Delhi High Court
Delhi Transport Corporation vs Ruby & Ors. on 23 September, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 26.08.2022
Pronounced on: 23.09.2022
+ MAC.APP. 443/2013
DELHI TRANSPORT CORPORATION ..... Appellant
Through: Mr. Sarfaraz Khan and
Mr. Mirza Amir Baig, Advocates
versus
RUBY & ORS. ..... Respondents
Through: Mr. Ravi Sabharwal, Advocate for
R-6
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. The present appeal emanates from the judgment dated 30.10.2012
("Impugned judgment") passed by the learned Presiding Officer,
MACT II: South Distt. : Saket Courts, Delhi in Suit No. 125/11
titled as Smt. Ruby and Ors. Vs. Prabhir Singh and Ors. whereby
the respondent Nos. 1-4/Claimants were awarded an amount of
Rs.19,44,600/- as compensation with an interest @ 9% per annum,
from the date of filing of the petition till realization is made by
respondent No.6/Insurance Company with right to respondent No.6
to recover the same jointly and severally from the Appellant/ DTC
and respondent No.5/Prabhir Singh.
The facts germane to the present appeal are as follows:
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2. On the unfortunate day of 17.02.2011, an information vide DD
No.66B was received at the Saket Police Station of an accident at
Press Enclave Road, Modi Hospital, Saket. In the said accident, a
DTC bus No. DL 1P C 1241, scooter No. DL 6S P 6441 and Santro
Car No. DL 9C A 9877 were found in an accidental condition.
Pursuantly, the PCR removed the injured to Modi hospital, where
the doctors declared the injured was brought dead. It is pertinent to
note that as per the election card, at the time of the accident, the
deceased/ Sh. Abdesh Sharma was 26 years of age and was working
as a Field Officer with Ex Servicemen Security Service on a salary
of Rs. 9,500/-. He was survived by his wife, parents and a minor
son.
3. Subsequently, a case was also registered under Sections 279 and
304A of IPC vide FIR 64/2011 by one Sh. Suresh Kumar Saini,
who is the owner of the Santro Car No. DL 9C A 9877 and further
investigation was conducted. As per the FIR, the offending
vehicle/DTC bus was being driven by Prabhir Singh in a very rash
and negligent manner which came from behind and hit a scooter
No. DL 6S P 6441, Santro car No. DL 9C A 9877 and a cyclist,
which is the deceased/Abdesh Sharma. As a result of the accident,
the cyclist as well as the person on scooter suffered severe injuries.
4. Further, Charge sheet under Sections 279, 304 A, 420, 468, 471 of
IPC were also filed. The charge sheet revealed that the death of the
deceased occurred on account of the rash and negligent driving of
the respondent No.5. Further, it also revealed that as per the post
mortem report, the cause of death of the deceased was due to
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hemorrhage shock due to multiple injuries and due to blunt external
force which is possible in road traffic accidents. Pertinently, as per
the charge sheet, the Offending vehicle‟s RC, fitness, permit and
insurance were verified. Further, respondent No.5‟s driving license,
which was allegedly made by the authorities from Mathura, was
also verified, and was found to be fake.
5. At this juncture, it is relevant to note that, the Detailed Accident
Report (hereinafter referred to as "DAR") was treated as the claim
petition under Section 166 (4) of the Motor Vehicles Act, 1988
(hereinafter referred to as the "Act").
6. On getting notice of the DAR, reply was filed by the present
respondent Nos. 5 and 6 as well as the Appellant. The Appellant
and respondent No. 5 stated that the offending vehicle was insured
with respondent No.6 vide policy no. 0411003110P000794083 for
the period 28.08.2010 to 27.08.2011. They also stated that the
respondent no.5 had a valid and effective driving license at the time
of the accident. Per Contra, respondent No.6 stated that respondent
no. 5 was not holding a valid driving license at the time of the
accident. However, it admitted that the offending vehicle was
insured with it vide policy no. 0411003110P000794083 for the
period 28.08.2010 to 27.08.2011, during which the unfortunate
accident occurred.
