Satdev Singh vs Rajiv Sharma on 23 December, 2011

[Cites 18, Cited by 0]

Delhi High Court

Satdev Singh vs Rajiv Sharma on 23 December, 2011

1. These are two connected Appeals arising out of the award dated 09.01.2004 passed by the Motor Accident Claims Tribunal (the Tribunal) whereby a compensation of ` 4,18,570/- with interest @ 6% per annum was awarded by the Tribunal in favour of the Claimants.

MAC APP 145/2004 & 616/2007 Page 1 of 26

2. MAC APP. No.145/2004 is filed by the Claimants i.e. legal heirs of the deceased Smt. Leelawati whereas MAC APP.No.616/2007 is filed by Hariom Tyagi, the owner of the bus number UP-14K-7269 which caused the accident resulting in death of Smt. Leelawati.

3. For the sake of convenience I will refer the parties by their nomenclature in MAC APP. No.145/2004.

MAC APP. 145/2004

4. My task is easier as Respondent No.2 Hariom Tyagi (Appellant in MAC APP. No.616/2007) has not challenged the finding (of negligence in driving the offending bus), reached by the Tribunal. Appellants' grievance is :-

(i) The Tribunal applied the multiplier of 8 considering the deceased's age (i.e. 56 years). The multiplier of 9 should have been taken.

(ii) The Tribunal deducted one-third towards personal living expenses of the deceased. It should have been one-

fourth, considering the large family.

(iii) Though the deceased was in permanent government service, yet her future prospects were not taken into consideration, and MAC APP 145/2004 & 616/2007 Page 2 of 26

(iv) The amount awarded towards the funeral expenses i.e. ` 5,000/- was on the lower side. The compensation towards the loss of love and affection and the interest awarded were also on the lower side.

5. Before I advert to the contention raised on Appellants' behalf, it would be fruitful to refer to the judgment of Karnataka High Court in A.Manavalagan v. A. Krishnamurthy and Ors., 2005 ACJ 992; where it was held that when there is claim by the dependents on account of loss of dependency, the loss of dependency has to be calculated and a notional sum is to be awarded under the head of loss to estate. On the other hand, where the claim by the legal representatives (LRs) of the deceased is not on account of loss of dependency then the basis for award of compensation is the loss to the estate i.e. the loss of savings by the deceased. I extract the reasoning of the Karnataka High Court in A. Manavalagan (supra) hereunder for ready reference:-

12. In Gobald Motor Service v. R.M.K. Veluswami, 1958-65 ACJ 179 (SC), referring to Sections 1 and 2 of the Fatal Accidents Act (Sections 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections.

It was held that while under Section 1 (new Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate; whereas under Section 1, damages are payable in MAC APP 145/2004 & 616/2007 Page 3 of 26 respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Supreme Court held that persons who claim benefit under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon different causes of action. The Supreme Court held:

"The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand AIR 1925 Lahore 636. In that case, Sri Shadi Lal, CJ observed thus:

"The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate. An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). X-Y, i.e., Z is the amount he saves every year. The capitalised value of the MAC APP 145/2004 & 616/2007 Page 4 of 26 income spend on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income."

"The rights of action under Section 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the Sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication MAC APP 145/2004 & 616/2007 Page 5 of 26 of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of personal loss under Section 1 of the Act, the portion shall be excluded in giving compensation under Section 2 and vice versa."

The principle was reiterated in C.K. Subramania Iyer v. T. Kunhikuttan Nair, 1970 ACJ 110 (SC) thus:

"Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate..."

13. The Supreme Court has evolved the multiplier method for assessment of damages, based on the common law principles of torts, the provisions of the Fatal Accidents Act, 1855 and the provisions of Motor Vehicles Act. In General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, AIR 1994 SC 1631, the Supreme Court clarified the position thus:

"The proper method of computation is the multiplier method. Any departure, except in exceptional and extra- ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110B of the Motor Vehicles Act, 1939, insofar MAC APP 145/2004 & 616/2007 Page 6 of 26 as it envisages the compensation to be 'just', the Statutory determination of 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplies method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainly of the awards".

