2025:HHC:43456 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.531 of 2016 Reserved on: 05.12.2025 Decided on: 12.12.2025 Oriental Insurance Company Limited ...Appellant Versus Shanti Devi and others ...Respondents Coram The Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Ashwani K. Sharma, Senior Advocate with Mr.Ishan Sharma, Advocate. For the respondents: Mr. Virender Singh Kanwar, Advocate for respondents No.1 to 6. Respondent No.7 stands deleted vide order dated 22.06.2017. None for respondents No.8 & 9. Jiya Lal Bhardwaj, Judge The appellant-Insurance Company feeling aggrieved by the award dated 28.06.2016, passed by the Motor Accident Claims Tribunal, Shimla in MAC Case No.108-S/2 of 2013, titled, Shanti Devi and others vs. Amar Jit Singh and others, whereby the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:43456 Tribunal below has awarded a sum of Rs.21,44,600/- along with interest @ 9% per annum from the date of petition in favour of respondents No.1 to 7/claimants to be paid by the appellant- Insurance Company, has preferred the instant appeal. 2. The key facts necessary for adjudication of dispute in the present appeal are that respondents No.1 and 4 being widows, respondents No.2, 3 and 6 being sons, respondent No.5 being daughter and respondent No.7 being father, had preferred the claim petition under Section 166 of the Motor Vehicles Act, 1988 on account of death of Shri Shyama Nand. Late Shri Shyama Nand had boarded the bus No.HP-51-4774 on 22.08.2013 from Satog to Shimla and when it reached near Hassan valley at about 8.45 a.m., the driver of the bus lost control over the same due to which the bus fell into a deep gorge. The deceased sustained fatal injuries and succumbed to the said injuries. The post-mortem of the deceased was conducted in IGMC, Shimla on 22.08.2013. The cause of accident was alleged to have been attributed to rash and negligent driving of the driver. At the time of death of late Shri Shyama Nand, he was aged about 50 years and was doing the avocation of Mason and earning Rs.21,000/- per month. It was also pleaded that he was also carrying on agriculture and horticulture pursuits and thus earning Rs.4-5 lac per annum. 3 2025:HHC:43456 3. Respondents No.8 and 9 in the present appeal were respondents No. 1 and 2 in the claim petition. They filed their separate replies and admitted the accident. Respondent No.8 had specifically pleaded in the reply that at the time of accident, the vehicle was being driven by respondent No.9, Shri Rajinder Kumar, owner of the vehicle, which met with an accident. Respondent No.9 in his reply pleaded that he is the owner of the bus and driving the same at the time of accident. However, he pleaded that the accident took place due to mechanical fault occurred in the vehicle. The bus was insured with the appellant-Insurance Company. 4. The appellant-Insurance Company filed separate reply to the claim petition and took preliminary objections regarding maintainability of the claim petition. It was specifically pleaded that the insured had made breach of terms and conditions of the insurance policy and respondent No.8-driver was not holding the genuine and valid driving licence to drive the vehicle in question. 5. The Tribunal below on the basis of the pleadings framed the issues in the claim petition and after recording the evidence led by the parties, allowed the claim petition, thereby awarding a sum of Rs.21,44,600/- in favour of respondents No.1 to 7 along with interest @ 9% per annum from the date of petition till its payment. It was held that since the vehicle was insured with the 4 2025:HHC:43456 appellant-Insurance Company, the ultimate liability to pay the amount of compensation along with up-to-date interest is on the appellant-Insurance Company. 6. The appellant-Insurance Company has filed the present appeal on the ground that since driver/respondent No.1/respondent No.8 herein was not holding the valid driving licence, the Tribunal below has erred to fasten the liability upon it. Further, it has been pleaded that since the claimants have failed to prove that the monthly income of deceased from the avocation of Mason was Rs.15,000/- per month, the Tribunal below has wrongly awarded an exorbitant amount. Not only this, it has been pleaded that the Tribunal below has erred while taking the incremental increase of 15% on the income of the deceased in the absence of material adduced on record and that too when he was nearly 50 years of age. 7. Learned senior counsel representing the appellant- Insurance Company has vehemently argued that the award under challenge is not sustainable. Since the driver was not holding the valid and effective licence, the liability has wrongly been fastened upon the appellant-Insurance Company. The income of the deceased has wrongly been taken as Rs.15,000/-, which has not been proved, since there is no documentary evidence. Increase of 5 2025:HHC:43456 15% on the income of the deceased has also wrongly been taken. Since the deceased was 50 years old, only 10% increase ought to have been taken. 