By the medium of these appeals, the insurer has laid challenge to the awards, passed on different dates by Motor Accident Claims Tribunals, Shimla by four Presiding Officers, (for short, ...
No Acts & Articles mentioned in this case
High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.484 of 2015 & CO No.14 of 2016 a/w FAO
Nos.305, 306, 342, 347, 483, 485, 486 of 2015 with CO
No.15 of 2016, FAO Nos. 487, 488, 489, 490, 491, 492
of 2015 with CO No.12 of 2016, FAO No. 493 of 2015
with CO No.13 of 2016, FAO Nos. 496 and 512 of
2015, FAO No. 12 of 2016 with CO No.16 of 2016, FAO
Nos.13 of 2016, 14, 15 of 2016 with CO No.17 of 2016,
FAO Nos. 16, 17, 18, 19, 20, 21, 22, 23 of 2016 with CO
No.18 of 2016, FAO Nos. 24, 25, 26 of 2016 with CO
No.19 of 2016, FAO Nos.27, 28, 41, 42, 243, 90, 92,
101, 128 146, 169 of 2016 with CO No. 20 of 2016,
FAO Nos.118, 129 and 242 of 2016.
Reserved on: 20.05.2016
Date of decision: 27.05.2016
1. FAO No.484 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Mani & another ….. Respondents
2. FAO No.305 of 2015
Uma Dutt Sharma …..Appellant
Versus
Shri Surender Pal & others ….. Respondents
3. FAO No. 306 of 2015
Uma Dutt Sharma …..Appellant
Versus
Shri Surender Pal & others ….. Respondents
4. FAO No.342 of 2015
Smt. Anita …..Appellant
Versus
Sh. Arun & another ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 2
5. FAO No.347 of 2015
Dhian Singh …..Appellant
Versus
Sh. Arun Sharma & another ….. Respondents
6. FAO No.483 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Naresh Kumar & others ….. Respondents
7. FAO No. 485 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Naresh Kumar & others ….. Respondents
8. FAO No.486 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Churamani & others ….. Respondents
9. FAO No.487 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Tara Chauhan & others ….. Respondents
10. FAO No.488 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Indira & others ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 3
11. FAO No.489 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Shri Chander Sain Shyam & others ….. Respondents
12. FAO No.490 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Sanjana & others ….. Respondents
13. FAO No.491 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Sanjay Kumar & others ….. Respondents
14. FAO No.492 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Jotnu & others ….. Respondents
15. FAO No.493 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Subhadra & others ….. Respondents
16. FAO No.496 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Usha Kanwar & others ….. Respondents
17. FAO No.512 of 2015
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Subhadra Devi & others ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 4
18. FAO No.12 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Sunita & others ….. Respondents
19. FAO No.13 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Tara Devi & others ….. Respondents
20. FAO No.14 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Amar Singh Verma & others ….. Respondents
21. FAO No.15 of 20165
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Chand Rani & others ….. Respondents
22. FAO No.16 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Sita Devi & others ….. Respondents
23. FAO No.17 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Vasudev Gupta & others ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 5
24. FAO No.18 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Pramod Kumar & others ….. Respondents
25. FAO No.19 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Dhian Singh & another ….. Respondents
26. FAO No.20 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Chander Sain Shyam & others ….. Respondents
27. FAO No.21 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Gobind Ram & others ….. Respondents
28. FAO No.22 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Om Jeet & others ….. Respondents
29. FAO No.23 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Neelam &others ….. Respondents
30. FAO No.24 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Usha Devi & others ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 6
31. FAO No.25 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Subhash Chand Bhardwaj & others ….. Respondents
32. FAO No.26 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Sharda Devi & others ….. Respondents
33. FAO No.27 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Radha Devi & others ….. Respondents
34. FAO No.28 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Bali Devi & others ….. Respondents
35. FAO No.41 of 2016
Sh.Surender Pal & another …..Appellants
Versus
Uma Dutt Sharma & another ….. Respondents
36. FAO No.42 of 2016
Sh.Surender Pal & another …..Appellants
Versus
Uma Dutt Sharma & another ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 7
37. FAO No.243 of 2016
Sh.Pramod Kumar & another …..Appellants
Versus
Sh.Arun Sharma & others ….. Respondents
38. FAO No.90 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Anita & another ….. Respondents
39. FAO No.92 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Sanjay Kumar & others ….. Respondents
40. FAO No.101 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Sh. Munni Lal & others ….. Respondents
41. FAO No.128 of 2016
Smt. Sita Devi &others …..Appellants
Versus
Sh. Arun Sharma & others ….. Respondents
42. FAO No.146 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt.Raji alias Kaplana & others ….. Respondents
43. FAO No.169 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Smt. Hukmu Devi & others ….. Respondents
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 8
44. FAO No.118 of 2016
The New India Assurance Company Ltd. …..Appellant
Versus
Master Abhinav & others ….. Respondents
45. FAO No.129 of 2016
Smt. Sanjana & others …..Appellants
Versus
Sh. Arun Sharma & others ….. Respondents
46. FAO No.242 of 2016
Shri Amar Singh Verma & another …..Appellants
Versus
Shri Uma Dutt Sharma & others ….. Respondents
Coram:
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Whether approved for reporting? Yes.
Presence for the parties:
Mr.B.M. Chauhan, Advocate, for the insurer.
Mr.G.C. Gupta and Mr. I.D. Bali, Senior Advocates with
M/s Meera Devi, Virender Bali, H.C. Sharma, Jivesh
Sharma and Aruna Chauhan Advocates, for the
claimants.
Mr. Satyen Vaidya and Mr. Vinay Kuthiala, Senior
Advocates with M/s Vandana Kuthiala, Vir Bahadur
Verma, Vivek Sharma and Diwan Singh Negi,
Advocates, for the owner.
___________________________________________________________
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 9
Mansoor Ahmad Mir, Chief Justice
FAO Nos.484, 483, 485, 486, 487, 488, 489, 490, 491, 492, 493, 496,
512 of 2015, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 90, 92, 101, 146, 169 and 118 of 2016
By the medium of these appeals, the insurer has
laid challenge to the awards, passed on different dates by
Motor Accident Claims Tribunals, Shimla by four Presiding
Officers, (for short, the Tribunal at Shimla), whereby the claim
petitions have been granted, compensation was awarded
in favour of the claimants and the insurer came to be
saddled with the liability.
FAO No.342 & 347 of 2015, 128, 129, 242, and 243 of 2016:
2. These appeals have b een filed by the claimants
against the impugned awards passed by the Tribunal at
Shimla for enhancement of compensation, which are also
the subject matter of FAO Nos.90 of 2016, 19 of 2016, 14 of
2016, 490 of 2015, 16 of 2016 and 18 of 2016, filed by the
insurer, detailed supra.
Cross Objections Nos.14, 15, 12, 13, 16, 17, 18, 19 and 20 of 2016:
3.
The claimants have moved these Cross
Objections in the appeals filed by the insurer supra for
enhancement of compensation.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 10
FAO Nos.305 and 306 of 2015
4. These two appeals have been filed by the
insured against the awards, dated 1
st
April, 2015, made by
Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr,
(for short, the Tribunal at Rampur Bushahr), whereby the
claim petitions were allowed and the insured/owner came
to be saddled with the liability.
FAO Nos.41 and 42 of 2016
5. These appeals have been filed by the claimants
against the awards passed by the Tribunal at Rampur
Bushahr for saddling the insurer with the liability instead of
owner and also for enhancement of compensation, on the
grounds taken in the memos of appeals.
6. All these appeals and the Cross Objections are
the outcome of one vehicular accident and questions
involved are also similar, therefore, the same are clubbed
and are taken up together for final disposal.
Brief facts
:
7. On 4
th
November, 2008, at about 11.00 A.M., bus
bearing registration No.HP-63-3774, being driven rashly and
negligently by its driver, namely, Joginder Sharma, met with
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 11
an accident at Lambidhar near Kufri, District Shimla, in which
46 passengers died and some of the passengers sustained
injuries. The legal representatives of the deceased
passengers, and the passengers who were injured, filed
claim petitions before the Tribunal at Shimla, except two
Claim Petitions which came to be filed before the Tribunal at
Rampur Bushahr, for grant of compensation, as per the
break-ups given in the respective claim petitions.
8. The owner, the driver and the insurer resisted the
claim petitions and the Tribunal at Shimla framed almost
similar issues in all the claim petitions. In order to avoid
repetition, the issues framed in one Claim Petition No.139-S/2
of 2014/09 (subject matter of the lead case i.e. FAO No.484
of 2015), are reproduced below:
“1. Whether on account of rash and negligent driving by
the driver of bus No.HP-63-3774 on 4.11.2008 caused the
death of Ghanshyam? OPP
2. If issue No.1 is proved, to what compensation, the
petitioners are entitled and from whom? OPP
3. Whether the accident wa s the result of mechanical
defect? OPR
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 12
4. Whether ill-fated bus was being driven in violation of
terms and conditions of insurance policy i.e. R.C, fitness
certificate and route permit? OPR
5. Whether driver of ill-fated bus had no valid and
effective driving license at the time of accident? OPR
6. Relief.”
9. Similarly, the Tribunal at Rampur Bushahr framed
issues in both the Claim Petitions, however, for the sake of
brevity, the issues framed in Claim Petition No.0100030 of
2009, (subject matter of FAO No.305 of 2015) are
reproduced hereunder:
“1. Whether Sh. Mohan Lal had died on account of
injuries sustained by him due to the rash and negligent driving
of bus No.HP-63-3774 being driven by its driver at the relevant
time, as alleged? OPP.
2. If issued No.1 is proved, to what amount of compensation,
the petitioners are entitled to and from whom? OPP.
