Full Text
HIGH COURT OF DELHI
JUDGMENT
10221/2016 ORIENTAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate.
Through: Mr. Pankaj Gupta, Advocate.
1. The appellant/Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988[1], assailing the impugned judgement-cum-award dated 28.09.2015 passed by the learned Presiding Office, Motor Accident Claims Tribunal, Shahdara, Karkardooma Court, Delhi[2], whereby the claim petition[3] filed by the respondents No. 1 to 6/claimants under Section 166 read with Section 140 of the M.V. Act was allowed and respondents No. 1 to 6/claimants were awarded a sum of Rs.11,47,631/- as compensation.
FACTUAL BACKGROUND
2. Shorn off unnecessary details, suffice it to state that the respondents No. 1 to 6/claimants are the wife, children, mother and 1 M. V. Act Tribunal MAC No. 93/2013 sister of the deceased, Sallu, who was 30 years old at the time of the accident and was engaged in the business of scrap dealing. On 10.04.2012, at approximately around 08.20 p.m., the deceased was riding on a motorcycle bearing registration No. UP-17C-8817, along with one pillion rider, Sarfaraz. When they reached in front of the residence of the District Magistrate, Baghpat, an offending truck bearing registration No. HR-38J-0335, driven recklessly and negligently driven by Jugendra Singh/respondent No. 7, came at a high speed and collided with the motorcycle. As a resultant, the deceased and Sarfaraz fell down and sustained grave injuries, to which they ultimately succumbed on the spot of the accident. Respondents No. 1 to 6/claimants subsequently filed a claim petition seeking compensation of Rs. 30 lakhs under various heads. This resulted in the registration of FIR[4] No. 150/2012 under Sections 279, 304-A and 427 of the IPC[5] with Police Station, Baghpat, Uttar Pradesh. The offending truck was being driven by respondent No. 3, owned by respondent NO. 4 and admittedly insured by the appellant/Insurance Company.
3. Based on the pleadings of the parties, the learned Tribunal on 25.11.2013, framed the following issues were framed: - “Issue No. 1 Whether Sh. Sallu suffered fatal injuries in the accident occurred on 10.04.2012 due to rash and negligent driving of vehicle no. HR- 38J-0335 (Truck) being driven by respondent no. 1? Issue No. 2 Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? Issue No. 3 Relief.” First Information Report Indian Penal Code, 1860
4. During the course of proceedings/trial before the learned Tribunal, the wife of the deceased/respondent No. 1 was examined as PW-1 and the eye-witness/Usman was examined as PW-3 and it would be apposite to refer to the observations made by the learned Tribunal while deciding the Issue No. 1, which go as under: -
11. This issue is common in both the petitions and taken up together for disposal. PW-1 is wife of deceased Sallu. PW-2 Tasleem Parveen is mother of deceased Sarfaraz. Both of them have their affidavits and stated that deceased Sallu and Sarfaraz have expired in an accident. Their postmortem was conducted at General Hospital, Baghpat.
12. PW-3 Usman is an eye witness. He has filed his affidavit Ex.PW-3/A wherein he has categorically stated that on 10.04.2012 at 8.20 p.m Sallu and Sarfaraz were going to Goripur Mor from Mohalla Qureshian, Baghpat on a motorcycle bearing no. UP-17 - 8817 and reached in front of the residence of District Magistrate, Baghpat. A truck bearing registration no. HR-38J-0335 being driven by driver came in a high speed and in a rash and negligent manner and hit the motorcycle as a result both of them fell down and sustained injuries and succumbed to the injuries. FIR no: 150/12, Crime No.-301/12 U/s 279/304A/427 IPG PS, Baghpat was registered against respondent no. 1. The accident has taken place due to rash and negligent driving of respondent no. 1. Ex.PW-3/1 is his voter I card.
