Delhi High Court
National Insurance Co Ltd vs Kamlesh & Ors on 23 September, 2014
$~A-10 to 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : September 23, 2014
+ MAC.APP. 760/2010
NATIONAL INSURANCE CO LTD ..... Appellant
Through Ms.Shantha Devi Raman, Adv.
versus
KAMLESH & ORS ..... Respondent
Through Mr.O.P.Mannie, Adv. for R-1 to R-6
Mr.Rashid Hussain,Adv. for R-8/
owner of the Truck
+ MAC.APP. 849/2010
KAMLESH & ORS ..... Appellant
Through Mr.O.P.Mannie, Adv.
versus
MOHAN SINGH & ORS ..... Respondent
Through Mr.Rashid Hussain,Adv. for R-2/
owner of the Truck
Ms.Shantha Devi Raman, Adv. for
the Insurance Company
+ MAC.APP. 709/2010
OM PRAKASH & ORS ..... Appellant
Through None
versus
MOHAN SINGH & ORS ..... Respondent
Through Mr.Rashid Hussain, Advocate for
owner of the truck/Ramesh/R-1
Mr.Garud M.V., Advocate for Ms.
Shantha Devi Raman, Advocate for
R-2/Insurance company
+ MAC.APP. 758/2010
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr.Garud M.V., Advocate for Ms.
Shantha Devi Raman, Advocate
versus
KAMLESH & ORS ..... Respondent
Through Mr.Rashid Hussain, Advocate for
owner of the truck/Ramesh/ R-3
+ MAC.APP. 761/2010
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr.Garud M.V., Advocate for Ms.
Shantha Devi Raman, Advocate
versus
OM PRAKASH & ORS. .... Respondent
Through Mr.Rashid Hussain, Advocate for
owner of the truck/Ramesh/R-10
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J(Oral):
MAC.APP.No.760/2010 & MAC.APP.No.849/2010
1. Both the present appeals arise out of a common Award dated
4.8.2010. MAC App.No.760/2010 is an appeal filed by the Insurance
Company seeking recovery rights from the owner of the offending vehicle
respondent No.8. MAC.App.No.849/2010 is an appeal filed by the
appellants/claimants seeking enhancement of the compensation amount.
2. The brief facts that give rise to the two appeals are that Shri Santosh
Kumar the deceased died in a road accident on 20.08.2005. The deceased
was travelling in a Wagon R from Dhanora Village to Delhi. When their
vehicle reached Village Luharli G.T.Road, the offending vehicle a truck
driven by respondent No.7 in a rash and negligent manner hit the Wagon R
which was dragged and two persons including the deceased died on the spot.
The other person who died was Devender Singh. MAC App. 709/2010 and
761/2010 pertain to the claim petition filed by his dependents. Based on the
evidence of the parties the Tribunal awarded loss of dependency of
Rs.10,92,042/-.
The total compensation awarded for non-pecuniary damages reads as
follows:-
"i) Loss of love and affection Rs.10,000/-
ii) Loss of consortium Rs.10,000/-
iii) Loss of estate Rs.10,000/-
iv) Funeral charges Rs.10,000/-"
3. Hence, a total compensation of Rs.11,32,042/- was awarded.
4. I will first deal with MAC.APP.760/2010 filed by the insurance
company. It is the submission of the learned counsel appearing for the
insurance company that the Tribunal ought to have granted recovery rights
from the owner of the offending vehicle. She submits that the driver of
offending vehicle respondent No.7 did not have a valid driving license and
further that the vehicle in question of respondent No.8 did not have a valid
permit. She relies on the evidence of R3W1 to state that there was no permit
available.
On the other hand, Learned counsel for the owner of the offending
vehicle has submitted that the evidence of R3W3 clearly shows that the
permit was not summoned. He states that the insurance company itself has
shown the permit valid from 22.8.2005. The testimony of R3W3 does not
show that there was no permit prior to this date.
On a suggestion by this court to now produce the original permit or to
produce attested copy of the permit he states that the driver has passed away
and that the permit for that period is not readily available.
5. Based on the evidence of R3W1, the Tribunal concluded that there is
a valid permit effective from 22.08.2005 (date of the accident is 20.8.2005).
The Tribunal, however, held that in the manner in which R3W1 has given
his evidence, it is apparent that the said witness has brought the record that
was summoned from him and that the insurance company did not summon
the requisite permit as valid on 20.08.2005. Similarly, on the issue of driving
license the Tribunal has concluded that the appellant has not been able to
prove that the driving license of respondent No.7 was not valid.
6. We may look at the evidence of R3W1 Shri Anil Kumar, Junior
Clerk, RTO Office, Industrial Area, Near Lal Kuan, Ghaziabad, U.P.