7. Vide order dated 20.04.2011. The learned Claims Tribunal framed
the following issues for adjudication:
"1. Whether the deceased Avdesh Kumar succumbed to injuries
sustained in road accident on 17.02.2011 at 20:00 hrs at Press Enclave
Road in front of Modi Hospital Saket, New Delhi near due to rash and
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negligent driving of the vehicle No. DL-1PC-1241 being driven by its
driver-R-1, owned by R-2 and insured by R-3/Insurance Company?
2. To what amount of compensation the petitioner is entitled and from
whom?
3. Relief."
8. In support of the claim petition, respondent No.1/PW1 filed
documents i.e., Ration card, Election card, Salary certificate, MLC,
postmortem report, Final report under Section 173 Cr. PC, FIR,
Fard DTC Bus, Arrest Memo, Driving License, RC and Insurance
particulars and the same are annexed as Ex. PW1/1 to Ex. PW1/14.
Respondent No. 6 examined R3W1, Sh. Jagdish Narang, Deputy
Manager, who brought on record the insurance policy Ex. R3W1/1,
containing the conditions of the insurance policy and further
claimed that as per the report of the investigating officer, the driving
license of the offender/respondent No.5 was fake and the same was
not issued by the RTO, Mathura. He proved the driving license
verification report Ex. R3W1/2, Notice Under order XII Rule 8 of
CPC Ex. R3W1/3, postal receipt Ex. R3W1/4 and 5 and
Acknowledgment Ex. R3W1/6 and 7. Further, respondent No.6 also
examined R3W2, Sh. B.K Arya, Junior Clerk, ART Office,
Mathura, U.P who brought the record of the license no. A-302 MTR
95. It was found to be issued in the name of Ashok Kumar, S/o Sh.
Raghuvar Dayal, R/o Khamini, Mathura. He has stated that the
driving license Ex. R3W2/1 was issued for the category of
motorcycle only and the same is valid from 15.09.1995 to
14.09.2015. He also proved the verification report of the driving
license Ex. R3W2/3.
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9. Learned Claims Tribunal decided the issues in favor of the
claimants/respondent Nos. 1-4 by holding that he is entitled to get
the total compensation of Rs. 19,44,600/- along with an interest @
9% per annum from the date of filing of the petition till realization
of the amount from respondent No.6/Insurance Company with
further right to recover the same jointly and severally from
respondent No. 5 and the Appellant.
S. No Head Compensation awarded
Pecuniary Damages
1. Loss of Dependency Rs. 18,89, 600/-
2. Funeral charges Rs. 10,000/-
3. Loss of estate Rs. 10,000/-
4. Loss of Consortium Rs.10,000/-
Non- Pecuniary Damages
5. Loss of love and Rs. 25,000/-
affection etc.,
Total Compensation awarded Rs.19,44,600 /-
10. Aggrieved by the order of the learned Claims Tribunal, the
Appellant herein filed an appeal under Section 173 of the Act,
against the order of the learned Claims Tribunal before this Court
praying for setting aside the Impugned Judgment, passed by the
learned Claims Tribunal in Suit No.125/11. This Court issued notice
in the present matter vide its order dated 17.05.2013.
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SUBMISSIONS OF THE APPELLANT/DTC
11. The counsel for the Appellant initiated his arguments by submitting
that the offending vehicle No. DL-1PC-1241 of the DTC was duly
insured with respondent No.6 vide Policy No.
0411003110P00079083 which was valid, from 28.08.2010 to
midnight 27.08.2011, whereas the accident had taken place on
17.02.2011. He vehemently submitted that the learned Claims
Tribunal grossly erred in permitting the Insurance
Company/respondent No.6 to recover the award amount from the
Appellant/DTC. He further asserted that, even otherwise, the
Impugned Judgment and the compensation award of Rs. 19,44,600/-
along with interest @ 9% per annum from the date of filing of the
petition till realization is not in accordance with law.
