Delhi High Court
The New India Assurance Co. Ltd. vs Rakesh Ahuja & Ors. on 30 August, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12th July, 2013
Pronounced on: 30th August, 2013
+ MAC.APP. 185/2009
TARA SHARMA & ANR. ..... Appellants
Through: Mr. Navneet Goyal, Adv. with
Ms. Mamta Bhardwaj, Adv.
versus
THE NEW INDIA ASSURANCE CO.LTD. & ORS...... Respondent
Through: Mr. D.D. Singh, Adv. with
Mr. Navdeep Singh, Adv. for R-1.
Ms. Arati Mahajan, Adv. for R-4/DTC.
+ MAC.APP. 236/2009
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. D.D. Singh, Adv. with
Mr. Navdeep Singh, Adv.
versus
RAKESH AHUJA & ORS. ..... Respondent
Through: Mr. Navneet Goyal, Adv. with
Ms. Mamta Bhardwaj, Adv. for R-3.
+ MAC.APP. 238/2009
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. D.D. Singh, Adv. with
Mr. Navdeep Singh, Adv.
versus
RAKESH AHUJA & ORS ..... Respondent
Through: Mr. Navneet Goyal, Adv. with
Ms. Mamta Bhardwaj, Adv. for R-3 to
R-6.
MAC. APP. 185/2009, 236/2009 & 238/20092 Page 1 of 11
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
CM. 7068/2009 (delay) in MAC APP.238/2009
There is a delay of 93 days in filing the Appeal.
For the reasons as stated in the Application, the delay of 93 days in filing
the Appeal is condoned.
The Application is allowed.
MAC.APP. 185/2009, MAC.APP. 236/2009 & MAC.APP. 238/2009
1. These three Appeals arise out of a common judgment dated 27.11.2008
passed by the Motor Accident Claims Tribunal (the Claims Tribunal) in
Suit No.313/2008 titled Ajay Popli v. New India Assurance Company
Limited & Ors. and Suit No.319/2008 titled Smt. Tara Sharma & Ors. v.
New India Assurance Company Limited & Ors.
2. MAC APP. 185/2009 is for enhancement of compensation preferred by
the legal heirs of the deceased Naveen Chandra Sharma whereas MAC
APPs.236/2009 and 328/2009 have been preferred by the New India
Assurance Company Limited (the Insurance Company) on the ground
that although the driving licence No.7620 held by the respondent Bachan
Singh, the driver of the offending vehicle was found to be fake, the
Claims Tribunal still made the Insurance Company liable to pay the
compensation.
3. On 18.08.1999 at about 12:40 P.M. the deceased Naveen Chandra
Sharma and Ajay Popli were driving on a two wheeler No.DL-7SC-4131.
The two wheeler was being driven by Naveen Chandra Sharma (the
deceased) while respondent (the claimant) Ajay Popli was sitting on the
pillion. When the two wheeler reached near Todapur Picket, a bus
No.DL-1P-6097 being driven by Bachan Singh in a rash and negligent
manner came on the wrong side and collided against the two wheeler.
Ajay Popli and Naveen Chandra Sharma suffered injuries. The injuries
suffered by Naveen Chandra Sharma proved to be fatal. Two separate
claim petitions were filed, that is, one by injured Ajay Popli (Suit
No.313/2008) and the other (Suit No.319/2008) by the legal
representatives of the deceased Naveen Chandra Sharma.
4. The Claims Tribunal awarded a compensation of `22,81,825/- towards
pecuniary and non-pecuniary damages in favour of Ajay Popli and a sum
of `5,53,000/- for the loss of dependency and the non-pecuniary damages
in favour of the legal heirs of the deceased Naveen Chandra Sharma.
