National Insurance Co Ltd vs Meena Begum & Ors
2014 Latest Caselaw 6493 Del

      $~6 & 7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of decision: 05.12.2014
+     MAC.APP. 286/2010 & CM Nos. 8154/2010 and 9719/2011
      NATIONAL INSURANCE CO LTD                          ..... Appellant
                      Through: Ms. Shanta Devi Raman with Garud
                               M.V., Advocates
               versus
      MEENA BEGUM & ORS                          ..... Respondents
                      Through: Mr. O.P. Mannie, Adv. for R1 to R4
+     MAC.APP. 508/2010
      MEENA BEGUM & ORS                                  ..... Appellants
                      Through: Mr. O.P. Mannie, Adv.
               versus
      MAHENDER SINGH & ORS                       ..... Respondent
                      Through  Ms.Shanta Devi Raman, Adv.for the
                               insurance company

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. These are two appeals MAC APP. No.286/2010 is filed by the appellant/Insurance Company and MAC APP.508/2010 is filed by the claimant seeking enhancement of compensation.

MAC.APP.286/2010

2. By the present appeal, the appellants seek to impugn the award dated 22.03.2010.

3. The brief facts which led to filing of the claim petition are that on 12.04.2009 Shri Aslam Parvez, the deceased was crossing the road in front of Northern Railway City Booking Office. He was hit by a bus which was

being driven at a high speed and in a rash and negligent manner. He died on the spot. The controversy raised in the present appeal pertains to the liability of the appellant insurance company inasmuch as it is contended that on the date of accident i.e. 12.04.2009 the driver of the offending vehicle Shri Mahender Singh, respondent No.5 did not have a valid driving licence.

4. Learned counsel appearing for the appellant has strenuously urged that it is clear from the statement of respondent no.5 recorded under Section 165 of the Evidence Act that original driving licence was cancelled on 17.09.2007. The accident had taken place on 12.04.2009. He has got a new driving licence prepared on 26.09.2009. Accordingly, it is urged that on the date of accident i.e. 12.04.2009 he did not have a valid driving licence.

5. She further relying on the judgement of the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Swaran Singh, AIR 2004 SC 1531 states that the appellant has discharged the onus to show that the respondent No.5 was negligent in driving and that owner of the offending vehicle/respondent No.6 did not exercise due care and caution. Accordingly, the appellant insurance company has no liability and would be entitled for recovery rights from respondent No.6.

6. Learned counsel appearing for respondent No.6 submits that the submissions of the learned counsel for the appellant are erroneous as respondent No.6 the owner has engaged respondent No.5 the driver, knowing his background that he is retired from the Army and at no stage he had knowledge about cancellation of the driving licence of respondent No.5. He came to know about this when the evidence was being led before the Tribunal.

7. The Hon'ble Supreme Court in case of 'National Insurance Company Ltd. vs. Swaran Singh' (supra) held as follows:-

"79. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability".

105. The summary of our findings to the various issues as raised in these petitions are as follows:

(i)....

(ii)...

(iii) The breach of policy condition e.q. 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."

8. A perusal of the award shows that the Tribunal has noted that the driver/respondent No.5 in his statement under Section 165 of the Evidence Act admitted that on the date of accident he was not holding any driving licence

as the same has been impounded by the traffic police. It is also noted that before the Tribunal he produced the driving licence issued on 26.09.2009 valid till 22.09.2012. The appellant/Insurance Company did not get this license verified. As his driving license was not verified, the Tribunal held that he was holding a valid driving license for driving the vehicle in question.

9. I will first look at the statements of driver/respondent No.5 Mahender Singh made under Section 165 of the Evidence Act. He has made two statements one on 21.01.2010 and second on 22.03.2010 recorded under Section 165 of Evidence Act. Relevant portion of his statement recorded under Section 165 of the Evidence Act on 21.01.2010 reads as under:-

"That on the date of accident i.e. 12.04.2009 I was driving the bus bearing no.DL1PB 5233 and I was not holding the DL at the time of accident. Vol. Since my DL was impounded by the traffic challan police."

10. Relevant portion of his statement recorded under Section 165 of the Evidence Act on 22.03.2010 reads as under:-

"I was working in the Army in the capacity of a driver and as per rules, the Defence Department had got the license issued to him for driving the heavy vehicle/road roller. At the time, when I left the services, my said license bearing no.C08052000178658 was cancelled and I had surrendered the same. Thereafter, I have got the second DL, issued from Delhi Transport Authority, Rohini for driving the heavy vehicle/road roller in the year 2009."

11. Similarly, R3W2 Mahinder Singh, LDC from Licensing Authority in his evidence has stated that the said license was cancelled vide order dated

17.09.2007. He however, states in his cross-examination that he cannot say as to why the said license was cancelled, however, the order had come from DCP North West District. He has further stated that he has no personal knowledge of this case.

12. The evidence on record shows that there is no admission by respondent No.6 that he was aware of the cancellation of the license. Respondent no.5/driver has merely said that on the date of accident the license was impounded by the traffic police. It is R3W2 who has mentioned that driving license was cancelled on 17.09.2007. Neither the document of cancellation of the driving license nor any document stating as to whether respondent No.5 and 6 were respectively informed about the cancellation of driving license and details of proceedings, nothing was brought on record. In my opinion there is no merit in the contention of the appellant. The driver was engaged keeping in view the background of the driver i.e. he had been driving military vehicles in the Army. At no stage it was communicated to the owner respondent No.6 that the driving license was cancelled. The appellants have failed to show that the owner has not exercised due care or caution.

