Shanti Devi And Ors. vs Sh. Chet Ram And Ors.
1995 Latest Caselaw 428 Del

JUDGMENT

C.M. Nayar, J.

1. The present judgment will dispose of two appeals, FAO No. 205/ 88 National Insurance Co. Ltd. v. Smt. Shanti Devi and Ors. and FAO No. 210/88 Smt. Shanti Devi and Ors. v. Shri Chet Ram and Ors. The first appeal is filed by the Insurance Company impugning the award dated July 22,1988 of Smt. Mamta Sehgal, Judge Motor Accident Claims Tribunal. The second appeal is filed by the claimants for enhancement of compensation.

2. The brief facts are that on November 26, 1979 at about 7.30 a.m. one Shri Anup Singh was on duty as Assistant Sanitary Inspector and was standing outside the tea shop of Ramesh Chander near D.T.C. bus stand Along with deceased Ishwar Singh, all of a sudden bus bearing No. DLP 5312 being driven by respondent No. 7 (respondent No. 1 herein) in a rash and negligent manner hit the above said Anup Singh from the back side. It further hit Ishwar Singh who died on the spot. After the accident the claimant Anup Singh became unconscious and was removed in a taxi to Willingdon Hospital by one of his colleagues, who was working with him at the relevant time. He suffered head injuries and compound fractures on his different parts of the body. It is alleged that he did not recover fully from such injuries and his working capacity has been reduced. One of his legs has become short and he suffered physical pain and agony. The said Anup Singh is alleged to have spent Rs. 10,000/- on medicines, Rs. 8,000/- on special diet and Rs. 2000/- on conveyance. He became permanently disabled and had to take leave from his office. In view of this accident and the injuries suffered by him he has claimed a sum of Rs. one lakh as compensation. The claimants in the case of deceased Ishwar Singh have filed their claim on the plea that Ishwar Singh was 28 years of age and was working as conductor with Delhi Transport Corporation. He was earning Rs. 720/- to Rs. 800/- per month from his occupation and agriculturist as well. He had bright prospects and would have retired as Traffic Supervisor, if he had not met untimely end. The unfortunate accident took place when the deceased was on his way to join his duty and was accompanied by Anup Singh.

3. The legal heirs of the deceased who filed the claim petition included his widow Smt. Shanti Devi, three minor children and his parents. The mother of the deceased Smt. Rakhtswarj Devi has since expired. The claim for Rs. two lakhs was made. Two petitions were filed, one by the injured Anup Singh and the other by legal heirs of the deceased Ishwar Singh. The two petitions, being Suit No. 71-A/80 (Anup Singh v. Chet Ram) and Suit No. 57/80 (Smt. Shanti Devi v. Chet Ram) were consolidated and were tried together.

4. The following issues were framed in Suit No. 71-A/80 and in Suit No. 57/8:

Suit No. 71-A/80:

1. Whether the petitioner Anup Singh sustained injuries due to rash and negligent driving of bus No. DLP 5312 on the part of respondent No. 1 as alleged?

2. Whether the petition is not maintainable against respondent No. 3 for the additional pleas taken in the written statement?

3. To what amount of compensation, if any, is the petitioner entitled and from whom?

4. Relief.

Suit No. 57/80:

1. Whether the petitioners are the legal representatives of deceased Shrilshwar Singh?  OP?

2. Whether Shrilshwar Singh sustained fatal injuries due to rash and negligent driving of bus No. DLP 5312 on the part of respondent No. 1 Shri Chet Ram ? DPP

3. Whether respondent No. 1 was not having valid driving license? If not its effect ? OPR

4. To what amount of compensation, if any, are the petitioners entitled and from whom ? OPR

5. Relief.

It will not be necessary for me to deal with the claim of Anup Singh as he has already been awarded the compensation of Rs. 33,132/- with costs. The appellant insurance Company has not impugned the award nor the claimant Anup Singh has filed any appeal before this Court. The said award is accordingly affirmed.

5. The respondents-claimants in the case of Ishwar Singh (Suit No. 57/80) have been awarded a sum of Rs. 1,15,200/- with costs. The Tribunal only granted conditional interest to the extent that in case the appellant-Insurance Company does not pay the awarded amount within three months, the respondents shall be held entitled to interest at the rate of 12 per cent per annum from the date of order till realisation.

