IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO(MVA) No. 104 of 2008 Date of Decision : March 2, 2009 National Insurance Co.Ltd., …Appellant. Versus: Urmila Devi & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant : Ms. Devyani Sharma, Advocate. For respondents No.1 to 3: Mr. Rakesh Jaswal, Advocate. For respondents No.4 & 5: Mr. Ajay Sharma, Advocate For respondent No.6 : Mr. Ratish Sharma, Advocate For respondent No.7 : Mr. Vinod Gupta, Advocate Sanjay Karol, J. (Oral) The National Insurance Co. Ltd., insurer of Motorcycle No. HP-22-A-2392, has filed the present appeal assailing the impugned award dated 8.11.2007 passed by the Motor Accidents Claims Tribunal, Hamirpur, in M.A.C. Petition No. 34 of 2006 titled as Urmila Devi & Ors. v. Jai Ram Sharma & others. Brief facts giving rise to the filing of the present appeal are as under:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Undisputedly, on 25.1.2006, an accident took place on Kangra-Nurpur road near Khajjian, Tehsil Nurpur, Distt. Kangra, H.P., between truck No. HP-68-2292 owned by Shri Jai Ram Sharma (respondent No.4 herein), which was driven by Shri Punjab Singh (respondent No.5 herein) and motorcycle No.HP- 22-A-2392 being driven by Shri Sanjay Kumar (respondent No.7 herein). Deceased Shri Vinod Kumar was the pillion rider on the Motorcycle. The accident took place between the two vehicles and an FIR (Ext.RX) dated 25.1.2006 under sections 279 & 337 IPC was registered against Shri Sanjay Kumar at the behest of Shri Punjab Singh. Shri Vinod Kumar died in the accident and his post mortem report (Ext.P1) was obtained. Complaint (Ext.PX) dated Nil was also allegedly filed by Shri Sanjay Kumar with the Superintendent of Police, Kangra at Dharamshala. The truck was registered with the Authorities (Ext.RW-1/A) and insured with M/s. New India Assurance Co. Ltd., (respondent No.6 herein) in terms of insurance policy (Ext. RW-1/C). Its driver possessed a valid and effective driving licence (Ext.RW-1/B). The motorcycle was registered with the Authorities (Ext.RW-3/A) and insured in terms of insurance policy (Ext.RX) with the National Insurance Co. Ltd. (the present appellant). The driver of the motorcycle possessed a valid and effective driving licence Ext.RW-3/B. The parents and the wife of the deceased filed a petition under Section 166 of the Motor Vehicles Act, 1988 3 claiming compensation of Rs.10 lacs. In the petition, negligence was attributed to the driver of the truck. The owner and the driver of the truck filed joint reply inter alia, pleading that motorcycle was in fact being driven by the deceased Vinod Kumar, who in an attempt to overtake the bus and the truck coming from the opposite side, drove the motorcycle at high speed which resulted in the occurrence of the accident. The insurer of the truck, however, took a different stand and attributed negligence to Shri Sanjay Kumar who according to them, was driving the vehicle and Shri Vinod Kumar was the pillion rider. Shri Sanjay Kumar in his reply, in effect admitted that it was he who was driving the vehicle and deceased Vinod Kumar was the pillion rider and that the accident occurred due to the rash and negligent driving of Shri Punjab Singh. The present appellants filed a reply inter alia, pleading that Sanjay Kumar did not possess a valid and effective driving licence but also attributed negligence to Shri Punjab Singh. Based on the pleadings of the parties, the Tribunal framed the following issues :- “1. Whether Vinod Kumar died due to rash and negligent driving of truck No. HP-65-2292 by respondent No.2 and motorcycle No.HP-22-2392 by respondent No.4, as alleged? OPP 4 2. Whether Vinod Kumar died due to the rash and negligent driving of Motorcycle No.22-2392 by himself as alleged? OPR 1&2 3. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 4. Whether the respondent No.2 was not holding valid and effective driving licence at the time of alleged accident? OPR3 5. Whether the respondent No.4 was not holding valid and effective driving licence at the time of alleged accident? OPR-5. The Tribunal also re-cast the following issues: 1. Whether Vinod Kumar died due to the rash and negligent driving of truck No.HP-68-2292 by respondent No.2 and Motorcycle No.22-A-2392 by respondent No.4 as alleged? OPP 2. Whether Vinod Kumar died due to the rash and negligent driving of Motorcycle No.22-A-2392 by himself as alleged? OPR 1&2 Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the Tribunal decided issues No.1 & 2 by holding that it was Shri Sanjay Kumar who was driving the motorcycle at the relevant time and the accident occurred due to his acts of negligence, in which Shri Vinod Kumar who was the pillion rider sustained injuries and consequently died. The Tribunal did not accept the version of Shri Sanjay Kumar that he had filed complaint (Ext.PX), as the same was produced in the Court for the first time during trial and no reference thereof was made in 5 the reply. His statement did not inspire confidence as not only he was closely known to the deceased and the claimants but he also did not disclose the factum of the registration of the FIR (Ext.RX) against him. While deciding issue No.3, the Tribunal awarded compensation of a sum of Rs.5,39,500/- in favour of the claimants and held the National Insurance Co. Ltd., the present appellant, liable for the same in view of the Insurance Policy (Ext.RX). Issues No.4 & 5 were decided by holding that the drivers were possessing a valid and effective driving licence i.e. Ext.RW-1/B & Ext.PW-3/B. The awarded amount was directed to be apportioned as under:- Petitioner No.1-Mother : Rs.2,00,000/- “ “ 2- Father : Rs.1,49,500/- “ “ 3-Wife : Rs.2,00,000/- The present appeal has been filed by the National Insurance Co. Ltd., insurer of the motorcycle. The challenge is on the ground that the Tribunal has misread and mis- appreciated the evidence with regard to the negligence of the drivers and thus the findings arrived at are not only perverse and erroneous but also contrary to the record and needs to be set aside; the witnesses have contradicted themselves; negligence is attributed to Shri Punjab Singh, driver of the truck and the Tribunal erred in arriving at its conclusion that his 6 statement is without any blemish; in any event the amount awarded is much on the higher side. Per contra, the respondents have