3. Whether the driver of the offending vehicle was not
possessed of a valid and effective driving licence at the
relevant time of the accident? OPR-2
4. Whether the offending vehicle was being plied in breach of
the terms and conditions of the policy? OPR-2.
5. Relief.”
10. Parties led their evidence before the Tribunals
below. The Tribunal at Shimla, after scanning the evidence,
held that the insurer has failed to prove that the insured had
committed any breach, what to speak of willful breach, and
accordingly saddled the insurer with the liability. However,
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 13
the Tribunal at Rampur Bushahr came to the conclusion that
there was breach committed by the insured of the terms
and conditions contained in the insurance policy. Therefore,
the said Tribunal saddled the owner with the liability.
11. The insurer, feeling aggrieved, with the awards
made by the Tribunal at Shimla, filed the appeals, being FAO
Nos.
484, 483, 485, 486, 487, 488, 489, 490, 491, 492, 493,
496, 512 of 2015, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 28, 90, 92, 101, 146, 169 and 118 of
2016,
on the ground that the Tribunal has wrongly saddled it
with the liability.
12. On the other hand, the claimants also challenged
some of the impugned awards by way of Cross Appeals i.e.
FAO
No.342 & 347 of 2015, 128, 129, 242 and 243 of 2016, and
Cross Objections Nos.14, 15, 12, 13, 16, 17, 18, 19 and 20 of
2016, on the ground of adequacy of compensation.
13. Feeling aggrieved and dissatisfied with the
awards passed by the Tribunal at Rampur Bushahr, whereby
the owner came to be saddled with the liability and the
insurer was exonerated, the owner filed FAO Nos.305 and
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 14
306 of 2015, while the claimants challenged the said awards
by way of FAO Nos.41 and 42 of 2016.
14. Thus, the appeals can be segregated into two
groups. In the first group of appeals, the point for
determination is – Whether the insurer or the insured is to be
saddled with the liability, and in the second set of appeals
and Cross Objections, the quantum of compensation is to
be determined.
15. At the first hand, I would like to take up the first
group of appeals preferred by the insurer and the insured in
which the question of liability has to be decided.
FAO Nos.484, 483, 485, 486, 487, 488, 489, 490, 491, 492, 493,
496, 512 of 2015, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 90, 92, 101, 146, 169 and 118 of 2016, 305
and 306 of 2015:
16. At the very outset, it is worthwhile to place on
record that in the given circumstances, the factum of
accident and rash and negligent driving on the part of the
driver are not in dispute. Thus, I deem it proper not to
examine the findings recorded by the Tribunal at Shimla and
the Tribunal at Rampur Bushahr on issue No.1.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 15
17. Now, coming to the first set of appeals, the
awards passed by the Tribunal at Shimla, were made by four
different Presiding Officers, who, on the basis of the
evidence and the pleadings of the parties, came to the
conclusion that the owner/insured had not committed any
willful breach. It was also held that the insurer had failed to
discharge the onus on issues No.4 and 5. Therefore, the
Tribunal at Shimla saddled the insurer with the liability.
18. The Tribunal at Rampur Bushahr has made
discussion in paragraphs 31 to 45 of the impugned awards
and held that the insured had committed willful breach of
the terms and conditions of the insurance policy and
therefore, saddled the insured with the liability.
19. Thus, from the ground s taken by the insurer and
the insured in the above appeals, following questions arise
for determination:
(i) Whether the insured had committed any willful breach?
(ii) Whether the insurer has discharged the onus by proving
that the insured had engaged the driver, namely,
Joginder Sharma who, allegedly, was not having valid
and effective driving licence, thus, was not competent
to drive the offending bus?
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 16
(iii) Whether the route permit wa s valid at the time of
accident?
20. The learned counsel for the insurer vehemently
argued that at the time of accident, the police had already
seized of the driving licence of the driver, namely, Joginder
Sharma, who too succumbed to th e injuries on the spot. It
was submitted on the basis of Ext.RW-3/A (copy of driving
licence issued by RLA, Theog) that the driver was competent
to drive only Light Motor Non-Transport Vehicles. Since the
offending bus was a heavy passenger vehicle, therefore, the
driver was not competent to drive the said vehicle.
21. It was further submitted that the driving licence
Ext.R-1, obtained from Agra, was managed by the insured,
and thus, was fake. An inquiry was conducted by the
Additional District Magistrate about the issuance of the
driving licence and during such inquiry, the driving licence
issued by the Authority at Agra was found to be fake.
22. The learned counsel further argued that the
insurer had made all efforts to obtain the verification report,
but, when it failed in its attempt, filed applications before the
Tribunal at Shimla for appointment of Local Commissioner.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 17
The said applications were rejected by the Tribunal at Shimla
constraining the insurer to approach this Court by way of
filing appeals, which were allowed, vide order dated 9
th
December, 2014, and accordingly, Shri Hardeep Roshta,
Advocate, was appointed as Local Commissioner. The
Commissioner filed the report Ext.R-3/1, which is on the file of
Claim Petition No.5-S/2 of 2009, (subject matter of FAO
No.493 of 2015) and it was reported that the said copy of the
licence was fake. Thus, it was submitted that the insurer has
proved that the said driving licence Ext.R-1 was fake and the
driving licence issued by the Authority at Theog Ext.RW-3/A
was only valid for LMV-NT ve hicles. Therefore, it was
submitted that the Tribunal at Shimla has fallen into an error
in concluding that the owner has not committed any willful
breach.
23. The learned counsel for the insured/owner
argued that it is not known how the copy of the driving
licence Ext.RW-3/A was proved before the Tribunal in the
absence of original licence. It was further submitted that the
licence issued by the Authority at Agra Ext.R-1 was genuine
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 18
and the owner, after perusing the same, engaged the driver,
namely, Joginder Sharma, to drive the offending bus.
24. It was further submitted that the insured/owner
has taken a specific ground in the replies filed to all the
claim petitions that the owner engaged the services of the
driver only after examining the driving licence and satisfying
himself that the driver, namely, Joginder Sharma, was
competent to drive the offending bus. The insurer has failed
to prove that the said licence was procured by the
owner/insured, as alleged, and the insured has committed
any breach.
25. Relying upon the report of the Local
Commissioner Ext.R-3/1, the learned counsel for the insured
argued that it was reported by the Commissioner appointed
in terms of the orders passed by this Court that the
concerned clerk had stated that the record pertaining to DL
No.4510/AG/2006 was not available.
26. Thus, it was submitted by the learned counsel for
the insured/owner that there was no material available on
the file to conclude that the licence Ext.R-1 was fake.
Further, argued that the insurer has not led any evidence to
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 19
prove that the owner has not taken any steps, which were
required as per the mandate of Chapter XI, Section 147 to
149 of the Motor Vehicles Act, read with the terms and
conditions contained in the insurance policy.
27. The learned counsel for the insured, therefore,
submitted that the Tribunal at Shimla has rightly saddled the
insurer with the liability and that the Tribunal at Rampur fell
into an error while saddling the owner, instead of the insurer,
with the liability.
28. A perusal of the record would reveal that the
insurer neither pleaded in the replies filed to the Claim
petitions nor led any evidence to prove that the licence
Ext.R-1 issued by the Authority at Agra was fake. It is not
borne out from the records as to from where the learned
Tribunal at Rampur Bushahr has made the conclusion that
the said licence Ext.R-1 was fake. The Tribunal at Rampur
has also wrongly recorded the findings that the owner had
not taken precautions while engaging the driver, namely,
Joginder Sharma as driver to drive the offending bus and
that it was within the knowledge of the owner that the
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 20
licence Ext.R-1 was fake. These findings recorded by the
Tribunal at Rampur are not borne out from the records.
29. After perusing the impugned awards, I am of the
considered view that the Tribunal at Shimla has rightly made
the conclusions and the Tribunal at Rampur Bushahr has
fallen into an error while saddling the insured with the liability,
for the following reasons.
30. The insured/owner, in reply to paragraph 22 of
the Claim Petition at Rampur Bushahr, had specifically
pleaded that, while engaging the driver, he had verified the
correctness of the driving licence of the driver. It is apt to
reproduce paragraph 10 of the reply of one of the claim
petitions hereunder:
“10. Para 22 is denied as incorrect. The accident took place
due to pits on the road which is negligence of the State of HP
who is responsible for maintenance of the road. The driver
while avoiding the pits on road tried to avert the accident but
due to bad shape of road on spot the accident occurred and
driver was not thus negligent in driving the vehicle. The driver
was employed by the replying respondent after verifying the
correctness of the driving license and the same used to be
kept by him with his relative at Kiarighat where the driver used
to stay at night. Driver was never challaned for want of proper
driving license as he had proper driving licence and skill to
drive the vehicle.”
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 21
31. The insurer has not filed any response to the reply
filed by the insured and also has not even led any evidence
to the contrary.
32. The evidence led before the Tribunal at Shimla,
particularly, report of the Local Commissioner is crystal clear
that the record pertaining to the driving licence Ext.R-1 was
not available with the Authority at Agra. Thus, it is not
forthcoming how it can be deduced that the driving licence
Ext.R-1 was fake.
33. The owner, as discussed hereinabove, in the
replies filed to the Claim Petitions, has taken a clear stand
that before engaging the driver, namely, Joginder Sharma,
he had examined the licence of the driver and only
thereafter he engaged the said Joginder Sharma as driver.
Thus, the owner/insured can be said to have exercised due
care and caution while engaging the driver.
34. The Apex Court judgment in the case of National
Insurance Co. Ltd. versus Swaran Singh & others, reported in
AIR 2004 Supreme Court 1531, held that fake or invalid
driving licence is not a defence available to the insurer
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 22
against either the insured or the third parties. To avoid its
liability towards insured, the insurer has to prove that the
insured was guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling the conditions of
the policy regarding use of vehicles by duly licensed driver.
