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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
National Insurance Company Limited – Appellant
Versus
Smt. Vandana S/o Late Shri Sanju – Respondent
First Appeal from Order No. 431 of 2016
Decided On : 18-12-2021
Motor Vehicles Act - Section 173 and 166 – Civil Procedure Code, 1908 – Order 41 and Rule 33 - Minimum Wages Act – Accident – Death – Compensation Granted – Liability of insurance company - Accident took place in the year 2014, and as such, wages payable to unskilled/skilled labour in that year, are/were to be taken into consideration, while assessing monthly income of deceased. Since appellant-insurance company has not been able to refute that at time of accident, deceased was working as a Helper-cum-Cleaner, this court, deems it fit to assess income of deceased as Rs. 6,000 in place of Rs. 9,000/- as assessed by learned Tribunal below - Held, This Court has no power to award any extra amount/enhance amounts already awarded by learned Tribunal below, since no cross-objections/appeal has been filed by the claimants - Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief - Appeal is partly allowed
JUDGMENT :
SANDEEP SHARMA, J.
1. Instant appeal filed under S.173 of the Motor Vehicles Act (hereinafter ‘Act’) lays challenge to award dated 24.5.2016 passed by learned Motor Accident Claims Tribunal, Shimla, District Shimla, Himachal Pradesh in MAC Petition No. 1-S/2 of 2015, whereby learned Tribunal below, while allowing claim petition having been filed by respondents Nos. 1 to 3/claimants, (hereinafter ‘claimants’) saddled the appellant-insurance company with the liability to pay compensation to the tune of Rs. 22,94,000/- alongwith interest at the rate of 9% per annum, to the claimants, from the date of filing of petition, till realization.
2. Precisely, the facts of the case, as emerge from the record, are that the claimants filed a claim petition under S.166 of the Act, seeking claim of Rs. 26,98,000 alongwith interest at the rate of 9% per annum on account of death of one Sanju, being his dependents/legal representatives, averring therein that the deceased was working as a Cleaner in vehicle bearing Registration No. HP-9C-2572, owned by respondent No. 4 and he was earning Rs. 12,000/- per month. Claimants claimed that the aforesaid vehicle being driven by respondent No. 5, met with an accident on 18.11.2014, near Dhilogarh, on Chhaila Mohari road, as a consequence of which, deceased Sanju suffered injuries and later on succumbed to the same. FIR No. 177, dated 18.11.2014, qua rash and negligent driving of respondent No. 5 came to be lodge at Police Station Theog. Claimants claimed that the deceased was the sole bread winner of the family and after his death, they have lost their support and as such, are liable to be compensated adequately.
3. Claim put forth by claimants came to be resisted by respondents Nos. 4 and 5 being owner and driver, who though have not denied the factum of accident but claimed that the vehicle at that time was not being driven in rash and negligent manner. Both the respondents claimed that accident took place due to sudden defect in the vehicle.
4. Appellant-insurance company refuted the claim on the ground that the deceased was sitting in the vehicle as an unauthorized passenger and driver of the vehicle was not having valid and effective driving licence and as such, it cannot be fastened with liability to indemnify the insured.
5. On the basis of pleadings of parties, learned Tribunal below framed following issues:
(2) If issue No. 1 is proved in affirmative, to what amount of compensation and from whom the claimants are entitled to? OPP
(3) Whether the claim petition is not maintainable ? OPR-2
(4) Whether the driver of the vehicle was not having a valid and effective driving licence at the time of driving the vehicle, if so, its effect? OPR-2
(5) Whether the driver was permitted to ply the vehicle in violation for the terms and conditions of the insurance policy as well as the provision of contract of insurance? OPR-2
(6) Whether there is a collusion between the claimants and respondents no. 1 and 3? OPR
(7) Relief.”
6. Subsequently vide impugned Award dated 24.5.2016, learned Tribunal below allowed the claim petition and awarded sum of Rs. 22,94,000/- as compensation alongwith interest at the rate of 9% per annum from the date of petition till realization. Since the appellant-insurance company, being insurer, came to be fastened with liability to pay compensation, it has approached this court in the instant proceedings.
7. Having heard learned counsel for the parties and perused material available on record, vis-a-vis the reasoning assigned by learned Tribunal below in the impugned Award, this court finds that appellant-insurance company has laid challenge to award primarily on following grounds:
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