Gauhati High Court
M/S Hdfc Ergo Gen Ins Co. Ltd vs Smti Kakali Dey And 2 Ors on 23 October, 2019
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GAHC010174752016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 311/2016
1:M/S HDFC ERGO GEN INS CO. LTD
HAVING ITS REGISTERED OFFICE AT 6TH FLOOR, LEELA BUSINESS PARK,
ANDHERI KURLA ROAD, ANDHERI EAST MUMBAI 400059 AND A BRANCH
OFFICE AT BHANGAGARH, GUWAHATI.
VERSUS
1:SMTI KAKALI DEY and 2 ORS
W/O LATE DIPAK KR. DEY, R/O VILL. KAGRABARI PT-I, P.O. RUPSHI, P.S.
GAURIPUR, DIST. DHUBRI, ASSAM.
2:HEERA SINGH
S/O VEER SINGH
HOUSE NO. 270
ARJUN NAGAR GGN TMP ADDITIONAL HOUSE NO. 270 A-1/E
KRISHNA MARKET
JHILMIL COLONY
LAXMI NAGAR
DELHI 110092
3:AMIT KUMAR
S/O JOY SINGH
VILL. PARNA
P.S. DHOLANA
DIST. GHAJIABAD
UTTAR PRADESH
Advocate for the Petitioner : MR.A TALUKDAR
Advocate for the Respondent :
Page No.# 2/11
Linked Case : MACApp. 60/2017
1:KAKALI DEY
W/O LATE DIPAK KR. DEY
PERMANENT ADDRESS RUPSHI
P.S. GAURIPUR
DIST. DHUBRI
ASSAM
PRESENT ADDRESS SANITPUR WARD NO. 1
P.O. and P.S. CHAPER
DIST. DHUBRI
ASSAM.
VERSUS
1:HDFC ERGO GENERAL INSURANCE COMPANY LIMITED and 2 ORS
VIDE POLICY NO. 2315200197188900000 VALID UPTO 26-01-2014
2:HEERA SING
S/O VEER SING
R/O HOUSE NO. 270 ARJUN NAGAR GGN TMP ADDITIONAL HOUSE NO. 270
A-I/E KRISHNA MARKET
JHIMLI COLONY
LAXMI NAGAR
DELHI-110092
3:AMIT KUMAR
S/O JOY SING
R/O VILL. PARPA
P.S. DHOLANA
DIST. GAJIRABAD U.P.
T/A VILL. NANDIGRAM
P.S. and DIST. GAJIABAD U.P.
Advocate for the Petitioner : MR B CHANDA
Advocate for the Respondent : MR.J JOHNR-1
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 23-10-2019 Heard Mr. K.K. Bhatta, learned counsel for the appellant (learned counsel for respondent No.1 in MAC App No 60/2017) and Mr. B. Chanda, learned counsel appearing for respondent No.1 (learned counsel for appellant in MAC App No 60/2017).
2. While the insurer i.e. M/S HDFC Ergo General Insurance Co. Ltd. has filed the MAC Appeal No. 311/2016 under section 173 of the MV Act, 1988, claimant i.e. Smti. Kakali Dey, respondent No.1 in MAC App No. 311/2016 has filed a cross objection in form of an appeal being MAC App No. 60/2017. The said appeal was for enhancement of the award.
3. The brief facts of the case is that on 30.09.2013 at about 1.30 PM, the deceased who was the owner of his bus was doing his duty as a conductor of his own bus and the said bus was proceeding from Bagribari side towards Gauripur with passengers, driver and handyman etc. The bus stopped at Alomganj Bazar at NH-31 for boarding of passengers. At that time, one truck/container bearing registration No. HR-55-M/4635 coming from the back side in a high and excessive speed and in rash and negligent manner, hit the bus of the deceased, namely, Dipak Kumar Dey and as a result the deceased fell down on the road and was crushed under the wheel of the offending truck which dragged him for about a distance of 1 (one) kilometer from the place of accident. The deceased had died on the spot. The police registered Gauripur P.S. Case No. 503/13 under section 323/325/427/304 IPC against the driver of the offending truck/container. Postmortem was conducted at Dhubri Civil Hospital. As per the claim petition, the deceased was about 40 years of age. The offending vehicle was stated to be duly insured by the appellant insurer having a policy valid on the date of accident. Accordingly, the respondent No.1/ claimant had filed a claim petition, claiming Rs.15.00 lakh as compensation. The records reveal that the case proceeded ex parte against the owner and driver of the offending vehicle. The appellant insurer took a plea that the driver of the offending truck did not possess a valid and effective driving licence. The following issues were framed for trial:-
Page No.# 4/11 "1. Whether the accident took place due to rash and negligent driving of the vehicle No.HR-55-M/4635 and the husband of the claimant expired due to the accident?
