Delhi High Court
Angoora Devi & Ors. vs Mahesh Yadav & Ors. on 3 October, 2011
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 125/1996 and CM No.3480/1996
ANGOORA DEVI & ORS. ..... Appellants
Through: Ms. Manjit Chawla, Advocate
versus
MAHESH YADAV & ORS. ..... Respondents
Through: Mr. Prag Chawla and
Mr. Saurabh Shokeer,
Advocate for the respondent
No.1
Mr. D.K.Sharma, Advocate for
the respondent No.3.
% Date of Decision : October 03, 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?
JUDGMENT
: REVA KHETRAPAL, J.
1. This appeal is directed against the judgment and award of the
Motor Accidents Claims Tribunal, Delhi dated 16.01.1996 passed in
Suit No.445/87.
2. The factual matrix is that on 15.10.1987, one Ram Saran, aged
43 years, a carpenter by vocation, was travelling in bus No.DEP 6068
owned by the respondent No.1 and driven by the respondent No.2.
While he was alighting from the said bus, and his one foot was on the
foot board and the other on the road, the respondent No.2 - driver all
of a sudden started the bus, and the deceased fell down and came
under the front wheel of the bus, sustaining fatal injuries. A Claim
Petition was filed by his legal representatives, being his widow, four
sons and two daughters, impleading the respondent No.1-owner, the
respondent No.2-driver and the respondent No.3-M/s. New India
Assurance Co. Ltd., the insurer of the bus in question. The
respondent No.1 denied the factum of the accident. The respondent
No.2 did not care to contest the petition and was proceeded ex parte
in default of appearance. The respondent No.3-Insurance Company
took in defence the specific plea that the liability of the Insurance
Company was limited to ` 15,000/- only as per the terms and
conditions of the policy and the provisions of the Motor Vehicles Act,
1939, the deceased being a passenger and not a third party.
3. The Motor Accidents Claims Tribunal held that the accident
was the outcome of the rash and negligent driving of the respondent
No.2 of the bus owned by the respondent No.1. As regards the plea
of the Insurance Company that the deceased was a passenger and
hence the liability of the Insurance Company was limited to
` 15,000/- only, the learned Tribunal, relying upon certain decisions,
held that the deceased Ram Saran was a passenger as he was alighting
at the bus stop, which was his destination. It further held that in view
of the fact that a specific plea of limited liability had been raised by
the Insurance Company and notice to produce the original policy had
been given to the respondent No.1-owner of the bus in question, who
had failed to produce the same, the copy of the policy (Ex.RW2/4)
produced by the Insurance Company was admissible in evidence,
wherein the limit of liability of the Insurance Company was
mentioned as ` 15,000/- only.
4. On the aspect of quantum of compensation payable to the legal
representatives of the deceased, the learned Tribunal assessed the
monthly income of the deceased to be in the sum of ` 1,200/- per
month. Thereafter, the learned Tribunal, relying upon the judgment
of the Supreme Court in the case of General Manger, Kerala State
Road Transport Corporation, Trivandrum vs. Mrs. Susamma
Thomas and Ors., 1994 ACJ 1 took into account the future prospects
of increase in the income of the deceased and arrived at the average
monthly income of the deceased in the sum of ` 2,400/-. From this
amount, it deducted one-third (1/3rd) towards the personal expenses of
the deceased, thereby assessing the loss of dependency of the
claimants to be in the sum of ` 1,600/- per month. Applying the
multiplier of 10, it computed the total loss of dependency to be in the
sum of ` 1,92,000/- per annum (i.e. ` 1,600/- X 12 X 10). Adding a
sum of ` 10,000/- towards the loss of consortium, the Tribunal held
the claimants to be entitled to a total sum of ` 2,02,000/- with interest
at the rate of 12% per annum from the date of the petition.
5. Aggrieved from the aforesaid judgment of the Tribunal, the
present appeal has been preferred by the appellants/claimants. Cross-
objections have also been filed by the respondent No.1-owner. The
appeal as well as the cross-objections are contested by the respondent
No.3-Insurance Company.
6. The first question which arises for consideration in the present
case is whether the deceased was a passenger and hence the liability
of the appellant, as per the policy of insurance, is a limited one?