8. On the other hand, the learned counsel representing respondents No.1 to 7/claimants has supported the award under challenge and contended that the award passed by the Tribunal below is just and reasonable and does not call for any interference by this Court. 9. I have heard the learned counsel for the parties and perused the record carefully. 10. First of all, the issue regarding the licence is being taken up. Mr. Ashwani K. Sharma, learned Senior Advocate duly assisted with the able assistance of Mr. Ishan Sharma, learned Advocate vehemently argued that the driver at the time of accident was not holding the valid and effective licence. At this juncture, it is relevant to mention that the appellant-Insurance-Company has not led any evidence to prove that respondent No.9 namely Rajender Kumar who was driving the bus at the time of accident was not holding a valid licence. The Tribunal below vide order dated 18.12.2025 had allowed the application filed under Order 11 Rule 12 and 14 read with Section 151 CPC by the appellant-Insurance Company for production of the documents. The documents were 6 2025:HHC:43456 placed on record by the learned counsel representing respondent No.9 being the owner of the vehicle i.e. copy of insurance certificate, technical report of the bus No.HP-51-4774 and his licence. Respondent No.9/owner of the vehicle has placed on record his licence which is exhibited as Ext.RW-1/B (page 80 of the record). Since there was consistent stand of the owner and the driver that at the time of accident, it was the owner who was driving the vehicle and his licence has been proved on record as Ext.RW-1/B, the finding returned by the Tribunal below that the driver was holding the valid licence cannot be faulted. Despite the opportunity having been availed by the appellant-Insurance Company, no evidence has been led by it to prove that the driver was not holding a valid and effective licence. It is settled law that it is for the Insurance- Company to prove that the driver at the time of accident was not holding a valid and effective licence. However, in the present case, no evidence has been led by the insurance company to substantiate this aspect, therefore, the findings returned by the Tribunal below do not warrant for any interference by this Court. 11. Now comes the question regarding award of compensation. There is no dispute that the deceased at the time of accident was working as Mason. It is also not in dispute that there is no documentary evidence regarding the income of the deceased, 7 2025:HHC:43456 but at the same time, no suggestion has been put to claimant namely, Smt. Shanti Devi, who appeared as PW-3 and led evidence by way of an affidavit. In affidavit, exhibit PW-3/A, she had stated that the deceased was earning Rs.21,000/- from the masonry work and further Rs.4-5 lac from orchard and agricultural work. 11. It is settled law that when a party raises a doubt regarding the correctness of the statement of a witness, the said witness must be given an opportunity to explain and if a suggestion is not put to a witness while cross-examining, the part of the statement made in examination-in-chief has to be believed and cannot be ignored. As already noticed above, the deceased at the time of death was working as Mason, which fact has not been disputed by the Insurance-Company, since no suggestion has been given to PW-3 in the cross-examination. Not only this, even there is no suggestion with respect to the income of the deceased who was earning Rs.21,000/- per month. 12. The Hon’ble Supreme Court in Laxmibai (dead) through LRs and another vs. Bhagwantbuva (dead) through LRs and others (2013) 4 SCC 97 has held that when there is no cross-examination on a particular point, the said part of the statement has to be considered while adjudicating the matter. The relevant para 40 of the judgment is reproduced as under:- 8 2025:HHC:43456 “40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information, tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See Khem Chand v. State of H.P, State of U.P. v. Nahar Singh, Rajinder Pershad v. Darshana Devi and Sunil Kumar v. State of Rajasthan.)” 9 2025:HHC:43456 13. The Hon’ble Supreme Court in Chandra alias Chanda alias Chandraram and another vs. Mukesh Kumar Yadav and others, (2022) 1 SCC 198 has held that when there is no documentary evidence regarding the income of the deceased, some amount of guesswork is required to be done, however the same should not be totally detached from reality. The relevant portion of the judgment reads as under: “9. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs.15000/ per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. Though the wife of the deceased has categorically deposed as AW1 that her husband Shivpal was earning Rs.15000/ per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify 10 2025:HHC:43456 adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs.15000/ per month.” 