IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO Nos.232 & 302 of 2001. Reserved on: 22.11.2007. Decided on: January 02, 2008 For title, please see over-leaf. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants: } } Please, see over-leaf. For the Respondents: } Kuldip Singh, Judge This judgment shall dispose of FAO No.232 of 2001 and FAO No.302 of 2001 which have arisen out of MAC Petition No.11-S/2 of 1999. The insurer of truck No.HP-23-3011 has filed FAO No.232 of 2001 and claimants have filed FAO No.302 of 2001 against the award dated 27.6.2001 passed by Motor Accident Claims Tribunal-II, Solan in MAC Petition No.11-S/2 of 1999. In this judgment, facts are given from FAO No.232 of 2001. 2. The facts, in brief, are that Jia Lal (deceased) was riding scooter bearing registration No.HP-11-0747 and when he reached place Nai Sarli at Ratt at about 9.15 A.M. on 18.6.1999 truck bearing registration No.HP-23-3011 hit the scooter and in the accident Jia Lal 1 Whether the reporters of the local papers may be allowed to see the Judgment ? Yes sustained multiple injuries and died on the spot. The accident took place due to rash and negligent driving on the part of Prem Lal - driver of the truck and the truck at the time of accident was owned by Smt.Prem Lata and was insured with New India Assurance Company. The respondents No.1 to 6 are the wife, children and mother of deceased Jia Lal. The respondents were dependent on the deceased who was about 40 years of age and was earning Rs.5000 per month at the time of his death. 3. The claim petition was contested by respondent No.7 driver and respondent No.8 owner of the truck by filing reply and they took preliminary objections of locus standi and also that the accident took place due to rash and negligent driving on the part of the deceased, F.I.R. No.140/1999 dated 18.6.1999 under Sections 279, 304-A IPC was also registered against the deceased. The respondents No.1 to 6 are not entitled to any compensation. It has also been alleged that truck was insured with New India Assurance Company Bilaspur. The accident did not take place due to rash or negligent driving on the part of the driver of the truck. 4. The New India Assurance Company, insurer of the truck, raised preliminary objections and has submitted that particulars of the policy have not been supplied by the driver and owner of the truck and, therefore, the insurer denied that the truck was insured with New India Assurance Company, Bilaspur. The accident took place due to rash or negligent driving on the part of the deceased and F.I.R. regarding the accident was also registered against the deceased. The driver of the truck was not holding valid and effective driving licence at the time of accident and, therefore, Insurance Company is not liable to indemnify the owner of the truck. The following issues were framed by the Tribunal:- i) Whether the deceased Jia Lal died due to rash and negligent driving of respondent No.1, as alleged? OPP ii) If issue No.1 proved in affirmative to what amount of compensation the petitioners are entitled and against whom? OPP iii) Whether the petitioners have no locus standi to file the present petition, as mentioned in preliminary objection No.1? OPR-1 and 2. iv) Whether the vehicle was duly insured with the New India Assurance Company, Bilaspur at the time of accident, as alleged? OPR-1 and 2. v) Whether the respondent No.1 was not holding valid and effective driving licence at the time of accident, as alleged? If so, its effect? OPR-3 vi) Whether the vehicle was being driven in gross violation of the terms and conditions of the policy of insurance and the provisions of M.V. Act, as alleged? OPR-3 vii) Relief. 5. The learned Tribunal has awarded Rs.2,88,000 compensation to respondents No.1 to 6 equally and held that since the truck was insured with the insurer, therefore, New India Assurance Company Ltd. Bilaspur would pay the award amount. It has been ordered that award amount shall be paid within 30 days from the date of award failing which interest at the rate of 12% per annum shall be payable from the date of petition till realization. The insurer and claimants have filed the above appeals in this Court respectively against the impugned award. 