2. Whether the offending vehicle was duly insured with M/s. HDFC Ergo General Insurance Company Limited at the time of accident?
3. What shall be the just and proper compensation and by whom payable?
4. Whether the claimant is entitled to get the relief as prayed for?"
4. The claimant, namely, Kakali Dey examined herself as PW-1, driver of the bus, namely, Md. Sohid Sk as PW-2 and Mukul Ch. Roy, Assistant Sub Inspector of Police (informant) as PW-3. The following documents were exhibited by the claimant viz. (1) Accident Information Report (Ext.1), (2) FIR (Ext.2), (3) Ejahar (Ext.3) and (4) Postmortem Report (Ext.4). The insurer examined Sri Kalyan Sengupta, Assistant Manager (claim) as DW-
1.
5. On issues No.1 and 2, the learned Tribunal, by appreciating the evidence on record, decided both the issues in favour of the claimant by holding that the accident took place due to rash and negligent driving of the offending vehicle which was insured by the appellant in MAC App No. 311/2016. In respect of issues No.3 and 4, taking the monthly income of the deceased to be Rs.7,500/-, his annual income was calculated as Rs.90,000/-, 1/ after deducting 3 of Rs.90,000/- towards personal and living expenses, it became Rs.60,000/- and applying the multiplier of 15, the total comes to Rs.60,000/- X 15= Rs.9,00,000/-. 30% was added as future prospects i.e. Rs.2,70,000/-, a further amount of Rs.25,000/- was awarded for funeral expenses, Rs.1,00,000/- lakh was awarded towards the head of love and affection and Rs.1,00,000/- lakh was also awarded towards the head of consortium. The respondent No.1/claimant was found entitled to total compensation of Rs.13,95,000/-. The learned Tribunal had also held that the insurer had failed to discharge its burden to prove that the owner of the vehicle had knowledge of fake driving licence of the driver and still allowed the driver to drive the vehicle and, as such, it was held that the insurer was to bear the liability of paying compensation in terms of the insurance policy.
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6. Assailing the impugned order and award, the learned counsel for the appellant insurer has submitted that the driver of the offending vehicle was driving with a fake licence. In this regard, the learned counsel for the appellant insurer has referred to the evidence-on- affidavit filed by DW-1 and it is submitted that vide Ext.A, which is a report by the Registering and Licensing Authority, District Solan, Himachal Pradesh, it has been proved that the Licensing Authority had not issued driving licence No. A-41210 dated 04.01.2013 in the name of Amit Kumar, son of Jay Singh. It is further submitted that in terms of decision of the Supreme Court of India in the case of National Insurance Co. Ltd. vs Pranay Sethi & Ors., (2017) 16 SCC 380 it has been held that while determining the income, an addition of 25% should be made where the deceased was between the age of 40 to 50 years. However, in this case, the learned Tribunal had accessed future prospects at the rate of 30%. It is also stated that in the said case, the Supreme Court of India has laid down that after conventional heads, namely, loss of estate, loss of consortium and funeral expenses reasonable figure should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/ respectively. Accordingly, it is submitted that the compensation awarded in favour of the respondent No.1/claimant is liable to be scaled down and the appellant insurer be granted liberty to recover the compensation amount from the owner of the offending vehicle.
