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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. : 449 of 2017
Reserved on : 01.04.2025
Decided on : 07.04.2025
The New India Assurance Co. Ltd.
.…Appellant.
Versus
Smt. Lekhika and Ors.
..…Respondents.
Coram
The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes
For the appellant : Mr. B.M. Chauhan, Sr. Advocate,
with Mr. Pranav Shyam, Advocate.
For the respondents : Mr. P. M. Negi, Advocate, for
respondents No.1 to 5.
: Mr. Lakshay Thakur, Advocate, for
respondents No. 6 and 7.
Satyen Vaidya, Judge
The instant appeal has been filed by appellant against award dated 24.11.2016, passed by learned Motor Accident Claims Tribunal, (IV), Shimla, District Shimla, H.P., in MAC Petition No. 1-R/2 of 2015.
1 Whether reporters of the local papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:9296 ) 2.
Respondents No. 1 to 5 (hereinafter referred to as ‘claimants’), in the capacity of legal heirs and dependents, filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short ‘the Act’) for grant of compensation on account of the death of Sh. Vikram Singh as the result of motor vehicle accident. 3.
It was alleged that Sh. Vikram Singh had died in a motor vehicle accident involving vehicle No. HP-10A- 5266 (Ford Figo Car). As per claimants, on 18.10.2014, Sh. Vikram Singh was returning from Chamba to Shimla by travelling in vehicle No. HP-10A-5266. At about 12:15 AM, at place Khedru in District Hamirpur, H.P, the vehicle met with an accident resulting in death of Sh. Vikram Singh. 4.
The accident was attributed to the rash and negligent driving of respondent No. 7 (hereinafter referred to as ‘driver’) 5.
The vehicle involved in an accident was owned by respondent No.6 (hereinafter referred to as ‘owner’) and was insured by the appellant (hereinafter referred to as ‘insurer’).
3 Neutral Citation No. ( 2025:HHC:9296 ) 6.
The deceased Sh. Vikram Singh was stated to be aged about 47 years at the time of accident. He was working as a D.P.E. in Girls Senior Secondary School, Badshal, District Shimla, H.P. and was drawing monthly salary of Rs. 50,940/-. As per claimants, the deceased Vikram Singh was the only bread earner of the family and all the claimants were, thus, totally dependent upon him. 7.
The owner and driver filed their joint reply. The negligence on the part of the driver was specifically denied. It was submitted that the accident had taken place on account of sudden appearance of stray cattle in front of the vehicle. It was submitted that had the cow not appeared in front of the vehicle the accident would not have taken place. The owner further disclosed the factum of existence of policy of insurance of the vehicle for the period 08.03.2014 to 07.03.2015. 8.
The insurer also filed its reply by taking preliminary objections that the petition was not maintainable. The averments made in the petition were denied generally. It was alleged that the driver was not having a valid driving license at the time of accident.
4 Neutral Citation No. ( 2025:HHC:9296 ) 9.
On the pleadings of the parties, the following issues were framed- 1) Whether Vikram Singh died in motor vehicle
incident on account of rash and negligent
driving of driver of vehicle bearing No. HP-
01A-5266, on 18.10.2014 at about 12:15 AM
at place Khedru, District Hamirpur, H.P., as
alleged? OPP.
2 Whether the petitioners are entitled for
compensation, if so, then what should be the
quantum? OPP.
Whether the petition is not maintainable in
the present form? OPR.
4) Whether the petitioners have no cause of
action to file the present petition, as alleged
? OPR
5) Relief.
Issue Nos. 1 and 2 were decided in affirmative, whereas remaining issues were decided in negative. The petition was, accordingly allowed and compensation of Rs. 68,36,618/- was awarded in favour of the claimants alongwith interest @ 9% per annum from the date of filing of the petition till the realization of entire amount. The compensation has been apportioned between the claimants as under:-
5 Neutral Citation No. ( 2025:HHC:9296 )
Claimant No.1=50%;
and remaining 50% divided equally between
claimants No. 2 to 5.
Learned Tribunal held the insurer to indemnify the insured with respect to compensation awarded in favour of claimant. 11. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 12. Learned Senior Counsel representing the insurer would contend that the claimants had failed to discharge the burden of proving the cause of accident to be rash and negligent driving of the driver. He would submit that the findings returned by learned Tribunal in para-32 of the impugned award were against the material on record. 13. The arguments raised on behalf of the insurer is required to be out rightly rejected for the reason that the insurer had made a clear admission in the reply filed by it before the Tribunal that the accident had taken place due to rash and negligent driving of the driver. It will be
6 Neutral Citation No. ( 2025:HHC:9296 ) relevant to reproduce the contents of para-24 of the reply filed by insurer as under:- “24. That the averments of para-24 of the petition are wrong and denied. The accident has taken place due to the rash and negligent driving of the driver and in such a situation the insurance company is not liable to make the payment of compensation. It is the driver who has driven the vehicle with rash and negligent manner and is liable to make the payment of compensation and more over at the time of the driving of the vehicle he was not having valid and effective driving license. On this score also the petition deserves to be dismissed. Rest of the averments made in the para is denied for want of knowledge and the amount claimed in this para is highly excessive and the petitioners have got no right to claim such a huge amount as mentioned in this para.”