6. I have heard the learned counsel for the parties and gone through the record. Mr.K.D.Sood, learned counsel for the insurer, has submitted that the application of the insurer under Section 170 of the Act was allowed by the Tribunal, therefore, Insurance Company is entitled to raise all pleas. The tribunal has not appreciated the material on record. The deceased himself was negligent in driving the scooter. The tribunal has not properly considered the monthly income of the deceased, multiplier to be applied. It is not clear from the award how the tribunal has arrived at the figure of Rs.2,88,000 for awarding the compensation to respondents No.1 to 6. The award is not supported by reasons. The Insurance Company has been wrongly made liable to pay the compensation. The learned counsel for claimants / respondents No.1 to 6 has submitted for enhancement of award. He has submitted that interest has not been awarded to the claimants by the Tribunal properly. 7. PW-1 Smt.Vidya Devi, widow of Jia Lal, has stated that deceased was her husband, he was 41 years of age at the time of accident. The other claimants are children and mother of the deceased, her husband was running a Karyana shop and was earning Rs.5000 per month. On 18.6.1999 the deceased was driving scooter which was hit by truck bearing registration No.HP-23-3011 and he died on the spot. The accident took place in presence of PW-3 Bhushan Lal and her brother in law. The road is quite wide at the place of accident. The accident took place due to rash and negligent driving on the part of driver of the truck. In cross examination, she has stated that her husband was driving the scooter for the last 10 years and was having driving licence to drive the scooter. She has produced Ext.PW- 1/A shop licence. In the cross examination, conducted on behalf of the driver and owner of the truck, she has denied that the income was Rs.60-70,000 per annum. She has stated that police did not investigate the matter properly. PW-2, Ram Dass, has stated that he worked with deceased Jia Lal for 14-15 years and he used to pay Rs.1000 per month salary to him. 8. PW-3 Bhushan Lal has stated that on 18.6.1999 he was sweeping his shop, his shop is just on the road. Truck bearing No.HP- 23-3-11 came towards his shop in high speed. The deceased was coming on his scooter from the opposite side and came under the truck. The truck dragged the scooter for some distance and then stopped. The truck was coming from wrong side and struck against the scooter on the wrong side. The accident took place due to the fault of the truck driver. The accident took place in his presence. The road is quite wide at the place of accident. The truck driver reported the matter to the police. In cross examination, he has denied that the scooter was going in high speed. He has denied that accident did not take place in his presence. PW-4 Ranjit Singh has stated that he is a driver on vehicle No.HP-11-2131. On 18.6.1999 he had loaded clinker and at about 9.30 A.M. he reached Nai Sarli. Prem Lal, who was driving vehicle No.HP-23-3011, overtook his truck, a scooter came from the opposite side which was hit by him and after hitting the scooter parked the truck on the right side. The scooter driver died on the spot. The accident took place due to rash and negligent driving on the part of truck driver. The scooter was coming on proper side. 9. RW-1 Prem Lal has stated that on 18.6.1999 he was driving truck No.HP-23-3011. At place Nai Sarli one person was coming on scooter in high speed and was descending. On seeing the scooter, he brought the truck towards conductor side drain but scooter hit the conductor side. The scooter was in high speed and as a result of which it lost the control. He lodged the F.I.R., copy Ext.R-1. In cross examination, he has stated that he saw the scooter at a distance of 100 meters. The scooter came under the truck. He denied that he lodged false F.I.R. He has shown his ignorance that accident took place in presence of Ranjit Singh and Bhushan Lal. RW-2 HC Nanak Chand has proved F.I.R. Ext.RW-1/A. RW-3 A.S.I. Prem Chand has stated that on 18.6.1999 he was posted at Police Station, Sadar Bilsapur as Investigating Officer. He went to the spot and as per his investigation, the accident took place due to rash and negligent driving on the part of scooter driver. In cross examination, he has stated that the scooter driver was at fault as per spot map. On behalf of respondent No.3 policy Ext.RX was tendered in evidence. This is the entire evidence led by the parties. 