Moti Lal vs Ram Kumar & Ors.

Virender Singh, Judge

AppellantMoti Lal has filed the present appeal, under Section 173 of the Motor Vehicles Act (hereinafter referred to as ‘the M.V. Act’), against the award dated 22.11.2016, passed by learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District Shimla, H.P. (hereinafter referred to as ‘the learned Tribunal’), in MAC Petition No. 30 of 2011, titled as ‘Ram Kumar & Anr. Versus Moti Lal & Anr.’.

By way of the award, dated 22.11.2016, the learned Tribunal has allowed the petition filed by respondents No. 1 & 2 and awarded a sum of Rs. 12,16,400/, along with interest at the rate of 7.5% per annum, from the date of institution of the petition, till payment of the entire amount. The ultimate liability to pay the amount of compensation has been fastened upon the present appellantMoti Lal.

For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned Tribunal.

Brief facts, leading to filing of the present appeal, before this Court, as borne out from the record, may be summed up, as under:

When put to notice, the claim petition has been contested by the respondents, by filing the reply.

From the pleadings of the parties, the following issues were framed by the learned Tribunal, on 29.06.2011:

Thereafter, the parties to the lis were directed to adduce evidence.

After the closure of evidence and hearing the learned counsel appearing for the parties, the learned Tribunal, has allowed the petition, as referred to above, by fastening the liability to pay the amount of compensation, upon respondent No. 1Moti Lal, who is now before this Court in an appeal filed under Section 173 of M.V. Act.

The owner has assailed the award, before this court mainly on the ground that the learned Tribunal has wrongly held that deceased was not traveling in the vehicle, as owner of the goods, whereas RW2, who was in the vehicle, specifically stated in her statement that the vehicle was hired by her and the deceased, for the transportation of flower pots, purchased by them. Her statement, according to the appellantowner, has wrongly been ignored by the learned Tribunal, on the ground, that she has not got recorded this statement in the FIR Ext. PW1/B.

The learned Tribunal has wrongly held the deceased as a gratuitous passenger and the statement on oath made by RW2, has wrongly been ignored by the learned Tribunal. The award has also been challenged on the ground that the learned Tribunal has wrongly held that the husband of the deceased did not support his own case and recorded some contradictions. However, according to the appellant, learned Tribunal has not considered the fact that PW1 was not present at the spot and from his deposition, deceased cannot be declared as gratuitous passenger.

According to the appellant, learned Tribunal has wrongly not accepted the stand of RW1 that the vehicle was hired by Rampati and deceased, as this fact was disclosed to appellant, when he talked to his son.

The quantum of award, has also been assailed on the ground that the learned Tribunal has wrongly taken the income of deceased as Rs. 5,350/ per month, whereas the same should have been Rs. 3,000/ per month.

On the basis of above facts, Sh. B.S. Chauhan, Senior Advocate, with Ms. Aditi Rana, Advocate, appearing for the appellant, has prayed that the appeal may kindly be accepted and the award passed by learned Tribunal, may kindly be modified by fastening the liability to pay the amount of compensation, upon the Insurance Company.

Per contra, Ms. Tim Saran, Advocate appearing for the claimants, has supported the award and prayed that the amount of compensation may kindly be enhanced, so that the same could fall within the definition of ‘just compensation’.

Mr. Deepak Bhasin, Senior Advocate, with Mr. Sambhav Bhasin, Advocate, appearing for the Insurance Company, has supported the award and prayed that learned Tribunal has rightly taken into consideration, the oral, as well as, the documentary evidence, in the present case and rightly held that the deceased was traveling in the offending vehicle as gratuitous passenger and according to him, the violation of fundamental conditions of the insurance policy has been proved, in the present case. As such, the learned Tribunal has rightly fastened the liability to pay the amount of compensation, along with upto date interest, upon the owner of the offending vehicle.

The appeal is the continuation of the original proceedings and in order to decide the contentions as raised in the appeal, it would be just and appropriate to discuss the oral, as well as, the documentary evidence, led by the parties to the petition, before the learned Tribunal.

After framing of the issues, petitioner No. 1 Ram Kumar appeared in the witness box as PW1 and filed his duly sworn affidavit, which is based upon the assertions, as made in the claim petition. He has produced the copy of FIR Ext. PW1/B, copy of postmortem report Ext. PW1/C and salary certificate of the deceased Mark P1.

