Allowed

Meera Devi v. Hem Singh

Himachal Pradesh HC14 Aug 2023FAO/113/2014

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal's dismissal of a death compensation claim, applying res ipsa loquitur to hold the driver rash and negligent. The insurer was held liable for failing to prove policy breaches. The court calculated compensation at Rs. 8,34,800.

What did the court decide?

Compensation awarded at Rs. 8,34,800 (Loss of dependency Rs. 6.04L, loss of estate Rs. 15k, funeral charges Rs. 15k, loss of consortium Rs. 2L) with interest at 7.5% per annum.

Meera Devi Vs Hem Singh — Insurance | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO(MVA) No: 113 of 2014

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Reserved on : 02.08.2023

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Decided on : 14.08.2023

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Meera Devi and Ors. .……Appellants. Versus Sh. Hem Singh and Anr. ……Respondents. Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?¹ Yes

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For the appellants :	Mr. H.S. Rangra, Advocate.
For the respondents :	Mr. K.D. Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate, for respondent No.1.
:	Mr. P.S. Chandel, Advocate, for respondent No.2.
Satyen Vaidya, Judge

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By way of instant appeal, appellants have

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assailed award dated 31.08.2013, passed by learned

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Motor Accident Claims Tribunal (II), Mandi, H.P., in

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Claim Petition No. 69/2008, whereby the claim

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1 Whether reporters of the local papers may be allowed to see the judgment?

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petition of the appellants filed under Section 166 of the Motor Vehicles Act, has been dismissed.

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Appellants (here-in-after referred to as ‘the claimants’) are the heirs and legal representatives of late Sh. Diya Ram, who died on 21.07.2008 in a motor vehicle accident involving Car (Maruti 800) bearing No. HP-34A-8665. Claimant No. 1 is the wife, claimants No. 2 to 4 are the children and claimant No. 5 is the mother of deceased Diya Ram. Respondent No. 1 ( hereinafter referred to the driver) was the drivercum-owner of the vehicle at the time of accident.

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Claimants approached the Motor Accident Claims Tribunal, Mandi, H.P. (for short the ‘Tribunal’) for grant of compensation, on account of the death of late Sh. Diya Ram, in the above mentioned accident. The cause of accident was attributed to rash and negligent driving of the driver. It was alleged that the deceased was 36 years of age at the time of accident and was earning Rs. 20,000/- per month from the wholesale business of fruits and vegetables. A total claim of Rs. 15,00,000/- was made. It was also alleged

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that deceased Diya Ram was the sole bread earner of the family and the claimants were totally dependent upon him for livelihood.

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The driver, in his reply to the claim petition though admitted the factum of accident, but made a specific denial as to allegation of rash and negligent driving on his part. It was submitted that vehicle HP34-8665 was purchased by the driver from its previous owner Sh. Tule Ram. After purchase of the vehicle, the registration number was changed from HP01K-0781 to HP-34-8665. The vehicle, at the time of accident, was insured with respondent No. 2 ( hereinafter referred to as the insurer) as the policy of insurance had been purchased by Sh. Tule Ram. As per the driver, the factum of purchase of vehicle by him from Sh. Tule Ram was duly informed to the insurer. On such count, the driver had sought indemnification from the insurer.

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The insurer, also contested the claim petition

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by alleging that the driver of the vehicle was not holding a valid driving license at the time of accident.

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The omnibus objection as to breach of the terms of policy was also raised. It was submitted that there was

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a collusion between the claimants and the driver. The liability was further sought to be avoided for want of insurance particulars of the vehicle.

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On the basis of pleadings of the parties,

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learned Tribunal framed the following issues:-

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1. Whether the deceased had died in a motor vehicle accident involving car No. HP34-A-8665 on 21.07.2008? OPP.

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2. Whether respondent No. 1 was driving car on the said date in rash and negligent manner which led to the accident? OPP.

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3. Whether the petitioners are entitled for compensation to the extent of Rs. 15,00,000/-, if so from whom? OPP.

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4. Whether the driver was driving the vehicle in violations of terms and conditions of insurance policy and Motor vehicle Act, if so its effect? OPP.

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5. Whether the driver was not holding a valid driving license at the time of accident, if so its effect? OPR.

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6. Relief.

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Issue No. 1 was decided in affirmative,

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whereas all other issues were decided in negative.

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Learned Tribunal specifically held that the accident was not proved to be the result of rash and negligent driving of the driver, on such count, the petition was dismissed and the petitioners were held not entitled to any compensation.

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

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The impugned award reveals that learned Tribunal has placed reliance on the statement of PW-3 Sh. Bir Singh, in order to absolve the driver from the allegation of rash and negligent driving.

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PW-3 Sh. Bir Singh admittedly was the third occupant of the vehicle at the time of accident besides the driver and deceased Diya Ram. According to PW-3 the speed of the vehicle at the time of accident was normal and the road at the spot of accident was narrow. He had admitted in crossexamination on behalf of the driver that some goats had abruptly jumped on the road, the driver had to

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steer the vehicle in order to save the goats and consequently the vehicle went off the road.

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The vehicle had rolled down the road and thus the facts would attract the principle of res ipsa loquitur . The driver was the best person to explain the reason for accident in order to rebut the presumption of rash and negligent driving against him. Noticeably, the driver did not step into the witness box. In his reply also, the driver had made a simple denial as to allegation of rash and negligence against him. He had not offered any explanation whatsoever much less mentioning the abrupt jumping of goats on the road being reason and cause of accident. This aspect of the matter has completely been ignored by learned Tribunal and hence, learned Tribunal has clearly erred in deciding issue No.2 in negative.

