Babu Ram Sharma And Anr. vs Kamla Devi And Ors.
1995 Latest Caselaw 407 Del

JUDGMENT

C.M. Nayar, J.

(1) The present judgment will dispose of Fao No. 141/91arising from the award dated 27/03/1991 of Shri J.P.Sharma, Judge Motor Accident Claims Tribunal, Delhi as well as cross objections filed on behalf ofrespondents/claimants.

(2) The brief facts of the case are that Nirmal Singh aged 32 years. Sub Inspector in Delhi Police died in a road accident on 14/12/1984. The claim petition was filed by his widow Smt. Kamla Devi for self and on behalf of her minor daughterKm.Deepali and minor son Master Digvijay Singh besides Smt. Maha Devi and Shri Kanwar Singh who were the parents of the deceased. Shri Kanwar Singh expired during the pendency of the petition before the Tribunal and his name was accordingly deleted. The claim for compensation was made in the sum of Rs. 10lakhs with interest at the rate of 18 per cent per annum and costs of the petition against the driver Kesho Ram and the owner Babu Ram and the insurer of the vehicle National Insurance Co. Ltd., respondent No. 5 herein. The deceased Nirmal Singh was driving his two wheeler scooter bearing No. Ust 1217 on 14/12/1984 and it is alleged that he was driving at a slow speed on left side of the road with pillion rider Ramji Lal at about 6.30 p.m. He reached near Libra Petrol Pump, G.T.Kamal Road, Delhi. At that time truck bearing No. Dhg 2751driven by appellant No. 2 came from behind at a very fast speed and hit the scooter without blowing any horn and without giving signal with the result that the occupant of the scooter fell down and Nirmal Singh received serious grievousinjuries. The driver fled away from the spot with his truck and even knocked down one cyclist after hitting the scooter. The deceased Nirmal Singh was removed to hospital where he succumbed to injuries on 21/12/1984. lt was pleaded that the income of the deceased was Rs. 1600.00 per month besides other benefits to which he was entitled as Sub Inspector in Delhi Police. He was aged about 32 years at the time of his death and was a man of robust health and simple habits. It was further contended that he was contributing all his earnings to his wife who was spending the same for the welfare and benefit of the family. The deceased was expected to work for a number of years and due for next promotion in theDepartment.

(3) The written statement was filed by appellant Babu Ram, who was owner of the truck and it was contended that the truck was not involved in the accident and the deceased was driving the scooter rashly and negligently and died in consquence of his accident with cyclist and that the driver of the truck was falsely implicated.The Insurance Company, respondent No. 5, raised number of preliminary objections including the plea of limited liability. It was further stated that truck No.DHG 2751 was not at all involved in the accident as it was under repairs with the motor mechanic. It was submitted that the deceased was driving his scooter rashly and negligently and died as a result of the accident with the cyclist.

(4) The following issues were framed on pleadings of the parties: 1. Whether the petitioners are the L.Rs of the deceased late Shri NirmalSingh?2. Whether the deceased sustained I fatal injuries in an accident on 14.12.84caused due to rash and negligent driving of truck No. Dhg 2751 on the part of respondent No. 1?3. To what amount of compensation, if any, are the petitioners entitled and from whom?4. Relief.

(5) The Tribunal disposed of issue No. 1 by holding that the respondents-claimants were the legal representatives of the deceased Nirmal Singh. Issue No.2 was considered on the basis of evidence on record and it was held that the deceased sustained fatal injuries in the accident on 14/12/1984 caused due to rash and negligent driving of truck No. Dhg 2751 on the part of appellant No.2. This issue was decided in favor of the respondents-claimants. The quantum of compensation was considered while dealing with issue No. 3. The salary of the deceased was proved at Rs. 1343.95 per month till 1/01/1986 and the same was accepted by the Tribunal. The contribution towards family on that basis was assessed at Rs. 800.00 per month for a period of one year. The learned Judge then took note of the revision of pay effective from 1/01/1986 and 1/07/1986 by which salary of the deceased would be revised to Rs. 2400.00 per month. The monthly contribution in this background was taken to be Rs. 1500.00 per month for the subsequent years. The multiplier was adopted on the basis of age of retirement,which is fixed for Government service and the deceased having been about 32 years of age, the multiplier was adopted at 25 which in fact would mean that the multiplier of 26 was accepted taking into consideration the first year after the death of the deceased. The total amount of compensation was assessed at Rs.4,59,600.00. The respondents-claimants were also held entitled to interest at the rate of 9 per cent per annum from the date of filing of the petition till realisation.

(6) The next question which was considered by the Tribunal was with regard to the liability of the Insurance Company, respondent No. 5 in this appeal. The learned Judge considered the evidence on record and held that the liability of the Insurance Company was limited to the extent of Rs. 1,50,000.00. The relevant paragraph of the award reads as follows:

"32.On the point of limited liability, the respondents examined Shri R.S.Fuliya, Assistant Divisional Manager, as RW-3 who proved the proposal formEx.RW3/l, carbon copy of the renewal endorsements RW3/3, true copy of the policy Ex.RW3/2 and testified that their liability was limited to Rs. 1.50lacs only as per the premium of Rs. 256.00 (Rs. 240.00 for 3rd party insuranceand Rs. 16.00 for driver and cleaner).

