Sudesh Rani And Ors. vs Kesar Singh And Ors.
2011 Latest Caselaw 656 Del

                                     UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   FAO 170/1999

SUDESH RANI AND ORS.                         ..... Appellants
                 Through:               Mr. Navneet Goyal, Advocate

                    versus

KESAR SINGH AND ORS.                           ..... Respondents
                 Through:               Mr. M.M. Kalra and Mr. Kunal
                                        Kalra, Advocates for the
                                        respondent No.3

+                   FAO 164/1999

NEW INDIA ASSURANCE CO.LTD.              ..... Appellant
                 Through: Mr. M.M. Kalra, Advocate

                    versus

SUDESH RANI & ORS                                     ..... Respondents
                             Through:   Mr. Navneet Goyal, Advocate
                                        for the claimants

%                            Date of Decision : February 04, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

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?
                          J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

CM No.2486/2011 in FAO 164/1999

This is an application praying for restoration of the appeal. In

view of the ground given in the application, the appeal is restored to

its original number.

The application stands disposed of.

FAO 170/1999 and FAO 164/1999

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

FAO No.170/1999 entitled "Sudesh Rani and Others vs. Kesar

Singh and Ors." and FAO No.164/1999 entitled "New India

Assurance Co. Ltd. vs. Sudesh Rani & 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 02.12.1998 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.170/1999 entitled "Sudesh Rani & Ors. vs. Kesar Singh & Ors."

2. The facts may be narrated as follows. On the fateful day, that

is, on 10.06.1991, the deceased Trilok Nath was going to his shop at

about 10.40 p.m. on scooter No.DLY-6516 when he was hit by a

truck bearing No.DEL-5097. The accident was witnessed by Shri

Mohd. Khalil, who was produced as PW4 in the witness box to

depose about the manner in which the accident occurred. On the

basis of the testimony of this witness, the Claims Tribunal held that

the accident was the outcome of contributory negligence of the truck

driver and the deceased scooter driver in the ratio of 50% each.

3. On the aspect of quantum of compensation, the Claims

Tribunal, after noting that the appellants had claimed a sum of ` 10

lakh as compensation and that the deceased Trilok Nath was earning `

4,000/- per month as per his income-tax returns filed on record,

deducted one-third of the earnings of the deceased for his personal

expenses, transportation, etc. and assessed the monthly loss to the

family to be in the sum of ` 2,660/- per month, that is, ` 31,920/- per

annum. The deceased being 51 years of age at the time of the death,

the Tribunal adjudged the multiplier of 10 to be the appropriate

multiplier and thus calculated the compensation payable to the

appellants to be in the sum of ` 3,19,200/- [` 2,660/- x 12 x 10]. The

Tribunal then held that since the driver of the offending truck had

been negligent to the extent of 50% only and the remaining 50%

negligence was on the part of the deceased, only half of the award

amount was payable by the Insurance Company to the legal

representatives of the deceased. An award of ` 1,59,600/- (Rupees

One Lakh Fifty Nine Thousand and Six Hundred Only) [including

interim compensation] with interest at the rate of 12% per annum was

thus passed in favour of the claimants and against the Insurance

Company.

4. The contention of Mr. Navneet Goyal, the learned counsel for

the appellants is that the Claims Tribunal erred in holding that the

scooterist was guilty of contributory negligence to the extent of 50%

and scaling down the award amount accordingly. Mr. Goyal

contended that the learned Tribunal altogether ignored the evidence of

eye-witness PW4 Mohd. Khalil that the truck was being driven in a

rash and negligent manner and at a very fast speed and after hitting

the scooterist the truck stopped after 50 feet. Mr. Goyal also

contended that the driver of the truck not having appeared in the

witness box to depose about the manner in which the accident

occurred, in any case, adverse inference ought to have been drawn

against him by the Claims Tribunal.

5. The next contention of Mr. Goyal is that the deduction of one-

third made by the Claims Tribunal towards the personal expenses of

the deceased was unwarranted and that the deduction keeping in view

the fact that the deceased was survived by four legal heirs should not

have been more than 1/4th of the income of the deceased. He further

contended that the Claims Tribunal erred in taking the multiplier of

10 for the purpose of augmenting the multiplicand and thus

erroneously computed the loss of dependency of the appellants. The

appropriate multiplier, he submitted, keeping in view the fact that the

deceased was admittedly 51 years of age on the date of the accident,

would be the multiplier of 11.

6. Needless to state that the aforesaid contentions of Mr. Goyal

with regard to the inadequate amount of compensation awarded to the

appellants were sought to be countered by Mr. M.M. Kalra, the

learned counsel for the Insurance Company, who sought to support

the award of the learned Tribunal insofar as the assessment of the

amount of compensation was concerned.

