REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 125/1996 and CM No.3480/1996
ANGOORA DEVI & ORS. ..... Appellants
Through: Ms. Manjit Chawla, Advocate
versus
MAHESH YADAV & ORS. ..... Respondents
Through: Mr. Prag Chawla and
Mr. Saurabh Shokeer,
Advocate for the respondent
No.1
Mr. D.K.Sharma, Advocate for
the respondent No.3.
% Date of Decision : October 03, 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?
JUDGMENT
: REVA KHETRAPAL, J.
1. This appeal is directed against the judgment and award of the Motor Accidents Claims Tribunal, Delhi dated 16.01.1996 passed in Suit No.445/87.
FAO 125/1996 Page 1 of 20
2. The factual matrix is that on 15.10.1987, one Ram Saran, aged 43 years, a carpenter by vocation, was travelling in bus No.DEP 6068 owned by the respondent No.1 and driven by the respondent No.2. While he was alighting from the said bus, and his one foot was on the foot board and the other on the road, the respondent No.2 - driver all of a sudden started the bus, and the deceased fell down and came under the front wheel of the bus, sustaining fatal injuries. A Claim Petition was filed by his legal representatives, being his widow, four sons and two daughters, impleading the respondent No.1-owner, the respondent No.2-driver and the respondent No.3-M/s. New India Assurance Co. Ltd., the insurer of the bus in question. The respondent No.1 denied the factum of the accident. The respondent No.2 did not care to contest the petition and was proceeded ex parte in default of appearance. The respondent No.3-Insurance Company took in defence the specific plea that the liability of the Insurance Company was limited to ` 15,000/- only as per the terms and conditions of the policy and the provisions of the Motor Vehicles Act, 1939, the deceased being a passenger and not a third party. FAO 125/1996 Page 2 of 20
3. The Motor Accidents Claims Tribunal held that the accident was the outcome of the rash and negligent driving of the respondent No.2 of the bus owned by the respondent No.1. As regards the plea of the Insurance Company that the deceased was a passenger and hence the liability of the Insurance Company was limited to ` 15,000/- only, the learned Tribunal, relying upon certain decisions, held that the deceased Ram Saran was a passenger as he was alighting at the bus stop, which was his destination. It further held that in view of the fact that a specific plea of limited liability had been raised by the Insurance Company and notice to produce the original policy had been given to the respondent No.1-owner of the bus in question, who had failed to produce the same, the copy of the policy (Ex.RW2/4) produced by the Insurance Company was admissible in evidence, wherein the limit of liability of the Insurance Company was mentioned as ` 15,000/- only.
4. On the aspect of quantum of compensation payable to the legal representatives of the deceased, the learned Tribunal assessed the monthly income of the deceased to be in the sum of ` 1,200/- per FAO 125/1996 Page 3 of 20 month. Thereafter, the learned Tribunal, relying upon the judgment of the Supreme Court in the case of General Manger, Kerala State Road Transport Corporation, Trivandrum vs. Mrs. Susamma Thomas and Ors., 1994 ACJ 1 took into account the future prospects of increase in the income of the deceased and arrived at the average monthly income of the deceased in the sum of ` 2,400/-. From this amount, it deducted one-third (1/3rd) towards the personal expenses of the deceased, thereby assessing the loss of dependency of the claimants to be in the sum of ` 1,600/- per month. Applying the multiplier of 10, it computed the total loss of dependency to be in the sum of ` 1,92,000/- per annum (i.e. ` 1,600/- X 12 X 10). Adding a sum of ` 10,000/- towards the loss of consortium, the Tribunal held the claimants to be entitled to a total sum of ` 2,02,000/- with interest at the rate of 12% per annum from the date of the petition.
5. Aggrieved from the aforesaid judgment of the Tribunal, the present appeal has been preferred by the appellants/claimants. Cross- objections have also been filed by the respondent No.1-owner. The FAO 125/1996 Page 4 of 20 appeal as well as the cross-objections are contested by the respondent No.3-Insurance Company.
