Ami Chand & Anr. vs Jai Prakash & Ors.
2011 Latest Caselaw 4996 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          FAO 488/1999


AMI CHAND & ANR                                  ..... Appellants
                           Through:   Mr. O.P. Mannie, Advocate

                  versus


JAI PRAKASH & ORS                            ..... Respondents
                           Through:   Mr. Salil Paul, Advocate for
                                      the respondent No.3


%                          Date of Decision : October 12 , 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 of the Motor

Accidents Claims Tribunal, Karkardooma, Delhi dated 23.07.1999,

whereby a sum of ` 32,000/- was awarded in favour of the appellants

and against the respondents with interest at the rate of 9% per annum

from the date of the institution of the Claim Petition till realisation.

2. Concisely, the facts are that on 16.07.1988, at about 12.15 p.m,

the bicycle of one Shakti Kumar, aged 12 years, was hit by a truck

bearing No.DHL-5657, being driven rashly and negligently by the

respondent No.1, on account of which Shakti Kumar sustained

injuries to which he succumbed. The appellants are the father and

mother of the said Shakti Kumar (hereinafter referred to as "the

deceased"), who filed a Claim Petition under Sections 110A & 92A

of the Motor Vehicles Act, 1939 claiming compensation in the sum of

` 3 lacs against the respondent No.1-driver, the respondent No.2-

owner and the respondent No.3-Insurance Company. The learned

Claims Tribunal, after conducting an enquiry against the said

respondents, held that the accident was the outcome of the rash and

negligent driving of the respondent No.1, against whom FIR

No.10/88 had also been registered under Sections 279/304A IPC. On

the aspect of quantum of compensation, after noting that the deceased

was a student of sixth standard at the time of the accident, the

Tribunal awarded damages for the death of the child in the sum of

` 30,000/- with funeral expenses of ` 2,000/-, in all, a sum of `

32,000/- with interest thereon. It, however, exonerated the Insurance

Company from the payment of compensation on the ground that the

respondent No.1-driver, Jai Prakash held no driving licence at the

time of the accident.

3. Aggrieved by the aforesaid findings of the Claims Tribunal, the

present appeal has been preferred by the appellants assailing the

award of the Tribunal on the ground that the Tribunal awarded a very

meagre amount of compensation, in the sum of ` 32,000/- only, and

on the further ground that the Tribunal failed to appreciate that the

respondent No.1-driver of the offending vehicle was having a driving

licence and was not disqualified from holding a driving licence, and

as such, all the three respondents, namely, the driver, the owner and

the insurer of the offending vehicle, ought to have been saddled with

the liability to pay the award amount to the appellants.

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

contended that a paltry amount of compensation had been awarded to

the appellants which deserved to be enhanced on all counts. He

submitted that the Tribunal, after observing that the deceased was a

child of 12 years, who was studying in the sixth standard at the time

of his unfortunate demise, proceeded to award a lumpsum of `

32,000/- to the claimants against the claimed amount of ` 3 lacs,

throwing to the winds the settled principles of law for computing

compensation payable to the legal representatives of a deceased

person. Mr. Mannie further contended that it was incumbent upon the

Tribunal to have determined the pecuniary and non-pecuniary losses

suffered by the appellants before awarding compensation to the

appellants. Instead, the Tribunal awarded a lumpsum compensation

without the application of any multiplier and without even awarding

nominal damages to the appellants on account of the loss of estate and

the loss of love and affection of the deceased.

