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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
SHRIRAM GENERAL INSURANCE COMPANY LIMITED – Appellant
Versus
SMT. KALA DEVI W/O LATE SHRI TARA CHAND – Respondent
First Appeal From Order No. 137 of 2015
Decided On : 01-07-2022
Motor Vehicles Act, 1988 - Section 166 - Employees Compensation Act, 1923 - Section 4A and 147(1) - Accident - Death - Compensation Awarded - Liability of Insurance company and Owner of vehicle - Whether insurer can avoid liability even under Act, 1923 - Whether vehicle was properly maintained by owner or not loses relevance - while driving truck met with an accident and died as a result of injuries suffered thereby. Truck was owned by respondent No. 7 (“owner”) and was insured by appellant - There is nothing on record which may justify delay on part of owner to accept liability and to deposit compensation amount as provisional payment under sub-section (2) of Section 4A of Act, 1923 therefore, the owner is saddled with liability to pay to the claimants penalty to the tune of 50% of the amount awarded.
Finding of the Court:
It is not case of insurer that death of deceased in the accident in question, would not entitle his legal representatives to claim compensation even under the Employees Compensation Act. By virtue of proviso to sub-section (1) to Section 147 of Act, claimants will be so entitled - Provisions of Section 4 as it stood after coming into force amending Act 45 of 2009 will apply to the case in hand. Meaning thereby, capping of monthly wages of an employee at Rs. 4000/- provided before coming into force of amending Act 45 of 2009 will not be applicable - There is nothing on record which may justify delay on part of owner to accept liability and to deposit the compensation amount as provisional payment under sub-section (2) of Section 4A of Act, 1923 therefore, owner is saddled with liability to pay to claimants penalty to tune of 50% of amount awarded.
Result: Appeal disposed of.
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant appeal, the appellant (Insurer) has assailed award dated 06.01.2015, passed by the learned Motor Accident Claims Tribunal, Shimla, H.P. in M.A.C.C. No. 62-S/2 of 2014/10, whereby a sum of Rs. 12,11,000/- has been awarded as compensation in favour of the claimants. Further, the claimants have also been held entitled to interest @ 7.5% from the date of filing of petition till realization of the entire amount. The liability to pay compensation has been fastened on the insurer.
2. The facts giving rise to filing of claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short “Act”) are that Shri Tara Chand while driving Truck No. HR-37A-6995 met with an accident on 9.2.2010 and died as a result of injuries suffered thereby. The truck was owned by respondent No. 7 (for short “owner”) and was insured by the appellant (for short “insurer”).
3. The claim petition was filed by respondents No. 1 to 6 herein (for short “claimants”) as legal representatives of deceased Shri Tara Chand. It was averred in the claim petition that the cause of accident was abrupt latent defect in the vehicle and also that the vehicle was not properly maintained by the owner.
4. The owner contested the petition by denying the improper maintenance of the vehicle. However, the cause of accident was admitted to be development of latent defect in the vehicle.
5. The insurer contested the petition on the ground that the same was not maintainable as the accident was caused by rash and negligent driving of deceased driver Tara Chand. Collusion between the claimants and the owner and the breach of terms of insurance policy was also alleged.
6. Learned tribunal had framed the following issues:
2. If issue No. 1 is decided in affirmative whether the petitioners are entitled for compensation of Rs. 15,00,000/- (Fifteen lacs)? OPP
3. Whether the petition is not maintainable? OPR
4. Whether the petitioners are estopped by their act and conduct to file the present petition? OPR
5. Whether the petitioners have no locus-standi to file the present petition? OPR
6. Whether the petitioners have concealed the material facts in the court, as alleged? OPR
7. Whether the vehicle was being driven in violation of terms and conditions of the policy? OPR-2
8. Whether the driver was not holding valid and effective driving licence at the time of accident? OPR-2
9. Relief.
Issues No. 1 and 2 were answered in affirmative and other issues were answered in the negative. The accident was held to be caused due to development of latent defect in the vehicle. The vehicle was also held to be not properly maintained by the owner. Accordingly, the compensation along with interest, as noticed above was awarded in favour of the claimants and insurer was saddled with liability to pay the same.
7. I have heard Mr. Jagdish Thakur, Advocate, for the appellant, Mr. Raman Sethi, Advocate, for respondents No. 1 to 6 and Mr. Romesh Verma, Advocate, for respondent No. 7 and have also gone through the entire record carefully.
8. Shri Jagdish Thakur, Advocate, learned counsel for the insurer has submitted that findings as to development of latent mechanical defect in the vehicle was without any evidence. The accident was result of rash and negligent driving of the driver, deceased Shri Tara Chand. Therefore, the claim petition on behalf of his legal representatives was not maintainable under Section 166 of the Act. He has further contended that the learned tribunal has considered the income of deceased at Rs. 9,000/- per month merely on surmises and conjectures, whereas there was no legal evidence to warrant such conclusion.
9. A perusal of the impugned award reveals that the learned tribunal has placed reliance upon document Ex.PW2/A, the report prepared by police me
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