Brahm Prakash vs Kalawati Devi & Ors.
2015 Latest Caselaw 1651 Del

$-11 & 13

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Decided on: 26th February, 2015
+        MAC.APP. 730/2012
         KALAWATI DEVI & ORS.                    .... Appellants
                        Through:       Mr. Anshuman Bal, Adv.

                              versus

         ANIL KUMAR & ORS.                           ..... Respondents
                      Through:         Mr. R.K. Ahuja, Adv. for R-1
                                       & R-2.
                                       Mr. R.C. Mahajan, Adv. for R-3
                                       Mr. R.K. Sahni, Adv. with
                                       Mr. Rajiv Raheja, Adv. for R-5.
+        MAC.APP. 978/2012
         BRAHM PRAKASH                             .... Appellant
                        Through:       Mr. R.K. Sahni, Adv. with
                                       Mr. Rajiv Raheja, Adv.
                              versus

         KALAWATI DEVI & ORS.                     ..... Respondents
                     Through:          Mr. Anshuman Bal, Adv for
                                       R-1 to R-5
                                       Mr. R.K. Ahuja, Adv. for R-6
                                       & R-7.
                                       Mr. R.C. Mahajan, Adv. for R-8
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                       JUDGMENT

G. P. MITTAL, J. (ORAL)

1. These two appeals arise out of a judgment dated 28.04.2012

passed by the Motor Accident Claims Tribunal (the Claims

Tribunal) whereby compensation of `39,74,135/- was granted in

favour of Appellants no.1 to 5 in MAC APP.730/2012 and

Respondents no.1 to 5 in MAC APP.978/2012.

2. As per the case set up before the Claims Tribunal, the accident

was caused because of negligence of drivers of van no.DL-

7CB-3884 and truck no.HR-55G-9576. It was claimed before

the Claims Tribunal that deceased Ramesh Kumar Singh was

earning a salary of `36,760/- per month. After deducting

allowance personal to the deceased, the Claims Tribunal

deducted 1/4th towards the personal and living expenses and

adopted the multiplier of 15 as per the age of the deceased (37

years) to compute the loss of dependency at `39,24,135/-. The

Claims Tribunal further awarded certain sums towards non-

pecuniary damages.

3. The Maruti Van bearing registration no.DL-7CB-3884 was

allegedly owned and being driven by Sanjay at the time of the

accident whereas Brahm Prakash was the registered owner of

the van. The truck involved in the accident was being driven by

Respondent Anil Kumar. It was owned by Rajan Dua and was

insured with the Oriental Insurance Company Limited.

4. In the absence of any appeal by the driver, owner or the insurer

of the two vehicles, the finding on negligence has attained

finality.

5. For the sake of convenience, the Appellants in MAC

APP.730/2012, who are the Claimants before the Claims

Tribunal and Respondents no.1 to 5 in MAC APP.978/2012

shall be referred to as the Claimants. Oriental Insurance

Company Limited, who was the insurer of truck bearing

registration no.HR-55G-9576 shall be referred to as the insurer.

Sanjay, who was the purchaser of Maruti van bearing

registration no.DL-7CB-3884 from Brahm Prakash shall be

referred to as the owner, whereas Respondent Brahm Prakash,

who is Respondent no.5 in MAC APP.730/2012 and Appellant

in MAC APP.978/2012 shall be referred to as the registered

owner.

6. Following contentions are raised on behalf of the Claimants:-

(i) Deceased Rakesh Kumar Singh was in permanent

employment having good future prospects, the Claims

Tribunal ought to have made addition of 50% towards

future prospects;

(ii) Compensation awarded towards non-pecuniary damages

is on the lower side; and

(iii) In case of composite negligence, the victim is entitled to

recover compensation from either or both of the

tortfeasors. Reliance is placed on the judgment of this

Court in Vivek Puri v. Man Mohan Singh & Ors., FAO

161/2000, decided on 03.09.2012.

7. In the appeal preferred by the registered owner, the plea taken

by him is that in accordance with the provision of Section 50 of

the Motor Vehicles Act, 1988 (the M.V. Act), he had informed

the concerned registering authority about the sale of the vehicle

within the stipulated time and therefore, he had no liability at

all.

8. The contention raised on behalf of the insurer is that since

composite negligence has been held and the extent of

negligence of each vehicle was determined by the Claims

Tribunal and the same has attained finality, the Claimants

cannot be permitted to enforce the award in entirety against the

insurer, i.e., the insurer is not liable to pay the compensation

which falls to the share of the owner and insurer of Maruti van

bearing registration no.DL-7CB-3884. Further, in any case, if

this Court finds that the insurer of the truck is liable to pay the

compensation as a joint tortfeasor, it ought to be granted

recovery rights.

