Delhi District Court
Kamlesh Upadhyay vs Waseem Haq S/O Shri Aneesul Haq on 29 November, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.462/13 (New Suit No.357068/16)
Unique Case ID No.02401C-0626452013
1. Kamlesh Upadhyay
W/o Late Shri Mohan Chandra Upadhyay (Wife)
2. Siddharth Upadhyay
S/o Late Shri Mohan Chandra Upadhyay (Son)
Both residents of : H.No.17/214, Than Singh Nagar, Anand
Parbat, Delhi.
Also at: H.No.2A/122, Vasundhara, Sector-2A, Ghaziabad-
201012.
(Petitioner No.2 being minor is represented through his
mother/natural guardian Smt. Kamlesh Upadhyay-petitioner
no.1).
........PETITIONERS
Versus
1. Waseem Haq S/o Shri Aneesul Haq
R/o Moh. Mirdgan, Bijnor,
Distt. Bijnor, U.P.
Also at: H.No.90, Bonjha Patel Nagar-II,
PS: Sihani Gate, Ghaziabad, UP. (Driver)
2. Mohan Lal S/o Late Shri Chatri
R/o H.No.90, Bonjha Patel Nagar-II,
PS: Sihani Gate, Ghaziabad, U.P.201001 (Owner)
3. The New India Assurance Co. Ltd.
12/1, Jeevan Raksha Building,
Asaf Ali Road, New Delhi (Insurer)
4. Smt. Nandi Devi
W/o Late Shri Ramanand Upadhyay
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 1 of 44
R/o H. No. T-3572, Gali No.21,
Baljeet Nagar, Delhi - 110008 (Proforma Respondent
-Mother of deceased)
.......RESPONDENTS
Date of filing of DAR/Claim Petition : 07.12.2013
Arguments heard on : 21.11.2016
Judgment pronounced on : 29.11.2016
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.30,00,000/- (Rupees Thirty Lakh Only) in respect of accidental death of Shri Mohan Chandra Upadhyay (since deceased) in a motor vehicular accident.
In brief, as per the case of petitioners, on 04.10.2013 at about 07:30AM, Mohan Chandra Upadhyay (since deceased) was proceeding to Delhi from Ghaziabad on Scooty No.UP- 14BR-1168. When he reached near Canara Bank, Prahlad Gadi, PS: Indra Puram, Distt. Ghaziabad, the scooty was hit from behind by a bus bearing registration No.DL-1PB-2155 driven by Respondent No.1 Waseem Haq in a rash and negligent manner. Consequently, Mohan Chandra Upadhyay suffered fatal injuries and expired on the spot. Postmortem on the body of deceased was conducted at MMG Hospital, Ghaziabad. FIR No.1676/2013 Crime No.1854/2013 u/s 279/304A/427IPC was registered at PS: Indra Puram, Ghaziabad regarding the accident.
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 2 of 44It is further the case of the petitioners that deceased Mohan Chandra Upadhyay aged about 39 years was working as a Salesman of biscuits and namkeens supplier in the area of Delhi/NCR and earning about Rs.12,000/- to Rs.15,000/- per month. The deceased is further stated to be survived by his wife Kamlesh Upadhyay (petitioner no.1), son Siddharth (petitioner no.2) and mother Nandi Devi (Proforma Respondent No.4).
2. In the Written Statement filed on behalf of Respondent No.1 Waseem Haq & Respondent No.2 Mohan Lal/driver & owner of the offending vehicle, the accident was denied and Respondent No.1 was stated to have been falsely implicated. The averments made in the claim petition were further denied. It was further submitted that the bus No. DL- 1PB-2155 was insured vide policy no. 32160431120200005894 on the alleged date of accident and Respondent No.1 was having a valid & effective DL.
