1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 297 of 2018. Reserved on: 22 nd November, 2025. Decided on : 9 th December, 2025. National Insurance Company Ltd. .... Appellant Versus Smt. Pooja Chopra & Ors. ....Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Jagdish Thakur, Advocate. For the respondents: Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate, for respondents No.1 and 2. None for respondents No. 3 and 4. Satyen Vaidya, Judge By way of instant appeal under Section 173 of the Motor Vehicles Act (for short “the Act”), the appellant/insurer has assailed award dated 20.02.2018 passed by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, District Kangra, H.P., in Claim Petition No. 20-D/II/2017/07. 2. The claim petition was 9led by respondents No.1 and 2 (hereinafter referred to as “Claimants”) along with two others (father and mother of the deceased), who died during the pendency of the same. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 3. Compensation was sought under Section 166 of the Act on account of death of Rakesh Kumar Chopra in a motor vehicle accident involving Truck No. PB-10BP-6933. It was alleged that on 18.09.2006, the deceased Rakesh Kumar was riding his motorcycle on way from Pathankot to his home. It was further alleged that at place near Hill Top Temple Damtal, the deceased was following truck bearing No. PB-10BP-6933, which was being driven by respondent No.3 herein (hereinafter referred to as “driver”). As per the claimants, the driver of the truck without any signal abruptly applied the brakes and as a result thereof, the deceased with his motorcycle struck against the truck resulting in fatal injuries to the deceased. 4. The deceased was stated to be running a transport business under the name and style of “Jai Maa Sukrala Transport Company” as its sole proprietor. His monthly income was alleged to be Rs.25,000/- per month. The age of the deceased was stated to be 31 years. 5. The cause of accident was attributed to the rash and negligent driving of the driver of the truck. 6. The truck was owned by respondent No.4 and insured with the appellant-insurer at the time of accident. 7. FIR No. 304/2006 was registered at Police Station Nurpur on 18.09.2006. As per the contents of the FIR, the accident had taken place due to rash and negligent riding of the deceased himself. 3 8. The driver and owner, though 9led their separate replies, but their stand was identical. It was stated that the truck was stationary as it had been parked on the side of the road due to mechanical fault. As per the driver of the truck, parking lights were on and su?cient indications were provided to the road users regarding immobility of the truck. As per the driver, he had left the site to get a mechanic and the conductor of the truck was at a temple near the place of accident. In this manner, the allegation of rash and negligent driving against the driver was contested. 9. The appellant/insurer, in its reply, followed the stand of owner and driver that the accident had taken place due to rash and negligent riding of the deceased. Objections were also raised as to the violation of the terms and conditions of the policy of insurance. It was alleged that the driver was not holding a valid driving licence and the vehicle was being plied without any valid registration certi9cate, route permit, 9tness certi9cate etc. 10. Learned Tribunal had framed the following issues:- “1) Whether respondent No.1 drove vehicle bearing No. PB- 10BP-6933 rashly and negligently on 18.09.2006 and caused death of Rakesh Kumar Chopra?OPP. 2) If issue No.1 is proved, to what compensation the petitioners are entitled and from whom?...OPP 3) Whether deceased Rakesh Kumar Chopra on account of his own negligence su.ered injuries and died?OPR-1 4) Whether respondent No.1 was not holding valid and e.ective driving licence at the time of accident? OPR-3 4 5) Whether petition is bad for non joinder of the necessary parties? OPR-3. 6) Whether o.ending vehicle was without valid registration certi2cate, 2tness certi2cate and route permit? OPR-3. 7) Relief.” 11. Issue No.1 and 2 were answered in a?rmative, whereas, all other issues were answered in negative. The claim petition of the claimants was allowed by granting compensation to the tune of Rs.11,45,200/- along with interest @ 8% per annum from the date of 9ling of petition till realization. 12. I have heard learned counsel for the parties and have also gone through the entire record carefully. 13. Learned counsel for the appellant/insurer has challenged the impugned award on the grounds, 9rstly, that the appellant/insurer was not liable to indemnify the insured as breach of policy had been proved; secondly, the allegation of rash and negligent driving against the driver of truck had not been proved and lastly, quantum of compensation assessed by the learned Tribunal was excessive. 14. It has been contended that the truck was registered in the State of Punjab and the accident had taken place in Himachal Pradesh. The truck could not have been plied in the State of Himachal Pradesh without valid route permit. Since, the owner or driver had failed to produce the route permit, the liability could not have been fastened upon the appellant- insurer. Learned counsel has placed reliance on the judgment passed by 5 the Hon’ble Supreme Court in Amrit Paul Singh & Anr. vs. Tata AIG General Insurance Company Ltd. & Ors., (2018)7 SCC 558 to urge that the plying of a commercial vehicle without valid permit has been held to be fundamental breach of the policy and the onus was on the owner to produce the permit authorizing the truck to ply in the State of Himachal Pradesh. 