The Supreme Court relied on the observations of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601:

"The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages, all circumstances which may be legitimately pleaded in diminution of the damages must be considered... The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever source comes to him by reason of the death.

The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic MAC APP 145/2004 & 616/2007 Page 7 of 26 figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties..."

Adopting and adapting the said principle, the Supreme Court further held thus in Susamma Thomas (supra), regarding calculation of loss of dependency:

"The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct there from such part of his income as the deceased was accustomed to spend upon himself, as regards both self- maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of year's purchase.

The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest MAC APP 145/2004 & 616/2007 Page 8 of 26 appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last.

The multiplier represents the number of years' purchase on which the loss of dependency is capitalized.... Usually in English Courts the operative multiplier rarely exceeds 16 at maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up."

A Division Bench of this Court in H.T. Bhandary v. Muniyamma, ILR 1985 KAR 2337, explained how the multiplier should be selected in each case:

"This brings down the basic multiplies to the operative multiplies of 16. This multiplier of 16 would by the highest applicable. If the deceased person was, say between 18 and 22 years this multiplier 16 would be appropriate. It will naturally come down according to the age of the deceased at the time of death increases. As a rough and ready estimate, it may broadly be estimated that the multiplier goes down by one count for the increase of the age of the deceased by every five years."

14. The principles laid down in Susamma Thomas, (supra) in regard to multiplier method were MAC APP 145/2004 & 616/2007 Page 9 of 26 reiterated by the Supreme Court in U.P. State Road Transport Corporation v. Trilok Chandra, 1996 ACJ 831 (SC):

"We thought it necessary to reiterate the method of working out just compensation because, of late, we have noticed from the awards made by Tribunals and Courts and that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation.... Under the formula advocated by Lord Wright in Davies, (1942) AC 601, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."

However the maximum multiplier which was indicated as 16 in Susamma Thomas was revised as 18 having regard to the changes brought in by Amendment Act 54 of 1994. The principles in Susamma Thomas have been repeatedly reiterated by the Supreme Court in several decisions, one of the latest being Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53 (SC).

15. Where a breadwinner dies and his wife, children and parents, who are normally depending MAC APP 145/2004 & 616/2007 Page 10 of 26 on the deceased, claim compensation, the method of computation is now standardized. The Court first finds out the income of the deceased, then estimates how much he would have spent for himself (for his personal and living expenses). The balance is taken as the contribution to the dependents (family). The said estimate of the amount contributed to the family per year, which is the annual dependency, becomes the basis for arriving at the compensation. It is converted into a lump sum by multiplying it by the number of years during which he would have contributed to the family (duly scaled down to take several uncertainties into account). Thus, the annual dependency becomes the multiplicand and the number of years' purchase becomes the multiplier. As it is well settled that there cannot be a duplication of award under Sections 1A and 2 of the FA Act, where the main head for award of compensation is loss of dependency, the Courts will not duplicate the award under the head of loss of estate. Instead a conventional sum (Say Rs. 10,000/-) is awarded under the head of loss of estate, where the income has already been taken note of under the head of loss of dependency.

16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the MAC APP 145/2004 & 616/2007 Page 11 of 26 estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.

17. In Gammell v. Wilson, 1982 ACJ 409 (HL, England), the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. Gammel was relied on in Susamma Thomas (Supra) and by the Madhya Pradesh High Court in Ramesh Chandra v. M.P. State Road Transport Corporation, 1983 ACJ 221 (MP).

