Sarla Devi Vs Sandeep Verma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. : 131 of 2013 a/w FAO No. : 147 of 2013 Reserved on : 01 .12.2023 Decided on : 01.03.2024 FAO No. 131 of 2013 Sarla Devi and others …Appellants Versus Sandeep Verma and another …Respondents ……………………………………………………………………………. FAO No. 147 of 2013 ICICI Lombard General Insurance …Appellant Company Limited Versus Sarla Devi and others …Respondents

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Coram

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The Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?¹

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FAO No. 131 of 2013 For the appellants : Mr. Raman Sethi, Advocate. For the respondents : Mr. Jeevesh Sharma, Advocate, for respondent No. 1. Mr. Jagdish Thakur, Advocate, for respondent No. 2. …………………………………………………………………………..

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1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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FAO No. 147 of 2013 For the appellant : Mr. Jagdish Thakur, Advocate. For the respondents : Mr. Raman Sethi, Advocate, for respondents No. 1 to 8.

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Mr. Jeevesh Sharma, Advocate, for respondent No. 9.

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Virender Singh, Judge.

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The above-titled FAOs are being disposed of by this common judgment, as, both these appeals have arisen out of the award, dated 7^th December, 2012, passed by the learned Motor Accident Claims Tribunal, Shimla, H.P. (hereinafter referred to as the ‘Tribunal’), in M.A.C.C. No. 33-S/2 of 2010, titled as Sh. Roshan Lal son of Sh. Chet Ram deceased through his LRs versus Sandeep Verma and another.

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Vide award, dated 7^th December, 2012, the learned Tribunal has partly allowed claim petition, filed by Roshan Lal. The relevant para-23 of the award, reads as under:

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“In view of my findings on issues No. 1 to 4 above petition is partly allowed and compensation to tune of ₹ 552855/- (Five lacs fifty two thousands eight hundreds fifty five) is

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awarded in favour of petitioners and against respondents. Consortium amount to the tune of ₹ 10000/- (Ten thousands) will be paid to widow of deceased namely Sarla Devi only and remaining awarded amount will be paid equally among petitioners. In addition to this interest at rate of 9% per annum from date of petition till deposit of award amount is also awarded. In addition costs to tune of ₹ 2000/- (Two thousands) is also awarded. Awarded amount of compensation will be deposited by insurance company with this tribunal within one month as required under Section 168 (3) of Motor Vehicles Act. Memo of cost be drawn accordingly. File after due completion be consigned to recordroom.”

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For the sake of convenience, parties to the present FAOs are hereinafter referred to, in the same manner, in which, they were referred to, by the learned Tribunal.

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Brief facts, leading to the filing of the present appeals, before this Court, may be summed up, as under: 4.1. Initially, the claim petition was filed by Roshan Lal, against the respondents, being the owner-cum-driver and the insurer of vehicle No. HP-63-2747 (hereinafter referred to as ‘the offending vehicle’). During the pendency of the claim petition, before the learned Tribunal, the said Roshan Lal (hereinafter referred to as the ‘injured (since deceased)’), expired and on the application, under Order 22

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Rules 3 and 9 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), his legal representatives, namely, Sarla Devi, Om Prakash, Ved Prakash, Jai Prakash, Krishna Devi, Leela Devi, Sarita and Kumari Diksha, were ordered to be brought on record (hereinafter referred to as ‘petitioners’). Thereafter, the claim petition was amended accordingly, claiming compensation on account of death of Roshan Lal.

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4.2. Initially, injured (since deceased)-Roshan lal has filed the claim petition, under Section 66 of the Motor Vehicles Act (hereinafter referred to as ‘MV Act’), on the ground, that on 16^th July, 2008, he was travelling in the offending vehicle, as owner of the goods, as, he had hired the offending vehicle, for transporting his vegetables, through M/s. Jai Durga Forwarding Agency, Sarion, Tehsil Theog, District Shimla, and was on his way to Dhalli. At about 08.00 a.m., when, the offending vehicle reached near Devi Mor, Theog, District Shimla due to the rash and negligent driving of respondent No. 1, the offending vehicle went off the road and fell down in 300 metres deep gorge. Consequently, the injured (since deceased) suffered

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multiple injuries on his body and was taken to IGMC, Shimla, for treatment. He was, thereafter, referred to PGI, Chandigarh, for further management, where, he remained admit as indoor patient, on and with effect from 29^th July, 2008 till 20^th August, 2008, for treatment of his injuries.