12. While relying on the judgment of the Hon‟ble Supreme Court in
National Insurance Company Limited v. Swaran Singh reported
as (2004) 3 SCC 297, the Appellant submitted that in order to avoid
liability by the insurer, respondent No.6 not only has to prove
breach of valid and effective driving license but also has to prove
that breach on part of the insured was willful and that the said
breach was so fundamental to become the cause of the accident. He
further went ahead and submitted that respondent No.6 has not led
any evidence which may prove that breach on part of the Appellant
was willful or within their knowledge. He submitted that the Insurer
is liable to raise a defense in a claim petition filed under Section 163
A or Section 166 of the Act inter alia in terms of Section 149 (2) (a)
(ii) of the said Act. He vehemently submitted that mere absence,
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fake or invalid driving license or disqualification of the driver for
driving at the relevant time are not in themselves defenses 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.
In the present case, no such defense has been positively
raised by the Insurer/respondent No.6 so that the Appellant could
have proved otherwise that there was no negligence and that the
Appellant had exercised reasonable care in the matter or fulfilling
the conditions of the policy regarding use of vehicles by duly
licensed driver. He argued that, had this defense been taken by
respondent No.6, the Appellant being a public authority could have
surely brought on record the whole process under which the
driver/respondent No.5 was recruited.
13. Learned Counsel for the Appellant veered his submissions by
submitting that the Driver/respondent No.5 was driving the vehicle
under Appellant/DTC, which appointed respondent No.5/driver
after perusing his driving license and after being satisfied about his
ability and capability as a driver. Hence, the fake driving license by
respondent No.5 cannot be treated as willful default or negligent
conduct on part of the Appellant/DTC. He submitted that the
Appellant is not expected to verify the driving license of each driver
before appointing them. Furthermore, he argued that, even
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otherwise it cannot be said by any stretch of imagination that the
cause of accident was fundamental and the same was due to holding
of fake driving license at the time of the alleged incident.
14. With regard to the Compensation awarded by the learned Claims
Tribunal to respondent No.1-4, Mr. Khan submitted that the award
of Rs. 19,44,600/- is contrary to law and facts and is illegal,
perverse and highly exorbitant. He submitted that the learned
Claims Tribunal, while calculating his compensation should have
based the income of the deceased @ 9,500/- p.m as he was to pay
income tax also. Further, he submitted that the learned Claims
Tribunal erred in not deducting 1/3rd of his income towards the
personal expenses and furthermore erred in treating respondent
No.2 as a dependent.
15. Lastly, Mr. Khan submitted that merely because the accident took
place, the learned Claims Tribunal grossly erred in holding that the
deceased/ Sh. Abdesh Sharma died due to the rash and negligent
driving of bus No. DL-1P C 1241 by respondent No.5.
16. Learned counsel for the Appellant further bolstered his submissions
by relying on judgment of the Hon‟ble Supreme Court in Pepsu
Road Transport Corporation v. National Insurance reported as
(2013) 10 SCC 217 and Ram Chandra Singh v. Raja Ram reported
as (2018) 8 SCC 799.
SUBMISSIONS OF THE RESPONDENT NO.6
17. Learned counsel for respondent No. 6, while relying on the
impugned Judgment submitted that there is no liability qua
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respondent No.6 as there was a „deliberate breach‟ on part of the
owner and driver and the entire liability was to be squarely fastened
upon the Appellant/DTC and its driver/respondent No. 5
exclusively. The learned Claims Tribunal rightly by all means
granted the right to recover the amount of compensation from the
Appellant and respondent No. 5 jointly and severally.