MULTIPLICAND AND QUANTUM OF COMPENSATION

9. I have the Trial Court record before me. The salary slips of

deceased Ramesh Kumar Singh for the period of April, 2009 to

October, 2009 were placed on record. The salary slips reveal

uniform gross salary of `23,358/- per month, there is a second

salary slip for the month of October, 2009 which reflects that

the revised salary w.e.f. 01.10.2009 was `36,760/- per month.

The only difference in the salary from April, 2009 to October,

2009 and the second salary slip of October, 2009 is that

payment under the head of other allowance has been shown as

`16,822/- in this slip whereas in other salary slips this amount

has been consistently shown as special allowance of `4200/-. In

fact, in the salary slip, mark A also for the month of October,

2009, the special allowance of `4200/- has been reflected and

there is no mention of the other allowance of `16,822/-.

10. The Claimants examined Bharat Bhushan Madan, Branch

Manager of the deceased's employer as PW-2. He simply

deposed and proved the salary slips from April, 2009 to

October, 2009. He was categorical that the company used to

give increase in salary in the month of April every year. A

suggestion was given to this witness that the salary record has

been forged and fabricated, which of course was denied by the

witness.

11. At the same time, the witness stated that he had no personal

knowledge regarding the record brought by him as he was not

working in the account's department. The Claimants have not

led any evidence as to what was this special allowance of

`16,822/- suddenly granted in the month of October, 2009 just

before the unfortunate accident which occurred on 01.11.2009.

A letter Ex. PW-1/7 has also been placed on record by Claimant

no.1 wherein it was stated that the salary of the deceased (CTC)

has been raised to `4,41,120/-. This letter was not got proved

from the employer of the deceased. In view of the contradictory

salary slips, I am of the view that the sudden increase just

before the month of the accident, particularly when PW-2 was

categorical that as per the policy of the company, increment is

given only in the month of April every year, it is not believable

that the salary of the deceased was increased suddenly w.e.f.

October, 2009.

12. The Salary slips further reveal that the deceased was being paid

a transport allowance of `800/- and conveyance allowance of

`2,000/- per month. I am inclined to accept the gross salary as

`23,358/- after deducting uniform allowance of `833/- and

uniform maintenance allowance of `500/-. I will take the

amount of `800/- transport allowance to be a part of the salary

for the purpose of deduction towards personal and living

expenses and the conveyance allowance of `2,000/- as an

allowance incidental to employment. Thus, salary for the

purpose of computing the loss of dependency will be as under:-

              Basic                                   9050/-
              HRA                                     4,525/-
              Transport Allowance                       800/-
              Education allowance                       200/-
              Medical Allowance                       1250/-
              Special Allowance                       4200/-
                                    Total            20,025/-

13. HRA of `4525/- will be non taxable if spent on renting a house.

Similarly, transport allowance of `800/- will also be non taxable

as per the Income Tax Act, 1961.

14. It has come on record that deceased Ramesh Kumar Singh was

working with Innovators Façade Systems Pvt. Ltd. for the last

four years. PW-2 testified that the deceased had joined the

company before his appointment. He also stated that the salary

of the employees used to be increased every year in the month

of April. Since the deceased was in settled employment earning

increments, I tend to award 50% towards future prospects even

though previous salaries for the years 2006, 2007 and 2008 have

not been proved.

15. After deducting HRA and transport allowance for the purpose

of calculation of income tax, there will be liability of income

tax of about `1,640/- on the annual income of the deceased.

16. The loss of dependency thus, comes to `40,27,388/- (2,40,300/-

- 1,640/- (income tax) + 50% x 3/4 x 15).

17. On the basis of the three Judge Bench decision of the Supreme

Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC

54, the Claimants are further entitled to a sum of `1,00,000/-

each towards loss of love and affection and loss of consortium,

`25,000/- towards funeral expenses and `10,000/- towards loss

to estate.

18. The overall compensation comes to `42,62,388/-.

LIABILITY

19. As far as liability of the registered owner Brahm Prakash

(Appellant in MAC APP.978/2012) is concerned, Section 50 of

the M.V. Act obliges the transferor to inform the registering

authority of the State within 14 days of the transfer about

transfer of the vehicle.

20. As per Section 50 (1) (b) of the M.V. Act the transferee is under

obligation to report the transfer to the registering authority

within whose jurisdiction he has residence or place of business.

21. The learned counsel for the registered owner referring to

Section 2 (30) of the M.V. Act which defines `owner' for the

purpose of this Act submits that where a registered owner has

performed his obligation under the Motor Vehicles Act by

informing the registering authority within the stipulated period

or before the date of the accident, the transferee becomes the

owner and if the vehicle is not transferred in the name of the

transferee, either for the fault of the transferee or the registering

authority, the registered owner will not be liable to pay the

compensation. He urges that if any tortuous act is committed

by the rightful owner or his agent, then only the rightful owner

will be liable to pay the compensation. The learned counsel

places reliance on the judgment of this Court in Pragati Paper

Mill Ltd. v. British Motor Car Co. Ltd. & Ors., 174 (2010) DLT

502. In para 6, the learned Single Judge held as under:-

"6. The aforesaid provision of the Motor Vehicles Act clearly shows that no vehicle can be driven on road unless the same is registered in the name of