7. It is not in dispute that the aforesaid issue has to be decided in
the light of the policy of insurance in the name of the respondent
No.1, the owner of the offending bus, and the provisions of the Motor
Vehicles Act, 1939.
8. The learned counsel for the appellants Ms. Manjit Chawla, has
assailed the findings of the learned Tribunal by contending that the
deceased ought to have been considered a "third party" in view of the
law laid down by this Court in the case of S.M. Rai & Co. and Ors.
vs. New India Assurance Co. Ltd. and Ors., 1994 ACJ 1242,
wherein it has been held that a person in the process of alighting at
the destination ceases to be a passenger. Reliance was also placed by
her upon the decision of this Court in the case of Pandit Ram Saroop
and Anr. vs. Balbir Singh and Ors., 1988 ACJ 500.
9. Mr. Prag Chawla and Mr. Saurabh Shokeer, the learned counsel
for the respondent No.1-owner, too, relied upon the aforesaid
decisions as well as the decisions rendered in A. Subramani vs. Mani
and Ors., 1990 ACJ 37; Giriraj Prasad Agrawal vs. Parwati Devi &
Ors., III (2005) ACC 559 Jharkhand (Full Bench); National
Insurance Co. Ltd. vs. V.K. Sundaravali and Ors., 1990 ACJ 821;
Thoznilalar Transport Company vs. Valliammal and Ors., 1990
ACJ 201, to contend that the learned Tribunal erred in holding that
the deceased was a passenger at the time of the accident, and in
consequently holding that the liability of the Insurance Company was
limited to the extent of ` 15,000/- only.
10. Per contra, the contention of Mr. D.K. Sharma, the learned
counsel for the Insurance Company is that the Motor Accidents
Claims Tribunal in the impugned order has rightly fixed the liability
of the insurer at ` 15,000/- only, as the insured had paid a premium of
` 12/- per passenger as was evident from the copy of the insurance
policy Ex.RW2/4, which was proved in evidence by RW2, an official
of the Insurance Company.
11. Mr. Sharma contended that the issue as to whether a person
alighting from a bus is a passenger or not is squarely covered in
favour of the Insurance Company by the decision of the Supreme
Court in the case of Noorjahan (TMT) vs. Sultan Rajia (TMT) alias
Thaju and Ors., (1997) 1 SCC 6. In the said case, the question which
arose for consideration was whether the victim was a „passenger‟
within the meaning of Section 95(1)(b)(ii) of the Act. The plea of the
Insurance Company was that the deceased, one Syed Abu Thakir was
a passenger in the bus and, therefore, its liability was limited to
` 10,000/- as per the provisions of Section 95 of the Act. The plea of
the appellant, on the other hand, was that the victim/deceased was a
„third party‟ and hence the Insurance Company was liable to meet the
entire claim. The Supreme Court, after interpreting the provisions of
Section 95(1) of the Act and observing that there was a divergence of
opinion on the question whether the deceased could be said to be a
passenger in the bus, held that he was a passenger for whom the
liability of the Insurance Company at the relevant time was limited to
only ` 10,000/-.
12. It would be useful at this juncture to extract the relevant part of
Section 95 of the Act which came to be under consideration in the
aforesaid case and which reads as under:-
"95. Requirements of policies and limits of
liability.- (1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which-
(a) xxx xxx xxx
(b) insures the person or classes of persons
specified in the policy to the extent specified in
Sub-section (2)
(i) against any liability which may be
incurred by him in respect of the death of
or bodily injury to any person or damage
to any property of a third party caused by
or arising out of the use of the vehicle in a
public place;
(ii) against the death of or bodily
injury to any passenger of a public service
vehicle caused by or arising out of the use
of the vehicle in a public place.
