Smt. Rajni Khanna & Other vs Sh. Daya Chand & Ors.
2011 Latest Caselaw 3637 Del

                                       REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO 465/2003

SMT. RAJNI KHANNA & OTHER ..... Appellants
              Through: Mr. O.P. Mannie, Advocate.

            versus


SH. DAYA CHAND & ORS.                     ..... Respondents
             Through: Ms. Shantha Devi Raman, Advocate
                      for the respondent No.3 - Insurance
                      Company.

                         AND

+                 FAO 352/2003

NATIONAL INSURANCE CO LTD ..... Appellant
             Through: Ms. Shantha Devi Raman, Advocate

            versus


DAYA CHAND & ORS.                              ..... Respondents
            Through:             None for the respondents No.1 and 2.
                                 Mr. O.P. Mannie, Advocate for the
                                 Respondents No.3 and 4.


%                        Date of Decision :     August 01, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL


FAO No.465/2003                                        Page 1 of 16
 1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           JUDGMENT (ORAL)

: REVA KHETRAPAL, J.

1. By this judgment, it is proposed to decide two appeals being

FAO No. 465/2003 entitled "Smt. Rajni Khanna and Others versus

Daya Chand & Ors." and FAO No. 352/2003 entitled "National

Insurance Co. Ltd. versus Daya Chand & Ors." The first of these

two appeals has been filed by the claimants seeking enhancement of

the award amount, while the second appeal has been filed by the

Insurance Company praying for the setting aside of the judgment and

award dated 13.02.2003 on the ground that the insured having

committed breach of the policy conditions, the insurer was not liable

to pay compensation to the claimants. It is proposed to deal with the

said appeals one by one.

FAO No. 465/2003 entitled "Smt. Rajni Khanna and Others versus Daya Chand & Ors."

2. The brief facts leading to the filing of the present appeal are

that on 17.05.1995 at about 10:40 p.m. one Kamal Kishore Khanna

(hereinafter referred to as "the deceased") while he was crossing the

road to go to the G.T.Market, Pritampura, was hit by the offending

vehicle, a truck bearing No. RSA 6585, driven by the respondent

No.1, owned by the respondent No.2 and insured with respondent

No.3. A claim petition under Section 166 of the Motor Vehicles Act,

1988 was filed by the widow and minor daughter of the deceased

claiming the compensation of ` 20,00,000/- for the untimely demise

of the deceased. The learned Tribunal by its judgment and award

dated 13.02.2003 awarded a sum of ` 8,15,800/- (Rupees eight lakh

fifteen thousand and eight hundred only) with interest at the rate of

9% per annum from the date of the filing of the petition, that is,

17.07.2005.

3. The sole grievance of the appellants in the appeal is that a very

meagre amount of compensation has been awarded by the Claims

Tribunal. It is contended by the learned counsel for the appellants

that as per the testimony of PW1 Smt. Rajni Khanna, the wife of the

deceased, her husband was employed with the Central Bank of India

as a clerk on a monthly salary of ` 8,000/- (Rupees eight thousand

only). His date of birth was 13.09.1953, meaning thereby that at the

time of the accident, he was about 41-42 years of age on the date of

the accident. He left behind him his wife, the appellant No.1 aged 34

years at the time of the accident and a minor daughter, the appellant

No.2 aged 7 years on the said date. Keeping in view the aforesaid

facts, the amount of compensation awarded was not just and fair.

4. Mr. O.P. Mannie, the learned counsel for the appellants

strongly contended that the manner of computation of the

compensation adopted by the learned Claims Tribunal was also not in

accordance with the settled principles of law as enunciated in the

various decisions of the Hon'ble Supreme Court. He sought to

challenge the award on the following three grounds:-

(i) Indisputably, the age of the deceased was only

41 years and 8 months at the time of the accident.

The learned Tribunal, however, completely lost

sight of the fact that the deceased was to retire at

the age of 60 years in September, 2013 and as such

the loss of dependency of the appellants deserved

to be calculated after taking into consideration the

future prospects of advancement of the deceased in

his job. The Claims Tribunal thus erred in not

taking into account the future prospects of increase

in the income of the deceased. The increase in the

income of the deceased ought to have been

calculated on the basis that had the deceased not

died an untimely death in the accident, he would

have on an average earned at least 30% more in the

coming years till he attained the age of

superannuation (see Smt. Sarla Verma and Ors.

vs. Delhi Transport Corporation and Anr. (2009)

6 SCC 121).

(ii) The learned Tribunal erred in adopting the

multiplier of 13, instead of the multiplier of 14, to

augment the multiplicand constituting the annual

loss of dependency of the appellants. The

deceased was less than 42 years of the age and the

appropriate multiplier where the age of the

deceased is between 41 years and 45 years is the

multiplier of 14.

