The Oriental Insurance Company ... vs Smt. Rami & Others
2017 Latest Caselaw 2852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 10 of 2006
 

 
Appellant :- The Oriental Insurance Company Ltd.
 
Respondent :- Smt. Rami & Others
 
Counsel for Appellant :- Manish Goyal
 
Counsel for Respondent :- Satya Deo Ojha
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the insurer against the award dated 29.10.2005 passed by Motor Accident Claims Tribunal/Special Judge (Anti-Corruption), Meerut in M.A.C.P. No. 885 of 1998 whereby the Tribunal has awarded Rs. 4,35,200/- together with interest @ 6% in favour of the claimant-respondent, arising from the accidental death of Ram Chandra.

Upon interim order passed by this Court, the entire amount of compensation determined at Rs. 4,35,200/- has been deposited before the Tribunal and would have been paid out to the claimant. At present, it is only the interest which is lying deposited with the Tribunal under the aforesaid interim order.

In the claim petition, the claimant disclosed, Ram Chandra met with an accident on 19.01.1996 when his cycle was hit by a Tata LCV bearing registration no. UP 15 D - 9439, being driven in a rash and negligent manner by it's driver, on the wrong side of the road. The accident took place at about 8:00 a.m. near the saw mill at village Sisoli.

It was also claimed, at the time of the accident, the deceased Ram Chandra was working as a fourth class employee in the Information Department and was earning about Rs. 3,500/- per month. The owner did not appear in the claim proceedings and, therefore, the insurer-appellant filed an application under Section 170 of Motor Vehicles Act, 1988 to be impleaded and to contest the claim on all grounds. It was allowed.

The Tribunal framed four issues namely, whether the accident had been caused due to rash and negligent conduct of the driver of the offending Tata LCV vehicle; whether the claimant was entitled to any compensation; whether the claim suffered from non-joinder of parties and; whether the driver of the Tata LCV vehicle had a valid and effective driving licence.

The Tribunal dealt with the aforesaid four issues. On issue no. 4, the Tribunal found that neither the owner of the offending vehicle had appeared before it nor had any evidence been led by the insurer that the driver of the offending vehicle did not have a valid and effective driving licence at the time of the accident. Further, in view of the application filed under Section 170 of Motor Vehicles Act, 1988 being allowed, the Tribunal held the burden was on the insurer to establish that the driver of the offending vehicle did not have a valid and effective driving licence. Accordingly, the Tribunal decided the issue against the insurer.

Then, on the issue of quantification of compensation, the Tribunal found that the income of the deceased had been established by the claimant by filing the salary slip disclosing his income at Rs. 3,075/- per month. The said document was duly proved before the Tribunal by the wife of the deceased.

Thereafter, the Tribunal applied multiplier of 17 and awarded compensation Rs. 4,18,200/- towards loss of dependency; Rs. 5,000/- towards loss of consortium and; Rs. 2,000/- towards funeral expenses. Thus, total compensation amount was determined at Rs. 4,25,200/-.

Learned counsel for the appellant submits that the Tribunal has erred in shifting the burden on the insurer to establish that the driver of the offending vehicle did not have a valid and effective driving licence. He also submits that the income of the deceased had not been established inasmuch as the employer of the deceased was not examined. Further, he submits, the claim was wholly belated as it was made almost two years after the occurrence of the accident and that the FIR lodged at the time of the accident did not disclose the registration number of the vehicle and therefore, it's involvement in the accident was doubtful.

Learned counsel for the respondents, on the other hand, submits that the insurer filed an application under Section 170 of Motor Vehicles Act, 1988 that was allowed by the Tribunal. In his submission, upon such application being allowed, the insurer stepped into shoes of the owner and therefore, the burden to establish the existence of a valid and effective driving license was of the insurer itself and that burden not being discharged, the insurer cannot take benefit of its own default and claim itself absolved of the liability.