13. During cross-examination by respondent no. l and 2, he stated that he was riding his motorcycle. The motorcycle of deceased was at the distance of 30-35 yards from his motorcycle The offending truck was coming from the opposite side. The suggestion is denied that he was not present at the time of accident or did not witness the accident or deposing falsely as one of deceased is his nephew.
14. During cross-examination by insurance company, the suggestion is denied that he did not witness the accident.
15. R1W[1] Juqendra Singh is respondent no. 1. He stated that he is a professional driver having valid driving licence Ex.RW1/A bearing no. 50890/PK/PROF issued by DTO, Phek, Nagaland which is valid from 23.03.211 till 15.11.2016. The copy of licence was provided to the police. The vehicle is insured with the insurance company. He is not responsible for the accident. During cross-examination by the petitioner, it is admitted that FIR. NO. 150/12 has been registered against him in which charge sheet has been filed. It is correct that he himself went to police station after the accident by leaving the truck at the spot.
16. I have heard Id. Counsel for the parties and perused the record. The testimony of PW-3 shows that on 10.04.2012 at 8.20 p.m he was going on his motorcycle. Deceased were also going on their motorcycle bearing no. UP-17C-8817. They reached in front of the residence of District Magistrate, Baghpat. Nothing has brought on record to controvert this part of testimony. His testimony further shows that driver was driving the truck bearing registration no. HR-38J-0335. Respondent no 1 has appeared as R1W[1] and admitted that he was driving the truck in question. The testimony of PW-3 further shows that respondent no. 1 was driving the truck in a rash and negligent manner and hit against the motorcycle of the deceased as a result both of them fell down and sustained injuries and succumbed to the injuries. R1W[1] is the best person to controvert this fact but he has nowhere deposed in his testimony that he was neither rash nor negligent or his truck did not hit the motorcycle. R1W[1] is silent on this material aspect of the case. PW-3 has not been cross-examined on these vital aspects of the case. PW-3 will not falsely implicate the respondents no. 1 and 2 as there is nothing on the record that he is having ill will against them. It is admitted fact that FIR No. 150/12 u/s 279/304AIPC PS, Baghpat has been registered against the respondent no.1. The petitioners have placed reliance on the charge sheet. Postmortem report is on record which shows that deceased have expired in an accident. In National insurance Co. Ltd. Vs Pushpa Rana and ors., 2009 ACJ 287, was held by their lordship that certified copies of criminal case such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach to the conclusion that driver was negligent. The testimony of PW-1 coupled with the FIR, site plan and mechanical inspection reports clearly shows that the accident has taken place due to. the rash and negligent driving of respondent no. 1. The issue no. 1 is decided against the respondents in both the petitions.”
5. As regards decision on Issue No. 2 is concerned, the learned Tribunal took into account the voter I card (Ex. PW-1/2) of the deceased Sallu, which indicated his age as 30 years as on the date of the accident and applied the multiplier of „17‟. It was submitted by the respondent No. 1 before the learned Tribunal that the deceased was working as a scrap dealer and was earning Rs. 15,000/- per month, however, since no documentary proof of the same was placed on the record, hence the minimum wages for an unskilled worker in Uttar Pradesh as on the date of the accident was applied by the learned Tribunal. Since, the deceased had 5 dependants, the loss of dependency came to be 1/4th of the total income of the deceased. The income of the deceased, Sallu was taken to be Rs. 4,527/- and the annual income was calculated at Rs. 54,324/- (Rs. 4,527 x 12). The actual income after the loss of dependency comes to around Rs. 40,743/- (Rs. 54,324-Rs. 13,581). It would be apposite to reproduce the finding of the learned Tribunal in regard to the compensation awarded to the claimants: -
absence of the evidence to the contrary, the testimony of PW-1 is relied upon that she is also resident of Delhi. The petition is maintainable in the courts at Delhi.
20. The determination of quantum must be liberal and not niggardly since law values life and limb in a free country in generous scale. Reliance is placed upon Concord of India Ins. Co. vs Nirmala Devi. 1980 ACJ 55 (SC).