Relevant portion of his evidence reads as follows:-
"I could not bring the summoned record i.e. record of
permit in respect of truck no.UP 13A 7117 for the date
20.8.2005. I have brought permit of above mentioned
vehicle, which was valid for the period from 22.8.2005 to
21.8.2010. Photostat copy of the permit is Ex.R3W1/A.
(original seen and returned).
No record in my office is available for the date
20.8.05."
xxx
"I have not brought any other record in respect of road tax
and good's tax. Road tax and good's tax are deposited at
ARTO Office, Bulandshahar, U.P. I have not brought any
other record of permit because no such record was
summoned. The above mentioned permit was valid only for
territory of UP. I am not able to answer the question about
issuance of permit prior to the period in dispute. Vol.
because no such record was summoned. The permit was
issued on 22.8.05. Rs.4900/- was taken as fees for permit.
No late payment was taken. As per the record brought by
me no permit for 20.8.05 was issued for above mentioned
vehicle. It is wrong to suggest that I have not brought the
complete record in respect of above mentioned vehicle. It
is wrong to suggest that I am deposing falsely."
7. The way Mr.Anil Kumar, R3W1 has given his evidence it is clear that
his evidence cannot be relied upon. He states that he has got the permit
valid from 22.8.05 to 21.8.10. At another place he states that no record in
his office is available for 20.8.05. He further again clarifies that he has not
brought any other record of permit because no such record was summoned.
He further states that he is unable to answer the question about issuance of
permit prior to the period in dispute because no such record was summoned.
Clearly, his evidence is contradictory and confusing. Nothing can be made
out from the same.
8. There is merit in the contention of learned counsel for the owner that
the appellant insurance company has failed to prove that the permit of the
offending vehicle was not valid on the date of the accident. What is clearly
on record is that a permit was available for the period 22.8.2005 to
21.8.2010. It is not clear from the evidence on record as to whether any
other permit existed prior to this date of 22.8.2005 or not.
9. I will now deal with the issue of the driving licence. The driving
license of respondent No.7 driver is on record, namely, M203 DIRT-58
valid for the period 3.11.04 to 2.11.07. It is issued by the concerned
authority from Bulandshahar.
10. The appellant insurance company has summoned R3W3 Shri Subhash
Chand, Junior Clerk from Meerut. He has said that the original record is not
available with their office as it pertains to Bulandshahar.
11. In view of the above testimony, it is clear that the appellant company
has failed to prove that the driving license of the driver of the offending
vehicle was fake or invalid. In fact the driving license is on record with the
Tribunal. There is no reason to hold that the driver of the offending vehicle
respondent No.7 did not have a valid driving license.
12. Reference may be had to the judgment of the Supreme Court in the
case of Kamala Mangalal Vayani and Ors. vs. United India Insurance Co.
Ltd. and Ors., 2010 ACJ 1441 which held as follows:
"4. As noticed above, the owner-cum-driver had remained ex
parte. Once it was established that the vehicle was
comprehensively insured with the insurer to cover the
passenger risk, the burden to prove that it was not liable in spite
of such a policy, shifted to the insurer. The claimants are not
expected to prove that the vehicle had a valid permit, nor prove
that the owner of the vehicle did not commit breach of any of
the terms of the policy. It is for the insurer who denies its
liability under the policy, to establish that in spite of the
comprehensive insurance policy issued by it, it is not liable on
account of the requirements of the policy not being fulfilled. In
this case, the insurer produced a certified copy of the
proceedings of the Registering Authority and Assistant
Regional Transport Authority, Bangalore, dated 7.7.1990 to
show that the application for registration of the vehicle filed by
the third respondent, was rejected with an observation that it
was open to the applicant to apply for registration in the
appropriate class. But that only proved that on 7.7.1990, the
vehicle did not have a permit. But that does not prove that the
vehicle did not have a permit on 27.7.1990, when the accident
occurred. It was open to the insurer to apply to the concerned
transport authority for a certificate to show the date on which
the permit was granted and that as on the date of the accident,
the vehicle did not have a permit, and produce the same as
evidence. It failed to do so. The High Court committed an error
in expecting the claimants to prove that the vehicle possessed a
valid permit. We are of the view that there was no justification
for the High Court to interfere with the judgment and awards of
the Tribunal in the absence of relevant evidence."
13. In view of the evidence on record and the judgment of the Supreme
Court, it is not possible to grant recovery rights in favour of the appellant
insurance company.
14. Hence, the appeal of the insurance company MAC.APP.No.760/2010
is without merits and stands dismissed.
15. In case any statutory amount was deposited at the time of filing of the
appeal same may be refunded to the appellant.
