Oriental Insurance Co.Ltd., ... vs Smt. Rita Singh And Others
2012 Latest Caselaw 5239 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- FIRST APPEAL FROM ORDER No. - 422 of 2000
 

 
Petitioner :- Oriental Insurance Co.Ltd., Alld.
 
Respondent :- Smt. Rita Singh And Others
 
Petitioner Counsel :- K.S.Amist
 
Respondent Counsel :- Manoj Kumar Singh,A. Tripathi,A.C. Tiwri,A.K. Ojha,Pradyumn Kumar,R.K.Rathore,Ram Singh,S.N. Mishra
 

 
Hon'ble Prakash Krishna,J.

Hon'ble Arvind Kumar Tripathi (II),J.

(Delivered by Hon'ble Arvind Kr. Tripathi-II)

This appeal has been filed by Oriental Insurance Company Ltd. through its Assistant Administrative Officer, Divisional Office, No. 1 16-A, M.G. Marg, Allahabad, against the award dated 5.01.2000 passed by Motor Accident Claims Tribunal/ Special Judge, E.C. Act, Mainpuri, allowing the claim petition and awarding Rs. 13,35,500/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till payment to the claimants/respondents in M.A.C.P. No. 185 of 1998.

A claim petition was filed by the widow and other legal representative of deceased Shiv Prasad Singh alleging that on 17.04.1998 at about 9.30 p.m. deceased Shiv Prasad Singh was returning to his residence on his scooter No. U.P. 70-C/ 6020 and as soon as he reached near Bhawat Chaura an Eicher Tractor of red colour which was without number and which was being driven by its driver rashly and negligently, coming from the side of railway crossing, hit the scooter of the deceased, due to which, Shiv Prasad Singh received injuries. He was admitted in Maharaja Tej Singh District Hospital, where he succumbed to the injuries. An FIR was lodged at P.S. Kotwali, Mainpuri. The deceased was working as Assistant Prosecuting Officer in Prosecuting Office, which is the State Government Department, at Mainpuri and was a class II Gazetted Officer. He was likely to be promoted in near future and would have been promoted up to the post of Joint Director. He was in service for 7 years only and would have remained in service for 20 years more. At the time of accident, he was getting salary about Rs. 10,000/- and on promotion of Prosecuting Officer, he would have received Rs. 12,500/- and on promotion to the post of Senior Prosecuting Officer and Joint Director, he would have received Rs. 16,500/- and Rs. 20,000/- respectively. Stressing the future avenue, the claim of Rs. 31,00,000/- along with 18% interest was laid.

Opposite party No. 2 and 3 Birhal Singh and Smt. Vittno Devi have filed their written statement admitting that they are the owners of the Eicher Tractor and alleged that the tractor was being driven by a valid license holder driver. It was also averred that the tractor was insured with Oriental Insurance Company, hence if the Tribunal reaches to the conclusion that they are liable to pay compensation, then liability to pay falls on the Insurance Company.

Oriental Insurance Company has filed written statement alleging that the petition is not maintainable. No evidence regarding age and expenses of treatment has been filed. The accident occurred due to negligence of the deceased himself. Deceased was not going to be promoted in near future and the compensation claimed is excessive.

The learned tribunal has framed following issues after perusal of the pleading of the parties.

1. Whether the accident took place on 17.04.98 at about 9.30 p.m. while Shiv Prasad Singh was coming to his residence on his scooter No. UP 70-C/ 6020 and when he reached near Bhagavat Chauraha, Station Road, Maipuri, Eicher Tractor coming from the railway crossing on Kishni Road, being driven rashly and negligently by its driver hit the scooter, due to which the deceased was seriously injured and succumbed to the injuries after 5-6 hours of treatment in the hospital?

