,
Sandeep Sharma, J",
1. Instant appeal under Section 173 of the Motor Vehicles Act (As amended by Act 1994), lays challenge to Award dated 6.4.2016 passed by learned",
Motor Accident Claims Tribunal, Una, Himachal Pradesh in M.A.C. Petition No. 78/2014 titled as Rakesh Bala and others vs. Harmesh Singh and",
others, whereby learned Tribunal below, while allowing the claim petition having been filed by respondents No. 1 to 3 (hereinafter referred to as",
‘claimants’), proceeded to award a sum of Rs.11,55,000/- as compensation alongwith interest at the rate of 7.5% per annum from the date of",
filing of the petition till actual realization of the amount in favour of the claimants. Vide aforesaid award, MACT below held the appellant-Insurance",
Company liable to pay aforesaid amount of compensation.,
2. Precisely, the facts of the case as emerge from the record are that the claimants filed a petition under S.166 of the Act, seeking therein",
compensation to the tune of Rs.40.00 Lakh from the appellant-Insurance Company on account of death of late Sh. Vivek Sambhar, who allegedly died",
in accident. On 29.3.2014 while deceased was riding Scooty bearing No.HP-20C-3165, a loaded truck bearing registration No.HP-20-5766 owned by",
respondent No.5 and driven by respondent No.4 came in rash and negligent manner and struck with the scooty, as a consequence of which deceased",
suffered multiple injuries on all parts of his body. Unfortunately, deceased died on his way to PGI Chandigarh. The claimant alleged that accident",
occurred due to rash and negligent driving by respondent No.4 but respondents No.4 & 5 being influential persons succeeded in getting the FIR,
registered against deceased Vivek Sambhar, who at the time of accident was driving Scooty bearing regn. No.HP-20C-3165. The claimant claimed",
that deceased was sole bread earner of the family having responsibility of mother, brother and sister and as such, they are entitled to compensation to",
the tune of Rs.40 lakh. Respondents No.4 & 5 by way of joint reply refuted the aforesaid claim raised by the claimant and claimed that accident took,
place due to rash and negligent driving of scooty being driven by deceased. Respondents No.1 & 2 further claimed that FIR was registered against the,
deceased and, as such, story put forth by the claimant deserves to be rejected outrightly being concocted. Respondents No.1 & 2 also sought rejection",
of the claim petition on the ground of non-joinder of the owner and insurer of the vehicle involved in the accident. Appellant-Insurance Company also,
refuted the claim of the claimants on the ground that driver of vehicle bearing No. HP-20-5766 was not holding a valid and effective driving licence at,
the time of accident and, as such, there was violation of terms and conditions of Insurance Policy and, as such, it is not liable to indemnify the insurer.",
The appellant-insurance company also claimed that deceased was driving the scooty in rash and negligent manner and, as such, claimants are not",
entitled to any compensation.,
3. Learned Tribunal below, on the basis of the pleadings adduced on record by the respective parties, framed following issues on 20.4.2015::",
“Issue No. 1. Whether deceased Vivek Sambhar died on 29.3.2014 at Mehatpur, Tehsil and District Una HP because of rash and negligent driving",
of respondent No.1 of vehicle bearing regn. No. HP-20-5766, as alleged? OPP",
Issue No. 2. If issue No.1 is proved in affirmative whether the petitioners are entitled to the compensation, if so and to what amount and from whom?",
OPP.,
Issue No. 3. Whether the petition is not maintainable? OPR.,
Issue No.4. Whether respondent No.1 was not having a valid effective driving licence at the relevant time to drive the vehicle involved in the accident,",
if so, its effect? OPR-3",
Issue No.5. Whether the vehicle in question was being plied at the relevant time in violation of the terms and conditions of the Insurance Policy and,
provisions of M. V. Act, as alleged? OPR-3",
Issue No.6. Whether the vehicle in question was being plied at the relevant time without RC, route permit and fitness certificate, if so, its effect?",
OPR-3,
Issue No.7. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR-3",
Issue No.8. Relief.,
4. Subsequently, learned Tribunal below, vide Award dated 6.4.2016, allowed the claim petition and awarded a sum of Rs.11,55,000/- alongwith",
interest at the rate of 7.5% per annum from the date of filing the petition till the payment is made in favour of the claimants.,
5. Being aggrieved and dissatisfied with the aforesaid Award passed by learned Tribunal below, the appellant-Insurance Company, who otherwise",
came to be saddled with the compensation, has approached this Court in the instant proceedings, praying therein to set aside the impugned Award.",
6. Before ascertaining the correctness of the impugned award passed by learned Tribunal below vis-Ã -vis grounds raised in the appeal and,
submissions made by learned counsel representing the parties,, it may be noticed that, while perusing impugned award, this Court noticed that learned",
