New India Assurance Co Ltd v. Paramjit Kaur & Ors

FAO-6303oando6304-2014oo(O&M) 1 INoTHEoHIGHoCOURToOFoPUNJABo&oHARYANA AToCHAN IGARH 1! FAO-6303-2014oo(O&M) New India Assurance Co. Ltd. ......Appellants "#! Paramjit Kaur and ors. ......Respondents 2! FAO-6304-2014oo(O&M) New India Assurance Co. Ltd. ......Appellants "#! Parkash Kauroand ors. ......Respondents a$%o&'oR%#%("%)o1*!12!202+ a$%o&'oP(&n&,n-%.%n$)2/!01!2026 U01&ad%do&n)-o30!01!2026 Whetheroonlyotheooperativeopartoofotheojudgmentoisopronounced? No Whetherofullojudgmentoisopronounced? Yes CORAM)o HON2B3EoMR4!oJU4TICEo4U EEPTIo4HARMA Present: Mr. Vinod Gupta, Advocate, for the appellant (s) in FAO No. 6303 and 6304,2014 and for respondent,Insurance Company in FAO No. 6128 and 8177,2014. Mr. Sushil Saini, Advocate for the appellants in FAO No. 6128 and 8177,2014. and respondents/claimants in FAO No. 6303 and 6304,2014. Service of respondent No.6 (driver) in FAO No. 6303,2014 is dispensed with, vide order dated 09.07.2015. Respondent No. 7 (owner) in FAO No. 6303,2014 ex parte vide order dated 09.07.2015. **** o4U EEPTIo4HARMAoJo !o

¶1Both the appeals, as noticed above, are being disposed of by this common judgment, having arisen out of the impugned award dated 04.03.2014 FAO-6303oando6304-2014oo(O&M) 2 passed by the learned Motor Accidents Claim Tribunal, Tarn Taran, whereby the claimants (Paramjit Kaur and others) were awarded compensation to tune of Rs.10,12,500/, along with interest @ 6% per annum and the claimants (Parkash Kaur and others) were awarded compensation to tune of Rs.07,42,500/, along with interest @6% per annum. The Insurance company was held liable to pay the compensation to the claimants. FACTSoNOToINoDISPUTE

¶2Brief facts of the case are that on 15.08.2011, deceased Balwinder Singh alias Billa along with Kashmir Singh and Lakhwinder Singh were going from their village Brahampura, towards Naushehra Pannuan in order to perform their job of Painter on their separate bicycles. At about 9.00 Α.Μ., when they reached near National Public School, Naushehra Pannuan, in the meantime a truck bearing registration no. PB,11,X,6735 came from the backside which was begin driven by respondent no. 1 in a rash and negligent manner and struck into the bicycle of Balwinder Singh and Kashmir Singh. Respondent no.1 lost his control over the said truck and hit into the trees. Due to this accident Balwinder Singh and Kashmir Singh fell down on the road and received multiple injuries and died at the spot. The said accident took place due to rash and negligent driving of respondent no.1. The matter was reported to the police and FIR No. 100 dated 15.08.2011, u/s 304,A, 279,427 IPC was registered at P.S. Sarhali.

¶3Upon notice of the claim petition, respondents appeared and admitted the factum of compensation.

¶4From the pleadings of the parties, the following issues were framed by the learned Tribunal :, FAO-6303oando6304-2014oo(O&M) 3 "1.oWhetheroBalwinderoSinghodiedoinotheomotorovehicular accidentoallegedotoo oplaceoono1!."#.$"11oinotheoareaoofonear Nationalo%u&licoSchooloNaushehrao%annuanoonoaccountooforash andonegligentodrivingoofotruc ono.o%B'11(')*+!o&yoitsodriverol.e. respondentono.1o,aju-oasoallegedo?.%%. $.o/foissueono.1oisoproved-owhetherotheopetitionersoareoentitledofor compensationoasoprayedofor-oifosootoohatoetitento?.%% +.oWhetherotheopresentoclaimopetitionoisonotomaintaina&leo? .%,.