2. Whether the offending vehicle was being driven by valid license holder driver ?

3. Whether the offending tractor was Insured with the Oriental Insurance Company?

4. Claimants are entitled for what compensation and from whom?

From the side of claimants Smt. Reeta Singh, (widow of deceased) P.W. 1, Eye witness Brijesh Kumar, P.W. 2, scribe of the FIR Rajendra, P.W. 3 and Senior Prosecuting Officer, Harswaroop as P.W. 4 were examined. Several documents vide list 20C-31C, 47C and 49 C were filed. No oral evidence was adduced from the side of opposite parties, but salary certificate of the deceased was filed by the Insurance Company and 4 Photostat documents and some other documents were filed, from the side of opposite parties No. 2 and 3, which were certified by the notary.

Learned tribunal after hearing the parties and considering the evidence, has awarded Rs. 13,35,500/- as compensation along with 12% interest from the date of filing the petition till the date of actual payment and the liability to pay the said amount was fixed on Insurance Company.

Feeling aggrieved, this F.A.F.O. has been filed.

It was argued by Sri Kuldip Shanker Amist, learned counsel for the Oriental Insurance Company that the deceased himself was responsible for the accident as he was driving the scooter in rash and negligent manner and the tractor driver had no valid driving license holder. The tractor was insured for agricultural purpose and at the time of accident, tractor was not involved in any agricultural purpose. The quantum of compensation amount is excessive. Future prospects are not to be considered while awarding the compensation. The deceased was a government servant and the opportunity for employment of the claimants on compassionate ground and the amount of the family pension should also be taken into account in calculating the amount of compensation. Multiplier of 13 used by tribunal is on higher side.

A cross objection has also been filed by the claimants challenging the adequacy of compensation amount. It also challenges the multiplier used by Tribunal. A point was raised that multiplier of 13 has been wrongly and illegally used, while it should have been 16 according to settled legal proposition.

We have heard learned counsel for the parties and also gone through the record.

A perusal of the lower court record reveals that no evidence was adduced by the applicant. Certified copy of the site plan has been filed by claimant, which is paper no. 23C-1 and 2. A perusal of site plan reveals that the scooter was going towards north and the tractor was coming from north on his left hand side of the road. The tractor was coming from north on almost right hand side of the road. The point of collusion is marked by cross in the site plan which goes to show that the tractor has veered through his right and hit the scooter from his right side. The tractor travelled on the wrong side of the road. This clearly establishes the rash and negligent driving of the tractor by its driver.

P.W. 1 is not an eyewitness, but P.W. 2 Brijesh Kumar, P.W. 3 Rajendra Prasad are the eyewitnesses. They have been cross-examined at length by the counsel for the respondents therein, but nothing has come up in their cross examination to show any negligence on the part of the scooter driver. This fact negates the argument of learned counsel for the appellant regarding negligence of the scooter driver. Thus, the argument that scooterist was at fault has no force.

The next limb of argument is with regard to quantum. It is excessive as per the appellant, as future prospects of the deceased should not have been taken into account.

In case of Sarla Verma and others vs. Delhi Transport Corporation and another 2009 ACJ 1298, it has been held that :-

"10. Generally, the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects? In Susamma Thomas, 1994 ACJ 1 (SC), this court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can taken note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs. 1,032 per month. Having regard to the evidence in regard to future prospects, this court was of the view that the higher estimate of monthly income could be made at Rs. 2,000 as gross income before deducting the personal living expenses. The decision in Susamma Thomas was followed in Sarla Dixit vs. Balwant Yadav, 1996 ACT 581 (SC), where the deceased was getting a gross salary of Rs. 1,543 per month. Having regard to the future prospects of promotions and increases, this court assumed that by the time he retired, his earnings would have nearly doubled, say Rs. 3,000. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period and determined the income as Rs. 2,200 per month. In Arati Bezbaruah vs. Dy. Director General, Geological Survey of India, 2003 ACJ 680 (SC), as against the actual salary income of Rs. 42,000 per annum (Rs. 3,500 per month), at the time of the accident, this court assumed the income as Rs. 45,000 per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.

