: 19.4.2016.

Date of decision: May 3,2016.

___________________________________________________________

New India Assurance Company Limited.

.Appellant/Non claimant No.1.

Vs.

Ms.Shivali Devi D/o Sh Vijay Kumar and others.

....Respondents/claimants.

Coram:

Hon’ble Mr. Justice P.S.Rana, Judge.

Whether approved for reporting1?.Yes.

For appellant/

Non claimant No.1: Mr.Ratish Sharma, Advocate.

For respondents/

Claimants No. 1 to 4 Mr. Parveen Chauhan, Advocate.

For respondent/

Non-claimant No.5. None.

P.S.Rana, Judge.

Decision: Present appeal is filed under Section 173

of Motor Vehicles Act 1988 against the award dated

Whether reporters of the Local papers are allowed to see the judgment? yes.

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22.11.2014 passed by Motor Accident Claims Tribunal

Chamba in MAC Petition No. 49 of 2014 title Shivali Devi and

others Vs. New India Assurance Company Ltd and another.

Brief facts of the case:

2. Petitioners Shivali Devi and others filed petition

under Section 163-A of Motor Vehicles Act 1988 pleaded

therein that on dated 30.4.2012 at about 6 AM deceased

namely Vijay Kumar was driving vehicle No. HP-46-0492 in a

very careful and cautious manner and when vehicle reached

at a place known as ‘Bharadi Mor Rajera’ all of a sudden

mechanical defect developed in the vehicle and vehicle went

off the road and fell down 100 meters below at the side of

river ‘Ravi’. It is further pleaded that accident and death took

place due to use of motor vehicle. It is further pleaded that

the age of the deceased was 44 years at the time of death and

occupation of deceased was driver. It is further pleaded that

monthly income of deceased was 3300/ - (Three thousand

three hundred). It is further pleaded that Smt. Tripta Devi

wife of Vijay Kumar resident of village and post office

Dharwala, Tehsil and District Chamba HP was owner of

vehicle at the time of accident. It is further pleaded that FIR

No. 102 of 2012 registered in police station Chamba. It is

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further pleaded that deceased died due to severe head injury.

It is further pleaded that deceased died instantaneously at

the spot. It is further pleaded that post mortem of deceased

was conducted in medical civil hospital Chamba. It is further

pleaded that income of deceased was Rs.3300/- per month.

It is further pleaded that petitioners are children of deceased

Vijay Kumar and they are legal heirs of de ceased Vijay

Kumar. It is further pleaded that deceased was sole earning

member of the family and whole family was depended upon

deceased. Vijay Kumar. It is further pleaded that untimely

death of deceased placed petitioners on the verge of

starvation. It is further pleaded that petition filed under

Section 163-A of Motor Vehicle Act 1988 be allowed and

compensation amount to the tune of Rs. 15,00,000/- (Fifteen

lacs) along with interest @ 9% per annum from the date of

filing of petition till its realization with costs be awarded.

3. Per contra response filed on behalf of co -

respondent No.1 pleaded therein that claim petition in the

present form is not maintainable. It is further pleaded that

co-respondent No.1 is not liable to indemnify or pay any

compensation to petitioners. It is further pleaded that a

person cannot be claimant as well as owner of the vehicle

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involved in the accident at the same time. It is further

pleaded that claim petition under section 163-A of Motor

Vehicle Act could be filed by a third party only. It is further

pleaded that deceased Vijay Kumar was the husband of

owner of vehicle No. HP-46-0492 and deceased Vijay Kumar

could not be treated as third party. It is further pleaded that

Motor Accident Claims Tribunal has no jurisdiction to try the

claim petition and Employees Compensation Commissioner

has jurisdiction to try claim petition. It is further pleaded

that deceased Vijay Kumar himself was driving vehicle No.