18. In Madhya Pradesh State Road Transport Corporation v. Sudhakar, 1977 ACJ 290 the Supreme Court considered a case where an employed husband claimed compensation in regard to the death of his wife who was employed on a monthly salary of Rs. 200/- to Rs. 250/-. The Supreme Court observed:

"...we find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss. It is not impossible that she would have contributed half of her salary to the household, but then MAC APP 145/2004 & 616/2007 Page 12 of 26 it is reasonable to suppose that the husband who was employed at slightly higher salary would have contributed his share to the common pool which would have been utilised for the lodging and boarding of both of them. We do not therefore think it is correct to assume that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs. 100/- every month to the common pool, then his loss would be roughly not more than Rs. 50/-per month...."

19. We may summarise the principles enunciated, thus:

(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled.

In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom MAC APP 145/2004 & 616/2007 Page 13 of 26 compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.

(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.

(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the MAC APP 145/2004 & 616/2007 Page 14 of 26 deceased. A conventional sum for loss of expectation of life, is added.

(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.

20. The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.

(i) If the family of the deceased consists of a dependant wife and child, normally one-third will be deducted towards the personal and living expenses of the deceased. The balance of Rs. 6000/- per month (or Rs. 72000/- per annum) will be treated as contribution to the MAC APP 145/2004 & 616/2007 Page 15 of 26 dependent family. The loss of dependency will be arrived by applying a multiplier of 14. The loss of dependency will be Rs. 10,08,000/- plus Rs. 10,000/- under the head of loss of Estate.

(ii) If the family of the deceased was larger, say consisting of dependent parents, wife and two children, necessarily the deceased would spend more on his family and the deduction towards personal and living expenses of the deceased will shrink to one-fifth instead of one-third (Note: In Gulam Khader v. United India Insurance Co., Ltd., - ILR 2000 Kar 4416 details of this illustration have been given). Therefore the deduction toward personal and living expense would be Rs. 1800/- per month (one-fifth of Rs. 9000/-) and contribution to the family would be Rs. 7200/- per month or Rs. 86,400/- per annum. Thus loss of dependency will be Rs. 12,09,600/- (by applying the multiplier of 14). The award under the head of loss of estate would be Rs. 10000/-.

(iii) If the deceased was a bachelor with dependent parents aged 65 and 60 years, normally 50% will be deducted towards personal and living expenses of the deceased. This is because a bachelor will be more care free as he had not yet acquired a wife or child and therefore would tend to spend more on himself. There was also a possibility of the bachelor getting married in which event the MAC APP 145/2004 & 616/2007 Page 16 of 26 contribution to parents will get reduced. Therefore the contribution to the family (parents) will be Rs. 4500/- per month or Rs. 54000/- per annum. As the multiplier will be 10 with reference to age of the mother, the loss of dependency will be Rs.

5,40,000/-. Loss of Estate would be a conventional sum of Rs. 10,000/-. Note: The above three illustrations relate to cases where the claimants are dependants. The said illustration demonstrate that even though the income of the deceased and age of the deceased are the same, the 'loss of dependency' will vary, having regard to the number of dependants, age of the dependants and nature of dependency. The ensuing illustrations relate to cases where the legal heirs of the deceased are not dependants.

(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the MAC APP 145/2004 & 616/2007 Page 17 of 26 balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs. 2250/- per month or Rs. 27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.

Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess v. Florence Nightingale Hospital 1955 (1) Q.B. 349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs.

1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum).

MAC APP 145/2004 & 616/2007 Page 18 of 26

Therefore, the loss of dependency would be 12000x14=168,000/- and loss to estate would be 36000x14=504,000/-. In all Rs.

6,72,000/- will be the compensation.

(v) If the deceased was a bachelor and the claimants are two non-

dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/-

per month), the annual savings would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/- per annum.

Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant MAC APP 145/2004 & 616/2007 Page 19 of 26 brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."