11. In Susamma Thomas, 1994 ACJ 1 (SC), this court increased the income by nearly 100 per cent, in Sarla Dixit, 1996 ACJ 581 (SC), the income was increased only by 50 per cent and in Arati Bezbaruah, 2003 ACJ 680 (SC), the income was increased by a mere 7 per cent. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30 percent if the age of the deceased was 40 to 50 years. There should be no addition where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increased, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

The Apex Court has gone further in the case of Santosh Devi vs. National Insurance Company Ltd. And others, AIR 2012 SC 2185. After considering its previous decisions, and the distinction between rich and poor and also between the salaried person/self-employed person on a fixed salary, has laid down the principle that even self-employed persons who are employed on fixed salary without provisions of annual increment etc. also are entitled to get about 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.

Learned counsel for the appellant has relied upon the decision of U.P. State Road Transport Corporation and others vs. Trilok Chandra and others 1996 ACJ 831. His argument is that future prospects are not to be considered for assessment of compensation, because in this case the Apex Court has considered the multiplier calculation for just amount of compensation. We could not find anything which negates the consideration of future prospects for assessing the compensation. In view of this, this decision is of no help to the appellant.

Learned counsel for the appellant also relied upon Oriental Insurance Company Ltd. vs. Jashuben & others JT 2008 (2) SC 415, Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya and two others, JT 2005 (4) sc 531 and Managing Director, Tamil Nadu State Transport Corporation vs. Sripriya and others 2007 (3) T.A.C. 27 (S.C). These judgements are of no help to the appellant, in view of the decision of Apex Court in Sarla Verma case (supra) and Santosh Devi (supra).

The tribunal committed made no mistake in considering the future prospects of the deceased and in taking the income for calculation of compensation, at Rs. 13,000/- per month. It is to be noted that the accident took place on 17.04.1998 at about 9.30 p.m. Admittedly, there was pay revision w.e.f. 01.01.1996 and the pay scale has been enhanced. If the deceased would have been alive he would have enjoyed the higher pay scale. In view of the above, the tribunal has not committed any error in fixing the monthly income of the deceased at Rs. 13,000/- per month, considering the future prospects.

We do not find any reason to interfere in this regard.

Third and last point, which argued from the side of appellant was that the tractor was insured for agricultural purpose and at the time of accident, tractor driver had no valid driving license for driving the tractor.

A perusal of the record reveals that the photocopy of the license of the driver has been filed which is for L.M.V. Learned counsel for the appellant has relied upon the decision of National Insurance Co. Ltd. vs. Shinder Kaur and others, 1998 ACJ 880 (Punjab and Haryana) in which the driver had license to drive scooter and car but he was driving a tractor which caused the accident. It was not mentioned in the license that the license pertains to light motor vehicle or tractor. In view of this it was held that the driver of the tractor and insurance company is exempted from liability. Again learned counsel for the appellant relied upon the decision of Oriental Insurance Co. Ltd. vs. Hanumantappa and others, 1992 ACJ 1083 (Karnataka) in which it has been held that tractor trailer carrying labourers for loading/unloading met with an accident and three labourers died. The tractor trailer is a goods vehicle. On the basis of these decisions it was argued that the driver of the tractor was having a license to drive L.M.V. and those drivers are not having proper driving license and the Insurance Company cannot be burdened with the liability.

In the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria & others, 2008 (1) T.A.C. 812 (S.C.), the Apex Court has held that :-

10. Section 2 of the Act provides for interpretation of the terms contained herein. It employs the words "heavy goods vehicle" to mean any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.

11. Section 2 (21) defines " light motor vehicle" and Section 2 (23) defines "medium goods vehicle" as under

"Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 750 kilograms."

"Medium goods vehicle means any goods carriage other than a light motor vehilce or a heavy goods vehicle".

Section 3 of the Act, is in the following terms:

"3. Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motorcab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do."

12. the Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989.

