Allahabad High Court
U.P.Rajya Sadak Parivahan Nigam ... vs Bharat Prasad D on 28 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- FIRST APPEAL FROM ORDER No. - 922 of 2009
Appellant :- U.P.Rajya Sadak Parivahan Nigam Lucknow Through Its R.M.
Respondent :- Bharat Prasad D
Counsel for Appellant :- Akhter Abbas
Counsel for Respondent :- Atish Kumar Singh,G.S.Pandey,Rajesh Trivedi,Shakeel Ahmad Ansari
Alongwith
Case :- CROSS OBJECTION No. - 22 of 2009
Objector :- Bharat Prasad 922 (Fafo)2009
Respondent :- U.P.Rajya Sadak Parivahan Nigam Thorugh Its R.M. And Ors.
Counsel for Objector :- Shakeel Ahmad Ansari,Rajesh Trivedi
Counsel for Respondent :- Inderjeet Singh Chaddha,Ips.Chaddha
*****
Hon'ble Jaspreet Singh,J.
Heard Shri Akhter Abbas, learned counsel for the appellant-U.P.S.R.T.C., Shri Rajesh Trivedi, learned counsel for the claimant-respondent and Shri I.P.S. Chhada, learned counsel for the respondent No.4. None has put in appearance on behalf of the owner and the driver of the vehicle. Accordingly, the appeal has been heard in their absence.
The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 being aggrieved against the award dated 29.04.2009 passed by the MACT/Special Judge, E.C. Act, Lucknow in Claim Petition No.450/2004, wherein the Tribunal has awarded a sum of Rs.84,500/- along with 6% interest per annum with effect from 29.04.2008 till the date of its actual payment. Against the aforesaid award, the appellant-U.P.S.R.T.C. (hereinafter referred to as "the Corporation") has assailed the award primarily on the ground that the award has been passed relying upon a decision of the Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari, reported in (1997) 7 SCC 481, which has been overruled by the Hon'ble Apex Court in the case of U.P.S.R.T.C. vs. Kulsum & Ors., reported in 2011 (29) LCD 1648 and it has been submitted on behalf of the Corporation that once the vehicle in question is found to be duly insured, the liability would vest with the Insurance Company and not of the Corporation.
Significantly, against the same award, the claimants-respondents No.1 and 2 have also preferred their cross-objections which is registered as Cross Objection No.22/2009 wherein the claimants/cross-objectors have sought enhancement of the award on the ground that their 12 years old minor girl died in an accident. The Tribunal has awarded a meager sum by taking notional income of the minor child at Rs.15,000/- annually.
It has been submitted that the Hon'ble Apex Court has considered this aspect of the matter and has held that in cases where the minor child expires, it is the multiplier method which should be adopted and in such cases the notional income of Rs.30,000/- per annum be taken. It has been submitted that even the non-pecuniary damages have been inappropriately awarded, consequently, the award is on the lower side and requires enhancement.
Shri I.P.S. Chhada, learned counsel appearing for the Insurance Company has primarily refuted the submissions of the learned counsel for the Corporation on two grounds; (i) it has been submitted that the proposition laid down in the case of Kulsum (supra) that in case if the vehicle is duly insured and there is no violation of the policy condition then so far as the liability is concerned, it is joint and several qua the claimants, resting on the owner, insurer and the Corporation. However, it has been submitted that in the present case at hand, there is a clear evidence to indicate that the driver of the offending vehicle did not possess a valid and effective licence and yet the Tribunal on the basis of conjectures and presumption has returned a finding relating to Issue No.5 which cannot be said to be sustainable in the eyes of law and for the said reason if there is any liability, the same has to be fastened between the owner and the Corporation inasmuch as there is a contract between the two.
(ii) It has also been submitted by Shri Chhada that in any case, the liability to satisfy the award is a matter between the owner and the Corporation and, therefore, under any circumstances, the liability cannot be shifted on the Insurance Company and thus in the present case Kulsum (supra) has no applicability.
Shri Abbas, learned counsel for the appellant refuting and replying to the submissions of Shri Chhada as well as Shri Trivedi, learned counsel appearing for the claimants/cross-objectors has submitted that as per the agreement entered between the owner and the Corporation there are specific stipulations whereunder the entire liability rests on the owner and even assuming if the Tribunal has given a finding which is based on presumption regarding the licence yet the liability is to be fastened on the owner and to that extent the appeal of the Corporation must be allowed. However, Shri Abbas could not seriously dispute that the amount awarded by the Tribunal is on the lower side and also could not dispute the fact that the Hon'ble Apex Court in the case of Kishan Gopal & Anr. vs. Lala & Ors., reported in (2014) 1 SCC 244 lays a binding precedent.