It is apt to reproduce relevant portion of para 105 of the
judgment hereinbelow:
“105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or
invalid driving licence of the driver, as contained in subsection (2)
(a) (ii) of Section 149, have to be proved to have been
committed by the insured for avoiding liability by the insurer. Mere
absence, fake or invalid driving licence or disqualification of the
driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the insurer has to
prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by duly licensed driver or one
who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid
their liability, must not only establish the available defence(s)
raised in the said proceedings
: but must also establish 'breach' on
the part of the owner of the vehicle; the burden of proof
wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of
the insured concerning the policy condition regarding holding of
a valid licence by the driver or his qualification to drive during the
relevant period, the insurer would not be allowed to avoid its
liability towards insured unless the said breach or breaches on the
condition of driving licence is/are so fundamental as are found to
have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the rule of main
purpose” and the concept of “fundamental breach” to allow
defences available to the insured under Section 149 (2) of the
Act.”
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 23
35. The Apex Court in Premkumari & others vs.
Prahlad Dev & others, 2008 AIR SCW 682, has held that even
if the driver has a fake licence that is not a ground for the
insurer to seek exoneration unless the insurer proves by
leading evidence that the owner was aware that the
licence was fake and still permitted the driver to drive the
vehicle. It is apt to reproduce paragraph 6 of the said
decision hereunder:
“6.In this appeal, the appellants mainly concerned about
the orders of the Tribunal and the High Court exonerating
the Insurance Company from its liability. Before considering
the relevant decisions of this Court and the issue in
question, let us note certain factual details. The first
respondent is the owner of the offending vehicle and
respondent No.2 is the driver of the said vehicle, who is
none other than the brother of the first respondent. Before
the Tribunal, the Insurance Company contended that the
driver was not having a valid and effective driving licence.
Considering the materials in the form of oral and
documentary evidence placed by the Insurance Company
the Tribunal found that opposite party No.2, namely, driver
of the offending vehicle did not have a valid and effective
licence on the date of the accident. Based on the said
conclusion, it exonerated the Insurance Company from its
liability. When this specific finding was challenged by way
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 24
of review application before the High Court, the judgment
of this Court in United India Insurance Co. Ltd. vs. Lehru and
Others, (2003) 3 SCC 338 was pressed into service. In the
said judgment, after considering Section 96(2)(b)(ii) of the
old Motor Vehicles Act and similar provision i.e. 149(2)(a)(ii)
in the Motor Vehicles Act, 1988, this Court held as under:-
"17. xxx xxx xxx Thus under sub-section (1) the insurance
company must pay to the person entitled to the benefit of
the decree, notwithstanding that it has become "entitled
to avoid or cancel or may have avoided or cancelled the
policy". The words "subject to the provisions of this section"
mean that the insurance company can get out of the
liability only on grounds set out in Section 149. Sub-section
(7), which has been relied on, does not state anything
more or give any higher right to the insurance company.
On the contrary, the wording of sub-section (7) viz. "no
insurer to whom the notice referred to in sub-section (2) or
sub-section (3) has been given shall be entitled to avoid
his liability" indicates that the legislature wanted to clearly
indicate that insurance companies must pay unless they
are absolved of liability on a ground specified in sub-
section (2). This is further clear from sub-section (4) which
mandates that conditions, in the insurance policy, which
purport to restrict insurance would be of no effect if they
are not of the nature specified in sub- section (2). The
proviso to sub-section (4) is very illustrative. It shows that
the insurance company has to pay to third parties but it
may recover from the person who was primarily liable to
pay. The liability of the insurance company to pay is
further emphasised by sub-section (5). This also shows that
the insurance company must first pay, then it can recover.
If Section 149 is read as a whole it is clear that sub-section
(7) is not giving any additional right to the insurance
company. On the contrary it is emphasising that the
insurance company cannot avoid liability except on the
limited grounds set out in sub-section (2).
18. Now let us consider Section 149(2). Reliance has been
placed on Section 149(2)( a )( ii ). As seen, in order to
avoid liability under this provision it must be shown that
there is a "breach". As held in Skandia (1987) 2 SCC 654
and Sohan Lal Passi (1996) 5 SCC 21 cases the breach
must be on the part of the insured. We are in full
agreement with that. To hold otherwise would lead to
absurd results. Just to take an example, suppose a vehicle
is stolen. Whilst it is being driven by the thief there is an
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 25
accident. The thief is caught and it is ascertained that he
had no licence. Can the insurance company disown
liability? The answer has to be an emphatic "No". To hold
otherwise would be to negate the very purpose of
compulsory insurance. The injured or relatives of the
person killed in the accident may find that the decree
obtained by them is only a paper decree as the owner is
a man of straw. The owner himself would be an innocent
sufferer. It is for this reason that the legislature, in its
wisdom, has made insurance, at least third-party
insurance, compulsory. The aim and purpose being that
an insurance company would be available to pay. The
business of the company is insurance. In all businesses
there is an element of risk. All persons carrying on business
must take risks associated with that business. Thus it is
equitable that the business which is run for making profits
also bears the risk associated with it. At the same time
innocent parties must not be made to suffer or loss. These
provisions meet these requirements. We are thus in
agreement with what is laid down in the aforementioned
cases viz. that in order to avoid liability it is not sufficient to
show that the person driving at the time of accident was
not duly licensed. The insurance company must establish
that the breach was on the part of the insured."
"20. When an owner is hiring a driver he will therefore have
to check whether the driver has a driving licence. If the
driver produces a driving licence which on the face of it
looks genuine, the owner is not expected to find out
whether the licence has in fact been issued by a
competent authority or not. The owner would then take
the test of the driver. If he finds that the driver is
competent to drive the vehicle, he will hire the driver. We
find it rather strange that insurance companies expect
owners to make enquiries with RTOs, which are spread all
over the country, whether the driving licence shown to
them is valid or not. Thus where the owner has satisfied
himself that the driver has a licence and is driving
competently there would be no breach of Section 149(2)(
a )( ii ). The insurance company would not then be
absolved of liability. If it ultimately turns out that the
licence was fake, the insurance company would continue
to remain liable unless they prove that the owner/insured
was aware or had noticed that the licence was fake and
still permitted that person to drive. More importantly, even
in such a case the insurance company would remain
liable to the innocent third party, but it may be able to
recover from the insured. This is the law which has been
laid down in Skandia (1987) 2 SCC 654, Sohan Lal Passi
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 26
(1996) 5 SCC 21 and Kamla (2001) 4 SCC 342 cases. We
are in full agreement with the views expressed therein and
see no reason to take a different view."
It is clear from the above decision when the owner after
verification satisfied himself that the driver has a valid
licence and driving the vehicle in question competently at
the time of the accident there would be no breach of
Section 149(2)(a)(ii), in that event, the Insurance Company
would not then be absolved of liability. It is also clear that
even in the case that the licence was fake, the Insurance
Company would continue to remain liable unless they
prove that the owner was aware or noticed that the
licence was fake and still permitted him to drive.”
36. The Apex Court in National Insurance Co.Ltd. vs.
Geeta Bhat & Ors., JT 2008 (4) SC 425, held that the owner is
bound to make reasonable inquiry as to whether the person,
whom he engaged as driver, holds a valid and effective
licence or not. It was also held that owner is not expected
to verify the genuineness of the licence from the transport
office. It is apt to reproduce paragraphs 7, 8 and 13 of the
said decision hereunder:
“7. An owner of the vehicle is bound to make reasonable
enquiry as to whether the person who is authorised to drive
the vehicle holds a licence or not. Such a licence not only
must be an effective one but should also be a valid one. It
should be issued for driving a category of vehicle as
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 27
specified in the Motor Vehicles Act and/or Rules framed
thereunder.
8. Indisputably, in a case where the terms of the contract of
insurance are found to have been violated by the insured,
the insurer may not be held to be liable for reimbursing the
insured. So far as a driving licence of a professional driver is
concerned, the owner of the vehicle, despite taking
reasonable care, might have not been able to find out as
to whether the licence was a fake one or not. He is not
expected to verify the ge nuineness thereof from the
transport offices.
13. We would, therefore, assume that the driving licence
possessed by Gopal Singh, respondent No. 6, was a fake
one. Only because the same was fake, the same, having
regard to the settled legal position, as noticed
hereinbefore, would not absolve the insurer to reimburse
the owner of a vehicle in respect of the amount awarded
in favour of a third party by the Tribunal in exercise of its
jurisdiction under section 166 of the Motor Vehicles Act,
1988.”
37. The Apex Court in Pepsu Road Transport
Corporation versus National Insurance Company, reported
in (2013) 10 Supreme Court Cases 217 has again reiterated
the same position and held that at the time of hiring a driver,
the owner is under obligation to examine whether the driver
is competent and has a valid licence to drive the vehicle. In
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 28
case the owner is satisfied that the driver is fully competent
to drive the vehicle, it can be said that the owner exercised
reasonable care and onus is shifted on the insurer to prove
to the contrary. It is apt to reproduce paragraph 10 of the
said decision hereunder:
“10. In a claim for compensation, it is certainly open to the insurer
under Section 149(2)(a)(ii) to take a defence that the driver of the
vehicle involved in the accident was not duly licensed. Once such
a defence is taken, the onus is on the insurer. But even after it is
proved that the licence possessed by the driver was a fake one,
whether there is liability on the insurer is the moot question. As far
as the owner of the vehicle is concerned, when he hires a driver,
he has to check whether the driver has a valid driving licence.