In the crossexamination, he has admitted that he has not witnessed the accident in question. According to this witness, when, the accident had taken place, it was winter season. On that day, there was heavy rain and road was wet. He also admitted that road was narrow, at the relevant place. Construction work was going on, on the road. This witness is not aware about the reason, how the accident in question had taken place.

In the crossexamination by the Insurance Company, he has deposed that on the fateful day, his wife was returning from Solan and she had gone there two days prior to the accident. She reached at Bhavanagar by bus. The vehicle was hired by Rampati and he was also not aware about the place, where the plants were purchased by his wife. The plants were of Rampati and she had to bring them to her house at Dakhoo.

To rebut this evidence, respondent No. 1 Moti Lal, appeared in the witness box and filed the affidavit, in which, he has taken the defence that on 13.02.2011, Rampati and Noryum Mani, hired the offending vehicle and both of them had loaded the flower pots and plants from Bhavanagar to transport the same to Dakhoo, Reckong Peo. This information was given to him by his son Pradeep, who was driving the offending vehicle. On the next day, this witness received the information regarding the accident, upon which, he had reached at the spot. Dead body of his son has not yet been traced. Driving licence was in the pocket of his son, as such, the same could not be traced. However, he has produced the copy of driving licence. His son was having a valid driving licence to drive the offending vehicle, which was issued from Nagaland. On verification, the said licence was found to be valid. According to him, the accident in question had taken place due to sudden mechanical defect, which had occurred in the offending vehicle.

In the crossexamination by the learned counsel for the Insurance Company, he has again reiterated that the driving licence was issued by Licencing Authority Nagaland. However, his son never remained at Nagaland, but voluntarily stated that he used to go to Nagaland, as his relatives reside there. This witness has seen the driving licence of his son. Like petitioner No. 1, he was not present at the time of accident, however, he has talked with his son, at 8:00 pm. Flower pots were loaded from Sungra, however, he has feigned ignorance as to how many flower pots were loaded. Initially, he stated that he does not know who was owner of those flower pots, but, later on, he came to know that those flower pots were of some ladies. He has denied that those ladies never hired the vehicle for carrying any goods. He has admitted that he had filled the claim form and submitted to the Insurance Company, in which, columns of goods and nature thereof were left blank, but voluntarily stated that he has not filled the claim form and the same was filled by the officials of Insurance Company. In the crossexamination, he admitted that when he visited the spot, goods were lying there.

Ram Pati, who was traveling with the deceased, in the offending vehicle, has been examined as RW2. According to her affidavit, which, she had filed in her examinationin chief, she has deposed that on 13.02.2011, she, along with Noryum Mani, had hired the offending vehicle at Bhavanagar. Both of them had loaded the flower pots and plants. The fare of the vehicle was fixed as Rs. 1,500/. However, on the way, vehicle met with an accident.

In the crossexamination, this witness has deposed that on the day of accident, she had reached at Bhavanagar at about 2:30 pm. They had purchased 30 flower pots. Some flower pots were having plants and some were empty. The pots were of cement. Rate of pots was Rs. 180/ per pot. Rs. 3,000/ were paid to the shopkeeper, however, she could not disclose about the exact amount paid by Noryum Mani. The FIR, in the present case, was lodged on her statement. She, after going through the FIR Ext. PW1/B, has stated that there is no reference of carrying of flower pots in the said vehicle, but voluntarily stated that she had informed the police. Within half an hour, they had reached at Ralli Bridge, where the accident in question, had taken place.

On the other hand, Insurance Company has examined Sh. Ramesh Chander Negi, Branch Manager NIC Rampur, who has deposed that vehicle was a commercial vehicle and a goods carrier and passengers were not allowed to travel in the vehicle. The deceased was traveling as gratuitous passenger. She was not carrying any goods in the offending vehicle. When the owner submitted the form, he has not mentioned that the goods were being carried in the vehicle. OD claim submitted by the owner was declined. This witness was not present at the spot. According to this witness, three persons carrying goods could have traveled in the vehicle.

