Punjab-Haryana High Court
Sahabuddin vs Shriram General Insurance Co. Ltd ... on 27 September, 2022
FAO-2227-2013 (O&M)& three others [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on:19.09.2022
DATE OF DECISION: 27.09.2022
1. FAO-2227-2013 (O&M)
Sahabuddin ........ Appellant
Versus
Shriram General Insurance Co. Ltd. and ors. ......... Respondents
2. FAO-3359-2013(O&M)
Hakiman and another .....Appellants
Versus
Sahabuddin and ors. .....Respondents
3. FAO-5255-2013(O&M)
Shri Ram General insurance Company Ltd. .....Appellant
Versus
Sohil Khan and ors. .....Respondents
4. FAO-5261-2013(O&M)
Shri Ram General insurance Company Ltd. .....Appellant
Versus
Hakiman and another .....Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr.Rajesh Lamba, Advocate for the appellant
in FAO 2227-2013 and for respondent No.4 in
FAO-5261-2013, for respondent no.3 in FAO-5255-2013
and for respondent No.1 in FAO-3359-2013.
Mr. Ashish Gupta, Advocate for the claimants/appellants
in FAO-3359-2013 and counsel for respondents No.1 & 2
in FAO-561-2013, respondents No.3 & 4 in FAO-2227-
2013 and for respondent No.1 in FAO-5255-2013.
Mr.Tejinder Joshi, Advocate for Insurance Company.
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SANJAY GUPTA
2022.09.28 13:10
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authenticity of this order/judgment
FAO-2227-2013 (O&M)& three others [2]
HARKESH MANUJA, J.
This order of mine shall dispose of the following four
appeals arising out of the common award dated 29.01.2013 passed
by learned Motor Accident Claims Tribunal, Nuh, (for short 'the
Tribunal'):-
i) FAO No.2227-2013 titled as Sahabuddin Vs.
Shriram General Insurance Co. Ltd. and ors.
(filed by registered owner of vehicle against the
recovery rights given to the insurance company),
ii) FAO-3359-2013 titled as Hakiman and another Vs.
Sahabuddin and ors. (filed by claimants/parents
for enhancement of the compensation on account of
death of their son Tarif);
iii) FAO-5255-2013 titled as Shri Ram General
Insurance Company Ltd. Vs. Sohil Khan and ors.
(for reducing compensation awarded to injured Sohil
Khan-respondent No.1 as well as fastening of
liability)
iv) FAO-5261-2013 titled as Shri Ram General
Insurance Company Ltd. Vs. Hakiman and ors.
(filed by the insurance Company for fastening the
liability on the owner of the vehicle and for reducing
the compensation amount).
A perusal of all these appeals shows that common
questions of law and facts are involved which can be divided in two
categories. The first question to be decided is regarding the liability
i.e.who shall be held responsible for the payment of the
compensation amount (insurance company or the owner of the
vehicle). The second question is regarding the quantum of
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FAO-2227-2013 (O&M)& three others [3]
compensation awarded to the claimants which will be discussed for
each case separately. Hence there will be two prong discussion.
A- FASTENING OF LIABILITY:
This question has been raised in FAO Nos.5255, 5261 &
2227-2013 and therefore, qua this aspect all these appeals are being
decided together.
Brief facts of the case as delineated in FAO-5261-2013
are that an accident took place on 17.07.2010, wherein the son and
daughter-in-law of respondents No.1 & 2, namely, Tarif and Ayeesha
received serious injuries and later died thereof. The deceased were
going to Village Malokhra from Village Kaliyaka in Maruti Car bearing
registration No.HR-52-A-9312, while they were hit by the offending
vehicle i.e. dumper bearing registration No.HR-55-H-1694, being
driven by respondent No.3 in a rash and negligent manner.
Respondents No.1 & 2 being the parents of deceased Tarif, filed a
claim petition which was partly allowed by the learned Tribunal vide
impugned order dated 29.01.2013 granting a sum of Rs.4,37,000/- as
compensation along with interest at the rate of 6% per annum from
the date of filing of claim petition, till its realization.
On the issue of liability, the learned Tribunal directed the
Insurance Company to pay the compensation at first instance, but
after holding that as respondent No.3-Driver was not possessing a
valid driving license, therefore, granted recovery rights in favour of
the appellant-Insurance Company. Thus, the primary question to be
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FAO-2227-2013 (O&M)& three others [4]
decided here is that on which shoulder shall lie the responsibility to
pay the compensation.
It has been contended on behalf of the insurance
company that once the Driver of the offending vehicle was not
possessing a valid Driving License and a finding in this regard was
recorded by the learned Tribunal, the appellant Insurance Company
could not have been directed to deposit the amount of compensation
at the first instance by granting them the recovery rights from the
owner.