5. In order to substantiate his contention, Mr. Mannie heavily

relied upon the judgment of the Supreme Court rendered in the case

of R.K. Malik & Anr. vs. Kiran Pal & Ors., (2009) 14 SCC 1. In the

said case, twenty-nine school-going children were drowned as a result

of a road accident caused by the overturning of the bus in which the

said children were proceeding to the school, which bus after

overrunning the road and breaking the railing got drowned in the

Yamuna river at Wazirabad Yamuna Bridge. The Tribunal, by its

common judgment, awarded a sum of ` 1,55,000/- to the dependents

of the children between the age group of 10 to 15 years and

` 1,65,000/- to the dependents of children between 15 to 18 years. In

the case of three children who were less than 10 years, the Tribunal

awarded compensation of ` 1,05,000/-, ` 1,30,000/- and ` 1,31,000/-

in their respective cases. Against the said order of the Tribunal,

appeals were filed before the High Court, which were heard together

by the High Court. The High Court by its common order held that the

appellants were entitled to enhancement of compensation in all the

cases by ` 75,000/- and ` 1,000/- (if not already awarded by the

Tribunal) and interest at the rate of 7.5% per annum from the date of

the filing of the petition till payment. Feeling aggrieved, a Special

Leave Petition was filed by the appellants, contending that the High

Court ought to have applied the ratio of Lata Wadhwa and Ors. vs.

State of Bihar and ors., (2001) 8 SCC 197 to the facts of the case and

also that it had failed to award a fair and reasonable compensation.

The Supreme Court, observing that compensation in cases of motor

accidents, as in other matters, is paid to the dependants of the

deceased persons for reparation of damages, and to put them in the

pre-accidental position, held that the damages so awarded should be

an adequate sum of money that would put the party, who has suffered,

in the same position if he had not suffered on account of the wrong

committed. Compensation is, therefore, required to be paid for

prospective pecuniary loss. On the aspect of computation of

compensation, after noticing that the Act provided for payment of

„just compensation‟ vide Sections 166 and 168 of the Motor Vehicles

Act, 1988, the Court observed that it had repeatedly been held that it

is the multiplier method which should be applied as the said method

is based upon the principle that the claimant must be paid a capital

sum, which would yield interest to provide material benefits of the

same standard and duration as the deceased would have provided for

the dependents, if the deceased had lived and earned. The Court

further observed that uniform application of the multiplier method

ensures consistency and certainty and prevents different amounts

being awarded in different cases.

6. Applying the ratio of the aforesaid judgment to the present

case, I have not the least bit of hesitation in holding that the learned

Tribunal did not award „just compensation‟ for the pecuniary losses

suffered by the appellants as the Tribunal threw to the winds the

application of the multiplier method, which, as noticed above, the

Supreme Court has unequivocally laid down, should be uniformly

applied for the purpose of ascertaining the quantum of „just

compensation‟ in all cases of motor accidents. The learned Tribunal

also failed to award „just compensation‟ for the non-pecuniary losses

sustained by the appellants, which, in my opinion, it was bound to do.

It is, therefore, proposed to re-compute the compensation in

accordance with the settled principles of law as enunciated by the

Supreme Court from time to time and it is upon this exercise that I

now embark.

7. Assuming the notional income of the deceased child to be in

the sum of ` 15,000/- per annum in terms of Schedule II, and

applying the multiplier of 15 specified in the Second Column of the

table in Schedule II to the Act, the pecuniary damages payable to the

appellants are computed to be in the sum of ` 2,25,000/-. It is a well

settled legal principle that in addition to awarding compensation for

pecuniary loss, compensation must also be granted for the future

prospects of the children. In the case of Lata Wadhwa (supra) and

M.S. Grewal and Anr. vs. Deep Chand Sood and Ors., (2001) 8 SCC

151, the Supreme Court recognised that denying compensation

towards future prospects would be unjust, and deemed it appropriate

to grant ` 75,000/- as compensation for the future prospects of the

children to be paid to each claimant over and above the awarded

amount. Such award of future prospects was also approved of in the

case of R.K. Malik (supra). Accordingly, it is deemed just and fair to

award a sum of ` 75,000/- towards the future prospects of the

deceased child, who was admittedly a student in pursuit of education

for his advancement in life.

8. So far as the non-pecuniary damages are concerned, as noticed

above, the Tribunal has not awarded any compensation for the non-

pecuniary damages sustained by the claimants. Accordingly, a sum

of ` 75,000/- is awarded towards non-pecuniary damages, including

loss of expectation of life, loss of estate of the deceased and loss of

love and affection of the deceased. The total compensation awarded

thus comes to ` 3,75,000/- (Rupees Three Lac Seventy Five

Thousand Only). The learned Tribunal awarded interest at the rate of

9% per annum from the date of the institution of the petition till the

date of realisation on the compensation awarded by it. In view of the

fact that the award amount has been enhanced considerably by this

Court, the appellants are held entitled to interest on the enhanced

award amount at 7.5% per annum for the aforesaid period. On the

original award amount of ` 32,000/-, interest at the rate of 9% per

annum as awarded by the Tribunal is held to be payable.