Provided that a policy shall not be
required-
(i) xxx xxx xxx
(ii) except where the vehicle is a
vehicle in which passengers are carried
for hire or reward or by reason of or in
pursuance of a contract of employment, to
cover liability in respect of the death of or
bodily injury to persons being carried in
or upon entering or mounting or alighting
from the vehicle at the time of the
occurrence of the event out of which a
claim arises, or
(iii) xxx xxx xxx"
13. The Supreme Court, after considering the scope and ambit of
the provisions of the aforesaid section held as follows:-
"Section 95(1)(b) makes it clear that a policy of
insurance shall not be required to cover
liability in respect of death or bodily injury to
persons boarding or alighting from a motor
vehicle but clause (ii) of the proviso thereto
engrafts an exception and says that where the
vehicle is one in which passengers are carried
for hire or reward or by reason of or in
pursuance of a contract of employment, it shall
be necessary to cover liability in relation to
persons carried in or upon such vehicle which
would include cases of death or bodily injury
caused while entering or mounting or alighting
from such vehicle. The words "alighting from
the vehicle" are plain and simple and clearly
mean "while getting down from the vehicle".
Therefore, if a person is still in the process of
boarding or alighting from the vehicle, such
person would be entitled to the coverage, no
doubt within the limit of liability fixed under the
statute at the relevant point of time. It must be
remembered that this was a beneficial provision
engrafted by way of an exception to provide an
insurance cover to passengers."
14. Affirming the view of the High Court that the deceased Syed
Abu Thakir was a passenger and not a third party, the Supreme Court
in the aforesaid case further observed as under:-
"The High Court rightly interpreted the proviso
(ii) extracted above to mean that the liability in
respect of death or injury to persons alighting
from the vehicle at the time of the accident need
not be covered except where the vehicle is a
vehicle in which the passengers are carried for
hire or reward or by reason of or in pursuance
of a contract of employment. In other words,
where the vehicle is a vehicle in which the
passengers are carried for hire or reward or by
reason of or pursuant to a contract of
employment, giving rise to the above liability
arising out of an accident, the vehicle has
necessarily to be covered. It can be seen that
the proviso is an exception to Section 95(1). As
per sub-section (b) the insurance policy must
insure the persons specified in the policy
against (i) any liability to person or property of
a third party, and (ii) against death or personal
injury to any passenger of a public service
vehicle. The liability in respect of those
suffering injury while getting into or alighting
from the vehicle need not be covered if the
vehicle is not one in which the passengers are
carried for hire or reward. But as in the present
case, the vehicle is one that carries passengers
for hire or reward, the liability for personal
injury or death caused while getting into or
alighting from the vehicle would be required to
be covered by the policy. In other words, such
people who suffer injury or die while alighting
from the vehicle are to be covered by the
general rule that the insurance policy for a
public service vehicle should cover the liability
against the death of or bodily injury to any
passenger of such a vehicle."
15. From the above law enunciated by the Supreme Court, it
clearly emerges that in view of Section 95(1)(b)(ii) of the Motor
Vehicles Act, 1939, a policy of insurance shall be required to cover
liability in respect of death of or bodily injury to persons boarding or
alighting from a motor vehicle where the vehicle is one that carries
passangers for hire or reward. Clause (ii) of the proviso thus engrafts
an exception to Section 95(1)(b) and a person covered by the proviso
would be entitled to coverage under the policy of insurance, though
within the limit of liability fixed under the statute.
16. It may be noted that the aforesaid authoritative pronouncement
of the Supreme Court in Noorjahan's case (supra) was subsequently
followed by a Division Bench of this Court in the case of Krishan Lal
Baweja and Anr. vs. Sudershan and Ors., 2002 ACJ 2037, which is
heavily relied upon by the learned counsel for the Insurance Company
to buttress his contention that persons entering into or alighting from
a passenger vehicle are passengers.
17. I pause here to note the contention of the learned counsel for
the appellants that the testimony of RW1 Mahesh Yadav, the owner
of the vehicle, goes to show that the liability of the Insurance
Company was unlimited. Ms. Chawla pointed out that the said
witness in his testimony has categorically stated that the original
policy had not been issued to him, nor he had received any notice
from the side of the Insurance Company to produce the original
policy, and as a matter of fact all that he had received from the
Insurance Company was a cover note. Reference was also made by
her to the testimony of RW2, Het Ram, an official of the Insurance
Company (wrongly recorded as RW1 in the record of the learned
Tribunal), who proved on record true copy of the insurance policy
(Ex.RW2/4) as well as the notice under Order XII Rule 8 CPC issued
to the owner for the production of the original policy (Ex.RW2/3)
with the postal receipt (Ex.RW2/2) and the A.D. Card (Ex.RW2/1)
[wrongly recorded as Exhibit RW1/4, Exhibit RW1/3, Exhibit RW1/2
and Exhibit RW1/1 respectively]. The learned counsel contended that
the said witness in his testimony had clearly admitted that the terms
and conditions were contained separately which were not enclosed
with the insurance policy (Ex.RW2/4) and further that RW2 had not
brought the proposal form or the receipt book to show the amount of
premium received from the insured.