In the written statement filed on behalf of New India Assurance Company Ltd. (insurer of the offending vehicle), it was submitted that the petition is not maintainable since the accident had taken place within the jurisdiction of PS: Indra Puram, Ghaziabad, petitioners were residents of Ghaziabad and the policy issuing office of the insurance company was located at Sahibabad. It was further submitted that the insurance company shall not be liable to pay the compensation unless it is proved that deceased was having a valid driving licence as well Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 3 of 44 as Respondent No.1 was in possession of effective driving licence and the vehicle was not plied in violation of the terms and conditions of the policy. However, it was admitted that the offending vehicle was insured for the period 31.10.2012 to 30.10.2013 which covers the date of accident. The compensation claimed was further stated to be exorbitant and excessive. It was also denied that the accident had taken place due to the rash and negligent driving of the offending vehicle.
3. On the pleadings of the parties, following issues were framed for consideration vide order dated 13.08.2014 by the ld. Predecessor:-
(i) Whether the deceased Shri Mohan Chandra Upadhyay had died due to injuries sustained by him in an accident which took place on
04.10.2013 at 07.30 AM within the jurisdiction of PS Indrapuram, Distt. Ghaziabad (UP) due to rash and negligent driving of vehicle bearing Regn.No. DL-1PB-2155 by respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, two witnesses were examined, namely, PW1 Smt. Kamlesh Upadhyay (wife of deceased) and PW2 Kapil Bansal (eyewitness to the accident).
PW-1 Kamlesh Upadhyay testified on the lines of claim Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 4 of 44 petition and proved copy of death certificate of deceased (Ex.PW1/1), copy of School Leaving Certificate of deceased (Ex.PW1/2), copy of Election I-card of deceased (Ex.PW1/3), copy of her Election I-card (Ex.PW1/4) and School Identity Card of petitioner no.2.
On cross-examination, she clarified that she was not an eyewitness to the accident. She further stated that her husband was holding a valid driving licence at the time of accident but had not filed a copy thereof on record as the same was lost along with other belongings at the time of accident. She denied the suggestion that the deceased was not holding a driving licence at the time of accident. She admitted that no document had been filed on record to show that deceased was working as a Salesman or was earning Rs.12,000/- to Rs.15,000/- per month.
PW2 Shri Kapil Bansal (eyewitness to the accident) testified that the accident took place due to rash and negligent driving by driver of bus bearing No.DL-1PB-2155.
On cross-examination, he clarified that he did not know deceased Mohan Chand Upadhayay prior to accident. Further, he was going to Subzi Mandi when the accident took place at around 07:30 AM. He deposed that the scooty was driven by the deceased on the left side of the road and there was not much traffic on the road. He clarified that he had not called the police after the accident but someone from the public had called the police and the police had reached the spot after 5 or 10 minutes in his presence and had recorded his statement. He denied the Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 5 of 44 suggestion that the accident took place due to sole negligence of the deceased or that the deceased was driving the scooty in a rash and negligent manner. He further denied the suggestion that driver of the bus was not at fault or that he was not an eyewitness to the accident.
Respondent No.1 Waseem Haq/driver and Respondent No.2 Mohan Lal/owner of the offending vehicle led their evidence as R1W1 and R2W2 respectively.
R1W1 Waseem Haq testified on the lines of written statement.
On cross-examination, he clarified that on 04.10.2012 he was driving the offending bus from Ghaziabad to Noida and had reached the place of accident at about 07:30AM. He denied the suggestion that the left front portion of the bus hit the scooty from behind or that due to violent impact of the bus, scooty fell down and deceased Mohan Chandra Upadhayay sustained crush injuries as he was crushed under the front wheel of the bus. He further stated that he had run away leaving behind the bus as the public had started pelting stones on the bus, due to which front portion of the bus was damaged. He admitted that the bus was seized by the police on the spot while he surrendered before the court and was granted bail. He also admitted the fact that FIR No.1676/13 u/s 279/304A IPC, PS: Indirapuram dated 04.10.2013 was registered against him in which chargesheet had already been filed and he was facing trial before the concerned court. He further stated that he had not filed any complaint with Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 6 of 44 any authority regarding false implication. He denied the suggestion that the accident took place due to his rash and negligent driving or that he had filed a false affidavit to escape from liability.