He would also submit, there is no presumption that could arise up on failure of owner and the driver to appear before the Tribunal that the driver did not have a valid and effective driving licence. Also, he submits, even otherwise, other than merely stating that the driver did not have a valid and effective driving licence, the insurer did not lead any evidence before the Tribunal to that effect.

Having considered the submissions so advanced and having perused the material on record, I find the Tribunal has not committed any error in reaching the conclusion that the claimant was entitled to receive the compensation inasmuch as the occurrence of the accident; negligence of the driver resulting in the accident; existence of insurance of the offending vehicle - were all facts well established.

Thereafter, it was matter for the insurer to plead such fact and bring on record such evidence as may have been necessary to establish it's right to either absolve itself of the liability to compensate the claimant or to have a right to recover compensation amount from the owner.

In this regard, the insurer did plead absence of a valid and effective driving licence with the driver of the offending vehicle. It being a negative fact, the insurer could not have been burdened further to prove the same.

On the other hand, the owner and driver of the offending vehicle had been impleaded as party in the claim proceedings; issued & served notices therein and; they failed to appear before the Tribunal. Such failure leads to two inference being drawn.

First, owing to non-appearance of the owner and driver of the offending vehicle, despite service of notice of the claim petition, it is to be inferred, without doubt that the accident as claimed in the claim petition did occur. It is so because, in absence of denial by the tortfeasor, as to occurrence of the tortuous act, no other evidence is required to be lead in that regard unless it be a case of collusive claim where the insurer may deny such fact. That is not the case here.

Second, once the insurer raised a specific plea of absence of a valid and effective driving license, it became incumbent on the owner and the driver to produce the same. The existence and detail of such a licence were special facts in the knowledge of the owner and driver of the offending vehicle. Unless details of the same were disclosed, the insurer could not make verification of the same.

Thus, upon plea of absence of valid and effective driving license being raised by the insurer, the burden to disprove that fact arose on the owner and driver of the offending vehicle. By not providing detail of the licence, the onus never shifted to the insurer to lead evidence to rebut the same or to support its contention.

Existence of a valid and effective license being a special fact in the knowledge of the owner and driver of the vehicle, its non-production or non-disclosure should have led to an adverse inference being drawn against them and not the insurer.

For the above reasons, I am of the opinion that the Tribunal has erred in not reaching the conclusion of breach of terms and conditions of the contract of insurance and in not giving the insurer a right to recover the compensation amount from the owner.

Next, with respect of the income of the deceased, I find that the Tribunal has determined the income of the deceased at Rs. 3,075/- per month on the basis of documentary evidence in the shape of salary slip. The said salary slip having been shown to be genuine, no further enquiry was required to be conducted by the Tribunal in that regard. The Tribunal did not commit any error in not summoning the employer to record his testimony. The oral testimony of the employer, if led could not have improved the fact proven by documentary evidence.

Next, it has been submitted that the multiplier of 17 has been wrongly applied inasmuch as the age of the deceased on the date of accident was 34 years and according to the judgment in the case of Smt. Sarla Verma and Ors Vs. Delhi Transport Corporation and Anr reported in AIR 2009 SC 3104, the correct multiplier to be applied should have been 16. This contention appears to be correct.

Learned counsel for the claimant-respondent submits, the Tribunal has applied the multiplier as per the second schedule of the Act and, therefore, it has not committed any error. Alternatively, he submits, if the multiplier is to be corrected because the amount awarded is not just and fair then, the award be also corrected as to award of other amounts as to future prospects and other non-pecuniary benefits.

Elaborating his submission in this regard, he submits, the Tribunal has not granted any benefit for future prospects to which the claimant was clearly entitled @ 50% in view of law laid down by the Supreme Court in Smt. Sarla Verma Vs. DTC (supra) as clarified in Santosh Devi Vs. NICL reported in (2012) 6 SCC 421; Rajesh and others Vs. Rajbir Singh and others reported in (2013) 9 SCC 54. Also, he claims, the claimant is entitled to receive other amounts on principle of Rule 220A of U.P. MAC Rules, 1998.

