IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No. 5757 of 2010-F along with FAO No. 210 of 2010. Date of decision: 9th March, 2012.

1. CWP No. 5757 of 2010-F.

National Insurance Company Limited, Himland Hotel, circular road, Shimla-1, through its Divisional Manager.

….Petitioner.

Versus

• 1. Mrs. Sara Bano W/o late Sh. Mohd. Jamal Bhat.
• 2. Ms. Tahira Akhtar D/o late Sh.Mohd. Jamal Bhat Both resident of village Jaghund, (Sadiwara) Post Office Barinag, Tehsil Dooru, District Anantnag, Jammu and Kashmir, through Gulam Rasool Bhat son of late sh. Quadir Bhat, resident of Village Jaghund (Sadiwara), PO Barinag, Tehsil Dooru, District Ananatnag, Jammu & Kashmir.
• 3. Ram Asra son of Abhi Ram resident of village and post office Nand, Tehsil Nalagarh, District Siolan, H. P.
• 4. Vijay Pal son of Sh. Maru Ram, resident of Village and Post Office Nand, Tehsil Nalagarh, District Sodlan, H. P.

….Respondents.

Civil Writ Petition under Article 226 of the Constitution of India.

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2. FAO No. 210 of 2010.

• 1. Mrs. Sara Bano widow of late Sh. Mohd. Jamal Bhat.
• 2. Miss. Tahira Akhtar daughter of late Sh.Mohd. Jamal Bhat

Both resident of village Khahgund (Sadiwara) Post Office Verinag, Tehsil Dooru, District Anantnag, Jammu and Kashmir, Through:

Gulam Rasool Bhat son of late sh. Quadir Bhat, resident of Village Khahgund (Sadiwara), PO Verinag, Tehsil Dooru, District Ananatnag, Jammu & Kashmir.

…..Appellants.

VERSUS.

• 1. Ram Asra son of Abhi Ram resident of village and post office Nand, Tehsil Nalagarh, District Siolan, H. P.
• 2. Vijay Pal son of Sh. Maru Ram, resident of Village and Post Office Nand, Tehsil Nalagarh, District Sodlan, H. P.
• 3 National Insurance Company Limited HQ Middelton Street, PB No.9229, Calcutta, Pin-7007 through its Manager.

……..Respondents.

First Appeal under Section 173 of the Motor Vehicles Act, 1988. ___________________________________________________________

Coram

The Hon'ble Mr. Justice Dev Darshan Sud, J.

Whether approved for reporting?1 No.

For the petitioner	:	Mr.<br>Lalit<br>K.<br>Sharma,<br>Advocate<br>and<br>for<br>respondent No.3 in FAO No. 210 of 2010.
For Respondents	:	Ms. Rita Goswami, Advocate, for respondents<br>No.1 and 2 and for appellants in FAO No. 210<br>of 2010.<br>Mr. M.L. Brakta, Advocate, for respondents<br>No.4 in CWP No. 5757 of 2010 and for<br>respondents No.<br>1 and 2 in FAO No. 210 of<br>2010.

Dev Darshan Sud, J. (Oral)

Both the writ petition and appeal are being disposed of by this common judgment as they relate to the same accident and call for adjudication on common facts.

2. Adverting to the writ petition, it has been instituted by the Insurance company against the judgment and award of the learned Motor Accident Claims Tribunal, Shimla as the application under Section 170 of the Motor Vehicles Act instituted by the Insurance Company was rejected. I am not going into the technical aspect of the matter as it is by now well settled that even where no application under Section 170 of the Motor Vehicle Act (hereinafter referred to as Act) has been filed or rejected, it will be open to the Insurance Company to prefer an appeal (See United India

Insurance Co. Ltd. Versus Shila Datta and others 2011 ACJ 2729).