(Emphasis added) 14. Even otherwise there was sufficient evidence before learned Tribunal to infer that the accident had taken place on account of rash and negligent driving of the driver. The claimants examined one of the occupants of the vehicle as PW-2, Sh. Bhag Ram. He deposed that on 17/18.10.2014, he alongwith other four persons including the deceased were travelling from Chamba to Shimla in
7 Neutral Citation No. ( 2025:HHC:9296 ) vehicle No. HP-10A-5266. At about 12:15 AM in the night, at place Khedru in District Hamirpur, H.P., all of a sudden a cow appeared on the road due to which the driver lost control on the vehicle and resulted in the accident. He specifically stated in his examination-in-chief that the driver had lost control on account of vehicle being in high speed. Thus, he attributed the cause of accident to rash and negligent driving of the driver. In cross-examination by the owner, PW-2 admitted that the accident had taken place due to appearance of cow on the road. It was not suggested to this witness by learned counsel for the owner that there was no rashness or negligence on the part of the driver. PW-2 was also cross-examined by learned counsel for the insurer, who suggested to the witness that the cause of accident was rash and negligent driving of the driver. 15. The driver of the vehicle also stepped into a witness box as RW-2. He deposed that the accident occurred because a stray cattle appeared on the road all of a sudden. He did not even make a whisper that the vehicle was not in high speed or that he was driving the
8 Neutral Citation No. ( 2025:HHC:9296 ) vehicle cautiously. It is the admitted case of the parties that the accident had taken place at about 12:15 AM in the night, which made it necessary for the driver to have remained more alert and cautious. The road, where the accident had taken place was not an express-way, where the possibility of presence of stray cattle on the road could be minimum. 16. Thus, learned Tribunal has rightly held that the death had taken place on account of rash and negligent driving of the driver. 17. It was next contended on behalf of the insurer that the quantum of compensation has not been rightly assessed. In order to examine such contention of the insurer, it cannot be seen that the income of the deceased and his age at the time of death was not in dispute. The income has rightly been assessed at Rs. 50,940/- per month and the age of the deceased was found to be 47 years. Further, learned Tribunal has allowed 30% increase on the income of the deceased on account of loss of future prospectus. This part of award cannot be faulted with. Out
9 Neutral Citation No. ( 2025:HHC:9296 ) of the monthly income of the deceased, 20% was deducted by learned Tribunal towards the payable income tax. 18. Learned Tribunal further deducted 1/5th of the income of the deceased towards his personal expenses. The deceased had left behind five dependents and in this view of the matter by applying the ratio laid down in National Insurance Company Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680, the deduction on personal expenses had to be 1/4th. 19. Learned Tribunal has further awarded Rs. 1,00,000/- towards loss of consortium to the wife. In addition, Rs. 1,00,000/- have been awarded on account of loss of love and affection and further Rs. 25,000/- have been awarded as funeral charges. In view of the law laid down by Constitutional Bench in Pranay Seth’s case (supra) and further clarified in Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130. The loss of consortium is required to be assessed Rs. 40,000./- for each of the dependent and thus, the compensation under this head would be Rs. 2,00,000/-. The funeral
10 Neutral Citation No. ( 2025:HHC:9296 ) charges are also to be restricted to Rs. 15,000/-. Though, no amount can be awarded separately under the head loss of love and affection, the claimants would be entitled to Rs. 15,000/- under the head loss of estate. In addition, under the conventional head of loss of consortium, funeral charges and loss of estate, claimants would also be entitled for enhancement @ 10% from the date of passing of judgment in Pranay Sethi’s case (supra) i.e. the year 2017 after every three years. 20. Accordingly, the claimants are held entitled to compensation as under:- Sr. No Heads Calculation 1 Loss of dependency Rs. 39734x12x13
Rs. 61,98,504/- 2. Loss of consortium Rs. 40,000x5
Rs. 2,00,000/- 3. Enhancement on the amount of loss of consortium
Rs. 40,000/- 4. Loss of estate Rs. 15,000/- 5. Enhancement on the amount of loss of estate
Rs. 3,000/- 6.
Funeral charges Rs. 15,000/- 7.
Enhancement on the amount of funeral charges
Rs. 3,000/-
Total Rs. 64,74,504/-
11 Neutral Citation No. ( 2025:HHC:9296 )
The interest awarded by the Tribunal shall remain the same. 22. The compensation will be apportioned as under:
Wife
= 30%
Children = 20% each
Mother
= 10% 23. In result, the appeal is partly allowed. The award dated 24.11.2016, passed by learned Motor Accident Claims Tribunal, (IV), Shimla, District Shimla, H.P. in MAC Petition No. 1-R/2 of 2015, is modified to above extent. 24. The appeal, is accordingly, disposed of, so also the pending miscellaneous application(s), if any.
(Satyen Vaidya) 7th April, 2025
Judge (sushma)