MAC.APP.No.849/2010
16. The appellant/claimant seeks enhancement of compensation. Learned
counsel appearing for the claimants has urged that the deceased on the date
of the accident was 39 years and 11 months old. He submits that the salary
of the deceased was assessed based on his Income Tax Returns at
Rs.1,04,004/- per annum. However, while computing loss of dependency no
future prospects were added and the assessed salary of the deceased was not
enhanced. He submits that as the deceased was under 40 years there should
be enhancement by 50% for future prospects. He further submits that the
multiplier has been wrongly used as 14 whereas it should have been 15. He
lastly submits that non pecuniary damages have been given on a very much
lower side. He relies upon the judgment of the Supreme Court in the case of
Vimal Kanwar & Ors. vs. Kishore Dan & Ors., 2013(6) SCALE 705 which
was also an accident pertaining to the year 1996 where the Supreme Court
awarded loss of consortium and loss of estate of Rs.1 lac, Loss of love and
affection for the daughter at Rs.2 lacs, Loss of love and affection for the
widow and mother at Rs.1 lac each.
17. A perusal of the award shows that the date of birth of the deceased is
accepted as 4.7.1965. The accident took place on 20.8.2005. Hence, the
deceased was one month short of completing the age of 40 years.
18. The claimants had filed the ITR for the Assessment Year 2002-2003
which showed his income as Rs.1,04,004/-. This ITR was filed on
27.7.2004. As the ITR was filed prior to the death of the deceased the
Tribunal accepted the said ITR and took the income as Rs.1,04,004/- per
annum of the deceased. The Tribunal thereafter deducted 1/4th of the
income for expenses on self as the Tribunal concluded that the deceased had
five dependents. The Tribunal used the multiplier of 14 and calculated the
compensation for loss of dependency as Rs.10,92,042/-.
19. Coming to the first submission of learned counsel for the appellant
pertaining to future prospects, there is merit in the said contention of learned
counsel for the appellant. The Supreme Court in the case of Rajesh & Ors.
vs. Rajbir Singh & Ors., (2013) 9 SCC 54 held that the future prospects of
50% should be awarded to those who are self employed up to the age of 40
years and held that in case of self employed person with fixed wages where
the deceased victim was below 40 years there must be an addition of 50% to
the actual income of the deceased while computing future prospects. This
addition should be 30% in case the deceased was of the age group of 40-50
years and where the deceased was in the age group of 50-60 years and above
it should be 15%.
20. In the light of the above judgment in my opinion it would be just and
proper to give future prospects of 30% in the facts and circumstances of the
present case. The deceased was just one month short of attaining the age of
40 years. Keeping in view the said ratio it would be appropriate that the
future prospects be added at 30%.
21. The multiplier would be 15 and not 14 as taken by the Tribunal. In
Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.,
(2009) 6 SCC 121 the Supreme Court had stated that the multiplier of 15
should be used for the deceased aged between 36-40 years and it should be
14 when the age of the deceased is between 40-45 years. Hence, 15 would
be the applicable multiplier in the facts and circumstances of the case.
Hence, the loss of dependency amounts to Rs.15,21,060/- [(104004 + 30% -
1/4) x 15].
22. Coming now to the non pecuniary damages keeping in view the ratio
of the judgment of the Supreme Court in the cases of Rajesh & Ors. vs.
Rajbir Singh & Ors.(supra), Vimal Kanwar & Ors. vs. Kishore Dan &
Ors.(supra) and Yeramma & Ors. vs. G. Krishnamurthy & Anr., 2014 (10)
SCALE 213, I enhance the compensation for loss of love and affection from
Rs.10,000/- to Rs.1,00,000/- and for loss of consortium from Rs.10,000/- to
Rs.1,00,000/-.
23. Compensation amount would now be as under:-
"i) Loss of dependency Rs.15,21,060/-
ii) Loss of love and affection Rs.1,00,000/-
iii) Loss of consortium Rs.1,00,000/-
iv) Loss of estate Rs.10,000/-
v) Funeral charges Rs.10,000/-"
Total Rs.17,41,060/-
24. The enhanced compensation alongwith interest @ 6% per annum
from the date of filing of the claim petition till deposit in Court would be
deposited by the Insurance Company before the Registrar General of this
Court. The said amount may be released to the claimants proportionately in
the same proportion as provided for in the award of the Tribunal.
25. The present appeal MAC.APP.No.849/2010 stands disposed of.
MAC.APP. 709/2010 & MAC.APP. 761/2010
26. These claim petitions were filed pursuant to the death of Shri
Devender Singh who also was travelling in the Wagon R. Both the present
appeals arise out of a common Award also dated 4.8.2010. MAC
App.No.761/2010 is an appeal filed by the Insurance Company seeking
recovery rights from the owner of the offending vehicle respondent No.10.
MAC.App.No.709/2010 is an appeal filed by the appellants/claimants
seeking enhancement of the compensation amount.
27. MAC.APP 709/2010 was filed pursuant to the death of Shri Devender
Singh. The deceased Devender Singh died in the fatal accident that took
place on 20.8.2005. He was driving the Wagon R which was hit by the
offending vehicle. He also died on the spot.