MAC.APP. 236/2009 & MAC.APP. 238/2009
5. The only ground of challenge raised in these appeals is that the driving
licence No.7260 held by the driver Bachan Singh and purported to have
been issued by Licensing Officer, Pune was proved to be fake by the
Insurance Company. Although another driving licence Mark A produced
by Rakesh Ahuja, who was the owner of the Bus No. DL-1P-6097 was
not got verified by the Insurance Company, yet in view of the provisions
of Section 6 of the Motor Vehicles Act, 1932 (the Act) a driver cannot
possess two driving licences and thus, the driving licence produced by
Rakesh Ahuja, the owner of the bus (the insured) was of no consequence.
Referring to Jai Parkash Goyal v. United India Insurance Company Ltd.
II (2010) CPJ 183 (NC) the learned counsel for the Insurance Company
prayed that the impugned order so far as it makes the Insurance Company
liable to pay the compensation is liable to be set aside and the Insurance
Company is entitled to be exonerated.
6. On the other hand, learned counsel for the claimants argues that the onus
is on the Insurance Company to prove that there is a willful and
intentional breach of the terms of policy on the part of the insured.
Rakesh Ahuja's (insured's) testimony as R1W1 that driver Bachan Singh
had produced a driving licence issued by the Transport Authority,
Mathura to him and that he had employed Bachan Singh after taking a
driving test and finding him to be a skilled driver, was not challenged in
cross-examination. The Insurance Company never tried to verify the
genuineness of the driving licence Mark A although its copy was
produced when the insured received a notice to produce the driving
licence. The learned counsel for the claimants, therefore, argues that the
Insurance Company cannot be permitted to take a plea of breach of the
terms and conditions of the policy to avoid the liability. In support of his
contention, the learned counsel placed reliance on National Insurance
Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297 and United
India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338.
7. It is true that Section 6 of the Act puts restrictions on holding of a second
licence by any person while he holds any driving licence which is already
in force.
8. I have perused the report of the National Consumer Dispute Redressal
Commission in Jai Prakash Goyal. In the said case on facts the State
Commission had found that the claimant himself, that is the owner of the
vehicle had attached the driving licence No.S/7264/Una/93 in the name of
driver Satish Kumar in the claim form filed by him with the claim. The
said driving licence on verification was found to be fake. In the instant
case in pursuance of the notice given by the Insurance Company, the
owner of the offending vehicle (Rakesh Ahuja) produced a copy of the
driving licence Mark A. He stated that he took the driving test and found
him (Bachan Singh) to be a skilled driver. The owner also deposed that he
had seen the driving licence (Mark A) of Bachan Singh at the time he was
employed by him. Thus, it is not a case where the insured was aware of
the possession of two driving licences by the driver, thus, Jai Parkash
Goyal relied upon by the learned counsel for the Insurance Company is
not attracted to the facts of the present case.
9. In the case of National Insurance Company Limited v. Swaran Singh &
Ors. 2004 (3) SCC 297, it was held that to avoid its liability towards the
insured, insurer has to prove that the insured was guilty of negligence and
failed to exercise reasonable care in the matter of fulfilling the terms and
conditions of the policy regarding use of vehicles by a duly licenced
driver or one who was not disqualified to drive at the relevant time. It
cannot be said that the Insurance Company has been able to discharge the
onus of proving the negligence on the owner's part. On the other hand,
there is ample evidence to show that the owner Rakesh Ahuja exercised
due care to ensure that the vehicle is driven by a duly licenced driver. As
stated above, R1W1's (Rakesh Ahuja's) testimony that he employed
Bachan Singh on seeing his driving licence Mark A was not challenged in
cross-examination.