6. The first question which arises for consideration in the present case is whether the deceased was a passenger and hence the liability of the appellant, as per the policy of insurance, is a limited one?
7. It is not in dispute that the aforesaid issue has to be decided in the light of the policy of insurance in the name of the respondent No.1, the owner of the offending bus, and the provisions of the Motor Vehicles Act, 1939.
8. The learned counsel for the appellants Ms. Manjit Chawla, has assailed the findings of the learned Tribunal by contending that the deceased ought to have been considered a "third party" in view of the law laid down by this Court in the case of S.M. Rai & Co. and Ors. vs. New India Assurance Co. Ltd. and Ors., 1994 ACJ 1242, wherein it has been held that a person in the process of alighting at the destination ceases to be a passenger. Reliance was also placed by her upon the decision of this Court in the case of Pandit Ram Saroop and Anr. vs. Balbir Singh and Ors., 1988 ACJ 500. FAO 125/1996 Page 5 of 20
9. Mr. Prag Chawla and Mr. Saurabh Shokeer, the learned counsel for the respondent No.1-owner, too, relied upon the aforesaid decisions as well as the decisions rendered in A. Subramani vs. Mani and Ors., 1990 ACJ 37; Giriraj Prasad Agrawal vs. Parwati Devi & Ors., III (2005) ACC 559 Jharkhand (Full Bench); National Insurance Co. Ltd. vs. V.K. Sundaravali and Ors., 1990 ACJ 821; Thoznilalar Transport Company vs. Valliammal and Ors., 1990 ACJ 201, to contend that the learned Tribunal erred in holding that the deceased was a passenger at the time of the accident, and in consequently holding that the liability of the Insurance Company was limited to the extent of ` 15,000/- only.
10. Per contra, the contention of Mr. D.K. Sharma, the learned counsel for the Insurance Company is that the Motor Accidents Claims Tribunal in the impugned order has rightly fixed the liability of the insurer at ` 15,000/- only, as the insured had paid a premium of ` 12/- per passenger as was evident from the copy of the insurance policy Ex.RW2/4, which was proved in evidence by RW2, an official of the Insurance Company.
FAO 125/1996 Page 6 of 20
11. Mr. Sharma contended that the issue as to whether a person alighting from a bus is a passenger or not is squarely covered in favour of the Insurance Company by the decision of the Supreme Court in the case of Noorjahan (TMT) vs. Sultan Rajia (TMT) alias Thaju and Ors., (1997) 1 SCC 6. In the said case, the question which arose for consideration was whether the victim was a „passenger‟ within the meaning of Section 95(1)(b)(ii) of the Act. The plea of the Insurance Company was that the deceased, one Syed Abu Thakir was a passenger in the bus and, therefore, its liability was limited to ` 10,000/- as per the provisions of Section 95 of the Act. The plea of the appellant, on the other hand, was that the victim/deceased was a „third party‟ and hence the Insurance Company was liable to meet the entire claim. The Supreme Court, after interpreting the provisions of Section 95(1) of the Act and observing that there was a divergence of opinion on the question whether the deceased could be said to be a passenger in the bus, held that he was a passenger for whom the liability of the Insurance Company at the relevant time was limited to only ` 10,000/-.
