Delhi High Court
National Insurance Co Ltd vs Prabhati Devi & Ors on 19 December, 2014
$~A-45 to 55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19.12.2014
+ MAC.APP. 994/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
PRABHATI DEVI & ORS ..... Respondents
Through Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-7/Jagjit Singh
+ MAC.APP. 995/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
PREETI MEHRA & ORS ..... Respondent
Through Mr.Y.N.Singh, Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-5
+ MAC.APP. 999/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
DEVINDER SINGH & ORS ..... Respondent
Through Mr.Neeraj Chaudhari, Advocate for R-
1/Devinder Singh
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-2/Jagjit Singh
MAC.APP.994/2014 & other connected matters Page 1 of 34
+ MAC.APP. 1001/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
SATPRAKASH & ORS ..... Respondent
Through Ms.Suman Negi and Mr.Sikha Singh,
Advocates for Mr.Gurmit Singh Hans,
Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-3/Jagjit Singh
+ MAC.APP. 1002/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
PRAMOD KUMAR & ORS ..... Respondent
Through Ms.Suman Negi and Mr.Sikha Singh,
Advocates for Mr.Gurmit Singh Hans,
Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-3/Jagjit Singh
+ MAC.APP. 1003/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
PARITOSH BISWAS & ORS ..... Respondent
Through Mr.Y.N.Singh, Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-3/Jagjit Singh
MAC.APP.994/2014 & other connected matters Page 2 of 34
+ MAC.APP. 1004/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
HEMANT KOCHAR & ORS ..... Respondent
Through Mr.Neeraj Chaudhari, Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-2/Jagjit Singh
+ MAC.APP. 1005/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
SHASHI CHANDEL & ORS ..... Respondent
Through Mr.Y.N.Singh, Advocate for R-1
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-6/Jagjit Singh
+ MAC.APP. 1006/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
LAKHBIR SINGH KHALSA & ORS ..... Respondent
Through Ms.Suman Negi and Mr.Sikha Singh,
Advocates for Mr.Gurmit Singh Hans,
Advocate for R-1/Lakhbir Singh
Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-3/Jagjit Singh
MAC.APP.994/2014 & other connected matters Page 3 of 34
+ MAC.APP. 1007/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
UNION OF INDIA & ORS ..... Respondent
Through Mr.Sukhbir Singh and
Mr.Nishant Singh, Advocates for
R-3/Jagjit Singh
+ MAC.APP. 1008/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr. Rakesh Tikku, Sr. Advocate with
Ms. Manjusha Wadhwa and Ms. Arpan
Wadhawan, Advocates
versus
SITARAM SAH & ORS ..... Respondent
Through Mr.Sukhbir Singh and Mr.Nishant
Singh, Advocates for R-7/Jagjit Singh
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. These 11 appeals are filed by the appellant Insurance Company seeking
to impugn the common award passed on 18.07.2014.
2. The brief facts which led to the filing of these 11 claim petitions are that
on 21.02.2010 at around 11.15 PM Laxmi Singh Bhati, Devender Singh Bara,
Hemant Kochhar, Deepak Mehra, Paritosh Biswas, SI Lakhbir Singh Khalsa,
Ct. Satprakash, Ct. Pramod and Ravinder Kumar were going in a Swaraj
Majda. When they reached BRT Corridor near Krishi Vihar, G.K-I, the
offending bus driven by the driver Balwant Kumar in a rash and negligent
manner took a sudden right turn and jumped the divider and hit the Swaraj
Majda causing grievous/fatal injuries to its occupants. The offending bus also
caused fatal injuries to scooter and motorcycle riders moving on the road. On
account of the accident Deepak Mehra, driver Ravinder Kumar and two other
riding on the motorcycle died due to injuries.
3. Eleven different claim petitions were filed. The appellant Insurance
Company seeks to impugn the award on two different heads. The first issue
raised which is common to all the appeals is that the appellant Insurance
Company has no liability to compensate the claimants as there is a breach of
the insurance policy inasmuch as the driver of the offending bus Balwant
Kumar did not have a driving license to drive the bus. Apart from this
contention which is common to all the appeals, the quantum of compensation
awarded by the Tribunal to each of the claimants has also been challenged in
the different appeals respectively on the ground that the compensation awarded
is on the higher side.
4. I will first deal with the issue of liability of the appellant Insurance
Company to pay and the contention that the driver Balwant Kumar did not have
a driving license or the alternative plea that the driving license produced in the
course of proceedings before the Tribunal is fake.
5. Learned senior counsel appearing for the appellant submits that there are
contradictory documents on record which clearly show that the driving license
relied upon by Balwant Kumar and the owner of the offending bus is fake.
Reliance is firstly placed on the reply sent by the owner of the offending
vehicle in response to a notice received from the police wherein he has said that
the helper of the vehicle Balwant Kumar @ Balwant Chand had stolen the
vehicle and caused the accident and that the said Balwant Kumar @ Balwant
Chand is a helper. Reliance is also placed on the Accident Information Report
prepared by the police which also relies upon the report from the Transport
Authority, Agra stating that the license in question of the driver, Balwant
Kumar, namely, license No. 10630/AG/06 is issued in the name of someone
else. Reliance is also placed on the evidence of R3W1 Sh.Anand Swaroop,
Senior Assistant RTO Office, Agra (wrongly stated to be Shahdara).
6. It is pointed out that in view of the above evidence, initially the police
filed a chargesheet against the driver under Section 3/181 of the M.V.Act on
the ground that he did not have an effective driving license. However the court
of the MM directed the IO to make an enquiry regarding the driving license
produced by driver. The IO on verification found the license to be valid and
consequently the MM on 18.08.2010 dropped the proceedings for offences
under Sections3/181 and 5/180 of the M.V. Act.
