Delhi High Court
Lado Devi vs Shri Satvir Sharma & Ors. on 1 April, 1998
Equivalent citations: II(1998)ACC603, 2000ACJ95, 1998IVAD(DELHI)21, 73(1998)DLT616, 1998(45)DRJ535, (1998)120PLR46
ORDER Usha Mehra, J.
1. Since both the appeals have arisen from the same award and the point involved are common, hence these appeals are taken up together and disposed by this order. In FAO No.231/83 appeal is preferred against the award of the Tribunal by the claimants and in FAO No.274/83 award has been challenged by the owner of the vehicle which according to claimants caused the accident.
2. In FAO No.231/83 appellants Lado Devi and Others i.e. LRs. of deceased have assailed the award of the Motor Accident Claims Tribunal (in short the Tribunal) on the grounds namely that (1) Dependency loss as assessed by the Tribunal is on the lower side; (2) That 20% deduction on account of lump sum payment is against law; (3) Interest ought to have been awarded from the date of the institution of the claim petition; and finally (4) the Insurance Company's liability was unlimited, whereas the Tribunal limited it to Rs.50,000/-. And in the FAO.No.274/83 the owner of the offending vehicle has challenged the award primarily on the ground that his vehicle was not involved in the accident nor its driver was negligent. That compensation awarded is on higher side.
3. In order to appreciate the challenge in FAO.231/83, brief facts of the case are that on 13th June,1979 at about 10.30 p.m. deceased Ram Chander Sharma aged about 42 years was going as pillion rider on a two wheeler Scooter, when a oil tanker bearing No.DLG-6267 driven rashly and negligently at a fast speed hit the scooter from behind. Because of this impact, the deceased Ram Chander fell down. He sustained injuries. He was taken to Bara Hindu Rao Hospital where he was declared brought dead. Deceased during his life time was doing a partnership business wherefrom his monthly income was Rs.1,000/-. Legal heirs of the deceased filed a claim petition claiming a compensation of Rs.2 lakhs under the Motor Vehicles Act (in short the Act). The Tribunal awarded a sum of Rs.1,92,000/- out of which allowed deduction of 20% on account of lump sum payment and uncertainties of life. Thus the net compensation payable to the claimants was assessed at Rs.1,53,600/-.
4. In order to dispose the questions raised in both the appeals, it must be stated at the outset that question of deductions at 20% on account of lump sum payment and uncertainties of life is bad in law. Such a point came up before this Court as well as the Apex Court. The Courts by authoritative pronouncement held that such deduction on account of lump sum payment is not permissible. For support reference can be made to the following decisions; Hardeo Kaur & Ors. Vs. Rajasthan State Road Transport Corporation & Anr. [1992 ACJ 300], Rukmani Devi & Ors. Vs. Om Prakash & Ors. [1991 ACJ 3], General manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Ors. [1994 ACJ 1], Dharam Singh & Anr. Vs. Parveen Sehgal & Ors. [1992 ACJ 1067] and Chameli Wati & Anr. Vs. Delhi Municipal Corporation & Ors. [1984 ACJ 134]. The Apex Court in the case of Hardeo Kaur & Ors. (Supra) observed that with the value of rupee dwindling due to high rate of inflation, there is no justification for making deductions on account of lump sum payment. Similar view was expressed by this Court in this Court in Chameli Wati & Ors. (Supra) when it said that no deduction on such account is called for and that by permitting this deduction for the benefit of the respondent who had been found negligent and responsible for causing death would be in fact to reward him for his negligence. In view of the law discussed above, the deduction at the rate of 20% ordered by the Tribunal on account of lump sum payment and uncertainties of life cannot be sustained.
5. So far as the question raised in appeal No.231/83 regarding non-granting of interest from the date of petition, I find substance in the contention of Mr.O.P.Goyal counsel for the appellant. The award of interest to the compensation is by judicial discretion, a sequential in the eye of law. Tribunal in this case has not assigned any reason for depriving the appellant their right to receive interest from the date of the claim petition. Nor any fault has been attributed to the appellants for causing delay in the disposal of the proceedings. In the absence of having assigned any reason the Tribunal was not justified in depriving the appellants the award of interest, from the date of the petition till realisation. Perusal of the award shows that the Tribunal directed respondent to deposit the awarded amount within two months failing which interest at the rate of 9% p.a. was to accrue. This observation of the Tribunal being contrary to the settled principle of law cannot be sustained. Interest at the rate of 12% ought to have been awarded in favour of the appellants. This Court in umpteen cases awarded 12% to 15% interest from the date of petition till realisation. For reference following decisions can be mentioned, namely, Bimla Devi and Anr. Vs. New India Assurance Co. Ltd. & Ors. [1995 ACJ Vol.II 789] and National Insurance Co. Ltd. Vs. Harjeet Kaur & Ors. [1996 ACJ Vol.II 687]. In these cases this Court granted interest varying from 12% to 15%. Since the law permits interest at the rate of 12%, therefore, I modify the award of interest and order that the appellants would be entitled to interest at the rate of 12% per annum from the date of claim petition till realisation, subject of course to the adjustment of the amounts already received. In this case interest would be counted till such time the amount was deposited and paid to the claimants.
6. So far as dependency loss is concerned, I find no infirmity in the order of the Tribunal. The Tribunal in fact took note of all the circumstances and then concluded that dependency loss worked out to the tune of Rs.12,000/- per annum. I see no reason to interfere with the same. Nor I see any infirmity in applying the multiplier of 16 years. Therefore,the compensation of Rs.1,92,000/- has been correctly arrived at by the Tribunal. Since it has been observed that the dependency loss was correctly arrived after appreciating the oral and documentary evidence on record hence I find no force in the contention of counsel for the appellant in FAO.No.274/83 that the amount awarded was on higher side. The Tribunal, to my mind, correctly appreciated the evidence to arrive at the conclusion that the vehicle of the appellant in FAO.No.274/83 was involved in the accident and it was due to the negligence of its driver that accident was caused. Counsel has not been able to prove any infirmity in this finding of the Tribunal. In fact after going through the evidence I also find no infirmity in this finding.
