Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Mathu Ram And Others on 9 January, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(MVA) No.306 of 2014 a/w FAO(MVA) Nos. 317 to 323 of 2014 & .
328 of 2014.
Judgment reserved on : 28.12.2017.
Date of decision: 9th January, 2018.
1. FAO(MVA) No.306 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Mathu Ram and others
r ....Respondents.
2. FAO(MVA) No.317 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Guddi Devi and others ....Respondents.
3. FAO(MVA) No.318 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Sanjay Kumar and others ....Respondents.
4. FAO(MVA) No.319 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Urmila Devi and others ....Respondents.
5. FAO(MVA) No.320 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Jamku Devi and others ....Respondents.
6. FAO(MVA) No.321 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Mathu Ram and others ....Respondents.
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2
7. FAO(MVA) No.322 of 2014.
.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Roshni Devi and others ....Respondents.
8. FAO(MVA) No.323 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Jagat Ram and others ....Respondents.
9. FAO(MVA) No.328 of 2014.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Rowa Devi and another ....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Appellant (s) : Mr.Ashwani K.Sharma, Senior Advocate with Mr.Jeevan Kumar, Advocate.
For the Respondents : Mr.Manoj Chauhan, Advocate, for respondents No.1 to 6 in FAO (MVA) Nos.306 and 318 of 2014, for respondents No.1 to 3 in FAO(MVA) Nos.317, 319 and 321 of 2014, for respondents No. 1 to 4 in FAO(MVA) Nos.320 and 322 of 2014, for respondents No.1 to 7 in FAO(MVA)No. 323 of 2014.
Mr.B.R.Sharma, Advocate, for respondent No.7 in FAO(MVA) Nos.306 and 318 of 2014, for respondent No.6 in FAO(MVA) No.321 of 2014, for respondent No.4 in FAO(MVA) Nos. 317 and 319 of 2014, for respondent No.5 in FAO(MVA) Nos. 320 and 322 of 2014, for respondent No.8 in FAO(MVA) 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 3 No.323 of 2014 and for respondent No.2 in FAO(MVA) No. 328 of 2014.
None for respondent No.1 in FAO .
(MVA) No.328 of 2014.
Tarlok Singh Chauhan, Judge.
Since common question of fact and law arises for consideration in all these appeals, they were taken up together for hearing and all the issues, except the quantum of compensation, are being decided through common reasoning.
2. Shorn of all unnecessary details, the facts giving rise to the claim petitions are that the claimants herein happened to be the legal heirs and dependents of the deceased(s), who were travelling in Mahindra Max Pickup No.HP-09-2290, which was going to Village Sangalwara, Tehsil Thunag, District Mandi and fell 100-150 metres down resulting in death of all of its occupants. All the claim petitions were filed with the allegations that the accident had occurred on account of rash and negligent driving on the part of the driver.
3. The owner of the vehicle resisted and contested the petition by filing reply wherein the factum of accident and death of the occupants was not denied, but it was not denied for want of knowledge that the accident had taken place on account of rash and negligent driving on the part of his driver.
4. The Insurance Company also resisted and contested the petitions by filing reply wherein it sought to avoid its liability on the ground that the deceased were travelling as gratuitous passengers in the offending vehicle and that the driver of the said vehicle was not ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 4 possessed of valid and effective driving licence at the time of accident. It was also submitted that the offending vehicle was also being plied in .
contravention to the terms and conditions of the insurance policy.
5. For the convenience and proper appreciation and also to avoid repetition of the issues framed by the learned Tribunal, the deceased is being referred to as 'a', whereas, the driver is being referred to as 'b'.
6. In FAOs(MVA) No. 306, 317, 318, 319, 321 and 322 of 2014, the learned Tribunal on 05.03.2010 framed the following issues:-
"1.
Whether 'a' died due to the rash and negligent driving of vehicle No. HP-09A-2290 by the driver('b') as alleged? OPP.
2. If issue No.1 is proved in affirmative, whether the petiti oners are entitled to the compensation as claimed. If so, its quantum and from whom? O.P.Parties.
3. Whether the petition is not maintainable in the present form?
OPR.
4. Whether the petitioners have a cause of action? OPP.
5. Whether the vehicle was bei ng driven in violation of the terms and conditions of the of the insurance policy as alleged. If so, its effect? OPR-2.