10. PW-1 Vidya Devi has stated that the accident took place due to rash and negligent driving on the part of the driver of the truck. PW-3 and PW-4, eye-witnesses of the accident, have also said that the accident took place due to rash and negligent driving on the part of the truck driver. RW-1 Prem Lal has not denied that PW-3 and PW-4 were present on the spot at the time of accident. RW-1 Prem Lal has stated that accident took place due to rash and negligent driving on the part of scooter driver but he is an interested witness. No independent witness has been examined to prove rash and negligent driving on the part of the scooter driver. RW-3 S.I. Puran Chand has stated that, according to him, the scooter driver was at fault because of the spot map. RW-3 is not an eye witness. From the evidence on record, it has been proved that accident took place due to rash and negligent driving on the part of truck driver and not the deceased who was driving the scooter. Jia Lal sustained injuries in the accident and died later on. It is, thus, clear that Jia Lal died in the accident involving scooter No.HP-11-0747 and truck No.HP-23-3011 due to rash and negligent driving on the part of truck driver. The truck was insured with New India Assurance Company, Bilaspur vide policy Ext.RX on the date of accident. The insurer of the truck has failed to prove that the driver of the truck was not holding valid and effective driving licence at the time of accident and the truck was being driven at the time of accident in violation of terms and conditions of the policy. 11. It has come on record that Jia Lal was earning Rs.5000 per month from his shop as per statement of his wife PW-1 Vidya Devi. In the cross examination, conducted on behalf of respondents No.1 to 3, it has been suggested that the deceased was earning Rs.60-7000 per annum which comes to more than Rs.5000 per month. The accident took place in the year 1999 and income of deceased from the shop, as claimed by PW-1, appears to be just and reasonable. PW-2 Ram Dass has stated that he worked with deceased Jia Lal in his shop for 14-15 years and he was paying Rs.1000 per month wages to him. The claimants have not led any other evidence to show the income of the deceased from other sources. There is nothing on record to disbelieve the income of the deceased at Rs.5000 per month. In these circumstances, it is held that the deceased was earning Rs.5000 per month. 12. The deceased was 41 years of age at the time of his death due to accident, he was earning Rs.5000 per month. The learned counsel for the insurer has relied The New India Assurance Company Limited Versus Smt.Kalpana & Others, JT 2007 (2) SC 353. In that case, the income of the deceased was Rs.6,000 and age 33 years. The Apex Court took the dependency of the claimants Rs.3000 and allowed multiplier of 13. In the present case, the claimants have proved income of deceased Rs.5000 per month, hence if their dependency is taken at Rs.2500 per month then their dependency comes at Rs.30,000 per annum. The claimants are widow, minor children and mother of the deceased, therefore, in my opinion, in the present case the appropriate multiplier is of 10, hence the claimants are entitled to compensation Rs.3 lac. In addition to this, the claimants are also entitled to Rs.20,000 loss of consortium to the widow, guidance, natural love and affection to the children and other family members. The claimants are also entitled to Rs.10,000 on account of funeral expenses. Thus, in all the claimants are entitled to Rs.3,30,000. The impugned award to this extent is liable to be modified. 13. The result of the above discussion, FAO No.232 of 2001 is dismissed, FAO No.302 of 2001 is allowed. An award of Rs.3,30,000 is passed in favour of the claimants in equal shares and against Prem Lal --driver and Smt.PremLata -- owner and New India Assurance Company - insurer of truck No.HP-23-3011 jointly and severally, since the truck was insured with the insurer, therefore, whole of the award amount of Rs.3,30,000 along with interest at the rate of 9% per annum from the date of filing of the petition till payment shall be payable by insurer i.e. New India Assurance Company Limited to the claimants. The amount awarded is inclusive of no fault liability determined, paid, if any. No costs. January 02, 2008 ( Kuldip Singh ), J. (soni) FAO No.232 of 2001. New India Assurance Co. Ltd. …Appellant. Versus Vidya Devi & Ors. …Respondents. For the appellant: Mr.K.D.Sood, Advocate. For respondents No.1 to 6: Mr.T.C.Sharma, Advocate. FAO No.302 of 2001: Vidya Devi & Ors. ...Appellants. Versus Prem Lal & Ors. …Respondents. For the Appellants: Mr.T.C.Sharma, Advocate. For respondent No.3: Mr.K.D.Sood, Advocate. *****