9. The next question which arises for consideration in the present

appeal is the question as to the respective liability of the respondents

to pay the award amount. Mr. Mannie strongly contended on behalf

of the appellants that even assuming that the respondent No.1-driver

was not holding a valid and effective driving licence on the date of

the accident, the Insurance Company cannot be exonerated from its

liability to make payment of the award amount in the first instance.

The argument of Mr. Mannie is that in the present case the driver was

not disqualified from holding a driving licence, and as such, there was

no breach of the policy conditions. Reference was made by Mr.

Mannie in this regard to the relevant portion of the insurance policy

(Exhibit RW2/A) captioned "Persons or Classes of Persons entitled to

drive", which reads as follows:

"Persons or Classes of Persons entitled to drive Any of the following:

(a) The Insured

(b) Any other person who is driving on the Insured's order or with his permission. Provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the Rules made thereunder for the time being in force to drive the category of Motor Vehicle insured hereunder."

10. On the basis of the aforesaid section contained in the insurance

policy, Mr. Mannie contended that the Insurance Company could not

be exonerated from its liability to pay compensation unless and until

it proved that the driver was not only not duly licenced, but also

disqualified from holding an effective driving licence.

11. In order to substantiate his aforesaid contention, Mr. Mannie

relied upon the provisions of 96(2)(b)(ii), which read as under:

"(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification;"

12. He contended that according to the construction of this section,

the Insurance Company can succeed for establishing its defence if the

person was not duly licensed or he was disqualified from holding or

obtaining the driving licence during the period of disqualification. In

other words, either of the conditions has to be duly fulfilled. But in

the policy issued in the present case (Ex.RW2/A), the word „and‟ is

used as conjunction instead of the word „or‟ used in the Statute. By

the use of the word „and‟, it stands established that the Insurance

Company has to prove that the driver was not only not duly licensed,

but was also disqualified for holding a licence. In this context, Mr.

Mannie relied upon a Division Bench judgment of the Madras High

Court in the case of M/s. Srinivasa Roadways, Madurai vs. Saroja

and Ors., 1975 ACJ 265, wherein the Division Bench, after referring

to the provisions of sub-clause (ii) of Clause (b) of Section 96(2)

pertaining to breach of the policy conditions and the relevant portion

of the insurance policy pertaining to the limitations as to the use of

the vehicle in the said case, made the following apposite observations:

"................................. the three sub-clauses in Section 96 (2) (b) (ii) indicate the amptitude of permissible exclusion. As the sub-clauses are disjunctive, an option is given to the Insurance Company to exclude at its discretion driving either by a named person or by a Person who is not duly licensed or by a person who has been disqualified for holding or obtaining a driving licence or to exclude driving by all these three classes of persons. In other words, it is open to the Insurance Company to refuse to cover a risk brought about by a person like R.-1 in this case, who at the time of the accident, had held a licence, but had no effective licence covering the period of the accident. But, unfortunately, the Insurance Company, has in this case exercised its option even to include a person who had held a licence prior to the date of the

accident (that is to say, a licence that had expired prior to the date of the accident) and yet was not disqualified for holding or obtaining such a licence at the time of the accident. The Insurance policy issued by the Motor Owners Insurance Co. Ltd.. in this case has been marked as Ex. B 8. In the schedule to this policy, the limitations as to use of the bus have been defined, and it is stipulated that, "the vehicle may be driven either by the Insured or any other person provided he is in the insured's employ and is driving on his order or with his permission; provided that the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence."

What is the construction to be placed on the words 'the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence?' This clause clearly contemplates a person who did not hold a valid licence on the date of the accident, but who had held a licence previously and who had not, at the time of accident, been disqualified for holding or obtaining such a licence. The Insurance Company, with its great business experience, must have thought it right to cover an accident caused by a person who has had considerable driving experience, and yet due to inadvertence or absentmindedness, has not chosen to renew that licence during the period allowed by law and has been involved in an accident while he had not yet obtained a renewal of the licence."

