United India Insurance Company Ltd. vs Champa Devi & Ors.

Virender Singh, Judge

AppellantUnited India Insurance Company Ltd. 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 01.04.2017, passed by learned Motor Accident Claims Tribunal, Una, District Una, H.P. (hereinafter referred to as ‘the Tribunal’), in MAC Petition No. 41/2016, titled as ‘Champa Devi Versus Pritika Autocost Ltd. & Others’.

By way of the award, dated 01.04.2017, the learned Tribunal has allowed the above titled claim petition filed by respondent No. 1 and awarded a sum of Rs. 10,68,000/, along with interest at the rate of 9% per annum, from the date of filing of the petition, till the deposit of the awarded amount along with interest. The ultimate liability to pay the compensation has been fastened upon the appellant Insurance Company.

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.

As such, a prayer has been made to dismiss the petition.

From the pleadings of the parties, the following issues were framed by the learned Tribunal on 13.06.2016:

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.

Feeling aggrieved from the award, the Insurance Company of the offending vehicle has preferred the present appeal, before this Court, on the ground that the FIR in question has wrongly been registered and police, after investigation, filed the cancellation report. The award has also been assailed on the ground that the petitioner cannot take the benefit of rash and negligent driving of her son. In this regard, it has also been pleaded that the deceased himself was tortfeasor, as such, claim petition is not maintainable. The award has also been assailed on the ground that the learned Tribunal has wrongly taken the monthly income of the deceased, as Rs. 5,400/ per month, despite the fact that no evidence has been produced on the record. Another fact has also been highlighted in the grounds that as per the findings of the learned Tribunal, monthly income of deceased comes to Rs. 5,400/, but, despite the said fact, his income has been taken as Rs. 6,000/ per month. Deceased was unmarried and his employment is not regular, as such, 50% increase for future prospect has wrongly been given to the income of the deceased. The learned counsel appearing for the Insurance Company has also submitted that the deceased was working in unorganized sector.

Per contra, Mr. Gaurav Sharma, Advocate, appearing for the petitioner, has supported the award passed by the learned Tribunal and prayed that the amount may kindly be enhanced, so that the same could fall within the definition of “just compensation”.

In order to decide the appeal preferred by the Insurance Company, it would be just and appropriate to discuss the evidence, so adduced by the parties to the lis, before the learned Tribunal.

After framing of the issues, the petitioner has examined Dr. S.K. Bansal, M.O. R.H. Una, who has proved the copy of postmortem report of Gurbaksh Singh as Ext. PW1/A.

PetitionerChampa Devi herself stepped into the witness box as PW2 and filed her duly swornin affidavit Ext. PW2/A, which is based upon the assertions, as made in the claim petition. However, in the opening line of her cross examination, she has admitted that the accident in question had not taken place in her presence. She also admitted that she had no proof with regard to the income of deceased. She admitted that her deceased son used to work as labourer. Rest she has denied all the suggestions, put to her.

The petitioner has also examined one Sanjeev Kumar, as an eye witness to the accident. According to him, on 10.02.2016, he along with Munish Kumar had gone to Santokhgarh. At about 12:00 in the noon, he and Munish Kumar were on the way back to their home. One motorcyclist, on his motorcycle was ahead of them. Then, from Tahliwal side, offending vehicle came there, being driven by its driver in rash and negligent manner and hit the motorcycle. Consequently, the rider of the motorcycle sustained grievous injuries. Thereafter, this witness and Munish Kumar noticed that the rider of the motorcycle, who sustained injuries is Gurbaksh Singh, who is their covillager. Gurbaksh Singh was taken to hospital, but, he has expired. Lastly, he has deposed that the accident, in question, had taken place due to the rash and negligent driving of the offending vehicle.

In the crossexamination, PW3 has deposed that the accident, in question, had taken place, just ahead of Santokhgarh bridge. This witness was going to Tahliwal from Santokhgarh. He has denied that the rider of the motorcycle struck the motorcycle against the offending vehicle. Rest, he has denied the allegations, which has been suggested against the rider of the motorcycle (deceased). This witness was present at a distance on 2025 meters from the place, where the accident, in question, had taken place.

PW4 HHC Yash Pal, proved the copy of FIR Ext. PW4/A and he has deposed that the FIR has been registered against Ashwani Kumar and later on cancellation report was submitted on 06.05.2016.