Tribunal below has committed arithmetical error, while calculating total loss of dependency. Learned Tribunal below, in para Nos. 30 and 31, after",
making necessary deductions from the income of the deceased, held that annual income of the deceased was Rs.90,000/- and applied multiplier of 16,",
thus arriving at a figure of Rs.10,80,000/-, which seems to be incorrect on the face of it, since product of annual income and multiplier, would",
Rs.14,40,000/- (90,000x 16 = 14,40,000). Faced with the aforesaid situation, this Court could either remand back the matter for the limited purpose of",
carrying out arithmetical corrections, or to rectify the same here. Taking stock of the plight of the claimants, who are litigating since 2014, this Court",
opts for the latter. Necessary adjustments in the final amount so derived, thus, will be included while assessing the total amount of compensation in the",
concluding part of the judgment.,
7. Having heard learned counsel for the parties and perused the material available on record, vis-Ã -vis reasoning assigned by learned Tribunal below",
while allowing claim petition, this Court finds no force in the argument of learned counsel for the appellant-Insurance Company that learned Tribunal",
below has failed to appreciate the evidence in its right perspective while returning findings qua issues Nos. 1 to 7, rather this Court is fully convinced",
and satisfied that Court below while awarding compensation in favour of the claimants have dealt with each and every aspect of the matter,
meticulously and, as such, there is no scope left for the Court to interfere in the impugned award.",
8. Statement of PW-2 Smt. Rajnish Sharma, who happened to be an eye witness of the accident, clearly proves beyond doubt that on 29.3.2014",
deceased was hit by truck bearing regn. No.HP-20- 5766 on account of rash and negligent driving by respondent No.4. This witness has categorically,
stated that she had gone to Industrial Area, Mehatpur and when she was returning from there, at about 11/12 A.M., a truck came in a high speed and",
hit the Scooty on wrong side of the road, as a result of which the Scooty driver fell on the road and sustained injuries. She also stated that many people",
had gathered on the road and injured was removed to hospital.,
9. Careful perusal of the cross-examination conducted upon this witness, nowhere suggests that the respondents were able to shatter the testimony of",
aforesaid witness, who during her cross-examination stuck to her statement given in examination in chief. Though in the case in hand, the appellant-",
insurance company made an attempt to carve out a case that due to rash and negligent driving of deceased himself, who was allegedly driving the",
Scooty in a rash and negligent manner, accident occurred but evidence on the record completely belies the case of the respondents.",
10. In support of the aforesaid, claim/denial, respondents examined RW-1 H.C. Nirmal Singh, who proved the FIR Ext.RW1/A and stated that untrace",
report was prepared in the case and put in the Court. RW-2 Sh. Harmesh Singh, who is respondent No.1 though lodged FIR but the version put forth",
by him was rightly not taken into consideration by the Court, because respondent No.1 being driver of the truck, which caused the accident, is an",
interested witness and his version could not have been taken into consideration by the Court in the absence of corroboration, if any, by any",
independent witness. The respondents, save and except the aforesaid witnesses, have not examined any independent witness to corroborate the",
version put forth by RW-2 Harmesh Singh (respondent No.4).,
11. PW-7 Gaurav, who happened to be brother of deceased categorically deposed that respondents No.4 & 5 being influential persons got the FIR",
registered against the deceased and when they came to know about the FIR registered against the deceased, they made a complaint to the",
Superintendent of Police, Una. This Court cannot loose sight of the fact that in the alleged accident, deceased had suffered multiple injuries and, as",
such, the Court below rightly concluded that in view of the critical condition of the deceased, priority of the family was not to lodge FIR but to save the",
life of deceased, who ultimately succumbed to his injuries while going to PGI, Chandigarh.",
12. Since no evidence ever came to be associated at the behest of respondents No.4 & 5 to discard the testimony of PW-2 Smt. Rajnish Sharma,",
there appears to be no reason to disbelieve the version put forth by this witness, who in any manner, is not related or known to the claimants. There is",
no dispute that deceased Vivek Sambhar died on account of injuries suffered by him in a rash and negligent, rather copy of post mortem report",
Ext.PW4/A clearly suggests that deceased Vivek Sambhar died on account of injuries suffered by him in the alleged accident. Though the appellant-,
