Oriental Insurance Co Ltd vs Smt Krishan & Ors
2014 Latest Caselaw 5087 Del

$~A-13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 13.10.2014
+     MAC.APP. 138/2012

      ORIENTAL INSURANCE CO LTD       ..... Appellant
                   Through  Mr.Amit Gaur, Advocate.

                         versus

      SMT KRISHAN & ORS                         ..... Respondents
                   Through            Mr.Amit Kumar Pandey, Advocate for
                                      R-1 to 4.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present appeal the appellant impugns the Award dated 07.12.2011.

2. The brief facts are that the present claim petition was filed on account of the death of late Sh.Inder in an accident on 20.11.2007. The deceased was in the process of getting down from the bus when all of a sudden the driver Sh. Satbir/Respondent No.6 started the bus. The deceased fell down on the road and sustained grievous injuries. He was removed to AIIMS Hospital, where he was declared brought dead.

3. The Tribunal concluded that the deceased sustained fatal injuries on account of the negligence of the driver/respondent No.6.

4. On compensation the Tribunal awarded the following compensation.

            Loss of dependency                     : Rs.16,82,168.00
           Loss of consortium                        : Rs. 10,000.00
           On account of love and                     : Rs.40,000.00
           affection
           Loss of Estate                            : Rs.10,000.00
           Funeral expenses                          : Rs.10,000.00
           Total                                  : Rs.17,52,168.00

5. Learned counsel appearing for the appellant Insurance Company has made two submissions to impugn the Award. He firstly submits that the Tribunal while calculating loss of dependency has wrongly adopted the multiplier of 15. He submits that the deceased on the date of his death was 40 years and 10 months of age and hence, the multiplier keeping in view of the judgment of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 should be 14 and not 15.

6. For this proposition he also relies upon a judgment of this High Court dated 30.05.2012 passed in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Meenakshi & Ors. in MAC.APP. 1061/2011 where this court had held that for the age groups 20-21, 25-26, 30-31 and so on, the multiplier is silent. This court took the view that the multiplier has to be taken which is nearer to the relevant age meaning if a deceased was say aged 30 years and 8 months, the multiplier applicable to the age of 31 would apply.

7. He further submits that on the date of the accident, namely, 20.11.2007

the driver/respondent No.6 did not have a valid driving license. He relies upon the evidence led by R1W1 Sh.Rohtash Singh, LDC from the Transport Department, Sheikh Sarai Authority who has stated that the license was cancelled on 16.04.2007 i.e. before the accident and before the validity of the license. Hence, he submits that the appellant is entitled to recovery rights from the owner and the driver of the vehicle.

8. Coming to the first submission of the learned counsel for the appellant, a perusal of the Award and the compensation awarded by the Tribunal shows that the Tribunal has awarded a sum of Rs.10,000/- for loss of consortium and Rs.40,000/- for love and affection. This court has been relying upon the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 for awarding much higher compensation on these two heads.

9. The Supreme Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., 2011 (8) Scale 240 held that where the claimants before the Tribunal have not preferred any cross-objections or cross-appeals, it is not possible for the High Court in Appeal to enhance the compensation amount. However, the Supreme Court held that as a ground of defence the claimants can always point out any error or deficiency in the Award of the Tribunal as a counter to any contentions raised by the insurance company or owner of the vehicle to ensure that the computed compensation amount as per the award is not reduced based on the contention of the owner of the offending vehicle or the Insurance Company. In para 6 the Supreme Court held as follows:-

"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs. 23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the Appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections."

10. Accordingly, in my opinion it would not be appropriate for this court to go into the merits of the submission made by the learned counsel for the appellant on the issue of multiplier. The said contention is accordingly rejected.

11. Coming to the next contention for grant of recovery rights. A perusal of the testimony of R1W1 Sh.Rohtash Singh shows that he has said that the

license of respondent No.6 was valid from 24.05.2005 to 23.05.2008. The license was cancelled on 16.04.2007 vide an order dated 19.03.2007. There is nothing on record to show as to whether this cancellation of license was communicated to respondent No.6 the driver or for that matter even to the owner of the offending vehicle, namely, respondent No.5.

12. In contrast respondent No.5 who entered into the witness box as R2W1 in his evidence by way of affidavit has said as follows:-

"2. That I employed Mr. Satbir s/o Shri Kishan Lal R/O Village Mandi, New Delhi-110047 as commercial driver to drive Blue Line Bus in December 2005. Before employing him as commercial driver I had gone through his Driving License and Driver Badge. I had tested his driving also. He was driving the bus as per norms and was well aware of traffic rules and regulations. He worked with me till December 2007.

3. That before employing him I had got his Driving License and Driver Badge verified and they were found genuine."

13.Relevant portion of cross-examination of R2W1 reads as follows:-

".. It is incorrect to suggest that I was aware that the license of Satbir was cancelled by MLO in April 2007. It is incorrect to suggest that I permitted the driver to drive the bus after the cancellation volunteer I was never aware about the cancellation of D/L. It is wrong to suggest that I am deposing falsely."

14. In view of the above, in my opinion there is nothing on record to show that the owner of the offending vehicle respondent No.5 was aware about the cancellation of the driving license of respondent No.6. In view of his evidence, it is obvious that he has taken adequate precautions at the time of

engaging the driver respondent No.6.

15. In view of the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors, (2004)3 SCC 297 no grounds are made out to grant recovery rights to the appellants.

16. The appeal is dismissed.

17. In case the appellant has made any payment of statutory amount, the same may be refunded to the appellant.

JAYANT NATH, J OCTOBER 13, 2014/rb