10. In the case of United India Insurance Company Ltd. v. Lehru & Ors.
2003 (3) SCC 338, it was held by the Supreme Court that owner of a
vehicle while hiring a driver is not expected to check the records of the
licensing officer to satisfy himself that the driving licence is genuine. If
the driver produces a driving licence which on the face of it looks
genuine, the owner cannot said to be negligent. I would extract Para 20 of
the report hereunder:-
"20. When an owner is hiring a driver he will therefore have to
check whether the driver was a driving licence. If the driver
produces a driving licence which on the face of it looks genuine,
the owner is not expected to find out whether the licence has in fact
been issued by a competent authority or not. The owner should
then take the test of the driver. If he find that the driver is
competent to drive the vehicle, he will hire the driver. We find it
rather strange that Insurance Companies expect owners to make
enquiries with RTO's, which are spread all over the country,
whether the driving licence shown to them is valid or not. Thus
where the owner has satisfied himself that the driver has a licence
and is driving competently there would be no breach of Section
149(2)(a)(ii). The Insurance Company would not then be above of
liability. If it ultimately turns out that the licence was fake the
Insurance Company would continue to remain liable unless they
prove that the owner/insured was aware or had notice that the
licence was fake and still permitted that person to drive. More
importantly even in such a case the Insurance Company would
remain liable to the innocent third party, but it may be able to
recover from the insured. This is the law which has been laid down
in Skiandia's Sohan Lal Passi's and Kamla's cases. We are in full
agreement with the views expressed therein and see no reason to
take a different view."
11. Thus, the Insurance Company failed to prove any willful or conscious
breach of the terms and conditions of the policy. It may also be noted that
Section 6 of the Act puts restrictions on a person holding a second driving
licence while he holds any driving licence which is in force. A fake
driving licence cannot be said to be a driving licence for the time being in
force. Thus, even if it is assumed that the owner was aware of the driving
licence issued by the Licensing Officer, Pune if the same was found to be
fake then the said driving licence shall be deemed to be not in force.
Therefore, the Claims Tribunal's order making the Insurance Company
liable to pay the compensation cannot be faulted.
12. No other ground has been raised by the Insurance Company in these two
appeals. Both the appeals are accordingly dismissed.
MAC.APP. 185/2009
13. In this appeal the appellants who are parents and siblings of the deceased
Naveen Chandra Sharma seek enhancement of compensation on the
following grounds:-
(i) Deceased Naveen Chandra Sharma's income was proved as
`8450/- per month, the Claims Tribunal ought to have computed
the compensation on this amount after making addition towards
future prospects;
(ii) Keeping in view the age of the mother of the deceased, which was
about 50 years, the Claims Tribunal ought to have adopted the
multiplier of '13' as against '8' applied by it; and
(iii) The compensation awarded towards non pecuniary damages is on
the lower side.
14. On the other hand, the learned counsel for the Insurance Company
submitted that the compensation awarded is just and reasonable and did
not call for any interference.
15. During inquiry before the Claims Tribunal, the claimants put up a case
that deceased Naveen Chandra Sharma had an income of `5500/- per
month from M/s. Parkash Brassware Industries, in addition he had an
income of `2950/- per month from M/s. Aakar Creation where he was
doing part time job. The Claims Tribunal believed the deceased's income
to be `5500/- per month on the basis of the muster roll Ex.PW-2/1 to
Ex.PW-2/3, the extract of entries from the salary register Exs.PW-2/4 to
PW-2/6 and the certificate Ex.PW-2/7 issued by the accountant. The
Claims Tribunal held that no document had been placed on record by the
claimants to prove that the deceased had an income of `2950/- from part
time employment with M/s. Aakar Creation.
16. In order to prove the deceased's income the claimants examined Gour
Charan Sharma (PW-1) the deceased's father and M.K. Sharma (PW-2)
Manager M/s. Parkash Brassware Industries. Income of `5500/- from
M/s. Parkash Brassware Industries was accepted by the Claims Tribunal.
Income of `2950/- as part time Production Controller from M/s. Aakar
Creation was rejected on the premise that no document had been placed
on record by the claimants to prove this income. This finding of the
Claims Tribunal cannot be accepted as it is contrary to the record.
17. Coming to the oral evidence in his Affidavit dated 20.09.2003 PW-1
swore that the deceased was getting a salary of `2950/- from M/s. Aakar
Creation as Production Controller on part time basis. He also proved a
certificate Ex.PN issued by its Proprietor Bal Kishan in this regard.