21. The deceased was a Scrap dealer who was allegedly earning Rs. 15,000/- per month. No income proof is placed on record. In the absence of any income proof, the deceased can be put into the category of unskilled worker. There is no evidence that deceased was a Scrap dealer at Delhi. The address of deceased shown in election I card Ex.PW-1/2 is that of Baghpath meaning thereby that he might have been working at Baghpat. The minimum wages for unskilled worker in Uttar Pradesh on 10.04.2012 was Rs.4527/- per month so his monthly income is taken as Rs. 4527/-.
22. The deceased has left behind his wife, three minor children, mother and one minor sister. The sister is not dependent upon the deceased brother so she is taken out of the category of dependents. The deceased has left behind five dependents. The loss of dependency comes to 1/4th of the total income of the deceased. The income of the deceased per month was Rs. 4527/- so the annual income comes to Rs. 54324/- (Rs. 4527 x 12). The actual income after loss of dependency comes to Rs. 40743/- (54324-13581).
23. On 10.04.2012, the accident has taken place. Ex.PW-1/2 is the voter I card of deceased Sallu showing his age as 25 years on 01.01.2007. His age at the time of death was 30 years. Keeping in view the law laid down in Sarla Verma vs DTC. 2009 ACJ 1298 the multiplier of 17 is applicable. The total compensation on account of loss of dependency comes to Rs. 6,92,631/-.(Rs. 40743 x 17).
24. The deceased was 30 years of age at the time of his death. He has been put in the category of unskilled worker. There is no evidence of good prospects of future income. The petitioners are not entitled for loss of income due to good future prospects.
25. The petitioners are also entitled for non-pecuniary claim. The petitioner no. 1 is wife of deceased. The petitioner no. 1 is entitled for loss of consortium. Consortium connotes only the husband and wife and the companionship, fellowship or togetherness of husband and wife. Reliance is placed upon "Ravinder Kaur vs Harminder Singh Chaurdharv" AIR 1984 Delhi 66. The petitioners are entitled for the loss of consortium for a sum of Rs. 50,000/-. The deceased has left behind his wife, three minor children and mother. The petitioner no. 1 has lost her husband. The loss of husband definitely would have caused physical loss as well as trauma to petitioner no. 1. The minor children are deprived of the love, care and guidance of their father. The mother has lost her son. The mother needs the services of son through out her life. The sister has lost her brother. All of them are deprived of the love and affection of the deceased. In view of these facts, petitioners are entitled for claim for the loss of love and affection. The petitioners are entitled for a sum of Rs. 50,000/- each towards loss of love and affection.
26. The petitioners are also entitled for loss of estate of Rs. 40,000/-, Rs. 40,000/- towards of expectancy of life of the deceased, Rs. 25,000/- for funeral expenses.
27. The petitioners are entitled for the following compensation under the following heads: -
1. Loss of dependency/contribution to the family Rs. 6,92,631/-
2. Loss of consortium Rs. 50,000/-
3. Loss of love and affection Rs. 3,00,000/- (Rs. 50,000/- for each petitioner)
4. Loss of estate Rs. 40,000/-
5. Loss of expectancy of life Rs. 40,000/-
6. Funeral and transportation expenses Rs. 25,000/- TOTAL Rs. 11,47,631/-
6. Lastly, regarding the apportionment of liability, the learned Tribunal observed that the driving license of respondent No. 7, which was issued by the Licensing Authority, Muzaffar Nagar, was valid from 29.12.2008 to 28.12.2011 for the HMV category. The respondent No. 7 subsequently renewed this driving license from 05.11.2012 to 04.11.2015. Additionally, on 16.11.2010, respondent No. 7 obtained a second driving license from the DTO, Phek, Nagaland, valid from 23.03.2011 to 15.11.2016. The respondent No. 7 received a notice under Order 12 Rule 8 of the CPC from the appellant/Insurance Company to produce all the relevant documents, but only produced the driving license issued by the DTO, Phek, Nagaland. The appellant/Insurance Company argued before the learned Tribunal that respondent No. 7 was in possession of two licenses for the same category of vehicles, which is prohibited under the M.V. Act. The learned Tribunal noted that, according to Section 6(1) of the M.V. Act, holding two driving licenses is prohibited. Furthermore, the second proviso to Section 9 of the M.V. Act prohibits a Licensing Authority from issuing a new driving license if the applicant is already holding a driving license unless a good and sufficient reason is provided for the inability to obtain a duplicate copy of the previous driving license. Section 11 of the M.V. Act permits the upgradation of a driving license from one category to another, with the format prescribed under Rule 17 of the Central Motor Vehicle Rules, 1989.