13. On the strength of the aforesaid judgment, it was contended

that if all the conditions laid down in the section are not reproduced in

the policy and the policy positively undertakes to cover liability in

respect of an accident caused by a person who though not having an

effective licence at the time of the accident, has not been disqualified

to hold a licence, the Company cannot escape liability. It was further

contended that there cannot be a compromise between the word „or‟

and the word „and‟. Reliance in this regard was also placed on the

judgment of the Karnataka High Court in the case of Oriental

Insurance Company vs. Mohammed Sab Ali Sab Kaladagi & Ors.,

II (1999) ACC 70. In the said case, the clause in the insurance policy

issued by the appellant was akin to the clause in the insurance policy

in the present case. Referring to the provisions of Section

149(2)(a)(ii), the Court made the following observations:

"5. The wording used as 'or' assumes much importance in this case. According to the construction of this section, the Insurance Company can succeed only if the person was not duly licensed or he was disqualified from holding or obtaining the driving licence during the period of disqualification. According to the construction of the language either of the

conditions has to be duly fulfilled. But in the policy issued the word 'and' is used as conjunction. By the use of word 'and' it goes to show that the Insurance Company has to prove that the driver was not only not duly licensed but also was also disqualified for holding the licence. The word 'or' and the word 'and' used in the policy assumes much importance. There cannot be compromise between the word 'or' and 'and'. The plain language as it is read has to be understood. In this direction, Mr. B.S. Patil, learned Counsel for the respondents relied upon the observation as how the construction of the statute be understood. On page 96 of the Interpretation of Statutes by Maxwell it is stated as follows:-

"To suppress the mischief and advance the remedy.

It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy."

6. The another golden rule (sic.) that is to be remembered is that the statute is capable of being interpreted in two ways. In the case on hand the claimants shall become the victims in the event the Insurance Company is exonerated. The very purpose of issuing the policy is to protect the third party risk. If the Insurance Company is allowed to go scot free on this ground, great hardship would be caused to the claimants. Hence in view of the impending danger that is likely to arise in the case of claimants, the beneficial interpretation has to come to the rescue of the claimants. It is of- quoted that the duty is to provide the light and

not to generate heat. Unless the Insurance Company can place any of the materials covered by Sections 19, 20, 132, 134 and 185, it can never be said that there was any disqualification to hold the licence. It goes without saying that when the specific contention of disqualification is taken by the Insurance Company, the burden is also on the Insurance Company to adduce the evidence that the driver was not duly licensed and was disqualified. No material evidence is adduced in this direction."

14. Mr. Salil Paul, the learned counsel for the respondent No.3, on

the other hand, sought to rebut the aforesaid contentions of

Mr.Mannie and to support the award of the Tribunal by relying upon

the provisions of Chapter II of the Motor Vehicles Act, 1939, and, in

particular, the provisions relating to the necessity for possessing a

driving licence as incorporated in Section 3, and those relating to

renewal of driving licences as contained in Section 11 of the said Act.

For the sake of convenience, the said sections, insofar as the same are

relevant for the present purposes, are reproduced hereunder:

Section 3 "Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a motor

vehicle as a paid employee or shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. (2) A State Government may prescribes the conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle. (3) Notwithstanding anything contained in sub- section (1), a person who holds an effective driving licence authorizing him to drive a motor car may drive any motor cab hired by him for his own use."

Section 11 "11. Renewal of driving licences.- (1) Any licensing authority may, on application made to it, renew a licence issued under the provisions of this Act with effect from the date of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:

Provided further that where the application is for the renewal of a licence to drive as a paid employee or to drive a transport vehicle or where in any other case the original licence was issued on production of medical certificate, the same shall be accompanied by a fresh medical certificate in Form C as set forth in the First Schedule, signed by a registered medical practitioner, and the provisions of sub- section (5) of section 7 shall apply to every such case.

(2) ........................................

