United India Insurance Co Ltd vs Ganga Devi & Ors
2016 Latest Caselaw 3469 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 10th May, 2016
+      MAC.APP. 847/2013

       UNITED INDIA INSURANCE CO LTD
                                                                 ..... Appellant
                          Through       Mr. L K Tyagi, Adv.

                          versus

       GANGA DEVI & ORS
                                                             ..... Respondent
                          Through       Mr. A K Mishra, Adv. for R-1 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. Maya Ram died as a result of injuries suffered in a motor vehicular accident that occurred on 23.03.2008 involving negligent driving of a tractor bearing registration No.UP 12L 7479 with trolley (the offending vehicle), which was admittedly insured against third party risk with the appellant insurance company (insurer) for the period in question. His dependent family members, first to fifth respondents (claimants), instituted an accident claim case (suit No.512/2010/2008) on 18.07.2008 impleading the insurer, driver and owner respectively of the offending vehicle as respondents. The tribunal held inquiry and, by judgment dated 08.04.2013, upheld the case of death having occurred due to negligent driving of the tractor with trolley. This finding has attained finality as it was not challenged any further. The

tribunal awarded compensation in the sum of Rs.4,32,248/- with interest at 9% per annum calculating thus :

       Loss of Dependency       --------     Rs.4,27,248/-
       Funeral Expenses         --------     Rs. 25,000/-
       Love & Affection         --------     Rs. 10,000/-
       Loss of Consortium       --------     Rs. 10,000/-
       Loss of Estate           --------     Rs. 10,000/-
       Total                    --------     Rs.4,82,248/-
       Less Interim Award       --------     Rs. 50,000/-
       Balance Payable Sum      --------     Rs.4,32,248/-

2. The insurance company, during inquiry before the tribunal, had taken the plea that there was a breach of terms and conditions of the insurance policy as the deceased was travelling in the trolley as a gratuitous passenger and further as the driving licence of the driver (sixth respondent herein) was valid only for light motor vehicle (LMV) whereas the trolley having been attached to the tractor had rendered it a commercial vehicle for which the licence in question was not a proper authorization. Both these contentions were rejected by the tribunal and insurance company was directed to pay the amount of compensation awarded.

3. The insurer is in appeal questioning the computation of loss of dependency only on the ground that element of future prospects of increase to the extent of 30% was wrongly added over and above the income at Rs.4,057/- assessed notionally on the basis of minimum wages of the skilled worker. In this context, the insurer also argues that since the age of the deceased was found to be 60 years, no such future prospects could have been added in view of dictum in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. The insurer further

submits that the tribunal fell into error by accepting the evidence of Prahlad Singh (PW2) with regard to the factum of accident but disbelieving him about the case that the deceased was traveling in the trolley so as to render him a gratuitous passenger. It presses for exoneration on the said ground as also with reference to its contention vis-à-vis the driving licence. Per contra, the claimants submit that the awards under the non-pecuniary heads of damages are deficient.

4. The tribunal found the age of the deceased to be 60 years on the basis of entry in the ration card (Ex.PW1/1) showing his year of birth to be 1948. While contesting the appeal it was argued on behalf of the claimants that the medical records show the age to be less than 50 years. This argument of the claimants cannot be accepted as the entry in the ration card recorded prior to the accident has to be treated as more authentic.

5. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.

6. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.), this Court has

found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.

7. The income of the deceased was notionally assessed on the basis of minimum wages. There is no proof of any progressive rise in income. Thus, even if the contention of the claimants about the age were to be accepted (for which there is no sound reason), the element of future prospects cannot be added to the calculations.

8. In the above facts and circumstances, the loss of dependency is recalculated as (4,057 x 3 ÷ 4 x 12 x 9) Rs.3,28,617/- rounded off to Rs.3,30,000/-. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, compensation in the sum of Rs.1 lakh each on account of loss of love & affection and loss of consortium and Rs.25,000/- each towards loss of estate and funeral expense are added. Thus, the total compensation payable comes to (3,30,000 + 2,50,000) Rs.5,80,000/-. The amount of Rs.50,000/- paid as interim award shall be suitably adjusted. Needless to add, the award shall carry interest (9%) as levied by the tribunal.