Thereafter he has to satisfy himself as to the competence of the
driver. If satisfied in that regard also, it can be said that the owner
had taken reasonable care in employing a person who is qualified
and competent to drive the vehicle. The owner cannot be
expected to go beyond that, to the extent of verifying the
genuineness of the driving licence with the licensing authority
before hiring the services of the driver. However, the situation
would be different if at the time of insurance of the vehicle or
thereafter the insurance company requires the owner of the
vehicle to have the licence duly verified from the licensing
authority or if the attention of the owner of the vehicle is otherwise
invited to the allegation that the licence issued to the driver
employed by him is a fake one and yet the owner does not take
appropriate action for verification of the matter regarding the
genuineness of the licence from the licensing authority. That is
what is explained in Swaran ingh case. If despite such information
with the owner that the licence possessed by his driver is fake, no
action is taken by the insured for appropriate verification, then the
insured will be at fault and, in such circumstances, the Insurance
Company is not liable for the compensation.”
38. In the instant case, the insurer has not pleaded
and proved that the owner, while engaging the driver, had
not taken adequate precaution. On the contrary, the
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 29
owner has pleaded in the reply, as discussed hereinabove,
that at the time of engaging the driver, he had examined
the driving licence of the driver, meaning thereby that
before the driver was engaged, the owner was fully satisfied
that the driver was having a valid and effective driving
licence and was competent to drive the offending bus.
39. It is worthwhile to me ntion here that during the
course of arguments, a certified copy of the judgment
dated 29
th
August, 2014, passed by Additional Chief Judicial
Magistrate, Theog, District Shimla in Criminal Case No.94-4 of
2009, titled State of H.P. vs. Uma Dutt Sharma, was filed
across the Board, made part of the file. In the said criminal
case, the prosecution was launched by the police under
Section 180 of the Act on the allegation that the owner,
namely, Uma Dutt Sharma had handed over the offending
bus to a person who was not competent to drive the same,
as a result of which the bus met with the accident. The
owner/insured faced the prosecution, which landed in his
acquittal and the said judgment passed by the Magistrate
has attained finality. The Judicial Magistrate has specifically
concluded in paragraphs 17, 18 and 19 of the said judgment
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 30
that the accused i.e. the owner of the bus had employed
the driver, namely, Joginder Sharma only after examining his
driving licence issued by the Licensing Authority. The owner
had taken all possible precaution while engaging the driver.
Accordingly, after recording such findings, the Judicial
Magistrate acquitted the owner of the offence under
Section 180 of the Act. It is apt to reproduce paragraph 19
of the said judgment hereunder:-
“19. I am of the view that this copy of DL Mark X of
deceased Joginder Sharma has been given to Inquiry
Officer, PW-9 by accused only and this copy of DL Mark X
shows that it is valid for passenger vehicle. I am of the view
that when accused had employed deceased Joginder to
drive this bus No.HP-63-3774, then he handed over the bus
to deceased Joginder by looking to his DL Mark X, which
was valid for passenger vehicles. Thus, he had taken all
possible precaution to ensure that the deceased Joginder
has DL for passenger vehicle and he also retained the copy
of the same.Thus, it is clear from such evidence that
accused had given the bus No.HP-63-3774 to deceased
driver Joginder after looking his DL Mark X.
Thus, it is not
proved by such evidence that accused handed over the bus to
the driver when he was not authorized to drive the same.
Though, it is the different case that, that DL was not found to be
issued by Licensing Authority, Agra, but the
accused had
handed over the bus to deceas ed by looking to his DL
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 31
Mark X and bonafidely believed that deceased was
authorized to drive the passenger vehicle.”
40. The learned counsel for the insurer raised
objection that this judgment cannot be looked into since it
was not part of the record. In this regard, a reference may
be made to Section 76 of the Indian Evidence Act as under:
“76. Certified copies of public documents.—Every public
officer having the custody of a public document, which
any person has a right to inspect, shall give that person on
demand a copy of it on payment of the legal fees therefor,
together with a certificate written at the foot of such copy
that it is a true copy of such document or part thereof, as
the case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official
title, and shall be sealed, whenever such officer is
authorized by law to make use of a seal; and such copies
so certified shall be called certified copies.—Every public
officer having the custody of a public document, which
any person has a right to inspect, shall give that person on
demand a copy of it on payment of the legal fees therefor,
together with a certificate written at the foot of such copy
that it is a true copy of such document or part thereof, as
the case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official
title, and shall be sealed, whenever such officer is
authorized by law to make use of a seal; and such copies
so certified shall be called certified copies.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 32
Explanation.—Any officer who, by the ordinary course of
official duty, is authorized to deliver such copies, shall be
deemed to have the custody of such documents within the
meaning of this section.”
41. Thus, any certified copy of the judgment made
by any court is admissible at any stage. The judgment
passed by the Judicial Magistrate being a public document
can be examined and relied upon. The Judicial Magistrate
has examined the witnesses and has scanned the evidence,
oral as well as documentary, and made the findings
mentioned hereinabove, have attained finality. Thus, there
is sufficient proof on the basis of which it can be safely held
that the owner has not committed any breach, not to speak
of willful breach.
42. Having said so, the findings returned by the
Tribunal at Shimla are upheld and the findings returned by
the Tribunal at Rampur Bushahr saddling the owner with the
liability are set aside and the insurer is saddled with the
liability in all the cases.
43. Learned counsel for the insurer also argued that
the route permit was not valid and had already expired on
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 33
2
nd
October, 2008, whereas the accident had occurred on
4
th
November, 2008. Therefore, it was submitted that the
insured had committed willful breach of the terms and
conditions of the insurance policy.
44. The question arises bef ore this Court is – Whether,
in the facts and circumstances of the case, plying of the
offending bus after the expiry of the route permit can be a
ground available to the insurer to seek exoneration?
45. To answer the ques tion, first I may make a
reference to Section 81 of the Act, which deals with renewal
of permits. It is apt to reproduce Section 81(1) and 81(5) of
the Act hereunder:
“81. Duration and renewal of permits. —
(1) A permit other than a temporary permit issued under
section 87 or a special permit issued under sub-section (8) of
section 88 shall be effective
from the date of issuance or
renewal thereof for a period of five years: Provided that where
the permit is countersigned under sub-section (1) of section 88,
such counter-signature shall remain effective without renewal for
such period so as to synchronise with the validity of the primary
permit.
(5) Where a permit has been renewed under this section
after the expiry of the period thereof, such renewal shall have
effect from the date of such expiry irrespective of whether or not
a temporary permit has been granted under clause (d) of
section 87, and where a temporary permit has been granted,
the fee paid in respect of such temporary permit shall be
refunded.”
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 34
46. Sub Section (5) of Se ction 81 clearly mandates
that if a route permit is renewed after its expiry, it shall be
deemed to have been renewed from the date it had
expired.
47. In the instant case, the route permit has been
proved on record before the Tribunal at Rampur Bushahr as
Ext.RW-3/A, and was also placed on the record of the
Tribunal at Shimla, though not exhibited, which shows that
the route permit was renewed on 15
th
December, 2008 with
effect from the date of its expiry i.e. 2
nd
October, 2008, and
was valid upto 2
nd
October, 2013. Therefore, when the
route permit was renewed, though on a subsequent date,
but from the date of its expiry, it can be said to be valid at
the time of accident and it can safely be held that this
argument is not available to the insurer. Even otherwise,
onus was on the insurer to prove that the accident had
taken place due to the expiry of the route permit, in which
the insurer has failed.
48. The Apex Court in Kamala Mangalal Vayani &
Ors. vs. M/s United India Insurance Co. Ltd. & Ors., 2010 AIR
SCW 6604, held that burden of proof lies on the insurer to
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 35
prove that the vehicle did not have a valid permit on the
date of accident. It is apt to reproduce paragraph 4 of the
said decision hereunder:
“4. As noticed above, the owner-cum-driver had remained
ex parte. Once it was established that the vehicle was
comprehensively insured with the insurer to cover the
passenger risk, the burden to prove that it was not liable in
spite of such a policy, shifted to the insurer. The claimants
are not expected to prove that the vehicle had a valid
permit, nor prove that the owner of the vehicle did not
commit breach of any of the terms of the policy. It is for the
insurer who denies its liability under the policy, to establish
that in spite of the comprehensive insurance policy issued
by it, it is not liable on account of the requirements of the
policy not being fulfilled. In this case, the insurer produced
a certified copy of the proceedings of the Registering
Authority and Assistant Regional Transport Authority,
Bangalore, dated 7.7.1990 to show that the application for
registration of the vehicle filed by the third respondent, was
rejected with an observation that it was open to the
applicant to apply for registration in the appropriate class.
But that only proved that on 7.7.1990, the vehicle did not
have a permit. But that does not prove that the vehicle did
not have a permit on 27.7.1990, when the accident
occurred. It was open to the insurer to apply to the
concerned transport authority for a certificate to show the
date on which the permit was granted and that as on the
date of the accident, the vehicle did not have a permit,
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 36
and produce the same as evidence. It failed to do so. The
High Court committed an error in expecting the claimants
to prove that the vehicle possessed a valid permit. We are
of the view that there was no justification for the High Court
to interfere with the judgment and awards of the Tribunal in
the absence of relevant evidence.”
49. Learned counsel for the insurer-appellant also
argued that the accident was outcome of overloading. The
argument was devoid of any force for the reason that this
ground was never pressed into service by the insurer before
the Tribunals below and no evidence was led by the insurer
before the Tribunals below to prove that the accident had
taken place due to the overloading in the offending bus.
Accordingly, the argument raised by the learned counsel is
rejected.
50. It has also been argued by the learned counsel
for the insurer that in the event of holding the insurer liable to
indemnify, its liability can only be restricted as per the risk
covered. The seating capaci ty of the offending bus,
including the driver, as has been mentioned in the insurance
policy Ext.RW-6/A, was 43 persons, meaning thereby that the
risk of 43 persons, including the driver, was covered.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 37
Presently, there are 46 appeals before this Court out of
which 36 appeals have been filed by the insurer, 2 by the
insured, 8 by the claimants for enhancement, meaning
thereby that 38 appeals are the outcome of 38 claim
petitions, which are within the permissible limit, as discussed
supra.