6. Whether 'a' was travelling in the vehicle as a gratuitous/unauthorized passenger as alleged. If so, its effect? OPR-2.
7. Whether 'b' was not holding and possessing a valid and effective driving licence to drive the vehicle as alleged. If so, its effect? OPR-2.
8. Relief."
In FAOs (MVA) No. 320 and 323 of 2014, the learned Tribunal on 07.04.2011 framed the following issues:-
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 5"1. Whether on account of rash and negligent driving of driver of vehicle No. HP-09-2290 on 06.06.2009 resulting in death of 'a'? OPP.
.
2. If issue No.1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP.
3. Whether the respondent No.1 was not possessing valid registration certificate? OPR.
4. Whether the driver of the vehicle No.HP-09-2290 was not holding valid and effective driving licence at the time of accident? OPR.
5. Whether the ill fated vehicle was being used for hire and reward purpose? OPR.
6. Whether 'a' was travelling in ill fated vehicle as gratuitous passenger? OPR.
7. Relief."
Whereas, in FAO (MVA) No.328 of 2014, the learned Tribunal on 02.09.2011 framed the following issues:-
"1. Whether the death of 'b' was caused due to use of vehicle No. HP-09-2290? OPP.
2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom? OPP.
3. Whether the driver of vehicle was not holding valid and effective driving licence to drive the vehicle at the time of accident? OPR.
4. Whether the driver was driving the vehicle without registration-cum-fitness certificate and route permit? OPR.
5. Whether Mahindra Max was plied as commercial vehicle for hire and reward and gratuitous passengers were travelling in the vehicle at the time of accident? OPP.
6. Relief."
7. It would be evident from the aforesaid issues that by far and large, the issues so framed in each of the cases are virtually the same.
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 6The learned Tribunal after recording the evidence and evaluating the same allowed each of the petitions by awarding the compensation as .
well as interest ranging from 7.5% to 9% from the date of filing of the claim petitions till the payment thereof and the liability to pay the compensation was fastened upon the Insurance Company as the vehicle in question was duly insured with it.
8. Aggrieved by the awards so passed, the Insurance Company has filed the instant appeals on the ground that the driver of the vehicle was not possessed of a valid and effective driving licence as it was proved on record that the licence of the driver was issued on 08.04.2004 and was valid only upto 07.04.2009 and even though the same was later renewed by the Licensing Authority but that was only with effect from 10.06.2009 to 09.06.2029, whereas, in the interregnum accident took place on 06.06.2009 when the driver did not have a valid and effective driving licence and this being in clear violation of the driver's clause of policy, therefore, the Insur ance Company was not liable to indemnify the owner.
9. Apart from the above, the quantum of compensation in each of the case is also disputed as being on the higher side.
10. I have heard Shri Ashwani K.Sharma, Senior Advocate, assisted by Shri Jeevan Kumar, Advocate, for the Insurance Company and Shri Manoj Chauhan, Advocate, for the claimants and Shri B.R.Sharma, Advocate, for the owner of the vehicle.
11. Adverting to the first submission regarding validity of the driving licence, it would be noticed that the driving licence was initially issued on 08.04.2004 and was valid only upto 07.04.2009. However, it ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 7 has come on record that the driver of the vehicle has applied for renewal of driving licence on 06.04.2009 i.e. a day earlier to the expiry of the date .
of licence and the licence came to be renewed by the Licensing Authority on 10.06.2009 and was valid upto 09.06.2029. It is in this context that the learned Senior Counsel for the appellant would vehemently argue that as on the date of accident i.e. 06.06.2009, the driver of the vehicle was not possessed of a valid and effective driving licence and, therefore, the appellant-Company was not bound and could not be legally held liable to indemnify the insured. He would further contend that mere filing of the application for renewal is not enough as the same was required to be accompanied by requisite fees and would place reliance upon Section 15(1) of the Motor Vehicles Act, 1988, (prior to its amendment in 2015) and Rule 18 of the Central Motor Vehicles Rules, 1989, coupled with Form-9 which are reproduced hereinbelow: -
"15. Renewal of driving licences.-(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:
Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section(3) of section 8, and the provisions of sub-section(4) of section 8 shall, ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 8 so far as may be, apply in relation to every such case as they apply in relation to a learner's licence."
.