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4.3. The information, regarding the accident was given to Police Station Theog, where, FIR No. 126 of 2008, dated 16^th July, 2008, was registered. The injured (since deceased) has given his age as 56 years, at the time of accident and according to him, he was earning 25,000/-₹ - 30,0000/- per month. ₹

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4.4. According to the injured (since deceased), due to this accident, the injured (since deceased) suffered 80% permanent disability and was forced to spend 2,00,000/-₹ on his treatment. Since, the cause of the accident in question has been solely attributed to the rash and negligent driving of respondent No. 1, the injured (since deceased) has sought the compensation, in this case.

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When put to notice, the claim petition has been contested and resisted by the respondents. Respondent No. 1, i.e. owner-cum-driver of the offending vehicle, has

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filed his reply, in which, he has taken the preliminary objection that the petition is not maintainable.

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5.1. On merits, the factum of accident and registration of FIR, as pleaded in paras-8 and 9 of the claim petition, have been admitted. It has been denied that the injured (since deceased) has suffered 80% permanent disability, however, it has been admitted that after the accident, he was taken to IGMC, Shimla. It has also been denied that the injured (since deceased) has spent ₹ 2,00,000/-, on his treatment. Rest, all the contents of the claim petition have been denied.

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Respondent No. 2-Insurance Company has filed its separate reply, in which, preliminary objections have been taken with regard to the fact that the petitioner has no cause of action to file the present petition; the offending vehicle was being permitted to ply in violation of the terms and conditions of the Insurance Policy; the driver of the offending vehicle was not holding a valid and effective driving licence to drive the same; and the injured (since deceased) was travelling in the offending vehicle as gratuitous passenger.

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6.1. On merits, the contents of the claim petition

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have mainly been denied for want of knowledge.

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Thus, the respondents have prayed for the dismissal of the claim petition.

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From the pleadings of the parties, the learned Tribunal has framed the following issues, vide order, dated 19^th November, 2010:

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“i) Whether petitioner had suffered injuries on account of rash and negligent driving of respondent No. 1 of vehicle No. HP-63-2747?

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OPP

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ii) If issue No. 1is proved, to what amount of compensation and from whom, the petitioner is entitled to?

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OPP

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iii) Whether respondent No. 1 had not been in possession of valid and effective driving licence, if so, with what effect?

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OPR-2

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iv) Whether the petitioner had been travelling in vehicle No. HP-63-2747 as gratuitous passenger, if so, to what effect?

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OPR-2

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v) Whether respondent No. 1 had contravened the terms and conditions of the Insurance Policy, as alleged?

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OPR-2

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vi) Relief.”

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Thereafter, the parties to the lis were directed to

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adduce evidence.

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Consequently, the parties have adduced the

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evidence.

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After the closure of the evidence, the learned Tribunal, after hearing the learned counsel appearing for the parties, has partly allowed the claim petition, as referred to above.

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Feeling aggrieved from the said award, FAO (MVA) No. 131 of 2013 has been filed by the LRs of the injured (since deceased), on the ground that the learned Tribunal has wrongly taken the income of the injured (since deceased) as 4500/- per month, which is stated to₹ be extremely on lower side.

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According to the petitioners, Rajinder Singh (PW-4) has specifically deposed that Roshan Lal was working as Commission Agent. Similarly, as per the stand of the petitioners, the future increase in the income of Roshan Lal on account of his death has not been given by the learned Tribunal.

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On the basis of the above facts, Mr. Raman Sethi, learned counsel, appearing for the LRs of the injured (since deceased) has prayed that the appeal (FAO No. 131

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of 2013) may kindly be allowed, as prayed for, by enhancing the amount of compensation.

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On the other hand, the Insurance Company, has filed FAO (MVA) No. 147 of 2013, assailing the award, passed by the learned Tribunal, mainly on the ground that the award, passed by the learned Tribunal, is not sustainable, as the award has been passed, mainly on the basis of the fact that the FIR has been registered, but, according to the Insurance Company, the same has been held to be not a substantive piece of evidence.

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As per the Insurance Company, the learned Tribunal has wrongly taken the monthly income of the injured (since deceased) as 4500/- per month.₹

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On the basis of the grounds of appeal, a prayer has been made to allow the appeal (FAO No. 147 of 2013), and to set aside the award, by dismissing the claim petition.

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In order to decide the above appeals, it would be just and appropriate for this Court to discuss the oral, as well as, the documentary evidence, adduced by the parties to the lis before the learned Tribunal.