51. In view of the above di scussion, it is held that
there is no merit in the appeals filed by the insurer and the
same are dismissed. However, the appeals filed by the
insured i.e. FAO Nos.305 and 306 of 2015 are allowed and
the insurer is saddled with the liability.
52. Before the second group of appeals and cross
objections for enhancement is taken up, I may record herein
that the aim and object of providing compensation to the
claimants of vehicular accidents is to save them from the
sufferings they are compelled to undergo on account of
sudden and untimely death of their bread earner, so that
they may not fall prey to the social evils. It is also well settled
law that the claim petitions, arising out of the vehicular
accidents, should not be thrown out and the poor claimants
should not be shown the door, on hyper-technicalities. it is
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 38
beaten law of the land that the Tribunal or the High Court
should not succumb to the procedural wrangles tangles or
technicalities and others grounds, as has been held by the
Apex Court in Dulcina Fernandes and others vs. Joaquim
Xavier Cruz and another, reported in (2013) 10 Supreme
Court Cases 646, N.K.V. Bros. (P.) Ltd. versus M. Karumai
Ammal and others etc., reported in AIR 1980 Supreme Court
1354 and Oriental Insurance Co. versus Mst. Zarifa and
others, reported in AIR 1995 Jammu and Kashmir 81. Similar
principle has been followed by this court in catena of
judgments. It is also beaten law of the land that the
compensation is not a booty or boon in the disguise. The
compensation has to be awarded while keeping in view
facts of each case and the loss suffered by the claimants.
53. Having said so, the appeals and cross objections
filed by the claimants, for enhancement of compensation,
are being disposed of as follows.
FAO No.342 of 2015
54. Through this appeal, the claimant-injured has laid
challenge to the impugned award passed by the Tribunal at
Shimla, whereby compensation to the tune of Rs.1,39,000/-
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 39
with 7.5% per annum interest came to be granted in favour
of the claimant. Feeling aggrieved, the claimant-injured
has sought enhancement of compensation.
55. I have gone through the impugned award. The
claimant-injured had not suffered any permanent
disablement. The Tribunal in paragraph 24 of the impugned
award has categorically recorded on the basis of certificate
Ext.PW-6/A that the claimant-injured sustained 40%
temporary disability for one year.
56. The Tribunal made detailed discussion in
paragraphs 24 to 30 of the impugned award, and on the
basis of the pleadings and the evidence led, held the
claimant-injured entitled to Rs.1,39,000/- under the heads
‘medical expenses’, ‘attendant charges’, ‘transportation
charges’ and ‘pain and suffering and loss of amenities of
life’, which, in my opinion, is just and appropriate in the facts
of the case.
57. Having said so, there is no merit in the appeal
and the same is dismissed.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 40
FAO No.347 of 2015:
58. This appeal has been filed by the claimant-
injured against the award dated 25
th
May, 2015, passed by
the Tribunal at Shimla, whereby compensation to the tune of
Rs.4,93,000/-, with 7.5% per annum interest, came to be
awarded, in favour of the claimant-injured.
59. The claimant-injured, feeling aggrieved, filed the
instant appeal for enhancement of compensation.
60. I have gone thro ugh the record and the
impugned award. The claimant remained admitted in the
hospital w.e.f. 4
th
November, 2008 to 25
th
November, 2008.
As per disability certificate Ext.PW-8/A, the claimant suffered
30% permanent disability to the left lower and upper limb.
61. The Tribunal, on the basis of the evidence led by
the claimant, assessed the monthly income of the claimant
at Rs.5,000/-. Keeping in view the extent of permanent
disability suffered by the claimant i.e. 30%, the Tribunal has
rightly assessed the loss of income to the tune of Rs.1,500/-
per month. Keeping in view the age of the claimant-injured
to be 29 years at the time accident, multiplier of 14 was
rightly applied.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 41
62. The Tribunal has rightly made discussion in
paragraphs 24 to 32 and has rightly awarded compensation
under the heads – i) loss of actual income – Rs.3,78,000/-; ii)
medical expenses – Rs.50,000/-; iii) pain and sufferings –
Rs.25,000/-; iv) loss of amenities of life – Rs.25,000/-; v)
Transportation charges – Rs.10,000/-; and vi) attendant
charges – Rs.5,000/- (total Rs.4,93,000/-).
63. Having said so, there is no merit in the appeal
and the same is dismissed.
FAO No.243 of 2016
64. Claimants-appellants, being the legal
representatives of deceased Kamla Devi, approached the
Tribunal by the medium of Claim Petition, who died in the
accident in question. The Tribunal allowed the claim petition
and Rs.1,40,000/-, alongwith interest at the rate of 7.5% per
annum, came to be awarded in favour of the claimants.
65. The Tribunal assessed the monthly income of the
deceased at Rs.3,000/- per month. Even a labourer, now-a-
days, earns not less than Rs.4500/- per month. The deceased
was a housewife. Therefore, it appears that the Tribunal has
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 42
fallen into an error in assessing the monthly income of the
deceased.
66. Viewed thus, the income of the deceased can
safely be assessed at Rs.45,00/- per month. In view of the
law laid down by the Apex Court in case Sarla Verma (Smt.)
and others vs. Delhi Transport Corporation and another,
(2009) 6 SCC 121, which decision was also upheld by the
larger Bench of the Apex Court in Reshma Kumari and others
vs. Madan Mohan and anothe r, 2013 AIR (SCW) 3120, 1/3
rd
was to be deducted towards the personal expenses of the
deceased. Thus, the monthly loss of source of dependency
to the claimants, after deducting 1/3
rd
, is held to be
Rs.3,000/-.
67. The deceased was 60 years of age at the time of
accident. Therefore, in view of the dictum of the Apex
Court in the case of Sarla Verma (supra) and 2
nd
Schedule
attached to the Act, multiplier of 5 is just and appropriate
and has been rightly applied by the Tribunal.
68. In view of the above, the claimants are held
entitled to compensation to the tune of
Rs.3,000x12x5=Rs.1,80,000/- under the head ‘loss of source of
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 43
dependency’. In addition, the claimants are also held
entitled for Rs.10,000/- each (total Rs.30,000/-) under the
heads ‘loss of love and affection’, ‘ loss of estate’, and ‘
funeral expenses’.
69. Accordingly, the claimants are held entitled to
Rs.1,80,000/- + Rs.30,000/- = Rs.2,10,000/-.
70. Having glance of the above, the appeal is
allowed and the compensation is enhanced, as indicated
above. The appeal is disposed of accordingly.
FAO No.128 of 2016
71. Vide award, dated 22
nd
May, 2015, passed by
the Tribunal at Shimla, compensation to the tune of
Rs.4,26,000/-, with interest @ 7.5% per annum, came to be
awarded in favour of the claimants, who approached the
Tribunal on account of death of Narinder Kanwar in the
accident in question, being his legal representatives.
72. It was claimed in the claim petition that the
deceased was a contractor by profession and was earning
Rs.50,000/- per month. However, the Tribunal, on the basis of
the evidence led by the claimants, held that the deceased
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 44
was a carpenter and accordingly, assessed his income at
Rs.3,000/- per month.
73. Apparently, the Tribunal has fallen into an error
while assessing the monthly income of the deceased, for the
simple reason that even a labourer would not be earning
less than Rs.4500/- per month. The deceased was a
carpenter by profession and therefore, his income, by no
stretch of imagination, can be said to be less than Rs.4,500/-
per month.
74. The claimants, in the instant case, are five in
number. Therefore, in view of the law laid by the Apex Court
in the case of Sarla Verma (supra), 1/5
th
was to be
deducted towards the personal expenses of the deceased.
Thus, the monthly loss of source of dependency to the
claimants, after deducting 1/5
th
, can be said to be
Rs.3,600/-.
75. The deceased was 45 years of age at the time of
accident. Therefore, in view of the dictum of the Apex
Court in the case of Sarla Verma (supra) and 2
nd
Schedule
attached to the Act, multiplier of 14 is just and appropriate
and is applied accordingly.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 45
76. In view of the above, the claimants are held
entitled to compensation to the tune of
Rs.3,600x12x14=Rs.6,04,800/- under the head ‘loss of source
of dependency’. In addition, the claimants are also held
entitled for Rs.10,000/- each (total Rs.40,000/-) under the
heads ‘loss of love and affection’, ‘loss of estate’, ‘loss of
consortium’ and ‘ funeral expenses’.
77. Accordingly, the claimants are held entitled to
Rs.6,04,800/- + Rs.40,000/- = Rs.6,44,800/-.
78. The appeal is allowed and the compensation is
enhanced, as indicated above. The appeal is disposed of
accordingly.
FAO No.129 of 2016
79. By the medium of instant appeal, the claimants
have challenged the award, dated 25
th
May, 2015, passed
by the Tribunal at Shimla, and have sought enhancement of
compensation. Vide the impugned award, Rs.9,64,160/-
came to be awarded in favour of the claimants, alongwith
interest at the rate of 7.5% per annum. The claimants
pleaded that the deceased was earning Rs.10,000/- per
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 46
month i.e. Rs.6,000/- as salary and Rs.4,000/- from the tuition
work.
80. However, the Tribun al, in the absence of any
proof qua income, has rightly assessed the monthly income
of the deceased to be Rs.5,000/-. The Tribunal after
deducting 1/3
rd
amount and adding 50% towards future
prospects, held monthly loss of source of dependency to the
tune of Rs.4,995/-.
81. The deceased was 36 years of age at the time of
accident. Therefore, in view of the dictum of the Apex
Court in the case of Sarla Verma (supra) and 2
nd
Schedule
attached to the Act, multiplier of 14 has been rightly applied
by the Tribunal. Accordingly, the compensation awarded
by the Tribunal under different heads is maintained.