(iii) The learned Tribunal erred in not awarding to

the appellants the funeral expenses of the deceased

and the token amounts awarded for non-pecuniary

damages under the heads of loss of love and

affection of the deceased, loss of consortium to the

appellant No.1 and loss of estate of the deceased.

5. To counter the contentions of Mr. O.P. Mannie, the learned

counsel for the appellants, Ms. Shantha Devi Raman, the learned

counsel for the Insurance Company sought to support the award

passed by the learned Tribunal by urging that no enhancement in the

award amount was called for. She also submitted that the interest

awarded by the learned Tribunal at the rate of 9% per annum was

excessive.

6. The undisputed factual position as it emerges from the

testimonies of PW-1, Smt. Rajni Khanna, the wife of the deceased

and PW2 Vidhya Sagar Aggarwal, Assistant Manager of the Central

Bank of India, who proved on record the salary certificate of the

deceased as Exhibit PW-2/1 alongwith his leave record Exhibit PW-

2/2, is that at the time of his accidental death, the deceased had a take

home salary of ` 8,000/- (Rupees eight thousand only) per month. It

also stands established on record that the deceased was at the time of

accident about 41 years of age. He was to retire at the age of 60 years

in September, 2013. He died on 17.05.1995 and certainly in the

working span of 18 years, his salary would have increased

considerably. However, keeping in view the dicta laid down by the

Hon'ble Supreme Court with a view to ensure uniformity in the

method of assessment of compensation by all Courts and Tribunals in

the country in the case of Smt. Sarla Verma (supra), an addition of

30% would be warranted on his salary at the time of his death. The

average monthly income of the deceased, thus, works out to `

10,400/- {` 8,000/- (income at the time of death of the deceased) + `

2,400/- (30% increase of income)}. Deducting one-third therefrom

towards his personal expenses, the loss of dependency of the

appellants comes to ` 6,933/- (Rupees six thousand nine hundred and

thirty three only) per month, that is, ` 83,196/- (Rupees eighty three

thousand and one hundred ninety six only) per annum. Though the

multiplier of 15 is set out in the Second Schedule of the Motor

Vehicles Act, the multiplier for the age-group of persons between 41

years and 45 years as tabulated in the case of Smt. Sarla Verma

(supra) is the multiplier of 14. Thus calculated, the total loss of

dependency of the appellants works out to ` 11,64,744/- {Rupees

eleven lakhs sixty four thousand seven hundred and forty four

only}(` 83,196/- X 14). To this amount, a sum of ` 10,000/- (Rupees

ten thousand only) towards the loss of love and affection of the

deceased, a sum of ` 10,000/- (Rupees ten thousand only) towards the

loss of consortium, a sum of ` 10,000/- (Rupees ten thousand only)

towards loss of estate and a sum of ` 5,000/- (Rupees five thousand

only) towards the funeral expenses and last rites of the deceased are

added, and in all ` 11,99,744 /- (Rupees eleven lakh ninety nine

thousand seven hundred and forty four only) which for the sake of

convenience may be rounded off to ` 12,00,000/- (Rupees twelve

lakh only) is awarded to the appellants.

7. The award is modified to the aforesaid extent. The enhanced

compensation shall be paid to the appellants by the respondent No.3

within 30 days from today along with interest at the rate of 9% per

annum on the amount awarded by the Tribunal and at the rate of 7.5%

per annum on the enhanced amount. The enhanced amount shall be

apportioned and distributed by the learned Tribunal keeping in view

all the facts and circumstances of the case.

FAO No. 352/2003 entitled "National Insurance Co. Ltd. versus

Daya Chand & Ors."

8. Adverting now to the appeal of M/s. National Insurance

Company Limited, wherein the appellant has challenged the

impugned award on the ground that the respondent No.2, the owner

had committed breach of the terms and conditions of the policy by

allowing the respondent No.1 to drive the offending truck, which falls

in the category of Heavy Transport Vehicle (for short "HTV")

whereas the driver possessed the licence to drive only Light Motor

Vehicle (for short "LMV"). It is pertinent to mention at the outset

that the respondents 1 and 2, the alleged driver and owner of the

offending vehicle did not contest the case, though they were duly

served, and were accordingly proceeded ex-parte.

9. In order to substantiate its aforesaid defence, the appellant in

the course of evidence before the learned Tribunal, examined R3W2,

an official from the Licencing Authority, Alwar, who deposed that the

licence in question was issued by their office in the name of one Daya

Ram, son of Shri Kajodia, authorizing him to drive a Light Motor

Vehicle. The appellant also examined R3W1, an official of the

appellant - Insurance Company to prove the breach of the policy

conditions committed by the respondent No.2, by producing the

insurance policy through the said witness.