Ram Kumar, Development Officer as RW-4 also stated that the proposal form Ex. RW3/1 was signed by Babu Ram owner in his presence and he paid him the premium according to it in pursuance of which he issued cover noteEx.RW4/1 on which he identified his signatures. The trend of cross examination of the witnesses shows that limited liability is admitted even by the petitioners. The following suggestion was put to R.S. Fuliya, RW-3: "IT is incorrect to suggest that on paying Rs. 4.00 extra, one can get third party liability enhanced to unlimited."

Then following suggestions were put to Ram Kumar, RW-4:    "IT is incorrect that I did not tell Babu Lal as to how much risk was covered for how much premium."  

 I see no reason to disbelieve the consistent and natural testimony of R.S.Fuliya, RW-3 and Ram Kumar, RW-4 on the basis of the documentary evidence in view of what has been held by the Hon'ble Supreme Court in the case reported as 1988 Acj 270. Accordingly, I hold that liability of the Insurance Company, in this case was limited to Rs. 1.50 lacs only."  

(7) The matter has been on board and was taken up for hearing on 4th, 5th 8thand 9/05/1995. No one has put in appearance for respondent No. 5.  

(8) The present appeal has been filed by the owner of the vehicle. The learned Counsel has not disputed the award of compensation in favor of the respondents/claimants but has only contended that the liability of the respondent Insurance Company cannot be held to be limited to the extent of Rs. 1,50,000.00. The Tribunal has referred to the evidence of R.S. Fuliya, Assistant Divisional Manager, R.W.3who proved the proposal form Ex.RW3/1, carbon copy of the renewal endorsement Ex.RW3/3, true copy of the policy Ex.RW3./2 which testify that the liability was limited to the extent of Rs. 1.5 lacs. The record has been produced before thisCourt. I have examined the documents as referred to in the award of the Tribunal.Ex.RW3 /1 is merely a proposal form which indicates that premium of Rs. 256.00 has been paid for the risk date from 18/04/1982 to April 17/04/1983. The accident took place on 14/12/1984. Therefore, this document is of no relevance to the present case. Ex.RW3/2 is the typed renewal endorsement slip for the period of 12months from 20/04/1984 to Apr 19/04/1985. The following paragraph may be of some relevance:    "IT is declared and agreed that the insurance by this policy is renewed for a further period of twelve months from 20.4.1984 to 19.4.1985 (midnight I.S.T.)for an amount of Rs. Third Party at the following premium:Third party Rs. 240.00Dr/Cl Rs. 16.00 Rs. 256.00   

This document is not the original or even the carbon copy of the policy ofinsurance. The reading further indicates that it is signed by Divisional Manager whereas the next document which is relied upon by the TribunalEx.RW3 /3 is a carbon copy of the renewal endorsement which is signed by the Senior Divisional Manager. The said copy obviously seems to be made from a hand written copy and not typed copy which is Ex.RW3 /2. In any case, the terms of renewal indicates that the policy which is operative for the relevant period covers third party risk. Ex.RW4/A is again a cover note relating to the period 18/04/1982 to Apr 17/04/1983, which also does not cover the period when the accident took place. The learned Counsel for the appellant has reiterated that the original policy of the insurance was never dispatched to the owner who is the appellant in this case. However, he has argued that on its own showing the third party risk was covered and there was no occasion for the Tribunal to hold that the liability of the insurance Company waslimited.

(9) The documents referred to above and as noted by the Tribunal in its award clearly indicate and establish two facts (a) that the original policy or the carbon copy of the same was never produced in the Court; and (b) the documents which were produced did not relate to the specific period when the accident took place or were merely renewal endorsements and did not in any manner establish that the liability of the Insurance Company, respondent No. 5 herein, was limited to the extent of Rs.1,50,000.00. On the contrary, it is quite clearly specified that the policy of insurance covered third party risk. The Tribunal in this background has erred in holding that the liability of the Insurance Company was limited. I have no hesitation in holding that the liability of respondent No. 5 is unlimited and the entire amount is so payable by the Insurance Company. The appeal is allowed in the above terms.

(10) The respondents/claimants have also filed cross-objections, C.M.No.327/92.1 have heard learned Counsel for the respondents. He has not pressed for any enhancernent. He has only argued that the Tribunal has awarded interest at the rate of 9 per cent per annum whereas the original claim was made at the rate of 18per cent per annum. The position of law is well settled that this Court is empowered to enhance the rate of interest in the present proceedings. The award of the Tribunal is affirmed. The respondents/claimants are, however, held entitled to interest at the rate of 12 per cent per annum on the awarded amount from the date of filing of the claim petition till realisation. The cross objections are disposed of in the above terms. There will be no order as to costs.