FAO 125/1996 Page 7 of 20
12. It would be useful at this juncture to extract the relevant part of Section 95 of the Act which came to be under consideration in the aforesaid case and which reads as under:-
"95. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) xxx xxx xxx
(b) insures the person or classes of persons
specified in the policy to the extent specified in Sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
Provided that a policy shall not be required-
(i) xxx xxx xxx
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon entering or mounting or alighting from the vehicle at the time of the FAO 125/1996 Page 8 of 20 occurrence of the event out of which a claim arises, or
(iii) xxx xxx xxx"
13. The Supreme Court, after considering the scope and ambit of the provisions of the aforesaid section held as follows:-
"Section 95(1)(b) makes it clear that a policy of insurance shall not be required to cover liability in respect of death or bodily injury to persons boarding or alighting from a motor vehicle but clause (ii) of the proviso thereto engrafts an exception and says that where the vehicle is one in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, it shall be necessary to cover liability in relation to persons carried in or upon such vehicle which would include cases of death or bodily injury caused while entering or mounting or alighting from such vehicle. The words "alighting from the vehicle" are plain and simple and clearly mean "while getting down from the vehicle". Therefore, if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to the coverage, no doubt within the limit of liability fixed under the statute at the relevant point of time. It must be remembered that this was a beneficial provision engrafted by way of an exception to provide an insurance cover to passengers."FAO 125/1996 Page 9 of 20
14. Affirming the view of the High Court that the deceased Syed Abu Thakir was a passenger and not a third party, the Supreme Court in the aforesaid case further observed as under:-
"The High Court rightly interpreted the proviso
(ii) extracted above to mean that the liability in respect of death or injury to persons alighting from the vehicle at the time of the accident need not be covered except where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment. In other words, where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or pursuant to a contract of employment, giving rise to the above liability arising out of an accident, the vehicle has necessarily to be covered. It can be seen that the proviso is an exception to Section 95(1). As per sub-section (b) the insurance policy must insure the persons specified in the policy against (i) any liability to person or property of a third party, and (ii) against death or personal injury to any passenger of a public service vehicle. The liability in respect of those suffering injury while getting into or alighting from the vehicle need not be covered if the vehicle is not one in which the passengers are carried for hire or reward. But as in the present case, the vehicle is one that carries passengers for hire or reward, the liability for personal injury or death caused while getting into or alighting from the vehicle would be required to be covered by the policy. In other words, such FAO 125/1996 Page 10 of 20 people who suffer injury or die while alighting from the vehicle are to be covered by the general rule that the insurance policy for a public service vehicle should cover the liability against the death of or bodily injury to any passenger of such a vehicle."
15. From the above law enunciated by the Supreme Court, it clearly emerges that in view of Section 95(1)(b)(ii) of the Motor Vehicles Act, 1939, a policy of insurance shall be required to cover liability in respect of death of or bodily injury to persons boarding or alighting from a motor vehicle where the vehicle is one that carries passangers for hire or reward. Clause (ii) of the proviso thus engrafts an exception to Section 95(1)(b) and a person covered by the proviso would be entitled to coverage under the policy of insurance, though within the limit of liability fixed under the statute.
16. It may be noted that the aforesaid authoritative pronouncement of the Supreme Court in Noorjahan's case (supra) was subsequently followed by a Division Bench of this Court in the case of Krishan Lal Baweja and Anr. vs. Sudershan and Ors., 2002 ACJ 2037, which is heavily relied upon by the learned counsel for the Insurance Company FAO 125/1996 Page 11 of 20 to buttress his contention that persons entering into or alighting from a passenger vehicle are passengers.
17. I pause here to note the contention of the learned counsel for the appellants that the testimony of RW1 Mahesh Yadav, the owner of the vehicle, goes to show that the liability of the Insurance Company was unlimited. Ms. Chawla pointed out that the said witness in his testimony has categorically stated that the original policy had not been issued to him, nor he had received any notice from the side of the Insurance Company to produce the original policy, and as a matter of fact all that he had received from the Insurance Company was a cover note. Reference was also made by her to the testimony of RW2, Het Ram, an official of the Insurance Company (wrongly recorded as RW1 in the record of the learned Tribunal), who proved on record true copy of the insurance policy (Ex.RW2/4) as well as the notice under Order XII Rule 8 CPC issued to the owner for the production of the original policy (Ex.RW2/3) with the postal receipt (Ex.RW2/2) and the A.D. Card (Ex.RW2/1) [wrongly recorded as Exhibit RW1/4, Exhibit RW1/3, Exhibit RW1/2 FAO 125/1996 Page 12 of 20 and Exhibit RW1/1 respectively]. The learned counsel contended that the said witness in his testimony had clearly admitted that the terms and conditions were contained separately which were not enclosed with the insurance policy (Ex.RW2/4) and further that RW2 had not brought the proposal form or the receipt book to show the amount of premium received from the insured.