The Court has considered the submissions of the learned counsel for the parties and also perused the record.
In order to appreciate the respective contentions, certain brief facts giving rise to the above appeal and the cross-objections are being considered first.
A claim petition bearing No.450/2004 was preferred by Shri Bharat Prasad and Smt. Sone Wati, parents of the deceased Kumari Babli @ Pooja. It was pleaded that on 19.10.2004 at around 05:30 in the evening, the minor girl Kumari Babli @ Pooja had gone to her maternal grand-parent's house and while she was returning, a bus bearing No.UP-32-AN-5702, which was being driven by Shri Ram Singh, rashly and negligently, hit the minor girl as a consequence she expired at the spot. She was stated to be 12 years old and a student of Class-VII and it was also stated that she had a bright future considering her academic record.
The owner of the bus namely Kailash Chandra filed his written statement and submitted that the bus in question was duly insured with the New India Insurance Company Ltd., and its driver namely Ram Singh son of Pyare Lal Yadav had an effective and valid licence. He also pleaded that the bus in question was attached with the Corporation in terms of an agreement duly entered between the owner and the Corporation and as such in view thereof the liability would be that of the Insurance Company. The owner of the vehicle also took a plea that the accident in question did not occur with the bus in question and that the necessary and proper parties have not been impleaded and for the said reason, the claim petition was liable to be rejected.
The Insurance Company also filed its separate written statement and had taken a plea that the bus was being driven against the policy condition. The bus driver despite the service failed to contest and appear before the Court while the Corporation filed its written statement denying the contentions of the claim petition and stated that the bus in question belonged to the respondent No.3 herein and as such any liability whatsoever would be of the owner in light of the agreement entered between the Corporation and the owner of the bus.
Upon pleadings of the parties, the Tribunal framed eight issues and after leading evidence, the Tribunal considered the Issues No.1 and 4 together and concluded that the accident in question was an outcome of rash and negligent driving of the bus driver of UP-32-AN-5730 which led to the death of Kumari Babli @ Pooja. While dealing with Issue No.2, the Tribunal found that the bus in question was insured with the New India Insurance Company Ltd., from 30.07.2004 to 29.04.2005. Thus, on the date of the accident i.e. 19.10.2004, the vehicle was duly insured. Issue No.5 has been decided on the basis of presumption and it has been held that though the licence of the charge-sheeted driver has not been brought on record, yet it would be deemed that he had a valid and effective licence since he was driving the bus, which was attached with the Corporation. Thereafter, considering the effect of the decision of the Hon'ble Apex Court in the case of R.S.R.T.C. vs. Kailash Nath Kothari, the Tribunal held that the liability would vest with the Corporation and upon assessing the compensation, a sum of Rs.84,500/- has been granted along with 6% interest from 29.04.2008 till the date of its actual payment by means of the award dated 29.04.2008, which is the subject matter of the instant appeal and the connected cross-objections.
Upon hearing the learned counsel for the parties and from perusal of the record, the question involved in the aforesaid appeal and the cross-objections is twofold.
(i) Whether the liability to satisfy the award would vest with the Corporation or the Insurance Company in the instant case ?
(ii) Whether the quantum awarded by the Tribunal is just and proper or on the lower side?
Shri Akhter Abbas opening his submission has submitted that the Issue No.6 is primarily decided relying upon the decision of the Hon'ble Apex Court in the case of Kailash Nath Kothari (supra), which has been overruled by the Hon'ble Apex Court in the case of Kulsum (supra). It has been submitted that in the case of Kulsum (supra) the question formulated before the Apex Court was that if the insured vehicle is plying under an agreement of contract with the Corporation, on the route as per the permit granted in favour of the Corporation, in case of an accident, whether the Insurance Company would be liable to pay a compensation or would be a responsibility of the owner or the Corporation.
