The New India Assurance Co. Ltd. vs G.P. Agrawal And Others
2017 Latest Caselaw 8019 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 25.10.2017
 
Judgment Delivered on 15.12.2017
 
Court No. - 37                                              
 

 
Case :- FIRST APPEAL FROM ORDER No. - 648 of 2001
 

 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- G.P. Agrawal And Others
 
Counsel for Appellant :- Rakesh Bahadur
 
Counsel for Respondent :- A.L. Jaiswal,B.P.Verma,Neerja Singh,S. Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

We have seen the office report dated 29.07.2017 and 17.08.2017. There is endorsement by the office that the notices to the respondent no. 6 to 8 were sent by R.P/A.D, but neither undelivered cover nor any acknowledgement due has been received back after service. Thus, the service upon respondent no. 6 to 8 are deemed to be sufficient.

Heard Sri Rakesh Bahadur, learned counsel for the appellant and Sri B.P. Verma, learned counsel for the claimants-respondents no. 1 to 5.

The appellant insurance company has preferred the present appeal against the judgment and order dated 05.02.2001 passed by Motor Accident Claims Tribunal/ IInd Additional District Judge, Firozabad in M.A.C.P. No. 113 of 1992, whereby the Tribunal has awarded Rs.11,07,000/- alongwith 9% interest as compensation to the claimants-respondents.

The counsel for the appellant has challenged the order dated 05.02.2001 on four counts namely it was a case of composite negligence and therefore, the Tribunal has erred in law in holding the sole negligence of driver of Truck No. U.H.H. 1001 in the accident. The second ground of challenge is that the Truck was driven by a person not holding a valid driving license, thus, the owner of the truck has committed breach of policy and therefore, no liability can be fastened upon the Insurance Company to pay compensation. Third ground of challenge is that the deceased was bachelor and the claimant being parents of the deceased, the Tribunal should have deducted 50% towards the personal expenses of the deceased. The fourth ground is that the Tribunal has erred in awarding interest, inasmuch as the delay in disposal of the claim petition was not on account of the Insurance Company.

One Atul Kumar @ Guddu was travelling in the intereving night of 17th/18th January 1992 along with Anil Kumar Garg, Smt. Premwati, Manju Garg and Gudiya in Taxi Maruti Van No. U.P.32A/1352 from Lucknow to Agra. At about midnight, when the Maruti Van reached near village Pachphera, Shikohabad, it rammed into a stationary Truck No. U.H.H. 1001 which was parked without parking lights. Atul Kumar @ Guddu suffered injuries in the accident and died. The claimants-respondents no. 1 to 5 being heirs of Atul Kumar @ Guddu instituted claim petition stating therein that the deceased Atul Kumar @ Guddu was 20 years of age and and was earning Rs.15,000/- per month approximately from business, and prayed for a compensation of Rs.7,00,000/- along with 15% interest.

The appellant-Insurance Company contested the claim petition by filing written statement and denied the factum of accident. The insurance company further pleaded that the accident did not take place due to the negligence of the driver of the Truck. The accident was caused due to sole negligence of driver of Maruti Van. In alternative, it pleaded that the accident was the result of negligence of both the drivers, and therefore the liability, if any, should be apportioned accordingly. The insurance company further pleaded that claimants were under legal obligation to prove the occupation of deceased , and the compensation prayed for by the claimants was highly excessive, exorbitant and unreasonable.

The appellant Insurance Company filed additional written statement paper no. 46-C stating therein that the driving license no. K-2281 Agra dated 26.06.1965 in the name of Sri Kesari Prasad son of Sri Vishwanath, driver of the truck, had not been issued originally by R.T.O. Office, Agra. Thus, the driving license of driver of Truck was forged and fictitious; and there was breach of insurance policy. Thus, the Insurance Company cannot be saddled with any liability to pay compensation.

The owner and the driver of the truck were arrayed as respondent no. 1 and 2 in the claim petition. The owner of the Maruti Van was arrayed as respondent no. 4 in the claim petition. They did not appear to contest the claim petition. Therefore, the Tribunal proceeded ex-parte against them.