7. It is urged that it appears that the owner of the offending vehicle has
manipulated documents and records in the RTO Office, Agra and has generated
a false report from there which seems to indicate that the license
No.10630/AG/06 is valid. In this context, it is also pointed out that CW-1, Sh.
K.K. Tiwari, Senior Assistant, RTO Office, Agra, the Court Witness has given
a different picture altogether claiming that the license is issued in the name of
Balwant Kumar. It is urged that the matter be remanded back to the Tribunal
for appropriate re-consideration as there is a clear forgery by the driver and the
owner who have manipulated the documents in connivance with some officials
of RTO to forge the driving license which at the initial stages of investigation
were not made available to the police.
8. I may look at the merits of the said contention of the learned counsel for
the appellant. The accident has taken place on 21.02.2010. It appears that the
police has issued a notice to the owner, (Ex.R3W1/4). The owner has replied
stating that Sh.Rakesh Kumar is the permanent driver of the bus and at about
9.30 p.m. the helper Balwant Kumar had stolen the vehicle and committed the
accident near Sadiq Nagar.
9. A notice was also sent under Section 91/160 Cr.P.C. to Balwant Kumar
(Ex.R3/W1/2). Balwant Kumar has replied (Ex.R3/W1/3) stating that he has no
driving license and earlier he was telling a lie that he is having a license.
10. The Accident Information Report also contains an endorsement issued by
the RTO Agra dated 11.01.2013 which states that driving license
No.10630/AG/06 was issued on 08.09.2006 in the name of one Sh.Vijay Singh.
11. The appellant had summoned the concerned official from RTO Office,
Agra. R3W1 appeared but states that as per the summoned record the driving
license No.10630/A/06 is in the name of Sh.Vijay Singh. He also confirms that
the license is not issued in the name of Balwant Chand. He further states that
the previous driving license No.10629/A/06 was issued in the name of
Sh.Shambu. In cross-examination by the owner, he denies that driving license
No.10630/AG/06 was issued by RTO Agra. The appellant Insurance Company
has also on 22.06.2011 made an application under RTI Act, 2005 for
information pertaining to the license No.10630/AUG/06 issued to Balwant
Singh. In reply the RTO has pointed out that no information regarding the
concerned license No.10630/AUG/06 can be supplied as a departmental
enquiry is pending. It appears that an appeal has been filed against the said
order on 08.11.2011 but no decision has been taken.
12. There is contradictory evidence on record. The RTO has on 08.07.2010
confirmed to the police that license No.10630/AG/06 dated 26.05.2006 has
been issued in the name of Sh.Balwant Chand. The police requested for
dropping the charge under Sections 3/181 and 5/180 of the M.V.Act based on
this communication.
13. A close perusal of the evidence of R3W1 shows that he appears to be
confused with license numbers 10630/A/06 and 10630/AG/06. His testimony
relates to the license number with series „A‟ and not with the series „AG‟.
14. The Tribunal reserved the order after arguments on 28.11.2013. On
1.05.2014, thereafter on account of confusing evidence from RTO Agra the
matter was listed for clarification and the Tribunal noted the confusion about
the two series of driving licenses, namely, the series of „A‟ with series of „AG‟.
The Tribunal issued court notice to RTO, Agra Transport Authority to send
some responsible official along with record of driving license of the two series,
namely of driving license bearing No.10630/AG/06 and driving license No.
10630/A/06. In response to the said order dated 01.05.2014, Sh.K.K.Tiwari,
Senior Assistant, RTO Office, Agra, U.P. appeared on 22.05.2014 with
summoned record. In his evidence, he states that license No.10630/AG/06 is in
the name of Balwant Chand while license No.10630/A/06 is in the name of
Sh.Vijay Singh. In his cross-examination, he confirms that the register bearing
series of „A‟ is No. 28 but the register number is not mentioned in the register
containing license No. 10625/AG/06-10635/AG/06.
15. In the light of the above evidence, the Tribunal notes that once the
official of RTO with original register proved the license of the driver before the
Tribunal, then that would be the primary evidence which would be relied upon
by the Tribunal given the summary procedure adopted by the Tribunal. The
Tribunal declined to adjudicate upon the veracity of the register which was
produced by the concerned officials from the RTO, Agra and held that the
appellant would be necessarily liable to indemnify the owner on account of the
recovery rights.
16. In the light of the above clarification given by the court witness-CW1, in
my opinion given the limited nature of scope of enquiry before the Tribunal,
the evidence clearly shows that the license in question, namely, 10630/AG/06
appears to have been issued in the name of Mr.Balwant Kumar.
17. I may note that the Supreme Court in the case of New India Assurance
Co. Limited v. Anita order dated 6th January, 2010 in SLP (Civil) No.
35537/2009 held as follows:
"We may also observe that a Tribunal constituted under the
Act is not a regular Court and it is required to decide
applications filed for compensation by adopting a summary
procedure consistent with the rules of nature justice (Section
168 and 169 of the Act). By virtue of Section 169, the
Tribunal is clothed with the powers of Civil Court for the
purpose of taking evidence on oath, enforcing the attendance
of witnesses and compelling the discovery and production of
documents and material objects but there is nothing in the Act
from which it can be inferred that the. Tribunal is bound by
the technical rules of evidence. Therefore, the Tribunal cannot
be faulted for having allowed the parties to lead secondary
evidence. Rather, that was the only course available to the
Tribunal for doing justice to the parties because the original
file was lost in 1994 and the case had to be decided on the
basis of reconstructed file."