On the other hand learned counsel for the appellant though does not dispute the entitlement so claimed, he submits, in view of the fact that neither there is any cross-appeal nor cross-objection on behalf of the claimant for enhancement, the award may not be modified in favour of the claimant so as to grant the claimant the benefit for future prospects and non-pecuniary benefits

In this regard a division bench of this Court in the case of National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi & Ors FAFO No. 2389 of 2016 decided on 27.07.2016 had the occasion to consider this precise objection raised by learned counsel for the appellant-insurer and it was held, as below:-

"We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (Supra) the Hon'ble Apex Court has observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the court cannot be found wanting when it comes to exercise its powers.

Thus the argument in this regard made by the learned counsel for the appellant has no legs to stand and is not liable to be sustained.

Hon'ble Apex Court has laid down the principles to be followed while awarding compensation under non-pecuniary damages, such as loss of consortium, loss of love, care and guidance to children and funeral expenses. In the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and Kalpanaraj and others vs. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC) Hon'ble Apex Court has held that guiding principle for determining compensation is that it must be just and reasonable and the Court should not succumb to niceties or technicalities, in such matters while considering the issue of award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to children and funeral expenses. It has been observed in paragraph 17 as under :

"17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practise of awarding compensation under conventional heads: loss of consortium to thee spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs. 5000 to 10,000. In legal parlance. "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection. etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United State of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the court awards at least rupees one lakh for loss of consortium."

The same view has been reaffirmed in the case of Kalpanaraj and others (supra). In the said case, Hon'ble Apex Court raised compensation of Rs.30,000/- awarded towards loss of consortium and Rs.20,000/- towards loss of love and affection of the minor children to Rs.1,00,000/- each under the said heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of Rajesh (supra)."

The above, reasoning of the division bench of this Court appears to be consistent with the decision of the Supreme Court in Jitendra Khimshankar Trivedi & Ors Vs. Kasam Daud Kumbhar & Ors reported in 2015 (4) SCC 237 wherein the Supreme Court has held as below:-

"13. The tribunal has awarded Rs. 2,24,000/- as against the same, claimants have not filed any appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. 2003 2 SCC 274, Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. 2009 6 SCC 280 and Ningamma & Anr. vs. United India Insurance Compnay Ltd. 2009 13 SCC 710. As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation.

14. In order to award just and reasonable compensation income of the deceased is taken as Rs. 3,000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs. 2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs. 4,32,000/- (Rs. 2,000 X 12 X 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs. 5,000/- towards loss of estate and Rs. 3,000/- towards funeral expenses totaling Rs. 8,000/-. The High Court has awarded conventional damages of Rs. 15,000/- i.e. Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors., 2013 9 SCC 54 and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors., 2013 9 SCC 166 this Court has awarded substantial amount of Rs. 1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs. 1,00,000/- is awarded towards loss of consortium and Rs. 1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs. 15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs. 6,47,000/-."

Therefore, applying the law laid down by the division bench in case of National Insurance Co. Ltd. Vs. Vidyawati Devi (supra), and also in view of the fact that the present appeal is a continuation of the claim proceedings, in my view, the issue of just and fair compensation has been made alive by the insurer who has asked for reduction of compensation.

Once the matter has been so challenged and opened, the entire issue of determination of just and fair compensation has to be treated as being open and correct amount of compensation is required to be determined applying the settled law.

It has to be so, because the claimant may not have contested the award in view of the total amount awarded being acceptable to him. He would not then have been concerned about the exactness of the method adopted to reach that amount. But, once the amount is sought to be reduced, he will have a right to oppose it by showing he was entitled to a higher amount upon application of the correct method.

While doing so no new evidence may be considered yet, the amount would have to be computed afresh after giving effect to the correct legal principle.

