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KRISHNA & OTHERS V/S NATIONAL INSURANCE COMPANY & OTHERS, decided on Friday, October 28, 2016.
[ In the High Court of Himachal Pradesh, FAOs Nos. 67 & 342 of 2011. ] 28/10/2016
Judge(s) : CHIEF MANSOOR AHMAD MIR
Advocate(s) : Ashwani K. Sharma, Senior , Sheetal Kimta, Ishan Thakur, Deepak Bhasin, Vivek Darhel Vice V.S. Chauhan, Amit Sharma.
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    1. Both these appeals are outcome of one vehicular accident. Thus I deem it proper to determine both these appeals by this common judgment.2. Subject matter of FAO No. 67 of 2011 is award dated 27th September 2010 made by the Motor Accident Claims Tribunal (III) Simla H.P. (for short “the Tribunal”) in M.A.C. Petition No. 8S/2 of 2005/01 titled as Smt. Krishna and others versus National Insurance Company and others whereby the claim petition filed by the claimants came to be dismissed (for short “impugned awardI”).3. FAO No. 342 of 2011 is directed against award dated 7th December 2010 made by the Tribunal in M.A.C. Petition No. 54S/2 of 2005/02 titled as Smt. Kubja Devi and others versus Poonam Kumari and others whereby compensation to the tune of Rs. 6 73 000/with interest @ 7% per annum from the date of petition till its realization came to be awarded in favour of the claimants and insurer came to be saddled with liability (for short “impugned award-II”).4. It order to determine these appeals it is necessary to give a brief resume of the facts of the case the womb of which has given birth to the appeals in hand.5. Bharat Singh and Madan Lal became the victims of the vehicular accident which was allegedly caused by the driver namely Shri Rakesh Chandel while driving truck bearing registration No. HP-09-2227 rashly and negligently on 13th April 2001 at about 3.00 P.M. at place Sonu Bangla near Durga Mata Temple P.S. Boileauganj in which both Bharat Singh and Madan Lal and the driver of the offending vehicle sustained injuries and succumbed to the injuries constraining the claimants to file claim petitions before the Tribunal for grant of compensation as per the breakups given in the respective memo of claim petitions.6. Both the claim petitions were resisted by the respondents on the grounds taken in the respective memo of objections.7. Following issues came to be framed by the Tribunal in M.A.C. Petition No. 8S/2 of 2005/01 (subject matter of FAO No. 67 of 2011):“1. Whether the deceased sustained fatal injuries due to rash and negligent driving on the part of the driver of the vehicle involved in the accident as alleged? OPP1-A. Whether the alleged mishap took place on account of mechanical defect developed in the vehicle all of a sudden? OPR2. Whether the petition is bad for non-joinder of necessary parties? OPR-33. Whether the petition is not maintainable as alleged? OPR4. Whether the insurer is not liable to indemnify the insured as alleged? OPR5. To what amount the petitioners are entitled to receive as compensation? OPP5-A. Whether the petition is not maintainable as respondent Punam was minor at the time of accident? OPR6. Relief.”8. It is also apt to reproduce the issues framed by the Tribunal in M.A.C. Petition No. 54S/2 of 2005/02 (subject matter of FAO No. 342 of 2011):“1. Whether the Madan Lal deceased sustained fatal injuries due to rash and negligent driving on the part of Rajesh Chandel the driver of the vehicle No. HP092227? OPP2. Whether the accident occurred due to sudden failing of the vehicle? OPR-13. Whether the insurer is not liable to indemnify the insured as alleged? OPR4. To what amount the petitioners are entitled to receive as compensation? OPP5-A. Whether the petition is not maintainable as respondent Punam was minor at the time of accident? OPR5. Relief.”9. Parties in both the claim petitions have led evidence.10. The Tribunal after scanning the evidence oral as well as documentary dismissed the claim petition filed by the legal representatives of deceased-Bharat Singh i.e. M.A.C. Petition No. 8S/2 of 2005/01 in terms of impugned award-I on the ground that the deceased-Bharat Singh was the owner and insured of the offending vehicle thus the claim petition was not maintainable. The said award has been questioned by the claimants by the medium of FAO No. 67 of 2011.11. The claim petition filed by the legal representatives of deceased-Madan Lal i.e. M.A.C. Petition No. 54S/2 of 2005/02 was granted in terms of impugned award-II compensation came to be awarded in favour of the claimants and the insurer was saddled with liability. The insurer has called in question the said award by the medium of FAO No. 342 of 2011.12. It is apt to record herein that the insurer has not questioned the findings recorded against it by the Tribunal in M.A.C. Petition No. 8S/2 of 2005/01 (subject matter of FAO No. 67 of 2011).13. The following questions arise for consideration in both these appeals:(i) Whether Poonam Kanwar was minor at the time when the offending vehicle was purchased in her name and at the time of accident?