18. He submitted that the Appellant has violated the terms and
conditions of the insurance policy by authorizing the
offender/respondent No.5 to drive the insured vehicle, when he was
not holding a valid driving license, and in view of that, respondent
No.6 is not liable to indemnify the owner/Appellant. He further
asserted that the liability of respondent No.6 is subject to the terms
and conditions of the insurance policy and cover note and also
subject to the provisions of law and statutes. Relevant part of the
policy R3W1/1 is reproduced hereunder:
"Persons or classes of persons entitled to drive
Driver's Clause: Persons or classes of persons entitled to drive:- Any
person including Insured provided that the person driving holds an
effective and valid driving licence to drive the category of vehicle
insured hereunder, at the time of the accident and is not disqualified
from holding or obtaining such a licence. Provided also that a person
holding an effective and valid Learner's Licence to drive the category of
the vehicle insured hereunder may also drive the vehicle when not used
for transport of passengers at the time of the accident and that the
person satisfies the requirements of Rule 3 of Central Motor Vehicle
Rule, 1989."
19. Learned counsel for respondent No.6 advanced his submissions by
adducing two very crucial evidences. Firstly, the evidence of Ex.
R3W1/Sh. Jagdish Narang and submitted that the Appellant/Insured
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has violated the conditions contained in the insurance policy in
respect of DTC Bus bearing no. DL-01-PC-1241 regarding the
person who can drive the insured vehicle. Further, as per the
original driving license verification report from Mathura Licensing
Authority/ Ex. R3W1/2, the driver is a fake one and the driving
license of respondent No.5/Offender was not issued by RTO
Mathura. He further submitted that respondent No.6 made strenuous
efforts vide Notice (Ex. R3W1/3) to get the Appellant to produce
the original policy and Driving license of the driver of the offending
vehicle. However, despite service of legal notices upon them, the
Appellant has neither produced the original policy nor driving
license of the offender to counter their evidence, which speaks in
itself that the Appellant had nothing in rebuttal. Learned counsel
went ahead and submitted that the non-rebuttal of evidence on the
part of respondent No.5 and the Appellant is to be drawn as adverse
inference against them. Relevant part of the evidence of R3W1 is
reproduced hereunder:
"2. That I have brought the computerized copy of the insurance Policy
in respect of DTC Bus bearing no. DL-Ol-PC-1241. The same is
EXR3W1/1 at point 'B' it contained condition regarding the person who
can drive the vehicle insured.
3.That the present case is DAR matter and the investigation officer has
got the driving license of the driver of the offending vehicle verified.
The original Driving Licence verification report from Mathura
Licencing Authority is Ex. R3W1/2.
4.That as per the report of the investigation officer the driving license of
the driver is take one and the same was not issued by RTO Matura.
6. That the insured has given the vehicle for driving to a person who
was not holding the valid Driving Licence to drive vehicle in question
and that has violated the policy condition mentioned at pointed 'B'..."
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Secondly, Mr. Sabharwal further cushioned his contentions, by
relying on the evidence of R3W2/Sh. B.K. Arya, Junior Clerk, ART
Office, Mathura, UP and submitted that the license i.e., A-302 MTR
95 brought on record was found to be issued in the name of Ashok
Kumar S/o Sh. Raghuvar Dayal, R/o Khamini, Mathura. He has
stated that the driving license Ex. R3W2/1 was issued for the
category of motorcycle only and the same is valid from 15.09.1995
to 14.09.2015. He also proved the verification report of the driving
license Ex.R3W2/3.
Relevant part of the examination of Sh. B.K. Arya/ R3W2 is
reproduced hereunder:
"I have brought the record regarding licence no. A-302 MTR 95 which
is issued in the name of Sh. Ashok Kumar S/o Sh. Raghuvar Dayal R/o
Khamini, IV Iathura. The licence was issued for the purpose of
motorcycle only and the same is valid for the period from 15.09.95 to
14.09.15. The copy of the same is Ex. R3W2/1. Witness is shown the
licence filed by the IO. He has denied that the same is not issued from
our authority. The witness also denied the stamp and the signatures
upon the said DL Same is exhibited as Ex. R3W2/2. The verification
report of said DL obtained by the IO from our authority is Ex. R3W2/3
and it is signed by Licencing Incharge, Sunil Kumar Singh and LO, Sh.