7. Per contra, learned counsel for the respondent No.1/cross objector (i.e. the appellant in MAC Appeal No. 60/2017) has submitted that the claimant has filed an appeal for enhancement of award. He has referred to the claim petition as well as the evidence of PW-1 to project that that in the claim petition, it has been pleaded that the deceased was 40 years of age and that as per Ext.4 i.e. Postmortem Report, the age of the deceased is reflected as 40 years. Accordingly, by referring to the second schedule of the Motor Vehicles Act, 1988, it is submitted that if the age of the victim is above 35 years but not exceeding 40 years, the applicable multiplier would be 16%, as such, the learned Tribunal had committed an error in applying the multiplier of 15% for computing the award. It is also submitted that in the present case in hand, compensation was computed by following the ratio laid down in the case of Rajesh vs. Rajbir Singh, (2013) 9 SCC 54 and, as such, the award passed by the learned Tribunal was not liable to be interfered that with, rather, the award was required to be enhanced. It is further submitted that on the issue of fake licence, it was the burden of Page No.# 6/11 the insurer to prove that the driving licence was fake. In this connection, the learned counsel for the appellant in MAC Appeal No.60/2017 has relied on the following cases Pepsu Road Transport Corporation vs National Insurance Company, (2013) 10 SCC 217 and Ahallya Bala Das & Anr. vs Subrata Roy & Anr., 2012 (4) GLT 1049.
8. Having heard the learned counsel for both sides, perused the records received from the learned Tribunal. It is seen that in the claimant's case before the learned Tribunal, the appellant/insurer had filed written statement on 30.10.2014 and in paragraph 19 thereof, the plea had been taken that at the time of accident, the permit of the vehicle was not valid and the driving licence of the driver was also not valid and, as such, the insurer was not liable to pay any compensation to the claimant.
9. Perused the Ext.A exhibited by the DW-1. The said exhibit is a letter by one Barinder Kr. Sharma to the Licensing Authority, District Solan, Himachal Pradesh. By the said letter, the licensing authority was requested to provide verification of the driving licence issued in the name of Amit Kurmar and the necessary particulars were provided therein. In the body of the said letter, under the seal of Registering and Licensing Authority, District Solan, (H.P.) bearing an illegible signature and date, there is a note to the effect that the original is returned to Barinder Sharma and that the original driving licence had not been issued in the name of Amit Kumar by their office. Upon perusal of the evidence-on-affidavit of DW-1 and his cross-examination, it is seen that the DW-1 is an Assistant Manager (claim) of the appellant insurer and that he had stated in his cross-examination that their insurance company investigates the claims in respect of motor accidents through their investigators. He also stated that he never went to the DTO of Solan District, Himachal Pradesh and he was not acquainted or familier with signature of on Ext.A (1) and the same was not put in his presence. He has also stated that he had not seen the concerned Insurance Investigator as a witness in the present case. Therefore, firstly, the author of the letter had not been examined and moreover, the author of the note made by the Registering and Licensing Authority, District Solan, Himachal Pradesh had also not been examined. The appellant insurer did not take steps to prove the Licence Register in original to show that the concerned driving licence was not issued by the Registering and Licensing Authority of Solan District. In order to press the point that if the driving licence was fake, the same would amount to absorb an insurer for Page No.# 7/11 each of the policy terms, the learned counsel for the appellant insurer has relied in the case of Pappu & Ors. vs Vinod Kumar Lamba & Anr., (2018) AIOL 3022:2018 Legal Eagle 22. On the same issue, the learned counsel for respondent No.1 places reliance in the case of Pepsu Road Transport Corporation vs National Insurance Company, (2013) 10 SCC 217 and Ahallya Bala Das & Anr. vs Subrata Roy & Anr., 2012 (4) GLT 1049.
10. It would be appropriate to quote herein below paragraph 11 of the case of Papu & Ors (supra) decided by a bench of Coram of 3 (three) judges:-
"11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL- 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would Page No.# 8/11 onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle."
11. In the present case in hand, it is seen that the owner of the offending vehicle had not entered appearance before the learned Tribunal and did not take any defence. Accordingly, as per the ratio laid down in the case of Pappu & Ors. (supra), only when the owner of the offending vehicle takes a defence and produces evidence to show that the vehicle was driven by a driver having valid driving licence, only then the owner would shift the burden on the Insurance Company to produce evidence and to produce other evidences to substantiate its defence. It has been laid down in the said case that the insurance company can be fastened with the liability on the basis of the valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle to the effect that vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Therefore, as per the ratio of the said case, the insurance company would become liable only after such foundation of facts are pleaded and proved by the owner of the offending vehicle.