18. It is true that what has been produced and proved on the record of this Court is a copy of the insurance policy and not the carbon copy thereof. It, however, cannot be lost sight of that the Insurance Company has proved on record that the notice for production of the original policy was duly served by registered A.D. post on the respondent No.1-owner, who failed to produce the same. The respondent No.1-owner not having produced the original policy, in such circumstances, in my view, the Insurance Company was entitled to lead secondary evidence in respect of the insurance policy. Further, though the respondent No.1-owner states that the policy of insurance was not issued to him at all and what was issued to him was only a cover note, nothing has been placed on record by him to FAO 125/1996 Page 13 of 20 substantiate his aforesaid statement, and hence the policy of insurance must be held to be proved in evidence.
19. A perusal of document Ex. RW2/4 shows that under the caption „SCHEDULE OF PREMIUM‟, pertaining to liability to public risk, it is stated:-
POLICY NO. Insured‟s Non- Electrical & Total I.E.V.
4532103292 Estimated value Electrical Electronic
of vehicle Accessories Accessories
Rs.1,80,000/- Rs. -- Rs. -- Rs.1,80,000/-
SCHEDULE OF PREMIUM
A: OWN DAMAGE Rs. 440-00 B: LIABILITY TO Rs. 240-00
BASIC PUBLIC RISK
as per END IMT 23 Add: for L.L.
Add: 3% on Extra Electrical Rs. to passengers
or Electronic fitting as per as per
END IMT. 71 END IMT.13 47 Pass Rs. 564-00
Add for 1.10% on I.E.V. + Rs. 1980-00 Limit per @ Rs.12 RSD + F + EQ passenger each (Maximum Rs.15,000/- Rs.
as per M.V. Act, 1939) Rs.
Less: ......... % Discount Add for L.L. to paid
for excess of Rs....... (Max. Rs. driver and/or Cleaner as Rs. 16-00
Rs...........) per END IMT. 16 1 + 1
as per END. IMT. 1
Add for Riot & Strike Rs. Add for increased T.P.
0.25% of Rs. Limits
Total I.E.V. as per END Section II 1(i) Unlimited 75-00
IMT. 21 Rs. Section II (ii) Rs.
Add................. Rs.3,00,000/-
Add................. Rs. Add for ................ Rs.
Rs.
Rs.
FAO 125/1996 Page 14 of 20
Rs.
Rs. COMPREHENSIVE Rs. 3315-00
PREMIUM (A + B)
Less: % No Claim Bonus
Less: 5% Sp. Discount Rs. 166-00
(if due)
Rs. NET PREMIUM DUE Rs. 3149-00
(ROUNDED OFF)
20. It stands established from the aforesaid that for 47 passengers the premium paid was ` 564/-, that is, at the rate of ` 12/- per passenger. It is not in dispute that as per the India Motor Tariff, if premium of ` 12/- per passenger was paid, the liability of the Insurance Company would be limited to ` 15,000/- per passenger. Accordingly, it must be held that in the present case, the liability of the Insurance Company to satisfy the award is limited to ` 15,000/- only. Significantly, however, the insurance policy Ex.RW2/4 also contains an „Avoidance Clause‟, in view of which it is held that the Insurance Company is liable to satisfy the award passed in favour of the claimants/appellants in the first instance and then recover the amount paid in excess of its limited liability from the owner and the driver of the offending vehicle. (See New Asiatic Insurance Co. Ltd. vs. Pessumal Dhanamal Aswani and Others, 1958-65 ACJ 559; FAO 125/1996 Page 15 of 20 Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531; Oriental Insurance Co. Ltd. vs. Cheruvakkara Nafeessu and Others, 2001 ACJ 1; New India Assurance Co. Ltd. vs. Vimal Devi and Ors., 2010 ACJ 2878 (SC); followed by this Court in the cases of Gurcharan Kaur and Anr. vs. Raja Ram and Anr, 2011 (6) AD (Delhi) 36; Lata Goel and Ors. vs. Rishipal and Ors., FAO No.254/1993 decided on September 23, 2011; and Bimla Gupta and Ors. vs. Mahinder Singh and Ors., FAO No.51/1991 decided on September 26, 2011).