HP-46-0492 and petitioners are claiming compensation on

account of death of Vijay Kumar under Section 163 -A of

Motor Vehicle Act. It is further pleaded that deceased Vijay

Kumar was himself negligent and rash at the time of

accident. It is further pleaded that negligence attributable to

the driver of vehicle and co-respondent No.1 is not liable to

pay any compensation amount. It is further pleaded that

vehicle was plied in contravention of Motor Vehicle Act and

in violation of terms and conditions of insurance policy. It is

further pleaded that insurance company is not liable to

indemnify or pay any compensation to petitioners. It is

further pleaded that petition is barred and the risk of

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deceased was not covered as per policy of vehicle No. HP-46-

0492. It is further pleaded that even as per insurance policy

no premium was paid for death of owner-cum-driver as per

insurance policy. It is further pleaded that petitioners have

not approached Motor Accident Claims Tribunal with clean

hands and suppressed true and material facts from court .

Prayer for dismissal of petition sought.

4. Per contra separate response filed by co -

respondent No.2 and co-respondent No.2 admits contents of

para Nos.1,2,4 to 10 and 14 to 17. Prayer for dismissal of

petition sought. Petitioners filed rejoinder and re-asserted the

allegations mentioned in the claim petition. As per pleadings

of parties Motor Accident Claims Tribunal framed following

issues.

1. Whether deceased died on 30.4.2012 at about

6 AM at place Bhardi Mor (Rajera) Tehsil and

District Chamba in an accident arising out of

use of vehicle bearing registration No. HP-46-

0492 as alleged?. …OPP.

2. If issue No.1 is proved in the affirmative as to

what amount of compensation the petitioners are

entitled to and from whom?. …OPP.

3. Whether petition is not maintainable in

present form?. …OPR1

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4. Whether Tribunal has no jurisdiction to try

petition?. …OPR1

5. Whether vehicle in question was being driven

in violation of terms and conditions of insurance

policy? . ..OPR1

6. Whether risk of deceased was not covered in

insurance policy as alleged?. ..OPR1

7. Whether petitioners have not come to Court

with clean hands as alleged?. …OPR1

8 Relief.

5. Learned Motor Accident Claims Tribunal decided

issues Nos. 1 and 2 in affirmative and learned Tribunal

decided issues Nos. 3 to 7 in negative. Learned Motor

Accident Claims Tribunal allowed petition filed under Section

163-A of Motor Vehicle Act and passed award to the tune of

Rs.600000/- with interest @ 7.5% per annum from the date

of petition w.e.f. 29.4.2014 till realization to be paid and

deposited by co-respondent No.1 i.e. New India Assurance

Company. Learned Motor Accident Claims Tribunal further

held that amount of compensation is inclusive of interim

compensation if any already received by petitioners. Learned

Motor Accident Claims Tribunal directed that aforesaid

amount of compensation shall be shared by all petitioners in

equal shares which shall be kept in fixed deposits in their

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names initially for a period of thirty six months so as to earn

maximum interest thereon in nat ionalized bank. Learned

Motor Accident Claims Tribunal further directed that amount

of the share of minors shall further be invested in same

manner till they attain the age of majority.

6. Feeling aggrieved against award passed by

learned Motor Accident Claims Tribunal Chamba appellant

filed present appeal.

7. Court heard learned Advocate a ppearing on

behalf of appellant and learned Advocate appearing on behalf

of respondents No. 1 to 4 and also perused entire record

carefully.

8. Following points arise for determination in

present appeal.

1. Whether award passed by learned Motor

Accident Claims Tribunal is perverse based upon

non appreciation of evidence as mentioned in

memorandum of grounds of appeal?.

2 Relief.

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9.Findings on point No.1 with reasons.

9.1 PW1 HC Kuldip Singh has stated that he was

posted as investigating officer in police station Chamba and

he brought summoned record. He has stated that FIR Ext

PW1/A is correct as per original record. In cross-examination

he has stated that he was not investigating officer of the

present case and he did not investigate present case. He has

admitted that FIR was not written and signed by him. Self

stated that FIR is computerized.