18. It is true that what has been produced and proved on the record
of this Court is a copy of the insurance policy and not the carbon copy
thereof. It, however, cannot be lost sight of that the Insurance
Company has proved on record that the notice for production of the
original policy was duly served by registered A.D. post on the
respondent No.1-owner, who failed to produce the same. The
respondent No.1-owner not having produced the original policy, in
such circumstances, in my view, the Insurance Company was entitled
to lead secondary evidence in respect of the insurance policy.
Further, though the respondent No.1-owner states that the policy of
insurance was not issued to him at all and what was issued to him was
only a cover note, nothing has been placed on record by him to
substantiate his aforesaid statement, and hence the policy of insurance
must be held to be proved in evidence.
19. A perusal of document Ex. RW2/4 shows that under the
caption „SCHEDULE OF PREMIUM‟, pertaining to liability to
public risk, it is stated:-
POLICY NO. Insured‟s Non- Electrical & Total I.E.V.
4532103292 Estimated value Electrical Electronic
of vehicle Accessories Accessories
Rs.1,80,000/- Rs. -- Rs. -- Rs.1,80,000/-
SCHEDULE OF PREMIUM
A: OWN DAMAGE Rs. 440-00 B: LIABILITY TO Rs. 240-00
BASIC PUBLIC RISK
as per END IMT 23 Add: for L.L.
Add: 3% on Extra Electrical Rs. to passengers
or Electronic fitting as per as per
END IMT. 71 END IMT.13 47 Pass Rs. 564-00
Add for 1.10% on I.E.V. + Rs. 1980-00 Limit per @ Rs.12
RSD + F + EQ passenger each
(Maximum Rs.15,000/- Rs.
as per M.V. Act, 1939)
Rs.
Less: ......... % Discount Add for L.L. to paid
for excess of Rs....... (Max. Rs. driver and/or Cleaner as Rs. 16-00
Rs...........) per END IMT. 16 1 + 1
as per END. IMT. 1
Add for Riot & Strike Rs. Add for increased T.P.
0.25% of Rs. Limits
Total I.E.V. as per END Section II 1(i) Unlimited 75-00
IMT. 21 Rs. Section II (ii) Rs.
Add................. Rs.3,00,000/-
Add................. Rs. Add for ................ Rs.
Rs.
Rs.
Rs.
Rs. COMPREHENSIVE Rs. 3315-00
PREMIUM (A + B)
Less: % No Claim Bonus
Less: 5% Sp. Discount Rs. 166-00
(if due)
Rs. NET PREMIUM DUE Rs. 3149-00
(ROUNDED OFF)
20. It stands established from the aforesaid that for 47 passengers
the premium paid was ` 564/-, that is, at the rate of ` 12/- per
passenger. It is not in dispute that as per the India Motor Tariff, if
premium of ` 12/- per passenger was paid, the liability of the
Insurance Company would be limited to ` 15,000/- per passenger.
Accordingly, it must be held that in the present case, the liability of
the Insurance Company to satisfy the award is limited to ` 15,000/-
only. Significantly, however, the insurance policy Ex.RW2/4 also
contains an „Avoidance Clause‟, in view of which it is held that the
Insurance Company is liable to satisfy the award passed in favour of
the claimants/appellants in the first instance and then recover the
amount paid in excess of its limited liability from the owner and the
driver of the offending vehicle. (See New Asiatic Insurance Co. Ltd.
vs. Pessumal Dhanamal Aswani and Others, 1958-65 ACJ 559;
Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531; Oriental
Insurance Co. Ltd. vs. Cheruvakkara Nafeessu and Others, 2001
ACJ 1; New India Assurance Co. Ltd. vs. Vimal Devi and Ors.,
2010 ACJ 2878 (SC); followed by this Court in the cases of
Gurcharan Kaur and Anr. vs. Raja Ram and Anr, 2011 (6) AD
(Delhi) 36; Lata Goel and Ors. vs. Rishipal and Ors., FAO
No.254/1993 decided on September 23, 2011; and Bimla Gupta and
Ors. vs. Mahinder Singh and Ors., FAO No.51/1991 decided on
September 26, 2011).
