Satyen Vaidya, J
1. These two appeals have been heard and are being decided by a common judgment as common questions of facts and law are involved.
2. The appeals have been filed by the insurer. In FAO No. 145 of 2013, respondents No. 1 and 2 were the claimants before the learned Motor
Accident Claims Tribunal (hereinafter referred to as “Claimantsâ€) and respondent No.3 was the owner-cum-driver of the vehicle (hereinafter
referred to as “Ownerâ€). Similar is the position in FAO No. 148 of 2013.
3. The vehicle Utility Jeep No. HP-20-6469 was owned by the owner. On 25.01.2010 the vehicle met with an accident while being driven by the
owner. Three persons namely Dev Singh, Sonu and Sunil Kumar were occupying the vehicle. Dev Singh and Sonu died as a result of injuries suffered
by them in the accident. Sunil Kumar also suffered injuries. The parents of Dev Singh i.e. claimants in FAO No. 145 of 2013 filed a petition under
Section 163-A of the Motor Vehicles Act (for short, “Actâ€) before the Motor Accident Claims Tribunal, Fast Track Court, Una, District Una,
H.P. (for short, “Tribunalâ€) which was registered as MAC Petition No. 08/2010. The owner and insurer were impleaded as respondents No. 1
and 2, respectively.
4. The parents of Sonu also filed a separate claim petition under Section 163-A of the Act before the learned Tribunal, which was registered as MAC
Petition No. 09/2010.
5. In both the claim petitions, it was averred that Dev Singh, Sonu and Sunil Kumar were employees of the owner and were working with him as
labourers. On 25.01.2010 all three i.e. Dev Singh, Sonu and Sunil Kumar had been taken by the owner to cremation ground at Una in his vehicle No.
HP-20-6469 to deliver timber and dry grass. On their way back at about 3.30 P.M. when the vehicle reached Bedian Bridge, Una, the owner could
not control the vehicle on steep ascend and the vehicle rolled down back, resulting in deaths of Dev Singh, Sonu and injuries to Sunil Kumar.
6. The status of deceased Dev Singh and Sonu was mentioned to be the labourers and employees of the owner. Their income was stated to be
Rs.3200/- per month each.
7. The owner admitted the occurrence of accident. The factum of deceased being his labourers employed by the owner was also not denied. As
regards the income of the deceased, evasive reply was submitted.
8. The insurer contested the petition by taking objections that the petition was not maintainable, the owner was not having valid and effective driving
licence to drive, the vehicle was being used without valid route permit, registration certificate and fitness certificate and in such manner, the violation
of the terms and conditions of the insurance policy was alleged. Another omnibus objection was taken in the following terms: “That respondent
No.2 takes the entire pleas that are available to insurance company as per the provisions of the Motor Vehicles Actâ€. On merits, the reply submitted
by the insurer to the averments made in the petitions was vague and evasive.
9. Learned Tribunal framed the following issues:
1. Whether deceased Dev Singh died due to rash and negligent driving of Jeep bearing registration No. HP-20-6469 by respondent No.1 on
25.01.2010 at about 3.20 near Una Bridge, District Una on the public road? OPP
2. If issue No.1 is proved in affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? OPP
3. Whether respondent No.1 was not holding effective and valid driving licence at the time of accident? OPR2
4. Whether the vehicle in question was being plied in violation of terms and conditions of the insurance policy? OPR-2.
5. Relief.
Issues No. 1 and 2 were answered in affirmative. Other issues were negated and the petitions were allowed. The compensation of Rs.3,71,000/- was
awarded in each of the claim petitions.
10. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
11. Mr. Ashwani K. Sharma, Senior Advocate, learned counsel for the insurer has raised two contentions. First, that the learned Tribunal in each of
the petitions had returned the findings that the annual income of the deceased was more than Rs.40,000/- per annum and hence, the claim petition
under Section 163-A of the Act was not maintainable. He placed reliance on the judgment passed by a Division Bench of this Court on 28.09.2016 in
FAO No. 474 of 2010, titled Oriental Insurance Company Ltd. vs. Sihnu Ram and others and secondly, the liability of insurer has been sought to be
avoided on the ground that the deceased persons were not covered under the contract of insurance policy and thus were travelling in a goods carriage
vehicle as gratuitous passengers.
