( 2025:HHC:19531 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 351 of 2017. Reserved on: 16 th June, 2025. Decided on : 24 th June, 2025. United India Insurance Company Ltd. .. Appellant. Versus Duku Devi & Others ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Vivek Negi, Advocate. For the respondents: Mr. G.R. Palsra, Advocate, for respondents No.1 to 5. Mr. Naveen K. Bhardwaj, Advocate, for respondents No. 6 and 7. Satyen Vaidya, Judge. By way of instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), the insurer has assailed the Award dated 06.05.2017 passed by the learned Motor Accident Claims Tribunal (I), Kullu in M.A.C. Petition No. 38 of 2015. 2. Respondents No.1 to 5 herein were the claimants before the learned Tribunal. Respondent No.6 herein was the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:19531 ) owner of the offending vehicle and respondent No.7 herein was the driver thereof. The appellant was the insurer of the offending vehicle. For the sake of convenience, the parties shall hereafter be referred to by the same status as they held before the learned Tribunal. 3. A claim petition under Section 166 of the Act was filed by the claimants for grant of compensation on account of death of Shri Jawala Singh in a motor vehicle accident. It was alleged that on 15.06.2013, at about 11.30 A.M., at Village Mehar, P.O. Chethar, Tehsil Banjar, District Kullu, H.P., deceased Jawala Singh was hit by a vehicle bearing registration No. HP-49A-0803, which was owned by the owner. The cause of accident was attributed to the rash and negligent driving of the driver. The case was reported to the police resulting in registration of FIR No. 44 of 2013, dated 15.06.2013, under Sections 279, 338 and 304-A of the IPC. 4. As per the claimants, the deceased was aged about 85 years. He had left the house for a walk when the offending vehicle hit the deceased. It was specifically averred that the vehicle was being reversed by the driver without the assistance of the helper and in this process the deceased was hit by the vehicle. 3 ( 2025:HHC:19531 ) 5. Deceased was stated to be earning about Rs.20,000/- per month. It was stated that the deceased was a retired government employee and was receiving pension in the sum of Rs.8000/- per month. In addition, the deceased was also stated to be carrying on business of sale and purchase of fruits and vegetables. 6. It was also claimed that one of the sons of the deceased was mentally challenged and he was completely looked after by the deceased. 7. The owner and the driver through their separate replies maintained that the accident was not the result of rash and negligent driving of the driver. The factum of vehicle being insured by the insurer was disclosed. 8. The insurer filed separate reply. It was alleged that the driver was not possessing valid and effective driving licence at the time of accident. The insurer also sought to avoid its liability to indemnify the insured on the ground that the vehicle at the time of accident was being driver in violation of the terms and conditions of the policy. The factum with respect to engagement of deceased as alleged in the petition were also denied. 9. Learned Tribunal has framed the following issues:- 4 ( 2025:HHC:19531 ) “1) Whether deceased Jawala Singh died in a motor vehicle accident having taken place on 15.06.2013, at about 11.30 A.M. due to rash and negligent driving of Jeep No. HP-49A-0803 by respondent No.2, namely Ravi Prakash? OPP. 2) If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom?OPP 3) Whether the respondent No.2 was not holding valid and effective driving licence at the time of accident to drive offending vehicle?OPR-3 4) Whether the vehicle was being plied in contravention with terms and conditions of standard insurance policy. If so, its effect? OPR-3. 5) Whether the deceased was traveling in the offending vehicle as a gratuitous passenger? OPR-3 6) Relief.” 10. Issues No.1 and 2 were answered in the affirmative and remaining issues were answered in negative. The petition was accordingly allowed and the claimants have been held entitled to compensation of Rs.4,86,000/- under the following heads:- Sr. No. Heads Amount 1. Loss of dependency Rs.3,36,000/- 2. Funeral expenses Rs.20,000/- 3. Loss of estate Rs. 10,000/- 4. Loss of love and affection Rs.20,000/- 5. Loss of consortium to claimant No.1 (Duku Devi) Rs.1,00,000/- 5 ( 2025:HHC:19531 ) Total Rs.4,86,000/- 11. In addition, the claimants have also been held entitled to interest @7.5% per annum from the date of filing of the petition till its deposit. Further costs of Rs.10,000/- has also been awarded in favour of the claimants. 12. I have heard the learned counsel for the parties and have also gone through the entire record carefully. 13. Learned counsel for the appellant/insurer at the outset has fairly conceded that the challenge of insurer on the ground of invalid driving licence does not survive in the light of judgment passed by the Hon’ble Supreme Court in Bajaj Alliance General Insurance Company Limited vs. Rambha Devi & Ors., (2025) 3 SCC 95. He admitted that the vehicle in question in the instant case was having gross weight of less than 7,500 kilograms and the driver was authorized to drive light motor vehicle (LMV). 14. He next contended that the compensation awarded by the learned Tribunal is excessive. According to him, learned Tribunal has assessed the income of the deceased at Rs.7000/- per month without there being any evidence to that effect. He further submitted that in the absence of any documentary evidence as to income, the 6 ( 2025:HHC:19531 ) relevant factor would be the minimum wages prescribed under the Minimum Wages Act. 15. To test the argument, a glance at evidence is required. 