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Judgment
Ajay Mohan Goel,
By way of this writ petition, the petitioner has assailed Award, dated 09.04.2010, passed by the Court of learned Motor Accident Claims Tribunal, Chamba, District Chamba, H.P., in M.A.C. Petition No.20/2009, titled as Smt. Pushpa Sharma & others Versus Shri Sanjeev Bhardwaj & others, in terms whereof, the claim petition filed by respondents No.1 to 5 herein was answered as under:-
“18 In view of my findings given on issues No.1 to 6 above, the petition succeeds and as such, the same is allowed with costs, which is quantified as Rs. 1000/- The petitioners are awarded compensation of Rs. 16,60,000/-which shall be paid by respondent No.2 i.e. Insurance company being insurer of the vehicle. The interest at the rate of 12% per annum from the date of filing of the petition till payment of Award amount is directed to be paid in view of ratio laid down by the Hon'ble Ages Court in 2007 ACJ-1972 Kanhaya Lal Kataria and others Versus Mukul Chaurvel and others. The amount of compensation, except the amount of consortium shall be shared by petitioners in equal shares. The petitioner No.1 is entitled to receive the amount of loss of consortium in addition to the remaining amount Since, petitioners No.2 to 4 are minor, the amount of their share shall be invested in a Nationalized bank in the shape of FDRs initially for a period of three years and thereafter it shall be renewed till they attain the age of majority. The amount of compensation, if any, if already received by the petitioners on account of interim compensation, shall be deducted from the Award amount. Memo of cost be prepared. The file after its due completion be consigned to the record room.”
Brief facts necessary for the adjudication of the present petition are that a claim petition was filed by respondents No.1 to 5 herein (hereinafter to be referred as “the claimants”) under Section 166 of the Motor Vehicles Act, on the ground that Shri Rajeev Sharma, who was husband of claimant No.1 and father of claimants No.2 to 4 and son of claimant No.5, was travelling in a car, bearing registration No.HP-48-1547, owned by Smt. Richa Bhardwaj. The car was being driven by Sanjeev Bhardwaj in a rash and negligent manner. As a result thereof, the offending vehicle met with an accident at a place known as ‘Gehra’ in District Chamba. It rolled down the road and fell into Ravi river, resulting in the death of Rajeev Sharma. An F.I.R. to this effect was registered under Sections 279, 337 and 304-A of the Indian Penal Code, at Police Station Bharmour. As per the claimants, the deceased was 45 years of age. He was earning Rs.20,000/- per month, while working as a Civil Contractor (Class-D) with Public Works Department. In addition, he was also earning Rs.10,000/- per month through private job/work. On account of his death, the claimants stood deprive the income, as the deceased was the sole bread earner of the family. Accordingly, compensation to the tune of Rs.30,00,000/- was claimed.
The claim petition was contested by respondents No.1 to 3 before the learned Tribunal, i.e. the driver and owner of the Car as well as the Insurance Company. The stand of the driver and the owner of the Insurance Company was that the vehicle was comprehensively insured with the Insurance Company and in case any compensation was awarded, then it was to be paid by the Insurance Company. It was also the stand of the said respondent that the accident took place on account of a mechanical fault.
The Insurance Company filed a separate reply and it took the plea that the vehicle was being plied in violation of the terms of the Insurance Policy; the driver of the offending vehicle was not having a valid Driving Licence at the time when the accident took place; the claimants were not entitled to compensation, as prayed for, as the deceased was not having any income, as claimed; and the accident was not on account of any rash and negligent driving of the driver, as alleged.
On the basis of pleadings of the parties, learned Tribunal framed the following issues:-
“1. Whether the accident has resulted due to rash and negligent driving of the vehicle by its driver respondent No.1 and the deceased died in the said accident? OPP.
If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom? OPP.
Whether the petition was not maintainable? OPR.
Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident? OPR-3.
Whether the vehicle was being plied in contravention of the terms and conditions of the Insurance Policy? OPR-2.