So far as the documentary evidence is concerned, Ext. PW1/B is the copy of FIR, Ext. PW1/C is the copy of postmortem report, Mark P1 is the salary certificate, Ext. RW1/B is the copy of Registration Certificate, Ext. RW1/C is the insurance policy, Ext. RW1/D is the fitness certificate, Mark A is copy of license, Ext. RA is insurance policy and Ext. RW3/A is the insurance policy with terms and conditions.

This is the entire evidence, led on record, by the parties to the lis.

Learned Tribunal, in the present case, has fastened the liability to pay the amount of compensation, upon the owner of the offending vehicle, by holding that the deceased was a gratuitous passenger. While holding so, the learned Tribunal has relied upon the FIR Ext. PW1/B, which was lodged on the statement of Rampati. The material fact, with regard to the hiring of the vehicle, has not been mentioned in it. In this background, now this Court would proceed further to determine as to whether the said findings, so recorded by the learned Tribunal, are sustainable in the eyes of law, or need interference, by this Court.

Admittedly, the offending vehicle is a Light Commercial Vehicle. As per the copy of R.C. Ext. RW1/B, seatting capacity of the same is 2+1. The onus to prove the fundamental breach of the terms and conditions of the insurance policy is upon the Insurance Company. Admittedly, the FIR in question was lodged by RW2 Rampati. The evidence of a witness is to be considered as a whole, and not in piecemeal. This witness has admitted that the FIR in question has been lodged by her. In the examinationinchief, this witness has not deposed anything about lodging of the FIR, but categorically stated that she and deceased Noryum Mani had hired the offending vehicle to transport the flower pots and thereafter, flower pots and plants were loaded, after fixing the fare of the vehicle as Rs. 1,500/. In the cross examination, whatsoever, deposed by this witness, has been deposed in a term, which includes Noryum Mani, as she has deposed that “We purchased 30 flower pots in all”. In her examinationinchief, she has also deposed that they have loaded the flower pots and plants in the said vehicle and on the way to Reckong Peo, the vehicle met with an accident and rolled down in the river.

Admittedly, this witness has neither mentioned about the purchase of the flower pots and plants, nor she has deposed about hiring of the offending vehicle, in the FIR lodged by her, but, the Court cannot lose sight of the fact that RW2 had a miraculous escape, in the accident, as the other two occupants of the vehicle i.e. driver and Noryum Mani, had lost their lives. She was in trauma and it cannot be expected from a layman, who is having low legal literacy, to depose each and every fact in detail, while lodging the FIR.

The primary purpose of FIR is to put criminal machinery into motion. Moreover, the statement under Section 154 Cr.P.C., was admittedly not made on oath, whereas, this witness, on oath, has categorically stated that the offending vehicle was hired by her and Noryum Mani, for transporting the flower pots and plants and after fixing the fare as Rs. 1,500/.

Now, two different versions were before the learned Tribunal, one version, as made in the FIR under Section 154 Cr.P.C. and other version made, on oath, by the witness, who was also crossexamined at length by learned counsel appearing for the Insurance Company. In such situation, the version on oath given by RW2, who admittedly was present at the spot, is only to be accepted.

While holding so, the view of this Court is being guided by the decision of Hon’ble Supreme Court in case National Insurance Company Ltd. Versus Chamundeshwari & Ors., (2021) 18 Supreme Court Cases 596. Relevant paragraph 8 of the judgment, are reproduced, as under:

The driver of the offending vehicle was not a stranger, but son of respondent No. 1. The petitioners have specifically pleaded in the claim petition that the vehicle was hired by Rampati and Noryum Mani, to transport flower pots and plants in para 10 of the claim petition, and in reply to the said para, respondent No. 1, has admitted said para 10 of the claim petition.

Once, the factual position has been admitted by respondent No. 1, who is supposed to admit or deny the same, then, the learned Tribunal has fallen into error by ignoring the said admission, as despite lengthy cross examination by the counsel representing the Insurance Company, nothing material could be elicited from respondent No. 1, when he appeared in the witness box, as RW1. Rather, in his crossexamination, he has given the source of information to him regarding hiring of the vehicle, as his son.

Even otherwise, RW1 in his crossexamination used the term ladies, who had hired the vehicle. In such situation, the petitioners have probablized the stand that the vehicle in question was hired by Rampati and Noryum Mani, and as such, they were traveling in the vehicle as owner of goods.