1.oWhetherotheorespondentono.1o,ajuowasonotohavingoanyolegal andovalidodrivingolicenseoatotheotimeoofoallegedoaccidento?.%,o !.o,elief.2

¶5After taking into consideration the pleadings and the evidence on record, the learned Tribunal awarded compensation to the claimants. However, the appellant,Insurance Company was held liable to pay the compensation. Hence, the present appeals. SUBMISSIONoOFoLEARNEDoCOUNSELoFORoTHEoPARTIES.

¶6Learned counsel for the appellant–Insurance Company contends that the driving licence of the driver of the offending vehicle is fake, as is evident from the verification report annexed with the memorandum of appeal. It is submitted that the said report could not be produced or proved during the trial since the evidence on behalf of the insurer had already been closed by order of the learned Tribunal. On this basis, learned counsel prays that the present appeal be allowed and that the appellant–Insurance Company be absolved of its liability to satisfy the FAO-6303oando6304-2014oo(O&M) 4

¶7He further contends that the learned Tribunal erred in law in assessing the monthly income of both the deceased (Ba156nd%(o46n78o9oB611aoando:a#8.6( 46n78) @ Rs.7500/, per month. He, therefore prays that the present appeals be allowed.

¶8Learned counsel for the claimants vehemently contends that the liability has rightly been fixed upon the Insurance Company by the learned Tribunal. He further contends that the amount awarded by the learned Tribunal is on the lower side and the claimants have also filed separate appeals bearing FAO No.o8177-2014otitle o!"oP!#!$%eeto&!'#o!( oot)e#"o*".oR!%'o!( oot)e#"o!( oFAO No.o+128-2014otitle o!"oP!#,!")o&!'#o!( oot)e#"o*".oR!%'o!( oot)e#"- seeking enhancement of the compensation amount awarded by the learned Tribunal.

¶9I have heard learned counsel for the parties and perused the whole records of the case.

¶10Before proceeding further, it is relevant to reproduce the relevant portion of the award, which reads as under:, .ISSUEoNO.4 $".o3heoonusoofoprovingothisoissueowasoplacedouponotheorespondent no.+o/nsuranceo4ompany.oNotoevenoaoscintillaoofoevidenceohaso&een &roughtoonorecordotooshowothatotheorespondentono.1owasonotoholdingoa validooroeffectiveodrivingolicenseoatotheotimeoofoaccident.oSo-othisoissue is o decided o against o the o respondent o no.+ o and o in o favour o of o the claimants./

¶11A perusal of the impugned award reveals that the learned Tribunal has correctly adjudicated the issue of liability and rightly fastened the liability to pay compensation upon the appellant–Insurance Company. FAO-6303oando6304-2014oo(O&M) +

¶12It is trite law that in order to avoid its liabilities, the Insurance Company must not only plead the available statutory defence(s) but must also strictly establish a willful breach of the terms and conditions of the insurance policy on the part of the owner of the offending vehicle. The burden of proving such breach squarely lies upon the insurer.

¶13In the present case, the appellant–Insurance Company has miserably failed to discharge this burden, inasmuch as no cogent or reliable evidence was led before the learned Tribunal to demonstrate any violation of the terms of the insurance policy, particularly with regard to the alleged absence of a valid and effective driving licence.

¶14As regards the contention of the appellant–Insurance Company that the report pertaining to the alleged fake driving licence could not be produced or proved during the trial since the evidence on behalf of the insurer had already been closed by order of the learned Tribunal, the said contention is wholly misconceived and devoid of merit. It is not the case of the appellant,Insurance Company that the awards were passed without affording due opportunity of hearing. The record clearly reflects that the impugned awards were passed in the presence of learned counsel for the Insurance Company and after granting adequate opportunity to lead evidence and to address arguments.

¶15Having failed to avail such opportunity at the appropriate stage, the appellant–Insurance Company cannot, at this appellate stage, be permitted to fill up lacunae in its case by seeking to rely upon additional evidence.

¶16In view of the foregoing discussion, the findings recorded by the learned Tribunal on the issue of liability are well,reasoned, sound, and call for no interference. The same are accordingly affirmed. FAO-6303oando6304-2014oo(O&M) 6

¶17So far as the contention of the appellant–Insurance Company that there was no documentary evidence on record regarding the income of the deceased and, therefore, the assessment of his monthly income at ₹7,500/, is on the higher side, the same is wholly devoid of merit.

