New India Assurance Co. Ltd. & Another vs Smt. Pina Devi And Others

Satyen Vaidya, J

Aggrieved against award dated 24.05.2017 passed by learned Motor Accident Claims Tribunal (IV), Shimla (for short. “The Tribunal”) in MAC Petition RBT No. 76-S/2 of 2014/12, the appellants have filed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, “The Act”).

Respondents No. 1 to 3 (hereinafter referred to as the “Claimants”) filed claim petition under Section166 of the Act for compensation on account of death of Sh. Shiv Bahadur in an accident involving motor vehicle. It was alleged that on 07.08.2011 at about 9.45 A.M. the deceased Sh. Shiv Bahadur was walking on the side of the road at place “Talland” in Shimla and was hit by a bus bearing registration No. HP-63-0115. The bus was owned by respondent No.4 (hereinafter referred to as the “owner”) and was being driven by respondent No.5 (hereinafter referred to as the “driver”).

The cause of accident was attributed to rash and negligent driving of the driver.

As per the claimants, the deceased was working as Assistant Lineman in Himachal Pradesh State Electricity Board and was aged about 48 years at the time of the accident.

The appellants herein were the insurers of the offending bus (hereinafter referred to as the “insurer”).

The claim petition was contested by the owner, driver and insurer. Though, the owner and insurer filed their separate replies, but both of them denied the factum of accident. It was stated that no accident had taken place with bus No. HP-63-0115. The deceased Shiv Bahadur was stated to have died on account of his own negligence. The deceased was alleged to be under intoxication. It was submitted that though FIR No. 89 of 2011 dated 07.08.2011 was registered at Police Station East, Shimla, but, since, nothing was found in the investigation the FIR was cancelled by the order of the Court. The bus was stated to be insured with the insurer.

The insurer filed a separate reply and alleged that the deceased had died on account of his own negligence. It was further alleged that the deceased had consumed liquor and as per chemical examination of the viscera the content of alcohol was found to be 256.9 mg %. The insurer also relied upon the cancellation of the FIR No.89/2011. Further, the objections were also raised with respect to the validity of driving licence of the driver besides want of proper registration certificate etc. of the vehicle.

Learned Tribunal framed the following issues:

Whether Sh. Shiv Bahadur died in an accident on 7.8.2011, at about 9:45 AM, at place Talland, Shimla on account of rash and negligent driving of driver respondent No. 2, of vehicle bearing registration No. HP-63-0115, as alleged? OPP.

If issue No. 1 is proved in affirmative, then what should be the quantum of compensation and from whom? OPP.

Whether the petition is not maintainable in the present form, as alleged? OPR.

Whether the driver of vehicle registration No. HP-63-0115, was not holding a valid and effective licence, as alleged? OPR.

Whether there was a serious breach in the terms and conditions of the insurance policy as well as the provision of the Motor Vehicle Act, as alleged? OPR.

Whether the petition is bad for misjoinder and non-joinder of necessary party, as alleged? OPR.

Relief.

By answering issues No. 1 and 2 in affirmative, the petition was allowed and a total sum of Rs. 28,10,700/- along with interest @ 7.5% per annum has been awarded in favour of the claimants. The claimant Pina Devi has been held entitled to 50% of the compensation and remaining 50% has been apportioned in equal share between claimants Bal Krishan and Manjit Singh. The compensation has been awarded by learned Tribunal under the following heads:

1.

Loss  of  monthly  income  i.e. Rs.16575/-

¼ of the salary deducted as personal   expenses   of   the deceased     Rs.22100/4 = 5525 (22100 – 5525= 16575)

Rs.2585700/-

Compensation after multiplier of 13 as applicable 16575 x 13x12

2.

Loss of consortium to wife

Rs.1,00,000/-

3.

Loss of love and affection

Rs.1,00,000/-

4.

Funeral charges.

Rs. 25,000/-

Total compensation awarded

Rs.2810700/-

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

Shri Raman Sethi, Advocate, learned counsel for the insurer has contended that the impugned award is bad in law for the reasons firstly that the death of Shiv Bahadur was not proved to have been caused due to rash and negligent driving of the driver while driving bus No. HP-63-0115 on 07.08.2011 and, secondly, the quantum of the compensation was excessive.

The first contention raised on behalf of the insurer deserves to be rejected for the reasons recorded hereinafter.