On the basis of pleadings between the parties, the Tribunal has framed as many as six issues. The counsel for the appellant has assailed the findings on issue no. 1 relating to rash and negligently driving, findings on issue no. 4 relating to the driving license, and findings on issue no. 5 and 6 relating to compensation and interest.

The counsel for the appellant challenging the finding on the issue of negligence has submitted that the deceased was travelling in a maruti van and the manner in which the accident had taken place speaks itself about the fact that the driver of the truck was in no way negligent in the accident. He submitted that even if presuming, without admitting, that there was some negligence of the driver of the truck in the accident, at the best it could be a case of composite negligence, and since the owner of the Maruti van has been arrayed as party in the claim petition, therefore the Tribunal ought to have apportioned the negligence of driver of both the vehicles, and consequently, should have apportioned the liability of payment of compensation.

The counsel for the appellant has placed before us the relevant portion of the finding on issue no. 1 where the Tribunal has considered the testimony of PW-3 Manju Agarwal, an eye witness of the accident, and has submitted that it is an admitted position that the truck was stationery and the Maruti van rammed into the said truck. He submits that the truck was stationery, and had the driver of the Maruti van was vigilant and careful in driving the vehicle, the accident could have bee avoided. Thus, his submission is that the finding of the Tribunal that the accident was caused due to the sole negligence of the driver of the truck is illegal and not sustainable; and at least 50% negligence should be attributed to the driver of the Maruti van.

Refuting the submission of the counsel for the appellant on the issue of negligence, the counsel for the claimants-respondents submits that PW-3 has stated that the truck was standing on a curve of the road without parking lights and, it was midnight of January and the visibility was very poor. Thus, the accident was the outcome of the sole negligence of the driver of the truck, inasmuch as, had the driver of the truck put the parking lights on, the truck would have been visible and the accident could have been avoided.

He further submitted that admittedly, it is a case of composite negligence, and the claimants being third party, it is the choice of the claimants to file claim against the owner of both the vehicles or either of them. He submits that even if, this court comes to the conclusion that there was negligence of the driver of the truck in the accident, even then, the claimants can claim entire compensation from the owner of the truck who could recover it from the owner of Maruti Car to the extent of apportioned negligence of driver of the Maruti van. On the proposition that the claimant is entitled to recover the entire compensation from one of the joint tort-feasors, he has relied upon para nos. 10 to 12 of the judgment of the Apex Court in the case of Kenhyei Vs. New India Assurance Company Ltd. And others 2015 (2) T.A.C. 677 which are extracted herein below:

"10. A Full Bench of the High Court of Karnataka at Bangalore in Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun alias Aravind and etc. etc. [AIR 2004 Kar. 149] has affirmed the decision of another Full Bench of the same High Court in Ganesh v. Syed Munned Ahamed & Ors. [ILR (1999) Kar. 403]. A Division Bench referred the decision in Ganesh's case (supra) on following two questions to the larger Bench :

"1. If the proceedings are finally determined with an award made by the Tribunal and disposed of in some cases by the appeal against the same by the High Court, does the Tribunal not become functus officio for making any further proceedings like impleading the tort feasor or initiating action against him legally impermissible ?

2. What is the remedy of a tort feasor who has satisfied the award, but who does not know the particulars of the vehicle which was responsible for the accident?"

11. A Full Bench in KSRTC v. Arun @ Aravind (supra) while answering aforesaid questions has observed that it was a case of composite negligence and the liability of tort feasors was joint and several. Hence, even if there is non-impleadment of one of tort feasors, the claimant was entitled to full compensation quantified by the Tribunal. The Full Bench referred to the decision of a Division Bench of the Gujarat High Court in Hiraben Bhaga & Ors. v. Gujarat State Road Transport Corporation [1982 ACJ (Supp.) 414 (Guj.)] in which it has been laid down that it is entirely the choice of the claimant whether to implead both the joint tort feasors or either of them.

