UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 170/1999
SUDESH RANI AND ORS. ..... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
KESAR SINGH AND ORS. ..... Respondents
Through: Mr. M.M. Kalra and Mr. Kunal
Kalra, Advocates for the
respondent No.3
+ FAO 164/1999
NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. M.M. Kalra, Advocate
versus
SUDESH RANI & ORS ..... Respondents
Through: Mr. Navneet Goyal, Advocate
for the claimants
% Date of Decision : February 04, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
J U D G M E N T (ORAL)
FAO Nos.170/1999 and 164/1999 Page 1 of 16
: REVA KHETRAPAL, J.
CM No.2486/2011 in FAO 164/1999 This is an application praying for restoration of the appeal. In view of the ground given in the application, the appeal is restored to its original number.
The application stands disposed of.
FAO 170/1999 and FAO 164/1999
1. By this judgment it is proposed to decide two appeals, being FAO No.170/1999 entitled "Sudesh Rani and Others vs. Kesar Singh and Ors." and FAO No.164/1999 entitled "New India Assurance Co. Ltd. vs. Sudesh Rani & Ors.". The first of these two appeals has been filed by the claimants seeking enhancement of the award amount, while the second appeal has been filed by the Insurance Company praying for the setting aside of the judgment and award dated 02.12.1998 on the ground that the insured having committed breach of the policy conditions, the insurer was not liable to pay compensation to the claimants. It is proposed to deal with the said appeals one by one.
FAO Nos.170/1999 and 164/1999 Page 2 of 16
FAO No.170/1999 entitled "Sudesh Rani & Ors. vs. Kesar Singh & Ors."
2. The facts may be narrated as follows. On the fateful day, that is, on 10.06.1991, the deceased Trilok Nath was going to his shop at about 10.40 p.m. on scooter No.DLY-6516 when he was hit by a truck bearing No.DEL-5097. The accident was witnessed by Shri Mohd. Khalil, who was produced as PW4 in the witness box to depose about the manner in which the accident occurred. On the basis of the testimony of this witness, the Claims Tribunal held that the accident was the outcome of contributory negligence of the truck driver and the deceased scooter driver in the ratio of 50% each.
3. On the aspect of quantum of compensation, the Claims Tribunal, after noting that the appellants had claimed a sum of ` 10 lakh as compensation and that the deceased Trilok Nath was earning ` 4,000/- per month as per his income-tax returns filed on record, deducted one-third of the earnings of the deceased for his personal expenses, transportation, etc. and assessed the monthly loss to the family to be in the sum of ` 2,660/- per month, that is, ` 31,920/- per FAO Nos.170/1999 and 164/1999 Page 3 of 16 annum. The deceased being 51 years of age at the time of the death, the Tribunal adjudged the multiplier of 10 to be the appropriate multiplier and thus calculated the compensation payable to the appellants to be in the sum of ` 3,19,200/- [` 2,660/- x 12 x 10]. The Tribunal then held that since the driver of the offending truck had been negligent to the extent of 50% only and the remaining 50% negligence was on the part of the deceased, only half of the award amount was payable by the Insurance Company to the legal representatives of the deceased. An award of ` 1,59,600/- (Rupees One Lakh Fifty Nine Thousand and Six Hundred Only) [including interim compensation] with interest at the rate of 12% per annum was thus passed in favour of the claimants and against the Insurance Company.
4. The contention of Mr. Navneet Goyal, the learned counsel for the appellants is that the Claims Tribunal erred in holding that the scooterist was guilty of contributory negligence to the extent of 50% and scaling down the award amount accordingly. Mr. Goyal contended that the learned Tribunal altogether ignored the evidence of FAO Nos.170/1999 and 164/1999 Page 4 of 16 eye-witness PW4 Mohd. Khalil that the truck was being driven in a rash and negligent manner and at a very fast speed and after hitting the scooterist the truck stopped after 50 feet. Mr. Goyal also contended that the driver of the truck not having appeared in the witness box to depose about the manner in which the accident occurred, in any case, adverse inference ought to have been drawn against him by the Claims Tribunal.
5. The next contention of Mr. Goyal is that the deduction of one- third made by the Claims Tribunal towards the personal expenses of the deceased was unwarranted and that the deduction keeping in view the fact that the deceased was survived by four legal heirs should not have been more than 1/4th of the income of the deceased. He further contended that the Claims Tribunal erred in taking the multiplier of 10 for the purpose of augmenting the multiplicand and thus erroneously computed the loss of dependency of the appellants. The appropriate multiplier, he submitted, keeping in view the fact that the deceased was admittedly 51 years of age on the date of the accident, would be the multiplier of 11.
FAO Nos.170/1999 and 164/1999 Page 5 of 16
6. Needless to state that the aforesaid contentions of Mr. Goyal with regard to the inadequate amount of compensation awarded to the appellants were sought to be countered by Mr. M.M. Kalra, the learned counsel for the Insurance Company, who sought to support the award of the learned Tribunal insofar as the assessment of the amount of compensation was concerned.