On cross-examination by counsel for insurance company, he denied the suggestion that he was having the licence to drive LMV and HGV only. He further denied the suggestion that he was not having the licence to drive bus or HPV at the time of accident.
R2W1 Mohan Lal also testified on the lines of written statement and reiterated the facts as deposed by R1W1 in his evidence.
Respondent No.3 led evidence of two witnesses, namely, R3W1 Shri Parkash Chand Pathak, Clerk, ARTO Office, Bijnor and R3W2 Shri Ashok Kumar, AO of the insurance company.
R3W1 Shri Parkash Chand Pathak, Clerk, ARTO Office, Bijnor deposed that driving licence No.T-7411/BJR/95 was issued in the name of Waseem Haq S/o Aneesul Haq which was renewed from the authority from time to time and lastly on 16.04.2013 valid upto 15.04.2016. He further stated that the said licence was issued to drive LMV and HGV (Heavy Goods Vehicle) and the holder was not authorised to drive any heavy passenger vehicle. He further proved relevant record of Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 7 of 44 aforesaid DL (Ex.R3W1/1).
On cross-examination on behalf of Respondent No.1 & 2, R3W1 admitted that driving licence was renewed in the name of Wasim Haq from 16.04.2013 to 15.04.2016. He admitted that 'Transport' term was used for reflecting commercial purpose at the time of issuing the driving licence. He further deposed that 'Transport' means that the driver was authorized to drive the bus, truck etc. and in the Driving Licence bearing No.T-7411- BJR-95, the specific category of vehicle was mentioned as LMV & HGV only. He further deposed that the driving licence in respect of bus was issued at the relevant time by endorsing PSV (Public Service Vehicle) and at present for purpose of driving the bus or truck, the same is reflected by endorsing Transport Vehicle on the DL. He deposed that in the photocopy of driving licence which was already on the judicial file, at point 'A' the word 'HPV' (Heavy Passenger Vehicle) appears to have been subsequently added since the same was not reflected in the copy of driving licence register (Ex.R3W1/1) and presently HPV is not separately endorsed at the time of issuing/renewal driving licence and the same is reflected by endorsing 'Transport'. He proved the copy of original driving licence (Ex.R3W1/D1).
R3W2 Shri Ashok Kumar, Administrative Officer, The New India Assurance Company Ltd. proved the driving licence verification report on Form-54 along with report of investigator (Ex.R3W2/1 & Ex.R3W2/2), copy of legal notice (Ex.R3W2/3), postal receipts (Ex.R3W2/4 & Ex.R3W2/5), Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 8 of 44 returned envelopes (Ex.R3W2/6 & Ex.R3W2/7) and attested copy of insurance policy (Ex.R3W2/8).
On cross-examination, he denied the suggestion that insurance company was liable to pay compensation to the petitioners or that he was deposing falsely being the insurer to avoid the liability of insurance company.