"18. Renewal of driving licence.-(1) An application for the renewal of a driving licence shall be made in Form 9 to the licensing authority having jurisdiction over the area in which the applicant ordinarily resides or carries on business and shall be accompanied by-
(a) appropriate fee as specified in rule 32,
(b) three copies of the applicant's recent2 [passport size photograph], if renewal is to be made in Form 6,
(c) the driving licence,
(d) the medical certificate in 2(Form 1A) (2) Where the driving licnece authorities the holder of such licence to drive a transport vehicle as well as any other vehicle, then the licensing authority shall, subject to the production of medical certificate, renew such licence for the appropriate period as specified in sub-section(2) of section 14.3
[(3) Where the licensing authority renewing the driving licence is not the licensing authority who issued the driving licence the fact of the renewal shall be intimated to the licensing authority who issued the driving licence:
Provided that in case the application is for issuance of a duplicate driving licence which has been lost, torn or mutilated such that the identification or authenticity of the document cannot be reasonably established, the licensing authority receiving such application shall on confirmation from the original issuing authority, issue the duplicate driving licence;
Provided also that if such confirmation is not received within 60 days, duplicate licence shall be issued, without waiting for the confirmation.]"
"Form 9 [See rule 18(1)] FORM OF APPLICATION FOR THE RENEWAL OF DRIVING LICENCE ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 9 I,Shri/Smt./Kumari....................................Son/wife/daughter of ................ hereby apply for the renewal of my driving licence which is attached and particulars of which are as follows:
.
Space for 1 [passport size photograph]
(a) Number ..................................
(b) Date of issue ..................................
(c) Licensing authority by which ..................................
the licence was issued
(d) Licensing authority by which ....................................
the licence was last renewed No. and date of renewal ....................................
(e) Class of vehicles authorized .................................... to be driven
(f) Date of expiry of licence to ..................................... Drive
(i) transport vehicle .....................................
(ii) vehicles other than transport .....................................
Vehicles My present address is .......................................
....................................... .......................................
If this address is not entered on the licence, I do/do not wish that it should be so entered.
If the licence is not attached, reasons why it is not available? .................................................................................. ...................................................................................
If the licence was not renewed within thirty days of the date of expiry, reasons for delay.......................................................
The renewal of licence has not been refused by any licensing authority.
I have not been disqualified for holding or obtaining a driving licence. My licence has not been revoked.
I enclose a medical fitness certificate in 1[Form 1A], I enclose three copies of my recent photograph(5 cms.by 6 cms.) ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 10 I have paid the fee of Rs................
I hereby declare that to the best of my knowledge and belief the particulars given above are true.
.
Date.............. Signature or thumb impression of Applicant.
Name..................................... Address...................................
....................................".
12. As observed earlier, it is not in dispute that the driver of the vehicle was already possessed of a driving licence that was valid from 08.04.2004 to 07.04.2009 and the driver of the vehicle had thereafter submitted his application for renewal on 06.04.2009 which was before the date of expiry of renewal of the licence and the same was, therefore, still valid as on the date of submission of application. This application was presented by the office before the Licensing Authority on 23.04.2009 as is evident from the statement of Naresh Kumar, Junior Assistant of RLA, who, in turn' marked the application for verification and the same eventually came to be renewed only with effect from 10.06.2009. As regards fees, even though there is an endorsement on the application regarding payment of Rs. 300/-. However, no credence can be lent to the said endorsement in view of the statement of RW -4, who has clearly proved on record the receipt of payment of Rs.300/- towards renewal of the licence which was paid only on 10.06.2009.
13. At this stage, it needs to be noted that in Form 9 (supra) so prescribed in the Central Motor Vehicles Rules, there exists a column pertaining to the payment of fees which reads as under:-
"I have paid the fee of Rs............"
Whereas, in the form that was supplied to the driver and has been duly exhibited on record, it would be noticed that the said form does not ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 11 contain any column with regard to payment or deposit of fees, as would be evident from such form which is extracted below: -
.
"Renewed upto HP-09-Theog Dt.5-4-2004.
FORM-9 [See rule (18) 1] Form of application for the renewal of Driving Licence I,Shri/Smt./Kumari...Naresh Kumar...Son/wife/ daughter of... Sadhu Ram..V&PO Nagan, Teh. Space for Kotkhai hereby apply for the renewal for photograph of the size 5 centimetres my driving Licence which attached and by 6 centimetres particulars of which are as follows:
(a) Number ......Theog.........(b) Date of issue....8-4- ..................................