14. The Hon’ble Supreme Court in Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 took the income of a ‘Coolie’ at Rs.4500/- per month in the year 2004. In the present case, the deceased was working as a Mason and the accident had occurred on 22.08.2013. 15. Learned senior counsel representing the appellant- Insurance Company has brought to the notice of the Court that as per Labour and Employment Department notification dated 26.09.2012, the daily income of highly skilled worker has been notified as Rs.242.22/- and thus the daily income of the deceased, if any, being highly skilled can be taken as Rs.242.22/- and Rs.7267.00/- per month. This Court is not persuaded to agree with the submission of the learned senior counsel for the simple reason that once the Hon’ble Supreme Court in Ramachandrappa case (supra) had taken the income of a ‘Coolie’ at Rs.4500/- per month in an accident occurred in the year 2004. Therefore, in the present 11 2025:HHC:43456 case, the income of a Mason can safely be taken as Rs.15,000/- per month. 16. The Hon’ble Supreme Court in Civil Appeal No.6194 of 2022, titled, Rajani and others versus The Oriental Insurance Company Limited and others has upheld the income of Rs.12,000/- taken by the Tribunal of the pineapple cultivator, who died in an accident on 1st October, 2015. In the present case, the deceased was working as a Mason and the accident is dated 22.08.2013. Thus, the income of the deceased having been assessed as Rs.15,000/- per month cannot be faulted with and the award passed by the Tribunal is just and reasonable. 17. The Hon’ble Supreme Court in Chandra alias Chanda alias Chandaram (supra) has held that the Court has to take judicial notice of the fact of the statement made by a witness regarding income, even if there is no documentary evidence. In the present case, as already discussed above, one of the claimants while appearing as PW-3 has deposed on oath by leading evidence by way of affidavit that the deceased was earning Rs.21,000/- per month as Mason and thus, there is no illegality or infirmity having been committed by the Tribunal below while taking the income of the deceased as Rs.15,000/- per month. 12 2025:HHC:43456 18. The Hon’ble Supreme Court in Suresh Jatav vs. Sukhendra Singh and others, 2025 SCC Online SC 1432 after considering the judgment in Ramachandrappa’s case (supra), has held that incremental increase of an unskilled worker’s income can be assessed at Rs.500/- per year from 2004 and thus held that even an unskilled worker would earn Rs.10,000/- per month in the year 2008. Admittedly in the present case, the accident had occurred on 22.08.2013 and the deceased at the time of accident was working as Mason and thus the income of the deceased having been taken as Rs.15,000/- per month does not require any interference. 19. The Tribunal below while assessing the compensation has made a deduction of 1/3rd amount from the monthly income of the deceased on account of his personal expenses, whereas, as per judgment of the Hon’ble Supreme Court in Sarla Verma and others Versus Delhi Transport Corporation and another (2009) 6 SCC 121, it has been held that if the claimants are more than six, only 1/5th deduction has to be made towards personal and living expenses of the deceased. This judgment has been considered by the Constitution Bench in National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 confirming the view taken in Sarla Verma case (supra). In the present case, the Tribunal below has made deduction of 1/3rd, 13 2025:HHC:43456 whereas it ought to have been 1/5th only, since the claimants have not preferred any appeal against said part of the award passed by the Tribunal below, I do not find any reason to exercise powers vested in this Court under Order 41 Rule 33 of the Code of Civil Procedure. 20. The Tribunal below has awarded an amount of Rs.1,00,000/- under the heads of “loss of estate” and “loss of love and affection” and Rs.1,00,000/- towards “loss of consortium” to claimants 1 and 4 being the wives of late Shri Shyama Nand and further Rs.50,000/- has been awarded towards funeral expenses. The Hon’ble Supreme Court in Magma General Insurance Company Ltd. versus Nanu Ram alias Chuhru Ram and others (2018) 18 SCC 130, has held that the claimants being spouse, children and parents are entitled to consortium. However, in the present case, since the Tribunal below has awarded Rs.1,00,000/- each towards “loss of estate” and “loss of love and affection” and Rs.50,000/- towards “funeral expenses”, this Court is not inclined to disturb the award on these counts. 21. No other points have been raised and argued by the learned counsel for the parties. 22. In view of the above discussion, I do not find any merit in the appeal and the same is accordingly dismissed. 14 2025:HHC:43456 Pending applications, if any, also stand disposed of accordingly. No order as to costs. ( Jiya Lal Bhardwaj ) December 12, 2025 Judge (naveen)