5. I have heard arguments addressed on behalf of the petitioners, counsel for respondents and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Mohan Chandra Upadhyay had died due to injuries sustained by him in an accident which took place on 04.10.2013 at 07.30 AM within the jurisdiction of PS Indrapuram, Distt. Ghaziabad (UP) due to rash and negligent driving of vehicle bearing Regn.No. DL-1PB-2155 by respondent No.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 9 of 44 Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 10 of 44 order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the instant case, as per testimony of PW2 Kapil Bansal, on 04.10.2013 about 07:30 AM near Canara Bank, Prahlad Garhi, Indirapuram, District Ghaziabad, scooty driven by deceased Mohan Chandra Upadhyay was hit from behind by bus No. DL-1PB-2155 which was driven by Respondent No.1 Waseem Haq in a rash and negligent manner. On cross- examination, he clarified that the scooty was driven by the deceased on the left side of the road and he had witnessed the accident while going to Subzi Mandi. He also deposed that police had recorded his statement and someone from the public gathered at spot had informed the police. He further denied that the scooty was driven by the deceased in a rash and negligent manner or that the bus driver was not at fault. Testimony of PW2 Kapil Bansal could not be dented during brief cross-
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 11 of 44examination. It may also be noticed that Respondent No.1 Waseem Haq stands chargesheeted for the offence punishable u/s 279/304A IPC and further no complaint appears to have been filed by Respondent No.1 & 2 with any higher authority alleging false implication. It may also be observed that evidence of R1W1 Waseem Haq was also led in defence who denied the factum of accident. However, it may be noticed that R1W1 admitted during cross-examination that he had left behind the bus on the spot though he tried to explain that he ran away as public started pelting stones. He further admitted that FIR No.1676/13 was registered against him in which chargesheet had already been filed. I am of the considered opinion that the stand taken by R1W1/driver of the offending vehicle appears to be a half hearted attempt to escape from the consequences as testimony of PW2 Kapil Bansal could not be dented during cross-examination and the same is also corroborated by mechanical inspection report.
Since negligence is to be assessed on touchstone of preponderance of probability, it has been established that the accident was caused due to rash and negligent driving of bus No.DL-1PB-2155 by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
6. Issue No. (ii) Whether the petitioners are entitled to any Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 12 of 44 compensation, if so, to what amount and from whom?
Counsel for the petitioners fairly conceded that income of the deceased be assessed on the basis of minimum wages of a non-matriculate in the absence of any cogent evidence as to the income of the deceased as salesman of biscuits and namkeens. Reliance was further placed upon school leaving certificate of the deceased (Ex.PW1/2) which reflects that deceased had studied upto 8th class.
In the facts and circumstances, notional income of the deceased is taken as per minimum wages of a non-matriculate for the relevant period as notified by Govt. of NCT of Delhi @ Rs.8,918/- per month
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects be made but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgments were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 13 of 44 India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 14 of 44 Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 15 of 44 Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester.
It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering).
Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-
appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 16 of 44 fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v.
Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 17 of 44 para 24 of the Report held as un- der: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac- tual salary‟ should be read as „ac- tual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may in- dicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv-
ing at appropriate compensation.
We approve the method that an ad-
dition of 50% of actual salary be Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 18 of 44 made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of diver- gence of opinion in judgments of benches of co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 19 of 44 and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary without any provision of annual in- crement.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Road-
ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following ques-
tions took the view that the issue(s) needed Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 20 of 44 resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupu-
lously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as re-
gards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p.
88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-
employed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and excep- tional circumstances. Though the ex-
pression "exceptional and extraordi-
nary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 :
(2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of in-
come by taking into account the possi-
ble future earnings. The said loss of in-
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 21 of 44come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Com- pany Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pro- nouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se-
nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 22 of 44 decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum can- not disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench it- self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 23 of 44 and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its ap-
plication to the petition schedule property, judicial discipline and prac- tice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the state- ment of the law by a coordinate Bench of equal strength. It is an ac-
cepted rule or principle that the state- ment of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 24 of 44 on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98]. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci-
sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judg-
ments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 25 of 4422.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
Observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may also be noticed.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.
In view of the legal position as settled by the Hon'ble High Court, in absence of any evidence with regard to permanent employment of the deceased and good future Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 26 of 44 prospects, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
Since the deceased is survived by three dependents, i.e. wife, son and mother, the deduction towards personal and living expenses of the deceased shall be 1/3rd as held in Sarla Verma's case (supra).
(c) Selection of multiplier:
As per school leaving of the deceased (Ex.PW1/2), date of birth of deceased is 07.04.1971. As such, deceased was aged about 43 years 05 months on the date of accident (i.e. 04.10.2013). As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 14 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 27 of 44 The loss of financial dependency of the petitioners is accordingly assessed at Rs.9,98,816/- [i.e.Rs.8,918/- (notional income per month) X 12 (months) X 14 (multiplier) X 2/3 (dependency)].
7. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium to wife, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
It may further be noticed that Hon'ble Apex Court awarded a sum of Rs.50,000/- to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 28 of 44 entitled to Rs.10,000/- towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love and affection to wife and son, Rs.50,000/- to mother of deceased for loss of love and affection and Rs.25,000/- towards funeral expenses of deceased.
8. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.9,98,816/- Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection to
wife & son Rs.1,00,000/-
Loss of love and affection to mother Rs.50,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.12,83,816/-
________________
(Rupees Twelve Lakh Eighty Three Thousand Eight Hundred & Sixteen Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 07.12.2013 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
9. For the purpose of disbursement, petitioner no. 1 Kamlesh Upadhyay (wife of deceased) shall be entitled to 50% and petitioner no.2 Siddharth Upadhyay (son of deceased) & proforma respondent No.4 Smt. Nandi Devi Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 29 of 44 (mother of deceased) shall be entitled to 25% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) shall be released to petitioner no.1 Kamlesh Upadhyay (wife of deceased) and remaining amount of her share along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, the share of petitioner no.2 Siddharth Upadhyay (minor son of deceased) shall be kept in a fixed deposit in his name till he attains the age of 24 years, without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no.1/mother for the benefit of minor.
Further, out of share of proforma respondent No.4 Smt. Nandi Devi, an amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be released to her and remaining amount shall be kept in five fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years and five years respectively, without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 30 of 4410. Liability to satisfy the award Counsel for insurance company contended that insurance company be exonerated from payment of compensation since driver of the offending vehicle was not in possession of driving licence to drive a heavy passenger vehicle but the same was only valid to drive LMV (Light Motor Vehicle) and HGV (Heavy Goods Vehicle). Reliance was further placed upon testimony of R3W1 Shri Prakash Chand Pathak who stated that the licence possessed by Waseem Haq was issued by the office of RTO Bijnor but the word HPV (Heavy Passenger Vehicle) appears to have been subsequently added which is not reflected in the driving licence register (Ex.R3W1/1). The licence was further stated to have been renewed from 16.04.2013 upto 15.04.2016. Reference was further made to the judgment passed by the Hon'ble High Court of Karnataka at Bangalore in United India Insurance Co. Ltd. v. Govindappa and others, 2002 ACJ 1102 to contend that insurance company be exonerated from payment of compensation.
However, the same was vehemently disputed by counsel for Respondent No.1 & 2 and it was submitted that licence was issued from time to time and lastly renewed on 16.04.2013 valid upto 15.04.2013 which covers the date of accident. It was further submitted that no endorsement is required to drive a heavy passenger vehicle since the licences are presently issued by the licencing authority by endorsing 'transport' which is valid to drive a public service vehicle, a goods carriage and Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 31 of 44 educational institution bus or private service vehicle as covered in definition of 'transport vehicle' in Section 2(47) of the Motor Vehicles Act, 1988.
11. To appreciate the contentions, reference may also be made to judgment passed in New India Assurance Co. Ltd. v. Krishna and others, 2016 ACJ 1214 by the Hon'ble High Court of Uttarakhand at Nainital wherein the insurance company disputed its liability on the ground that driver was holding licence to drive heavy goods vehicle but was driving a bus (a passenger vehicle) at the time of accident. It was therein observed by the Hon'ble High Court of Uttarakhand in para 9 as follows:
"9. In the case in hand, Udai Singh, the driver, was holding a licence for driving a 'heavy goods vehicle' w.e.f. 5.1.1995 which was also valid for 'hill roads'. The court feels that a person, who was competent to drive a 'heavy goods vehicle', could drive a 'heavy passenger vehicle' as well and in an efficient manner. So, exonerating the insurance company from bearing the liability will not be justified in my view."