15. In Amrit Paul Singh (supra), Hon’ble Supreme Court had upheld the view taken by the High Court that the owner of the vehicle had failed to prove the existence of permit on the date of accident or submission of an application for such purpose. In that context, the Hon’ble Supreme Court had observed that the existence of a permit of any nature is a matter of documentary evidence and since the owner had not brought on record any permit of the vehicle, in such situation, the onus could not be placed on the insurer. 16. Looking at the facts of Amrit Paul Singh (supra), it had come in evidence that an application for issue of route permit, though, had been 9led, but it was not established that the application had been submitted before the date of accident. In the instant case, the fact situation is diHerent. Here there was absolutely no evidence before the learned Tribunal on the aspect of existence of route permit of the oHending truck, the burden to prove the violation of terms and conditions of the policy was indisputably on the insurer. Except for the objection raised in the reply, the insurer had not led any legal evidence to discharge the initial onus because 6 the burden was to be discharged by the insurer. The counsel representing the insurer before the learned Tribunal had tendered a copy of veri9cation report of permit of the oHending truck as Mark R-1 and letter of Investigator, appointed by the insurer as Mark R-2. The copy of policy of insurance was tendered as Ex. Rx. Mere tendering of aforesaid documents was not su?cient to prove their contents. Neither the investigator, who allegedly had investigated on behalf of the insurer was examined nor the record of Secretary, Regional Transport Authority, Patiala, Punjab, from where the report was allegedly procured, was produced to prove the contents of the report. In such circumstances, the insurer had failed to discharge its initial onus and for such reason, it cannot now succeed to avoid the liability to pay compensation by indemnifying the insured. 17. As regards the question of negligence, the learned Tribunal has held the driver of the truck to be rash and negligent. Claimant No.1 Pooja Chopra had appeared as PW-1 and she had also produced another witness, Mohinder Raj, PW-2 to prove the allegations regarding cause of accident. PW-2 Mohinder Raj, by way of his examination-in-chief in the form of a?davit, had stated that on 18.09.2006 when he was on the way from Damtal to his house after purchasing goods, he had come to know about the accident near Hill Top Temple. He had corroborated the version of the claimants regarding the cause of accident. In the cross-examination he had stated that he had reached the spot after the accident. In FIR Ex.P- 7 1, it was recorded that truck was stationary and the deceased along with his motorcycle had struck against the parked truck. Thus, there were two versions before the learned Tribunal. The owner, driver and insurer had led no evidence whatsoever to prove the contents of the FIR. The author of the FIR was stated to be the priest of the temple situated near the site of accident, but he was not examined as a witness. The fact of the matter is that the owner, driver and insurer had not led any evidence whatsoever on the issue. Learned counsel for the appellant/insurer has placed reliance on the judgments passed by the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Rattani and others, 2009 ACJ 925 and in ICICI Lombard General Insurance Company Ltd. vs. Rajani Sahoo and others, (2025)2 SCC 599 to assert that since claimants themselves had relied upon the FIR, they had no right to deny its contents. 18. The issue was as to whether the accident had taken place on account of rash and negligent driving of the driver of the truck. As a corollary, another issue was whether deceased himself was riding motorcycle rashly and negligently so as to cause the accident. Learned Tribunal had to decide the involved issues on the basis of evidence before it. On one hand, testimony of PW-2 Mohinder Raj was before the learned Tribunal and on the other, were the contents of the FIR. No doubt, the aforesaid in the judgments relied upon by the learned counsel for the appellant-insurer it has been held that when a party relies upon the FIR, its 8 contents cannot be ignored, however, it cannot be understood to have been held in the said judgments that the contents of FIR, in such situation have to be taken as gospel truth. What has been observed in the aforesaid judgment is that in such a fact situation the Court and the Tribunal could advert to the contents of the FIR. As noticed above, in the instant case, there was version of the alleged eye witness before the learned Tribunal in the form of statement of PW-2. Learned Tribunal had formed its opinion on the basis of said statement and, as such, no fault can be found in the approach adopted by the learned Tribunal as the contents of FIR simpliciter, without is formal proof, could not have been taken to be su?cient evidence to override the testimony of PW-2. Admittedly, the author of FIR had not been examined. Even, the Investigating O?cer was not produced as a witness. Taking into consideration the fact situation of the instant case, no fault can be found with the 9ndings rendered by the learned Tribunal on the cause of accident. It cannot be ignored that in accident claim cases under the Motor Vehicles Act, the standard of proof is preponderance of evidence only. 19. Lastly, it has been urged on behalf of the appellant-insurer that the income of the deceased as assessed by the learned Tribunal had no basis and thus, the better course will be to advert to the minimum wages 9xed by the State Government in the year 2006 when the accident had taken place. He has placed reliance on the judgment passed by the 9 Hon’ble Supreme Court in Kirti & Ors. vs. Oriental Insurance Co. Ltd., 2021 ACJ 1. 