Pratap Singh And Ors. vs Shish Pal And Anr.
1993 Latest Caselaw 692 Del

JUDGMENT

P.K. Bahri, J.

(1) This appeal is directed against the award dated April 30, 19^0, of Shri S N. Kapoor, acting as Motor Accident Claims Tribunal by which the claim of the appellant was allowed to the extent of Rs. 20,000.00 with costs and interest @ 6% p.a. from the date of application till realisation against only Shish Pal, who was the driver of the vehicle had allegedly caused the accident which resulted in fatal injury to Chander Bhan, aged about 19 years at that time.

(2) The claim petition was brought against driver of the vehicle Shish Pal, the owner of the vehicle Mohinder Singh and the New India Assurance Company. The Tribunal, however, gave the finding that the claimants had not been able to prove that Mohinder Singh was ^ the owner of the vehicle in question and the said vehicle was having any insurance policy issued by the New India Assurance Company and thus, the claim was not awarded against the said Mohinder Singh and the New India Assurance Company. The Tribunal has also not awarded any claim in favor of father of the deceased on the basis that under the Hindu Succession Act father is not one of the heirs of the deceased.

(3) This appeal is being contested before me only on behalf of the New India Assurance Company. Initially Mr. S.R. Yadav had appeared for the owner as well as the driver of the vehicle before the Tribunal and he had also filed the Power of Attorney on behalf of owner of the vehicle in this Court but later on it appears that the New India Assurance Company while engaging Mr. Manmohan Sarin, Advocate, has also given him the Power of Attorney signed by the owner of the vehicle. However, Mr. Sarin has not addressed any arguments on behalf of the owner of the vehicle and has stated that it was in routine that the insurance company got the signatures of the owner of the vehicle on the Power of Attorney by which Mr. Sarin was appointed as counsel. Counsel for the appellant and Mr. Sarin both inform that Mr. S R. Yadav, Advocale, who was having Power of Attorney, also appeared on behalf of Mohinder Singh, had told that no instructions are being received from the owner. Mr. Sarin has sent registered notices to Mohinder Singh in order to with- draw from the case on his behalf but the registered notices have come back unserved and Mr. Sarin states that he has received no further instructions from Mohinder Singh and thus, he does not represent him.

(4) Be that as it may, as far as the merits of the case are concerned, the facts, in brief, are that on 9.10.75, at about 10 A.M. the deceased Chander Bhan was standing on the right side of the kacha patri of the road running from Pehladpur to Delhi and he and one Raj Kumar had come to the said place in a truck which truck after dropping them at the site had gone away. According to the aver- ments, Chander Bhan was proceeding on that kacha patri in front of the fields of one Rajinder Pradhan that a truck bearing registration No. DHG-2644 being driven by Shish Pal rashly, negligently and carelessly at a fast speed came from Pehladpur side and after coming on the wrong side of the road and after crossing the road it came on the kacha patri and hit the deceased who was dragged to a considerable distance and Chander Bhan died at the spot due to the injuries so received in that accident.

(5) In the W/S filed by the driver and the owner of the said vehicle the factum of the accident taking place was not denied and a plea was taken that it had not taken place on account of any rash and negligent driving of the said driver of the truck. The learned Tribunal has based its finding on the question of rash and negligent driving by Shish Pal on the oral testimo'ny of an eye witness Pw 2 Raj Kumar and also on the nature of the accident as revealed from the spot and the fact that Shish Pal, driver of the truck, was not examined as a witness. So, this finding of fact that Chander Bhan received the fatal injuries on account of the accident taking place due to rash and negligent driving of the said truck by Shish Pal being well based on evidence is affirmed by me.