28. The Tribunal noted that the deceased was a bachelor and the claim
petition has been filed by his parents aged 65 and 62 years. The Tribunal
took the multiplier based on the average age of the parents. The Tribunal
noted that the deceased was earning Rs.5,500/- per month and was said to be
working for Golden Fruit Centre. As no specific proof was placed on record
regarding the alleged salary of the deceased, the Tribunal took the income
based on the minimum wages of an unskilled person i.e. Rs.3166/- per
month. The said amount was enhanced by 50% for future benefit, 50% was
deducted towards expenditure on self. Accordingly loss of dependency was
assessed at Rs.1,99,458/-. Apart from that the Tribunal awarded Rs.10,000/-
for loss of love and affection, Rs.10,000/- for loss of estate and Rs.10,000/-
for funeral expenses. Hence, the total compensation of Rs,2,29,458/- was
awarded.
29. This matter was argued in the end. Learned counsel appearing for the
appellant at the last stage of arguments sought an adjournment stating that
the main counsel is in some difficulty. As the other connected matters had
already been heard at length the request of learned counsel for the appellant
was declined.
30. Another reason why I am inclined to decline the request for
adjournment was that in any case the learned counsel for the appellant had
already argued MAC.APP.No.849/2010 for enhancement of compensation
in a connected matter and have made detailed submissions in that case.
31. Coming to the facts of the present case, in my opinion, the Tribunal
has used the wrong multiplier for the purpose of assessing compensation for
the deceased.
32. 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 which 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.
33. 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 case Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors.
MANU/SC/0537/2012. In the later case, 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."
34. 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.
35. Accordingly the multiplier to be used would be based on the age of
the deceased. He was said to be 24 years of age.
36. Accordingly, keeping into account the judgment of the Supreme Court
in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation
and Anr., (supra) the multiplier of 18 would be used. Loss of dependency
hence amounts to Rs.5,12,784/- [(3166+50% -1/2) x 12 x 18].
37. Coming now to the non pecuniary damages keeping in view the ratio
of the judgment of the Supreme Court in the cases of Rajesh & Ors. vs.
Rajbir Singh & Ors.(supra), Vimal Kanwar & Ors. vs. Kishore Dan &
Ors.(supra) and Yeramma & Ors. vs. G. Krishnamurthy & Anr., 2014 (10)
SCALE 213, I enhance the compensation for loss of love and affection from
Rs.10,000/- to Rs.1,00,000/-.
38. Total compensation amount would now read as under:-
"i) Loss of dependency Rs.5,12,784/-
(ii) Loss of love and affection Rs.1,00,000/-
iii) Loss of estate Rs.10,000/-
iv) Funeral charges Rs.10,000/-"
Total Rs.6,32,784/-
39. The enhanced compensation alongwith interest @ 6% per annum
from the date of filing of the claim petition till deposit in Court would be
deposited by the Appellant/Insurance Company before the Registrar General
of this Court. The said amount may be released to the claimants
proportionately in the same proportion as provided for in the award of the
Tribunal.
40. The present appeal MAC.APP.No.709/2010 stands disposed of.
41. Coming now to MAC.APP.761/2010. The Insurance Company raises
the same contentions in this appeal as raised in MAC. APP. 760/2010 which
has already been dismissed by this Court as above. This appeal also stands
dismissed in view of the same.
MAC.APP. 758/2010
42. This appeal was filed pursuant to the death of Shri Badal Singh
arising out of Award dated 04.08.2010. The deceased Badal Singh also died
in the accident that took place on 20.8.2005. He was in the Wagon R which
was hit by the offending vehicle and also died on the spot.
43. The Tribunal in this case took the salary of the deceased as minimum
wages of an unskilled person on the date of the accident i.e. Rs.3,160.90.
The Tribunal added 50% towards future prospects and further, half of the
salary was deducted towards expenditure on self as the deceased was a
bachelor aged 24 years. a multiplier of 9 was applied taking into
consideration the age of the mother of the deceased. The loss of dependency
was thus calculated as Rs. 2,56,438/-. For non-pecuniary damages the
Tribunal awarded Rs.10,000 for love and affection, Rs.10,000 for loss of
estate and Rs.10,000 as funeral charges. Thus, the total compensation as
awarded is Rs.2,86,438/-.
44. By this appeal the Insurance Company seeks recovery rights from the
owner of the offending vehicle respondent No.3. This appeal also raises the
same grounds as raised in MAC.APP. 760/2010. The same has already been
dealt with above. In view of the order passed in MAC.APP. 760/2010 this
appeal also stands dismissed.
45. Statutory amount, if any, paid by the Insurance Company at the time
of filing of their appeals be refunded.
JAYANT NATH, J
SEPTEMBER 23, 2014/n/sh