82. In view of the fact s of the case, I am of the
opinion that the Tribunal has rightly awarded compensation,
needs no interference. Having said so, there is no merit in
the appeal and the same is dismissed.
FAO No.242 of 2016
83. Vide the award, impugned in the instant appeal,
the Tribunal has awarded Rs.6,21,000/-, alongwith interest at
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 47
the rate of 7.5% per annum. The Tribunal, on the basis of the
pleadings and the evidence adduced, has rightly taken the
monthly income of the deceased at Rs.6,000/-. Since the
deceased was a bachelor, 1/2 rightly came to be deducted
from the monthly income of the deceased towards his
personal expenses.
84. The deceased was 21 years of age at the time of
accident and the Tribunal keeping in view his age, has
rightly applied the multiplier of 16.
85. Having said so, no interference is required in the
impugned award and the same is upheld. Consequently,
the appeal is dismissed.
FAO No.41 of 2016
86. Through this appeal, the claimants have
challenged the award, dated 1
st
April, 2015, passed by the
Tribunal at Rampur Bushahr, and have sought enhancement
of compensation. Vide the impugned award, Rs.5,73,000/-
came to be awarded in favour of the claimants, alongwith
interest at the rate of 6% per annum. The claimants
pleaded that the deceased was a house wife and was
earning Rs.15,000/- per month.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 48
87. However, the Tribun al, in the absence of any
reliable evidence qua income, has rightly assessed the
monthly income of the deceased to be Rs.4,000/-. The
deceased was 42 years of age at the time of accident. In
view of the law laid down by the Apex Court in the case of
Sarla Verma (supra), the Tribunal has rightly applied the
multiplier of 14. Accordingly, in the facts of the case, the
compensation awarded by the Tribunal under different
heads i.e. Rs.4,48,000/- under the head ‘loss of source of
dependency’, Rs.1,00,000/- under the head ‘loss of love and
affection’ and Rs.25,000/- under the head ‘funeral
expenses’, appears to be adequate and needs no
enhancement.
88. In view of the above, there is no merit in the
appeal and the same is dismissed.
FAO No.42 of 2016
89. By the medium of this appeal, the claimants
have laid challenge to the award, dated 1
st
April, 2015,
passed by the Tribunal at Rampur Bushahr, whereby
compensation to the tune of Rs.12,19,000/- came to be
awarded in favour of the claimants, alongwith interest at the
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 49
rate of 6% per annum. The claimants by the medium of this
appeal, has sought enhancemen t of compensation. It was
pleaded in the claim petition that the deceased was a
retired Army Officer and his monthly income was Rs.35,000/-.
Thus, the claimants approach ed the Tribunal claiming
compensation to the tune of Rs.20,00,000/-.
90. The Tribunal, after making detailed discussion in
paragraph 29 of the impugned award, held that the
claimants had not placed any material on record to support
their claim that the deceased was earning Rs.35,000/- per
month. Relying on the statement of PW-1 Surender Pal
(claimant No.1), the Tribunal has rightly assessed the income
of the deceased as Rs.13,000/- per month, which he was
getting as pension. The deceased, at the time of death,
was of 55 years. After deducting 1/3
rd
amount towards the
personal expenses of the deceased and rightly applying the
multiplier of 11, the Tribunal awarded a sum of Rs.11,44,000/-
under the head ‘loss of source of dependency’, Rs.50,000/-
under the head ‘love and affection’ and Rs.25,000/- under
the head ‘funeral expenses’, i.e. Rs.12,19,000/- in total. The
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 50
amount of compensation awarded by the Tribunal appears
to be adequate, needs no interference.
91. In view of the above, there is no merit in the
appeal and the same is dismissed.
Cross Objections No.15 of 2016 in FAO No.486 of 2015
92. By the medium of these cross objections, the
claimants, being the parents and brother of the deceased,
have sought enhancement of compensation. The claimants
invoked the jurisdiction of the Tribunal at Shimla for grant of
compensation on account of the death of Diwan Chand,
who died in the accident in question. The Tribunal has taken
the monthly income of the deceased at Rs.3,050/-.
However, the income of the deceased, if taken at par with
the income of a labourer, can be said to be at Rs.4,500/-.
The deceased was bachelor, therefore, after deducting 1/2,
monthly loss of source of dependency to the claimants can
be said to be Rs.2,250/-. The deceased was 27 years of age
at the time of death and multiplier of 17 rightly came to be
applied.
93. In view of the above, the loss of source of
dependency to the claimants can be said to be
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 51
Rs.2250x12x17=Rs.4,59,000/-. In addition, Rs.10,000/- each
(total Rs.30,000/-) are also to be awarded to the claimants
under the heads ‘loss of love and affection’, ‘loss of estate’,
and ‘ funeral expenses’. Accordingly, the total
compensation can be worked out to be Rs.4,89,000/-,
whereas the Tribunal has awarded Rs.6,65,000/- as
compensation.
94. Keeping in view the object of granting of
compensation and the legislature's wisdom read with the
amendment made in the Act in the year 1994, it is for the
Tribunal or the Appellate Court to assess the ‘just’
compensation.
95. The Apex Court in the case of Nagappa versus
Gurudayal Singh and others, reported in AIR 2003 Supreme
Court 674 held that the law has caste a duty on the Tribunals
to award just compensation. It is apt to reproduce paras 7,
9 and 10 of the judgment herein:
“7. Firstly, under the provisions of Motor Vehicles Act,
1988, (hereinafter referred to as “the MV Act”) there is
no restriction that compensation could be awarded
only up to the amount claimed by the claimant. In
an appropriate case where from the evidence
brought on record if Tribunal/Court considers that
claimant is entitled to get more compensation than
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 52
claimed, the Tribunal may pass such award. Only
embargo is – it should be 'Just' compensation, that is
to say, it should be neither arbitrary, fanciful nor
unjustifiable from the evidence. This would be clear
by reference to the relevant provisions of the M.V.
Act. Section 166 provides that an application for
compensation arising out of an accident involving the
death of or bodily injury to, persons arising out of the
use of motor vehicles, or damages to any property
of a third party so arising, or both, could be made (a)
by the person who has sustained the injury; or (b) by
the owner of the property; (c) where death has
resulted from the accident, by all or any of the legal
representatives of the deceased; or (d) by any agent
duly authorised by the person injured or all or any of
the legal representatives of the deceased, as the
case may be. Under the proviso to sub-section (1), all
the legal representatives of the deceased who have
not joined as the claimants are to be impleaded as
respondents to the application for compensation.
Other important part of the said Section is sub-section
(4) which provides that “the Claims Tribunal shall treat
any report of accidents forwarded to it under sub-
section (6) of Section 158 as an application for
compensation under this Act.” Hence, Claims
Tribunal in appropriate case can treat the report
forwarded to it as an application for compensation
even though no such claim is made or no specified
amount is claimed.
8. ..........................
9. It appears that due importance is not given to sub-
section (4) of Section 166 which provides that the
Tribunal shall treat any report of the accidents
forwarded to it under sub-section (6) of Section 158, as
an application for compensation under this Act.
10. Thereafter, Section 168 empowers the Claims
Tribunal to “make an award determining the amount
of compensation which appear s to it to be just”.
Therefore, only requirement for determining the
compensation is that it must be 'just'. There is no other
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 53
limitation or restriction on its power for awarding just
compensation.”
96. In the case titled as State of Haryana and another
versus Jasbir Kaur and others, reported in AIR 2003
Supreme Court 3696, the Apex Court has discussed the
expression 'just'. It is apt to reproduce para 7 of the
judgment herein:
"7. It has to be kept in view that the Tribunal
constituted under the Act as provided in S. 168 is
required to make an award determining the amount
of compensation which is to be in the real sense
"damages" which in turn appears to it to be 'just and
reasonable'. It has to be borne in mind that
compensation for loss of limbs or life can hardly be
weighed in golden scales. But at the same time it has
to be borne in mind that the compensation is not
expected to be a windfall for the victim. Statutory
provisions clearly indicate the compensation must be
"just" and it cannot be a bonanza; nor a source of
profit; but the same should not be a pittance. The
Courts and Tribunals have a duty to weigh the various
factors and quantify the amount of compensation,
which should be just. What would be "just"
compensation is a vexed question. There can be no
golden rule applicable to all cases for measuring the
value of human life or a limb. Measure of damages
cannot be arrived at by precise mathematical
calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or
special features, if any. Every method or mode
adopted for assessing compensation has to be
considered in the background of "just" compensation
which is the pivotal consideration. Though by use of
the expression "which appears to it to be just" a wide
discretion is vested on the Tribunal, the determination
has to be rational, to be done by a judicious
approach and not the ou tcome of whims, wild
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 54
guesses and arbitrariness. The expression "just" denotes
equitability, fairness and reasonableness, and non-
arbitrary. If it is not so it cannot be just. (See Helen C.
Rebello v. Maharashtra State Road Transport
Corporation (AIR 1998 SC 3191
)."
97. The same view has been taken by the Apex
Court in a case titled as The Divisional Controller, K.S.R.T.C.
versus Mahadeva Shetty and another, reported in AIR 2003
Supreme Court 4172.
98. The Apex Court in another case titled as
Ningamma & another versus United India Insurance Co.
Ltd., reported in 2009 AIR SCW 4916, held that the Court is
duty bound to award just compensation to which the
claimants are entitled to. It is profitable to reproduce para
25 of the judgment herein:
“25. Undoubtedly, Section 166 of the MVA deals with
“Just Compensation” and even if in the pleadings no
specific claim was made under section 166 of the
MVA, in our considered opinion a party should not be
deprived from getting “Just Compensation” in case
the claimant is able to make out a case under any
provision of law. Needless to say, the MVA is beneficial
and welfare legislation. In fact, the Court is duty
bound and entitled to award “Just Compensation”
irrespective of the fact whether any plea in that behalf
was raised by the claimant or not. However, whether
or not the claimants would be governed with the terms
and conditions of the insurance policy and whether or
not the provisions of Section 147 of the MVA would be
applicable in the present case and also whether or
not there was rash and negligent driving on the part of
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 55
the deceased, are essentially a matter of fact which
was required to be considered and answered at least
by the High Court.”