insurance company has raised a ground that at the time of accident, respondent No.4 was not holding a valid driving licence, but respondent No.1",
while deposing as RW-2 himself placed on record a copy of driving licence Ext.R-1 and Ext. RY. The genuineness of the document referred to above,
has not been disputed by the Insurance Company and, as such, the issue framed by the Court below with regard to validity of driving licence",
possessed by respondent No.1 rightly came to be decided against the appellant-insurance company.,
13. Similarly, this Court finds that there is no force in the argument of learned counsel for the appellant-Insurance Company that the compensation",
awarded by the Court below is on higher side because admittedly at the time of death, the deceased was 31 years old. Testimonies of PW-5 & PW-6",
clearly prove that the deceased prior to his death was running a business of disposable cup plates. Since no return of income tax and sales tax came to,
be placed on record on behalf of the claimants, the Court below having taken note of the statements made by PW-5 and PW-7 took the income of",
deceased at the rate of Rs.10,000/- per month, which by no stretch of imagination can be said to be on higher side.",
14. However, having carefully perused the recent law laid down by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and",
others, AIR 2017 SC 5157, this Court is an agreement with the submissions made by learned counsel for the appellant-Insurance Company that since",
the deceased was self-employed, addition of 40% on account of future prospects could have been made to the proved income of the deceased, instead",
of 50%. Similarly, this Court finds that only a sum of Rs.15,000/- could have been awarded by learned Tribunal below on account of funeral expenses",
whereas, learned Tribunal below has awarded Rs.25,000/- under the aforesaid head. Learned Tribunal below has further erred in awarding a sum of",
Rs.50,000/- on account of love and affection towards the deceased, because as per aforesaid judgment rendered by the Hon'ble Apex Court, no",
money can be granted on account of love and affection.,
15. At this stage, it would be profitable to reproduce following paragraphs of aforesaid judgment herein below:",
“47. In our considered opinion, if the same is followed, it shall subserve the cause of justice and the unnecessary contest before the tribunals and",
the courts would be avoided. 48. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral",
expenses. In Santosh Devi (supra), the two-Judge Bench followed the traditional method and granted Rs.5,000/- for transportation of the body,",
Rs.10,000/- as funeral expenses and Rs.10,000/-as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5,000/- under the head of",
loss of estate, Rs. 5,000/- towards funeral expenses and Rs.10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs.1,00,000/- towards",
loss of consortium and Rs.25,000/-towards funeral expenses. It also granted Rs. 1,00,000/-towards loss of care and guidance for minor children. The",
Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socioeconomic issue has to be contrasted,
from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed different",
amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss,
of consortium. We are inclined to think so, for what it states in that regard. We quote:-",
“17. … In legal parlance, “consortium†is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and",
sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of,
companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non pecuniary",
damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of,
America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary",
disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace,",
companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries",
and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major",
amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of",
consortium.â€,
60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50,
years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of,
the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other.",
To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an",
addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self employed or",
person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be",
consistency in the approach by the tribunals and the courts.,
61. In view of the aforesaid analysis, we proceed to record our conclusions:-",
Average monthly income,"Rs.10,000/-
Deduction towards self maintenance @ 50%,"10,000x50/100= 5000
Net income after deduction =,Rs.5000
Addition of 40% on account of future prospects,5000x 40/100=2000
Net income after adding 40%,=Rs.7000
Annual income,7000x 12 =84000
Total loss of dependency after applying multiplier of 16,"84000x 16= 13,44,000/-
22. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is partly allowed",
and Award passed by learned Tribunal below is modified to the above extent only.,
Pending applications, if any, are disposed of. Interim directions, if any, are vacated.",
