Delhi High Court
Naveen Kumar Gupta & Ors vs Bhupender Singh & Ors on 3 March, 2016
$~37 to 42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03rd March, 2016
+ MAC.APP. 388/2007
NAVEEN KUMAR GUPTA & ORS ..... Appellants
Through: Mr. S. N. Parashar, Adv.
versus
BHUPENDER SINGH & ORS ..... Respondents
Through: Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-2
Mr. P. R. Sikka & Mr. Amit Sikka,
Advs. for R-3.
+ MAC.APP. 392/2007
AMIT KUMAR ..... Appellant
Through: Mr. S. N. Parashar, Adv.
versus
BHUPENDER SINGH & ORS ..... Respondents
Through: Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-2
Mr. P. R. Sikka & Mr. Amit Sikka,
Advs. for R-3.
+ MAC.APP. 394/2007
NAVEEN KUMR GUPTA & ORS ..... Appellants
Through: Mr. S. N. Parashar, Adv.
versus
MAC APP. Nos.388/2007,392/2007,394/2007, 532/2007,533/2007 & 534/2007 Page 1 of 13
BHUPENDER SINGH & ORS ..... Respondents
Through: Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-2
Mr. P. R. Sikka & Mr. Amit Sikka,
Advs. for R-3.
+ MAC.APP. 532/2007
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
Through: Mr. P. R. Sikka & Mr. Amit Sikka,
Advs.
versus
NAVEEN KUMAR & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for
respondent/claimants
Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-6
+ MAC.APP. 533/2007
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
Through: Mr. P. R. Sikka & Mr. Amit Sikka,
Advs.
versus
AMIT KUMAR & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for
respondent/claimants
Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-6
+ MAC.APP. 534/2007
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
MAC APP. Nos.388/2007,392/2007,394/2007, 532/2007,533/2007 & 534/2007 Page 2 of 13
Through: Mr. P. R. Sikka & Mr. Amit Sikka,
Advs.
versus
NAVEEN KUMAR & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for
respondent/claimants
Mr. Saurabh Gupta & Mr. Gagan
Gupta, Advs. for R-6
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. These six appeals arise out of common judgment passed on
04.04.2007 by the motor accident claims tribunal (the tribunal) on three
separate claim cases presented under Sections 166 & 140 of the Motor
Vehicles Act, 1988 (the MV Act), all relating to a motor vehicular accident
that took place on 23.09.1999 involving three vehicles including Maruti car
bearing registration no.DL-8CC-1720 (the car), gypsy bearing registration
no.HR-26B-9327 (the gypsy) and truck bearing registration no.CH-01A-
8247 (the truck).
2. The car was moving from Delhi in the direction of Jaipur on way to a
place known as Khatu Shamji in Rajsthan. The gypsy, on the other hand,
was moving in the opposite direction i.e. from Jaipur towards Delhi. The
truck was parked on the side of the road along the carriage way used by the
traffic moving from the side of Delhi to Jaipur. The accident occurred at
about 01:00 PM in broad day light. The evidence brought before the
tribunal clearly proved that the gypsy coming from the opposite direction
was moving in the lane meant for traffic heading from Delhi towards Jaipur.
There was a head-on-collision between the car and the gypsy, as a result of
which impact the car was hurled towards side of the road where it came to
hit against the truck stationary on road side.
3. In the car, Hanuman Prasad Gupta was travelling, accompanied by his
wife Sarita Rani, son Amit Kumar and brother-in-law Kanhaiya Lal. All
occupants of the car statedly suffered injuries, with Hanuman Prasad Gupta
and Sarita Rani dying in the consequence. In the narration of facts, there is
reference to one Sunita Gupta also suffering injuries and having resultantly
died. Be that as it may, the judgment which is impugned in these appeals
would not cover any claim arising out of death of Sunita Gupta. Similarly,
this judgment does not pertain to any claim that may have been preferred by
Kanhaiya Lal for the injuries suffered by him.
4. Whilst Amit Kumar, injured, filed claim registered as suit
no.169/2004 seeking compensation for the injuries suffered by him, the legal
heirs/dependants of Hanuman Prasad Gupta and Sarita Rani brought
separate claim cases for compensation on account of their respective deaths,
such cases having been registered as suit no.168/2004 & 170/2004.
5. In the claim petition, Bhupender Singh, registered owner of the gypsy
was impleaded as the first respondent on the ground that he would be
vicariously liable to pay the compensation as his driver Shailender Kumar
had caused the accident due to rash/negligent driving. Shailender Kumar
was impleaded as second respondent in the claim cases. Whilst Bhupender
Singh chose to suffer the proceedings exparte. Shailender Kumar contested
by filing written statement which contained vague denial of his
responsibility pleading false implication. United India Insurance Co. Ltd.