(6) It is significant to mention that in the claim petition it was clearly averred that Mohinder Singh was the owner of the said vehicle at the relevant time but in the W/S plea taken was that this averment was wrong and denied and in fact, Mohinder Singh was not the registered owner of the said vehicle. There is no specific plea taken by Mohinder Singh in the W/S that in fact, he had not purchased the said vehicle and was not the owner of the vehicle at the relevant time. Mere fact that the vehicle had not been got registered in his name at the time the accident took place would not make any difference because in law as it stood at the time the accident took place, the owner of the vehicle becomes vicariously liable for the rash and negligent driving of his vehicle by his driver unless it is proved that the driver was driving the said vehicle unauthorisedly and was not connected in any manner with the owner of the vehicle but that was not the case set up in the W/S. As far as the owner and the driver of the vehicle are concerned, they did not come into the witness box in order to rebut the case of the claimants on these points. The Tribunal was not right in coming to the conclusion that the claimants were bound to prove that in fact, Mohinder Singh was the owner of the vehicle at the time of the accident. In the W/S no specific plea has been taken by Mohinder Singh that he was not in fact even the owner of the said vehicle. Mere taking the plea that he was not the registered owner of the vehicle would not lead to any inference in his favor that he has also taken the plea that he was not the actual owner of the vehicle. So, the liability of Mohinder Singh to bear the claim arising out of this accident has been clearly proved from the pleadings and there was no occasion for the claimants to have led any evidence to show that in fact the vehicle was owned by Mohinder Singh at the time of the accident.

(7) As far as the liability of the New India Assurance Company is concerned, it appears that after summons have been served on the insurance co., the insurance co. for reasons best known to it did not come forward to contest the case or make appearance before the Tribunal. Later on, an application was moved on behalf of the insurance co. for setting aside of the ex-parte proceedings against the insurance co. but the application was not pressed. So, the insurance co. remained ex-parte before the Tribunal.

(8) In the claim petition it was averred that the insurance co. had insured the truck bearing registration No. Dgh 2644 but there was no evidence led by the claimants to prove that in fact at the time the accident took place the truck stood insured with the said insurance co. The claimants had not taken any steps whatsoever to get the particulars of the insurance policy, if any, from the owner of the vehicle by resorting to Section 98 of the Motor Vehicles Act, 1939 and had also not cared to summon any record from the Regional Transport Authority to prove that in fact, this truck stood insured with the aforesaid company on the day of the accident and what was the number of the policy, if any. No efforts were even made to summon any record from the insurance co. to show that in fact this truck stood insured with the said insurance co. The learned counsel for the appellant has, however, vehemently argued that it was incumbent upon the insurance co. to have appeared before the Tribunal and taken proper defense in case the truck in question was not insured with the said company and as the insurance co. has failed to make any appearance before the Tribunal and take proper defense, the Court should presume that the truck stood insured with the said insurance co. and the liability of the insurance co. was unlimited as no copy of the insurance policy had been produced by the said insurance co. [In para 9, reliance on National Ins. Co. vs. Jugal Kishore 1988. ACJ. 270 is noted.]

(9) I am afraid nothing said in this judgment by the highest court is of any help in support of the argument advanced before me by the learned counsel for the appellant. In the said case the question which squarely fell for decision was whether the insurance company's plea that its liability under the insurance policy issued was limited to particular amount or not ? The Supreme Court had made the aforesaid observations in the light of the said plea taken by the insurance company. These observations of the Supreme Court do not lay down the law that even if there is no evidence led by the claimants on the record to prove that in fact a particular vehicle stood insured with a particular insurance company even then presumption can be drawn against the insurance company in not contesting the case before the Tribunal and not producing a copy of the insurance policy. The question of production or non-production of copy of insurance policy would arise only if some evidence is available on the record of the case that the particular vehicle stood insured with a particular insurance company. In case the appellants had been able to prove from some evidence to show that this particular vehicle stood insured on the basis of a particular insurance policy then obviously these observations of the Supreme Court would have been made applicable on the inability of the insurance company to produce any copy of the insurance policy or to contest the case before the Tribunal for coming to the conclusion with regard to unlimited liability but unfortunately for the claimants in the present case, no iota of evidence has been led to prove that this particular vehicle stood insured with the New India Assurance Company.