9.2. PW2 Sh Balak Ram has stated that he is

Secretary gram panchayat Rajera since 2011 and he brought

the summoned record. He has stated that death certificate of

Vijay Kumar is correct as per original record. He has stated

that death certificate was written and signed by him. He has

stated that copy of death certificate is Ext PW2/A.

9.3 PW3 Shivali Devi has tendered in evidence

affidavit Ext PW3/A. There is recital in affidavit that name of

the father of deponent was Vijay Kumar. There is recital in

affidavit that Vijay Kumar was driver of vehicle No.HP-46-

0492. There is recital in affidavit that on dated 30.4.2012

deceased was driving vehicle having registration No. HP-46-

0492 and when vehicle reached at place ‘Bharadi Mor Rajera’

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then mechanical fault occurred in the vehicle and accident

took place. There is recital in affidavit that vehicle rolled

down 100 meters into river ‘Ravi’. There is further recital in

affidavit that father of deponent died in the accident. There is

further recital in affidavit that driver was not at fault at the

time of accident and accident took place due to mechanical

defect in the vehicle. There is further recital in affidavit that

deceased used to take Rs.3300/ - (Three thousand three

hundred) per month as salary from the owner of vehicle.

There is further recital in affidavit that claimants are

children of deceased Vijay Kumar and were depended upon

deceased at the time of death of deceased. There is recital in

affidavit that compensation to the tune of Rs.1500000/ -

(Fifteen lac) be granted. PW3 Shivali Devi has admitted in

cross examination that vehicle No. HP-46-0492 involved in

the accident was owned by her mother namely Smt. Tripta

Devi. PW3 Shivali Devi has admitted that RC of vehicle is in

the name of her mother. She has denied suggestion that her

father was not driver in the vehicle. She has admitted that

vehicle involved in the accident falls in the category of

commercial vehicle. She has denied suggestion that as per

insurance policy risk of deceased was not covered. She has

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denied suggestion that driver of vehicle was not holding valid

and effective driving license at the time of accident. She has

denied suggestion that vehicle was not driven in accordance

with terms and conditions of insurance policy. She has

denied suggestion that insurance company is not liable to

indemnify the owner.

9.4 RW1 Vipin Kumar has stated that he is posted

as clerk in the office of SDM Bharmour District Chamba

since 2011 and he brought summoned record. He has stated

that vehicle No. HP-46-0492 was registered in RLA office

Bharmour. In cross examination he has admitted that

vehicle involved in the accident was registered as goods

vehicle. He has admitted that laden weight of the vehicle was

2750 KG and un-laden weight was 1625 Kg. He has admitted

that vehicle involved in the accident is registered in the name

of Tripta Devi widow of Vijay Kumar deceased.

10. Following documentaries evidence produced by

the parties.(1) Ext. PW1/A is FIR No.102 dated 30.4.2012

registered under Sections 279 and 304A IPC. (2) Ext PW2/A

is the death certificate of Vijay Kumar and as per death

certificate Vijay Kumar died on 30.4.2012. (3) Ext P1 is the

post mortem report of deceased Vijay Kumar aged 44 years

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and as per post mortem report deceased Vijay Kumar had

died as a result of head injury. (4) Ext RW1/A is the screen

report of vehicle No. HP-46-0492. (5) Ext R1 is the copy of

driving license of Vijay Kumar. (6) Ext.R1/A is the certificate

of insurance policy. (7) Mark RX is the copy of family register.

11. Submission of learned Advocate appearing on

behalf of appellant that deceased was not third party and

was not paid driver and was husband of the owner of vehicle

and on this ground appeal be accepted is rejected being

devoid of any force for the reasons hereinafter mentioned.