21. Adverting next to the aspect of the quantum of compensation
awarded to the appellants by the learned Tribunal, the learned counsel
for the appellants contended that the learned Tribunal ought to have
taken the income of the deceased to be ` 1,500/- per month as
testified by PW-1, Smt. Angoora Devi, the wife of the deceased, and
after taking into account the future prospects of the deceased, the
learned Tribunal ought to have assessed the average annual income of
the deceased to be in the sum of ` 3,000/- per month. I am not
inclined to agree with the said contention for the reason that there is
no documentary or other evidence on record to show that the
deceased was earning ` 1,500/- per month. I, therefore, see no reason
to interfere with the assessment of the average annual income of the
deceased made by the learned Tribunal which was assessed to be in
the sum of ` 2,400/- per month.
22. It was next contended by the counsel for the appellants that a
deduction of not more than one-fifth (1/5th) should have been made
from the income of the deceased keeping in view the fact that the
deceased was survived by seven dependents. I am at one with this
contention of the learned counsel for the appellants for the reason that
in the case of Smt. Sarla Verma and Ors. Vs. Delhi Transport
Corporation and Anr. (2009) 6 SCC 121, the Supreme Court has
categorically laid down that where the number of dependent family
members of a deceased person are more than six in number, the
deduction towards his personal expenses cannot exceed one-fifth
(1/5th). Thus calculated, the average annual loss of dependency of the
appellants comes to ` 23,040/- per annum [that is ` 2,400/- X 4/5 X
12].
23. The learned counsel also contended, and I think rightly so, that
in consonance with the judgment of Sarla Verma (supra), the
multiplier applicable in the instant case would be the multiplier of 14
instead of the multiplier of 10 which has been applied by the learned
Tribunal. The deceased was 43 years of age on the date of the
accident and for the age group of persons between 41 years to 45
years, the multiplier approved of by the Supreme Court in the
aforesaid case is the multiplier of 14. Thus calculated, the total loss of
dependency of the appellants comes to ` 23,040 /- x 14 = `
3,22,560/- (Rupees Three Lakh Twenty Two Thousand Five Hundred
and Sixty Only).
24. As regards the non pecuniary damages, the learned Tribunal
awarded a sum ` 10,000/- towards the loss of consortium to be
awarded to the appellant No.1, to which I am inclined to add a sum of
` 10,000/- each towards the loss of love and affection of the deceased
and the loss of estate of the deceased and a further sum of ` 5,000/-
towards the funeral expenses of the deceased, that is, in all a sum of `
3,57,560/- (Rupees Three Lakh Fifty Seven Thousand Five Hundred
and Sixty Only).
25. Resultantly, the award amount stands enhanced by a sum of
` 1,55,560/- (i.e. ` 3,57,560/- minus ` 2,02,000/-). Interest on the
enhanced amount shall be payable at the rate of 7.5% per annum from
the date of filing of the petition till realization. Interest on the
original award amount, that is, ` 2,02,000/- shall, however, be
payable at the rate of 12% per annum from the date of the filing of the
petition till the date of realization. The Insurance Company is
directed to deposit the entire amount of compensation along with
interest as aforesaid by depositing the same with the Registrar
General of this Court within 30 days from the date of the passing of
this order, which shall enure solely to the benefit of the appellant
No.1. Liberty is given to the Insurance Company to recover the
amount paid by it over and above its limited liability of ` 15,000/-
along with proportionate interest thereon from the respondent No.1,
the owner of the offending vehicle, in accordance with law.
26. The appeal is partly allowed in the above terms. CM
No.3480/1996 also stands disposed of accordingly. There will be no
order as to costs.
27. Records of the learned Tribunal be sent back to the concerned
Tribunal.
REVA KHETRAPAL
(JUDGE)
October 03, 2011
km