The claimants have examined PW-1 Bhawani Dass as a witness, according to whom, the accident had taken place in his presence. This witness categorically stated that the deceased was walking at a distance of 20-25 meters from him, when the deceased was hit by bus No. HP-63-0115. He further stated that as a result of the accident, the deceased Shiv Bahadur fell on the road and many people gathered around him. He further deposed that the deceased had suffered multiple injuries on the body and he was removed from the spot in some vehicle to the hospital.

In cross-examination, PW-1 Bhawani Dass stated that he was not acquainted with the deceased and had not reported the matter to the police. It was explained by the witness that since many persons had gathered on the spot, he thought that someone would report the matter to the police. According to this witness, later, he had come to know that the claimant Pina Devi belonged to Sunni Tehsil, the area from which he also hailed.

Thus, PW-1 Bhawani Dass is the sole witness, who allegedly had witnessed the accident. Despite lengthy cross-examination of PW-1 by the respondents, his veracity could not be shattered. Merely because, he had not reported the matter to the police or had not associated himself in the investigation will not render his version untrustworthy. The explanation of the witness that since many persons had gathered on the spot, he opted not to inform the police cannot be said to be unnatural, particularly, when he was not knowing the deceased.

As against the statement of PW-1, the other version is coming forth from the contents of FIR, which has been exhibited as Ext. PW-2/H. The informant is one Mr. Vinay Nanda, who allegedly was travelling in the offending bus and was sitting on the front seat. His version as recorded in the FIR, is that at about 9.45 AM when the bus reached “Talland” near Shiva Gas Company, a person was noticed walking on the road alongwith the railing in inebriated condition, who had struck against the rear door of the bus and had consequently fallen down. The driver had stopped the bus. The person was immediately removed to Ripon Hospital, Shimla in a vehicle as he had suffered minor injuries on both the legs. As per the informant, he could not notice the number of the vehicle in which the deceased was removed to the hospital.

The insurer, by placing reliance upon the contents of FIR, has asserted that the driver was not negligent, rather the inebriated condition of deceased was the cause of accident. Learned counsel for the insurer would contend that the above hypothesis stands corroborated by the fact that finally the FIR was cancelled. In this regard, he placed reliance on the contents of document Ext.RW-4/B, which are the cancellation report submitted by the police and Ext. RW-6/A by which the FIR was finally cancelled by learned Judicial Magistrate 1st Class (1), Shimla.

Learned counsel for the insurer also placed reliance on the judgment passed by Hon’ble Supreme Court in National Insurance Company Ltd. vs. Rattani and others 2009 (2) ACJ 925 to assert that the contents of FIR have to be read against the claimants as they themselves have placed reliance on the document.

Noticeably, the informant Mr. Vinay Nanda has not been examined as a witness by the respondents. FIR Ext. RW-2/H itself is not the substantive piece of evidence. In Ext. RW-3/A and Ext. RW-4/B, which are copies of the reports prepared by the police under Section 173 CrPC, it has been recorded that the statement of Mr. Vinay Nanda under section 154 CrPC was recorded by the police at Indira Gandhi Medical College & Hospital, Shimla where the injured Shiv Bahadur had been taken for treatment. The contents of statement of Mr. Vinay Nanda, however, does not reveal that he had accompanied the injured to the hospital. Rather, Mr. Vinay Nanda had stated that he could not notice the number of the vehicle in which the injured was removed to hospital from the spot. It is also revealed from the evidence on record that the injured was firstly taken to Ripon Hospital, Shimla and from there he was referred to IGMC, Shimla.

Thus, there is no escape from inference that Mr. Vinay Nanda had not visited the hospital. That being so, the statement of Mr. Vinay Nanda could not have been be recorded at IGMC, Shimla. There is no explanation with respect to such a glaring incongruity and thus, appears to be nothing but embellishment clearly entailing a suspicious narrative.

The driver was examined as RW-1. In cross-examination, he has admitted that he had been driving the vehicle of Mr. Vinay Nanda and his brother in the past. He has also admitted that he knew Mr. Vinay Nanda closely. Thus, from the above disclosure by the driver, the suspicion as to veracity of version of Mr. Vinay Nanda gets further strengthened.

Further, the version of Mr. Vinay Nanda under Section 154 CrPC was that the deceased appeared to be intoxicated with improper gait and that he incidentally had struck against the rear door of the vehicle. This fact has also not been denied by the driver. While appearing as RW-1, he admitted that the deceased had struck against the rear part of the vehicle. In this background, the insurer cannot seek much help from Rattani Devi (supra) because the alleged opinion formed by Mr. Vinay Nanda has not been proved as a fact in the case. Firstly, Mr. Vinay Nanda was not examined as a witness and secondly, there was no other evidence on record to establish that the deceased was intoxicated. Dr. Piyush Kapila PW-5 has not been examined on this aspect. Similarly, the report of Forensic Science Laboratory on which reliance has been placed has not been proved in accordance with law. There is clear absence of link evidence to connect the sample reported by FSL with that of the deceased.

