( 2025:HHC:23800 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 343 of 2019. Reserved on: 3 rd July, 2025. Decided on : 23 rd July, 2025. Oriental Insurance Company Limited .... Appellant. Versus Smt. Rekha Devi & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Deepak Bhasin, Senior Advocate with Mr. Sambhav Bhasin, Advocate. For the respondents: Ms. Anjali Soni Verma, Advocate, for respondents No.1, 3 and 4. Satyen Vaidya, Judge. By way of instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), the appellant/insurer has assailed the Award dated 22.04.2019 passed by learned Motor Accident Claims Tribunal-III, Kangra at Dharamshala camp at Jawali, H.P. in Claim Petition No. 88- G/2010/13. 2. Respondents No.1 to 4 herein (hereinafter referred to as “the claimants”) had filed claim petition under Section 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:23800 ) 166 of the Act seeking compensation on account of death of Shri Preet Pal in a motor vehicle accident involving Cargo truck No. PB-11S-4527 (for short, “Cargo Truck”) and tanker bearing registration No. PB-11AJ-8642 (for short, “the Tanker”). It was alleged that during the intervening night of 20.09.2009 and 21.09.2009 at about 12.05. A.M. when the deceased Preet Pal was driving Cargo Truck at Goal Chowk Phagwara, Punjab, the Tanker crashed against the Cargo truck on account of rash and negligent driving of the driver of the tanker. 3. The tanker was stated to be driven by respondent No.5 herein (hereinafter referred to as “the driver”) and the said vehicle at the relevant time was owned by respondent No.6 (hereinafter referred to as “the owner”). The appellant herein (hereinafter referred to as “the insurer”) was the insurer of the Tanker. 4. The son of deceased Preet Pal namely Sandeep Kumar, (claimant No.3) was allegedly along with deceased Preet Pal at the time of accident. It was claimed that when the tanker crashed against the Cargo truck, deceased Preet Pal fell out of vehicle and got crushed under the wheels. 3 ( 2025:HHC:23800 ) 5. It was also claimed by the claimants that the deceased was employed as driver by the owner of the Cargo truck and was being paid Rs.10,000/- per month as salary. 6. The driver did not appear before the learned Tribunal despite service of notice and accordingly was proceeded against ex-parte on 16.06.2010. He did not join the proceedings till the passing of the Award. 7. The owner filed reply. It was disclosed that the tanker was insured with the insurer. The cause of accident being rash and negligent driving of the driver was specifically denied. It was alleged that the accident had taken place due to rash and negligent driving of the deceased himself. It was further submitted that at the time of engaging the driver, the owner had put him to driving test and had also checked his driving licence which was found valid and effective for driving the heavy transport vehicle (HTV). 8. The insurer in its reply raised a specific objection that the driver at the time of accident was not having valid and effective driving licence. It was also submitted that the tanker at the time of accident was being plied without valid registration certificate, route permit, fitness certificate, driving licence and insurance etc. Claim petition was also stated to be bad for non-joinder of necessary parties. The 4 ( 2025:HHC:23800 ) owner and insurer of Cargo truck were alleged to be necessary parties. 9. On the basis of pleadings of the parties, the learned Tribunal has framed the following issues:- “1) Whether deceased Preet Pal died in a motor vehicle accident allegedly caused by rash and negligent manner of driving of the offending vehicle by respondent No.1? OPP. 2) If issue No.1 above is proved in affirmative, to what quantum of compensation, the petitioners are entitled to and from whom? OPP. 3) Whether the accident was caused on the negligence of deceased? OPR-3. 4) Whether respondent No.1 was not holding a valid and effective driving licence at the relevant time? OPR-3. 5) Whether there was breach of terms and conditions of the insurance policy issued by the insurer qua the offending vehicle? OPR-3. 6) Whether the claim petition is barred in view of the claimants having received compensation under the Workman Compensation Act? OPR-3 7) Whether the petition is bad for non-joinder of owner and insurer of Tanker No. PB-11-AJ- 8642? OPR-3 8) Relief. 10. Issues No.1 and 2 were answered in affirmative, whereas all other issues were answered in negative. The claimants have been held entitled to compensation of Rs.8,26,000/- from the owner and driver and since, the 5 ( 2025:HHC:23800 ) vehicle was insured by the insurer, the liability to pay the compensation has been fastened on the insurer. 11. In addition, the petitioners have also been held entitled to interest @ 7.5% per annum from the date of filing of the petition till the actual realization. 