20. On the scrutiny of the record, it can be said without hesitation that the claimants had failed to prove the occupation/business of the deceased and his income. The claimants had alleged that the deceased was earning Rs.25,000/- per month, but the learned Tribunal has disbelieved such version and had held that the income of the deceased to be Rs.6000/- per month. Learned Tribunal has come to such a conclusion on guess work. 21. No doubt, some amount of guess work is permissible for the Tribunal or the Court in such a situation where the proof of income is not documented, however, for arriving at any such hypothesis, realistic parameters have to be taken into consideration. The approach adopted by the learned Tribunal in the instant case does not appear to be based on any realistic parameter. In this situation, the minimum wages 9xed under the Minimum Wages Act by the State Government could be one of the indicators. Though, the parties have not placed on record any evidence to suggest the minimum wages 9xed in the year 2006, yet this Court has found that in the year 2008 the daily wage of an unskilled worker was Rs.100/-, of skilled worker was Rs.120/- and of highly skilled worker, it was Rs.161/- per day. It has nowhere been established that the deceased was an unskilled worker. The evidence suggests that he was owner of a motor 10 cycle and the fact that he was commuting on the motorcycle can be used to infer that the deceased was able to earn enough to support himself, his conveyance and family. It cannot be ignored that at the time of death of the deceased, he was supporting four persons for livelihood which included present claimants and his father and mother, who have died subsequently. Even otherwise, it can be considered that the minimum wages are 9xed for 9xed hours and a self-employed person always tend to work overtime to earn more. The deceased was 31 years old at the time of death and there cannot be any question mark on his working capacity. In such circumstances, to equate him with an unskilled worker will not be justi9ed. 22. In the year 2008, the minimum wages of a highly skilled worker were Rs.161/- per day. Though, there is no evidence to suggest the corresponding wages in the year 2006, but can safely be assumed that the wages of highly skilled worker in the year 2006, will not be less than Rs.150/- per day. By that analogy, the income of the deceased would be taken at Rs.4500/- per month. By making an addition of 40% on account of loss of future prospects, the monthly wages of the deceased can be assessed at Rs.6300/-. 23. Learned Tribunal has deducted 1/3rd of the income of the deceased towards his personal expenses whereas it should have been 1/4th in terms of the Constitutional Bench judgment in National Insurance 11 Company Ltd. vs. Pranay Sethi & Ors., (2017) 16 SCC 680. At the time of death of deceased, he had four dependents who had 9led the claim petition. The fact that two of the dependents have subsequently died, will not make any change because the dependency on the date of death is to be seen for this purpose. Thus, by taking 1/4th from the monthly income of the deceased, the monthly dependency would be Rs. 4725/-. The applicable multiplier would be of 16. Thus, the total loss of dependency would be Rs.4725x12x16=Rs. 9,07,200/-. 24. In addition to above, both the claimants will be entitled to Rs.40,000/- each on account of “loss of consortium”, whereas the learned Tribunal has awarded it to claimant No.1 only. Reference in this regard can be made to the decision of the Hon’ble Supreme Court in Magma General Insurance Company Ltd. vs. Nanu Ram & Ors., (2018) 18 SCC 130. The claimant was also entitled to Rs.15,000/- each under the heads “loss of estate” and “funeral charges”. In terms of decision of the Hon’ble Supreme Court in Pranay Sethi (supra), addition of 10% on the amount of compensation awarded under the conventional heads, after every three years is also to be added. 25. In light of above discussion, the claimants shall be entitled to compensation as under:- 1. Compensation on account of loss of dependency Rs.09,07,200/- 2. Compensation on account of loss of Rs. 80,000/- 12 consortium 3. Compensation on account of loss of estate Rs.15,000/- 4. Compensation on account of funeral charges Rs.15,000/- 5. Enhancement @ 10% after every three years Rs.11,000/- Total: Rs.10,28,200/- (Rs. Ten Lakh, twenty eight thousand and two hundred only. 26. The aforesaid compensation amount will carry interest @ 8% per annum from the date of 9ling of petition till actual realization as awarded by the learned Tribunal. 27. The compensation shall be apportioned in equal proportion between both the claimants. 28. The appeal is accordingly disposed of and the impugned award dated 20.02.2018 passed by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, District Kangra, H.P., in Claim Petition No. 20-D/II/2017/07 shall stand modi9ed to the extent as held above. 29. Pending miscellaneous application(s), if any, also stand disposed of. 30. Records be sent back forthwith. (Satyen Vaidya) 9th December, 2025 Judge (jai)