16. Claimant Lal Singh examined himself as a witness. He submitted his examination-in-chief by way of affidavit. It was deposed that the annual income of deceased ranged between Rs. 1 lakh to Rs.1.5 lakh as he was carrying the business of sale and purchase of fresh vegetables and fruits. While being cross-examined, he admitted that the claimants had not produced any document with respect to alleged business of deceased. He volunteered that deceased was drawing pension. The claimants have also examined one Thakur Singh as a witness. According to this witness also the deceased was attending to orchard and was growing vegetables and grains etc. He also corroborated that the deceased was also carrying on the business of purchase and sale of vegetables and fruits. 17. Noticeably, none of these witnesses had stated in their examination-in-chief about the income drawn by the deceased from pension. Even otherwise, neither any documentary evidence has been placed on record with respect to pension, if any, drawn by the deceased nor any 7 ( 2025:HHC:19531 ) details of the service rendered by the deceased have been provided. Similarly, except for bald assertion of PW-3 Lal Singh and PW-4 Thakur Singh, there is nothing on record to show that the deceased was carrying on the business, as alleged, at the time of death. Nothing regarding bank account etc., if any, maintained by the deceased has been placed on record. 18. Evidently, learned Tribunal assessed the income of deceased on guess work. No doubt some amount of guess work is permissible in compensation claim cases provided it is based on realistic considerations. In the situation where the income of deceased is not documented, the wages fixed under the Minimum Wages Act can be used as one of the guiding factors. Thus, even after applying the criteria of minimum wages, the deceased could not be held entitled to less than Rs.5000/- per month as income. The minimum wage of an unskilled labour in 2013 was Rs. 150/- per day in the State of Himachal Pradesh. 19. He had five dependents. Learned Tribunal has rightly deducted 1/5th of the income of the deceased towards his personal expenses. By same analogy, the monthly income of the petitioner, after deducting the personal expenses, will be reduced to Rs.4000/-. Multiplier of five is 8 ( 2025:HHC:19531 ) the correct multiplier and by its application, the total dependency will be Rs.4000x12x5=Rs.2,40,000/- as against the amount of Rs. 3,36,000/- assessed by learned Tribunal. 20. Though, the claimants have not filed any appeal for enhancement, yet in light of following proposition of law laid down by the Hon’ble Supreme Court in Ranjana Prakash and Ors. vs. Divisional Manager and Another, (2011)14 SCC 639, this Court is competent to reassess other components of compensation awarded to the claimants: - “6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be 9 ( 2025:HHC:19531 ) added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections. 7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which 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 the 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 of the Code can however be pressed into service to make the 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. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non- grant of relief against the insurer. Be that as it may.” 21. Noticeably, in light of the law laid down by the Constitutional Bench of Hon’ble Supreme Court in National 10 ( 2025:HHC:19531 ) Insurance Company Ltd. vs. Pranay Sethi & Ors., (2017) 16 SCC 680, and followed in Magma General Insurance Company Ltd. vs. Nanu Ram & Ors., (2018) 18 SCC 130, the compensation awarded to the claimants under other heads is liable to be computed as follows:- (I) The claimants are entitled to loss of consortium @ Rs.40,000/- each. Thus, the total amount payable to the claimants under this head shall be Rs.2,00,000/-. In addition, the claimants shall be entitled to Rs.15,000/- for loss estate and Rs. 15,000/- for funeral expenses. As per the Pranay Sethi’s case (supra), the claimants shall also be entitled to enhancement at the rate of 10% after every three years on the compensation granted under the conventional heads and in this manner, the claimants shall be entitled to enhancement of Rs.46,000/-. 22. Thus, the claimants on recalculation of all the components shall be entitled to the compensation as under: - 1. Loss of dependency Rs.4000x12x5= 2,40,000/- 2. Loss of consortium Rs. 2,00,000/- 3. Loss of estate Rs.15,000/- 4 Funeral Charges Rs.15,000/- 5. Enchancement @10% after every Rs.46,000/- 11 ( 2025:HHC:19531 ) three years on the compensation granted under the conventional heads. Total Rs.5,16,000/- (Rs. Five lakh and sixteen thousand only) 23. However, since the claimants have not filed any appeal for enhancement or cross-objections, keeping in view the dictum in Ranjana Prakash supra, the amount Awarded cannot be enhanced. Even otherwise also there is only a marginal difference in two calculations. 24. In view of above discussion, no interference is called for in the impugned award dated 06.05.2017 passed by the learned Motor Accident Claims Tribunal (1), Kullu in M.A.C. Petition No.38 of 2015 and is accordingly affirmed. 25. Records be sent back forthwith. (Satyen Vaidya) Judge 24th June, 2025. (jai)