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After framing the issues, injured (since

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deceased) Roshan Lal has examined Dr. Lokinder Sharma, Orthopedic Surgeon, as PW-1. According to him, the injured (since deceased) was examined by the Board of Doctors, as, he was found to be suffering from fracture D- 12 with paraplegia with old case of head injury with blunt trauma chest, as well as, fracture greater Tubercle left side humerous and the disability has been found to be 80%. Apart from this witness, Dr. Prem Machhan, Medical Specialist, had also examined the injured (since deceased) and thereafter, the Board issued the disability certificate, Ex. PW-1/A.

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PW-2, HHC Gopal Singh, has proved the copy of FIR No. 126, dated 16^th July, 2008, as Ex. PW-2/A. This witness has feigned his ignorance about the final outcome of the case.

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PW-3, Prakash Chand Kalia has deposed that he has superannuated from Ayurvedic Dispensary, Kiartu and thereafter, he has opened his own clinic at Sarog. According to this witness, he has treated injured (since deceased) Roshan Lal, as, he suffered spine injury in the

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accident, which resulted into paraplegia. For the muscular movement of the injured (since deceased), he used to treat him by massaging him. This witness used to visit the injured (since deceased) in the regular interval of 1 – 1½ months and sometimes, he was brought to this witness in the clinic. This witness has proved the receipts of charges, which, he had taken from the injured (since deceased), as Ex. PW-3/A-1 to Ex. PW-3/A-16.

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21.1. As per the further deposition of this witness, the injured (since deceased) had no control over his bowel and bladder and such type of patients used catheter and urater, which are required to be replaced after every fifteen days and sometimes, this witness used to change the same and sometimes, the injured (since deceased) was taken to Civil Hospital, Theog. Such type of patients also suffer the problem of bed sores, as, they remain in the same posture for long duration. For preventing the bed sores, such patients require air mattresses and water mattresses.

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21.2. According to this witness, the injured (since deceased) was unable to do any physical work. Such patients require the services of two permanent attendants.

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The injured (since deceased) could not move his legs and torsal region. For following the daily pursuits, the injured (since deceased) required attendants. As per the further deposition of this witness, the monthly cost of the treatment of the injured (since deceased) was 1500/- -₹ ₹ 2000/-, apart from the expenses of medicines. Such type of patients are stated to be prone to urinary track infection and chest infection. According to this witness, there was no improvement in the condition of the injured (since deceased), rather, his condition was deteriorating.

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21.3. In the cross-examination, this witness has admitted that he had not brought any record regarding his qualification. Similarly, he has not brought any document regarding the permission to run the clinic. Although, this witness has maintained the record of the patient, but, he could not produce the same. This witness has also perused the record from PGI, pertaining to the injured (since deceased).

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PW-4, Rajinder Singh, has deposed about the fact that prior to the accident, the injured (since deceased) was working as a commission agent. As per this witness,

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after the accident, his condition has deteriorated and he could not even follow his daily pursuits.

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PW-5, Rajesh Verma, was employed as attendant with the injured (since deceased). He used to pay 1500/- - 2000/- per month to this witness. This₹ ₹ witness remained in his service for about two years. He used to help the injured (since deceased) in following his daily pursuits. This witness is not having any documentary proof with regard to the receipt of 2,000/-₹ per month, as salary, from the injured (since deceased).

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PW-6, Rajender Singh, also worked as attendant with the injured (since deceased) on the salary of 3,000/- per month. He has proved the salary receipts₹ of the amount, received by him, as salary, as Ex. PW-6/A-1 to PW-6/A-8.

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PW-7, Dr. Kunal Kotkar, from PGI Chandigarh,

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has deposed that injured (since deceased)-Roshan Lal was admitted in PGI on 29^th July, 2008, with injury on chest and head. He was treated by Dr. Anand Kumar Misra, Assistant Professor of Cardiovascular Thoracic Surgery. The injured (since deceased), according to this witness, had

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suffered multiple fractures left side chest with injuries to left lung. Due to the injury to the left lung, the injured (since deceased) was not able to breathe properly. He was treated conservatively and was discharged in satisfied condition, however, since, the injured (since deceased) had suffered injury to head and spine, as such, this witness could not say anything about the improvement of the injuries of head and spine. This witness has proved the copies of the discharge certificate as Ex. PW-7/A and discharge summary as Ex. PW-7/B. According to this witness, Dr. Samir Puri has left the services of PGI Chandigarh, whreeas Dr. A.K. Misra is still working there. 26. PW-8, Rajinder Singh, also deposed about the fact that the injured (since deceased) prior to the accident used to sell vegetables etc.

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The wife of the injured (since deceased), namely Sarla Devi, appeared in the witness box as PW-9 and has deposed about the case, as pleaded in the petition. She has categorically stated that her husband became paraplegic due to the accident and due to the injuries suffered by him in the accident he expired on 13^th July,

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This witness was not present at the time of accident, as such, has feigned her ignorance about the fact as to who was negligent.