On the other hand, it has been argued on behalf of
learned counsel for the owner-respondent No.4 that there was no
fault on the part of the learned Tribunal for directing the appellant
Insurance Company to deposit the amount of compensation. He
rather submits that once it was proved on record by way of evidence
of RW-1 i.e. the owner that the Driver- respondent No.3 was
employed after due verification of his Driving Licence and even a
copy of the said Driving Licence was also kept in record, even the
direction issued for grant of recovery rights in favour of the appellant
Insurance Company was also uncalled-for and should be set aside.
Having heard learned counsel for the parties and after
gone through the paper-book as well as lower Courts records, I find
no force in the arguments raised on behalf of the appellant Insurance
Company. In the present case, respondent No.4-owner appeared as
RW1 and tendered his affidavit. Relevant paragraph No.2 of his
affidavit is reproduced hereunder:-
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FAO-2227-2013 (O&M)& three others [5]
"2. That I have appointed the driver Juber son of
Ali Mohd after due verification of the D.L. of the said
Juber and a photocopy of the said D.L. was also
kept in my record. I have full valid documents qua
the said vehicle. Photocopy of DL, RC, Permit,
fitness and Insurance are Ex.RW1/B to RW1/F
attached herewith."
A perusal of the aforesaid contents show that reasonable
verification was done by respondent No.4 before appointing
respondent No.3 as his Driver and even a copy of his driving license
was also kept by him in his record. Once all due precautions were
taken by the owner while employing respondent No.3 as his Driver,
no liability could have been fastened upon him and it was the
appellant Insurance Company which was under an obligation to
indemnify the owner-insured. Further the fact alone that the Driving
Licence of the Driver was fake will not help the case of the Insurance
Company as they were required to prove that the said fact was in the
knowledge of respondent No.4/owner and despite the awareness, he
still allowed the Driver to ply the vehicle. In my considered opinion,
even the right of recovery granted to the appellant Insurance
Company is also against the law laid down by the Hon'ble Supreme
Court in case titled as Rishi Pal Singh Vs. New India Assurance
Company Limited, 2022 ACJ 1868, and relevant para Nos.10 & 11
of the same are reproduced hereunder for reference:-
"10. The owner of the vehicle is expected to verify the
driving skills and not run to the licensing authority to
verify the genuineness of the driving license before
appointing a driver. Therefore, once the owner is
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satisfied that the driver is competent to drive the vehicle,
it is not expected from the owner thereafter to verify the
genuineness of the driving license issued to the driver.
11. In view of the said finding, the order passed by
the High Court affirming the order of the Tribunal is set
aside. Hence, liberty given to the Insurance Company to
recover the amount from the appellant is also set aside."
Thus, in view of the aforesaid proposition of law, FAO
Nos.5261-2013 and 5255-2013 filed by the Insurance Company on
the aspect of challenging the fastening of liability upon it with
recovery rights are hereby dismissed. On the other hand, FAO
No.2227-2013 filed at the instance of owner of the offending vehicle
challenging the grant of recovery rights to the insurance Company is
hereby allowed.
B- QUANTUM OF COMPENSATION AMOUNT:
The quantum of compensation awarded to the claimants/
appellants is also under challenge and this aspect of the appeals is
required to be decided separately for each claimant.
I- FAO-3359-2013 and 5261-2013
By way of FAO-3359-2013 the parents of deceased Tarif
have claimed enhancement of compensation. While in FAO-5261-
2013 Insurance company have prayed for reducing the same and
therefore both these appeals qua the compensation amount are
being discussed together.
Learned counsel for the appellants/claimants contends
that the income of the deceased has been taken to be Rs.4000/- per
month while it was pleaded and proved by oral evidence that the
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deceased was working as a Driver and earning Rs.8000/- per month.
He further contends that at the relevant time, even the salary of an
unskilled labour was Rs.4500/- p.m. He also contends that only
Rs.5000/- has been awarded towards funeral expenses, which is
extremely on lower side and no compensation has been awarded
under other conventional heads. In addition, it has also been
submitted that the learned Tribunal while awarding compensation fell
into an error by applying deduction of ½ towards the self expenditure
of deceased Tarif having considered him as Bachelor.
On the other hand, learned counsel for Insurance
Company argues that in the absence of any documentary evidence,
the learned Tribunal went wrong while taking the monthly income of
the deceased to be Rs.4000 per month being on the higher side and
therefore, the compensation amount should be reduced accordingly.
Having heard learned counsel for the parties and perused
the paper-book as well as the records of the case, I find merit in the
contentions raised on behalf of appellants/claimants. It was the case
of the appellants/ claimants that the deceased was working as a
Driver; earning Rs.8000/- per month and his driving license was also
brought on record as Ex.P18. In my considered opinion, even if it is
assumed that the deceased was not earning Rs.8000/- per month;
since he was working as a Driver, at least his income per month
should have been taken equal to the salary of a skilled labour at the
relevant time. At the time of accident, the salary of skilled labour was
around Rs. 4600/- per month, therefore, the compensation should
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have been awarded according to this amount. As regards deduction
of ½ having been made by the learned Tribunal, the same appears to
be appropriate in the facts and circumstances of this case. I agree
with the contention of learned counsel for claimants/ appellants that
the deceased was married as a specific case has been set up in the
claim petitions that Tarif was travelling along with his wife Ayeesha.