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In the above background, the version put forth by PW-3 while making his deposition before learned Tribunal cannot be said to be beyond shadow of doubt. PW-3 had not stated anything in his

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examination-in-chief regarding the factum of goats jumping on to the road and becoming accessory in the cause of accident. It was in answers to the question put to said witness in cross-examination on behalf of the driver that the story of goats was propounded. When the driver had not taken any such defence in his reply, the propounded story appear to be an afterthought and further the conduct of PW-3 concurring with the said story becomes doubtful. Learned Tribunal had clearly erred in not applying requisite circumspection while appreciating the statement of PW-3.

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Thus, the findings on issue No. 2 returned by learned Tribunal cannot be sustained and are liable to be set aside. The principle of res ipsa loquitur will apply in the facts of the case and in absence of any material for rebuttal of presumption, there is no escape from holding that the accident in question was caused by rash and negligent driving of the driver. That being so, the claimants are entitled to

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compensation. The question arises as to the quantum of compensation and the liability to pay the same.

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The reply filed on behalf of the insurer did

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not specifically rebut the contention of the driver regarding the factum of purchase of the vehicle from Sh. Tule Ram and change of its registration number. Similarly, there was no specific denial to the fact that the vehicle had been insured with the insurer by Sh. Tule Ram and the factum of transfer of vehicle in

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favour of the driver from Sh. Tule Ram had been notified to the insurer. Evidently, the insurer had filed its reply to the claim petition prior to the filing of reply by the driver, still after filing of the reply by the driver no effort was made by the insurer to amend its reply or to rebut the contention raised by the driver by any other mode. The insurer did not even lead any evidence.

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Except for general and omnibus objection as to violation of terms and conditions of insurance policy, the insurer had not placed any material to discharge its burden of proof. It is a settled principle

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that the onus to prove exception(s) is always 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

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Singh and others reported in (2004) 3 SCC 297:-

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“ 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

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67. In MacGillivray on Insurance Law it is stated:

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"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

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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."

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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."

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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).”

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Keeping in view the fact that respondent

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No. 2 had not taken any pains to discharge the burden

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of proof placed on it and also the above noted exposition of law, respondent No. 2 (insurer) cannot be absolved from its liability to indemnify the insured. 17. 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:

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“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……”

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In the claim petition, the age of the deceased Diya Ram was stated to be 36 years at the time of accident. Claimant No. 1 in her evidence by way of an affidavit had specifically reiterated the age of deceased to be 36 years. No challenge was made to the version of PW-5 (Claimant No.1) on this aspect. Thus, it is taken that the age of the deceased Diya Ram was 36 years at the time of his death. The factum that the claimants were dependents on the deceased has also been proved on record. Since, deceased Diya Ram was 36 years of age as per dictum of Hon’ble Supreme Court in Sarla Verma (Smt) and Ors. Vs. Delhi Transport Corporation and Anr., reported in (2009) 6 SCC 121. The multiplier of 15 will be applicable. 19. As per claimants, the monthly income of deceased Diya Ram was Rs.20,000/-, however, no proof of such income has been placed on record. Though, an attempt was made by producing PW-4 to prove that deceased Diya Ram was engaged in

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wholesale business of fruits and vegetables, yet the monthly income of the deceased was not established. In such circumstances, the income of the deceased can hypothetically be considered at minimum wages paid to unskilled workman during the relevant period. The accident had taken place in 2008 and minimum wages as notified by the State Government were @ Rs. 100/- per day for unskilled workman. Thus, the deceased can be said to be earning Rs. 3,000/- per month. As per mandate in National Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 , 40 % of the monthly income is to be added for loss of future prospects. In this manner, the monthly income of the deceased can be assessed at Rs. 4200/. 1/5^th of the above amount is liable to be deducted towards personal expenses in terms of judgment passed in Sarla Verma’s case (supra) as the deceased has left behind five dependants.

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The loss of income per month will be 4200-840= Rs. 3360/-. The annual loss of dependency

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will be 3360x12= Rs.40,320/-. By applying the multiplier of 15, the total loss of dependency will be Rs.40,320 x15= Rs.6,04,800/-

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Further, keeping in view the ratio of judgment passed by Hon’ble Supreme Court in Pranay Sethi's case (supra) and in Magma General Insurance Company Ltd. Vs. Nanu Ram @ Chuhru Ram and Ors. (2018) 18 SCC 130 , the claimants are entitled to a sum of Rs. 15,000/- under the head “loss of estate”, Rs. 15,000/- towards funeral charges and Rs. 40,000/- to each claimant i.e. Rs.2,00,000/under the head “loss of consortium”.

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The claimants are, thus, held entitled to the following amount:-

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Sr. No.	Head	Amount
1.	Loss of contribution	Rs.3360x12x15=Rs.6,04,800
2.	Loss of estate	Rs. 15,000/-
3.	Funeral Charges	Rs. 15,000/-
4.	Loss of consortium	Rs. 2,00,000/-
	Total compensation awarded	Rs. 8,34,800/-(Rs. Eight lacs, thirty four thousand and eight hundred only.

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Claimants are further held entitled to

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interest @ 7.5% per annum from the date of filing of petition till its deposit in the Court or payment to the claimants whichever is earlier. Respondents are held jointly and severally to pay the compensation. Since, respondent No. 2 has failed to prove any exception, it will be liable to discharge the liability of payment of compensation to the claimants.

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