Admittedly, Bal Kishan was not produced to prove the certificate Ex.PN
but, at the same time, neither the certificate nor PW-1's testimony that the
deceased was working as a part time Production Controller was
challenged in cross-examination by the Insurance Company. Thus, on the
basis of the preponderance of probabilities the income of `2950/- per
month as part time Production Controller was sufficiently proved by the
claimants. The same ought to have been taken into account to determine
the loss of dependency.
18. Coming to the multiplier to be adopted, in the ration card Ex.PM, the age
of Smt. Tara Sharma, mother of the deceased was stated as 50 years.
This ration card was issued in the year 1998. Thus, according to the ration
card, she was about 51 years at the time of the accident. In his affidavit,
PW-1 Gaur Charan Sharma stated the age of Smt. Tara Sharma to be
about 58 years on 20.09.2003, that is on the date the Affidavit was sworn
in. Thus, according to the ration card either way Smt. Tara Sharma was
aged between 51 to 55 years on the date of the accident. As per Sarla
Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121 in case of death of a bachelor, the age of the mother of the
deceased is to be taken into consideration to select the multiplier to
compute the loss of dependency. The appropriate multiplier in the age
group of 51 to 55 years is '11'.
19. The deceased was a graduate from Punjab University. He had a good
track record with his previous employers and sufficient experience. The
claimants were therefore, entitled to an addition of 50% towards future
prospects in view of the law laid down in Sarla Verma and approved by
the three Judge Bench decision of the Supreme Court in Reshma Kumari
& Ors. v. Madan Mohan & Anr. 2013 (5) SCALE 160. Although, there
were four claimants, that is, two parents and two siblings, no evidence
was produced by the claimants that the deceased's father was not working
or that the siblings were fully dependant on the deceased. In this view of
the matter, there has been deduction of 50% towards personal and living
expenses as against one-third made by the Claims Tribunal. The loss of
dependency thus comes to `8,36,550/- (5500/- + 2950/- + 50% x 1/2 x 12
x 11) as against ` 5,28,000/- awarded by the Claims Tribunal.
20. The Claims Tribunal awarded a sum of `25,000/- in all towards loss of
love and affection, funeral expenses and loss to estate. Loss of love and
affection can never be measured in terms of money. Thus, uniformity has
to be adopted by the Courts while granting non-pecuniary damages. The
Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425
and in Baby Radhika Gupta v. Oriental Insurance Company Limited
(2009) 17 SCC 627 granted only `25,000/- (in total to all the claimants)
under the head of loss of love and affection. Thus, I would enhance the
compensation under this head to `25,000/-.
21. In addition, the claimants are awarded `10,000/- each towards funeral
expenses and loss to estate.
22. The overall compensation is re-computed as under:-
Sl.No. Compensation under Awarded by Awarded by
various heads the Claims this Court
Tribunal
1. Loss of Dependency \`5,28,000/- `8,36,550/-
2. Loss of Love & Affection ` 25,000/- ` 25,000/-
Funeral Expenses ( in all) ` 10,000/-
Loss to Estate ` 10,000/-
Total ` 5,53,000/- ` 8,81,550/-
23. The compensation thus stands enhanced by `3,28,550/- which shall carry
interest @ 7.5% per annum as awarded by the Claims Tribunal.
24. The New India Assurance Company Limited is directed to deposit the
enhanced compensation along with proportionate interest with the
Registrar General of this Court within six weeks.
25. The compensation already deposited shall be released in favour of the
claimants, if not already released. The enhanced compensation along with
proportionate interest shall be equally distributed amongst the parents of
the deceased, that is, appellants/claimants no.1 and 2. Since the claimants
No.1 and 2 are in the advance stage of their life, 50% of the enhanced
compensation shall be deposited in UCO Bank, Delhi High Court Branch,
New Delhi in the form of FDR for a period of two years. Rest 50% along
with proportionate interest shall be released on deposit.
26. MAC APP.185/2009 is allowed in above terms.
27. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company in MAC APP.236/2009 and MAC APP.238/2009.
28. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 30, 2013
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