12. Reference may also be made to judgment passed by Hon'ble High Court of Himachal Pradesh in Oriental Insurance Co. Ltd. v. Khem Chand and others, 2016 ACJ 169 wherein the claimant sustained injuries when a pickup driven rashly and negligently hit him and the insurance company disputed its liability on the ground that driver was not holding a valid licence as he was driving a light motor vehicle (transport) without PSV endorsement at the time of accident. It was held by the Hon'ble Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 32 of 44 High Court of Himachal Pradesh that driver was holding licence to drive LMV and vehicle he was driving a the time of accident was having description of LMV and driver possessing licence to drive LMV requires no PSV endorsement.
In Oriental Insurance Co. Ltd. v. Amra Devi and others, 2016 ACJ 952, the insurance company disputed its liability on the ground that driver was holding licence to drive light motor vehicle (LMV) but he was driving a van (passenger vehicle) without PSV endorsement. It was held by the Hon'ble High Court of Himachal Pradesh that LMV includes transport vehicle and transport vehicle includes public service vehicle which takes within its umbrage any motor vehicle used or deemed to be used for carriage of passengers and thus driver having licence to drive LMV requires no PSV endorsement.
Reference may also be made to the judgment passed by the Hon'ble Supreme Court of India in Kulwant Singh and others v. Oriental Insurance Co. Ltd., 2014 ACJ 2873 wherein the insurance company had disputed its liability on the ground that driver had licence to drive light motor vehicle but he was driving a goods vehicle. The Tribunal mulcted liability on the insurance company on the ground that offending vehicle was 'light goods vehicle' and driver had a valid driving licence. However, the Hon'ble High Court observed that 'light motor vehicle' cannot be equated with 'light goods vehicle' and there was breach of policy as driver did not have valid and effective driving licenec and granted recovery rights to the insurance company. Hon'ble Supreme Court of India finally held that a Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 33 of 44 person holding driving licence to drive 'light motor vehicle' was authorised to drive 'light goods vehicle' and there was no breach of insurance policy. Observations of the Hon'ble Supreme Court in para 9 to 11 may be beneficially quoted:
"9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria, 2008 ACJ 721 (SC), this court referred to the provisions of section 2 (21) and (23) of the Motor Vehicles Act, 1988, which are definitions of 'light motor vehicle' and 'medium goods vehicle' respectively and the rules prescribing the forms for the licence, i.e., rule 14 and Form No.4. It was concluded:
"(16) From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
10. In S. Iyyapan, 2013 ACJ 1944 (SC), the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It was observed:
"(19) In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. The is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is a light motor vehicle, the High Court has committed grave error of law in holding that insurer is not liable to pay compensation because the driver was not holding the licence to drive a commercial Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 34 of 44 vehicle. The impugned judgment is, therefore, liable to be set aside."
No contrary view has been brought to our notice.
11. Accordingly, we are of the view that there was no breach of any condition of insurance policy in the present case, entitling the insurance company to recovery rights."
13. Further, to appreciate the contentions raised by counsel for insurance company and Respondent No.1 & 2, it may also be apt to notice the definition of 'transport vehicle, public service vehicle, goods carriage, heavy goods vehicle, light motor vehicle & medium goods vehicle' in the Motor Vehicles Act:
'Transport vehicle' has been defined under section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
Similarly, 'public service vehicle' is defined under section 2 (35) of the Act to mean any motor vehicle used for the carriage of passengers for hire or reward including a maxicab, a motor-cab, a contract carriage and a stage carriage.
Further, 'goods carriage' is defined under section 2(14) of the Act to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
Similarly, 'heavy goods vehicle', 'light motor vehicle' and 'medium goods vehicle' have been defined under sections 2(16), 2(21) and 2(23) of the Act respectively, which are extracted hereunder:
'2 (16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 35 of 44 tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
2 (21) 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which, or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;
2 (23) 'medium goods vehicle' means any goods carriage other than a light motor vehicle or a heavy goods vehicle.' From the aforesaid definitions, it is clear that any transport vehicle or omnibus whose gross vehicle weight or a motor car or a tractor or a road-roller the unladen weight of any of which does not exceed 7,500 kg, is a light motor vehicle.