18. In the light of the above legal position and the fact as elaborated above, it
is clear that given the limited scope of enquiry by the Tribunal, the
preponderance of evidence, namely, the order of the MM discharging the driver
of offences under Section 3/181 of the M.V.Act and the testimony of CW-1,
the court witness, unequivocally show that the driving license subsequently
produced by the driver is valid. No doubt there are certain confusing and
contradictory evidence on record. The Tribunal has taken care of the said
aspect and has noted that the contentions raised by the appellant would
necessarily involve adjudication on the veracity of the register of „AG‟ series
which can only be done in criminal investigation. The Tribunal also noted that
a detailed police investigation is required with regard to the driving license
filed by the owner and driver before the MM and hence, in these facts that the
Tribunal granted liberty to the Insurance Company to initiate criminal
prosecution against driver & owner and the officials of RTO, Agra, U.P. It was
however clarified that in case the owner and the driver of the offending vehicle
are found guilty of forgery or fabrication of license, the appellant Insurance
Company would be entitled to recover the present award amount from the
owner and the driver of the offending vehicle.
19. In the light of the liberty granted, in my opinion there are no reasons to
interfere with the findings recorded by the Tribunal on this count.
20. I may also at this stage note the evidence of the owner /Jagjit Singh. The
owner Jagjit Singh in his affidavit by way of evidence states that the driver of
the offending vehicle had a valid driving license to drive. He further states that
he had taken all precaution before appointment of the said driver inasmuch as
he had seen his driving license and he had appointed him as a driver after being
satisfied in respect of his driving skills. The relevant part of his affidavit reads
as follows:-
"4. I say that the respondent no.2 i.e. the driver of the bus bearing
no.DL-1 PB-7601, has valid driving license to drive the said
vehicle Ex.R-1W1/1. The deponent had taken all the precautions
before appointment of the said driver/respondent no.1. The
deponent has also seen the driving license, held by the said
driver/respondent No.2. The deponent had appointed the
respondent No.2 as driver after being satisfied in respect of the
driving of the respondent No.2."
21. He has in his cross-examination denied that he ever gave any statement
to the police at the time of the accident. He clarifies that the statement was
given by Sh.Rakesh Chand. He further states that he has not written any reply
to the police. He denies that he has forged the license. He reiterates that
Balwant Chand is not the helper and he denies that there was no occasion to
test his driving skills or receive his driving license.
22. The evidence of R2W1 Jagjit Singh clearly shows that he appears to
have taken all precaution expected out of an owner when engaging a driver to
drive his vehicle. He cannot be expected to go to the concerned RTO office and
check the veracity of the driving license. The driver was in his employment for
the last two and half year. It is also on record that the reply to the notice of the
police was not given by Sh.Jagjit Singh but by Sh. Rakesh Chand.
23. In the light of the above evidence of RW-1, even otherwise in my
opinion, the appellant Insurance Company has not been able to show that the
owner of the offending vehicle was guilty of negligence or not having taken
any due care and caution.
24. Reference may be had to the judgment of the Supreme Court in the case
of United India Insurance Company Ltd. vs. Lehru and Ors., 2003 ACJ 611
(MANU/SC/0219/2003) wherein para 20 the Supreme Court held as follows:-
"20. When an owner is hiring a driver he will therefore have to
check whether the driver has a driving license. If the driver produces
a driving license which on the face of it looks genuine, the owner is
not expected to find out whether the license has in fact been issued
by a competent authority or not. The owner should then take the test
of the driver. If he finds 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....."
25. Similarly the Three-Judge Bench of the Supreme Court in the case of
National Insurance Company vs. Swaran Singh. & Ors, (2004)3 SCC 297
noticed the earlier judgment of the Supreme Court in the case of United India
Insurance Company Ltd. vs. Lehru and Ors. (surpa) and held as follows:-
"92. It may be true as has been contended on behalf of the petitioner
that a fake or forged licence is as good as no licence but the question
herein, as noticed hereinbefore, is whether the insurer must prove
that the owner was guilty of the wilful breach of the conditions of
the insurance policy or the contract of insurance. In Lehru's case
(supra), the matter has been considered at some details. We are in
general agreement with the approach of the Bench but we intend to
point out that the observations made therein must be understood to
have been made in the light of the requirements of law in terms
whereof the insurer is to establish wilful breach on the part of the
insured and not for the purpose of its disentitlement from raising any
defence or the owners be absolved from any liability whatsoever.
We would be dealing in some details with this aspect of the matter a
little later."
26. Thereafter in para 110 the Supreme Court quoted as follows:-
"110 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.g. disqualification of
the driver or invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of Section 149, has
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 the 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.
(iv) The insurance companies are, however, with a view to
avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish 'breach' on the part of the owner of
the vehicle; the burden of proof where for would be
on them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same
would depend upon the facts and circumstance of
each case."
27. In the light of the above legal position, there are no reasons to disagree
with the findings recorded by the Tribunal. The said contention of the appellant
is rejected.
28. There is no merit in the contention of the learned senior counsel for the
appellant that the matter be remanded back to the Tribunal to permit the
appellant to lead additional evidence or to take appropriate steps to get to the
root of the matter. Firstly, this exercise has already been done by the Tribunal
as is clear from the order of the Tribunal dated 01.05.2014. After having
reserved the matter for arguments, the Tribunal summoned the RTO, Agra
Transport Authority with the directions to send a responsible officer to bring
the record of the concerned driving license, namely, 10630/AG/06 and
10630/A/06. It was pursuant to the said order that CW-1 appeared on
22.05.2014 and clarified the position.