9. The award is modified as above.

10. The contention of the insurer about breach of terms and conditions of the insurance policy was considered and rejected by the tribunal. The plea about the driving licence was rejected on the ground that addition of trolley to the tractor would make no difference and the licence held for light motor vehicle would suffice. Following the view taken in National Insurance Company V. Swaran Singh (2004) 3 SCC 297, this view cannot be faulted.

11. The contention about the gratuitous passenger was considered and rejected thus :

"The other defence raised by the insurance company is pertaining to breach caused by the deceased while travelling in the trolley in capacity of gratuitous passenger. The insurance company sought to seek support from the statement of PW2 Prahlad Singh, who was allegedly present when the accident occurred. However, I have doubts to the statement of PW2 Prahlad Singh, though he has appeared as petitioners' witness. It be observed that in some circumstances, over-jealous approach is adopted by the parties involved in a matter in producing any person who claims to have seen the accident without actually verifying the contents of such statement. It has been averred by this witness that he was present at the time of occurrence being a co-passenger with the deceased, however, he has not disclosed any reason or circumstances in which he accompanied the deceased. He merely stated that he was travelling with the deceased and was occupying the seat in the cabin whereas the deceased was made to sit in the trolley. It is shown on record that the deceased was aged about 60 years. It is apparent that with this age, it would not be convenient for the deceased to climb up in the trolley whereas his alleged co- passenger found space in the cabin, along with the driver. In general parlance, the probability which would emerge is that any of the person may vacate the space from cabin and climb in the trolley as they are more accustomed to sit therein, unlike the deceased. As in such case, the probability would be to

allow the deceased to first occupy the space in the cabin, than this witness. It shows that there was no space in the cabin and none was allowed to be accommodated in the cabin, making the presence of witness as doubtful. Despite claiming that he helped the police in removing the deceased to hospital, no explanation could come forward from him as why police did not record his statement, he being the eye-witness. The statement made by him has not even been believed by the insurance company which has given him suggestions as well doubting his presence and the fact of is having witnessed the accident. Thus, there is implied admission from the insurance company that the statement of PW2 Prahlad Singh is not reliable and in such circumstances, it cannot be a ground to discard the argument that the capacity of deceased being a gratuitous passenger is not duly established through the material available on record, since the insurance company has also miserably failed in establishing the above fact. Rather, it cannot be out of place to observe that the insurance company has been blowing hot and cold at the same time as in the affidavit of its officer, it claimed the defence of gratuitous passenger on the averment made by PW2 Prahlad Singh and on other end, it rigorously cross- examined PW2 Prahlad Singh, disbelieving each and every word of his statement. In the circumstances above, I am of the view that the insurance company is liable to discharge the liability of the award amount and is accordingly directed to discharge the same."

12. The view taken by the tribunal on the plea regarding gratuitous passenger does not appeal to reason. The tribunal acted on the evidence of Prahlad Singh (PW2) with regard to the involvement of the vehicle. Yet, on speculative reasoning it rejected his version to repel the contention of the insurance company. Prahlad Singh (PW2) having been examined by the claimants themselves, his version cannot be wished away. Neither the owner nor the driver of the offending vehicle made any attempt to discredit his testimony. His version clearly brought out that the deceased was

travelling in trolley, his position not being more than that of a gratuitous passenger. [Oriental Insurance Co. Ltd. v. Brij Mohan (2007) 7 SCC 56]

13. But the plea of the insurance company for total exoneration cannot be accepted. The third party rights cannot be defeated. The insurance company having proved breach of terms and conditions can always recover the amount paid as compensation from the owners/insurer. Thus, the insurance company is directed to satisfy the award and is given liberty to recover the amount thus paid from the driver/owner of the offending vehicle by appropriate proceedings before the tribunal.

14. By order dated 17.09.2013, the insurance company had been directed to deposit the awarded amount with up-to-date interest which was directed to be held by the Registrar General. The said amount shall now be released to the claimants in terms of the impugned award.

15. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) MAY 10, 2016 VLD