12. I have heard the learned counsel for the parties and have also gone through the entire record carefully. 13. Mr. Deepak Bhasin, learned Senior Advocate representing the insurer has raised challenge to the award only on one ground that despite ample proof of the fact that the driver was not possessing the licence to drive HTV, the learned Tribunal has erred in holding otherwise and fastening of the liability on the insurer 14. Learned Senior Counsel has placed reliance on the statement of RW-1 Jitender Singh, Clerk, Office of RTO Gurdaspur, Punjab and RW-2 Ram Mohan Negi, Branch Manager of the Insurer. He would contend that from the deposition of RW-1, it stood proved that licence Ex.RW1/B of the driver was valid for driving Scooter, Motor Cycle, Tractor and Light Transport Vehicle only and the endorsement on the licence to drive the HTV was fake. 15. I have gone through the statement of RW-1. By making reference to an endorsement encircled red at page 6 6 ( 2025:HHC:23800 ) of the driving licence Ex.RW11/B, the witness had stated that no such endorsement had been made by the office of District Transport Officer, Gurdaspur. He had placed reliance on the contents of register brought by the said witness, which according to him included entries/endorsements made in the driving licence with respect to permission to drive the vehicles other than for which the licence was made. 16. According to RW-1, as per the entry register brought by him, licence No.1578 was issued in the name of driver on 15.09.2008 with its validity till 14.09.2011 to driver motorcycle, scooter, tractor and light transport vehicle. 17. Learned Tribunal has held that from the evidence produced by the insurer, it was not proved that the driver was not having licence to drive HTV. 18. Though, the findings recorded by the learned Tribunal has its own reason and the said reasons by themselves may not be sufficient to warrant the findings so recorded, yet, in my considered view for different reasons as detailed hereinafter, the findings will still remain to the effect that the insurer has failed to discharge the burden of proving breach of terms and conditions of policy of insurance. 19. As noticed above, the driver had not contested the proceedings and had been proceeded ex-parte. The owner 7 ( 2025:HHC:23800 ) had produced copies of registration certificate, insurance policy and route permit of the vehicle, but had shown his inability to produce the driving licence for the reason that the driver had left the job. The above fact is evident from the order passed by the learned Tribunal on 04.06.2013 to the following effect:- “Reply to the application under Section 169 of M.V. Act filed alongwith photocopy of the RC, copy of insurance cover note and route permit. The ld. Counsel appearing for the respondent No.2 stated at the bar that except documents annexed with the reply, he is having no other documents. Hence, appropriate inference would be drawn at the appropriate stage. Now the case is adjourned for PWs for 13.08.2013.” 20. Document Ex.RW1/B is a photo copy. None has seen the original of the licence possessed by the driver. Record also reveals that the photo copy of driving licence i.e. Ex.RW1/B was produced on record by the insurer on 17.10.2017 on the date when RW-1 was examined. The insurer has not been able to explain as to how it came in possession of the licence. RW-2 though stated that the driving licence had been produced by the driver and was got verified from DTO, Gurdaspur but neither the alleged Investigator nor the investigation report, if any, has been produced on record. 8 ( 2025:HHC:23800 ) 21. Further, one can find another endorsement available at page 5 of Ex.RW1/B, which reads as under: - “Licence to drive the transport vehicle is valid from 15.09.2008 to 14.09.2011”. 22. Neither RW-1 nor RW-2 have stated anything about this endorsement. Thus, to believe that the endorsement encircled red in Ex.RW1/B was part of the original licence will be the fallacy. 23. Furthermore, the register on the basis of which RW-1 has made statement has not been placed on record. Hence there is no hesitation to say that the insurer had failed to discharge the burden and for such reason the contention raised by the insurer in appeal deserves to be rejected. 24. Claimants though have not filed any appeal or cross-objections, still the learned counsel representing the claimants laid stress for enhancement of compensation by contending that this Court while hearing the appeal under Section 173 of the Act can enhance compensation without there being any appeal or cross objections by the claimants. It has further been contended that the Motor Vehicles Act being a beneficial legislation cast a duty upon the Tribunal and Court to assess the compensation which is just and adequate. 