It has been submitted that in this backdrop, the question formulated by the Hon'ble Apex Court in the case of Kulsum (supra) holds that once the vehicle in question is duly insured and the vehicle is attached with the Corporation in terms of an agreement then for all practicable purposes it is the Corporation which steps into the shoes of the owner and to that extent the vehicle being insured, the liability would be of the Insurance Company and the Insurance Company cannot dispute the liability merely on the ground that the vehicle was under an agreement and effectively controlled by the Corporation. It has been submitted that the premise upon which the Tribunal has fastened the award is erroneous and contrary to the decision which has been settled by the Hon'ble Apex Court in the case of Kulsum (supra), accordingly the liability if any would be of the Insurance Company.
Shri I.P.S. Chhada has pointed out that the decision of the Hon'ble Apex Court in the case of Kulsum (supra) is passed on the fact wherein the vehicle in question was being driven by a driver, who possessed a valid and subsisting driving licence and all the necessary papers regarding the permit etc., were found in order and there was no violation of the policy conditions. It is only under such circumstances, the Hon'ble Apex Court held that the liability would be of the Insurance Company and it cannot avoid the same by taking recourse to the agreement. However, it has been pointed out by Shri Chhada that in the present case, there is a clear finding to the effect that the driver of the vehicle in question did not possess a valid and effective driving licence. Though the premise of the award is based on the decision of the Hon'ble Apex Court in the case of Kailash Nath Kothari (supra) fixing the liability on the Corporation, but nonetheless even assuming if the principles laid down in the case of Kulsum (supra) are applied even then the liability would be of Corporation inasmuch as the vehicle in question was being driven by a person, who did not possess a valid and effective driving licence and to that extent no liability can be fastened on the Insurance Company.
In reply to the aforesaid submissions, Shri Abbas has submitted that the agreement between the parties i.e. the owner and the Corporation is clear and he has drawn the attention of the Court to Clause-3.2 and Clause-10 of the agreement wherein it is understood between the owner and the Corporation and that the liability out of the accident or any misdemeanor or any other such liability would be borne by the owner and not by the Corporation and to that extent any liability if at all would have to be fastened on the owner and not on the Corporation and to that extent the appeal can be allowed.
Upon considering the aforesaid submissions, there is no dispute to the effect that the ratio laid down by the Hon'ble Apex Court in the case of Kailash Nath Kothari (supra) has been reversed by the Hon'ble Apex Court in the case of Kulsum (supra). However, what needs to be noted is the fact that the question before the Hon'ble Apex Court was regarding who would be liable to pay the compensation in case the vehicle is insured and is being plied under the agreement of contract with the Corporation. The question as framed by the Hon'ble Apex Court is being reproduced hereinafter for ready reference:-
"The question of law that arises for consideration in the instant and connected appeals is formulated as under:-
If insured vehicle (in this case a mini bus) is plying under an Agreement of Contract with the Corporation, on the route as per permit granted in favour of the Corporation, in case of an accident, whether the insurance Company would be liable to pay compensation or would it be the responsibility of the Corporation or the owner?"
Considering the respective law on the subject, the Hon'ble Apex Court considering the provisions of the Act as well as the Scheme in Paragraphs-43 to 46 has laid down the following proposition which is being reproduced hereinafter for ready reference:-
"43. Perusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants.
44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute.
45. Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle.
46. Apart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only."
Thus, what cannot be disputed is the proposition that in case if the bus or the vehicle in question is duly insured and is plying in accordance with the policy condition then under no circumstances the Insurance Company can avoid its liability.
Shri Chhada has also drawn attention of the Court to a later decision of the Hon'ble Apex Court in the case of U.P.S.R.T.C. vs. National Insurance Company Ltd. & Ors., reported in 2019 (1) T.A.C. 739 (SC) where similar controversy arose and the question before the Hon'ble Apex Court was, whether the Insurance Company is liable to pay the compensation to the third party to indemnify the liability of the owner of the vehicle. Considering the earlier decision including that of Kulsum (supra) and Managing Director, Karnataka State Road Transport Corporation vs. New India Assurance Company Ltd. & Anr., reported in (2016) 2 SCC 382, the Hon'ble Apex Court held as under:-
"In view of the aforesaid authoritative pronouncements, we hold that the registered owner, Insurer (respondent No.1) as well as Corporation (appellant) shall be jointly and severally liable to the claimants in respect of the compensation that has been awarded by the MACT. However, insofar as the appellant is concerned, it would be entitled to recover the amount paid to the respondents from the owner in terms of the agreement which has been entered into between them."