the owner. In the present case, the initial ownership of the said Opel Astra vehicle was in the name of Ms. Rewa but she was never in the picture as the said car was purchased by the appellant from the authorized dealer i.e. respondent Nos. 1 & 2 in whose favour alone the appellant had issued the cheque towards sale price of the vehicle. As per the defence of the respondent Nos. 1 & 2, their case is that all the transferred documents duly signed by Ms Rewa were handed over to the appellant and it was for the appellant to have acted to get the ownership of the said vehicle transferred in its name. On the other hand, the plea of the appellant is that the obligation was on the part of respondent Nos. 1 & 2 to get the ownership of the said vehicle transferred in the name of the appellant. Except one letter of the respondent Nos. 1 and 2 wherein they have confirmed that the said form Nos. 29 and 30 were submitted to the registering authority, there is no other evidence led by the appellant to show if any steps were taken by the appellant to pursue the respondent Nos. 1 & 2 to get the said vehicle registered in the name of the appellant. It is an undisputed fact that without the registration of the vehicle being transferred in the name of the appellant, the said vehicle was being driven on the road in contravention of the provisions of Section 39 of the Motor Vehicles Act. As per Section 50 of the said Act, it is the responsibility of the transferee also to report about the transfer within 30 days of the purchase of the vehicle and action U/s 50 (3) and 50 (5) r/w S. 177 can be taken against the transferor or transferee for not reporting to the registering authority about the fact of the transfer within the given time. As already discussed above, the transferor is not in the picture in the present case and therefore it was

the sole responsibility of the transferee to have reported the transfer of the said vehicle within the mandatory period of 30 days and in case the transferred documents were available with respondent Nos. 1 and 2 then transferee should have properly followed up with the respondent Nos. 1 & 2 to get the ownership of the vehicle transferred in its name within the said period. It is quite apparent from the facts on record that the appellant became active only when the said car met with an accident after 2-1/2 years from the date of the purchase and consequently had to get major repairs done. No letter of request was made by the appellant to the respondents during this period of 2-1/2 years, therefore it is quite evident that the appellant itself was negligent in taking proper steps to get the ownership of the said vehicle transferred in its name."

22. Turning to the facts of the instant case, the registered owner

filed his Affidavit Ex.R5W1/A and testified about the delivery

of van no.DL-7CB-3884 to Sanjay Chauhan, the purchaser on

07.08.2009. The registered owner also examined R5W4 S.B.

Mehto, Record Keeper from Transport Authority, Mayur Vihar

Phase-I. He deposed that the letter dated 10.09.2009, which is

the intimation regarding the transfer of the vehicle, was

received in their office from the registered owner. He stated

that the vehicle could not be transferred in the name of the

purchaser as the purchaser did not submit Form 29 and Form

30. The purchaser has not come forward to contradict the

testimonies of the registered owner or of R5W4.

23. In view of this, the registered owner cannot be blamed for non

transfer of van no.DL-7CB-3884 in favour of the transferee. In

view of this and the judgment of this Court in Pragati Paper

Mills (supra), the registered owner, Appellant Brahm Prakash

is not liable to pay the compensation.

24. His appeal being MAC APP.978/2012 is accordingly allowed.

The other appeal being Mac Appeal 730/2012 is also allowed.

25. Coming to the contention with regard to enforcement of the

award against both or either of the tortfeasor, the proposition of

law is well settled in T.O. Anthony v. Karvarnan & Ors., (2008)

3 SCC 748 wherein the Supreme Court distinguished between

contributory and composite negligence and held that in case of

composite negligence, the insured has a choice to proceed

against all or any of the tortfeasors. Since in the instant case,

the liability has been determined, it will be open to the

Claimants to enforce the judgment against any of the

tortfeasors.

26. The owner and the driver of van no.DL-7CB-3884 have not

come forward to contest these appeals.

27. The enhanced compensation of `2,88,253/- along with interest

shall be paid in equal proportion (50% each) by the owner and

the insurer of the truck bearing registration no.HR-55G-9576

and the owner of van no.DL-7CB-3884.

28. Since the award can be enforced against the insurer of the truck

bearing registration no. HR-55G-9576, the entire compensation

shall be deposited by Oriental Insurance Company Limited,

insurer of truck no.HR-55G-9576 within six weeks.

29. It goes without saying that the Oriental Insurance Company

Limited shall be entitled to recover 50% of the compensation

paid, which is really the liability of the other tortfeasor,

Respondent Sanjay from him.

30. The appeals are allowed in above terms.

31. Pending applications, if any, also stand disposed of.

32. Statutory deposit of `25,000/- made by Appellant Brahm

Prakash in MAC APP.978/2012 shall be refunded to him.

(G.P. MITTAL) JUDGE FEBRUARY 26, 2015 vk