29. However, another fact is also noteworthy. On 06.12.2012 the Tribunal
rejected the application moved by the appellant Insurance Company for
summoning of the witness. The Tribunal noted that the appellant has already
undertaken nine opportunities and that the present was the 10 th opportunity for
respondent evidence. No explanation was given for not taking steps and hence
the respondent evidence was closed on the said date. Against the order dated
06.12.2012 the appellant filed CM(M) No.95/2013 before this High Court. This
court vide order dated 23.01.2013 set aside the order dated 06.12.2012 and
directed consolidation of the cases and also directed the appellant to conclude
the evidence on two dates. It was in these facts and circumstances that the
appellants were permitted to lead evidence. Thereafter on 19.04.2014 when the
judgment was reserved, the appellant had moved another application for taking
on record certified copies of some evidence. The Tribunal allowed the said
application of the appellant Insurance Company.
30. In the light of the above fact, it is clear that more than adequate
opportunities had been granted to the appellant to lead its evidence. The request
to remand the matter back to the tribunal is clearly without merit.
31. I will deal with the other contentions of the learned senior counsel for
the appellant regarding the computing of the compensation as award by the
Tribunal.
MAC Appeal No.994/2014
32. This appeal pertains to the deceased Sunder Lal. The Tribunal noted that
the deceased is 46 years old. The Tribunal as per salary slip of the Income
Tax Department noted his income as Rs.15093/- per month. He was working
as a notice server in the Income Tax Department. The Tribunal assessed his
income as Rs.15,093/-. The Tribunal noted that he has six dependants, hence
1/4th was deducted on the assessed income towards personal and living
expenses of the deceased. The assessed income was enhanced by 20% on
account of future prospect. The loss of dependency was calculated at
Rs.11,95,645/-. The total compensation was awarded as follows:-
S.No. Description Amount
1. Loss of Dependency Rs.22,95,646/-
2. Loss of Love and Affection Rs.1,00,000/-
3. Funeral expenses Rs.25,000/-
4. Loss of estate Rs.10,000/-
Total Rs.24,30,646/-
33. Learned senior counsel appearing for the appellant has impugned the
said decision stating that firstly nobody from the Income Tax Department was
summoned to substantiate the income of the deceased. Challenge is also laid
to the enhancement of income on account of future prospect, to the non-
pecuniary compensation award and to the rate of interest award at the rate of
9% p.a.
34. As far as the issue of future prospect is concerned 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 below 40
years an addition of 50% should be made in the wages for the purpose of
computing loss of future earnings.
35. 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.
36. 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).
37. 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 the Supreme Court in the case of Rajesh & Ors. vs. Rajbir
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.
38. In view of the above, there are no reasons to differ with the reasoning of
the award granting 50% increase on account of future prospects.
39. On non-pecuniary heads the Tribunal has awarded Rs.1,00,000/- for
love and affection and Rs.25,000/- for funeral expenses and Rs.10,000/- for
loss of estate. This is in accordance with the judgment of the Hon‟ble
Supreme Court Rajesh & Ors. vs. Rajbir Singh & Ors. 2013 (supra).
Reference may be had to the judgment of the Supreme Court in the case of
Kala Devi vs. Bhagwan Dass Chauhan, 2014 (12) Scale 513 and Anjani
Singh & Ors. vs. Salauddin & Ors., JT 2014 (7) SC 183.
40. Regarding computation of income, the Tribunal has relied upon the
salary slip of the deceased Ex.PW1/3 issued by the Office of Commissioner
Income Tax-I and the pay slip was for the month of February, 2010. It show
the gross salary of Rs.15093/-. This is tendered in evidence by PW1 Smt.
Prabhati Devi. There is no cross examination done by PW1 when she has
tendered the evidence. Hence there is no merit in the contention of the appellant
in this appeal and is accordingly dismissed.
MAC No.995/2014
41. This appeal pertains to the deceased Deepak Mehra. The Tribunal noted
that the deceased on the date of accident was working in the office of BSF. He
was 33 years old. The Tribunal noted that he was working as a Deputy
Commandant and getting a salary of Rs.39,851/- after deduction of income tax.
Net salary was assessed at Rs.36,692/-. The Tribunal noted that the deceased
was survived by four dependents. 50% was added for future prospect. 1/4th
deduction was made for personal and living expenses of the deceased and for
loss of dependency Rs.79,25,472/-. The total compensation has assessed as
under:-
S.No. Description Amount
1. Loss of Dependency Rs.79,25,472/-
2. Loss of love and Rs.1,00,000/-
affection
3. Funeral expenses Rs.25,000/-
4. Loss of consortium Rs.1,00,000/-
5. Loss of Estate Rs.10,000/-
Total Rs.81,60,472/-
42. Learned counsel appearing for the appellant submits that the salary has
not been proved by the appropriate officer of the BSF. It is further stated that
the deceased was 40 years old. As per post-mortem report the Tribunal has
taken his age as 33 years. Issues of future prospect and non-pecuniary damages
are also challenged.
43. Issue of future prospect and non-pecuniary damages are already been
dealt with above and is rejected. As per computation of salary the Tribunal
has relied upon the salary slip of the deceased Ex. PW1/O which shows gross
pay as Rs.39851/-. The salary slip is for the month of February, 2010. This is
exhibited by PW1 Ms. Preeti Mehra in her affidavit by way of evidence. There
is no cross examination done on the issue of her income. She however,
confirms that the net salary is Rs.28,775/-/ . However, perusal of Ex. PW1/O
shows that there were various deduction being made including a sum of
Rs.7500/- as GPF deduction which would in any case a part of income of the
deceased.