7. A look first at the evidence of the eye-witness to the accident

PW4 Mohd. Khalil, but before doing so it may be noted that in the

claim petition the manner in which the accident occurred is set out as

under:

"On 10.6.91 the deceased was going to his shop at about 10.40 P.M. on his Scooter No.DLY6516 while overtaking the Truck No.DEL 5097, the truck turned to its right, without blowing horn and without any indication, driving negligently and rashly, crushing the deceased."

8. PW4 Shri Mohd. Khalil, in his examination-in-chief, deposed

that he saw truck No.DEL-5097 coming from Hauz Khazi and going

towards Lal Qila. The deceased scooterist was going on a scooter in

the same direction. The truck was coming at a fast speed negligently

and while overtaking, the deceased was hit by the truck. After hitting

the scooterist, the truck stopped at a distance of 50 feet. The

scooterist fell down and sustained injuries. In his cross-examination,

the testimony of this witness remained unshaken and the witness

categorically denied the suggestion put to him that the accident had

not taken place due to the negligence of the truck driver and had taken

place due to the negligence of the scooter driver.

9. The learned Claims Tribunal, however, relying upon the

clarification issued by the witness in his cross-examination that the

scooterist was in the process of overtaking the truck when the

accident took place, held that since the scooterist must have been

driving at a faster pace than the truck for the purpose of overtaking

the truck, he must be held to be equally liable for the accident which

resulted in the fatality. I am not inclined to agree with the aforesaid

finding of the learned Tribunal with regard to the manner in which the

accident occurred for the following reasons.

10. A bare glance at the site plan, which has not at all been taken

into account by the learned Tribunal, shows that the truck was taking

a turn towards the right and in the process it hit the scooterist which

was overtaking the truck from the right side. A distance of 50 feet

has been shown in the site plan between the place of the accident and

the place where the truck eventually stopped after the accident, which

is a clear pointer to the fact that the driver of the truck was taking a

right turn without giving any horn or signal for the same. It was for

the driver of the truck to have appeared in the witness box to explain

as to how the truck stopped at a distance of 50 feet after taking a turn

to the right. The driver of the truck has chosen not to explain the

manner in which the accident occurred either by filing a written

statement or by appearing in the witness box and as such, in my view,

adverse inference must be drawn against him. The mere fact that the

scooterist was in the process of overtaking the truck when the

accident occurred cannot by itself be taken to mean that the scooterist

was driving the scooter in a rash and negligent manner. The deceased

scooterist was overtaking from the right side of the truck and possibly

had no inkling that the truck would suddenly take a turn towards its

right without any signal or indication. The necessary corollary is that

the accident must be held to be the outcome of the rash and negligent

driving of the driver of the truck alone, who was wholly and solely

responsible for the death of the driver of the scooter.

11. Adverting now to the other two contentions of the learned

counsel for the appellants viz., that the Tribunal ought to have

deducted only one-fourth of the income of the deceased for his

personal expenses keeping in view the fact that the deceased was

survived by four legal representatives and that the appropriate

multiplier in the instant case would be the multiplier of 11 instead of

the multiplier of 10 adopted by the Tribunal, I am inclined to agree

with both the aforesaid contentions. In Smt. Sarla Verma and Ors.

vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, the

Hon'ble Supreme Court has laid down certain criteria and guidelines

to be followed by all Courts and Tribunals in the assessment of

compensation to the legal representatives of deceased victims. In

paragraph 14 of its decision in the said case, the Supreme Court has

expressed the view that where the deceased is married and the number

of dependent family members is four to six, the deduction towards

personal and living expenses of the deceased should be one-fourth of

the income of the deceased. As regards the multiplier to be adopted

by the Courts for capitalizing the multiplicand constituting the loss of

dependency of the legal representatives of the deceased victim, for the

age group of victims between 51 to 55 years of age, the appropriate

multiplier in the said case has been held to be the multiplier of 11.

Even otherwise, this multiplier is in consonance with the judgment of

the Supreme Court rendered in the case of UP State Road Transport

Corporation vs. Trilok Chandra, (1996) 4 SCC 362, as approved in

the case of New India Assurance Co. Ltd. vs. Charlie, AIR 2005 SC

2157, and is also in consonance with the multiplier specified in the

Second Column in the table in the Second Schedule to the Motor

Vehicles Act.

12. Thus, following the aforesaid guidelines laid down in the case

of Sarla Verma (supra), the compensation payable to the appellants

comes to ` 48,000/- (annual income as adjudged by the Tribunal)

minus ` 12,000/- (1/4th deduction towards the personal and living

expenses of the deceased) multiplied by 11 (number of years of

purchase) = ` 3,96,000/-. Since the accident was the result of the rash

and negligent driving of the driver of the truck and, as noticed above,

there was no contributory negligence on the part of the deceased, the

Insurance Company is held liable to pay the entire amount of

compensation to the appellants alongwith the interest accrued thereon.

The judgment and award of the Tribunal stand modified accordingly.

13. Resultantly, the appeal is allowed in the above terms.

FAO No.164/1999 entitled "New India Assurance Co. Ltd. vs. Sudesh Rani & Ors."