The report of SFSL, Junga Mark ‘A’ reveals that a sample of the blood was examined and analyzed by the said Laboratory which was alleged to be of Shiv Bahadur. The postmortem report Ext.PW-2/G does not reveal that any sample was preserved or sent for scientific analysis. PW-5 Dr. Piyush Kapila has also not stated so. There is no other evidence as to who had drawn and preserved the sample which allegedly was sent to SFSL, Junga for analysis. The Investigating Officer of the case HC Madho Singh has been examined as witness. In examination-in-chief, this witness stated that the blood sample of deceased was drawn but except for his bald assertion, there is no other documentary proof placed on record to corroborate the version.

Further, the mere submission of cancellation report of FIR by the police and its approval by the Court does not prove that the driver was not rash and negligent. The police report appears to have been based only on the report of State Forensic Science Laboratory wherein the sample was found to contain alcohol 256.9 mg %. The said report having not been proved cannot be relied upon for adjudging the veracity of the reasons seeking cancellation of the FIR. The order passed by learned Judicial Magistrate 1st Class (1), Shimla affirming the cancellation by order Ext.RW-6/A also does not help the insurer as the said order has been passed without hearing the victim. The order shows that the complainant Mr. Vinay Nanda was issued notice and, on his consent, only the FIR was cancelled.

However, as regards the quantum of compensation, the impugned award needs interference to the extent as detailed hereafter.

Learned Tribunal has wrongly deducted 1/4th of the monthly income of the deceased towards his personal expenses whereas per the verdict in National Insurance Company Ltd. vs. Pranay Sethi & Others (2017) 16 SCC 680, the deduction on account of personal expenses from income of the deceased had to be 1/3rd as the deceased had left behind three dependents. By making 1/3rd deduction on account of personal expenses, the loss of monthly dependency will be Rs. 14,734/-instead of Rs. 16,575/-. By applying the multiplier of 13, the total loss of dependency will be Rs.14734 x 13 x 12 = Rs.22,98,504/-.

In the impugned award, Rs.1,00,000/- has been awarded on account of loss of consortium to the wife of deceased, whereas, as per Pranay Sethi (supra) and subsequent judgment passed by the Hon’ble Supreme Court in Magma General Insurance Company Limited vs. Nanu Ram (2018) 18 SCC 130, all the three dependents/claimants are entitled to loss of consortium @ Rs.40,000/- each. On this count, the compensation has to be Rs.1,20,000/- instead of Rs.1,00,000/-.

Further, learned Tribunal has awarded Rs.1,00,000/-towards the loss of love and affection, which as per Pranay Sethi (supra) is not permissible. Funeral charges have been awarded at the rate of Rs.25,000/-, which again have to be reduced to Rs.15,000/-. The claimants have not been awarded any amount on account of loss of estate which again as per Pranay Sethi is permissible at the rate of Rs.15,000/-. In addition, the claimants shall also be entitled to enhancement @ 10% on the compensation awarded under conventional heads after every three years as per Pranay Sethi. Thus, the total compensation under conventional heads being Rs.1,50,000/-, enhancement @ 10% after every three years w.e.f. 2017 will be Rs.30,000/-. The claimants shall be entitled to the following amounts:

1.

Loss of monthly income i.e. Rs.14734/-

(1/3rd of the salary deducted as personal expenses of the deceased) Compensation after multiplier      of      13      as applicable 14734 x 13x12

Rs.22,98,504/-

2.

Loss of consortium

Rs.1,20,000/-

3.

Funeral charges

Rs. 15,000/-

4.

Loss of estate

Rs. 15,000/-

5.

Enhancement @ 10% after every three years

Rs. 30,000/-

Total compensation awarded

Rs.24,78,504/-

The claimants shall also be entitled to interest @ 7.5% per annum from the date of filing of the petition till its deposit. The apportionment shall remain the same as made by the learned Tribunal.

Accordingly, the appeal is partly allowed. The impugned award dated 24.05.2017 passed by learned Motor Accident Claims Tribunal (IV), Shimla in MAC Petition RBT No. 76-S/2 of 2014/12 is modified to the extent as detailed hereinabove.

The appeal stands disposed of in above terms, so also the pending miscellaneous application(s), if any.