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Dr. Parkash Chand Kalia, Ayurvedic Medical Officer, has again been examined as PW-10 to prove that injured (since deceased)-Roshan Lal had succumbed to the injuries. This witness has denied all the suggestions, which have been put to him, qua the fact that injured (since deceased)-Roshan Lal had not expired due to the injuries sustained by him in the accident, rather, he has died a natural death.

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To rebut this evidence, the respondents have examined Sheela Shyam, Licensing Clerk, Office of SDO Theog. She has proved the copy of driving licence as Ex. RW-1/A.

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Respondent No. 1-Sandeep Verma appeared in the witness box as RW-2. He has made efforts to prove that the accident in question had not taken place due to his negligence, but, due to the mechanical defect. Apart from this, he has also deposed that injured (since deceased)-Roshan Lal had hired his vehicle on payment of

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₹ 500/- as rent. According to this witness, injured (since deceased)-Roshan Lal had loaded the crop of cauliflower and when, they were moving towards Dhalli market, the accident in question had taken place. This witness has denied that injured (since deceased)-Roshan Lal was travelling in the offending vehicle, as passenger.

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30.1. In the cross-examination on behalf of injured (since deceased), this witness has re-iterated the fact that injured (since deceased) was travelling in the offending vehicle as owner of the goods.

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This is the entire evidence, which has been led by the parties, before the learned Tribunal.

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It is worthwhile to record herein that initially,

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the claim petition was filed by injured-Roshan Lal and during the pendency of the petition, on application, under Order 22 Rules 3 and 9 of the CPC, was moved, which was allowed on 19^th November, 2021. Thereafter, the application for amendment was moved, which was also allowed being not opposed, vide order, dated 21^st February, 2012, when, the learned Tribunal has passed the following order:

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“Application for amendment of petition allowed as not opposed. Amended petition has already been filed. Initially petitioner Roshan Lal had instituted the petition. He had died during the pendency of the petition and his LRs had been brought on record. No reply to the amended petition to be filed by the respondents. Issues had already been settled. Put up for remaining evidence of the petitioners on 21.04.2012. PF and DM be filed.”

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In the amended claim petition, it has

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specifically been mentioned that the predecessor-ininterest of the petitioners has expired on 13^th July, 2011, as, he could not recover from the injuries sustained, in the accident in question.

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As is evident from order, dated 21^st February, 2012, passed by the learned Tribunal, the reply to the amended petition was not intended to be filed. Meaning thereby, whatsoever has been pleaded in the amended petition, has not been disputed. Since, the factual position, as mentioned in the petition, has not been controverted by the respondents, as such, now, they cannot be permitted to say that Roshan Lal has not died due to the injuries sustained in the accident in question.

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The Insurance Company, in the present case, has simply assailed the award, on the ground that the FIR

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is not a substantive piece of evidence. Another ground, upon which, the award has been assailed, is that the deceased was travelling in the offending vehicle as a gratuitous passenger. The third ground of challenge is that the learned Tribunal has wrongly taken the monthly income of the deceased as 4500/-.₹

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The Insurance Company has not bothered to file the reply to the amended petition, wherein, a specific stand has been taken by the claimants that the accident in question had taken place due to the rash and negligent driving of respondent No. 1, who is owner-cum-driver of the offending vehicle. These facts have been pleaded in para 24 of the claim petition, which remained uncontroverted, as, no reply to the amended petition has been filed. In such situation, the contents of the FIR assume significance, in which, specific allegations have been made that the accident in question had taken place due to the rash and negligent driving of respondent No. 1. The said FIR has duly been proved by PW-2.

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So far as the plea regarding the gratuitous passenger is concerned, in the FIR itself, it has been got

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recorded by Roshan Lal that vegetable was loaded in the offending vehicle. In such situation, in the absence of the evidence, contrary to the above submission, plea of the Insurance Company, regarding the gratuitous passenger, is not liable to be taken into consideration.

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As stated above, initially, the petition was filed by Roshan Lal, who died during the pendency of the petition, before the learned Tribunal. From the evidence, in the shape of statement of PW-3, Parkash Chand Kalia and PW-7, Dr. Kunal Kotkar, this Court is of the considered opinion that there is direct nexus between the injuries sustained by Roshan Lal, in the accident in question and his death.

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As such, the pleas, which have been taken by the learned counsel appearing on behalf of the Insurance Company, qua non-proving the rash and negligent driving, as well as, the plea of gratuitous passenger, are liable to be rejected. Consequently, the same are rejected.