44. As far as the age of the deceased is concerned, PW1 has exhibited Ex.
PW1/P which gives the date of birth of deceased as 03.04.1977. Hence he
was around 33 years age as on the date of accident. I do not disagree with the
finding of the Tribunal in this regard. There is no merit in the said contention of
the appellant. The appeal is accordingly dismissed.
MAC.APP.999/2014
46. This appeal pertains to the injured Devender Singh. The Tribunal noted
that at the time of the accident the injured was working as a Deputy
commandant in BSF and earning a gross pay of Rs.68,000/- per month. The
Tribunal noted that the injured suffered grievous fracture injuries but did not
find to have any permanent disability. The injured as stated was advised bed
rest for six months. The compensation as awarded by the Tribunal to the
injured is as follows:
S.No. Description Amount
1. Medical expenses Rs.10,000/-
2. Pain & suffering Rs.75,000/-
3. Special diet, attendant & Rs.1,00,000/-
Conveyance
4. Loss of leaves/income Rs.1,00,000/-
during treatment
5. Loss of future income Rs.2,00,000/-
Total Rs.4,85,000/-
47. Learned counsel appearing for the appellant impugns the awarded
amount stating that the loss of income suffered has not been duly proved as it is
not proved if any leave has been taken by the injured. The learned counsel also
contends that the Tribunal has wrongly granted compensation for loss of future
earning and also the compensation towards special diet, attendant &
conveyance charges.
48. As far as the issue of loss of income is concerned, according to the
Discharge summary placed on record as Ex.PW1/E1 it is stated that the injured
was admitted in AIIMS Trauma Centre on 22.02.2010, thereafter operated on
25.02.2010 and discharged on 28.02.2010. As noted by the Tribunal the
claimant remained under treatment. The OPD cards are filed. Further, medical
certificate placed on record as Ex.PW1/E9 issued from AIIMS Trauma Centre
shows that petitioner was advised six months bed rest. Fitness certificate
Ex.PW1/K dated 13.09.2010 issued by AIIMS Trauma Centre certifies
petitioner fit to join duty from 13.09.2010. The Tribunal noted that that the
claimant suffered grievous injuries and was found to be under bed rest from
21.02.2010 till 13.09.2010. The Tribunal thus stated that it can be presumed
that the injured must have suffered loss of leave during the accident. Hence, the
lump sum amount of Rs.1,00,000/- is granted towards loss of leave/income
during treatment by the Tribunal.
49. Thus, after looking into the evidence on record and noting that the
injured remained under treatment for around 7 months, I do not find any error
in the amount awarded for loss of leaves granted to the injured.
50. Further, regarding the contention of loss of future earnings, it is noted
that the petitioner was medically downgraded by two stages and this down
gradation affected his promotion. As per the evidence on record of the injured,
it is stated that the accident has proved detrimental to his future services and
promotion. He has further stated that he is downgraded by two stages and will
suffer financial loss of Rs.30,000/- per month as he will remain in the pay scale
of PB-III. The Tribunal in this regard noted that keeping in view the nature of
injuries, it can be inferred that the claimant must have suffered some
promotional aspects. I do not find any error in the compensation awarded by
the Tribunal under this head.
51. Further, I do not find any error in the grant of compensation under the
head of special diet, attendant and conveyance charges keeping in view the
injuries suffered by the claimant and the fact that he was under treatment for
around 7 months.
52. The appeal is accordingly dismissed.
MAC.APP.1001/2014
53. This appeal is filed regarding the injuries sustained by Sh.Satya Prakash.
The claimant was Sub-Inspector in BSF and was earning about Rs.21,284/- per
month. The Tribunal noted that he suffered grievous injuries on head, ribs and
multiple injuries on other parts of the body. He was not found to have any
disability. The Tribunal awarded the following as compensation:
S.No. Description Amount
1. Medical expenses Rs.10,000/-
2. Pain & suffering Rs.50,000/-
3. Special diet, attendant & Rs.30,000/-
Conveyance
4. Loss of leaves/income Rs.50,000/-
during treatment
Total Rs.1,40,000/-
54. Learned counsel for the appellant regarding compensation contends that
the injured has not proved taking any leave on account of the said accident. The
learned counsel also states that the Tribunal has wrongly granted compensation
under the heads of Pain & suffering, Medical expenses and compensation for
special diet, attendant & conveyance charges.
55. As per the MLC placed on record as PW1/1, the injured is found to have
suffered grievous injuries. As noted by the Tribunal, the injured was treated
conservatively and was discharged in stable condition after four days of
hospitalisation. I do not find any error in the grant of a lump sum amount of
Rs.10,000/- towards medical expenses keeping in view the nature of the
injuries.
56. As far as the challenge to the compensation under the head of loss of
leaves is concerned, the claimant in his evidence by way of affidavit has stated
that he was unable to join his duty from the date of the accident till the filing of
the present petition on 16.07.2010. Keeping in view the nature of the injuries,
the Tribunal awarded a lump sum amount of Rs.50,000/-. I do not find any
error in the compensation awarded by the Tribunal under this head.
57. I also do not find any error in the compensation awarded towards pain &
suffering and for special diet, attendant & conveyance charges. There is no
merit in the contention of the appellant. The present appeal is dismissed.