7. The respondent No. 7 was unable to specify under which provision he could two driving licenses simultaneously. The learned Tribunal observed that the earlier driving license, which was issued by the Licensing Authority, Muzzafar Nagar was concealed from the second Licensing Authority for reasons best known to the respondent No. 7, rendering the second driving license of no assistance to him. The driving license issued by Licensing Authority, Muzzafar Nagar was not renewed from 29.12.2011 to 04.11.2012, and the accident in question occurred on 10.04.2012. This indicates that the respondent No. 3 did not possess a valid driving license on the date of the accident. The learned Tribunal noted that the offending vehicle was insured with appellant/insurance company and in accordance with the precedents established in New India Assurance Co. v. Kamla[6] and National India Insurance Co. Ltd. v. Swaran Singh[7],the liability shall fall upon the appellant/insurance company pursuant to Sections 149(4) and 149(5) of the M.V. Act. Consequently, the appellant/insurance company was required to pay the compensation to respondents No. 1 to 6/claimants and the appellant/insurance company is entitled to recover the same from the driver and owner i.e., respondents no. 7 and 8 respectively.
GROUNDS OF THE APPEAL:
8. The learned counsel for the appellant/Insurance Company has assailed the impugned judgement-cum-award on the grounds that the learned Tribunal has erred in awarding interest @ 12% per annum, which is contrary to the decision laid down by the Supreme Court in Amrit Bhanu Shali v. National Insurance Co. Ltd.8. Furthermore, it is asserted that the mere testimonies of PW[1], PW[2] and PW[3] did not sufficiently prove that the accident was caused solely due to the negligence of respondent No.3. It is submitted that respondent No.7 appeared as R1W[1] and categorically denied the accident. The appellant/insurance company submits that the accident was a result of a contributory negligence.
9. Reliance was placed on a decision by the Supreme Court in Minu B Mehta v. Balakrishna Ramachandra Nayan[9], wherein it was held that it is incumbent upon the claimant to prove negligence on the 2001 ACJ 843 SC 2004 ACJ 1 SC part of the driver of the offending vehicle to hold the owner of the vehicle vicariously liable for the act of a driver, and that proof of negligence remains the lynchpin to recover compensation.
10. For the aspect when two vehicles are involved in an accident, there exists a presumption of 50 % contributory negligence for each vehicle. The learned counsel for the appellant/insurance company has relied on Raj Rani & Ors. v. Oriental Insurance Co. Ltd.10, Mrs. Updesh Kaur & Ors. V. Jagram & Ors.11, Renukadevi H. v. Bangalore Metropolitan Transport Corporation & Anr.12, Managing Director v. Amudha Sivapraksam13 and National Insurance Co. Ltd. v. Santosh Khandelwal & Ors.14
11. It is contended that the compensation awarded is on the higher scale and that the learned Tribunal has erred in in awarding Rs.25,000/- for funeral expenses. It is submitted that the said amount is highly excessive, without any basis and contrary to the laws laid down.
ANALYSIS & DECISION
12. Having given my thoughtful consideration to the submissions advanced by learned counsels for the rival parties at the Bar and on perusal of the record, at the outset, this court finds that the present appeal.