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Now, coming to the question, as to whether just compensation has been awarded by the learned Tribunal,

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in the present case, the learned Tribunal has awarded a sum of 5,52,855/-.₹

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The Tribunal has applied the multiplier of ‘8’, in the present case. The age of Roshan Lal, at the time of his death, which has taken place on 13^th July, 2011, has been pleaded as 56 years. The appropriate multiplier, in such cases, in view of the ratio laid down by the Hon’ble Supreme Court, in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298, is ‘9’. As such, the findings of the learned Tribunal, on this point, are required to be interfered with.

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As per the pleadings, Roshan Lal, is stated to be working as agriculturist and horticulturist. He is also stated to be dealing with selling of fruits and vegetables. His income has been stated to be 25,000/- - 30,000/-₹ ₹ per month. Although, no documentary proof has been led by the claimants, to prove the monthly income of Roshan Lal, however, by examining PW-4, Rajinder Singh, efforts have been made to prove that he used to sell his vegetables through Roshan Lal, as he was enjoying good reputation in the market.

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The learned Tribunal has taken the income of Roshan Lal as 4500/- per month. He has left behind his₹ widow, three sons and four daughters, and, out of the said four daughters, three were married, at the time of filing of the petition. Although, the factual position, with regard to the income of Roshan Lal, as pleaded in para-6 of the claim petition, has not been controverted by filing the reply, however, considering the fact that the claimants could not prove the exact income of Roshan Lal, during his life time, the income, which has been taken by the learned Tribunal seems to be on lower side.

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The argument of the learned counsel appearing for the Insurance Company, that the principle of minimum wages should be applied, in the present case, is devoid of merits, as there is evidence on record that Roshan Lal was agriculturist and horticulturist, as well as, doing the business of commission agent.

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Since, Roshan Lal was resident of Village Bhalech Doyam and was working as horticulturist, agriculturist and commission agent, as such, it can be safely held that his monthly income would have been

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₹ 8,000/-. Keeping in view of the age of Roshan Lal, at the time of his death, no amount is required to be awarded, on account of future prospects.

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The learned Tribunal has rightly deducted one fifth of the income of Roshan Lal, towards his personal expenses, had he been alive. Thus, his contribution towards his family comes to 6,400/- per month. ₹

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Thus, entitlement of the claimants-petitioners is adjudicated, as under:

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The learned MACT has awarded the amount of ₹ 3,45,600/- on account of loss of dependency, in this case, which is liable to be enhanced to 6,400/- x 12 x 9 =₹ ₹ 6,91,200/-.

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In view of the law laid down by the Hon’ble Supreme Court in National Insurance Company Limited versus Pranay Sethi & others, (2017) 16 Supreme Court Cases 680, the claimants are also held entitled to compensation, to the tune of 15,000/- each, under the₹ heads ‘loss of estate’ and ‘funeral charges’.

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The amount of compensation for loss of consortium, in this case, has been awarded to claimant No.

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1 (widow) only. Such approach of the learned Tribunal is also not sustainable in the eyes of law, in view of the decision of the Hon’ble Supreme Court in Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, (2018) 18 Supreme Court Cases 130, wherein, the Hon’ble Supreme Court has enhanced the scope of awarding compensation under the head ‘loss of consortium’. Paras 21 to 24 of the said judgment are reproduced as under:

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“21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses spousal consortium', parental consortium', and `filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:

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21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation”.

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21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

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21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child

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causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

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23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

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24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.”

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In view of the above fact, the claimants are also

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held entitled for a sum of 40,000/- each, under the head₹ ‘spouse consortium’ (claimant No. 1) and ‘parental

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consortium’ (claimants No. 2 to 8), i.e. 40,000/- x 8 = ₹ ₹ 3,20,000/-.

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So far as the argument of the learned counsel appearing for the petitioners, qua the fact that the amount, which Roshan Lal had spent on his treatment, is also liable to be given to the petitioners, is concerned, double enrichment is prohibited under the law, as, the petitioners have been held entitled for compensation, on account of death of Roshan Lal, as such, whatsoever Roshan Lal had spent, during his life time, on his treatment, is not liable to be given to them.

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Considering all these facts, the claimants are held entitled to compensation to the tune of 6,91,200/- +₹ ₹ 15,000/- + 15,000/- + 3,20,000/- = 10,41,200/-,₹ ₹ ₹ alongwith interest @ 9% per annum, as awarded by the learned Tribunal, from the date of filing of the claim petition till the realization of the whole amount, from the Insurance Company.

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