MAC.APP. 1002/2014
58. This appeal pertains to the injured Sh.Pramod Kumar. He is stated to be a
Sub-Inspector and earning Rs.17,000/- per month. The Tribunal noted that he
suffered grievous injuries on head and legs but was not found to have any
permanent disability. The following compensation was awarded by the
Tribunal:
S.No. Description Amount
1. Medical expenses Rs.10,000/-
2. Pain & suffering Rs.75,000/-
3. Special diet, attendant & Rs.45,000/-
Conveyance
4. Loss of leaves/income Rs.1,00,000/-
during treatment
Total Rs.2,30,000/-
59. The learned counsel for the appellant contends that the Tribunal has
erred in granting compensation under all the heads awarded.
60. On the compensation for medical expenses, a Perusal of the discharge
summary shows that the injured was admitted in AIIMS Trauma Centre after
the accident on 22.02.2010 and was discharged on 08.03.2010. Further the
Tribunal noted that as per the record the claimant remained under treatment till
2012. Taking into consideration the nature of the injuries and the documents
placed on record, the Tribunal granted a lump sum amount of Rs.10,000/-
towards medical expenses. Considering the fact that the claimant was admitted
in the Hospital for around 15 days, I do not find any error in the same.
61. Regarding the compensation for loss of leaves in his affidavit he has
stated that he was unable to join his duty from the date of the accident till the
filing of the claim petition. He further states that he did not get any salary for
the period during which he was under treatment and also suffered promotional
aspects. But in his cross-examination he states to be not claiming any
compensation for loss of leaves and also states that he received increment as
per 6th Pay Commission. The Tribunal concluded that though the injured did
not appear to have suffered any loss of salary but keeping in view the nature of
the injuries a lump sum amount of Rs.1,00,000/- was awarded. I do not find
any error in the amount awarded by the Tribunal.
62. Regarding pain & sufferings and compensation towards special diet,
conveyance and attendant charges the Tribunal noted that the claimant suffered
grievous injuries in the said accident and remained under treatment for a long
period of time. The Tribunal thus awarded the amount of Rs.75,000/- towards
pain & sufferings and Rs.45,000/- towards diet, conveyance & attendant. In my
opinion the compensation awarded is just and fair according to the injuries
suffered.
63. The present appeal stands dismissed.
MAC.APP.1003/2014
64. This appeal pertains to the injuries suffered by Sh.Paritosh Biswas. The
Tribunal noted that at the time of the accident he was working as Assistant
Commandant in BSF and drawing a monthly salary of Rs.46,859/-. He is stated
to have suffered lacerated wound injuries 4 cm over head and injuries were
found to be dangerous in nature. Compensation granted is as follows:
S.No. Description Amount
1. Medical expenses Rs.10,000/-
2. Pain & suffering Rs.1,00,000/-
3. Special diet, attendant & Rs.1,00,000/-
Conveyance
4. Loss of leaves/income Rs.1,00,000/-
during treatment
5. Loss of future potential Rs.3,00,000/-
earning
Total Rs.6,10,000/-
65. The learned counsel for the appellant contends the appeal stating that the
Tribunal has erred in awarding Rs.3 lacs towards future loss of income and
Rs.1,00,000/- for loss of leaves as the injured did not prove taking any leaves.
Further, compensation under the head of special diet, attendant & conveyance
charges, towards medical expenses and towards pain & suffering is also
challenged.
66. Regarding the medical expenses awarded, the Tribunal noted that the
injured was taken to AIIMS Trauma Centre after the accident. The MLC has
been placed on record as Ex.PW1/A, which suggests that the claimant has
suffered lacerated wound injuries 4 cm over head and injuries which are found
to be dangerous in nature. The Tribunal noted that however during proceedings
the injured was referred for examination of disability, but despite opportunities
he did not appear for ascertainment of disability. The Tribunal further noted
that though no medical bills have been placed on record but in view of the
injuries the Tribunal has granted a sum of Rs.10,000/-. In his cross-
examination, the claimant stated that he has been treated at Government as well
as in Private hospitals. In my opinion, keeping in view the nature of injuries
suffered and the MLC placed on record which state the injuries to be dangerous
in nature, I do not find any error in the award of a lump sum amount of
Rs.10,000/-.
67. As regards the future loss of income, the Tribunal noted that the injured
has stated that due to the accident his medical grade category has substantially
downgraded which has affected his promotional prospects. The Tribunal held
that though the injured has not corroborated the same with evidence but from
the nature of injuries, the Tribunal inferred that the claimant must have suffered
some promotional aspects and granted a lump sum amount of Rs.3 lacs. On
perusal of the affidavit of the claimant, who deposed as PW1, he states that he
was in Shape-I medical category and had the accident not occurred he would
have been promoted to the rank of Director General. I do not find any infirmity
in the order in this regard and the same is not interfered with.
68. The Tribunal noted that it can be presumed that the injured must have
suffered loss of leave due to the accident. The amount of Rs.1 lac awarded by
the Tribunal is also not interfered with. Further, keeping into account the nature
of injuries and the period of treatment undergone by the claimant, I do not find
any error in the award under the head of pain & suffering and also towards
special diet, attendant & conveyance.