To rebut this evidence, Smt. Shanti, Civil Ahlmad from the Court of JMFC, Court No. III, Una has been examined as RW1, who proved the closure report, which was submitted on 06.05.2016, and the case is stated to be pending for 28.02.2017.

The driver of the offending vehicle appeared in the witness box as RW2 and deposed that on 10.02.2016, he was driving the offending vehicle at a very slow speed and on his right direction. When, he reached near Swan bridge, Gurbaksh Singh (deceased) came there in a wrong side, while riding the motorcycle in very high speed, in a rash and negligent manner and struck against the offending vehicle. Thereafter, wrong FIR was registered against this witness, just to get the claim and later on, after investigation, the police submitted the cancellation report, by holding that the accident, in question, had taken place due to rash and negligent driving of Gurbaksh Singh himself. The UTR, is pending in the Court of learned JMFC Court No. III Una.

In the crossexamination, this witness has denied the suggestion that he was not having a valid driving licence qua the offending vehicle. In the crossexamination by the learned counsel for the petitioner, he denied the suggestion that the owner of the vehicle was an influential person.

This is the entire oral evidence.

So far as the documentary evidence is concerned, Ext. PW1/A is the copy of postmortem report, Ext. PW4/A is the copy of FIR, Ext. R1 is the copy of report under Section 173(2) Cr.P.C., Ext. R2 is the report submitted by SDPO Haroli to learned CJM Una, Ext. R3 is the copy of statement of Sanjeev Kumar, who has got his satisfaction recorded towards the investigation conducted by the police and thereafter, submitted the cancellation report, Ext. RW1/A is the copy of Registration Certificate, Ext. RW2/B is copy of driving licence of respondent No. 2, Ext. RX is copy of insurance policy, and Mark X is the copy of legal heirs certificate.

Along with the appeal, before this Court, the appellantInsurance Company has placed on record the copy of report under Section 173(2) of Cr.P.C., submitted by the police, by virtue of which, closure report, has been submitted.

This is the entire evidence.

The proceedings under the M.V. Act are summary in nature, where the liability of the tortfeasor is to be fixed on the basis of preponderance of probabilities. In this case, factum of accident has not been disputed. Admittedly, petitioner was not witness of the accident in question. However, the petitioner has examined one independent witness PW3 Sh. Sanjeev Kumar, who not only deposed about the manner in which, the accident in question had taken place, but also withstood the lengthy cross examination, however, nothing could be elicited from this witness by the respondents, including the Insurance Company about the fact that he was having any axe to grind against respondent No. 2. Merely, the police after the investigation has submitted the closure report, does not mean that the evidence of PW3, on oath, is liable to be discarded.

Admittedly, the statements of witnesses, which had been relied by the police while submitting the cancellation report, were not recorded on oath. Moreover, PW3 Sanjeev Kumar, is the person, who has also lodged the FIR and also appeared in the witness box. If the contents of FIR are seen, he has categorically leveled the allegations of rash and negligent driving against respondent No. 2. As such, his presence on the spot cannot be doubted.

So far as the submission of cancellation report is concerned, there is no evidence on the report to show, as to how the investigating officer has concluded the above fact. In the cancellation report, which is on the record as Ext. R1, although, it has been concluded that during the investigation, it has been found that the accident in question had taken place due to the rash and negligent driving of the rider of the motorcycle, but, the evidence of the respondents is totally silent as to how the I.O. has come to the said conclusion and in whose statement this fact has transpired. Along with the cancellation report, apart from complainant Sanjeev Kumar, the police has mentioned the name of three persons, as witnesses to the accident. The Insurance Company has not bothered to examine any of them to prove/probablize the fact that the accident in question had taken place due to the rash and negligent driving of the rider of motorcycle No. HP20E 1646.

So far as the statement of Sanjeev Kumar Ext. R 3, in which, he has recorded his satisfaction with the cancellation report, is concerned, considering the low legal literacy of the Indian masses, no adverse inference could be drawn against the statement of PW3 Sanjeev Kumar. Moreover, the Insurance Company was having an occasion to confront PW3 Sanjeev Kumar with his statement, which has been recorded before the Court of learned JMFC,Court No. III, Una, when the police has submitted the closure/cancellation report. When the document has not been put to the witness, when, he appeared in the witness box, then, no inference can be drawn that he has given his satisfaction about the investigation of the case.