6. In this case the claim is by the three sons and one daughter. All of them are major. Age of one of the claimants i.e. Satya Dev Singh on the date of recording his evidence before the Tribunal is mentioned as 36 years (i.e. in the year 2002). This would mean that he was aged about 34 years on the date of the accident. There is not even a whisper that the claimants were not gainfully employed or that they were financially dependent on her. The judgment in A. Manavalagan (supra) was relied on by this Court in Keith Rowe v. Prashant Sagar & Ors., MAC APP. No.601/2007, decided on 15th January, 2010.

7. On the basis of the principles laid down in A. Manavalagan (supra) and Keith Rowe (supra), the Appellants were not entitled to any compensation under the head of loss of dependency rather they were entitled to compensation under the head of loss to estate.

8. If the deceased would have saved one-third of her income, the loss to estate would come to ` 1,99,260/- (1845 x 12 x 9). After adding the medical expenses of ` 79,390/- and notional sum towards loss of love and affection and funeral expenses, the MAC APP 145/2004 & 616/2007 Page 20 of 26 overall compensation comes to ` 3,03,650/-. (i.e. ` 1,99,260/- + 79,390/- + 20,000/- + 5,000/-).

9. The Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 laid down the following principles for grant of compensation in death cases:-

         "I.      MULTIPLIER
                                    Age of the            Multiplier
                                   deceased (in
                                      years)
                                      15-20                  18
                                      21-25                  18
                                      26-30                  17
                                      31-35                  16
                                      36-40                  15
                                      41-45                  14
                                      46-50                  13
                                      51-55                  11
                                      56-60                  09
                                      61-65                  07
                                    Above 65                 05

         II.      DEDUCTION FOR PERSONAL AND LIVING
                  EXPENSES
         Deceased - unmarried
                  (i)         Deduction towards personal expenses.
                                                      :     1/2 (50%)
                  (ii)

Deduction where the family of the bachelor is large and dependent on the income of the deceased.

                                              :     1/3rd (33.33%)
         Deceased - married



MAC APP 145/2004 & 616/2007                                          Page 21 of 26
                   (i)         2 to 3 dependent family members.       :            1/3rd
                  (ii)        4 to 6 dependent family members        :            1/4th
                  (iii)       More than 6 family members             :            1/5th
                  (iv)        Subject to the evidence to the
                              contrary.    :                   Father, brother and
                                                               sisters will not be
                                                               considered as
                                                               dependents.
         III.     FUTURE PROSPECTS

         (i)      Permanent job     :            Actual salary - tax + 50%
                  Below 40 years of age          towards future prospects.

         (ii)     Permanent job    :             Actual salary - tax + 30%
                  Between 40-50 years            towards future prospects.

         (iii)    More than 50 years with:              Actual salary only.
                  permanent job.                        No addition for future
                                                        prospects.

         (iv)     Deceased employed at a fixed: Only actual income to be

Salary (without provision for taken. No addition. Annual increments)"

10. Though There is no evidence that the Appellant Smt. Raj Kumari was dependent on the deceased, since her husband's name is not mentioned, the loss of dependency, after taking 50% of the deceased's income and deduction made towards her personal expenses would come to ` 2,98,836/- (i.e. ` 5534/- x 12 - 50% x 9).

11. In case of one dependent 50% of the income has to be deducted towards personal expenses, on applying the multiplier of 9, the MAC APP 145/2004 & 616/2007 Page 22 of 26 loss of dependency would come to ` 2,98,836/-. The overall compensation of ` 4,18,570/- is higher than the compensation which could be awarded to the Appellants either under the head of loss to estate if none of the Appellants were financially dependent or on account of loss of dependency, if the daughter was financially dependent. The impugned award, therefore, does not call for any interference as the compensation awarded was just and proper.

12. MAC APP. No.145/2004 filed by the Claimants is accordingly dismissed. No costs.

MAC APP. 616/2007

13. Appellant Hariom Tyagi's grievance is that although the driver of the bus i.e. Respondent No.1 Rajeev Sharma had a valid driving licence to drive a transport vehicle i.e. the bus, yet the Tribunal illegally granted the recovery rights against him (Respondent No.2).