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12. In the present case in hand, the owner did not appear and contested the claim. The appellant insurer, in its own volition, gave evidence to show that the licence was not issued by the Registering and Licensing Authority, District Solan to the concerned driver. However, as indicated above, neither the author of the letter nor the author of the note under the seal and signature of Registering and Licensing Authority, District Solan has been examined. Therefore, in the opinion of the Court, once evidence has been tendered by the appellant insurer, it is not a question where the burden is shifted to the insurer or not, but document relied upon was not proved in accordance with law. The contents of Ext.A have no evidential value because the author of the note as well as the letter have not been examined. Therefore, the plea taken by the appellant insurer is not found to be sustainable. Moreover, the note dated 05.12.2014, by the Registering and Licensing Authority reveals that no driving licence was issued in the name of Amit Kumar bearing driving licence No.A-41210. Thus, the note of the Registering and Licensing Authority is not in respect of the driving licence No.A-11210 and it appears on a plain reading that it is for driving licence No.A-41210. This is very vital because in the undated letter by Sri Barinder Kumar Sharma, request was made for verification report for driving licence No.A-11210 dated 08.03.2013, and this number is written twice, i.e. in the subject of the letter and also in the body of the letter. Therefore, driving licence No. referred in the note of the Registering and Licensing Authority is for licence No.A-41210 dated 08.03.2013, as such, outside the scope of query by the investigator of the appellant insurer.
13. As regard computation of compensation, it is seen that the learned Tribunal have relied on the case of Rajesh vs Rajbir Singh (supra) . However, by taking into account, the ratio laid down in the said case, a larger Bench of Supreme Court of India had decided the case of Pranay Sethi (supra). As it is the admitted case of the claimant that the deceased was 40 years of age at the time of his death, it would naturally mean that the deceased had crossed the age of 40 years and, as such, the applicable multiplier would be 15 and on that count, the computation of compensation by the learned Tribunal cannot be faulted with and accordingly, it terms of ratio in the case of Pranay Sethi (supra), the addition towards future prospects is only 25% of the income, but the applicable multiplier would be 15 and not 16 as claimed by the learned counsel for the appellant/claimant.
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14. In the said context, the learned counsel for respondent No1/claimant, has submitted that the deceased was not only the owner of the bus but, he was also employed as a conductor and therefore, the learned Tribunal had erred in law by assuming the income of the deceased to Rs.7,500/- per month inspite of Rs.15,000/- per month as compensation in the claim petition. In that context, this Court is of the considered opinion that it is not possible for a person to be the owner of the bus and to pay himself of salary of a conductor even if he actually working as a conductor of his own vehicle. Accordingly, this Court does not find any infirmity in the decision of the learned Tribunal to presume the income of the deceased to be Rs.7,500/- per month. However, in terms of future prospects of 25% of the income, the computation of compensation is liable to be scaled down. Moreover, as per the ratio laid down in the case of Pranay Sethi (supra), compensation at conventional heads, namely, loss of estate, loss of consortium and funeral expenses is liable to be scaled down to Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Accordingly, the cross objection i.e. MAC App No. 60/2017 does not succeed and the appeal filed by the appellant insurer is partly allowed.
15. The income of the deceased taken as Rs.7,500/- per month X 12 months is Rs.90,000/- and after deducting 1/ rd income towards personal and living expenses 3 (Rs.90,000/- - Rs.30,000/-), the loss of dependency would be Rs.60,000/-.
16. The applicable multiplier as in the ratio laid down in the case of Pranay Sethi (supra) would be 15%.
17. The compensation is computed as under:-
A. The loss of dependency is Rs.60,000/- X 15 = Rs.9,00,000/-
B. Addition towards future prospects 25% = Rs.2,25,000/-
C. Compensation on conventional heads
I. Loss of estate = Rs.15,000.00/-
II. Loss of consortium= Rs.40,000.00/-
III. Funeral expenses = Rs.15,000.00/-
= Rs.70,000/-
Total compensation is = Rs.11,95,000/-
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15. It is provided that except for the amount of Rs.2,25,000/- towards future prospects, the interest is granted thereon from the date of the judgment and award i.e. 09.08.2016. However, in respect of the remaining compensation, the amount of Rs.9,70,000/-, the said amount shall carry @9% from the date of filing of the claim petition i.e. 18.02.2014.
16. Accordingly, both the appeal stands disposed of.
17. The records of the learned Tribunal be returned.
18. Upon satisfaction of the award, the Registry shall return the statutory deposit to the appellant-insurer in MAC Appeal No. 311/2016.
JUDGE Comparing Assistant