(ii) Whether in the given circumstances of the case deceased-Bharat Singh can be said to be the owner and insured of the offending vehicle at the relevant point of time?(iii) Whether deceased-Madan Lal was employed as a conductor with the offending vehicle at the relevant point of time and his risk was covered?14. Poonam Kanwar filed the reply in both the claim petitions and has not denied rather admitted that she was minor at the time when offending vehicle was purchased and at the time of the accident. While going through the registration certificate of the offending vehicle Mark-A which is at page 139 of the paper book of M.A.C. Petition No. 8S/2 of 2005/01 it is nowhere recorded that Poonam Kanwar was a minor. But the fact of the matter is that she has herself admitted that she was minor at the time of the purchase of the offending vehicle. Poonam Kanwar has also placed on record the certificate of her matriculation examination which is at page 63 of the record of FAO No. 67 of 2011 and page No. 84 of the record of FAO No. 342 of 2011 in terms of which her date of birth is 3rd June 1984. Meaning thereby she was minor at the time when the offending vehicle was purchased/registered on 19th May 2000 and on the date of accident i.e. 13th April 2001.15. Section 2 (30) of the Motor Vehicles Act 1988 (for short “MV Act”) defines “owner” which reads as under:“2. …........(30) “owner” means a person in whose name a motor vehicle stands registered and where such person is a minor the guardian of such minor and in relation to a motor vehicle which is the subject of a hire-purchase agreement or an agreement of lease or an agreement of hypothecation the person in possession of the vehicle under that agreement.”16. The said provision of law contains an exception that in case a vehicle is purchased in the name of a minor the guardian of such minor is to be treated as owner. Thus deceased-Bharat Singh is to be treated as the owner as well as the insured of the offending vehicle.17. My this view is fortified by the judgment rendered by the Apex Court in the case titled as HDFC Bank Ltd. versus Kumari Reshma and Ors. reported in 2014 AIR SCW 6673. It is apt to reproduce para 10 of the judgment herein:“10. On a plain reading of the aforesaid definition it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle and where motor vehicle is the subject of hire-purchase agreement or an agreement of hypothecation the person in possession of the vehicle under that agreement is the owner. It also stipulates that in case of a minor the guardian of such a minor shall be treated as the owner. Thus the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the 'owner'. This is the first exception to the definition of the term 'owner'. The second exception that has been carved out is that in relation to a motor vehicle which is the subject of hire-purchase agreement or an agreement of lease or an agreement of hypothecation the person in possession of vehicle under that agreement is the owner. Be it noted the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act.” (Emphasis added)18. Viewed thus the Tribunal has rightly held that the deceased-Bharat Singh was the owner-insured of the offending vehicle his risk was also not covered in terms of the insurance policy Ext. RA and the legal representatives of owner-insured cannot file a claim petition for claiming compensation.19. Questions No. (i) and (ii) are answered accordingly.20. In view of the above the impugned award-I is upheld and FAO No. 67 of 2011 is dismissed.FAO No. 342 of 2011:21. The insurer has questioned impugned award-II on the grounds taken in the memo of appeal in hand.22. The claimants legal representatives of driver and owner-insured of the offending vehicle have not questioned impugned award-II on any ground thus has attained finality so far it relates to them.Issues No. 1 & 2:23. There is no dispute viz-a-viz issues No. 1 and 2. However I have gone through the impugned award-II. The Tribunal has rightly held that the accident was outcome of rashness and negligence. Thus the findings returned by the Tribunal on issues No. 1 and 2 are upheld.Issues No. 3 and 5A:24. The Tribunal while making discussions in paras 11 to 16 of the impugned award-II held that the driver of the offending vehicle was having a valid and effective driving licence