Thus, I find the claimant-respondent is entitled to enhancement on account of 50% under the head of future prospects as he was a government servant. His salary and age on the date of accident/death having been established, the Tribunal was duty bound to include future benefits while computing loss of dependency, even if the claimants had not asked for it. It is so because the Tribunal was duty bound to award a just, equitable, fair and reasonable compensation, in accordance with law.

In so far as the last submission advanced by learned counsel for the appellant that the claim petition was filed belatedly, suffice to say that there is no limitation prescribed and as such the claim was not time barred under law. Also, the fact of the accident and the attending facts and circumstances giving rise to the claim for compensation being not doubted or disputed, the claim could not be rejected merely because the description of the offending vehicle was not given (with registration number), in the FIR.

In the proceedings before the Tribunal, the FIR is a piece of evidence and not the only or determinative evidence. The enquiry conducted by the Tribunal is independent of and not confined to narration of facts made in the FIR.

Thus, the amount of compensation is determined as below:- (i) loss of dependency is determined at Rs. 36,900/- being Rs. 24,600/- as computed by the Tribunal + Rs. 12,300/- on account of loss of future prospects in view of the fact that it was well established before the Tribunal that the deceased was an employee of the information department receiving Rs. 3,075 per month as his salary at the time of accident and was 34 years of age at that time. It would result in 50% increase in the loss of dependency. (ii) correct multiplier to be applied would be 16 and not 17 as has been applied by the Tribunal. Accordingly, the total amount of compensation on account of loss of dependency would be 36,300 X 16 = 5,80,800/-. Add to that non-pecuniary loss of Rs. 75,000/- being Rs. 10,000/- for loss of estate; Rs. 10,000/- for loss of consortium; Rs. 50,000/- for loss of love and affection and Rs. 5,000/- for funeral expenses.

Learned counsel for the appellant has then, at the fag end of proceedings raised an objection that the amount of compensation now exceeds Rs. 5,00,000/- and therefore, the single judge does not have jurisdiction to decide this appeal. The objection so raised, at this stage, appears to be belated and hyper-technical. Though, the jurisdiction of the single judge in such matters is up to monetary limit of Rs. 5,00,000/-, however, there is no dispute to the fact that the appeal was correctly listed before the Court in view of the fact that the appellant has challenged the award of compensation Rs. 4,35,200/-. Accordingly, the appeal was taken up for hearing. Once the appeal has been heard at length, and argument raised by both parties were dealt with, merely because the amount of compensation finally determined exceed Rs. 5,00,000/-, I do not consider it proper to now remit the matter to the division bench.

In any case, if the claimant had actually filed a cross-objection for increase of compensation amount from Rs. 4,35,000/- (as awarded by the Tribunal) to Rs. 6,55,800/- (as modified by this order) then, both, the appeal and the cross-objection would have been heard by the single judge as the appeal is valued at Rs. 4,35,000/- which the cross-objection would have been valued at Rs. 2,20,800/- only. The objection is thus purely technical and therefore rejected.

Accordingly, the award of Tribunal is modified to the extent that in place of compensation Rs. 4,35,000/- as awarded by that Tribunal, the claimant-respondent shall be entitled to compensation Rs. 6,55,800/- together with interest at the rate of 9% from the date of filing of the claim application.

The modified award shall first be satisfied by the insurer appellant in entirety. The amount already paid to the claimant respondent shall be adjusted from the total amount thus awarded and the balance amount lying deposited with the Tribunal in compliance of the interim order passed on this appeal shall also be released in favour of the claimant-respondent and adjusted.

Simultaneously, the Tribunal may proceed against the respondent owner of the offending vehicle to recover the amount from him to be repaid to the insurer in view of the finding recorded in this judgment as to breach of terms and conditions of the contract of insurance which render the owner liable for the compensation to be paid to the claimant-respondent.

The appeal is decided accordingly. No order as to costs.

Order Date :- 01.08.2017

A. Singh