3. Two points have been urged by learned counsel appearing for the petitioner for consideration of this Court. First is that the death of the deceased did not occur because of rash and negligent driving of the

¹ Whether reports of Local Papers may be allowed to see the judgment? Yes.

truck by the driver or any of the motor vehicle but he in fact had been killed as a result of scuffle between the deceased and that driver of the truck. This aspect has been dealt with by learned Tribunal under settled issue No.1 In order to determine this issue, the learned tribunal relied upon Ex.PW1/A, which is FIR No. 116 of 2005 dated 15.5.2005. Learned counsel for the petitioner submits that narration in this FIR also (which is relied upon by the petitioner and the claimants herein) is that the accident was the result of scuffle between the driver and the deceased and not as a result of use of motor vehicle. I am unable to accept this contention for the reasons that the FIR itself states that deceased Jamal Bhat had got into the truck from the conductor window when the truck was started and as a result he fell. This act can hardly be described as a scuffle pure and simple. The exact words used in the FIR are:

"Iske bad Vijay Pal and Makhan Kumar Gadi No. HP-27-0635 me ja kar beth gaye Jamal Bhat conductor side se khidaki me chada yeh kah kar ki unload ki gayi lakadi gili thi aur atirikat so rupaye ki mang ki Itane me chalak ne gadi chala di vah Jamal Bhat nche gir gaya."

Translation:

"After this Vijay pal and Makhan Kumar boarded into the truck No. HP-27-0635 and Jamal Bhat tried to enter into the truck from the conductor side saying that the wood to be loaded was wet and demanded 100 rupees extra. The driver started the truck and Jamal Bhat fell down."

4. Learned counsel for the petitioner refers to the evidence of Shri Ram Ashra, RW1. He is owner of the truck in question. He says that he engaged Shri Vijay Pal as driver and he had a valid and effective driving licence to drive the vehicle. In cross-examination he says that he was not with the vehicle or goods on the day when the accident occurred but he came to know about the accident from his driver who denied any accident having taken place. This is a hear say evidence. The narration of RW2 Shri Vijay Pal, who is driver of the vehicle in question, is of bare denial that anything happened. Obviously both these respondents are trying to save their skins. In fact RW2 says that no scuffle took place with Jamal Bhat which itself negatives the plea of the Insurance Company. The insurance company also proved on record Ex. RW4/A, Field investigation report of Sanjay Singh Chauhan. He submits that according to the police, accident occured due to the negligence of the driver of the vehicle in question. In these circumstances, I do not find any perversity in the conclusion arrived at by the learned Tribunal after proper appreciation of evidence. This submission, therefore, deserves to be rejected.

5. The second submission raised on behalf of the insurance company is that the petition itself was not maintainable as has been instituted on behalf of the petitioners by the general power of attorney and not by the claimants/petitioners himself. I do not find that this submission is well founded as there is no evidence to show that the general power of attorney holder was not familiar with the facts of the case. There is nothing in the cross-examination of the witnesses or on record to show that the power of attorney produced on record by PW4 Gulam Rasool Bhat, who is brother of the deceased, brother in law of first claimant and uncle of the second claimant is in any way invalid or in any way or vests no authority in him to prosecute the case on behalf of the claimants. I do not find in his cross-examination that he is not conversant with the facts of the case. No other contention raised before me. Accordingly the writ petition deserves to be dismissed.

6. Adverting to FAO No. 210 of 2010, the claimants herein pray for enhancement of the compensation. The first point urged by learned

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counsel appearing for the petitioner is that the wrong multiplier has been used by the learned Tribunal and relied upon the decision of Supreme Court in Sarla Verma and others versus Delhi Transport Corporation & another (2009)6 SCC 121. The deceased was 50 years of age at the time of accident. This fact has been proved on record and has not been disputed before me. In these circumstances, it is urged that the multiplier of 13 should have been adopted. I find from the judgment of the learned Tribunal that multiplier of 11 has been used. The Award is modified to this extent and I hold that the multiplier of 13 should be applied. Therefore, the award is modified accordingly and the enhanced amount shall carry interest in terms of the award passed by the learned Tribunal. Petition and appeal are disposed of accordingly. All miscellaneous applications also stand disposed of.

9th March, 2012. (Dev Darshan Sud), (jai) Judge