Omprakash, Regional Inspector. The signatures of Sh. Omprakash is at
point A and the signatures of Sh. Sunil Kumar Singh is at point B."
20. He further concluded his submissions by submitting that the owner
here in the present case is DTC, which is another limb of the State,
and runs fleet of buses for communication in Delhi and NCR. He
submitted that State owned transporters owe a greater responsibility
and duty to take „due and adequate care‟ to check and verify the
authenticity and validity of the „driving license‟ of their drivers,
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before putting the command of the vehicles/buses in their hands and
risking the lives of many such passengers. He submitted that the
Appellant cannot be treated at par to an „individual owner‟ in this
respect; who has all the wherewithal to enquire the validity of
„driving license‟ of their drivers before their employment. Any
deviation in such a „duty of care‟, in this regard is to be treated as
„gross negligence‟ on part of DTC, which amounts to deliberate
breach of the „insurance policy‟ on their part and indulging in
flouting the provisions of the Act.
LEGAL ANALYSIS
21. I have given an anxious consideration to the submissions of both the
parties and have further perused the records.
22. With respect to the issue of negligence by respondent No.5 in
driving the DTC bus, the Appellant in its written statement stated
that no public witness has been examined in order to frame
respondent No.5 falsely in the accident. Further, it was stated that
DTC bus No. DL 1P C 1241 was not being driven by respondent
No.5 rashly and negligently. In fact, the Car, Scooter and Cycle
were involved in the accident due to which accident took place and
it was because of the fault and negligent driving of the Car, Scooter
and Cyclist and the Appellant DTC Bus has been falsely implicated
in the accident in order to grab compensation. Further, it was stated
that the bus was being driven by respondent No.5 in the normal
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speed and there was no negligence on his part and hence,
driver/respondent No.5 was not at fault.
23. I am of the opinion that this contention needs to be repelled. The
learned Claims Tribunal had dealt with this issue in detail and held
in paras 11 and 12 of the judgment that the accident took place
because of the rash and negligent driving on part of the
driver/respondent No.5. Relevant part of the judgment is reproduced
hereunder:
"11. It is well settled law that where petition under Section 166 of the
Act is instituted, it becomes the duty of the petitioner to establish rash
and negligent driving. To prove rash and negligent driving in a petition
under Motor Vehicles Act, Tribunal need not go into the technicality
because strict rules of procedure and evidence are not followed.
Basically, in road accident cases, Tribunal is simply to quantify the
compensation which is just rational and reasonable on the basis of
inquiry. The proceedings under Motor Vehicles Act are not akin to the
proceedings in a civil suit. Further, roving enquiry is not required to
prove the rashness and negligence on the part of the driver as has been
held in Kaushumma Begum and others Vs. New India Assurance Co.
Ltd. 2001 ACJ421SC.
12. PW-1 has stated that on 17.02.11 at about 8.00 PM her husband Sh.
Avdesh was on his way back to home by his cycle. When he reached in
front of Modi Hospital, Press Enclave Road, Saket, New Delhi, all of a
sudden DTC bus bearing no. DL 1P C 1241 which was being driven by
the respondent no. 1 in a rash and negligent manner hit the bicycle of
her husband. Her husband fell down and sustained injuries. She stated
that her husband died on the spot. Perusal of DAR reveals that the case
was registered on the statement of Suresh Kumar Saini whose car was
also hit by the DTC bus. He stated that on 17.02.11 at about 8.00 PM
he alongwith his friend was going towards Modi Hospital in his Santro
car bearing no. DL 9C A9877. In the meantime, a DTC bus bearing no.