There is no law which prohibits wife wh o is owner of

registered vehicle to employ her husband as driver upon

payment of salary. PW3 Shivali Devi has filed affidavit Ext

PW3/A placed on record. There is recital in affidavit that

deceased Vijay Kumar was driver of vehicle No. HP-46-0492

at the time of accident. There is recital in affidavit Ext PW3/A

placed on record that salary of deceased was Rs.3300/ -

(Three thousand three hundred) per month. Affidavit Ext

PW3/A filed by PW3 Shivali Devi remained un-rebutted on

record. No official on behalf of insurance company personally

appeared in witness box for the purpose of cross -

examination. Affidavit filed by PW3 Shivali Devi is trust

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worthy, reliable and inspires confidence of Court. There is no

reason to disbelieve affidavit Ext PW3/A filed by Smt. Shivali

Devi.Adverse inference under Section 114 (g) of Indian

Evidence Act 1872 is drawn against employees of insurance

company in present case for non appearance in court in

person for purpose of cross examination. See AIR 1999 SC

1441 title Vidhyadhar Vs. Mankikrao and another. Also see

AIR 1999 SC 1341 title Iswar Bhai C.Patel Vs. Harihar

Behera and another.

12. Submission of learned Advocate appearing on

behalf of appellant that claimants as well as owner of vehicle

could not be same person and on this ground appeal be

accepted is rejected being devoid of any force for the reasons

hereinafter mentioned. In the present case Tripta Devi owner

of vehicle is not claimant in the petition but Smt. Tripta Devi

owner of vehicle is co-respondent No.2. Tripta Devi co-

respondent No.2 owner of vehicle has specifically pleaded in

response filed by her that petition filed under Section 163-A

of Motor Vehicle Act be dismissed. In the present case

claimants are Shivali Devi daughter of Vijay Kumar, Anamika

Devi daughter of Vijay Kumar, Akshay Kumar minor son of

Vijay Kumar and Nagesh Kumar minor son of Vijay Kumar . It

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is well settled law that widow and minor sons and daughters

have different individual status as per law. In view of the fact

that owner of the vehicle Smt. Tripta Devi is not claimant in

present case, in view of the fact that claimants are daughters

and sons of deceased Vijay Kumar and in view of the fact

that claimants are legal heirs of deceased it is held that

petition filed under Section 163-A of Motor Vehicle Act 1988

is maintainable on behalf of sons and daughters of deceased

Vijay Kumar. See 2002 (1) SLC 204 title Smt. Kokla Devi Vs.

Chet Ram and another.

13. Submission of learned Advocate appearing on

behalf of appellant that deceased had died due to his own

rash and negligent driving and petition filed under Section

163-A of Motor Vehicle Act 1988 is not maintainable is

rejected being devoid of any force for the reasons hereinafter

mentioned. It is well settled law that negligence is not

relevant in petition filed under Section 163-A of Motor

Vehicle Act. It is well settled law that Section 163-A has

special provision for payment of compensation on structured

formula basis and as per amendment in Section 163-A in the

year 1994 claimants are dispensed with proof of negligence

and compensation should be determined on the structured

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formula basis. Under Section 163-A of Motor Vehicle Act

1988 following facts should be proved (1) Whether accident

has occurred. (2) Whether accident occurred with motor

vehicle. (3) Resultant consequence i.e. injury or death (4)

Annual income should be below Rs.40,000/- Forty thousand)

(5) Negligence is irrelevant.

14. Submission of learned Advocate appearing on

behalf of appellant that vehicle was driven in violation of

terms and conditions of insurance policy and on this ground

appeal be accepted is rejected being devoid of any force for

the reasons hereinafter mentioned. Onus to prove that

vehicle was driven in violation of terms and conditions of

insurance policy was placed upon insurance company. No

official on behalf of insurance company appeared in witness

box in order to prove issue No.5. Hence adverse inference

under Section 114 (g) of Indian Evidence Act 1872 is drawn

against insurance company.

15. Submission of learned Advocate appearing on

behalf of appellant that risk of deceased was not covered in

insurance policy is also rejected being devoid of any force for

the reasons hereinafter mentioned. Court has carefully

perused insurance policy Ext R1 placed on record. As per

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insurance policy the period of insurance was w.e.f. 19.1.2012

to 18.1.2013. As per insurance policy Ext R1 placed on

record the liability of insurance company is basic TP cover

and LL to persons employed for loading or un-loading and LL

to paid driver, conductor and cleaner employed for operation.

