Cholamandalam Ms General Ins Co ... vs Gajender Singh Pal & Ors
2014 Latest Caselaw 4592 Del

$~A-43
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 18.09.2014
+       MAC.APP. 669/2012

        CHOLAMANDALAM MS GENERAL INS CO LTD..... Appellant
                   Through Ms.Suman Bagga and Mr.Pankaj
                           Gupta, Advocates.

                         versus

        GAJENDER SINGH PAL & ORS                         ..... Respondents
                     Through  None.

        CORAM:
        HON'BLE MR. JUSTICE JAYANT NATH


JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the Insurance Company seeking to impugn the Award dated 12.03.2012.

2. The brief facts are that on 29.07.2009 the deceased Smt. Chameli Devi was crossing the road, Near Anand Vihar Bus Terminal, Chameli Devi was hit by a truck said to be rashly and negligently driven by respondent No.5.

3. Based on the evidence on record the Tribunal awarded a total compensation of Rs.7,61,000/-. The Tribunal took the minimum wages for an unskilled workman which on the relevant date were Rs.3,950/- per month. The Tribunal thereafter added 50% on account of inflation towards future prospects. 1/3rd were deducted for personal and living expenses of the deceased. Based on the evidence on record, the age of the deceased was

taken as 38-39 years. A multiplier of 15 was adopted. Accordingly, the total loss of dependency was fixed at Rs.7,11,000/-.

4. Learned counsel appearing for the appellant Insurance Company has made two submissions to impugn the Award. She firstly submits that while calculating loss of dependency the Tribunal has erroneously added 50% to the future prospects which is contrary to some of the judgments of the Supreme Court. She secondly submits that the license of the driver of the offending vehicle/respondent No.5 was found to be fake. She submits that one license had been seized by the police from the driver, photocopy of which was filed along with the accident information report. She further submits that the owner of the offending vehicle, namely, respondent No.6 had produced second driving licence of the said driver claiming to have been issued at Farrukhabad . She submits that as per the verification report by the police the first driving license which was seized by the police was a fake driving license. She further submits that under Sections 6 and 9 of the Motor Vehicles Act a driver is forbidden from concurrently having two driving licenses. She submits that the license produced by respondent No.6 is an illegal license firstly inasmuch as the driver could not have two driving licenses and secondly, the driver is not an ordinary resident of Farrukhabad and hence, could not have obtained driving license from Farrukhabad. She further submits that there are various cases on record where fake licenses have been issued by the concerned authority in Farrukhabad.

5. Now coming to the issue of future prospects raised by learned counsel for the appellant, 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.

6. 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.

7. 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 a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

8. In the facts and circumstances of this case, the Tribunal was justified in adding 50% to the income of the deceased based on future prospects rise due to price rise.

9. Coming to the issue of fake driving license. This court in the case of The New India Assurance Co. Ltd. vs. Avinash Arya & Ors. in MAC.APP.No.188/2013 vide order dated 27.08.2014 relying upon the judgment of the Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors., (2004) 3 SCC 297 and National Insurance Company Ltd. vs. Geeta Bhat, AIR 2008 SC 1837 noted the following legal position.

"10. Reference may be had to the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors, (2004)3 SCC 297 where in paragraph 110 the Court held 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.

11. The Supreme Court in the case of National Insurance Company Ltd. vs. Geeta Bhat, AIR 2008 SC 1837 held that in case of a driving license of a professional driver is concerned, the owner of the vehicle despite taking reasonable care might not be able to find out as to whether the license was fake. The owner is not expected to verify the genuineness thereof from the transport office."

10. In the present case, the owner of the offending vehicle i.e. respondent No.6 has entered the witness box. He has filed his evidence by way of affidavit as R2W1. In his affidavit by way of evidence he states as follows:-

"4. That the driver/employee of the respondent No.2 has valid licence for driving which is Ex. as Annexure A-2 which has

been duly verified by the concerned authority and D/L and A-

3."

11. He tendered the second license. He was cross-examined. Relevant portion of his evidence and cross-examination reads as follows:-

"I am relying upon document i.e. original driving licence verification report on form 54 conducted by Licencing Authority, Fatehgarh is Ex.R2W1/1 (Objected to the counsel for insurance company with regard to the mode of proof of the document), photocopy of driving licence of Sh.Sanjay Upadhyay is Ex.R2W1/2 (OSR), photocopy of Permit verification report is Ex.R2W1/3 (OSR) (Objected to the counsel for insurance company with regard to the mode of proof of the document).

XXX By Sh.Laxmi Chandra counsel for petitioner. Nil. Opportunity given.

XXXX By Sh. S.P.S.Chauhan counsel for insurance company.

I have not maintained any attendance record, salary record or any other employment record of Sh.Sanjay Upadhyay. Sh. Sanjay Upadhyay was resident of Bihar. At the time of employment, Sh.Sanjay Upadhyay showed me driving license no.2652/Farrukhabad/04. I have not got verified the driving licence of Sh.Sanjay Upadhyay from concerned authority. I do not know which licence of the respondent No.1 was seized by the police. I do not know if the driver was having only one licence which he produced before the police. It is wrong to suggest that the Ex.R2W1/3 is false and fabricated and not issued by Secretary RTA, Nuh, Mewat."

12. The witness of the appellant Insurance Company, namely, Sh. Abhilash Chander has also given his evidence by way of affidavit as R3W1. In the said evidence by way of affidavit he has placed on record the report of the concerned licensing authority of Gopal Ganj, Bihar which states that the license in question which is attached along with the Accident Information

Report by the police is a fake driving.

13. In view of the legal position as explained above and the testimony of the owner of the offending vehicle R2W1, it is obvious that the owner of the offending vehicle had received the driving license of the driver of the offending vehicle and later on the driving license of the driver of the offending vehicle had been renewed from the concerned authority at Farrukhabad (Ex.R2W1/2).

14. The learned counsel for the appellant has strenuously relied upon Sections 6 and 9 of the Motor Vehicles Act, 1988 to contend that one driver can only have one driving license. In view of the evidence of R2W1, the owner/respondent No.6 was not aware about the driver of the offending vehicle having two driving licenses as alleged. There is nothing on record which will show that the owner was aware of the fact that the driver was having two driving licenses. The owner of the offending vehicle had taken adequate care and protection to ensure that the driver had a valid driving license. Accordingly, in view of the legal position, there is no merit in the said contention of the learned counsel for the appellant.

15. Accordingly, in view of the legal position, the Insurance Company would have to indemnify the owner/respondent No.6. There is no merit in the present appeal.

16. Appeal is dismissed.

17. The statutory amount if paid by the appellant be refunded to the appellant.

JAYANT NATH, J SEPTEMBER 18, 2014 rb