DL 1P C1241 plying on route no. 534 came at a fast speed being driven
in a rash and negligent manner and hit a scooter then his car and it
also hit a cyclist who sustained injuries in the accident. He had stated
that DTC bus driver was apprehended on the spot by the public
persons. There were fresh damages on the front portion of the bus.
Perusal of postmortem report reveals the cause of death was
hemorrhagic shock due to multiple injuries due to blunt external force
possible in a road traffic accident. Hon'ble High Court of Delhi in case
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titled as 2009 ACJ 287 National Insurance Company Limited Vs.
Pushpa Rana has held that where a petitioner files the certified copy of
the criminal record showing completion of Investigation, issuance of
charge-sheet, certified copy of the FIR, all these documents are
sufficient proof to come to the conclusion that the driver was
negligent."
24. I am in full agreement with the reasons provided by learned Claims
Tribunal which had decided this issue in favour of the
Claimants/respondent Nos. 1-4 relying on the evidence of PW-1
coupled with the FIR, Charge sheet and other documents. The
Hon‟ble Supreme Court in Sunita v. Rajasthan SRTC, (2020) 13
SCC 486 has held that, "...Road accidents are one of the top killers
in our country, specially when truck and bus drivers operate
nocturnally. This proverbial recklessness often persuades the
courts, as has been observed by us earlier in other cases, to draw
an initial presumption in several cases based on the doctrine of res
ipsa loquitur. Accidents Tribunals must take special care to see that
innocent victims do not suffer and drivers and owners do not escape
liability merely because of some doubt here or some obscurity there.
Save in plain cases, culpability must be inferred from the
circumstances where it is fairly reasonable. The court should not
succumb to niceties, technicalities and mystic maybes. We are
emphasising this aspect because we are often distressed by
transport operators getting away with it thanks to judicial laxity,
despite the fact that they do not exercise sufficient disciplinary
control over the drivers in the matter of careful driving. The heavy
economic impact of culpable driving of public transport must bring
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owner and driver to their responsibility to their neighbour. Indeed,
the State must seriously consider no-fault liability by legislation..."
25. Another quintessential issue raised by the Appellant which needs
adjudication is with regard to the liability of respondent No.6 in
compensating the claimants/respondent No. 1-4. The learned Claims
Tribunal vide the impugned judgement held that respondent
No.6/Insurance Company was liable to compensate the claimants
with further right to recover the same jointly and severally from the
Appellant/ DTC and respondent No.5/Prabhir Singh. However, it is
the contention of the Appellant that as per the judgment of Swaran
Singh (supra), in order to avoid liability by the insurer, respondent
No.6 not only has to prove breach of valid and effective driving
license but also has to prove that the breach on part of the insured
was willful and that the said breach was so fundamental to become
the cause of the accident. It was further also argued by the
Appellant that Appellant/DTC appointed respondent No.5/driver
after perusing his driving license and after being satisfied about his
ability and capability as a driver. Hence, the fake driving license by
the respondent No.5 cannot be treated as willful default or negligent
conduct on part of the Appellant/DTC.
26. In this regard, this Hon‟ble Court in the matter of New India
Assurance Co. Ltd. v. Sanjay Kumar & Ors. reported as ILR
(2007) II Delhi 733, has held that although the onus is on the insurer
(respondent No.6 in the present case) to prove that there was
breach of condition of policy, but once the record for the Licensing
Authority is summoned to prove that the driver did not possess a
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valid driving license, the onus would shift on the insured (the
owner of the vehicle) who must then step into the witness box and
prove the circumstances under which he acted and handed over the
vehicle to the driver. Relevant part of the judgment is reproduced
hereunder:
"22. Thus, where the insurance company alleges that the term of the
policy of not entrusting the vehicle to a person other than one
possessing a valid driving licence has been violated, initial onus is on
the insurance company to prove that the licence concerned was a fake
licence or was not a valid driving licence. This onus is capable of being
easily discharged by summoning the record of the Licencing Authority
and in relation thereto proving whether at all the licence was issued by
the authority concerned with reference to the licence produced by the
driver. Once this is established, the onus shifts on to the assured i.e. the
owner of the vehicle who must then step into the witness box and prove
the circumstances under which he acted; circumstances being of proof
that he acted bona fide and exercised due diligence and care. It would
be enough for the owner to establish that he saw the driving licence of
the driver when vehicle was entrusted to him and that the same
appeared to be a genuine licence. It would be enough for the owner, to
discharge the onus which has shifted on to his shoulders, to establish
that he tested the driving skill of the driver and satisfied himself that the
driver was fit to drive the vehicle. Law does not require the owner to
personally go and verify the genuineness of the licence produced by the
driver.