In view of the above discussion, this Court is of the view that the owner has been able to satisfy the judicial conscience of this Court, that the learned Tribunal has fallen into error to fasten the liability to pay the compensation amount, upon the owner, whereas ultimate liability is required to be fastened upon Insurance Company, to pay the amount of compensation, along with up to date interest. Ordered accordingly.

It is no longer res integra that the endeavour of the Court/Tribunal is to grant ‘just compensation’. In order to adjudge the above legislative intent, now, this Court would consider the fact, whether the amount of compensation, which has been awarded to the petitioners, falls within the definition of ‘just compensation’ or not.

The learned Tribunal has taken the age of the deceased as 29 years, on the basis of the age, as mentioned in the postmortem report Ext. PW1/C. In the absence of any evidence contrary to the said fact, the learned Tribunal has rightly taken the age as 29 years.

The learned Tribunal has taken the income/ contribution of deceased towards her family as Rs. 8,000/ per month. In the absence of any challenge to the said amount, this Court is of the view that the said amount would be taken as contribution, on account of the multifarious activities, being done by the female, in the household. However, the learned Tribunal has not given any addition, on account of the future prospects, had Smt. Noryum Mani, been alive.

In view of the the decision in “National Insurance Company Ltd. Versus Pranay Sethi & Others, (2017) 16 Supreme Court Cases 680”, 40% amount is liable to be added, on account of future prospects. Relevant paragraphs 59 to 59.8 are reproduced, as under:

Thus, 40% amount is liable to be added, on account of future prospects, as Smt. Noryum Mani was working in unorganized sector and her age at the relevant time, was 29 years. Thus, her contribution towards her family comes to Rs. 8000 + 40% (3200) = Rs. 11,200/ per month.

The learned Tribunal has rightly deducted 1/3rd amount, from her income, towards her personal expenses, had she been alive. Thus, deducting 1/3rd out of the income of the deceased, on account of her personal expenses, her contribution to her family, thus, comes to Rs. 11,200/ Rs. 3,733/ = Rs. 7,467/ per month.

The learned Tribunal has applied the multiplier of ‘17’, which is appropriate multiplier to be applied in the present case, in view of the law laid down in “Sarla Verma Vs Delhi Transport Corportation, 2009 (6) SCC 121”. Thus, the loss of dependency comes to Rs. 7,467/ x 12 x 17 = Rs. 15,23,268/.

The learned Tribunal has fallen into error by awarding a sum of Rs. 1,00,000/ on account of loss of consortium and Rs. 25,000/ on account of funeral expenses. The said findings are not sustainable in the eyes of law, in view of the decision of the Constitution Bench of the Hon’ble Supreme Court in Pranay Sethi’s case (supra).

Under the conventional heads, as per the dictate of Pranay Sethi’s case (supra), the petitioners are also held entitled for compensation to the tune of Rs. 15,000/; Rs. 15,000/; and Rs. 40,000/, under the heads: ‘loss of estate’, ‘funeral expenses’, and ‘loss of consortium’ respectively.

In view of the decision of Hon’ble Supreme Court, in Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 Supreme Court Cases 130, all the petitioners are held entitled to compensation under the head ‘loss of consortium’. The relevant paras 21 to 24 of the judgment, are reproduced, as under:

Thus, the entitlement of the petitioners, is adjudicated, as under:

The entitlement of the petitioners with a view to grant just compensation, thus, comes to Rs. 16,33,268/.

The learned Tribunal has rightly awarded the rate of interest to the petitioners at the rate of 7.5% per annum, which needs no interference by this Court.

No other point has been urged or argued.

Having glance of the above discussion, the appeal of the appellantowner is allowed and the Insurance Company, being insurer of the offending vehicle, is held liable to indemnify the owner. The amount of compensation is enhanced from Rs. 12,16,400/ to Rs. 16,33,268/, with interest at the rate of 7.5% per annum, from the date of filing of the petition, till the deposit of award amount. The amount of compensation shall be apportioned amongst the petitioners, in the following manner:

Petitioner No. 1 : 40%

Petitioner No. 2 : remaining 60%.

The amount, falling in the share of petitioner No. 2, being minor, on its deposit, is ordered to be invested in the shape of FDR with some nationalized Bank, coterminus with the majority of petitioner No. 2.

Parties are left to bear their own costs.

Memo of costs be prepared accordingly.

Record be sent back.