13. It is pertinent to mention that learned Tribunal decided MAC No. 93/2013 and also the MAC No. 94/2013 titled as „Khushanuma & 2009 ACJ 2003 III (2004) ACC 106 2008 ACJ 1188 2012 ACJ 393 Ors. v. Jugendra Singh & Ors.‟ and „Taslim Parvin & Anr. v. Jugendra Singh & Ors.‟ respectively, vide common Award dated 28.09.2015, against which the appellant/insurance company has preferred MAC. APP No. 951/2015, which is also being disposed of by a separate judgment and the learned Tribunal recorded the following findings on issue No.1: “I have heard Id. Counsel for the parties and perused the record. The testimony of PW-3 shows that on 10.04.2012 at 8.20 p.m he was going on his motorcycle. Deceased were also going on their motorcycle bearing no. UP-17C-8817. They reached in front of the residence of District Magistrate, Baghpat. Nothing has brought on record to controvert this part of testimony. His testimony further shows that driver v\/as driving the truck bearing registration no. HR-38J-0335. Respondent no 1 has appeared as RlWl and admitted that he was driving the truck in qestion. The testimony of PW-3 further shows that respondent no. 1 was driving the truck in a rash and negligent manner and hit against the motorcycle of the deceased as a result both of them fell down and sustained injuries and succumbed to the injuries. RlWl is the best person to controvert this fact but he has nowhere deposed in his testimony that he was neither rash nor negligent or his truck did not hit the motorcycle. RlWl is silent on this material aspect of the case. PW-3 has not been cross-examined on these vital aspects of the case. PW-3 will not falsely implicate the respondents no. 1 and 2 as there is nothing on the record that he is having ill will against them. It is admitted fact that FIR No.150/12 u/s 279/304AIPC PS, Baghpat has been registered against the respondent no.l. The petitioners have placed reliance on the charge sheet. Postmortem report is on record which shows that deceased have expired in an accident. In National insurance Co. Ltd. Vs Pushoa Rana and ors.. 2009 ACJ 287, it was held by their lordship that certified copies of criminal case such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach to the conclusion that driver was negligent. The testimony of PW-1 coupled with the FIR, site plan and mechanical inspection reports clearly shows that the accident has taken place due to. the rash and negligent driving of respondent no. 1. The issue no. 1 is decided against the respondents in both the petitions. CA No. 19803/2012
14. The aforesaid findings per se are sound and based on the evidence presented by the parties. However, regarding the quantum of compensation, the only necessary correction is that the learned Tribunal has awarded Rs. 3,00,000/- to the respondents No.1 to 6/claimants towards loss of love and affection, Rs. 25,000/- towards funeral expenses, Rs. 40,000/- loss of estate and Rs. 40,000/- towards loss of expectancy of life. The compensation awarded as above goes contrary to the decision by the Supreme Court in the case of National Insurance Company v. Pranay Sethi15. The compensation is therefore revised to Rs. 40,000/- each to respondents No.1 to 6/ claimants towards loss of consortium and Rs. 15,000/- each towards funeral expenses and loss of estate. Accordingly, the total compensation is worked out as under:
1. Loss of financial dependency Rs. 6,92,631/-
2. Loss of consortium [Rs. 40,000 x 6] Rs. 2,40,000/-
3. Funeral expenses Rs. 15,000/-
4. Loss of estate Rs. 15,000/- TOTAL Rs. 9,62,631/-
15. The present appeal is accordingly, disposed of with direction that respondents No.1 to 6 shall be entitled to the total compensation of Rs. 9,62,631/-, which shall be payable to them with interest @ 7.5% from the date of filing of the claim petition i.e. 02.07.2013 till realization.
16. The statutory amount of Rs. 25,000/- deposited by the appellant/insurance company be released to them with accrued interest.
17. The pending applications also stand disposed of.
DHARMESH SHARMA, J. AUGUST 13, 2024 Sadiq