24. That apart, what more can the insurance company do other than to
serve a notice under Order 12 Rule 8 of the Code of Civil Procedure
calling upon the owner as well as the driver to produce a valid driving
licence. If during trial such a notice is served and proved to be served,
non response by the owner and the driver would fortify the case of the
insurance company.
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23. Where the assured chooses to run away from the battle i.e. fails to
defend the allegation of having breached the terms of the insurance
policy by opting not to defend the proceedings, a presumption could be
drawn that he has done so because of the fact that he has no case to
defend. It is trite that a party in possession of best evidence, if he
withholds the same, an adverse inference can be drawn against him that
had the evidence been produced, the same would have been against
said person. As knowledge is personal to the person possessed of the
knowledge, his absence at the trial would entitle the insurance company
to a presumption against the owner."
27. In the present case, evidence of Ex. R3W1/Sh. Jagdish Narang,
proves that the Appellant had violated the conditions of the
insurance policy with regard to the offending vehicle. Further, it
also proves that the driving license of respondent No. 5 is fake and
has not been issued by RTO Mathura, as alleged. It is also pertinent
to note that respondent No.6 issued Notice under Order 12 Rule 8
CPC (Ex. R3W1/3) to the Appellant by registered post to produce
the original policy and driving license of respondent No.5 and the
said Notice was duly served upon the Appellant/Insured as well as
respondent No.5. However, despite the above notice, the insured has
neither produced the original policy and driving license of the
offender/respondent No.5 nor has come to court to adduce his
evidence. Further, the evidence of R3W2/Sh. B.K. Arya, Junior
Clerk, ART Office, Mathura, UP, proves that the license i.e., A-302
MTR 95 brought on record was found to be issued in the name of
Ashok Kumar for the category of motorcycle only for the period
15.09.1995 to 14.09.2015. Furthermore, the verification report of
the driving license (Ex. R3W2/3) was also proved by him.
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28. What emanated from the discussion is that evidently, the Appellant/
DTC did not lead any evidence to prove the skills of the
offender/respondent No.5. Further it also failed to exercise
reasonable care before employing respondent No.5 as it has not
taken any necessary driving test with respect to capability and
competence of respondent no.5 or about the genuineness of his
driving licence, therefore, the DTC cannot absolve itself of its
liability. Further, despite notice under Order 12 Rule 8 CPC, the
Appellant failed to reply to the same. Applying the ratio of Sanjay
Kumar (supra) I hold that the owner was guilty of willful breach of
the conditions of policy. Swaran Singh's case (supra) would also
not help the owner/Appellant and respondent No.5. After being
proved that the driver did not possess an effective driving license,
the owner did not come forward to explain the circumstances under
which he handed over the vehicle to him. Hence, the very act of the
Appellant/DTC amounts to breach of the insurance policy. At this
juncture, it is relevant to mention that the numerous instances of
rash and negligent driving involving DTC buses resulting in severe
injuries and deaths in Delhi in the period concerned cannot be lost
sight of. Even today, the strain of this malaise subsists. A public
transport undertaking is not expected to unleash untrained,
incompetent and unlicensed drivers upon the unsuspecting innocent
public.