7. A look first at the evidence of the eye-witness to the accident PW4 Mohd. Khalil, but before doing so it may be noted that in the claim petition the manner in which the accident occurred is set out as under:
"On 10.6.91 the deceased was going to his shop at about 10.40 P.M. on his Scooter No.DLY6516 while overtaking the Truck No.DEL 5097, the truck turned to its right, without blowing horn and without any indication, driving negligently and rashly, crushing the deceased."
8. PW4 Shri Mohd. Khalil, in his examination-in-chief, deposed that he saw truck No.DEL-5097 coming from Hauz Khazi and going towards Lal Qila. The deceased scooterist was going on a scooter in the same direction. The truck was coming at a fast speed negligently FAO Nos.170/1999 and 164/1999 Page 6 of 16 and while overtaking, the deceased was hit by the truck. After hitting the scooterist, the truck stopped at a distance of 50 feet. The scooterist fell down and sustained injuries. In his cross-examination, the testimony of this witness remained unshaken and the witness categorically denied the suggestion put to him that the accident had not taken place due to the negligence of the truck driver and had taken place due to the negligence of the scooter driver.
9. The learned Claims Tribunal, however, relying upon the clarification issued by the witness in his cross-examination that the scooterist was in the process of overtaking the truck when the accident took place, held that since the scooterist must have been driving at a faster pace than the truck for the purpose of overtaking the truck, he must be held to be equally liable for the accident which resulted in the fatality. I am not inclined to agree with the aforesaid finding of the learned Tribunal with regard to the manner in which the accident occurred for the following reasons.
10. A bare glance at the site plan, which has not at all been taken into account by the learned Tribunal, shows that the truck was taking FAO Nos.170/1999 and 164/1999 Page 7 of 16 a turn towards the right and in the process it hit the scooterist which was overtaking the truck from the right side. A distance of 50 feet has been shown in the site plan between the place of the accident and the place where the truck eventually stopped after the accident, which is a clear pointer to the fact that the driver of the truck was taking a right turn without giving any horn or signal for the same. It was for the driver of the truck to have appeared in the witness box to explain as to how the truck stopped at a distance of 50 feet after taking a turn to the right. The driver of the truck has chosen not to explain the manner in which the accident occurred either by filing a written statement or by appearing in the witness box and as such, in my view, adverse inference must be drawn against him. The mere fact that the scooterist was in the process of overtaking the truck when the accident occurred cannot by itself be taken to mean that the scooterist was driving the scooter in a rash and negligent manner. The deceased scooterist was overtaking from the right side of the truck and possibly had no inkling that the truck would suddenly take a turn towards its right without any signal or indication. The necessary corollary is that FAO Nos.170/1999 and 164/1999 Page 8 of 16 the accident must be held to be the outcome of the rash and negligent driving of the driver of the truck alone, who was wholly and solely responsible for the death of the driver of the scooter.
11. Adverting now to the other two contentions of the learned counsel for the appellants viz., that the Tribunal ought to have deducted only one-fourth of the income of the deceased for his personal expenses keeping in view the fact that the deceased was survived by four legal representatives and that the appropriate multiplier in the instant case would be the multiplier of 11 instead of the multiplier of 10 adopted by the Tribunal, I am inclined to agree with both the aforesaid contentions. In Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, the Hon'ble Supreme Court has laid down certain criteria and guidelines to be followed by all Courts and Tribunals in the assessment of compensation to the legal representatives of deceased victims. In paragraph 14 of its decision in the said case, the Supreme Court has expressed the view that where the deceased is married and the number of dependent family members is four to six, the deduction towards FAO Nos.170/1999 and 164/1999 Page 9 of 16 personal and living expenses of the deceased should be one-fourth of the income of the deceased. As regards the multiplier to be adopted by the Courts for capitalizing the multiplicand constituting the loss of dependency of the legal representatives of the deceased victim, for the age group of victims between 51 to 55 years of age, the appropriate multiplier in the said case has been held to be the multiplier of 11. Even otherwise, this multiplier is in consonance with the judgment of the Supreme Court rendered in the case of UP State Road Transport Corporation vs. Trilok Chandra, (1996) 4 SCC 362, as approved in the case of New India Assurance Co. Ltd. vs. Charlie, AIR 2005 SC 2157, and is also in consonance with the multiplier specified in the Second Column in the table in the Second Schedule to the Motor Vehicles Act.
12. Thus, following the aforesaid guidelines laid down in the case of Sarla Verma (supra), the compensation payable to the appellants comes to ` 48,000/- (annual income as adjudged by the Tribunal) minus ` 12,000/- (1/4th deduction towards the personal and living expenses of the deceased) multiplied by 11 (number of years of FAO Nos.170/1999 and 164/1999 Page 10 of 16 purchase) = ` 3,96,000/-. Since the accident was the result of the rash and negligent driving of the driver of the truck and, as noticed above, there was no contributory negligence on the part of the deceased, the Insurance Company is held liable to pay the entire amount of compensation to the appellants alongwith the interest accrued thereon. The judgment and award of the Tribunal stand modified accordingly.
13. Resultantly, the appeal is allowed in the above terms. FAO No.164/1999 entitled "New India Assurance Co. Ltd. vs. Sudesh Rani & Ors."