(the insurer) was impleaded as third respondent in the claim cases on the
ground that it had issued an insurance policy against third party risk
covering the period in question. The insurer contested the claim case on the
averments that the cover note on the basis of which benefit was claimed
from the insurance company was a fake document and further that a
manipulation had been carried out by its agent to issue a wrong cover note
showing a policy to have been taken out on 23.09.1999 which fact having
come to the notice, in as much as the premium was also paid by a cheque
dated 24.09.1999, suitable correction was carried out in the insurance policy
later.
6. The claimants impleaded Swaran Singh, the driver of the truck as
fourth respondent. Though they had indicated that they would implead the
owner and insurer of the truck as well, the said party stood deleted by the
subsequent direction of the tribunal as necessary particulars were not
forthcoming.
7. By the impugned judgment, the tribunal returned clear finding that
there could not have been any fault on the part of the truck driver, since it
was stationary on the road side and, thus, no liability was fastened against
Swaran Singh, the truck driver. The controversy has survived involving
primarily the driver and the owner of the gypsy and United India Insurance
Company Ltd., which is stated to have issued an insurance policy against
third party risk.
8. The tribunal, during the course of inquiry, called upon both sides to
lead evidence. Amit Kumar, one of the claimants (the injured) admittedly
was the driver of the car. He stepped into the witness box as PW2 to prove
necessary facts about the sequence of events which had resulted in the
collision. On the other hand, Shailender Kumar, the driver of gypsy
appeared as witness in his defence (R2W1) on the basis of his own affidavit
(Ex.R-2).
9. The tribunal considered the evidence of both sides and on that basis
concluded that there was a head-on collision. Referring to the ruling in
National Insurance Co. Ltd. vs. Chinto Devi, (2000) 7 SCC 50, it returned
the finding that since there was a head-on collision, the drivers of both, the
car and gypsy, were equally responsible. Primarily, on the basis of this
finding, after making assessment of compensation awardable in the three
cases, the tribunal held the driver and owner of gypsy to be responsible to
the extent of fifty percent (50%). It rejected the contention of the insurance
company about the cover note relied upon being fake document and in the
result, directed the said insurance company to indemnify.
10. It may be added here that in the case on account of death of Hanuman
Prasad Gupta (suit no.168/2004), compensation in the sum of `5,40,667/-
was assessed and due to element of contributory negligence the contesting
respondents were directed to pay `2,70,334/- only. Similarly, in the claim
case arising out of death of Sarita Rani (suit no.170/2004), the tribunal
assessed the compensation to be `5,57,334/-, but directed fifty percent
(50%) of the said amount i.e. `2,78,667/- to be paid. Pertinent to note here
that in both these cases, the tribunal held that the evidence of dependency of
the claimants was not forthcoming and, thus, loss of income was to be
treated as compensation towards loss of love & affection. It, however,
added `5,000/- towards loss of estate, funeral expenses and expenses for
transportation of dead body.
11. In the claim case arising out of injuries of Amit Kumar, the tribunal
assessed the compensation in the sum of `25,000/- but directed only
`12,500/- to be paid due to the element of contributory negligence.
12. The insurance company, by its appeals MAC appeals (nos. 532/2007,
533/2007 & 534/2007) raises only one issue, viz. that its evidence about
forgery in the cover note by the agent has not been properly appreciated and,
therefore, denial of recovery rights against the owner of the gypsy is not fair
or proper.
13. The claimants, on the other hand, have come up with independent
appeals registered as MAC appeal nos. 388/2007, 392/2007 & 394/2007. In
each of the said appeals, the claimants question the correctness and propriety
of the conclusion of the tribunal holding Amit Kumar (PW2), the driver of
the car also responsible. It has been contended that in the given facts and
circumstances, the accident had occurred solely due to negligent driving on
the part of Shailender Kumar, the driver of gypsy. By their appeals, the
claimants in suit no.168/2004 and 170/2004 on account of death of
Hanuman Prasad Gupta and Sarita Rani, also pray for enhancement of non-
pecuniary damages under the heads of loss of love & affection and funeral
expenses.