It may also be noticed that a motor car, whose unladen weight does not exceed 7,500 kg, is a light motor vehicle. If that very motor car is used for hire or reward then it becomes a public service vehicle as laid down under section 2 (35) of the Act and a transport vehicle as defined under section 2(47). Similarly, every goods carriage whether used for public or private purpose would be a transport vehicle.
It may be further observed that as per section 10 of the Act, even a learner's licence has to be in respect of the class of vehicle for which a person wants to have a regular licence. Similarly, section 11 of the Act lays down that any person holding a driving licence to drive any class of motor vehicle can apply to the Licensing Authority for addition of such other class or description of motor vehicle as he has not been disqualified from holding.
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 36 of 44It may be noticed that in Ashok Gangadhar Maratha, 2000 ACJ 319 (SC); in para 10, S. Iyyapan v. United India Insurance Co. Ltd., 2013 ACJ 1944 (SC); Kulwant Singh v. Oriental Insurance Co. Ltd., 2014 ACJ 2873 (SC) and Nagashetty v. United India Insurance Co. Ltd., 2001 ACJ 1441 (SC), the view taken is that when drive is holding licence to drive light motor vehicle, he is competent to drive transport vehicle of that category. Also, in National Insurance Co. Ltd. v. Annappa Irappa Nesaria, 2008 ACJ 721 (SC), the Hon'ble Apex Court held that there was no necessity for holder of licence to drive light motor vehicle to have endorsement to drive transport vehicle.
In the light of aforesaid decisions, it appears that a person granted a licence for LMV would be competent to drive a transport vehicle or PSV under the same category without any specific endorsement and the same parity should follow in case of HGV.
In the aforesaid context, in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), it was also observed in para 41 as under:
"(41) If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately."Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 37 of 44
14. In the present case, admittedly, on the date of accident Respondent No.1 Waseem Haq/driver of the offending vehicle was in possession of a valid and effective driving licence for LMV & HGV in view of testimony of R3W1 & R3W2 though the endorsement on the driving licence for driving a heavy passenger vehicle is disputed. I am of the considered opinion that in view of judgment passed in New India Assurance Co. Ltd. v. Krishna and others, 2016 ACJ 1214 by the Hon'ble High Court of Uttarakhand at Nainital, Respondent No.1 was competent to drive a heavy passenger vehicle and the insurance company cannot be exonerated to pay any compensation on this ground.
15. Apart from above, it needs to be noticed that the evidence on record does not point out in case Respondent No.2 Mohan Lal/owner of the offending vehicle was aware if the endorsement as to 'HPV' on the driving licence Ex.R3W1/DA issued to Respondent No.1 had been interpolated though the licence had been clearly issued by the concerned Licencing Authority, Bijnor, U.P. Merely proving that the licence had an endorsement of HPV which was found to have been interpolated does not lead to an inference that there was a willful breach on the part of the insured with respect to the conditions of the policy or the same was to his knowledge. As held in United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC), the owner of the vehicle does not have to make full fledged inquiry with respect to the validity of the driving licence except at Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 38 of 44 the commencement of the employment unless and until it is specifically brought to the notice of the employer that the driver is driving with a fake driving licence or an expired driving licence. Reference may be further made to judgment in the case of National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), where in para 102, the court held as follows:
"(102) The summary of our findings to the various issues as raised in these petition is as follows:
xxx xxx xxx
(iii) The breach of policy conditions, i.e., disqual ification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of section 149, has to be proved to have been com mitted by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving li cence or disqualification of the driver for driving at the relevant time, are not in themselves de fences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to ex ercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehi cles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies, however, with a view to avoid their liability must not only estab lish the available defence(s) raised in the said proceedings but must also establish 'breach' on the art of the owner of the vehicle, the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inas much as the same would depend upon the facts and circumstances of each case.Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 39 of 44
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid li cence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condi tion of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise) fulfills the requirements of law or not will have to be determined in each case."