¶18It transpires from the impugned award that the deceased, Balwinder Singh alias Billa and Kashmir Singh were engaged in the profession of painting/whitewashing. The learned Tribunal assessed their monthly income at ₹7,500/, keeping in view the nature of his avocation.

¶19Further, claimant No.1, Paramjit Kaur, specifically deposed that the deceased was earning ₹7,500/, per month by doing the work of whitewashing. The said testimony has remained unrebutted, as no evidence whatsoever was led on behalf of the respondents to controvert the said assertion or to establish that the deceased was merely an unskilled labourer earning a lesser amount.

¶20In view of the surrounding circumstances, the nature of work being performed by the deceased, and the prevailing socio,economic conditions in Indian society, the learned Tribunal has rightly assessed the monthly income of the deceased at ₹7,500/,. The approach adopted by the learned Tribunal is neither arbitrary nor excessive and is in consonance with settled principles of law governing assessment of income in cases involving persons employed in the unorganised sector.

¶21Support for the aforesaid view can be drawn from the judgment of the Hon'ble Supreme Court in &'0#!oBitiio*.oO#ie(t!loI("'#!(1eoCo.oLt .-o#e2o#te o!" 2023o435oA2e6oCo'#to7' 8$e(t"o4SC5o23, wherein it has been held that in the absence of definite proof of income, the social status and nature of employment of FAO-6303oando6304-2014oo(O&M) 7 theodeceasedoareorelevantoconsiderations,oandonotionaloincomeomustobeoreasonably assessed.oTheorelevantoextractoreadsoasounder:- "Inoaomatteroofotheopresentonatureowhereotheocompensationois soughtoandoevenoinoabsenceoofodefiniteoproofoofotheoincome,othe socialostatusoofotheodeceasedoisotoobeokeptoinoperspectiveowhere suchopersonsoareoemployedoinounorganizedosectoroandotheonotional incomeoinoanyoeventoisorequiredotoobeotakenointooconsideration…"

¶22Furthermore,otheonatureoofoproceedingsoinoMotoroAccidentoClaims, beingosummaryoinonature,oevidenceoinostrictoosensuoisonotorequired.oTheoHon'ble SupremeoCourtoinocaseoof o"Chandrao@oChandao@oChandraramovs.oMukesh KumaroYadavo&oOrs.",oreportedoaso(2022)o1oSCCo198,oheldothatoinoabsenceoof proofoofoincome,otheominimumowageonotificationocanobeoaoyardstickobutoatotheosame timeocannotobeoabsoluteooneotoofixotheoincomeoofotheodeceasedoandosomeoguesswork isorequiredotoobeodoneotooassessotheoincome.oRelevantoexcerptothereofoisoreproduced hereunder:- "…….Inotheoabsenceoofosalaryocertificateotheominimumowage notificationocanobeoaoyardstickobutoatotheosameotimeocannot beoanoabsoluteooneotoofixotheoincomeoofotheodeceased.oInothe absenceoofodocumentaryoevidenceoonorecordosomeoamountoof guessworkoisorequiredotoobeodone.oButoatotheosameotimeothe guessworkoforoassessingotheoincomeoofodeceasedoshouldonot beototallyodetachedofromoreality.oMerelyobecauseoclaimants wereounableotooproduceodocumentaryoevidenceotooshowothe monthlyoincomeoofoShivpal,osameodoesonotojustifyoadoptionoof GAURAVgARORA lowestotieroofominimumowageowhileocomputingotheoincome. 2026.01.30g18:26 Igattestgtogthegaccuracygand integritygofgthisgdocument FAO-6303oando6304-2014oo(O&M) / 3hereoisonooreasonotoodiscardotheooraloevidenceoofotheowifeoof theodeceasedowhoohasodeposedothatolateoShivpalowasoearning aroundo,s.o1!-"""9'operomonth772

¶23In the light of the above authoritative pronouncement and the evidence available on record, the findings recorded by the learned Tribunal on the issue of assessment of income suffer from no infirmity and are accordingly upheld.

¶24In view of the above, the appeals are dismissed, accordingly.

¶25Pending application (s), if any, also stand disposed of. ooooooooooooo ooo ooo(4U EEPTIo4HARMA) ooooooooo oooooJU GEo 2/!01!2026 Gaurav Arora Whether speaking/non,speaking : Speaking