(3) ........................................ (4) ........................................ (5) ........................................"

15. Mr. Salil Paul contended that the learned Tribunal, on the basis

of the evidence adduced, had rightly come to the conclusion that the

licence of the respondent No.1-driver was valid only upto 23.01.1988,

and that he had taken the licence back from the Court on 31.07.1989

for the purpose of getting the same renewed. Thus, for the entire

period intervening 24.01.1988 to 31.07.1989, the respondent No.1

was not holding a valid and effective driving licence. The accident in

question admittedly took place on 16.07.1988, on which date the

respondent No.1 was not holding a valid driving licence. Mr. Paul

further contended that the respondent No.1 had also been challaned

by the Police under Section 3/112 of the Motor Vehicles Act, 1939,

for not possessing a valid driving licence, and this fact had been

taken into account by the learned Tribunal for arriving at the finding

that on the date of the accident, the offending vehicle was being

driven by its driver without any valid driving licence.

16. Having considered the rival submissions of the parties, in my

opinion, though the facts in the present case conclusively establish

that on the date of the accident the respondent No.1-driver was

driving the offending vehicle without any valid driving licence, and

the learned Tribunal has rightly held that the offending truck was

being driven by a person who was not holding a valid driving licence,

the Insurance Company cannot be exonerated from making payment

of the award amount in the first instance. The question as to whether

an Insurance Company can avoid its liability in the event it raises a

defence as envisaged in sub-section (2) of Section 149 of the Act,

corresponding to sub-section (2) of Section 96 of the Motor Vehicles

Act, 1939, was the subject matter of consideration by a three-Judge

Bench of the Supreme Court in the case of National Insurance Co.

Ltd. vs. Swaran Singh and Ors., (2004) 3 SCC 297, wherein a large

number of decisions were taken note of and considered, and thereafter

the Court arrived at the following conclusion: (SCC, Pg. 323, 324)

"Clause (a) opens with the words "that there has been a breach of a specified condition of the policy", implying that the insurer's defence of the action would depend upon the terms of

the policy. The said sub-clause contains three conditions of disjunctive character, namely, the insurer can get away from the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a, person disqualified for holding or obtaining a driving licence."

17. The Court further observed that the Insurance Company with a

view to avoid its liabilities is not only required to show that the

conditions laid down under Section 149(2)(a) or (b) are satisfied, it is

further required to establish that there has been a breach on the part of

the insured. It was also observed that a contract of insurance also

falls within the realm of contract, thus, like any other contract, the

intention of the parties must be gathered from the expressions used

therein. The insurer‟s liability, however, arises both from contract as

well as statute.

18. Tested on the aforesaid anvil, in my view, the Insurance

Company cannot be absolved of its liability in the absence of cogent

evidence on the record to show that the driver of the vehicle was

disqualified from holding an effective driving licence, for, the

insurance policy Ex.RW2/A clearly stipulates that any person who is

driving on the insured‟s order or with his permission would be

included in the classes of persons entitled to drive the vehicle in

question provided that he holds or had held and has not been

disqualified from holding an effective driving licence as per the

Motor Vehicles Act and the rules framed thereunder. In such

circumstances, to my mind, clearly in the present case, it cannot be

said that the insured had breached the conditions of the insurance

policy as the person driving the vehicle had held a driving licence and

it has not been established on record that he had been disqualified

from holding an effective driving licence. It is well established that

the person who alleges breach must prove the same. The Insurance

Company was, therefore, required to establish the breach of the policy

by cogent evidence. It has failed to prove that there has been breach

of the conditions of policy on the part of the insured, and therefore, it

cannot be absolved of its liability.

19. In view of the legal position enunciated above, it is held that

the Insurance Company shall pay the amount of compensation as

adjudged in paragraph 8 hereinabove to the appellants by depositing

the same with the Registrar General of this Court within 30 days of

the date of the passing of this order, which shall be released to the

appellants in equal proportion.

20. The appeal stands disposed of accordingly. There shall be no

order as to costs.

21. Records of the Tribunal be sent back to the concerned Tribunal.

REVA KHETRAPAL (JUDGE) October 12 , 2011 km