On failure of the claimant to implead one of the joint tort feasors, contributory liability cannot be fastened upon the claimant to the extent of the negligence of non-impleaded joint tort feasors. It is for the joint tort feasors made liable to pay compensation to take proceedings to settle the equities as against other joint tort feasors who had not been impleaded.

It is open to the impleaded joint tort feasor to sue the other wrong doer after the decree or award is given to realize to the extent of others' liability. It has been laid down that the law in Ganesh's case (supra) has been rightly laid down and it is not necessary to implead all joint tort feasors and due to failure of impleadment of all joint tort feasors, compensation cannot be reduced to the extent of negligence of non- impleaded tort feasors. Non-impleadment of one of the joint tort feasors is not a defence to reduce the compensation payable to the claimant. In our opinion, the law appears to have been correctly stated in KSRTC v. Arun @ Aravind (supra).

12. A Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya & Ors. v. M.P. State Road Transport Corpn. & Anr. [2005 (1) MPLJ 372] has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tort feasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation.

Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tort feasors. The relevant portion of decision of Full Bench is extracted hereunder :

"When injury is caused as a result of negligence of two joint tort-feasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim.

However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation. On the same principle, in the case of joint tort- feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them.

If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There can not be apportionment of claim of each tort- feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim. To sum up, we hold as under:-

(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them.

(ii) There can not be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of Jaw, there is no necessity to apportion the inter se liability of joint tort- feasors. Reference is answered accordingly. Appeal be placed before appropriate Bench for hearing." C

It is admitted that the truck was stationery and the Maruti van rammed into the truck. The circumstances and the manner in which the accident had taken place makes it evident that if the driver of Maruti van had been cautious and careful in driving the Maruti van, the accident could have been avoided. It is expected from the driver of a vehicle driving in the night to take more care and precautions, and should drive the vehicle in a speed so that the vehicle could stop instantly in the event of any eventuality or emergency without inviting the risk of accident.

In the instant case, the manner in which the accident had taken place clearly indicates that the driver of the Maruti van was driving Maruti van at a high speed inasmuch as if the Maruti Van was not driven in high speed, it could not have rammed into the other vehicle. It is evident from the record that the truck was parked without parking lights, and merely because the parking lights of truck were not on, it cannot be said that the cause of the accident was the sole negligence of the driver of the truck. Considering the manner in which the accident had taken place and the reasons indicated herinabove, we find that finding of the Tribunal that the accident had taken place due to the sole negligence of the driver of the truck is illegal and not sustainable.

Counsel for the appellant insurance company on the strength of Paragraph 18(iii) of the judgment of the Apex Court in the case of Khenyei (Supra) has submitted that Prashant jaiswal, owner of the Maruti van, has been arrayed as party in the claim petition as well as in the instant appeal, and there is evidence on record on the basis of which the court can determine the extent of negligence of driver of Maruti Van in the accident. Paragraph 18(iii) of the Apex Court judgment in the case of Khenyei (Supra) is extracted herein below:

"18. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings."

We find force in the aforesaid submission of counsel for the appellant, and proceed to determine the extent of negligence of both the drivers in the accident in the light of judgment of Khenyei (Supra). We have given reasons hereinabove that the driver of the Maruti Van was also negligent in the accident. Thus, we hold the negligence of the driver of Maruti van to the extent of 50% in the accident.

Since, it was a case of composite negligence and the liability of tort feasors was joint and several, therefore, following the dictum of the Apex Court in the case of Khenyei (Supra), we provide that the Insurance Company shall pay the entire awarded amount to the claimants, thereafter it shall recover 50% of the awarded amount from the owner of the Maruti van Prasant Jaiswal.