(10) If that is the position, it is not possible to hold that mere fact that the insurance co. had not contested the case before the Tribunal the presumption should be raised that this vehicle must have been insured with this particular insurance co. Even in an ex-parte case the claimants had to lead evidence to prove the basic fact for proving the liability of a particular party. It is not that the claimants had no means whatsoever to prove that in fact the vehicle stood insured with a particular insurance co. As already discussed by me above, the claimants could have moved some application before the Tribunal u/S. 98 of Motor Vehicles Act, 1939, requiring the Tribunal to make a direction to the owner of the vehicle to disclose the particulars of the insurance policy but no such effort was made If the owner despite such direction had not cared to disclose the particulars of the policy the said owner would have been liable for criminal prosecution u/S. 112 of the said Act. Even otherwise the owner of the vehicle could have no reason to suppress the insurance policy if such a policy existed because the existence and production of such a policy would have absolved the owner of all liability for the claim arising out of this accident. So, there could be no reason for the owner to have suppressed the said policy of insurance if in case the vehicle stood insured at the relevant time. The record does not show as from where the claimants had been able to obtain the name of the insurance co. for being joined as one of the respondents in the claim petition. Counsel for the appellants had, however, at the Bar stated that the name of the insurance co. was supplied by the owner of the vehicle orally. If the owner was so cooperative with the appellants there was no reason as to why the owner would not have disclosed the particulars of the said insurance policy to the claimants, [In para 12 New India Ass. Co. vs. Darshan Singh 1962 Acj 533 is held as inapplicable],

(11) I hold that the insurance co. would not be liable for any claim arising out of this accident as it is not proved that the vehicle in question stood insured with the said company. The finding of the Tribunal that the father of the deceased was not entitled to any amount as he was not one of the legal heirs within the purview of the Hindu Succession Act is not in accordance with law as in view of the provisions of Section 1-A Para 2 of the Fatal Accidents Act, 1855, which lays down that "every such action or suit shall be for the benefit of the wife, husband, parent and child". So, the compensation which has to be awarded in a fatal accident pertaining to the vehicle has to be for the benefit of parents which would include also the father.

(12) As far as the question of compensation is concerned, the Tribunal has found on evidence that the deceased was a bachelor and aged about 19 years and was earning about Rs. 450.00 p.m. He was having only his parents as his dependents and according to evidence he was contributing for their up keeping and maintenance. The Tribunal thought that perhaps Rs. 250.00 p.m. was sufficient for the dependency of the parents keeping in view that deceased was bachelor. In my view, the deceased would have been spending Rs. 150.00 p.m. for his own needs and thus, Rs. 300.00 p.m. were being utilised for the maintenance and upkeep of his parents. The father of the deceased was aged about 54 years at the time of the accident while the mother was aged about 46 years. I am told that the parents of the deceased are still alive and there is longevity of life in the family. Even otherwise now- a-days there is longevity of age in India and the people normally survive about 70 years. So, the multiplier of 20 years was called for. The Tribunal also was not right in reducing the amount of dependency after four years taking the possibility that the deceased would have married and would have spent some money on the maintenance of his own wife. This possibility should not have led the Tribunal to reduce the dependency of the parents inasmuch as there was also possibility of the deceased earning more income during his life time while taking the amount of dependency based on the income which the deceased was having at the time of the accident, no deduction could be made on account of any future liability which the deceased would have to share which would be taken care of keeping in view the fact that the income of the deceased could have increased substantially with the passage of time. The Tribunal was not right in reducing the amount of dependency.

(13) So, keeping in view the above discussion, I hold that the compensation to the tune of Rs. 60,000.00 would have been appropriate.

(14) I allow the appeal and modify award of the Tribunal to the extent that compensation of Rs. 60,000.00 is awarded to the appellants against Shish Pal and Mohinder Singh only and the amount of compensation shall bear the interest @ 9 % per annum from the date of the claim petition till realisation. The appeal against the insurance co. is dismissed.