deceased-Madan Lal was employed as conductor with the offending vehicle and was not a gratuitous passenger.25. The insurer has not led any evidence to prove that deceased-Madan Lal was a gratuitous passenger. The claimants have pleaded that deceased-Madan Lal was employed as a conductor with the offending vehicle and Poonam Kanwar has also appeared in the witness box as RW3 and specifically stated that her father deceased-Bharat Singh had employed deceased-Madan Lal as conductor with the offending vehicle thus was an employee.26. The perusal of insurance policy Ex. RA in FAO No. 67 of 2011 does disclose that the risk was covered. Even otherwise deceased-Madan Lal was a third party the offending vehicle was insured and the insurer has to indemnify the insured.27. The driving licence (Ext. RW4/ A) of the driver of the offending vehicle is on the record of FAO No. 342 of 2011 at page No. 144 the perusal of which does disclose that the driving licence was valid for 'LMV' with effect from 2nd January 1997 to 1st January 2002 and was also effective for 'Heavy Goods Vehicle' with effect from 2nd September 1998.28. Shri Rameshwar Singh Registration Assistant from the office of R&LA (Urban) Shimla (RW4) has deposed that the driving licence (Ext. RW4/A) of the driver of the offending vehicle was endorsed for heavy goods vehicle vide endorsement No. 758 dated 2nd September 1998.29. Thus on the face of it the driving licence of the driver of the offending vehicle was valid at the time of the accident.30. It is apt to record herein that the Tribunal while determining issues No. 3 4 and 5A in M.A.C. Petition No. 8S/2 of 2005/01 subject matter of FAO No. 67 of 2011 has recorded the finding in para 20 of impugned award-I that the driver of the offending vehicle was holding a valid and effective driving licence to drive the offending vehicle. The insurer has not questioned the said finding. Thus on this count also the insurer is precluded from contesting this appeal on the ground that the driver of the offending vehicle was not having a valid and effective driving licence.31. Learned counsel for the insurer argued that the final award in M.A.C. Petition No. 8S/2 of 2005/01 subject matter of FAO No. 67 of 2011 was not against the insurer it had no occasion to question the said finding.32. The argument is attractive and legally sound but the fact of the matter is that when appeal i.e. FAO No. 67 of 2011 was filed it was for the insurer to invoke the jurisdiction of this Court in terms of Order 41 Rule 22 of the Code of Civil Procedure (for short “CPC”) to file cross-objections has chosen not to do so despite the fact that it has already filed appeal i.e. FAO No. 342 of 2011 against impugned award-II.33. Having said so the Tribunal has rightly returned findings on issues No. 3 and 5A are accordingly upheld.Issue No. 4:34. Learned Senior Counsel for the appellant-insurer in alternative also argued that deceased-Madan Lal was working as conductor with the offending vehicle thus the compensation was to be awarded as per the mandate of Workmen’s Compensation Act 1923 (for short “WC Act”) and the amount awarded by the Tribunal is excessive. The argument though attractive is devoid of any force for the following reasons:35. Admittedly deceased-Madan Lal was working as a conductor with the offending vehicle. Thus the claimants have a legal right to claim compensation in terms of the WC Act because the deceased was conductor under employment of the owner-insured insurer had to indemnify as per the terms and conditions contained in the Policy and the compensation was to be granted as per the Schedule attached with the said Act. Section 167 of the MV Act provides an option to lay a claim petition either before an authority under the WC Act or before the Tribunal. It is apt to reproduce Section 167 of the MV Act:“167. Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen’s Compensation Act 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act 1923 the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.”36. While going through the said provision of law one comes to an inescapable conclusion that the claimants being the legal representatives of the employee-deceased have two remedies to claim compensation and in terms of Section 167 of the MV Act they can seek compensation at higher side. It is not disputed that the claimants are not legal representatives of the deceased and the dependants. Thus the claimants are entitled to compensation.37. This Court in FAO No. 363 of 2006 titled Smt. Rajo Devi versus Sh. Madan Lal Sharma and others decided on 2.5.2014 FAO No. 530 of 2009 titled Oriental Insurance Co. Ltd. versus Smt. Kamlo and others decided 25.7.2014 