14. Adverting now to the appeal of the Insurance Company, the

sole contention of the learned counsel for the Insurance Company is

that the findings rendered by the Claims Tribunal on Additional Issue

No.3A are liable to be set aside. The said issue reads as under:

"Whether the respondent No.3 is not liable to pay any compensation as the respondent No.1 was not holding any valid licence at the time of the accident? (OPR 3)"

15. In support of its plea that Kesar Singh, the driver of the truck

did not have a valid driving licence on the date of the accident and so

the Insurance Company is not liable to make the payment of

compensation to the claimants, the Insurance Company examined in

the witness box RW1 B.A. Noni, Assistant, New India Assurance

Company, who deposed that the Company had got verified the

driving licence of the driver Kesar Singh from the Transport

Authority, Bhopal and that the original report dated 15.07.1994 along

with copy of the driving licence bearing No.K-21A61 dated

17.09.1990 was Ex.RW1/6 and Ex.RW1/7. He further deposed that

the report of the surveyor/investigator Mr. Bharat Saxena, Advocate

was Ex.RW1/8 and the covering letter of the Company was

Ex.RW1/9.

16. The Claims Tribunal after noting that the licence was renewed

upto 17.09.1990 and again renewed upto 16.09.1993 vide

endorsement Ex.RW1/7 and that the policy of insurance Ex.PW1/1

carried an endorsement about the valid licence of the driver (Para

'B'), held as follows:

"So, in my opinion, if the licence has been found forged by the insurance company after verification, the liability of the insurance company is still there because the owner did not know this fact that the licence of the driver is not genuine one and he was not required to

make enquiries from the licencing authority of Bhopal before making appointment of his driver. Only thing which the owner of the truck was required to see for appointment of a driver is a driving licence. The driving licence does not on the face of it look to be a forged one. So, I hold that the Insurance Company is liable to make the payment of the award amount and liability of the insurance is there in this case. The issue is decided against the insurance company."

17. In arriving at the aforesaid conclusion, the learned Claims

Tribunal placed reliance upon the following judgments:

(i) Chhotu Lal & Ors. vs. Chameli Bai & Ors., 1977 (1)

TAC 106 (Rajasthan).

(ii) Oriental Insurance Company Ltd. vs. Usha, 1997 (1)

TAC 82 (Kerala).

(iii) Sukh Dev vs. Bhagwati Devi & Ors., 1996 (1) ShimLC

320 (Himachal Pradesh).

(iv) Skandia Insurance Co. Ltd. vs. Kokilaben

Chandravadan, 1987 ACJ 411 (Supreme Court).

(v) V. Mepherson vs. Shiv Charan Singh, 1998 ACJ 601

(Delhi High Court).

(vi) Sohan Lal Passi vs. P. Sesh Reddy and Ors., 1996 ACJ

1044 (Supreme Court).

18. I find that the common thread running through all these

judgments rendered by the Hon'ble Supreme Court and various High

Courts is that it must be established by the insurer by placing

adequate material on record that it was the insured who had wilfully

violated the condition of the policy with regard to driving licence, by

allowing a person not duly licensed to drive the vehicle when the

accident took place, to enable the Tribunals and Courts to mulct the

liability on the insured. Further, as highlighted in the case of Sohan

Lal Passi (supra), the right to claim compensation by the heirs and

legal representatives of the victims of the accident ought not to be

defeated on technical grounds. Thus, in cases where the insured

placed the vehicle in charge of a licensed driver, he cannot be said to

be guilty of any breach disentitling him to get the compensation

amount from the Insurance Company.

19. In a subsequent decision rendered by a three-Judge Bench of

the Supreme Court in the case of National Insurance Co. Ltd. vs.

Swaran Singh & Ors., I (2004) ACC 1, the Hon'ble Supreme Court

made the following apposite observations in the context of the

insured-owner not being guilty of breach of the insurance policy

where ex facie the driving licence of the driver engaged by him

appears to be a genuine one:

"(iii) The breach of policy condition, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub- section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time,

(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish „breach‟ on the part of the owner of the vehicle; the burden of proof where for would be on them."

20. In view of the aforesaid law laid down by the Supreme Court, I

have not the least bit of hesitation in upholding the findings of the

learned Claims Tribunal on Issue No.3A. There is no material on

record to suggest that the insured was aware of the fact that the

driving licence of his driver was a forged one (even assuming the

same to be forged in the absence of the evidence of the Transport

Authority as well as in the absence of the evidence of the

surveyor/investigator appointed by the Insurance Company). This

being so, the appellant cannot escape the liability to make payment of

the award amount to the claimants on the pretext of forged driving

licence. As such, there is no merit in the present appeal.

21. To conclude, the appeal of the claimants is partly allowed and

the appeal of the Insurance Company is dismissed.

REVA KHETRAPAL (JUDGE) February 04, 2011 km