As per insurance policy Ext R1 placed on record insurance

company has received premium to the tune of Rs. 12378/ -

(Twelve thousand three hundred seventy eight). It is held

that as per insurance policy Ext R1 placed on record liability

of paid driver of vehicle is covered. As per insurance policy

insurance company is liable to indemnify upon the death of

driver of vehicle. Even as per liability clause mentioned in

certificate of insurance company is liable to indemnify up to

Rs.750000/- (Seven lac fifty thousand) in respect of any one

claim arising out of one event. It is proved on record that

vehicle involved in accident was goods carrying vehicle as per

insurance policy placed on record. It is proved on record that

insurance company has received premium to the tune of

Rs.12378/- (Twelve thousand three hundred seventy eight)

from the owner of vehicle. It is proved on record that as per

insurance policy owner of the vehicle was Smt. Tripta. In the

present case Smt. Tripta is not one of the claimant but Smt.

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Tripta is impleaded as co-respondent No.2. Hence present

case is not a case where claimant and owner of vehicle is

same person. On the contrary in the present case claimants

are sons and daughters who are not owner of the vehicle.

Hence it is held that insurance company is liable to

indemnify the owner in present case. It is well settled law

that status of widow and status of sons and daughters are

two different status in the category of relationship.

16. Submission of learned Advocate appearing on

behalf of appellant that deceased driver was not paid driver

because driver of the vehicle was the husband of owner of

vehicle and on this ground appeal be accepted is also

rejected being devoid of any force for the reasons hereinafter

mentioned. Smt. Shivali Devi aged 20 years has filed affidavit

Ext PW3/A placed on record and there is recital in affidavit

that deceased Vijay Kumar used to take salary to the tune of

Rs.3300/- (Three thousand three hundred) per month from

the owner of vehicle. Affidavit filed by Smt. Shivali Devi

remained un-rebutted on record. No official on behalf of

insurance company personally appeared in witness box for

the purpose of cross examination and insurance company

did not adduce any oral and documentary evidence on record

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in order to rebut affidavit Ext PW3/A placed on record.

Affidavit Ext PW3/A placed on record remained un-rebutted.

There is no reason to disbelieve affidavit Ext PW3/A filed by

Shivali Devi in the present case. In view of un-rebutted

evidence on record it is held that deceased was paid driver of

owner of vehicle.

17. Submission of learned Advocate appearing on

behalf of appellant that learned Motor Accident Claims

Tribunal did not properly appreciate oral as we ll as

documentary evidence placed on record is also rejected being

devoid of any force for the reasons hereinafter mentioned. It

is held that learned Motor Accident Claims Tribunal has

properly appreciated oral as well as documentary evidence

placed on record. It is held that as per Section 163-A of

Motor Vehicle Act 1988 legal heirs of deceased are legally

competent to file petition under Section 163-A of Motor

Vehicle Act 1988. It is proved on record that Shivali Devi,

Anamika Devi, Akshay Kumar and Nages h Kumar claimants

are the legal heirs of deceased Vijay Kumar. It is held that

legal heirs of deceased are legally competent to file petition

under Section 163-A of Motor Vehicle Act 1988 relating to

goods vehicle involved in the accident wherein deceased

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driver was paid driver of vehicle involved in accident. In view

of above stated facts point No.1 is answered in negative.

Point No.2 (Relief).

18. In view of findings upon point No.1 above appeal

is dismissed. Award of learned Motor Accident Claims

Tribunal is affirmed. No order as to costs. File of learned

Motor Accident Claims Tribunal be sent back forthwith along

with certified copy of decision. Appeal is disposed of. Pending

application if any also disposed of.

(P.S.Rana)

Judge.

May 3,2016(R)

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