Delhi High Court
Rampati & Ors. vs Shyambeer & Ors. on 30 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th March, 2012
Pronounced on: 30th March, 2012
+ MAC APP. 857/2010
RAMPATI & ORS. .... Appellants
Through: Mr. S.N. Parashar, Adv.
versus
SHYAMBEER & ORS. .... Respondents
Through: Mr. K.K. Bhat, Adv. for R-3.
+ MAC APP. 841/2010
NEW INDIA ASSURANCE CO. LTD. .... Appellant
Through: Mr. K.K. Bhat, Adv.
versus
RAMPATI & ORS. .... Respondents
Through: Mr. S.N. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two Appeals arise out of a judgment dated 22.07.2010
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a compensation of `17,33,750/- was
awarded for the death of Shrichand, who died in a motor
accident which occurred on 26.12.2005.
2. During inquiry before the Claims Tribunal it was claimed that
the deceased was 50 years of age. He was earning ` 42,000/-
per month from doing the job of a building contractor. The
Claim Petition was filed by the widow and three major sons of
the deceased.
3. In the absence of any reliable evidence as to the deceased's
income, the Claims Tribunal ventured to make a guess work to
assume the deceased's income to be `1,95,000/- (post tax),
deducted one-fourth towards the personal and living expenses
and applied the multiplier of '11' suitable to the deceased's age.
4. The Claims Tribunal further awarded a sum of `1,00,000/-
towards loss of Love and Affection.
5. In MAC APP.841/2010 preferred by the New India Assurance
Company Limited (Insurance Company) the ground of
challenge is that the Appellant Insurance Company was liable to
be absolved of the liability as the driver did not possess a valid
driving licence on the date of the accident, whereas in MAC
APP.857/2010 preferred by the Claimants it is averred that the
income taken by the Claims Tribunal was not the deceased's
actual income. It was much less, resulting into the award of a
meager compensation.
6. First of all, I would deal with the contention raised on behalf of
the Claimants.
7. During inquiry before the Claims Tribunal, Claimant Rampati
filed her Affidavit Ex.PW-1/X and entered the witness box as
PW-1. In the Affidavit she testified that her husband was
earning more than ` 5,00,000/- per annum as tax was being
deducted at source. The Claimants also produced Kamal
Kishore who also testified that the deceased was earning `
40,000/- to ` 50,000/- per month. In cross-examination, the
witness candidly admitted that he had no personal knowledge
about the documents produced by him. The deceased's
profession as a building contractor cannot be disputed in view
of the document Ex.PW-3/C which shows that the tax was being
deducted at source for the work carried by the deceased. At the
same time, Form 16-A (Ex.PW-3/C) simply reveals the gross
payment made to the deceased by M/s. Vardhman Properties
Limited. It does not show as to how much was the cost of the
material and how much was the cost of the labour. The
Claimants did not file any Income Tax Return to show as to
what was the deceased's actual income after all his expenditure
(on the business of building contractor). The Claims Tribunal
performed the difficult task of making a guess work of the
deceased's net income to be ` 2,00,000/- from the gross receipts
as mentioned in Ex.PW-3/C.
8. I have no material to interfere with the guess work so as to
enhance the compensation awarded by the Claims Tribunal. I
would not interfere with the same.
9. As far as the liability of the Insurance Company is concerned,
the Claims Tribunal held as under:-
"28. In their defence insurer only led the evidence of
Assistant G. Majhi to tender his affidavit wherein it was
mentioned that offending vehicle was insured in the name
of M/s. Spartan Overseas for the period from 11.03.05 to
10.03.06. However, only computerized copy of insurance
policy was placed on record instead of carbon copy nor
this witness could tell as to by whom the policy was
signed. The notice issued u/o 12 Rule 8 CPC was
referred to as Ex.RW2/1 and the postal receipt as
Ex.RW2/2 & 3 and AD card the driver as RW2/4.
However, the investigator or the Author of the notice
were not examined. The accident took place on 26.12.05
whereas the investigator report (photocopy) shows that
the DL in the name of Shyambeer was valid from
12.07.02 to 11.07.05 and from 29.12.05 to 28.12.08.
There is over writing in figure 29 and 28 in dates
29.12.05 and 28.12.08 respectively. None from the
authority was examined to prove the validity of the DL as
such it can not be said that insurer has proved that DL
was invalid on the date of the accident. So insurer is not
entitled to any recovery right."
10. A photocopy of the driving licence was placed on record of the
Claims Tribunal to show that the driving licence was valid from
29.07.2005 to 28.07.2005.
11. The Insurance Company relied on the photocopy of a report
sent by one Mr. Bhavesh, an Advocate/Investigator to the
Divisional Manager accompanied with the photocopy of some
report purported to have been given by the Motor Licensing
Authority. No authenticity can be attached to such a report and
the Claims Tribunal rightly disbelieved the same.
12. The Insurance Company failed to discharge the onus of proving
conscious breach of the terms of policy in view of the
photocopy of the driving licence placed on record which
showed the license to be valid on the date of the accident.
13. The Insurance Company was rightly fastened with the liability
to pay the compensation.
14. There is no merit in the Appeals; the same are accordingly
dismissed.
15. Pending application also stands disposed of.
(G.P. MITTAL)
JUDGE
MARCH 30, 2012
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