13. The word " Form" has been defined in Rule 2 (e) to mean a Form appended to the rules.

"I Apply for a licence to enable me to drive vehicles of the following description:

(d) Light motor vehicle

(e) Medium Goods vehicle

(g) Heavy goods vehicle

(j) Motor vehicles of the following description....."

After amendment the relevant portion of Form 4 reads as under:

" I Apply for a licence to enable me to drive vehicles of the following description:

(d) Light motor vehicle

(e) transport vehicle

(j) Motor vehicles of the following description...."

14. Rule 14 prescribes for filing of an application in Form 4, for, a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.

Clause (e) provides for Transport vehicle which has been substituted by G.S.R. 221 (E) with effect from 28th March, 2001. Before the amendment in 2001, the entries medium good vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed herein before, Light Motor Vehicles also found place therein.

15. Light motor Vehicle is defined in Section 2 (21) and, therefore, in view of the provision as then existed, it included a light transport vehicle.

Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under:

 
        Authorisation to drive transport vehicle
 
Number................               Date...........
 
         Authorised to drive transport vehicle with effect from ...............Badge Number..........
 
                     Signature..............
 
                     .........................
 
       Designation of the Licensing Authority
 
Name and designation of their authority who conducted the driving test."
 

16. From what has been noticed herein before, it is evident that transport vehicle has now been substituted for 'medium goods vehicle' and ' heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle.

A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.

Again a Division Bench of this Court in the case of Oriental Insurance Co. Ltd. vs. Sohan Lal and others 2003 ACJ 595 it has been held that:-

"We have heard Mr. K.S. Amist, the learned counsel for the appellant who has urged that the driver did not have a valid licence. The Tribunal had recorded a finding that the driver had a valid licence. This finding has been assailed on the ground that the driving licence was only to drive light motor vehicle. The appellant has filed a photocopy of the driving licence as Annexure 2 to the affidavit filed in support of the application. The driving licence indicates that it was for driving light motor vehicles. The Tempo is a light motor vehicle. The driver had a valid licence to drive the vehicle. It is further contended that he had no valid licence to drive the Tampo as a taxi. The mere fact that the Tempo was being used as taxi will not mean that the driver did not have a valid licence.

We do not find any merit in the appeal. It is accordingly dismissed."

In this case, a perusal of the lower court record reveals that it has not been established that the tractor has been used for carrying any load. P.W. 2 have specifically stated that he could not see whether trolley was loaded or not. Nothing was asked from another eyewitness P.W.3 by the counsel for the Insurance Company. As no evidence was produced from the side of opposite parties, it cannot be said that the tractor trolley was being used for carrying any goods. A certificate on record shows that unloaded weight of the tractor was 1752 Kg. Thus, it means that the weight of unladen trailer including tractor cannot be said to exceed 7500 kg. Considering this, there is nothing on record to show that the weight of tractor trailer was more than 7500 kg. and in view of this, a person holding driving licence for LMV cannot be said to a person had no valid and affective driving license at the time of accident. Light motor vehicle has been defined in Sub-section 21 (2) of the Act. It reads as follows:-

"Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms."

Keeping in view the definition of 'Light Motor Vehicle' as also the fact that the driver of the tractor had a valid license to drive a L.M.V. it is held that the tractor was being driven by a valid driving license holder at the time of the accident.

In view of the above, findings recorded by the Tribunal requires no interference by this Court.

In the cross-objection, it has been argued that the multiplier of 13 has been wrongly used, while it should have been 16 according to settled legal proposition.

We feel that when the future income of the deceased has been taken into consideration for calculation of the compensation, then the tribunals choice of using multiplier '13' cannot be said to be erroneous. In view of the above, there is no error in the decision of the tribunal.

The First Appeal From Order and the cross-objection both are hereby liable to fail and are hereby dismissed. No order as to costs.

(Arvind Kumar Tripathi,J)             (Prakash Krishna,J)
 
Order Date :- 18.10.2012.
 
v.k.updh.