99. The Apex Court in a latest judgment in the case
titled as Smt. Savita versus Bindar Singh & others, reported
in 2014 AIR SCW 2053, has laid down the same proposition of
law and held that the Tribunal as well as the Appellate Court
shall
award just, equitable, fair and reasonable compensation
judging the situation prevailing at that point of time with
reference to the settled principles on assessment of damages
. It
is apt to reproduce para 6 of the judgment herein:
"6. After considering the decisions of this Court in
Santosh Devi as well as Rajesh v. Rajbir Singh (supra),
we are of the opinion that it is the duty of the Court to
fix a just compensation. At the time of fixing such
compensation, the court should not succumb to the
niceties or technicalities to grant just compensation in
favour of the claimant. It is the duty of the court to
equate, as far as possible, the misery on account of
the accident with the compensation so that the
injured or the dependants should not face the
vagaries of life on account of discontinuance of the
income earned by the victim. Therefore, it will be the
bounden duty of the Tribunal to award just, equitable,
fair and reasonable co mpensation judging the
situation prevailing at that point of time with reference
to the settled principles on assessment of damages. In
doing so, the Tribunal can also ignore the claim made
by the claimant in the application for compensation
with the prime object to assess the award based on
the principle that the award should be just, equitable,
fair and reasonable compensation."
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 56
100. This Court in a case titled as United India
Insurance Company Ltd. versus Smt. Kulwant Kaur, reported
in Latest HLJ 2014 (HP) 174, held that the Appellate Court
and the Tribunal have
the same powers. It is apt to
reproduce paras 41 to 44 of the judgment herein:
"41. Before I determine what is the just and
adequate compensation in the case in hand, it is also
a moot question – whether the Appellate Court can
enhance compensation, even though, not prayed by
the medium of appeal or by cross-objection.
42. The Motor Vehicles Act, 1988 (hereinafter
referred to as “the MV Act”) has gone through a sea
change in the year 1994 and sub-section (6) has been
added to Section 158 of the MV Act, which reads as
under:
“158. Production of certain certificates, licence and
permit in certain cases. -
...................................
(6) As soon as any information regarding any
accident involving death or bodily injury to any
person is recorded or report under this section is
completed by a police officer, the officer incharge
of the police station shall forward a copy of the same
within thirty days from the date of recording of
information or, as the case may be, on completion
of such report to the Claims Tribunal having
jurisdiction and a copy thereof to the concerned
insurer, and where a copy is made available to the
owner, he shall also within thirty days of receipt of
such report, forward the same to such Claims
Tribunal and Insurer.”
In terms of this provision, the report is to be submitted
to the Tribunal having the jurisdiction.
43. Also, an amendment has been carried out in
Section 166 of the MV Act and sub-section (4) stands
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 57
added. It is apt to reproduce sub-section (4) of
Section 166 of the MV Act herein:
“166. Application for compensation. -
.......................................
(4) The Claims Tribunal shall treat any report of
accidents forwarded to it under sub-section (6) of
Section 158 as an application for compensation under
this Act.”
It mandates that a Tribunal has to treat report under
Section 158 (6) (supra) of the MV Act as a claim
petition. Thus, there is no handicap or restriction in
granting compensation in excess of the amount
claimed by the claimant in the claim petition.
44. Keeping in view the purpose and object of the
said provisions read with the mandate of Section 173
of the MV Act, I am of the view that the Appellate
Court is exercising the same powers, which the Tribunal
is having. Also, sub-clause (2) of Section 107 of the
Code of Civil Procedure (hereinafter referred to as
“the CPC”) mandates that the Appellate Court is
having all those powers, which the trial Court is having.
It is apt to reproduce Section 107 sub-clause (2) of the
CPC herein:
“107. Powers of Appellate Court. -
.................................
(2) Subject as aforesaid, the Appellate Court shall
have the same powers and shall perform as nearly as
may be the same duties as are conferred and
imposed by the Code on Courts of original jurisdiction
in respect of suits instituted therein.”
101. This Court in its latest decision in batch of
appeals, the lead of which was FAO No.203 of 2010, titled
Nati Devi and another vs. Maya Devi and others, decided on
20
th
May, 2016, has held that the Appellate Court, while
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 58
hearing an appeal under Section 173 of the Act, in order to
impart complete justice to the parties, can exercise powers
similar to that of a Claims Tribunal.
102. Following the law, as discussed hereinabove, the
impugned award is modified, the amount of compensation
is reduced and the claimants are held entitled to
compensation to the tune of Rs.4,89,000/-. Accordingly, the
cross objections are dismissed.
Cross objection 12 of 2016 in FAO No.492 of 2015
103. The Tribunal has awarde d Rs.3,65,000/- in favour
of the claimants. The claimants pleaded in the claim
petition that the deceased was earning Rs.13,000/- i.e.
Rs.6,000/- from pension and Rs.7,000/- from agriculture works.
However, the Tribunal in paragraph 24 of the impugned
award, after referring to the evidence led by the claimants,
held that the monthly income of the deceased was
Rs.6,000/- per month. After deducting 1/3
rd
amount towards
his personal expenses, the monthly loss of source of
dependency was rightly held to be Rs.4,000/-. Keeping in
view the age of the deceased of 70 years at the time of
death, multiplier of 5 was rightly came to be applied.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 59
104. In view of the above, the loss of source of
dependency to the claimants can be said to be
Rs.4,000x12x5=Rs.2,40,000/-. In addition, Rs.10,000/- each
(total Rs.40,000/-) are also to be awarded to the claimants
under the heads ‘loss of love and affection’, ‘loss of estate’,
‘loss of consortium’ and ‘ funeral expenses’.
105. Accordingly, the total compensation can be
worked out in favour of the claimants to Rs.2,40,000/- +
Rs.40,000/- = Rs.2,80,000/-. However, the Tribunal has
awarded Rs.3,65,000/- under different heads, which is higher
than the amount worked out above.
106. Following the law laid down by the Apex Court
and by this Court, as discussed supra while determining Cross
Objections No.15 of 2016 in FAO No.486 of 2015, the
compensation awarded by the Tribunal is reduced and the
claimants are held entitled to Rs.2,80,000/-. The impugned
award is modified and the cross objections are dismissed
Cross Objections No.13 of 2016 in FAO No.493 of 2015
107. Vide the impugned award, the Tribunal awarded
compensation to the tune of Rs.8,10,000/- in favour of the
claimants. The claimants claimed that the deceased, being
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 60
an agriculturist and horticulturist, was earning more than
Rs.14,000/- per month. In support of their claim and to prove
the income of the deceased, the claimants led oral
evidence through which they have established that the
deceased was earning more than Rs.10,000/- per month.
Therefore, it appears that the Tribunal has fallen in error while
assessing monthly income of the deceased at Rs.5,000/-.
108. Accordingly, after exercising the guess work, it
can safely be held that the deceased was earning not less
than Rs.9,000/- per month, though there is oral evidence that
he was earning more than Rs.10,000/- per month. Since the
deceased was bachelor, 1/2 has to be deducted from his
monthly income. Therefore, the monthly loss of source of
dependency to the claimants can be said to be Rs.4500/-.
109. The deceased was 25 years of age at the time of
accident. Therefore, multiplier of 17 has been rightly applied
by the Tribunal.
110. In view of the above, the claimants are held
entitled to Rs.4500x12x17= 9,18,000/- under the head ‘loss of
source of dependency’. In addition, claimants are also held
entitled for Rs.10,000/- each (Rs.30,000/- in total) under the
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 61
heads ‘loss of love and affection’, loss of estate’, and ‘
funeral expenses’.
111. Accordingly, the total compensation, to which
the claimants are held entitled to, comes to Rs.9,18,000/- +
Rs.30,000/- = Rs.9,48,000/-. Accordingly, the cross objections
are allowed and the amount is enhanced and the
impugned award is modified.
Cross objections No.16 of 2016 in FAO No.12 of 2016
112. Through these cross objections, the claimants
have sought enhancement of compensation awarded by
the Tribunal to the tune of Rs.10,84,040/-. It is claimed that
the deceased was working as commission agent in Sabzi
Mandi, Dhali and was earning more than Rs.10,000/- per
month. To prove the said factum, the claimants through oral
evidence have proved that the deceased was earning
Rs.10,000/- per month. The Tribunal has fallen into an error in
not relying the said testimony of the witnesses and in coming
to the conclusion that the deceased was earning Rs.5,000/-
per month.
113. Keeping in view the evidence led,
hypothetically, the monthly income of the deceased can be
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 62
said to be Rs.10,000/- . Keeping in view the number of
dependents which is three, 1/3
rd
has to be deducted.
Accordingly, the monthly loss of source of dependency to
the claimants can be said to be Rs.6,667/-.
114. The deceased was 32 years of age at the time of
the accident. Therefore, multiplier of 15 was applicable. The
Tribunal again has fallen into an error in applying the
multiplier of 16. Accordingly, it is held that the claimants lost
source of dependency to the tune of
Rs.6,667x12x15=Rs.12,00,060/-. In addition, claimants are also
held entitled for Rs.10,000/- each (Rs.40,000/- in total) under
the heads ‘loss of love and affection’, ‘ loss of estate’, loss of
consortium and ‘ funeral expenses’. Thus, total
compensation comes to Rs.12,40,060/-. Accordingly, the
cross objections are allowed and the impugned award is
modified as indicated above.