14. Having heard both sides, this court finds the contention of the
claimants against the finding of contributory negligence on the part of Amit
Kumar, the driver of the car to be correct. The facts as brought out in the
testimony of Amit Kumar (PW2) clearly show that the accident had
occurred with the gypsy having emerged from opposite side in the wrong
lane. The site plan prepared by the local police, during investigation of the
first information report (FIR) no.186/1999, copy whereof had been
submitted on the record of the tribunal, clearly shows that it was the gypsy
which had entered in a wrong lane. There is no explanation whatsoever
offered by the gypsy driver Shailender Kumar (R2W1), either in the
pleadings submitted in the answer to the claim petitions or in the course of
his testimony through affidavit (Ex.R-2), as to why he had entered into the
carriage way which was meant for movement of traffic from opposite
direction.
15. It has to be borne in mind that the accident had occurred on a national
highway where vehicles are permitted to move at a speed higher than
ordinarily permissible speed limits enforced within the vicinity of a town or
city. It is nobody's case that there was any speed limit enforced in the area
where the accident had occurred. With no justification whatsoever for the
gypsy to have come in the wrong lane, the driver of the car moving in the
opposite direction within his own rights would have been taken by surprise
when the gypsy emerged in front. In such fact situation, it is not fair to
attribute any negligence on the part of the car driver. The view taken in
Chinto Devi (supra) is not an unexceptional or thumb rule in all cases of
head-on collision. The head-on collision does give rise to the need to
examine if both the drivers could have been at fault. But it cannot always
clinch the issue, particularly when there is no justification for one of the said
drivers to be in the wrong lane which led to such a head-on-collision.
16. For the above reasons, the finding of contributory negligence on the
part of Amit Kumar, the driver of the car, must be set aside.
17. The grievance of the claimants in appeals relating to the awarded
compensation arising out of deaths of Hanuman Prasad and Sarita Rani is
primarily under the non-pecuniary heads of damages. This court cannot
approve of the view taken that the loss of income has to be treated as
compensation towards loss of love & affection. The loss of income in these
cases was a loss to the estate. Therefore, separate award under the head of
loss of love & affection was called for. Since the deaths had occurred in
1999, in the considered opinion of this court, separate awards under the head
of loss of love & affection in the sum of `50,000/- (as per judgment passed
on 01.02.2016 in FAO no.102/2001 of this court) in each of the said two
cases deserves to be granted.
18. Thus, the compensation in the case of death of Hanuman Prasad
Gupta is increased by `50,000/- so as to be in the sum of (5,40,667+50,000)
`5,90,667/-, rounded off to `5,90,000/-, entire of which would be payable by
the driver and the owner of the gypsy held jointly and severally liable.
19. Similarly, in case of death of Sarita Rani, the award of compensation
is increased to (5,82,334+50,000) `6,32,334/-, rounded off to `6,32,000/-,
the entire amount being payable by the driver and the owner of gypsy, held
jointly and severally liable.
20. This brings one to the issue of forgery of the cover note, as raised by
the insurance company in its appeals. The issue was considered by the
tribunal in the following manner:-
"It is vehemently contended by the Ins. Co. respondent number
3 which is the insurer of the vehicle HR26-B-9327. The respondent
number 3 has taken as specific contention that the policy is fake. The
insured, namely, the Bhupender Singh, the owner of the vehicle
remained ex-parte. On behalf of the Ins. Co. one witness was
examined. R3W1 P.K.Rastogi, the Branch Manager of respondent
number 3 office at Behroar Rajasthan, deposed that he has brought
the photocopy of the insurance policy at Ex.R3W1/1 which includes
the attested copy of the policy, endorsement, letter addressed to the
insured, attested copies of the dispatch register, cancellation of
agency of their Agent Jitender Kumar Gupta, collectively marked
Ex.R3W1/1. There is no say by the witness of the Ins. Co. that the Co.
is not liable to act under the policy. It was argued by the Ld. Counsel
that the Ins. Co. is not liable since the policy was a forged one. I have
carefully gone through the Ex. R3W1/1, this is a policy in favour of
one Bhupender Singh (respondent number 1 the owner) regarding the
offending vehicle for the period 23.09.1999 to 22.09.2000 bearing
cover note number 892854 dated 24.09.1999. The endorsement which
is a part of the policy shows that the subject policy cover note number
892854 was issued wrongly for the period of insurance as 23.09.1999
to 22.09.2000 instead of 25.09.1999 lo 24.09.2000. The premium
received is declared as agreed for the period 25.09.1999 to
24.09.2000. This endorsement bears the date as 13.10.1999. There is
a letter also addressed to the insured. The copies of dispatch register
is also shown. He also produced the letter addressed to the Agent
terminating the agency. The letter of termination is dated 28.01.2000.