The statement before the learned JMFC Court No. III, Una was recorded on 03.08.2016, whereas, this witness appeared before the learned Tribunal on 02.08.2016. Even, the Insurance Company has not sought the indulgence of learned Tribunal to recall the said witness by confronting him with the said statement. The plea of rash and negligent driving by the rider of the motorcycle, has been taken by the respondents, as such, onus was upon them to prove/probablize that the evidence of Sanjeev Kumar is not liable to be taken into consideration to accept the contention of the petitioner.

Moreover, the statement before the learned JMFC Court No. III Una, has no relevance for the decision of the present case, as the eye witness to the accident, who has also lodged the FIR, categorically leveled the allegations of rash and negligent driving of the offending vehicle against respondent No. 2, when he appears before the learned Tribunal In such situation, the learned Tribunal has rightly held that the accident in question had taken place due to the rash and negligent driving of respondent No. 2, while driving the offending vehicle.

Consequently, the plea as taken by the Insurance Company in the appeal is liable to be rejected. Ordered accordingly.

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

In the present case, the learned Tribunal has taken the age of deceased Gurbaksh Singh, at the time of his death, as 26 years. This has been done by the learned Tribunal on the basis of age as mentioned in the postmortem report Ext. PW1/A. In the absence of any evidence, contrary to the said age, no interference is required in the above findings.

So far as the earnings of deceased Gurbaksh Singh, during his life time, are concerned, the learned Tribunal has rightly taken the same as Rs. 6,000/ per month, by assuming Sh. Gurbaksh Singh as daily wager. Merely because the learned Tribunal has taken the daily income as Rs. 170/, as per the amount given to the MNREGA worker, does not mean that the conclusion so drawn is required to be interfered with. However, the learned Tribunal has fallen into error by giving 50% increase on future prospects, had he been alive, in view of the decision of Hon’ble Supreme Court in case titled “National Insurance Company Ltd. Versus Pranay Sethi & Others, (2017) 16 Supreme Court Cases 680”. The relevant para 59.4 of the judgment, has been reproduced, as under:

40% increase is liable to be made, on account of future prospects, as deceased Gurbaksh Singh was working in unorganized sector. Being guided by the above judgment, the monthly contribution of deceased towards his family comes to Rs. 6,000/ + 40% (Rs.2,400/) = Rs. 8,400/.

Admittedly deceased Gurbaksh Singh was bachelor, as such, 50% amount is liable to be deducted on account of personal expenses, had he been alive. Thus, his contribution comes to Rs. 8,400/ minus 50% = Rs. 4,200/.

The learned Tribunal has applied the multiplier of ‘17’, which, according to the judgment of Hon’ble Supreme Court in “Sarla Verma Vs Delhi Transport Corportation, 2009 (6) SCC 121”, is the appropriate multiplier, applied in the present case. Thus, the loss of contribution comes to Rs. 4,200/ x 12 x 17 = Rs. 8,56,800/.

In this case, the learned Tribunal has awarded a sum of Rs. 1,00,000/, on account of ‘loss of love and affection’, Rs. 50,000/, on account of ‘funeral expenses and cost of litigation’, which are liable to be reduced, on account of Pranay Sethi’s case (supra).

Under the conventional heads, as per the dictate of Pranay Sethi’s case (supra), the petitioner is 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.

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

The learned Tribunal has awarded the rate of interest at the rate of 9% per annum, which, to the considered opinion of this Court, is liable to be reduced while keeping in view the prevalent rates of interest in the nationalized banks. Consequently, the same is reduced to 7.5% per annum.

No other point has been urged or argued.

Having glance of the above discussion, the appeal of the Insurance Company is partly allowed, by reducing the amount of compensation from Rs. 10,68,000/ to Rs. 9,26,800/, and the rate of interest is also reduced from 9% to 7.5% per annum, from the date of filing of the petition, till the deposit of award amount. The ultimate liability to pay the compensation is on the Insurance Company. The award passed by the learned Tribunal is modified accordingly.

Parties are left to bear their own costs.

Memo of costs be prepared accordingly.

Record be sent back.