7. The only question which is left to be answered is regarding the liability of the insurance company. Counsel for appellants contended that there was no limit of liability mentioned in the policy. The limit of liability of Rs.50,000/- was mentioned against Section 11(1)(ii) of the policy which pertains to the property and not to personal injury.
8. Both the parties relied in support of their arguments on the policy of insurance Ex.RW-1/A. Mr.O.P.Goyal and Mr.K.P.Kapoor appearing for the claimants and owner of the vehicle contended that terms of this policy nowhere lays down any limit of liability of the insurance company to Rs.50,000/-. In fact the limit of Rs.50,000/- was prescribed against the clause dealing with damage to the property. So far as Section 11(1)(i) of the policy against that no limit was prescribed. Moreover as per the tariff for a public passenger service vehicle the tariff prescribe for a comprehensive insurance policy the premium of Rs.426/- plus 1/2%, for liability to public risk only Rs.111/- and for Act Only liability Rs.84. In this case the basic premium paid by the owner was Rs.125/-. This shows that insured paid additional premium over and above the "Act Only" liability as well as third party public risk cover. For "Act Only" policy at the relevant time the premium payable was Rs.84/- whereas the insured paid over and above the Act policy cover as well as public risk cover which was Rs.111/-. Insured paid Rs.125/-. On account of this additional payment of premium the risk which was covered by this policy was not of a limited nature. It was of unlimited nature. On the other hand Mr.S.Paul, counsel for the insurance Company contended that though in words the limit of liability was not mentioned against Clause II(1)(i) of the policy but a stamp was affixed which reads "such amount as is necessary to meet the requirements of the Motor Vehicle Act,1939". This policy was taken out in 1978. It was valid till November, 1979. At the relevant time as per the Act the compulsory insurance required was only upto the extent of Rs.50,000/-. Thereafter the policy with above mentioned clause was issued meaning thereby it was "Act only" policy. I am afraid this argument cannot be appreciated in view of the fact that RW-1/A is not a true copy of the original nor a carbon copy. When it was placed on record it was objected to by the counsel for the claimants and objection was to be decided at the time of final arguments. The Tribunal in his award took note of this fact and, therefore, did not place much reliance on the same being neither a carbon copy nor a true copy of the original. Thus it can be said the Exhibit RW-1/A was not proved properly. This policy was placed on record by the testimony of Shri Dinesh Chand Sharma, RW-1. When subjected to cross examination he could not tell who prepared Ex.RW-1/A. On company's file even the carbon copy was not available. Therefore, he could not say as to where from this true copy was prepared. He admitted that part of Exhibit RW-1/A was printed and some part of it was typed and some part was stamped. Only the bottom of the first page was signed by the insured. He could not produce the office record of cover note or of certificate of insurance or the premium receipt's file. He also could not say why the premium of Rs.125/- was charged instead of Rs.84/- if it was an "Act only" policy. He rather admitted that this was not an "Act Only" policy, but was covering third party risk and that additional premium was charged. In view of this admission on the part of RW-1 an official of the Insurance Company it can safely be concluded that Exhibit RW-1/A was not a carbon copy of the original nor prepared from the original nor even carbon copy was available on record of the company. He did not know where from it was prepared, therefore, no reliance can be placed on the same. Even affixing of stamp against the column dealing with limit of liability against Section II(I)(i) in the absence of carbon copy and/or true copy becomes doubtful as to whether such a stamp was actually affixed on the original. Had the carbon copy been produced things would have been different. Therefore, no reliance can be placed on the argument of Mr.S.Paul that since stamp was affixed hence the liability was as per the requirement of the Motor Vehicle Act. Moreover, in the absence of any explanation having been placed on record as to why premium of Rs.125/- was charged when the basic premium for "Act only" policy was Rs.84/- it can safely be concluded that policy of insurance in this case was not an "Act Only" and the limit of liability was not limited.
9. Having come to the conclusion that this was not an "Act Only" liability cover and that additional premium was paid the liability of the insurance company could be said to be as per the "Act Only" policy. For support reference can be made to the decision of this Court in the case of Usha Sehgal & Ors. Vs. Chhote & Ors. reported in 1985 ACJ 515 where this Court observed that if it is a third party policy the insurance company will be bound to pay higher compensation which would in all cases be more than the compensation under "Act Only" police. Admittedly, claimants are stranger to the policy and, therefore, third party is not bound by the terms of the policy as held by the Supreme Court in the case of Amrit Lal Sood Vs. Smt. Kaushalya Devi Thapar, reported in 1998(2) SCALE 344. In the absence of carbon copy of policy having been produced or true copy proved, no much reliance can be placed on the stamp affixed against Clause II(I)(i) of the alleged policy. Exhibit RW-1/A being neither the carbon copy nor true copy nor the original having been called from the insured, the same cannot be relied for limiting the liability of the insurance company.
10. For the reasons stated above, I find no merits in the appeal of the appellant in FAO.No.274/83. The same is accordingly dismissed.
11. So far as appellants in appeal bearing FAO.No.231/83 is concerned, they would be entitled to compensation of Rs.1,92,000/- beside interest at the rate of 12% per annum from the date of petition till realisation. Amount already paid to these appellants pursuance to the award of the Tribunal on that no interest would run. However, for the balance amount the appellants would be entitled to interest as ordered.
12. With above order, the appeal bearing No.231/83 stands disposed.