The allegation against the Agent Jitender Kumar Gupta, is that the
Agent prevailed upon R.K. Meena, RC, BO Behroar to prepare the
policy with the changed dates. It is alleged that the Agent acted in the
manner pre-judicial to the interest of the Co. With this allegation, the
agency is terminated. It is to be noted that in the letter of termination
the Ins. Co. has made a specific allegation that the Agent has
submitted a cheque bearing number 298053 dated 24.09.1999, for a
sum of Rs.583/- as premium against the vehicle HR36-B-9327 and
accordingly, the Agent prepared the cover note on 24.09.1999
bearing number 892854 for insuring the vehicle in question for the
period 23.09.1999 to 24.09.2000.
It is seen from the record that the policy cover note 892854
insuring the offending vehicle dated 24.09.1999 is not cancelled. Only
an endorsement was issued dated 13.10.1999. There is no document
that the said endorsement was served on the insured. Apart from the
above, it is to be noted that even if it is held that the Agent has
manipulated the records, the Ins. Co. can not disown cover note since
it emanated from its office. It is settled principle of law that the
principal shall be held liable for all the acts of the Agent. The
complicity if any of the Agent would not efface the responsibilities of
the principal. Furthermore, it is nowhere stated that the cover note
dated 23.09.1999 is not rescinded and the contract is not terminated
in accordance with law. Mere making amends to the policy or the
cover note unilaterally without the consent of the insured can not be
called a lawful amendment to the policy conditions whether it be with
regard to the period, premium or any such other changes. If the ins.
Co. had to amend the period it could have done only with the express
consent of the insured. In the above context, I am unable to hold the
endorsement attached to Ex.R3W1/1 as a lawful one to treat the
policy as not binding on the Ins. Co. Any loss suffered by the acts of
the Agent of the Ins. Co. can not be a ground to deny the contractual
liability of the Ins. Co. under the cover note in so far as the same
having been believed bonafide by the insured who tendered the
requisite payment of premium. Therefore, I am unable to agree with
the arguments advanced by Smt. A. Sangeeta, that the policy is a fake
one entailing no liability on the Ins. Co. Thus, the Ins. Co. shall abide
by the terms and conditions of the policy in making good the third
party liability. No recovery rights arc granted. Hence, liability is
answered accordingly."
21. It may be mentioned at this stage that Bhupender, the owner of the
offending vehicle (the gypsy), a respondent in all these appeals of the
insurance company, has chosen not to appear inspite of notices. As
mentioned earlier, he had suffered the proceedings before the tribunal as
well exparte.
22. The observations of the tribunal, as extracted above, indicate that it
was not satisfied with the plea of the insurance company primarily for three
reasons, one, that the insurance company had not canceled the cover note
dated 24.09.1999; the second, that the amendment to the insurance policy
was carried out unilaterally and without consent of insured; and, third, since
the cover note had been issued by its own agent, the insurance company was
liable it being the principal.
23. In the facts and circumstances of the case, this court finds it difficult
to uphold all the above mentioned reasons set out by the tribunal. The
owner/insured did not appear to put in any contest. Only he would have
been in a position to contend that the cover note or the policy had been
amended unilaterally or without his consent. In fact, the evidence adduced
by the insurance company indicates that due intimation was given to him,
prior to the amendment being carried out. The evidence also showed that
the premium was paid by a cheque issued only on 24.09.1999. In these
circumstances, it is apparent that the insurance document was fabricated.
The insurance policy against third party risk in respect of the gypsy,
therefore, could not have taken effect from any date anterior to 24.09.1999.
Since the accident had occurred on 23.09.1999 during day time (01:00 PM),
the insurance policy in question, or its cover note, cannot be held to be
enforceable for indemnity in respect of the accident in question.
24. Since the cover note did indicate 23.09.1999 to be the date of issue,
justice demands that the insurance company be called upon to pay to the
claimants the amounts of compensation in terms of the modification as
above and given liberty to recover the same from the owner. Ordered
accordingly.
25. It is noted that the insurance company has already paid its liability in
terms of the awards as were passed by the tribunal. The insurance company
shall now deposit with the tribunal the balance payable within 30 days of
this order and be at liberty to take out appropriate execution proceedings to
recover the amounts from the owner of the gypsy (the offending vehicle) i.e.
Bhupender Singh, or Shailender Kumar, the driver, both of whom have been
held to be jointly and severally liable.
26. The statutory deposit, if made, shall be refunded.
27. The awards are modified and the appeals stand disposed of in above
terms.
R.K. GAUBA
(JUDGE)
MARCH 03, 2016
ssc