12. In order to test the first contention, the notice is being taken of the fact that in both the claim petitions the monthly income of the deceased persons
was stated to be Rs.3200/- each and in this manner, the income was not claimed to be more than Rs.40,000/- per annum. The owner had neither
admitted nor denied the fact with respect to the income of the deceased. Further, the owner had admitted the deceased persons to have been
deployed by him for loading and unloading purposes. The insurer also did not utter a single word regarding the income of the deceased.
13. In claim petition No. 8 of 2010, the father of deceased Dev Singh appeared as a witness and specifically stated on oath that the deceased used to
earn Rs.3200/- per month. In claim petition No. 9 of 2010, the father of deceased Sonu appeared as a witness and also deposed in the same terms that
the deceased used to earn Rs.3200/- per month. The third occupant of the vehicle i.e. Sunil Kumar has also been examined as a witness in both the
cases. His cross-examination was jointly conducted by the respondents and while answering a question in the cross-examination it was stated by him
that he was working with the owner, who used to pay him Rs.3200/- per month. Except as above, there was neither any pleading nor proof on record
with respect to the income of the deceased Dev Singh and Sonu.
14. As against above evidence, learned Tribunal assessed the income of each of the deceased at Rs.4500/- per month. While going through the
impugned awards, it has been found that there is absolutely no basis for arriving at such a conclusion. The relevant part of the award is being
extracted hereunder: -
“16. In view of the aforesaid, taking into consideration the existing income of the deceased as Rs.3000/- per month, its 50 per cent comes to
Rs.1500/-, the same is also taken with the existing income of the deceased. Therefore, this Court has to assess compensation/dependency by taking
into consideration the income of the deceased at the rate of Rs.3000/- per month. Therefore, it is reasonable to assume that deceased if alive could
have been spending Rs.50/- per day towards his personal expenses. The total income of the deceased is assessed at Rs.4500/- per month. As such
annual contribution towards the parents comes to Rs.2250x12 = 27,000/-. As per petition, petitioner Leela Wati is 45 years of old. Therefore, it is
appropriate to multiply this amount by 13 as per Hon’ble Apex Court judgment titled Sarla and Ors. Vs. Delhi Transport Corporation and another
(2009) 6 SCC 121 total dependency comes to Rs. 27,000x13 = 3,51,000/-. The petitioners are also entitled to Rs.10,000/- as loss of estate. In addition
to this, the petitioners are entitled to get Rs.10,000/- as conventional charges and in this way, total amount comes to Rs.3,71,000/-.â€
15. On one hand, learned Tribunal considered the monthly income of deceased at Rs.3000/-. In the next breath, learned Tribunal assumed that had the
deceased been alive he would have been spending Rs.50/- towards his personal expenses and immediately thereafter baseless conclusion was drawn
that total income of the deceased was Rs.4500/- per month. Instead of deducting the personal expenses of the deceased from his total income, learned
Tribunal wrongly added the said amount to the income. As a result, the cases of the claimants have been prejudiced unnecessarily.
16. Though, there is no challenge to the aforesaid findings on behalf of the claimants, yet this Court in exercise of powers under Order 41 Rule 33 of
the Code of Civil Procedure has jurisdiction to set-aside the erroneous or perverse findings. Keeping in view the above background and also for
vindication of the purpose of Motor Vehicles Act being a beneficial legislation, I deem it to be the fit case to exercise above jurisdiction. Thus, the first
contention raised on behalf of the insurer is rejected.
17. As regards the second argument of insurer, I am of the considered view that the insurer cannot succeed in it either. Learned counsel for the
insurer/appellant submitted that the deceased were travelling in the vehicles as gratuitous passengers and there was no material to suggest that they
were travelling as owner of goods.
18. It is revealed from the record that the insurer had not raised any objection as to the right or status of the deceased persons to travel in the vehicle
in question. Noticeably, the vehicle involved in the accident was registered having seating capacity for five. In absence of any objection from the
insurer, no specific issue was also framed. The insurer did not lead any evidence except for placing on record the policy of insurance. In this
background, insurer cannot be heard on seeking benefit of exclusion clause(s), if any, of the policy of insurance. It is well settled principle of law that
the onus to prove exception is on the insurer. Reference can be made to the following extract from the judgment passed by Hon’ble Supreme
Court in National Insurance Co. Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297:-
“66. A bare perusal of the provisions of Section 149 of the Act leads to only one conclusion that usual rule is that once the assured proved that the
accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception.
67. In MacGillivray on Insurance Law it is stated:
25-82 Burden of Proof: Difficulties may arise in connection with the burden of proving that the facts of any particular case fall within this exception.
