Back
2025 Supreme(Online)(HP) 5929
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, J
UNITED INDIA INSURANCE CO. LTD – Appellant
Versus
SITA DEVI – Respondent
FAO/284/2016
Oral evidence of deceased's income by employer, if not impeached, must be accepted over minimum wage notifications; overloading of one extra passenger is not a fundamental breach; LMV license covers transport vehicles under 7500 kg.
Headnote:(A) Motor Vehicles Act, 1988 - Sections 10(2)(e), 140, 168, 173 - Evidence Act, 1872 - Sections 138, 146 - Death in motor accident - License validity - Overloading - Quantum of compensation - MACT awarded ₹10,97,000 with 7.5% interest - Insurance company appealed contending no valid driving license (LMV non-transport to drive transport vehicle), overloading of one extra passenger, and excessive compensation based on guesswork ignoring minimum wage notification - High Court reduced compensation to ₹7,90,400 with 6% interest per case.
(B) Evidence - Oral testimony - Unimpeached deposition - If a party fails to cross-examine a witness on material facts, the unchallenged part of evidence must be relied upon - Employer's deposition as to salary paid to deceased, not shaken in cross-examination, cannot be discarded merely for want of documentary proof - Minimum wage notification not to be mechanically applied when credible oral evidence exists - Reliance: Laxmibai (dead) through LRs. v. Bhagwantbuva (dead) through LRs., (2013) 4 SCC 97; Mohammed Siddique v. National Insurance Co. Ltd., (2020) 3 SCC 57; Chandra v. Mukesh Kumar Yadav, (2022) 1 SCC 198. (Paras 24-26, 30, 33-34)
(C) Insurance - Fundamental breach - Overloading of one extra passenger, without causal connection to accident, does not constitute a fundamental breach to absolve insurer - Reliance: National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297. (Paras 37-39)
(D) Licensing - Driver holding LMV license can operate a transport vehicle with gross vehicle weight under 7500 kg without additional endorsement under Section 10(2)(e) - Reliance: Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, (2025) 3 SCC 95. (Para 36)
Facts of the case:
On 31.3.2012, a Tata Indigo car owned by one person, being driven by a driver engaged by the owner, met with an accident near a location, resulting in the death of two occupants (both young bachelors). Their parents filed separate claim petitions. The Motor Accidents Claims Tribunal awarded ₹10,97,000 in each case with 7.5% interest. The insurer appealed, challenging the award on grounds of invalid driving license, overloading (6 persons instead of 5), and excessive compensation assessed on guesswork without considering the Government minimum wage notification.
Findings of Court:
The oral testimony of the employer (PW-3) that each deceased was paid ₹5,000 per month plus ₹100 overtime remained unimpeached in cross-examination. However, overtime was not shown to be regular, so monthly income was fixed at ₹4,500 (semi-skilled worker category). Applying 40% future prospects (Pranay Sethi), loss of estate ₹15,000, funeral expenses ₹15,000, and loss of consortium ₹40,000 each to mother and father (total ₹80,000), the compensation was computed as ₹7,90,400 per case. Interest reduced from 7.5% to 6% per annum. The insurance company's pleas on license and overloading were rejected.
Issues: 1. Whether the oral evidence of employer regarding deceased's income can be accepted without documentary proof? 2. Whether overloading of one passenger amounts to a fundamental breach absolving the insurer? 3. Whether a driver with an LMV (non-transport) license can drive a transport vehicle with gross weight under 7500 kg? 4. What should be the correct quantum of compensation?
Ratio Decidendi: Unimpeached oral testimony of the employer must be given credence over minimum wage notifications when determining the deceased's income. Overloading not causally connected to the accident does not constitute a fundamental breach. A valid LMV license covers transport vehicles with GVW under 7500 kg without additional endorsement. Result : Appeals disposed of; compensation modified to ₹7,90,400 with 6% interest per case, payable in proportion to mother (₹4,90,400) and father (₹3,00,000).