Before giving the conclusion, the fact involved and which needs to be noted is that it has been alleged that one Shri Ram Singh is the driver of the offending vehicle. It will be relevant to point out that there is a controversy that who is the actual driver inasmuch as the charge-sheeted driver is Ram Singh Son of Pyare, R/o Sitapur whereas the licence of another Ram Singh Yadav son of Mathura Prasad, R/o Lucknow has been placed on record. It would also be relevant to note that the charge-sheeted driver Ram Singh son of Pyare and his licence has not been brought on record but the licence of another Ram Singh son of Mathura Prasad, R/o Lucknow which has been brought on record is not valid inasmuch as the validity of the licence was for the period w.e.f. 20.07.2001 to 19.07.2004 whereas the accident took place on 19.10.2004.
This being the position which is not disputed by either of the parties. The finding in the above backdrop as returned by the Tribunal is rather strange. It held that though the licence of the charge-sheeted driver is not available but nevertheless since he was driving the bus which is attached under an agreement with the Corporation, it would be deemed as if he had a valid and effective licence. It will be relevant to note that there is no deeming provision which can permit a finding of fact to be recorded on such fiction. A fact whether there is a licence in absence of evidence cannot be presumed more-so on the reasoning that since a person is driving a vehicle attached with the Corporation, it would be presumed that he has a licence. It would be seen that from no angle Ram Singh the driver of the vehicle can be held to have a licence in absence of any evidence.
Be that as it may, neither the owner nor the Corporation made any efforts either to summon Ram Singh for his examination or clarifying his position regarding his licence. Once, the parties concerned have failed to bring on record any substantial material regarding the licence coupled with the fact that the alleged copy of the licence was brought on record, was also found to be invalid. Hence, there was no occasion for the Tribunal to have concluded that the licence of the driver would be deemed to be valid.
This Court finds that the findings given insofar as the Issue No.5 is concerned, the same cannot be sustained and has to be set aside. Once such a finding has been set aside, the necessary effect would be that the vehicle in question is found to be driven by a person who is not authorized and apparently is in violation of the policy condition and to that extent it cannot be said that even though the vehicle is insured yet the liability must be fastened on the Insurance Company.
Now the issue arises whether the liability can be fastened on the Insurance Company and it cannot be made liable to pay the compensation. The Hon'ble Apex Court in the case as already noted above in U.P.S.R.T.C. vs. National Insurance Company Ltd. (supra) has held that the owner, Corporation and the Insurance Company are jointly and severely liable qua a third party i.e. the claimants. However, any understanding between the Corporation or the owner and the Insurance Company is the matter inter se and they shall have a right to recover the same as per the agreement.
In the present case at hand, it would be seen that the vehicle was under an agreement with the Corporation. The liability has been fastened on the Corporation by the Tribunal. It is also not disputed that the vehicle in question was insured but for want of necessary licence there is a violation of the policy condition. In the aforesaid facts and circumstances, where the liability is joint and several and the liability has been fixed on the Corporation [though in light of the agreement and its clauses, the Corporation may have a right to recover the same from the owner].
Accordingly, so far as the claimants are concerned, they cannot be made to run from pillar to post and, therefore, for the said reason, this Court is of the firm opinion that so far as the present case is concerned, the award shall be satisfied by the Corporation, who shall have a right to recover from the owner.
Thus, the appeal of the Corporation is partly allowed to the extent that the award dated 29.04.2009 shall stand modified to the extent that the aforesaid award shall be satisfied by the Corporation first, who shall have a right to recover from the owner of the vehicle in question in terms of the agreement, if permissible.
Thus, in view of the above the first question is answered accordingly.
Now coming to the cross-objections filed by the claimants-respondents, it would be seen that in case of Kumari Babli @ Pooja, the Tribunal while assessing the compensation has taken the notional income of Rs.15,000/- and applying the multiplier has thereafter made deduction of 2/3rd and has awarded a sum of Rs.80,000/- to which a sum of Rs.4,500/- has been added towards funeral expenses and loss of estate and as such the total sum of Rs.84,500/- has been awarded.
It is no more res integra that so far as the calculation of compensation of a minor child is concerned, the same has been settled by the Hon'ble Apex Court in the case of Kishan Gopal (supra).