Whether the deceased was an unauthorized occupant in the vehicle in question, if so, its effect? OPR-2.
Relief.”
On the strength of evidence led by the parties in support of their respective contentions, the issues so framed, were answered as under:-
“Issue No.1: Yes.
Issue No.2: The petitioners are entitled for compensation to the tune of Rs16,60,000/- with interest at the rate of 12% from the date of filing of
petition till deposit of Award along with cost from respondent No 2.
Issue No.3: No.
Issue No.4: No.
Issue No.5: No.
Issue No.6: No.
Relief: The petition is allowed with costs and petitioners are held entitled for compensation to the tune of Rs 16,60,000/ with interest at the rate
of 12% per annum from the date of filing of the petition till the deposit of Award amount from the respondent along with cost as per operative part of the Award.”
Learned Tribunal, while deciding Issue No.1, held that according to the claimants, the unfortunate accident took place on account of the rash and negligent driving of the driver concerned. Learned Tribunal held that an F.I.R. was also registered at Police Station Bharmour against the driver, inter alia, for rash and negligent driving. Learned Tribunal also held that the factum of taking place of the accident and death of the deceased in the accident was not denied by the driver and the owner of the vehicle or by the Insurance Company, but it was their stand that the accident had taken place on account of a mechanical failure. It further held that no evidence was led by the owner of the vehicle to demonstrate that the accident took place on account of any mechanical failure, whereas Ext.PW5/A, which was the copy of the F.I.R. alongwith Ext.PW4/A, which was the copy of the Post Mortem Report, clearly demonstrated that the accident had taken place on account of rash and negligent driving of the driver concerned. Learned Tribunal, thus held that in the absence of any evidence led to the contrary to establish that the accident was a result of mechanical failure, by applying the principle of res ipsa loquitur, it held that accident occurred on account of rash and negligent driving of the driver concerned.
With regard to the assessment of compensation, learned Tribunal held that though it was pleaded on behalf of the complainant that the income of the deceased was Rs.30,000/- per month, but it could not be proved on record by them. Learned Tribunal held that it had come on record that the deceased was a Class-D Contractor and he was having a few contracts to the tune of Rs.2,70,000/- approximately, as well as Rs.2,05,000/-approximately. On these basis, it held that as the deceased was working with the Government Department as a Contractor, he must be having some good income, which learned Tribunal quantified at Rs.15,000/- per month. It, thereafter, held that as the family was dependent upon the deceased and as there was no evidence that the claimants had any other independent income, except the income of the deceased, it held that it could be presumed that the deceased was spending 1/3rd of the income on himself and 2/3rd on his family. Thus, taking the income of the deceased to be Rs.10,000/-and by applying the multiplier of 13, learned Tribunal assessed the compensation to be Rs.15,60,000/- per month. Learned Tribunal also awarded an amount of Rs.50,000/- under the Head of ‘loss of love and affection’ to the children, Rs.40,000/- as consortium to the widow and Rs.10,000/- as expenditure on last rites.
With regard to the issue of driver not holding a valid Driving Licence at the time of accident, learned Tribunal held that it was incumbent upon the Insurance Company to have had established that the driver was not having a valid Driving Licence at the time of accident, but no evidence was led to this effect by the Insurance Company. Learned Tribunal further held that on the other hand, learned counsel appearing for the driver and the owner of the vehicle had tendered in evidence the copy of the Driving Licence (Ext.R-1), which demonstrated that at the time of accident, respondent No.1 was having a valid and effective Driving Licence to drive the offending vehicle. It also held that no evidence was led by respondent No.2 to demonstrate that Ext.R-1 was wrong or not a proper Driving Licence.
With regard to violation of the terms of the Insurance Policy, learned Tribunal held that as the onus to prove this issue was upon respondent No.2, i.e. Insurance Company and as said respondent failed to prove this issue, therefore, the same was decided against it. Qua the issue of the deceased being an unauthorized occupant, learned Tribunal held that the deceased admittedly was an occupant of the vehicle and as the offending vehicle was under valid insurance at the time of accident vide Insurance Certificate (Ext.R-2), the deceased fell under the ambit of third party and in the case of death of third party while travelling in the Car, the compensation had to be paid by the Insurance Company. Learned Tribunal relied upon the judgment of Hon’ble Supreme Court in Rani Gupta Versus United India Insurance Company (SC)-244, (2009) 2 Apex Court judgments.