10. The learned Tribunal on the basis of the deposition of R3W2,

viz., the witness from the Licencing Authority, Alwar held that the

driving licence was not issued in the name of the appellant, but in the

name of one Daya Ram, son of Shri Kajodia, and accordingly

negatived the defence of the Insurance Company. The Tribunal

further observed that as per the seizure memo prepared by the police,

the name of the driver of the offending vehicle had been mentioned as

Daya Ram, son of Roop Chand, resident of Village Sona, Pahar

Colony, Police Station Sohna, District Gurgaon, Haryana and, as

such, it did not find any ground to accept the contention of the

appellant - Insurance Company that it was not liable to pay the

compensation on the ground that it was a case of violation of the

terms and conditions of the policy.

11. Ms. Shantha Devi Raman, the learned counsel for the appellant

has assailed the aforesaid findings of the learned Tribunal on the

ground that the respondent No.1 did not dispute that he was involved

in the accident nor appeared in the witness-box to state that he was

not holding the driving licence in question. She contended that as a

matter of fact, the learned Tribunal failed to notice that the driving

licence number was initially given by the respondent No.1 himself to

the police, who recorded the same in the seizure memo. It was further

contended by her that in view of the fact that evidence had been led

by the appellant, which clearly proved that the said licence was an

invalid licence, the learned Tribunal ought not to have fastened the

liability on the Insurance Company.

12. The further submission of the counsel for the appellant is that

the same driver, namely, the respondent No.1, who was holding the

licence was tried as an accused by the criminal court albeit acquitted

by the said court for the offence of driving the vehicle in a rash and

negligent manner at the time of the accident. Thus, she submitted that

there was no anomaly as to the identity of the driver in the criminal

court also. She further emphasised that in the seizure memo itself, the

police had recorded the name of respondent No.1 as Daya Ram @

Daya Chand @ Lala and therefore Daya Rama and Daya Chand must

be taken to be the one and the same person.

13. Learned counsel further contended that the appellant had on

more than one date of hearing attempted to procure the presence of

the respondent No.1 in the witness-box and had even deposited the

process fee, diet money, etc. for summoning the respondent No.1

and, as a matter of fact, the appellant had proved the service of notice

upon respondent no.1 and made a prayer to the learned Tribunal for

issuance of warrants to examine the respondent No.1. In the

circumstances, the learned Tribunal clearly erred in closing the

evidence of the appellant without affording to it further opportunity to

examine the respondent No.1 in the witness-box. She submitted that

had the appellant been permitted to examine the respondent no.1, it

would have come to light that the driving licence in question was in

fact the driving licence of the respondent No.1. Even otherwise, the

driving licence had the photograph of the person to whom the licence

had been issued, which, the Tribunal would have had the occasion to

compare had the coercive process for summoning the respondent

No.1 been set in motion by the Tribunal.

14. In the aforesaid context, reliance was also placed by Ms.

Raman upon a writing procured by the investigator of the appellant/

Insurance Company from the respondent No.1 himself to the effect

that the police had wrongly recorded his father's name as Roop

Chand instead of Kajodia in the criminal case. A copy of the said

writing obtained by the Investigator is placed on record by the

counsel for the appellant/ Insurance Company along with an

application under Order 41 Rule 27 of the Code of Civil Procedure

praying for permission to lead additional evidence.

15. Having carefully considered the matter from all angles, I am of

the view that it will be just and proper for this court to allow the

appellant to lead additional evidence on the aspect of the driving

licence of the respondent No.1. The defence of the Insurance

Company is that the respondent No.1 was driving a heavy transport

vehicle whereas his licence authorized him to drive only a light motor

vehicle. It is settled law that where the driver of the offending vehicle

is authorized to drive a light motor vehicle and meets with an accident

while driving a heavy transport vehicle, the owner cannot escape the

liability of the payment of the insurance claim to the victims of the

accidents. As is clear from the record, the learned Tribunal, totally

ignored the fact that on two occasions the appellant/Insurance

Company had tried to summon the respondent No.1 as its witness and

taken all the necessary steps for service upon him. In such

circumstances, the learned Tribunal, in my view, ought not to have

closed the evidence of the appellant/ Insurance Company in a hasty

manner without affording further opportunity to the Insurance

Company to take coercive steps for procuring the attendance of the

witness. This being so, I am of the view that it would be in the

interest of justice if the matter is remanded to the learned Tribunal for

recording the evidence of the Insurance Company and the concerned

police personnel to enable the appellant to prove that the respondent

No.1 was the holder of the disputed driving licence.

16. The appeal is accordingly allowed. Parties are directed to

appear before the learned Tribunal on 5th September, 2011, on which

date the Tribunal shall give directions with regard to the summoning

of witnesses, including the respondent No.1, on a date convenient to

all concerned.

17. To conclude, both the appeals are allowed to the extent stated

hereinabove.

18. Records of the Tribunal be sent back forthwith through a

special messenger.

REVA KHETRAPAL (JUDGE) AUGUST 01, 2011 sk