9 ( 2025:HHC:23800 ) 25. Learned counsel for the claimants pointed out that in enhancement on account of loss of future prospects has not been awarded by the learned Tribunal as per the dictum in National Insurance Company Ltd. vs. Pranay Sethi & Ors., (2017) 16 SCC 680. She further submits that all the dependents were entitled for Rs.40,000/- each on account of loss of consortium as per the view addressed by the Hon’ble Supreme Court in Magma General Insurance Company Ltd. vs. Nanu Ram & Ors., (2018) 18 SCC 130,. 26. In Sanobanu Bazirbhai Mirza and others vs. Ahmedabad Municipal Transport Service, (2013) 16 SCC 719, the Hon’ble Supreme Court has held as under:- “19. The amount of Rs.16,96,000/- as calculated above, under the various heads of losses, should be awarded in favour of appellants- claimants, though there is no specific mention regarding enhancing of compensation as in the appeal it has been basically requested by the appellants to set aside the judgment and order passed by the High Court in the appeal filed by the respondent. We must follow the legal principles of Nagappa Vs. Gurudayal Singh & Ors.[(2003)2 SCC 274] at para 7, wherein with respect to the provisions of the M.V. Act, this Court has observed as under: “There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is — it should be 10 ( 2025:HHC:23800 ) “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.” 20. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly, we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants.” 11 ( 2025:HHC:23800 ) 27. In light of exposition, this Court being entitled to enhance compensation without there being any appeal or cross-objections of the claimants, proceeds to examine the contention raised by the learned counsel for the claimants. 28. The claimants had averred that the salary of the deceased was Rs.10,000/- per month. The learned Tribunal assessed the same at Rs.6000/- per month. Keeping in view the number of dependents, learned Tribunal deducted ¼th of the monthly income of the deceased towards his personal expenses. In this manner, Rs.4500/- per month was assessed as loss of dependency and by applying the multiplier of 14, total loss of dependency was calculated at Rs.7,56,800/-/ 29. Learned Tribunal has definitely missed out important aspect that enhancement of 25% on the monthly income of the deceased was liable to be made on account of loss of future prospects. Indisputably, the age of the deceased was 43 years. Thus, in terms of mandate in Pranay Sethi (supra), 25% enhancement was to be made on the monthly income of the deceased and would again make the monthly dependency to Rs.6000/-. The loss of total dependency by such calculation comes out to be Rs. 10,08,000/- ( i.e. Rs.6000x12x14). 12 ( 2025:HHC:23800 ) 30. Learned Tribunal has held that one of the sons of the deceased was not dependent and thus there were only three dependents of the deceased i.e. his wife, mother and another son. It being so, compensation on account of loss of consortium was liable to be awarded at the rate of Rs.40,000/- per dependent i.e. Rs.1,20,000/- in total in the instant case. In addition, the claimants would also be entitled for Rs.15,000/- on account of funeral charges and another Rs.15,000/- on account of loss of estate. Further, entire amount awarded on account of loss of consortium, loss of estate and funeral charges was also liable to be enhanced @10% after every three years w.e.f. 2017 in terms of the Constitutional bench judgment in Pranay Sethi (supra). Accordingly, the claimants would also be entitled to a sum of Rs.30,000/- on account of such enhancement. 31. Thus, the claimants, on recalculation, shall be entitled to the compensation as under: - 1. Loss of dependency Rs. 10,08,000/- (Rs.6000x12x14) 2. Loss of consortium Rs. 1,20,000/- 3. Loss of estate Rs.15,000/- 4 Funeral Charges Rs.15,000/- 5. Enhancement @10% after every three years on the compensation granted under the conventional heads. Rs.30,000/- 13 ( 2025:HHC:23800 ) Total Rs.11,88,000/- (Rs. Eleven lakhs and eight thousand only) 32. The aforesaid compensation will carry interest @7.5% per annum from the date of filing of petition till actual realization as awarded by the learned Tribunal. 33. The apportionment of compensation as ordered by the learned Tribunal shall also remain the same with variance in amount on account of recalculations made by this Court. 34. In result, the appeal of the insurer is dismissed. However, the impugned Award dated 22.04.2019 passed by learned Motor Accident Claims Tribunal-III, Kangra at Dharamshala camp at Jawali, H.P. in Claim Petition No. 88-G/2010/13 shall stand modified to the extent as held above. 35. The appeal shall stand disposed of accordingly so also the pending miscellaneous application(s), if any. 36. Records be sent back forthwith. (Satyen Vaidya) Judge 23rd July, 2025. (jai)