14. The Tribunal while fixing the responsibility of Respondent No.2 (the Appellant in MAC APP. No.616/2007) observed as under:-

"16. Admittedly, the said vehicle was insured with respondent no.3 and therefore, respondent no.3 is liable to make the payment of said amount of compensation to the petitioners for and on behalf of respondent no.1 & 2. Respondent no.3 had proved the insurance policy Ex.R3W1/A as well as the report of the licensing authority Ex.R3W2/1 and the photocopy of the driving MAC APP 145/2004 & 616/2007 Page 23 of 26 license is Ex.R3W2/2. According to the said license respondent no.1 was permitted to drive the LMV (PE) and permission for HTV was also made on 08.08.1996 but there is no authorization in the said license to ply the HMV (Heavy Motor Vehicle), and the bus was a heavy passenger vehicle which was used for carrying the passengers and therefore, I find that respondent no.1 was not having a valid and effective driving license to ply the HMV for passengers for which a separate license has to be obtained in accordance with the provisions of the Act. Accordingly, I find that the license produced by respondent no.1 was not valid and effective to ply the said bus at the said date, time and place. Therefore, I find that respondent no.3 has established its right of recovery against respondent no.2 who had contravened the terms and conditions of the insurance policy by permitting respondent no.1 to drive the said bus without a valid and effective driving license. So this issue stands decided in favour of the petitioners and respondent no.3 and against respondent no.1 & 2."

15. In order to prove that the licence held by Respondent no.1 was not valid and effective for driving a bus, Respondent no.3 Insurance Company examined Rajinder Makhija who deposed that the insurance company got the licence of the driver (Rajeev Sharma) verified from the Licensing Authority, Meerut. He proved the investigator's report Ex.R3W1/B. The report Ex.R3W1/B clearly shows that Respondent no.1 Rajeev Sharma held a driving licence number R-24710/MRT/89. The licence was issued on 27.06.1989 for driving LMV (PE) only. The said licence was renewed on 24.05.1996. There was an endorsement MAC APP 145/2004 & 616/2007 Page 24 of 26 on the licence w.e.f. 08.083.1996 whereby Respondent no.1 was authorized to drive a transport vehicle.

16. R3W2 V.K.Tandon's testimony also makes it very clear that Respondent no. 1 was entitled to drive HTV (Heavy Transport Vehicle). In cross-examination on behalf of the Appellants, the witness was categorical that there was no prohibition in the driving licence for driving a bus carrying passengers as per the licence Ex.R3W2/2.

17. Though, the Tribunal noticed that Respondent no.1 had a valid driving licence for HTV on 08.08.1996 which was renewed on 23.08.1999, but even then it went on to add that there was no authorization in the licence to drive HMV. The licence Ex.R3W2/2 shows that Respondent no.1 was competent to drive HTV and the report of the investigator's appointed by the Insurance Company itself reveals that there was an endorsement for driving transport vehicle. It is not fathomable as to how the Tribunal held that HTV or for that matter the heavy transport vehicle's licence would not authorize Respondent no.1 to drive a bus.

18. In view of the licence placed on record, the investigator's report and specific admission by R3W2 (produced by respondent no.3, the Insurance Company), that Respondent no.1 was entitled to drive a bus carrying passengers, the Appeal filed by Respondent no.2 Hariom Tyagi, therefore, has to be allowed and the MAC APP 145/2004 & 616/2007 Page 25 of 26 impugned award so far as it grants recovery rights to Respondent no.3 Insurance Company has to be set aside.

19. In view of the above, MAC APP. No.616/2007 is allowed. No costs.

(G.P. MITTAL) JUDGE DECEMBER 23, 2011 vk MAC APP 145/2004 & 616/2007 Page 26 of 26

Unlock Advanced Research with PRISMAI

Delhi High Court