21. Adverting next to the aspect of the quantum of compensation awarded to the appellants by the learned Tribunal, the learned counsel for the appellants contended that the learned Tribunal ought to have taken the income of the deceased to be ` 1,500/- per month as testified by PW-1, Smt. Angoora Devi, the wife of the deceased, and after taking into account the future prospects of the deceased, the learned Tribunal ought to have assessed the average annual income of the deceased to be in the sum of ` 3,000/- per month. I am not inclined to agree with the said contention for the reason that there is FAO 125/1996 Page 16 of 20 no documentary or other evidence on record to show that the deceased was earning ` 1,500/- per month. I, therefore, see no reason to interfere with the assessment of the average annual income of the deceased made by the learned Tribunal which was assessed to be in the sum of ` 2,400/- per month.
22. It was next contended by the counsel for the appellants that a deduction of not more than one-fifth (1/5th) should have been made from the income of the deceased keeping in view the fact that the deceased was survived by seven dependents. I am at one with this contention of the learned counsel for the appellants for the reason that in the case of Smt. Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, the Supreme Court has categorically laid down that where the number of dependent family members of a deceased person are more than six in number, the deduction towards his personal expenses cannot exceed one-fifth (1/5th). Thus calculated, the average annual loss of dependency of the appellants comes to ` 23,040/- per annum [that is ` 2,400/- X 4/5 X 12].
FAO 125/1996 Page 17 of 20
23. The learned counsel also contended, and I think rightly so, that in consonance with the judgment of Sarla Verma (supra), the multiplier applicable in the instant case would be the multiplier of 14 instead of the multiplier of 10 which has been applied by the learned Tribunal. The deceased was 43 years of age on the date of the accident and for the age group of persons between 41 years to 45 years, the multiplier approved of by the Supreme Court in the aforesaid case is the multiplier of 14. Thus calculated, the total loss of dependency of the appellants comes to ` 23,040 /- x 14 = ` 3,22,560/- (Rupees Three Lakh Twenty Two Thousand Five Hundred and Sixty Only).
24. As regards the non pecuniary damages, the learned Tribunal awarded a sum ` 10,000/- towards the loss of consortium to be awarded to the appellant No.1, to which I am inclined to add a sum of ` 10,000/- each towards the loss of love and affection of the deceased and the loss of estate of the deceased and a further sum of ` 5,000/- towards the funeral expenses of the deceased, that is, in all a sum of ` FAO 125/1996 Page 18 of 20 3,57,560/- (Rupees Three Lakh Fifty Seven Thousand Five Hundred and Sixty Only).
25. Resultantly, the award amount stands enhanced by a sum of ` 1,55,560/- (i.e. ` 3,57,560/- minus ` 2,02,000/-). Interest on the enhanced amount shall be payable at the rate of 7.5% per annum from the date of filing of the petition till realization. Interest on the original award amount, that is, ` 2,02,000/- shall, however, be payable at the rate of 12% per annum from the date of the filing of the petition till the date of realization. The Insurance Company is directed to deposit the entire amount of compensation along with interest as aforesaid by depositing the same with the Registrar General of this Court within 30 days from the date of the passing of this order, which shall enure solely to the benefit of the appellant No.1. Liberty is given to the Insurance Company to recover the amount paid by it over and above its limited liability of ` 15,000/- along with proportionate interest thereon from the respondent No.1, the owner of the offending vehicle, in accordance with law. FAO 125/1996 Page 19 of 20
26. The appeal is partly allowed in the above terms. CM No.3480/1996 also stands disposed of accordingly. There will be no order as to costs.
27. Records of the learned Tribunal be sent back to the concerned Tribunal.
REVA KHETRAPAL (JUDGE) October 03, 2011 km FAO 125/1996 Page 20 of 20