and FAO No. 227 of 2006 titled National Insurance Co. Ltd. versus Nishan Surya and another decided 3.1.2014 has laid down the similar principles of law.38. Now the question is whether the amount awarded is excessive? The answer is in the negative for the reason that the insurer cannot question the adequacy of compensation unless it has obtained permission in terms of Section 170 of the MV Act.39. In terms of the mandate of Sections 147 and 149 of the MV Act read with the terms and conditions contained in the insurance policy the insurer has limited grounds available but it can contest the claim petition on other grounds provided permission in terms of Section 170 of the MV Act has been obtained.40. The insurer can seek permission to contest the claim petition on all grounds available to it and in case permission has not been sought and granted it is precluded from questioning the award on adequacy of compensation or any other ground which is not otherwise available to it.41. This question arose before the Apex Court in the case titled as United India Insurance co. Ltd. Versus Shila Datta & Ors. reported in 2011 AIR SCW 6541 and the matter was referred to the larger Bench.42. The question again arose before the Apex Court in the case titled as Josphine James versus United India Insurance Co. Ltd. & Anr. reported in 2013 AIR SCW 6633. It is apt to reproduce paras 8 17 and 18 of the judgment herein:“8. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no. 433/2005 and the review petition the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagi's case and instead placing reliance upon the Bhushan Sachdeva's case. Nicolletta Rohtagi's case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta 2011 10 SCC 509. Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects the same has been referred to higher bench and has not been overruled as yet. Hence the ratio of Nicolletta Rohtagi's case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore the impugned judgments and awards are liable to be set aside.9. to 16. ...........17. The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court in the review petition has further reduced the compensation to Rs. 4 20 000/from Rs. 6 75 000/which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court in reducing the quantum of compensation under the heading of loss of dependency of the appellant was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (2002) 7 SCC 456 : AIR 2002 SC 3350 : 2002 AIR SCW 3899 and earlier decisions wherein this Court after interpreting Section 170 (b) of the M. V. Act has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to though the correctness of the aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court.18. In view of the aforesaid reasons the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same the Insurance Company had only limited defence to contest in the proceedings as provided under Section 149 (2) of the M.V. Act. Therefore the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4 20 000/under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5 000/and applying 14 multiplier is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma v. Delhi Transport Corporation 2009 6 SCC 121 instead of applying the principle laid down in Baby Radhika Gupta's case regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Section 170 (b) of the M.V. Act. In view of the aforesaid reason the High Court should not have allowed the appeal of the Insurance Company as it has got limited defence as provided under section 149(2) of the M.V. Act. Therefore the impugned judgment and award is vitiated in law and hence is liable to be set aside by allowing the appeal of the appellant.”43. Thus the insurer can question the adequacy of compensation only if it has sought permission under Section 170 of the MV Act.44. In the present case no such permission has been sought by the insurer. Thus the insurer is precluded from questioning the adequacy of compensation.45. However I have gone through the discussions made by the Tribunal in paras 17 to 19 of impugned award-II and am of the considered view that the amount awarded is meagre but the claimants have not questioned the same is reluctantly upheld.46. Question No. (iii) is replied accordingly.47. Having said so impugned award-II is upheld and FAO No. 342 of 2011 is dismissed.48. Registry to release the awarded amount in FAO No. 342 of 2011 in favour of the claimants strictly as per the terms and conditions contained in impugned award-II through payee's account cheque or by depositing the same in their respective bank accounts.49. Send down the records after placing copy of the judgment on each of the Tribunal's files.