Cross objections No. 17 of 2016 in FAO No.15 of 2016
115. Vide the impugned award, the Tribunal awarded
Rs.5,85,000/- as compensation alongwith interest at the rate
of 7.5% per annum. Feeling aggrieved, the claimants have
moved the instant cross objections for enhancement of
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 63
compensation. It was pleaded in the claim petition that the
deceased was an agriculturist and was earning Rs.12,000/-
per month. The Tribunal assessed the income of the
deceased at Rs.4,500/- per month, which, in the facts of the
case and as per the pleadings contained in the claim
petition, appears to be on the lower side. Therefore, after
exercising guess work I am of the opinion that the income of
the deceased was not less than Rs.6,000/- per month. The
claimants are five in number, therefore, 1/5
th
has to be
deducted from the monthly income of the deceased in view
of the dictum of the Apex Court in the case of Sarla Verma
(supra). Accordingly, after deducting 1/5
th
amount, the
monthly loss of source of dependency to the claimants can
be said to be Rs.4,800/-.
116. The deceased was 40 years of age at the of
accident and keeping in view his age, multiplier of 14 is just
and appropriate. The Tribunal has incorrectly applied the
multiplier of 15. Thus, the claimants are held entitled to
Rs.4,800x12x14=Rs.8,06,400/-. Apart from it, the claimants are
also held entitled for Rs.10,000/- each (Rs.40,000/- in total)
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 64
under the heads ‘loss of love and affection’, ‘ loss of estate’,
loss of consortium’ and ‘ funeral expenses’.
117. In view of the above, the cross objections are
allowed and the claimants are held entitled to Rs.8,46,400/-
as compensation. The impu gned award is modified
accordingly.
Cross Objections No.18 of 2016 in FAO No.23 of 2016
118. Through these cross objections, the claimants
have prayed for enhancement of compensation on
account of death of Vivek Bali in the accident in question.
The claimants pleaded that the deceased was earning
Rs.12,000/- per month being expert in pruning and grafting
of plants. In order to prove income of the deceased,
claimant No.2, namely, Virender stepped into the witness
box as PW-1 and stated that the deceased was earning
more than Rs.12,000/- per month. PW-5 Shiv Ram has also
stated similarly in regard to the income of the deceased.
However, the Tribunal has not relied upon the statements of
the above witnesses and notionally taken the monthly
income of the deceased at Rs.5,000/-, which, in view of the
pleadings and the evidence, appears to be on the lower
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 65
side. Accordingly, after exercising the guess work, the
monthly income of the de ceased can be said to be
Rs.8,000/- per month.
119. Since the deceased was bachelor, therefore, 1/2
has to be deducted from the monthly income of the
deceased in view of the dictum of the Apex Court in the
case of Sarla Verma (supra). Accordingly, after deducting
1/2 amount, the monthly loss of source of dependency to
the claimants can be said to be Rs.4,000/-.
120. The deceased was 18 years of age at the of
accident and keeping in view his age, multiplier of 18 is just
and appropriate and has been correctly applied by the
Tribunal. Thus, the claimants are held entitled to
Rs.4,000x12x18=Rs.8,64,000/-. Apart from it, the claimants are
also held entitled for Rs.10,000/- each (Rs.30,000/- in total)
under the heads ‘loss of love and affection’, ‘ loss of estate’
and ‘ funeral expenses’.
121. In view of the abov e, the total compensation
can be worked out to be Rs.8,64,000 + Rs.30,000 =
Rs.8,94,000/-. The Tribunal has awarded Rs.11,23,920/- which
is on the higher side from the amount worked out above.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 66
122. Following the law laid down by the Apex Court
and by this Court, as discussed supra while determining Cross
Objections No.15 of 2016 in FAO No.486 of 2015, the
compensation awarded by the Tribunal is reduced and the
claimants are held entitled to Rs.8,94,000/-. The impugned
award is modified and the cross objections are dismissed
accordingly.
Cross objections No.19 of 2016 in FAO No.26 of 2016
123. The claimant, being the mother of the
deceased, by the medium of these cross objections, has
sought enhancement of compensation awarded by the
Tribunal on account of death of Lok Chand in the accident
in question. It was claimed that the deceased was earning
more than Rs.10,000/- per month. The deceased was 24
years of age and was bachelor. The deceased was claimed
to be an agriculturist and horticulturist.
124. The Tribunal, in th e absence of any reliable
evidence in regard to the income of the deceased,
awarded lump sum compensation to the tune of
Rs.7,75,000/- under different heads. While awarding
compensation, the Tribunal has made detailed discussion in
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 67
paragraph 30 of the impugned award, which, in my opinion,
is based on the facts of the case. Accordingly, it is held that
the compensation awarded by the Tribunal is adequate.
125. In view of the above, th ere is no merit in the cross
objections and the same are dismissed.
Cross Objections No.14 of 2016 in FAO No.484 of 2015
126. Claimants, being the parents of deceased
Ghanshyam, filed these cross objections for enhancement of
compensation. The Tribunal, after making detailed
discussion in paragraph 32 of the impugned award, has
awarded Rs.7,38,000/- as compensation in favour of the
claimants.
127. The Tribunal has categorically recorded findings
in paragraph 32 of the impugned award that the deceased
was earning Rs.3,716/- per month as salary, which findings
are based on the statement ma de by PW-4 Shri Summer
Jeet Singh and the salary certificate placed on record.
Thus, the Tribunal has rightly held that the deceased was
earning Rs.3,750/- (rounded off) per month. The Tribunal has
again rightly added 30% of the income towards future
prospects and rightly worked out monthly loss of source of
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 68
dependency to the tune of Rs.4,875/-. Keeping in view the
age of the deceased of 26 years, the Tribunal has rightly
applied multiplier of 17.
128. In view of the above, the amount of
compensation awarded by the Tribunal cannot be said to
be inadequate and is accordingly maintained and the cross
objections are dismissed.
Cross objections No.20 of 2016 in FAO No.169 of 2016
129. The claimants have filed these cross objections
seeking enhancement of compensation awarded by the
Tribunal at Shimla, vide award dated 25
th
May, 2015.
Claimants, being the widow and sons of deceased Yoga
Nand Bali, filed the claim petition. It was claimed that the
deceased, being expert in herbal medicines, was earning
Rs.8,000/- per month. The Tribunal, in paragraph 24 of the
impugned award, has made deta iled discussion and rightly
held that the deceased was earning Rs.5,000/- per month
and after deducting 1/3
rd
towards his personal expenses, the
Tribunal concluded that the monthly loss of source of
dependency to the claimants was Rs.3,330/-. In addition,
15% increase for future prospects was also given.
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 69
130. The age of the deceased, at the time of
accident, was 60 years. The Tribunal has rightly applied the
multiplier of 9. Apart from it, the Tribunal has also awarded
Rs.1,00,000/- under the head loss of consortium i.e. spouse
and Rs.25,000/- under the head funeral expenses.
131. Keeping in view the discussion made by the
Tribunal in paragraph 24 of the impugned award and the
pleadings of the parties, the amount of compensation
awarded by the tribunal appears to be appropriate and
needs no enhancement. Accordingly, the impugned award
is upheld and the cross objections are dismissed.
132. As far as interest is concerned, the Tribunal has
awarded interest in all the cases, at different rates i.e. 6%,
7.5% and 9% per annum. It is beaten law of land that the
rate of interest should be awarded as per the prevailing
rates, in view of the judgments rendered by the Apex Court
in cases titled as United India Insurance Co. Ltd. and others
versus Patricia Jean Mahajan and others, reported in (2002)
6 Supreme Court Cases 281; Santosh Devi versus National
Insurance Company Ltd. and others, reported in 2012 AIR
SCW 2892; Amrit Bhanu Shali and others versus National
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 70
Insurance Company Limited and others, reported in (2012)
11 Supreme Court Cases 738; Smt. Savita versus Binder Singh
& others, reported in 2014 AIR SCW 2053; Kalpanaraj & Ors.
versus Tamil Nadu State Transport Corpn., reported in 2014
AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish
Pd. Jain and others, reported in (2015) 4 Supreme Court
Cases 433, and Mohinder Kaur and others versus Hira Nand
Sindhi (Ghoriwala) and another, reported in (2015) 4
Supreme Court Cases 434, and discussed by this Court in a
batch of FAOs, FAO No. 256 of 2010, titled as Oriental
Insurance Company versus Smt. Indiro and others, being the
lead case, decided on 19.06.2015.
133. Having said so, it is held that the amount of
compensation, awarded in all the cases. shall carry interest
at the rate of 7.5% per annum from the date of filing of the
claim petition till the deposit thereof.
134. The insurer is directed to deposit the enhanced
amount, in all such cases where the amount is enhanced,
within a period of eight weeks from today. The insurer is also
directed to deposit the amount of compensation in FAO
Nos. 305 of 2015 and 306 of 2015, wherein the Tribunal at
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
High Court of H.P. 71
Rampur Bushahr had saddled th e owner with the liability,
within the same period.
135. On deposit of the amou nt, as above, the Registry
is directed to release the amount of compensation
alongwith up-to-date interest, in favour of respective
claimants forthwith, through their respective bank accounts,
strictly in terms of the impugned award. The statutory
amount deposited by the owner-insured in fAO Nos.305 and
306 of 2015 is awarded as costs in favour of the claimants, in
addition to the amount of compensation to be deposited by
the insurer.
136. Since the rate of interest has been awarded at
7.5%, instead of 9% as awarded by the Tribunal in some
cases, and the amount of compensation in three cases has
also been reduced, therefore, the excess amount, if any,
worked out in favour of the insurer, is directed to be
refunded to the insurer through payees’ account cheque.
May 27, 2016. ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
::: Downloaded on - 01/11/2022 19:30:52 :::CIS
Legal Notes
Add a Note....