69. The present appeal is thus dismissed.
MAC.APP.1004/2014
70. This pertains to injured Sh.Hemant Kochar. He suffered grievous injuries
and was taken to AIIMS Trauma Centre after the accident. He also underwent
an operation for the same in Max Hospital. The Tribunal noted that he has
suffered 4% permanent disability towards right lower limb. It is noted that he
was holding a rank of Second in Command and drawing a salary of Rs.64,412/-
per month. The compensation awarded is as follows:
S.No. Description Amount
1. Medical expenses Rs.79,450/-
2. Pain & suffering Rs.1,25,000/-
3. Special diet, attendant & Rs.1,50,000/-
Conveyance
4. Loss of leaves/income Rs.1,00,000/-
during treatment
5. Loss of future potential Rs.3,00,000/-
earning
Total Rs.7,54,450/-
71. Learned counsel contends the amount awarded by the Tribunal towards
all the heads is erroneous. For medical expenses, the counsel for the appellant
states that only the medical expenses of Rs.54,450/- has been duly proved.
72. The Tribunal, on perusal of the MLC placed on record as PW1/L4
noted that the claimant has suffered grievous injuries in the said accident.
Discharge Summary Ex.1/L1 of AIIMS Trauma Centre shows that the injured
was admitted on 22.02.2010 and discharged on 12.03.2010. He was again
admitted on 21.04.2010 and discharged on 03.05.2010. Discharge Summary
PW1/L2 shows that he suffered infection in the right hip and was operated as
well. He was also admitted in Max Hospital thereafter on 20.05.2010 for four
days, where his injuries were evaluated. The claimant placed on record medical
bills PW1/M1 to Ex.PW1/M29 for a sum of Rs.54,450/-. It is noted that he has
suffered 4% permanent disability towards right lower limb as per the Disability
certificate dated 06.05.2011 issued from Safdurjung Hospital. The injured also
filed physiotherapy receipts placed on record as PW1/N1 to PW1/N4 totalling
Rs.1,20,000/-. The Tribunal did not find the physiotherapy receipts to be
credible but stated that the nature of injuries required physiotherapy and the
claimant must have incurred large sum towards physiotherapy. Hence, total
medical expenses including physiotherapy treatment expenses were awarded as
Rs.79,450/-.
73. The claimant remained under treatment for almost six months,
underwent an operation, was admitted to the Hospital time and again and had to
undergo physiotherapy as well. He is suffering from 4% permanent physical
disability which may prove detrimental to his future service and promotion as
well. In view of the above, I do not find any infirmity in the compensation
granted by the Tribunal. The appeal is dismissed.
MAC.APP.1005/2014
74. This appeal pertains to the death of Sh.Ravinder Kumar. The Tribunal
noted that the deceased was working as a Constable at the time of the accident
and was getting a salary of Rs.20,515/- per month. As the deceased was 39
years of age, the Tribunal granted future prospects of 50% and deducted 1/4 th
towards personal and living expenses. Applying the multiplier of 15, the loss of
dependency was calculated at Rs.41,54,287/-. The compensation granted by the
Tribunal is as follows:
S.No. Description Amount
1. Loss of Dependency Rs.41,54,288/-
2. Loss of Love and Affection Rs.1,00,000/-
3. Funeral expenses Rs.25,000/-
4. Loss of consortium Rs.1,00,000/-
5. Loss of estate Rs.10,000/-
Total Rs.43,89,288/-
75. Learned counsel appearing for the appellant submits that the salary has
not been proved by officer of BSF. He also contends that the Tribunal has erred
in granting future prospects and also states that the Tribunal has wrongly
granted compensation under non-pecuniary heads on the higher side.
76. The issue of future prospect and non-pecuniary damages being already
dealt with above are rejected. On the issue of computation of salary, the
Tribunal relied on the salary slip of the deceased placed on record as
Ex.PW1/H. The salary slip has been exhibited by PW1, wife of the deceased.
The Tribunal noted that the genuineness of the salary slip was not found
disputed in the cross-examination of PW1. I do not disagree with the
assessment of the income of the deceased by the Tribunal. The present appeal is
thus dismissed.
MAC.APP.1006/2014
77. The appeal pertains to the injury of Lakhbeer Singh Khalsa. At the time
of the accident he was working as a Sub Inspector in BSF. He was taken to
AIIMS Trauma Centre after the accident and suffered simple injuries on his
eyes as per the MLC Report. Nothing came on record to prove permanent
injuries suffered by the claimant in his eye due to the accident and neither were
any medical bills filed by the claimant. Therefore the Tribunal awarded a
nominal amount for medical expenses. The compensation awarded is as
follows:
S.No. Description Amount
1. Medical expenses Rs.5000/-
2. Pain & suffering Rs.25,000/-
3. Special diet & Rs.15,000/-
Conveyance
4. Loss of leaves/income Rs.25,000/-
during treatment
5. Total Rs.70,000/-
78. Learned counsel appearing for the appellant challenges the compensation
granted by the Tribunal under all the heads.
79. On perusal of the Discharge Summary Ex.PW1/5, the injured was first
admitted in AIIMS on 23.02.2010 and discharged on 24.02.2010. He was again
admitted in the eye department of AIIMS Hospital on 24.02.2010 and
discharged on 25.02.2010. Though the injured has not placed any medical bills
on record, the Tribunal granted an amount of Rs.5,000/- towards medical
expenses. I do not find any error in the said amount.
80. On loss of leaves, the claimant in his affidavit states that he was working
in BSF as Sub-Inspector and was unable to join his duty for three months. The
Tribunal noted that the claimant has not filed any document to substantiate the
same, but keeping in view the nature of the injuries, granted a lump sum
amount of Rs.25,000/- towards loss of leaves. Further, the Tribunal keeping in
view the nature of the injury and the trauma of the accident granted a sum of
Rs.25,000/- and an amount of Rs.15,000/- for special diet and conveyance. I do
not find any infirmity in the order in this regard and the same is not interfered
with. The present appeal is thus dismissed.