6. The learned Counsel for the appellant has not impugned the award but has contended that the liability of the Insurance Company is limited to the extent of Rs. 50,000/ - and any amount in excess of this figure is not payable by the company. The learned Judge has referred to the evidence on record and has clearly held on appreciation of oral as well as documentary evidence that the appellant failed to prove the insurance policy and its terms and conditions. The factum of insurance has not been denied. The liability, therefore, was held to be unlimited and the appellant was held liable to pay the entire awarded amount. The following paragraph from the award which is of relevance reads as follows:

The best evidence to prove is the document itself. The original policy has not been produced. The plea that it had been in the possession of the owner is not sustainable as no notice under Order 12, Rule 8 has been given to the owner to produce the original policy on record for the reasons known to the Counsel for the Insurance Company. This witness has simply deposed that he has brought the office carbon copy of the insurance policy and the same is Ex. RW-1. I have perused Ex. RW 1/1 on which it is mentioned triplicate copy. Respondents Counsel has not been able to explain how this copy called to be the carbon copy of the original. This witness has simply deposed that no date has been mentioned, as to when this document is prepared nothing is mentioned as to from which document it was prepared. Endorsement No. 6 is on the proforma prepared in sixth month of 1980. Moreover no year is mentioned on this document to prove that this is authentic document. The proposal form has also not been produced to show as to which cover was demanded by the insurer. Since the respondent Insurance Company has failed to prove the insurance policy and its terms and conditions but the factum of insurance has been admitted. I find that liability in this case is unlimited and they are liable to pay the entire awarded amount.

7. I have also perused the evidence on record as well as the copy of the insurance policy which has been referred to me at the time of arguments. There is no infirmity in the findings of the Tribunal and the facts stated in the above paragraphs are based on appreciation of evidence. In any case, even if the policy on record is accepted as the true copy, it is clearly indicated for reading the same that the appellant-Insurance Company has also changed the following premiums:

      Additional Pay Driver (APD)         Rs. 16/-
     Additional Third Party (ATP)        Rs. 330/-
     Riot and Strike (RS)                Rs. 250/-
 

In view of the position which has now emerged even after reading of the policy it ii crystal clear that the offending vehicle was having a comprehensive insurance policy which covered all risks and there is no reason to hold that the policy only limited the liability of the appellant-company to the extent of Rs. 50,000/-. The contention of learned Counsel for the appellant is, accordingly, rejected. It is held that the policy covers the entire risk and the appellant-company is liable to discharge the same.

8. The question now arises, as to whether, the award of compensation in the sum of Rs. 1,15,200/- is liable to be enhanced. The deceased Ishwar Singh was aged 28 years. He was employed as a Conductor in D.T.C. and was drawing a salary of Rs. 571.86 per month. This is supported by his pay certificate. The Tribunal has ignored the income of the deceased which he was alleged to be earning, Rs. 700/- to Rs. 800/- per month from his part time occupation as an agriculturist. The Tribunal has failed to take note of the fact that there is always a scope of future advancement in the career of a young person, particularly, when he was employed in the Government Corporation as a conductor. The scales of pay are revised on the basis of Pay Commission Reports as well as Additional allowances are payable to such category of employees. The multiplier of 24 years as adopted by the Tribunal can also not be justified in the facts of the present case as the deceased, in any case, would have continued to work till the age of 58 years. The life expectancy can be assessed higher than 58 as has been recently held by the Supreme Court in the case of Urmila Pandey and Ors. v. Khalil Ahmed and Ors. an over all view on the facts and circumstances of the present case it can be safely assumed that the contribution of the deceased towards his family would not be less than Rs. 700/- per month. The deceased was a young man of 28 years and would have, in any case, continued to work till the age of 58 years although the life expectancy could not be held less than 60-65 years even at that point of time. The multiplier of 24 on this basis, as adopted by the Tribunal, is rather inadequate. However, the compensation even on that basis would not be less than Rs. two lakhs, which is claimed by the appellants-claimants in their claim petition. I, therefore, assess the amount of damages to the appellants-claimants at Rs. 2 lakhs, the amount which has been claimed in the petition.

9. The Tribunal has further erred in not awarding interest to the claimants from the date of filing of the petition before the Tribunal till the date of realisation. The position of law is well settled that the Court possessed sufficient powers to enhance the rate of interest as well as to award interest in case the same is not so awarded by the Tribunal. The claimants are, accordingly, held entitled to simple interest at the rate of 15 per cent per annum from the date of petition till its realisation. The amount which has already been disbursed to the claimants shall be taken into account in assessment of the amount which is now held payable.

For the aforesaid reasons, FAO No. 205/88 is dismissed. FAO No. 210/88 filed by the claimants is allowed with costs which are assessed at Rs. 5000/-.