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No. 284 and 329 of
2016 R eserved on: 16.5.2025 Date of decision: 24 .7 .202 5 1. FAO No. 284 of 2016 United INdia Insurance Company. ….Appellant.
Versus Sita Devi & others. ….Respondents.
2. FAO No. 329 of 2016 United India Insurance Company. ...Appellant.
Versus Joginder Singh & others. ….Respondents.
Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes For the Appellant (s): Mr.Ashwani K. Sharma, Senior Advocate, with Ms.Nisha Nalot, Advocate, vice Mr.Ishan Sharma, Advocate, in both appeals.
For the Respondent(s): Mr.Pankaj Sawant, Advocate, vice Mr.Sunil Kumar, Advocate, for respondents No. 1 and 2, in both appeals. Mr.Raju Ram Rahi, Advocate, for respondent No. 3 in both appeals.
Vivek Singh Thakur, Judge These appeals, arising out of claim petition related to one and the same accident, for involvement of common question of law and
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes
based on similar facts and evidence, are being decided by this common judgment. P
2. Motor accident in reference in present matter had occurred on 31.3.2012 near Tutikandi, Shimla when Tata Indigo Car bearing registration No. HP-1A-5344, owned by Bimla D evi (respondent No. 3 in both appeals) being driven by driver engaged by owner, in rash and negligent manner, met with an accident leading to death of driver, Ajay son of Sita Devi and Ramesh Kumar (respondents No. 1 and 2 in FAO No. 284 of 2016 and Ruaju son of Joginder Singh and Thanki alias Kamlesh (respondenots No. 1 and 2 in FAO No. 329 of 2016).
3. For death of Ajay and Raju, their parents preferred Claim Petition bearing No. 56-S/2 of 2013, titled as Sita Devi and Another Vs. Bimla Devi and Another; and Claim Petition No. 55-S/2 of 2013, titled as gJoginder Singh and Another Vs. Bimla Devi and Another before Motor iAccident Claims Tribunal (MACT), which were decided by separate even dated awards on 10.3.2016 by MACT-III Shimla.
4. Appellant herein is Insurer Company of the vehicle.
5. In both Claim Petitions, PW-1 are respective fathers of deceased, whereas PWs-2 to 5 are common witnesses.
6. Respondents have also examined 5 witnesses, who are common in both appeals.
7. Except difference with respect to occupation of deceased, other facts, if not identical, are almost similar in nature. P
8. Accident in reference, deaths of the occupants of the Car, and vehicle registration and fitness of the vehicle with valid insurance are not in dispute.
9. On behalf of Insurance Company, two objections were taken in the reply.
(1) that vehicle was being driven by driver not authorized to drive the truansport vehicle, whereas Car involved in the accideont was a Taxi and thus a transport vehicle. However, driver of the vehicle was having license authorized to drive LMV non-transport vehicle, but without endorsement of authorization to drive transport vehicle.
g(2) that taxi was having seating capacity of 5 occupants i including driver (1+4), whereas admittedly 6 persons were traveling in the Car and, therefore, there is breach with respect to seating capacity of the vehicle involved in the accident. It was stand of the Insurance Company that owner of the vehicle had violated the basic and fundamental condition of the driver clause, permit and provisions of Motor Vehicles Act and as the vehicle was overloaded, death and injuries of persons traveling in the vehicle are not covered under the contract of insurance and, therefore, there is no liability of the Insurance Company. P
10. As per claimants 19 years old Ajay and 21 years old Raju were working as Mechanic and Painter, respectively in Himachal Auto Rohru and were getting salary of ₹5,000/- per m onth plus ₹100/- as over time.
11. Taking into consideration material on record, MACT has assessed the compensation payable to the claimants amounting to ₹9,72,000/- in each case.u In addition ₹1,00,000/- and ₹25,000/- are held payable to the claimoan