13. In the light of the above facts, I see no reason to interfere with the findings recorded by the Tribunal. Accordingly, both the appeals and the applications are dismissed.

14. Statutory amount, if any, in MAC App. 286/2010 be refunded to the appellant.

MAC.APP.508/2010

15. I will now deal with MAC.APP.No.508/2010. The claimants have filed this appeal seeking enhancement of compensation. It is urged that as per the

Award the income of the deceased was assessed based on minimum wages for an unskilled worker which at the relevant time was Rs.3934 per month and was taken as Rs.4,000/- per month. It is further pointed out that the Tribunal further noted that the deceased is survived by his widow, two sons and one daughter. Accordingly, 1/4th of the income was deducted towards personal expenses. The age of the deceased was assessed as 49 years and based on this calculation loss of dependency was calculated at Rs.4,68,000/-.

16. Learned counsel appearing for the claimants/appellants in the present appeal submits that the Tribunal has erroneously not granted any enhancement in the assessed income on account of future prospects. He further submits that non pecuniary damages awarded is on the lower side.

17. The total compensation awarded to the claimant is as follows:-

         Loss of dependency                    4,68,000/-
         Loss of consortium                     10,000/-
         Loss of love and affection             30,000/-
         Funeral expenses                        5,000/-
         Loss to the estate                       5,000/-
         Total                                5,18,000/-

18. Coming to the contention of the appellant regarding future prospects. I can take judicial note of the fact that minimum wages for an unskilled worker in 2002 were Rs.2679.70/- P.M. and in 2012 were Rs.7020/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

19. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 the Supreme Court held that in the case of self employed or those on fixed wages,

when the victim is between 40 to 50 years an addition of 30% should be made in the wages for the purpose of computing loss of future earnings.

20. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505, the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the Supreme Court in the case of injury to a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

21. Further, this court in the case of ICICI Lombard General Insurance Company vs. Angrej Singh & Ors. in MAC APP. 846/2011 in judgment dated 30.09.2013 had gone into this issue and had noted the judgments of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121, Reshma Kumari & Ors. vs. Madan Mohan & Anr., 2013 ACJ 1253 and other judgments and concluded that the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (supra) has held that the future prospects should be given to persons who are self- employed or on fixed wages. This court further held that there is no conflict in the legal position as set out in the judgments of Reshma Kumari & Ors. vs. Madan Mohan & Anr(supra) and Rajesh & Ors. vs. Rajbir Singh & Ors. (supra).

22. I may further note that this court in MAC APP.761/2012 Rakesh and Ors. vs. National Insurance Co. Ltd. and Ors. vide judgment dated 02.04.2014 had in a case where the deceased was 24 years old added 50% to the income towards future prospects for computing loss of dependency based on the judgment of this Court in the case of ICICI Lombard General Insurance

Company vs. Angresh Singh & Ors. (supra). Against the said judgment the appellant had filed an SLP before the Supreme Court. The said SLP No.5612/2014 was dismissed by the Supreme Court on 10.10.2014.

23. Accordingly, the assessed income would be liable to be increased by 30% keeping into account the age of the deceased as 49 years. Loss of dependency would hence now be Rs.6,08,400/- [(4,000 + 30/100 -1/4) x 12 x 13].

24. Coming to non pecuniary damages the Tribunal has awarded Rs.10,000/- for loss of consortium and Rs.30,000/- for loss of love and affection. I enhance the compensation for loss of consortium from Rs.10,000/- to Rs.1,00,000/-. Similarly, enhancement is made for love and affection from Rs.30,000- to Rs.1,00,000/-. I rely upon judgments of the Supreme Court in Rajesh & Ors. vs. Rajbir Singh & Ors., (supra), Kala Devi V. Bhagwan Das, 2014 (12) Scale 513 and Anjani Singh vs. Salauddin, JT 2014 (7) SC 183. Similarly, funeral expenses are enhanced from Rs.5,000/- to Rs.25,000/-. The total compensation would now read as under:-

         Loss of dependency                    6,08,400/-
         Loss of consortium                    1,00,000/-
         Loss of love and affection            1,00,000/-
         Funeral expenses                       25,000/-
         Loss to the estate                      5,000/-
         Total                              Rs.8,38,400/-

25. The insurance company shall within six weeks deposit the enhanced compensation amount alongwith accumulated interest @7.5% per annum from

the date of filing the appeal till deposit in Court with the Registrar General of this Court. The Registrar General shall keep the 50% amount of the total amount in fixed deposit for five years and shall release the remaining 50% to the claimants/appellants proportionately in the same manner as directed by the Tribunal. The compensation payable to minors shall be kept in Fixed Deposit for the full duration of their minority or five years, whichever is more. Claimants shall be entitled to quarterly interest on the Fixed Deposit.

26. Appeal stands disposed of.

JAYANT NATH, J DECEMBER 05, 2014 An/N