29. If the aforementioned contention of the Appellant is to be accepted,
the same would result in even the owner/driver of the offending
vehicles getting away without paying a single penny as
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compensation. This would be feeding and encouraging misconduct
as well as perpetuating illegality. Hence, I am in full agreement with
the reasoning given by the learned Claims Tribunal with regard to
the above issue.
30. An insurance contract is based on uberrimae fides i.e. utmost good
faith. When an insurer extends an insurance cover, it is done in the
belief that the insured would take all necessary precautions and act
as a reasonable person. The Appellant is a statutory authority. It is
statutorily mandated to provide public transport facility in the
National Capital Territory of Delhi. It is expected from a public
employer to check the antecedents of its prospective employees and
in particular the fact that the candidate possessed a valid driving
license and that only after passing the special training, the selected
candidates would be offered employment. In employment of drivers
by a Government undertaking, the basic qualification is the
possession of the driving license. The exercise of checking the
validity of the driving license could be carried out even after
offering provisional employment to the successful candidates. The
position of a public transport undertaking, or a large public
transporter, who engage a number of drivers-in hundreds and
thousands, to drive their fleet of vehicles, is different from a private
individual who engages one or two drivers for his/ her personal
service. The latter would not possess the necessary administrative or
financial wherewithal to verify the driving license. The individual
may perhaps be also constrained by exigencies to employ a driver
immediately without awaiting a driving licence verification report.
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Hence, it is evident that the Appellant/ DTC being the
employer/owner of the vehicle has clearly failed in its duty to
exercise reasonable care apropos use of the public transport bus for
ferrying ordinary unsuspecting passengers who board it with the
bonafide belief that its driver is duly licensed and has undergone
requisite training and has the competence to drive a public bus on
the roads of Delhi. It is expected from a public employer such as the
appellant DTC, being a statutory undertaking, that it would exercise
due caution and care apropos verification of documents submitted
by a person who is offered employment.
31. Going forward with regard to the issue of compensation, the
Appellant has challenged the Impugned judgment to the extent that
learned Claims Tribunal, while calculating his compensation,
should have based the income of the deceased @ 9,500/- p.m. as he
was to pay income tax also. Further, he submitted that the learned
Claims Tribunal erred in not deducting 1/3rd of his income towards
the personal expenses and furthermore erred in treating respondent
No.2 as a dependent. Therefore, as the appeal in the present case is
of the Appellant/DTC, I am bound to adjudicate on this limited part.
32. Learned counsel for the Appellant contends that, while calculating
the compensation, the learned Claims Tribunal should have based
the income of the deceased @ 9,500/- p.m. as he was to pay income
tax also. It is pertinent to note here that the learned Claims Tribunal,
after relying on the evidence of PW-2 and the salary certificate (Ex.
PW 1/5) has based the income of the deceased as Rs. 9,500/- only.
No interference in this regard is necessary.
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33. It is further the contention of the Appellant/DTC that the learned
Claims Tribunal erred in treating respondent no.2/father of the
deceased as dependent. The learned Claims Tribunal has held that
there were 4 dependents i.e., Wife, mother, father and one minor
son. I agree with the learned Claims Tribunal that the father would
be treated as a dependent. The father was aged 61 at the time of
filing the petition before learned Claims Tribunal and was a senior
citizen. Therefore, the father of the deceased would be considered a
dependent on the deceased. Pertinently, there are 4 dependents on
the deceased so a deduction of 1/4th towards the personal expenses
of the deceased would be made as per the Hon‟ble Supreme Court‟s
dicta in Sarla Verma and Ors. v. Delhi Transport Corporation and
Anr. reported as (2009) 6 SCC 121.
34. In view of the above, the appeal filed by the Appellant/DTC is
dismissed and the judgment passed by the learned Claims Tribunal
in Suit No. 125/11 does not call for any interference. No orders as to
cost.
GAURANG KANTH, J.
SEPTEMBER 23, 2022
PS
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