supported the award for the reasons set out therein. I have heard the learned counsel for the parties and also perused the record. In order to prove its case, the claimant Shri Braham Dass examined himself as PW-1, Shri Raj Kumar (PW-2) and Shri Kultar Singh (PW-3). The owner of the truck Shri Jai Ram Sharma examined himself as RW-1 and its driver Shri Punjab Singh examined himself as RW-2. Shri Sanjay Kumar owner of the motorcycle examined himself as RW-3. For determining the negligence, statements of PW-1, RW-2 and RW-3 are relevant. According to Shri Braham Dass, after about 2-3 months from the date of accident Shri Sanjay Kumar, on telephone informed him that the accident occurred due to the negligence of Shri Punjab Singh. Shri Punjab Singh has proved on record the first information report (FIR) Ext.RX which was got registered by him. In the said FIR, it is clearly stated that the accident occurred due to the negligence of the driver of the motorcycle who on the asking of the passers bye disclosed his name as Sanjay Kumar and the villagers took him to the hospital, but he has given a different version in the Court by stating that immediately after 7 the occurrence of the accident both the driver and the pillion rider of the motorcycle fell unconscious and he took the injured to the hospital and had no conversation with the said persons. No doubt, the version of RW-2 is slightly different from what has been stated by him in the FIR, but in my view, that would not change the position as there is no dispute with regard to the person who was driving the motorcycle at the relevant point in time. This position is fairly stated by the learned counsel for the parties at the bar. The variation in his statement is not fatal as it is not with regard to the fact in issue. He has unequivocally deposed that the accident occurred due to the negligence of Shri Sanjay Kumar as in his endeavour to overtake the bus at high speed he dashed with the driver side of the truck. He further deposed that the truck was being driven at a speed of 25 kms. per hour. If the version of Shri Sanjay Kumar was to be compared with that of Shri Punjab Singh, it would be evident that the findings of the Tribunal are neither perverse nor incorrect. Shri Sanjay Kumar in his statement has given a different version with regard to the registration of the case against him. On this issue he has been vacillating. While deposing, he expressed ignorance about the registration of the case, but in the very next breath admitted the pendency of the case in which he is the accused. Importantly, while being cross- examined by the insurer of the truck, he deposed that he had 8 not given anything to the police nor did the police give anything to him. He categorically deposed that he had never made any complaint to the police but, however, while being cross- examined by the learned counsel for the claimants he placed on record complaint (Ext.PX) written by him to the Superintendent of Police. The said complaint does not bear any date or signature/stamp of receipt. Even though he has deposed that the owners of the truck, who are affluent persons have influenced further action of the same but however, he has not placed on record any documentary evidence to prove that the said complaint was received by the authorities, pursued by him or such plea was ever taken by him in the proceedings arising out of the registration of FIR (Ext.RX) pending against him. Even prima facie he could not show that FIR was wrongly got registered by these affluent persons against him. He failed to place on record the defence taken by him in the proceedings admittedly pending against him. Further, according to him he remained unconscious in the hospital for 11 days and regained consciousness only one day prior to his discharge and after regaining consciousness he informed Shri Braham Dass, father of the deceased Vinod Kumar about the accident. But according to Shri Braham Dass, Shri Sanjay Kumar had telephonically informed him about the accident after a period of 2-3 months from the date of the accident. 9 This witness has only stated that he was driving the vehicle at a normal speed and what is that normal speed has not been elaborated by him. He is vague and unspecific about the same. For all the aforesaid reasons, I find that his version does not inspire confidence. The version of RW-2 is more convincing than the version of RW-3. The findings of the Tribunal that Shri Sanjay Kumar (RW-3) had been negligent in driving the motorcycle are correct and borne out from the record. The evidence has been correctly appreciated and there is no perversity in the same. On the question of quantum the statement of PW-1 is clear. He has deposed that two years prior to the accident Shri Vinod Kumar had set up the Tent house business. He used to contribute Rs.10,000/- per month to the household. This version stands duly supported by PW-2. No doubt there is no documentary evidence to prove the same but same guess work is permissible and the Tribunal has rightly taken the monthly income of the deceased to be Rs.4500/-. That the deceased had studied up to 12th standard and self employed stands proved by PW-3. For the purpose of dependency, the Tribunal has only taken the figure of Rs.3000/- and determined the yearly dependency to be Rs.36000/-. The deceased was 28 years of age at the time of his death. He was married and working. His wife was young. In my view, therefore, the multiplier of 15 applied by the Tribunal is justifiable. The sum of Rs.5,49,500/- 10 determined by the Tribunal as compensation towards the loss of income, funeral charges, loss of consortium and loss of estate are just, fair and reasonable. However, from the record, it is proved that the claimant No.1 was gainfully employed as a Govt. servant having an income of Rs.9000/- per month. In this view of the matter, I am of the view that he cannot be considered to be dependent and as such only the mother and the widow of the deceased would be entitled to the compensation. The Tribunal has already determined a sum of Rs.2 lacs payable to the mother. Therefore, in my view, the widow of the deceased shall be entitled to a sum of Rs.3,49,500/-. The impugned award is modified accordingly. For the aforesaid reasons, the appeal is disposed of, so also the pending application. ( Sanjay Karol ), Judge. March 2, 2009. (rana)