(c) Licensing authority by which the licence was issued...SDM Theog
(d) Licensing authority by which ....................................
the licence was last renewed No. & date of renewal 7-4-09.
(e) Class of vehicle authorized to be driven : L.M.V. L.T.V............
(f) Date of expiry of licence of driver 7-4-09....................
(i)Transport vehicle : Private.....................................
(ii) vehicle other than transport vehicle.................
My present address is : V& PO Nagan, Tehsil Kotkhai...........
If this address is not entered on the licence, I do/do not wish that it should be so entered.
If the licence is not attached, reasons why it is not available? .................................................................................. ...................................................................................
If the licence was not renewed within thirty days of the date of expiry, reason for delay....................................................... ......................................................................................
The renewal of licence has not been refused by any licensing authority.
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 12I have not been disqualified for holding or obtaining a driving licence. My licence has not been revoked. I enclose a medical fitness certificate in Form 1.
.
I enclose three copies of my recent photograph(5 cms.by 6 cms.) I hereby declare that to the best of my knowledge and belief the particulars given above are true.
Sd/-
Signature or thumb impression of applicant.
Shri Naresh Kumar s/o.
Date: 6-4-09."
14. Now, in absence of any column or provision for the deposit of the amount towards renewal of the licence, what appears to be the practice being followed by the RLA was that it was after completion of the procedural formalities that the fees was being charged at the time of issuance of the licence. Now, in case there was no practice, procedure or even a column in Form 9 regarding deposit of the amount along with the application form, can it still be canvassed that the fees was required to be deposited along with form. To my mind, this would amount to asking the driver to perform the impossible wherein the legal maxim "lex non cogit ad impossibillia" which means "that no body can be asked to do a thing which is impossible to perform" would apply on all force".
15. That apar t, in case the application was incomplete, the same in terms of Section 15(1) of the Motor Vehicles Act cannot be said to have been submitted after the due date or beyond time. In case the application for renewal was not complete and without so called requisite fees, it was the duty of the authority concerned to reject the application and inform the applicant accordingly which admittedly has not been done in the instant case. Thus, the delay in renewing the licence is not on the part of the driver, but is solely attributable to the authority concerned.
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 1316. In drawing such conclusion, I find support from a judgment by a Co-ordinate Bench of this Court (Hon'ble Justice Mansoor Ahmad .
Mir, Chief Justice) as his Lordship then was, in Lalit Kumar versus Sanjeev Kumar and others 2016 (3) ILR HP 1731 wherein while dealing with an identical issue, it was observed as under:-
"14. The driver of the offending truck had applied for renewal of the driving licence on 7th May, 2007, which had expired on 16th April, 2007.
15. Section 15 of the Act deals with the renewal of driving licences, which mandates that a driver is supposed to apply for the renewal of the licence within one month of its expiry. It is apt to reproduce Sub Section (1) of Section 15 of the Act hereunder:
"15. Renewal of driving licences. - (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry;
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:
Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in subsection (3) of section 8, and the provisions of subsection (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner's licence."
16. It is not the mandate of Section 15 of the Act that in case the application is incomplete, that cannot be termed as application within time.
17. RW-2 Vinod Kumar, Clerk from the office of Registering and Licencing Authority, Bilaspur, stated that the driver had applied for renewal of his licence on 7th May, 2007, which was sent for verification to the Registering and Licencing Authority, Sunder ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 14 Nagar and after the receipt of the verification, the licence was renewed on 30th May, 2007.