Relying upon the aforesaid, a Coordinate Bench of this Court in the case of Uma Kant Tiwari vs. Jai Prakash Srivastava & Ors., reported in 2019 (3) T.A.C. 623 (All.) has considered the propositions and the relevant portion thereof reads as under:-
"30. So far as the cross-objections filed by the claimants are concerned, a reading of the award passed by the Tribunal shows that the Tribunal has computed the compensation payable to the claimants without applying the multiplier method. The aforesaid approach of the Tribunal is contrary to law as laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas (Mrs) & Ors. 1994 (2) SCC 176, wherein the Supreme Court held that the proper method to compute compensation was the multiplier method as it introduces consistency, uniformity and an element of predictability in assessment of compensation. Thus, the compensation, in the present case, had also to be assessed by applying the multiplier method and after determining the multiplicand in the case.
31. In Kishan Gopal & Anr. Vs. Lala & Ors. 2014 (1) SCC 244, the Supreme Court observed that in compensation cases under the Act, 1988 relating to the death of children, it would be just and reasonable to assess compensation on the basis of a notional income of Rs.30,000/- per annum and after applying a multiplier of 15. The aforesaid judgment of the Supreme Court was also followed by a Division Bench of this Court in its judgment and order dated 14.2.2017 passed in First Appeal From Order No. 1580 of 1993 (Nagma Bano vs Harish Chandar Gupta & 3 Others). Thus, in the present case, the pecuniary damages payable to the claimants due to the death of their son in the accident had to be calculated according to the law laid down by the Supreme Court in Kishan Gopal (supra) and followed by the Division Bench of this Court in Nagma Bano (supra). For the aforesaid reasons, the claimants are entitled to a compensation of Rs. 4,50,000/- as pecuniary damages for the death of their son in the accident."
In view of the above, this Court has no doubt in its mind that so far as the award made by the Tribunal is concerned, the same is extremely meager. This Court also finds that so far as the non-pecuniary damages are concerned, they are also inadequate. The law regarding non-pecuniary damages has now been settled by the Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors., reported in 2017 (35) LCD Page 2837.
It is also to be noted that the Tribunal has awarded the interest from the year prior to the date of the award @ 6% per annum. The only reason given for the aforesaid is that initially the claim petition was decided ex-parte whereafter the ex-parte order was recalled. Nevertheless, this cannot be attributed as a fault of the claimants for which they should be deprived.
Considering the aforesaid, this Court finds that the rate of interest 6% as awarded by the Tribunal should be made effective from the date of the application till the date of its actual payment.
Thus, this Court in view of the above facts and circumstances and also considering the law laid down by the Apex Court, this Court, redetermines the compensation as under:-
Income (notional) = Rs.30,000/- per annum Add: Future Prospect @ 40% Rs.12,000/- per annum = Rs.30,000+12,000 = Rs.42,000/- per annum Net Income: Income after deduction of 1/3 (Rs.42,000-14,000) = Rs.28,000/-
Age = 12 years Multiplier = 15 Thus compensation payable Rs.28,000/- x 15 = Rs.4,20,000/- Compensation under Conventional head : (i) Consortium = Rs.40,000/- (ii) Loss of Estate = Rs.15,000/- (iii) Funeral Expenses = Rs.15,000/- ------------------------------------ Thus, total compensation payable shall be = Rs.4,90,000/- ------------------------------------
In view of the above, the claimants shall be entitled to a total sum of Rs.4,90,000/-. Accordingly, the cross-objections are allowed and in view of the aforesaid discussions, it is provided that the award dated 29.04.2009 passed in Claim Petition No.450/2004 shall stands modified to the extent that a total sum of Rs.4,90,000/- shall be payable to the claimants-respondents No.1 and 2 / cross-objectors, which shall carry interest @ 6% per annum from the date of filing of the claim petition, till the date of its actual payment. The aforesaid amount so awarded and redetermined by this Court shall be satisfied by the Corporation within a period of eight weeks from today, who shall have a right to recover the same from the owner of the vehicle in question under the agreement, if permissible.
With the aforesaid, the above FAFO bearing No.922/2009 is partly allowed and the Cross-Objection No.22/2009 be also allowed to the above extent. In the facts and circumstances, there shall be no order as to costs.
Any amount deposited before this Court shall also be remitted to the Tribunal concerned to be released in favour of the claimants.
The record of lower court be remitted to the court concerned within two weeks from today.
Order Date :- 28.01.2020 Rakesh/-