The decision of Hon'ble Supreme Court in the case of Swaran Singh, 2004 ACJ 1 (SC), came to be considered in the case of Laxmi Narain Dhut, 2007 ACJ 721 (SC) and in the said judg- ment in para 11 (iii), it was observed as under:
"11 (iii)....Mere absence, fake or invalid driving li- cence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the in- sured was guilty of negligence and failed to exer- cise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not dis- qualified to drive at the relevant time."
Hon'ble Supreme Court in the case of Pepsu Road Trans- port Corporation v. National Insurance Co. Ltd., 2013 ACJ 2440 (SC), after considering the decisions of the Hon'ble Apex Court in Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 40 of 44 the case of Swaran Singh, 2004 ACJ 1 (SC), as well as Laxmi Narain Dhut, 2007 ACJ 721 (SC), in para 8 observed and held as under:
"(8) In a claim for compensation, it is certainly open to the insurer under section 149 (2) (a) (ii) to take a defence that the driver of the vehicle in-
volved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence pos- sessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and compe- tent to drive the vehicle. The owner cannot be ex- pected to go beyond that,to the extent of verifying the genuineness of the driving licence with the li- censing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or there- after the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the al- legation that the licence issued to the driver em- ployed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the li- cence from the licensing authority. That is what is explained in Swaran Singh's case (supra). If de- spite such information with the owner that licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circum- stances, the insurance company is not liable for the compensation."
Reliance may further be placed upon New India Assur- ance Co.Ltd. v. Nafis Ahmed Abdul Razaq Ansari and others, Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 41 of 44 2015 ACJ 1955 (Division Bench judgment of Hon'ble High Court of Gujarat). In the aforesaid case, the insurance company exam- ined the concerned RTO to prove that the driver was holding a fake driving licence and it was contended that in view of violation of conditions of insurance policy the insurance company cannot be held liable to pay the compensation. It was noticed that neither the driver nor the owner of the offending vehicle contested the claim petition and did not step into witness box. Further, the insurance company did not try to examine driver and owner of the offending vehicle as witnesses. It was held that on the aforesaid ground alone the insurance company cannot be absolved from its liability to pay the compensation since the insurance company failed to prove that the owner of the offending vehicle involved in the accident had any knowledge that driver was holding a fake licence and despite that he employed the driver and/or at the time of taking the insur- ance, the insurance company drew the attention of the owner that driver was having a fake driving licence and despite the same the owner did not take the proper care to verify the genuineness of the driving licence. Reliance was also placed upon the judgment of Hon'ble Supreme Court in Pepsu Road Transport Corporation v. National Insurance Co. Ltd., 2013 ACAJ 2440 (SC).
The present case is squarely covered by the judgment in New India Assurance Co.Ltd. v. Nafis Ahmed Abdul Razaq Ansari and others, 2015 ACJ 1955 (Division Bench judgment of Hon'ble High Court of Gujarat) and Pepsu Road Transport Corporation (supra). In the facts and circumstances and in view of the authorities as discussed above, the insurance company cannot be absolved and is liable to pay the Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 42 of 44 compensation without any rights to recovery from the insured.
It is further held that Respondent No.1 (driver), Re- spondent No.2 (owner) and Respondent No.3 (insurer) of the of- fending vehicle are jointly and severally liable to make the pay- ment of compensation to the petitioners/claimants.
16. Relief Since the offending vehicle was duly insured, Respondent No.3/United India Insurance Company Ltd. is directed to deposit the award amount of Rs.12,83,816/- with interest @ 9% per annum from the date of filing of claim petition i.e. 07.12.2013 till realization with Nazir of this Court within 30 days under intimation to the petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgment be sent to Respondent No.3/ United India Insurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 43 of 44 of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court on 29th July, 2016 (Anoop Kumar Mendiratta) Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.462/13 (New Suit No.357068/16)Kamlesh Upadhyay & Anr.vs. Waseem Haq & Ors. Page 44 of 44