MAC.APP.1007/2014
81. This appeal pertains to the damages caused on account of the vehicle
Swaraj Mazda no. DL-IV-725 in the said accident caused due to the rash and
negligent driving of Respondent no. 2, driver of the offending vehicle.
82. Learned counsel appearing for the appellant submits that the Tribunal has
erred in not appreciating the fact that no evidence has been filed on record to
prove the estimated cost of damage of Rs. 1,95,493/-.He also contends that the
driver of Swaraj Mazda was negligent in driving therefore the insurance
company of Swaraj Mazda shall be liable to pay for the compensation of the
BSF vehicle.
83. On the issue of lack of evidence to prove the cost of damages, a perusal of
the award shows that PW-1/Inspector Chandan Singh stated the vehicle was
completely damaged in the accident. On perusal of the Mechanical Inspection
Report, Ex.PW1/E, the Tribunal noted that the vehicle was found to be totally
damaged. PW1 stated that the repairing cost of the vehicle as estimated by
Indersons Motors Pvt Ltd is around Rs.1,95,493/- in this regard PW1 relied
upon the summary of repair estimate Ex.PW1/H. The Tribunal further noted
that the said vehicle was also inspected by the office of Commandant. Based on
the affidavit placed on record and the documents relied upon, I see no reason to
disagree with the finding of the Tribunal determining the authenticity of the
estimated cost of Rs. 1,95,493/- for damages of the BSF Vehicle.
84. Coming to the issue of liability of the insurance company to pay
compensation for the damages of the BSF vehicle. The contention by appellant
company regarding the negligent driving of the deceased driver of BSF Vehicle
is not made from the record. Appellant Company is rightly held liable to pay
compensation to the claimant/state.
85. I see no reason to disagree with the findings of the Tribunal regarding the
liability of the Appellate insurance company to pay compensation for the
damages of the BSF Vehicle. The present appeal is dismissed.
MAC.APP.1008/2014
86. This appeal pertains to the death of Sh.Sanjay Kumar. The Tribunal
noted that the deceased was working as a sales man with Kunchal Store Pvt.
Ltd. at the time of the accident and was getting a salary of Rs.10,000/- per
month. As the deceased was less than 25 years of age and unmarried, the
Tribunal granted future prospects of 50% and deducted 1/2 towards personal
and living expenses. Applying the multiplier of 18, the loss of dependency was
calculated at Rs.16,20,000/-. The compensation granted by the Tribunal is as
follows:
S.No. Description Amount
1. Loss of Dependency Rs.16,20,000/-
2. Loss of Love and Affection Rs. 25,000/-
3. Funeral expenses Rs.25,000/-
4. Loss of estate Rs.10,000/-
Total Rs.16,80,000/-
87. Learned counsel appearing for the appellant submits that the salary has
not been proved by claimants on record. He also contends that the Tribunal has
erred in granting future prospects and erred in taking the multiplier based on
the age of the deceased. Further, he also states that the Tribunal has wrongly
granted compensation under non-pecuniary heads on the higher side.
88. The issue of future prospect and non-pecuniary heads being already dealt
above are rejected. On the issue of computation of salary, the Tribunal relied on
the statement of employer of the deceased PW2 Rumi Sachdeva Manager of
Kunchal Store Pvt. Ltd. He stated that the deceased was drawing a salary of
Rs.10,000/- per month. No material had come in the cross examination to
disbelieve this fact. I do not disagree with the assessment of the income of the
deceased by the Tribunal.
89. On the issue of the multiplier being used for the calculation of loss of
dependency, reference may be had to the judgment of this Court in the case of
Mohd. Hasnain & Ors. vs. Jagram Meena & Ors. MANU/DE/0715/2014;
2014 (142) DRJ 303. This Court held that the multiplier has to be based on the
age of the deceased. That was a case where the age of the deceased was 39
years.
90. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram Meena
& Ors. (supra) relied on the judgments of the Supreme Court in case of M.
Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042 and the
judgment of the Supreme Court in the case Amrit Bhanu Shali & Ors. vs.
National Insurance Co. Ltd. & Ors. MANU/SC/0537/2012. In Amrit Bhanu
Shali (supra) the Supreme Court held as follows:-
"15. The selection of multiplier is based on the age of the deceased
and not on the basis of the age of the dependants. There may be a
number of dependants of the deceased whose age may be different
and, therefore, the age of the dependants has no nexus with the
computation of compensation."
91. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case
where the deceased was a bachelor of 24 years of age and the Supreme Court
held that the selection of the multiplier is based on the age of the deceased and
not the age of the dependants. Further, in the case of Amrit Bhanu Shali &
Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the deceased was a
bachelor aged 26 years and the Court applied the multiplier of 17.
92. I may further note that in Rakesh and Ors. vs. National Insurance Co.
Ltd. and Ors.(supra) where the deceased was 24 years the Tribunal had taken
the multiplier of 13 considering the age of the mother of the deceased, as he
was a bachelor. This court relying upon the earlier judgments of this Court in
the case of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors. (supra) applied
a multiplier of 18 based on the age of the deceased. 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.
93. In view of the above, I do not find any error in the multiplier of 18 being
used by the Tribunal for the calculation of loss of dependency.
94. Statutory amount deposited by the appellant at the time of filing the
appeal be refunded to the appellant/insurance company.
95. All appeals are dismissed. All interim orders stand vacated.
JAYANT NATH, J
DECEMBER 19, 2014
rb/an/sh/nat