Feeling aggrieved, the Insurance Company has filed this writ petition. The Award has been assailed in the petition on the following grounds:-
“a) That the order Annexure P-3 passed by the respondent No. 7 on the face perverse and is based upon no of it is evidence.. The respondents-claimants has failed to place on the record any cogent evidence to prove the income of the deceased and respondent no. 7 has assessed the same on guess work and is on a very higher side. Admittedly, the deceased was not paying income tax and has failed to place on record the income tax returns, if any. filed on behalf of the deceased or the TDS which may have been deducted by the concerned department with him the deceased was alleged to be working as a contractor. The bald statement of the witnesses which were not supported by any documentary evidence was not sufficient to hold that the deceased was earning Rs.15,000/- per month. Even the witnesses who have been produced from the Department have failed to place any documentary evidence on the record showing the work entrusted to the deceased by the Departments. The only document which has been placed deceased on record was registered was as that 'D' the Class Contractor with the Department and other document showing the work which was entrusted to the deceased. The Tribunal below has observed in the order under challenge that there is no evidence with respect to earning of the deceased and has on guess work stated that the deceased must be earning good amount. The award have been passed without any evidence on the record is perverse as on the facts of the case. No reasonable man would have passed such an order.
b) That the award ground is also perverse on the ground that the amount awarded on account of loss of leave and affection, loss of consortium and expenditure on last rites have also been granted to the claimants against the settled law by Hon'ble Apex Court as well as this Hon'ble Court. The multiplier applied in the case is also on a higher side and against the law settled by the Hon'ble Apex Court. The interest awarded is also on higher side and against the various judgments passed by the Hon'ble High Court after the judgment relied upon by the Accident Claims Tribunal below reported in 2007 ACJ-1972 ignoring the law laid down subsequent thereto in which the Hon'ble Apex Court has held that interest awarded should be in consonance prevailing bank rates.
C) That the order under challenge is also perverse in view of the fact that there was no evidence with respect to rash and negligent arising on the part of the drives of the vehicle. The only evidence led on the record is the statement of set. Pushpa who admittedly was not present on the site of the accident. So far as the FIR is concerned, that was not proved in accordance with law and the persons who had recorded the FIR and investigated the matter was not examined as a witness. No reliance could be placed by the Tribunal on the FIR in order to conclude the negligence. The principle of res-ipsa-loquitor has been wrongly applied by the Tribunal below.”
Learned Senior Counsel, appearing for the petitioner has argued that the Award passed by learned Tribunal is not sustainable in the eyes of law, as learned Tribunal erred in not appreciating that the claimants failed to prove the income of the deceased to be Rs.15,000/- per month, which was assessed as the amount of income by learned Tribunal and this assessment by learned Tribunal was erroneous. Learned Senior Counsel also argued that no evidence was led qua the rash and negligent driving on the part of the driver and therefore also, the Award was bad. He also argued that the Award was perverse as compensation awarded under the Heading of loss of love and affection/consortium/ expenditure on last rites was against the judgment of Hon’ble Supreme Court of India. He also argued that learned Tribunal erred in holding that the driver of the vehicle was having a valid Driving Licence and that there was no violation of the terms of the Insurance Policy. He argued that the deceased was a gratuitous passenger and therefore, learned Tribunal erred in burdening the Insurance Company with liberty to pay the compensation. At this stage, it is necessary to mentioned that a perusal of the grounds of petition demonstrate that said grounds have not been urged in the writ petition, therefore, this Court is going to decide the writ petition only on the grounds which have been taken in the writ petition. Arguments beyond pleadings are not being answered.