The counsel for the appellant further urged that the finding of the Tribunal on the issue of driving license is illegal and perverse and against the record, inasmuch as, the Tribunal has failed to appreciate that once the original license of the driver of the truck was fake, the renewal of the license cannot take away the effect of fake license. Thus, license of the driver of the truck was not valid driving license in the eye of law. The aforesaid submission is based upon the judgment of the Apex Court in the case of United India Insruance Company Ltd. Vs. Davinder Singh, AIR 2008 SC 329, wherein it has been held that where the original license was fake, its renewal cannot cure the inherent fatality. He has placed reliance on paragraph 12 and 13 of the judgment of the Apex Court in the case of United India Insruance Company Ltd. (Supra) which are extracted herein below:

"12. The said decision has been distinguished by a Bench of this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700] in the following terms:

36. The inevitable conclusion therefore is that the decision in Swaran Singh case 1 has no application to own damage cases. The effect of fake licence has to be considered in the light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once the licence is a fake one the renewal cannot take away the effect of fake licence. It was observed in Kamla case as follows: (SCC p. 347, para 12) 12 . As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to renew a driving licence issued under the provisions of this Act with effect from the date of its expiry. No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.

13. Laxmi Narain Dhut (supra) has since been followed by this Court in The Oriental Insurance Company Limited v. Meena Variyal and Ors. [2007 (5) SCALE 269] wherein this Court referring to Swarn Singh (supra) held:

It is difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to the Swaran Singh (supra) ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut 2007 (4) SCALE 36. This Court after referring to Swaran Singh (supra) and discussing the law summed up the position thus:

In view of the above analysis the following situations emerge:

1. The decision in Swaran Singh's case (supra) has no application to cases other than third party risks.

2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.

3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.

4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. [See also Oriental Insurance Co. Ltd. v. Brij Mohan and Ors., 2007 (7) SCALE 753]."

Refuting the submission of the counsel for the appellant on the issue of driving license, the counsel for the claimants-respondents has submitted that the issue of breach of Insurance Policy is between the owner and insurer and the deceased being third party should not suffer. He submits that the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Swaran Singh and others AIR 2004 SC 1531, has held that in the case of breach of insurance policy, the Insurance Company should first satisfy the award, and thereafter can recover it from the owner. He has placed reliance on paragraph 106(ix) of the judgment of Swaran Singh (Supra) which is extracted herein below:

"(ix) Any driving licence for driving a motor cycle in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear." (To be deleted and correct paragraph to be substituted))

We have perused the finding of the Tribunal on issue no. 4 with regard to driving license. The driving license of the driver of the truck of Kesari Prasad which had been filed on record as paper no. 46-C indicates that the number of driving license was K-2281 and had been issued on 26.06.1965. In order to prove that the driving license of Kesari Prasad was fake, the Insurance Company had produced before the Tribunal Chaturbhuj Gupta DW-1, who was Senior Assistant in the R.T.O. Office, Agra, and had stated on the basis of original record that driving licence no. K-2281 Agra had not been issued by the office of R.T.O. Agra. He had further stated that no license had been issued on 26.06.1965. Chaturbhuj Gupta (DW-1) further stated that the license no. K-2281 had been issued in the name of Kesari Prasad.

The tribunal found that since Chaturbhuj Gupta (DW1)had stated in cross-examination that the driving license in the name of Kesari Prasad was valid from 24.06.1972 to 17.05.1999, and the driving license was found revalidated on the date of accident , therefore the fact that it was not issued by concerned R.T.O. Office loses its importance ,and consequently returned finding on the issue of driving license against the insurance company.

The counsel for the appellant-Insurance Company submitted that the statement of DW-1 Chaturbhuj Gupta is unrebutted who had unequivocally stated that no driving license was issued on 26.06.1965, and the driving license of Keshri Nath filed on record indicated that the same was issued on 24.6.1972. Thus, it is evident that the original license was fake and renewal of fake license cannot cure the inherent fatality and therefore , the finding of the Tribunal that the license has been revalidated and it cannot be said to be invalid is not sustainable.