The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an
exception. It has therefore been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger
and there is no evidence to show why he did so, they cannot succeed, because they have not proved that his behaviour was voluntary or that the
danger was unnecessary. Since an extremely heavy burden is imposed on the insurers if they have to prove the state of mind of the assured, it has
been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently
dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the
claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger.
68. In Rukmani and Others vs. New India Assurance Co. Ltd. and Others [1999 ACJ 171], this Court while upholding the defences available to the
insurer to the effect that vehicle in question was not being driven by a person holding a licence, held that the burden of the insurer would not be
discharged when the evidence which was brought on record was that the Inspector of Police in his examination in chief merely stated, ""My enquiry
revealed that the respondent No.1 did not produce the licence to drive the abovesaid scooter. The respondent No.1 even after my demand did not
submit the licence since he was not having it.
69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required
to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy
on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi (supra).â€
Thus, it was solely upon the insurer to discharge the burden of proof regarding allegations of gratuitous passenger, which the insurer miserably
failed.â€
19. Even this Court has answered the identical question in negative while deciding FAO (MVA) No. 215 of 2005, titled National Insurance Co. Ltd.
vs. Chimna Devi and others, reported in 2010 ACJ 1854. Para-6 of the judgment can be gainfully extracted as under:
“6. The learned counsel appearing for the appellant submits that the learned trial Court was wrong in awarding compensation for the passengers as
the policy did not cover their liability and it was Act only policy. This argument cannot be accepted as I find from the judgment of the learned Motor
Accident Claims Tribunal that this point was never urged, raised, pleaded or proved, nor parties were put to trial on this issue. This objection is deemed
to have been abandoned since it was not raised nor any issue claimed by the appellant before learned Motor Accident Claims Tribunal inviting a
finding thereon. The appellant was aware about its case and never pleaded it, cannot be now allowed to take it up in appeal and resort to a complete
re-trial of the case.â€
20. Thus, the insurer cannot be allowed to raise a new plea in the appeal which it had not raised before the Tribunal.
21. Section 166 and 168 of the Act empowers the Tribunal(s) and Court(s) with jurisdiction to award just compensation. The appeal is continuation of
proceedings undertaken before the Tribunal(s) constituted under Act. It is bounden duty of the Tribunal(s) or/and Court(s) to calculate a just
compensation on the basis of material on record. In Pappu Deo Yadav vs. Naresh Kumar and others, AIR 2020 (SC) 4424, the Hon’ble Supreme
Court has held as under:
“8. This court has emphasized time and again that “just compensation†should include all elements that would go to place the victim in as near
a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner
known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives…â€
22. The impugned award also requires modification on the quantum of compensation assessed by learned Tribunal. The petition was filed under
Section 163-A of the Motor Vehicles Act, 1988, which provides for a structured formula for calculating the compensation. Learned Tribunal had
assumed the age of deceased persons between 20 â€" 25 years. As held above, their income was claimed and proved to be Rs. 3200/-per month i.e.
Rs.38,400/- per annum, whereas learned Tribunal had wrongly assessed it at Rs. 4500/- per month. Learned Tribunal had also gravelly erred in
applying a formula for calculation which was completely unknown to law. It firstly deducted ½ of assessed monthly income of deceased and
thereafter multiplied the balances half with multiplier of 13, which had also been wrongly considered on the basis of age of the dependent.
23. The Second Schedule to Motor Vehicles Act, 1988 clearly provides for use of multiplier on the basis of age of the deceased. In these cases age of
deceased were taken as 20 â€" 25 years, therefore, applicable multiplier was 17. Their income was proved as Rs.38,400/- per annum each and as
such the relevant parameter of Rs.36,000/- per annum would be applicable as prescribed in Schedule. Thus, the compensation would be 6,84,000/-.
Now, 1/3rd of this amount is to be deduced on account of personal expenses of deceased. Thus, the compensation would be Rs.6,84,000/- - Rs.
2,28,000/- = Rs.4,56,000/-. In addition, a sum of Rs. 9,500/- shall also be added on account of funeral expenses, loss of consortium and estate. The
total compensation payable in each of the case is Rs.4,65,500/-. This amount shall further entail interest @ 6% per annum from the date of accident till
actual deposit or payment of this amount.
24. In light of above discussion, both the appeals are dismissed. The awards in both the cases are modified to the extent as above.
25. The appeals are disposed of, so also the pending miscellaneous application(s) if any.