18. The Tribunal has recorded in paragraph 28 that RW-2 Vinod .
Kumar had stated that on receiving the application of the driver Sanjiv Kumar for renewal of his licence, the same was sent for verification to Sunder Nagar, for which reason the licence was not renewed. However, in paragraph 29 of the impugned award, the Tribunal has concluded that due to the non-deposit of fees by the driver Sanjiv Kumar, the licence was not renewed. It is apt to reproduce paragraphs 28 and 29 of the impugned award hereunder:
"28. The respondents No.1 and 2 have also examined Vinod Kumar (RW-2) Clerk, Registering and Licencing Authority, r Bilaspur, who has stated that Sanjiv Kumar, driver has applied for renewal of his licence on 7.5.2007 alongwith his driving licence which licence was sent for verification to R&LA, Sunder Nagar as it was earlier renewed from there and after receipt of renewal certificate, the driving licence was renewed w.e.f. 30.5.2007 and he has proved the copy of renewal application Ext.RW -2/A and the renewal certificate Ext.RW-2/B issued by the R&LA, Sunder Nagar. The learned counsel for respondents No.1 and 2 has submitted that since the respondent No.2 has applied for renewal of his licence within 30 days i.e. on 7.5.2007 from the date of expiry of his licence which expired on 16.4.2007, the licence shall be deemed to have been renewed from the date of expiry in view of the provision of Section 15 of the Motor Vehicles Act and as such, the respondent No.2 was holding a valid and effective driving licence on the date of accident.
29. No doubt, on the basis of statement of respondent No.2 (RW-1) and Vinod Kumar (RW -2 as well as on perusal of Ext.RW -2/A which is the copy of application for renewal of the licence moved by respondent No.2 to R&LA Bilsapur, it is clear that such application has been received by R&LA, Bilaspur on 7.5.2007, but it is also clear on perusal of the said application that though the respondent No.2 has enclosed medical certificate and copies of his photos with such application, but no fees has been deposited by respondent No.2 at the time of moving of such application. It is in the cross-examination of RW- 2 that the respondent No.2 has deposited the fees on 30.5.2007 and as such licence was renewed w.e.f. 30.5.2007 by the R&LA. The respondent No.3 has also placed on record Ext.R-4 copy of counter cash book of R&LA, Bilaspur, on perusal of which it is established that respondent No.2 has deposited the fees for renewal of licence on 30.5.2007 after the expiry of 30 days from the expiry of his earlier licence and as such penalty of Rs.50/- was also imposed upon the respondent No.2 by R&LA, Bilaspur. Such evidence on record therefore, shows that the respondent No.2 has not applied properly for renewal of his licence within a period of 30 days after the expiry of his licence and as such the licence was renewed by the R&LA not from the date of expiry of the licence, but from the date of renewal i.e. 30.5.2007. It is to ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 15 be noted that as per Section 15 of the Motor Vehicles Act, the licence remains effective for a period of 30 days after its expiry and in case where renewal of a licence is applied more than 30 days after the date of its expiry, the driving licence shall be .
renewed from the date of its renewal."
19. While reaching at the above conclusion, the Tribunal has lost sight of the fact that it is the duty of the Authority concerned to renew the licence within time. In the instant case, the driver applied for renewal on 7th May, 2007, i.e. well within time prescribed under the Act, but the licence was not renewed for the reason that it was sent for verification, as stated by RW-2 Vinod Kumar.
20.In case the application for renewal was not complete and was not accompanied with the requisite fee, it was the duty of the Authority concerned to reject the application and inform the applicant accordingly, which has not been done in the instant case. Thus, the delay in renewing the licence is not on the part of the driver, but is attributable to the Authority concerned."
17. Now, adverting to the question of quantum of compensation, Shri Ashwani K.Shar ma, Senior Advocate, assisted by Shri Jeevan Kumar, Advocate, for the appellant, would vehemently argue that the compensation awarded to each of the claimants is now required to be fixed/determined in accordance with the decision of the Constitution Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd.
versus Pranay Sethi and others 2017 ACJ 2700.
18. As against this submission, Mr.Manoj Chauhan, Advocate, for the claimants would argue that the judgment rendered in Pranay Sethi's case (supra) would only apply prospectively and the instant appeals are required to be decided on the basis of the ratio laid down by the Hon'ble three Judges' Bench of the Hon'ble Supreme Court in Rajesh versus Rajbir Singh 2013 ACJ 1403.
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 1619. In this background, it becomes imperative that this Court first determines whether the ratio laid down in Pranay Sethi's case (supra) is .
to apply prospectively as alleged by the learned counsel for the respondents/claimants.
20. It is more than settled that prospective declaration of law is a device innovated to avoid reopening of settled issues. However, there has to be no prospective over ruling unless it is so indicated in a particular judgment.