We find from the record that the license of Kesari Prasad was issued on 26.06.1965. Chaturbhuj Gupta DW-1 had categorically stated on the basis of original record that no license was issued on 26.06.1965 , and the testimony of Chaturbhuj Gupta DW-1 was not rebutted by any evidence. Thus, we are of considered opinion that since the original driving license was fake, and its revalidation cannot cure inherent fatality in view of the judgment of the Apex Court in the case of United India Insurance Company Ltd. (Supra). Accordingly, we hold that the driving license of the driver of the truck was not valid, and the owner of the truck has committed breach of policy; and therefore, the insurance company is not liable to pay compensation.

Further, we may observe that the claimant, being third party, should not suffer, and therefore, in view of the judgment of Swaran Singh (Supra), the Insurance Company shall deposit the awarded amount, and thereafter it can recover from the owner.

The counsel for the appellant has submitted that the deceased was bachelor and the parents being claimants, the Tribunal should have deducted 50% towards the personal expenses of the deceased and has relied upon paragraph 15 of the judgment of the Apex Court in the case of (Sarla Verma and others Vs. Delhi Transport Corporation and others) 2009 (6) SCC 121, which is extracted herein below:

"15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

Refuting the aforesaid submission, the counsel for the claimants-respondents submitted that in Paragraph no. 15 of Saral Verma (Supra) judgment, the Apex Court has held that where the family of the bachelor is large and is dependent upon the income of deceased, 1/3rd should be deducted towards personal expenses of deceased and contribution to the family should be taken to be 2/3rd . He submitted that in the present case the deceased had three brothers and sisters and therefore, the Tribunal was right in deducting 1/3rd towards the personal expenses of the deceased.

We have gone through the judgment of the Sarla Verma (Supra) and we find from the reading of para 15 of the judgment that the Apex Court has held that the father is not the dependent of the deceased, and where the bachelor had a widowed mother and larger number of brothers and sisters, in that situation the personal expenses of the deceased bachelor should be taken to be 1/3rd and contribution to the family will be taken as 2/3rd. We may observe that though the father of the deceased G.P. Agarwal has stated that the deceased was spending some money on his brothers and sisters, but the Apex Court in paragraph 15 of the judgement of Sarla Verma (Supra) has held that where bachelor had widowed mother and number of brothers and sisters, in that situation 1/3rd should be deducted towards personal expenses. Thus, the testimony of father of deceased has no significance, particularly in view of the fact that he was not an independent witness.

The Apex Court in the case of National Insurance Co. Ltd vs Pranay Sethi decided on 31 October, 2017 (Constitution Bench) SPECIAL LEAVE PETITION (CIVIL) NO. 25590 OF 2014 has held that 40% should be awarded towards future prospect where the deceased was self employed, and was below the age of 40 years, and further multiplier corresponding to age of deceased should be applied. In the instant case, the deceased was self employed and below 40 years ; and had the Tribunal awarded 40% towards future prospect, and applied multiplier of 18, the amount of compensation would almost be same as has been awarded by the Tribunal.

We have held that 50% should have been deducted towards personal and living expenses of the deceased; but if the tribunal had awarded 40% towards future prospect and had applied the multiplier of 18, the amount of compensation would have been same as has been awarded by the Tribunal. We may record that the Motor Vehicles Act, being a beneficial piece of possession, casts a duty upon the Courts to award just and proper compensation. Thus, we do not find it proper to interfere with the amount of compensation.

On the last submission of the counsel for the appellant that the Tribunal has erred in law awarding interest from the date of petition, inasmuch as, there was no fault on the part of the appellant for delay in disposal of the claim petition. We find that the Tribunal has recorded finding that the claimants were not at fault for the delay in disposal of the claim petition, therefore, we decline to interfere with the finding of the Tribunal on the issue of interest. No other point has been pressed by the Counsel for the insurance company.

Thus, the appeal is partly allowed to the extent indicated above. It is further provided that the Insurance Company shall deposit the entire awarded amount after adjusting the amount deposited by it under the interim order of this court within period of three months which shall be paid to claimant. Thereafter, the insurance company is permitted to recover 50% of the amount deposited by it from the owner of the Maruti Van and remaining 50% from the owner of the truck.

There shall be no orders as to costs.

Order Date :- 15.12.2017

Ishan