AO/83/2010 of ORIENTAL INSURANCE COMPANY LTD Vs SHIV RAJ SINGH AND ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 83 of 2010

Oriental Insurance Company Limited

….Appellant

Versus

Shiv Raj Singh and others …Respondents

Present:-Mr. Bhupendra Bist, Advocate holding brief of Mr. D.S. Patni, Advocate for the appellant.

Mr. Prashant Khanna, Advocate for the claimants/respondent nos. 1 and 2.

Mr. D.C.S. Rawat, Advocate for the owner/respondent no. 3.

Hon’ble Sudhanshu Dhulia, J. (Oral)

This Appeal from Order has been filed by the Insurance company, namely, Oriental Insurance Company Limited against the award dated 23.10.2009 passed by the Motor Accident Claims Tribunal, Rudraprayag on claim petition being MACT Case No.19 of 2008 filed by the father and mother of the deceased making the insurance company as well as the owner of the vehicle as necessary parties.

2. The deceased was young 25 year old young man, who at the relevant time soldier in the Indian Army. He was recruited as “Jawan” in the Garhwal Rifles, barely few years back. At the relevant time, the deceased Vinod Singh was posted in the Kupwara Sector of Jammu and Kashmir and on the fateful day he was returning home on leave to his village Mathiyana, District Rudraprayag in Uttarakhand. He had boarded on Tata Sumo Jeep from Dehradun which was to carry him till his village at Mathiyana in District Rudraprayag. On way due to the rash and negligent driving of the driver, the vehicle (Tata Sumo bearing No.U.A.-07P/7376) fell into gorge in the hill track, at about 04:40 AM in the morning, near

Shivmurti of Village Bageshwar. The deceased Vinod Singh died on the spot. claim petition was filed by the father and mother of the deceased respectively before the Motor Accident Claims Tribunal, Rudraprayag which was registered as MACT Case No.19 of 2008 making the Insurance Company and the owner of the vehicle as necessary parties.

3. The learned Tribunal framed the following three issues”-

“(1)- Whether, on 23-3-2008 at about 4.40 a.m. at the place village Bageshwar near Shiv Mandir, the driver by driving the vehicle Tata Sumo No. U.A. 07P/7376 rash & negligently caused the accident in which deceased Vinod Singh died?

(2)- Whether, on the owner of above mentioned vehicle had the valid papers of the vehicle U.A. 07P/7376 at the time of accident? If not, its effect?

(3)- Whether, the claimant are entitled for claim, if so, from whom & how much?”

4. Both the issue nos. 1 and 2 were decided in favour of the claimants and against the Insurance Company and compensation of Rs.9,88,028/- (Rupees Nine Lakh Eighty Eight Thousand Twenty Eight Only) with simple interest at the rate of 6% per annum was awarded by the Tribunal. Out of the total amount, Rs.4,00,000/- (Rupee Four Lakh Only) each, was to be deposited in nationalized bank in terms of fixed deposit in favour of claimants Shivraj Singh and Smt. Saroj Devi for period of five years. Remaining amount was to be paid in cash. Aggrieved by this order, the Insurance Company has filed the present appeal from order before this Court.

5. There are two grounds for challenge. First ground is that the driving licence was not produced by the owner of the vehicle before the Tribunal. In fact, in spite of the notice, the owner of the vehicle did not contest the matter. The driver was evidently not made party. Learned counsel for the claimants Sri Prashant Khanna has apprised this Court that the claimants are in their 70’s and are residing in the hills in remote area and he has not been able to establish contact with them, for the last few years. Moreover, according to the learned counsel for the owner of the vehicle, this issue is unnecessarily being raked up at this stage inasmuch as it was not just the deceased Vinod Singh who had died in the accident, but there are few others as well, in which cases the matter was settled in Lok Adalat held at Dehradun on 06.12.2008, where the payment was given by the Insurance Company.6. The second issue is that admittedly the deceased was bachelor at the time of the incident and therefore reliance has been placed by the learned counsel for the appellant on the decision of the Hon’ble Apex Court in the case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, where in such circumstances where the deceased was bachelor, deduction towards personal expenses should be one-half and not one-third which is done only in the cases of married persons. The reasons are being given in paragraph nos. 31 and 32 of the aforesaid judgment, which read as under:-

“31. Where the deceased was bachelor and the claimants are the parents, the deduction follows different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that bachelor would tend to spend more on himself. Even otherwise, there is also and the claimants are the parents, the deduction follows different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that bachelor would tend to spend more on himself. Even otherwise, there is also

the possibility of his getting married in short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as dependant and the mother alone will be considered as dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in case where he has widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”

7. perusal of the aforesaid judgment shows that as regarding the deduction in the case of bachelor may not be universally applicable in each and every case as the Hon’ble Apex Court has very cautiously stated that this has to be done “normally”.

8. In the present case, the deceased was soldier in the Indian Army and most likely right from his recruitment was posted in the front areas in the field, which has come on the record that at the relevant time the deceased was posted at Kupwara Sector in Jammu and Kashmir. Moreover, the multiplier which has been fixed by the Tribunal in the case is of 13, whereas as laid down by the Hon’ble Apex Court in the case of Sarla Verma (supra), multiplier should have been 18 in the present case. There is clear cut averment made in the claim petition that the deceased was the only breadwinner of

the family, fact which has not been controverted in any manner by the Insurance Company and therefore the presumption would be that there was no source of earning of the family of the deceased except earning of the deceased.

9. judicial notice is taken of the fact that the soldiers’ expenses who are posted in border areas, are normally taken care of by the Indian Army itself and most of their salary is their savings. Therefore, the normal rule of deduction of 50% in the present case may not be strictly applicable.

10. perusal of the award passed by the Tribunal shows that the learned Tribunal has not fixed any amount in favour of the claimants towards the future prospects of the deceased. The deceased was soldier who met an unfortunate end at the age of 25 year. In the normal course, the deceased would have been promoted to the next higher rank of Nayak Subedar or Major and even could have been commissioned as an officer in the Indian Army. These facts were relevant considerations which ought to have been taken into consideration by the learned Tribunal, which have not been done.

11. This Court is also conscious of the fact that there is no appeal of the claimants for enhancement of the award. Even though the claimants have not challenged the award of the tribunal, but in case there is prayer for decrease of the amount of the award on wrong calculation, it is always open for the claimants to pray for enhancement under other heads which have been ignored by the Tribunal. In this regard, reliance has been placed by the learned counsel for the claimants Sri Prashant Khanna on paragraph no. 6 in the case of Ranjana Prakash and others v. Divisional Manager and

another,passed in Civil Appeal No.6110 of 2011,decided on 29.07.2011, which reads as under:-

“6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the Appellant can certainly put forth contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.”

12. In view of the above, the Appeal from Order has no merit and the same is hereby dismissed.

13. Let the records of the case be sent to the Motor Accident Claims Tribunal, Rudraprayag. The entire amount with 6% interest be calculated afresh and be given to the claimants by the Motor Accident Claims Tribunal, Rudraprayag within period of three weeks from the date the records and certified copy of this order are received by the

Tribunal. In case, the amount is not deposited by the Insurance Company within three weeks thereafter, the Tribunal shall initiate the proceedings for recovery of the amount from the Insurance Company under Section 174 of the Motor Vehicles Act, 1988 after adjusting the amount already given. The amount deposited by the Insurance Company, including the statutory amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) shall also be remitted to the concerned Tribunal forthwith by the High Court.

Ankit/

(Sudhanshu Dhulia, J.) 16.05.2019