This fact was even deposed by PW5-claimant while appearing as a
witness, to which even no suggestion was put to him either by the
Insurance Company or even by the owner/Driver to rebut the factum
of marriage of Tarif with Ayeesha. Considering that the deceased was
married, in view of the judgment of Hon'ble Supreme Court in Sarla
Verma and others Vs. Delhi Transport Corporation and another,
2009 (3) RCR (Civil) 77, deduction of 1/3rd would have been
appropriate. However, in the facts and circumstances of the present
case, considering specifically the fact that the wife of the deceased
also expired in the same accident, dependency of ½ is appropriate.
Further in view of the principles of law laid down by
Hon'ble Supreme Court in National Insurance Company Ltd. Vs.
Pranay Sethi and others, 2017(4) RCR (Civil) 1009 and in Smt.
Sarla Verma and others Vs. Delhi Transport Corporation and
another, 2009 (3) RCR (Civil) 77, the appellants/ claimants are
entitled to 40% future prospects and the multiplier of '18' is
appropriate as the deceased was 23 years of age at the time of
accident. In view of above referred judgments, the appellants/
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FAO-2227-2013 (O&M)& three others [9]
claimants are also entitled for compensation under other conventional
heads, such as consortium, loss of estate and funeral expenses.
In view of the discussions made hereinabove, the
claimants are entitled for following enhanced compensation, as
detailed in the table given hereunder:-
Sr.No. Particulars Amount (Rs.)
1. Annual Income of deceased (Rs.4600 x Rs.55,200/-
12)
2. Add 40% of Future prospects Rs.22,080/-
3. Total Income Rs.77,280/-
4. Deduction (1/2) Rs.38,640/-
5. Multiplier of 18 as per age of 23 years Rs.6,95,520/-
(Rs.38,640 x 18)
6. Funeral Expenses Rs.16,500/-
7. Loss of Consortium (filinial) i.e. Rs.44000 Rs.88,000/-
x2
8. Loss of Estate Rs.16,500/-
Total Compensation Rs.8,16,520/-
Amount Awarded by the Tribunal Rs.4,37,000/-
Enhanced Amount Rs.3,79,520/-
The grant of interest @ 6% per annum is not just in view
of the facts and circumstances of the present case; rather as per the
observations made by the Hon'ble Supreme Court in Smt. Supe Dei
and others Vs. National Insurance Company Limited and other,
(2009) (4) SCC 513 approved in a subsequent judgment titled as
Puttamma and others Vs. K.L. Narayana Reddy and another,
2014 (1) RCR (Civil) 443, the interest is enhanced to 9% per annum
on the amount of compensation awarded to the claimants from the
date of institution of claim petition till its realization. Needless to
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FAO-2227-2013 (O&M)& three others [10]
mention here that the amount of compensation already paid to the
claimants shall be deducted from the enhanced compensation.
In view of the above, FAO-3359-2013 and FAO-5261-
2013, on the aspect of compensation are disposed of in the
aforesaid terms.
II- FAO-5255-2013
By way of present appeal the appellant Insurance
Company has challenged the amount of compensation of Rs.50,000/-
awarded in favour of injured respondent No.1-Sohil Khan.
It has been contended on behalf of appellant Insurance
Company that respondent No.1 never got injured in the alleged
accident and as such he was not entitled to award of any
compensation.
On the other hand, it has been submitted on behalf of
respondent No.1-claimant that at the time of accident, he was also
travelling with his uncle Tarif and aunt-Ayeesha in Maruti Car bearing
Registration No. HR-52-A-9312 and thus suffered injuries in the
accident in question.
Having heard learned counsel for the parties and gone
through the records, I do not find any merit in the arguments/
contentions raised on behalf of counsel for the appellant-Insurance
Company. A conjoint reading of the documentary as well as oral
evidence available on record, in particular, statement of PW1-Jatinder
Kumar, Record Keeper, Guru Nanak Hospital, Palwal as well as PW-
5 Hassan @ Hassanna, it has been proved beyond shadow of doubt
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FAO-2227-2013 (O&M)& three others [11]
that respondent No.1-claimant was travelling in the aforesaid car and
sustained injuries in the accident and was even admitted to Hospital
for a period of almost 06 days. Considering the aforesaid facts and
circumstances, I do not find any ground to interfere in the meager
amount of compensation of Rs.50000/- as awarded in favour of
respondent No.1- claimant.
Accordingly, the present appeal filed at the instance of
appellant Insurance Company is hereby dismissed.
Pending miscellaneous application(s), if any, shall also
stand disposed of.
A photocopy of this order be placed on the files of other
connected cases.
September 27, 2022 ( HARKESH MANUJA )
sanjay JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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