14. Adverting now to the appeal of the Insurance Company, the sole contention of the learned counsel for the Insurance Company is that the findings rendered by the Claims Tribunal on Additional Issue No.3A are liable to be set aside. The said issue reads as under:
"Whether the respondent No.3 is not liable to pay any compensation as the respondent No.1 was not holding any valid licence at the time of the accident? (OPR 3)"
15. In support of its plea that Kesar Singh, the driver of the truck did not have a valid driving licence on the date of the accident and so the Insurance Company is not liable to make the payment of FAO Nos.170/1999 and 164/1999 Page 11 of 16 compensation to the claimants, the Insurance Company examined in the witness box RW1 B.A. Noni, Assistant, New India Assurance Company, who deposed that the Company had got verified the driving licence of the driver Kesar Singh from the Transport Authority, Bhopal and that the original report dated 15.07.1994 along with copy of the driving licence bearing No.K-21A61 dated 17.09.1990 was Ex.RW1/6 and Ex.RW1/7. He further deposed that the report of the surveyor/investigator Mr. Bharat Saxena, Advocate was Ex.RW1/8 and the covering letter of the Company was Ex.RW1/9.
16. The Claims Tribunal after noting that the licence was renewed upto 17.09.1990 and again renewed upto 16.09.1993 vide endorsement Ex.RW1/7 and that the policy of insurance Ex.PW1/1 carried an endorsement about the valid licence of the driver (Para 'B'), held as follows:
"So, in my opinion, if the licence has been found forged by the insurance company after verification, the liability of the insurance company is still there because the owner did not know this fact that the licence of the driver is not genuine one and he was not required to FAO Nos.170/1999 and 164/1999 Page 12 of 16 make enquiries from the licencing authority of Bhopal before making appointment of his driver. Only thing which the owner of the truck was required to see for appointment of a driver is a driving licence. The driving licence does not on the face of it look to be a forged one. So, I hold that the Insurance Company is liable to make the payment of the award amount and liability of the insurance is there in this case. The issue is decided against the insurance company."
17. In arriving at the aforesaid conclusion, the learned Claims Tribunal placed reliance upon the following judgments:
(i) Chhotu Lal & Ors. vs. Chameli Bai & Ors., 1977 (1) TAC 106 (Rajasthan).
(ii) Oriental Insurance Company Ltd. vs. Usha, 1997 (1) TAC 82 (Kerala).
(iii) Sukh Dev vs. Bhagwati Devi & Ors., 1996 (1) ShimLC 320 (Himachal Pradesh).
(iv) Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan, 1987 ACJ 411 (Supreme Court).
(v) V. Mepherson vs. Shiv Charan Singh, 1998 ACJ 601 (Delhi High Court).FAO Nos.170/1999 and 164/1999 Page 13 of 16
(vi) Sohan Lal Passi vs. P. Sesh Reddy and Ors., 1996 ACJ 1044 (Supreme Court).
18. I find that the common thread running through all these judgments rendered by the Hon'ble Supreme Court and various High Courts is that it must be established by the insurer by placing adequate material on record that it was the insured who had wilfully violated the condition of the policy with regard to driving licence, by allowing a person not duly licensed to drive the vehicle when the accident took place, to enable the Tribunals and Courts to mulct the liability on the insured. Further, as highlighted in the case of Sohan Lal Passi (supra), the right to claim compensation by the heirs and legal representatives of the victims of the accident ought not to be defeated on technical grounds. Thus, in cases where the insured placed the vehicle in charge of a licensed driver, he cannot be said to be guilty of any breach disentitling him to get the compensation amount from the Insurance Company.
19. In a subsequent decision rendered by a three-Judge Bench of the Supreme Court in the case of National Insurance Co. Ltd. vs. FAO Nos.170/1999 and 164/1999 Page 14 of 16 Swaran Singh & Ors., I (2004) ACC 1, the Hon'ble Supreme Court made the following apposite observations in the context of the insured-owner not being guilty of breach of the insurance policy where ex facie the driving licence of the driver engaged by him appears to be a genuine one:
"(iii) The breach of policy condition, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub- section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time,
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish „breach‟ on the part of the owner of the vehicle; the burden of proof where for would be on them."FAO Nos.170/1999 and 164/1999 Page 15 of 16
20. In view of the aforesaid law laid down by the Supreme Court, I have not the least bit of hesitation in upholding the findings of the learned Claims Tribunal on Issue No.3A. There is no material on record to suggest that the insured was aware of the fact that the driving licence of his driver was a forged one (even assuming the same to be forged in the absence of the evidence of the Transport Authority as well as in the absence of the evidence of the surveyor/investigator appointed by the Insurance Company). This being so, the appellant cannot escape the liability to make payment of the award amount to the claimants on the pretext of forged driving licence. As such, there is no merit in the present appeal.
21. To conclude, the appeal of the claimants is partly allowed and the appeal of the Insurance Company is dismissed.
REVA KHETRAPAL (JUDGE) February 04, 2011 km FAO Nos.170/1999 and 164/1999 Page 16 of 16