Qua the plea that the Award was on the higher side, this Court is of the considered view that as it was duly proved on record that the deceased was working as a Class-D Contractor, the assessment of the monthly income of the deceased at Rs.15,000/-per month cannot be termed to be excessive by learned Tribunal. In fact, it is evident from the Award that in terms of the statement of PW-7 Naresh Khanna, who deposed that the deceased was working with their Department, i.e. the I&PH Department as a Contractor, who was entitled to carry out contracts to the tune of Rs.30,00,000/-, it stood proved that deceased was a Government Contractor.
In this backdrop, when it is not much in dispute that the deceased was registered as a Contractor with the Public Works Department and he also was executing and had executed certain works of various Departments, it cannot be said that the assessment of income of the deceased at Rs.15,000/- per month was on excessive side.
As far as the contention of learned Senior Counsel that the compensation awarded under the Heads of the loss of love and affection, loss of consortium and expenditure on last rites is on the higher side is concerned, Hon’ble Supreme Court in National Insurance Company Limited Versus Pranay Sethi and Others, ((2017) 16 Supreme Court Cases 680, held that reasonable figure under the conventional Heads, namely, loss of estate, loss of consortium and funereal expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
In the present case, learned Tribunal has awarded an amount of Rs.40,000/- as consortium and Rs.10,000/- as expenditure on last rites. It has awarded Rs.50,000/- under the Head of loss of love and affection.
This Court is of the considered view that in the light of the judgment of Hon’ble Supreme Court of India in National Insurance Company Limited Versus Pranay Sethi and Others (supra), the compensation of Rs.50,000/- granted under the Head of loss of love and affection is to be curtailed to Rs.15,000/- under the Head of loss of estate and the compensation awarded for last rites has to be enhanced from Rs.10,000/- to Rs.15,000/-. Ordered accordingly.
As far as the third point urged in the writ petition that it was not proved that the accident had taken place on account of rash and negligent driving is concerned, this Court is of the considered view that this contention of the petitioner does not has any merit. Learned Tribunal has rightly held that after the unfortunate incident took place in which the deceased lost his life, an F.I.R. was registered at Police Station Bharmour and the said F.I.R. was, inter alia, registered under Section 279 of the Indian Penal Code, i.e. against the driver for rash and negligent driving.
In this view of the matter, the findings of learned Tribunal do not call for any interference, more so, in the light of the fact that as respondents before learned Tribunal took the plea that the accident had taken place on account of a mechanical failure, the onus was upon them to have had proved this fact, which they failed to prove. The other points urged by learned Senior Counsel are not being decided by this Court, for the reason that as these points are not raised in this writ petition, the Court is not allowing the petitioner to address arguments beyond the pleadings.
At this stage, this Court would also like to mention, as was pointed out by learned counsel appearing for the claimants, that a claim petition was filed by legal heirs of Shri Ajay Kumar, who also lost his life in the same accident, which was decided by learned Motor Accident Claims Tribunal, Chamba by way of M.A.C. Petition No.30 of 2008, titled as Smt. Babli & others Versus The Oriental Insurance Company & others, decided on 27.02.2009 and this Award was not challenged by the Insurance Company.
This Court has perused the Award passed by learned Tribunal in the said case and in the course of the adjudication of said Award, learned Tribunal categorically held that the accident had taken place on account of rash and negligent driving of the driver.
This Court is of the considered view that when the petitioner/Insurance Company has not challenged the finding recorded to this effect by learned Motor Accident Claims Tribunal in a case arising out of the same accident, the Insurance Company cannot be allowed to raise this issue in the case of the present claims by way of this writ petition.
In view of above discussion, this petition is disposed of without interfering with the findings returned by learned Tribunal on merit, but by modifying the Award passed by learned Tribunal in the following terms:-
“Heads Amount
Loss of income 15,60,000/-
Loss of estate 15,000/-
Loss of consortium 40,000/-
Expenditure on last rites 15,000/-
Total 16,30,000/-”
Other findings are not disturbed. Pending miscellaneous applications, if any, also stand disposed of.