21. A Full Bench of the Punjab and Haryana High Court in Commissioner of Income Tax versus Smt.Aruna Luthra (2001) 252 ITR 76 opined that a declaration by the Court is -This was the law, this is the law. This is how the provisions have to be construed. The Court merely declares the law and earlier decision by the Court is "simply no law". It shall be apposite to extract the relevant observations which read thus:-
"A Court decides a dispute between the parties. The cause can involve decision on facts. It can also involve a decision on a point of law. Both may have bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the meaning and effect of the words used by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the promulgation of the law. The declaration is-This was the law. This is the law. This is how the provision shall be construed.
Julius Stone in Social Dimensions of Law and Justice (First Indian Reprint 1999) (Chapter XIV), while dealing with the subject of Judge and Administrator in Legal Ordering, observes as under:
"If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law as it seemed when they acted, ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 17 this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a newly emergent rule is to be applied not only to future facts, and to the .
necessarily past facts of the very case in which it emerges, but to all cases thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded ostensibly on the conceptual basis, clearly formulated since Blackstone, that the new holding does not create, but merely declares, law. So that any prior putative law under which the parties acted is to be regarded as simply not law".
(emphasis supplied) The above observations clearly support the principle that the court merely declares law. An earlier decision as declared by the court is "simply no law".
22. The Hon'ble Supreme Court could have directed the implementation of the judgment in Pranay Sethi's case (supra) prospectively and not retrospectively, however, I do not find any such direction contained in the said judgment. That being the factual and legal position, therefore, the awards passed in favour of the respective claimants will have to be tested on the basis of the law expounded in Pranay Sethi's case (supra).
23. However, before adverting to the individual cases, it would be necessary to first understand and appreciate why the matter in Pranay Sethi's case (supra) came to be decided by a Constitution Bench of the Hon'ble Supreme Court. The answer is not difficult to find and the same is set out in para-1 of the judgment itself and reads thus:-
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two - Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 18 matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
.
24. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh's case was not a binding precedent as it has not taken note of the decision in Reshma Kumari's case. The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:-
r to "i) The two -Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 19(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss .
to estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
25. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are self-speaking.
26. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus:-
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, 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, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 20 spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut .
drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two -third.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used envisaged in adopted in Trilok second in Second Susamma Trilok Chandra as column in the Schedule to Thomas Chandra clarified in Table in MV Act (as Charlie Second seen from the Schedule to quantum of MV Act compensation) (1) (2) (3) (4) (5) (6) Up to 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 ::: Downloaded on - 09/01/2018 23:17:32 :::HCHP 21 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 .
41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above to 65 5 5 5 5 5years
27. Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation and unfortunately in most of the cases, the compensation is required to be suitably reduced so as to ensure that the award of compensation is in tune with the aforesaid judgment. For this purpose, this Court would deal with individual case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
Comparative chart of award passed by the learned Tribunal as also by the High Court FAO(MVA) No. 306 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars
(i) Age of the deceased: 43 years
(ii) Proved Salary plus future prospects: Proved Salary plus future prospects:
Rs.9441+40%=3776=13,217/- Rs.9,441+30%=2,832=12,273/-
Annual: Rs. 12,273x12= 1,47,276/-
Less Income Tax @ 10% = 1,47,276- 14,727= Rs. 1,32,549/-
th th
(iii) After Deduction of 1/4 : Rs.9,913/- After Deduction of 1/4 : Rs. 99,412/-
(iv) Annual: Rs.9,913x12=1,18,956/-
(v)
(vi) Multiplier of 14: Rs.1,18,956 Multiplier of 14: Rs.99,412 x14
x14=Rs.16,65,384/- =Rs.13,91,768/-
(vii) Plus Plus
Loss of consortium to widow(petitioner Loss of consortium to widow(petitioner
No.2)=Rs.1,00,000/- No.2)= Rs.40,000/-
(viii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/-
(ix) Loss of care & guidance to minor Loss to estate : Rs.15,000/-
petitioner Nos.5 & 6: Rs.1,00,000/-
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22
(x) Total Award: Rs.18,90,384/- plus Total Modified Award: Rs.14,61,768/-
interest plus interest
FAO(MVA) No.317 of 2014
.
Sr.No. Award passed by the Tribunal Modified Award by this Court
Details/Particulars Details/Particulars
(i) Age of the deceased: 57 years
(ii) Assumed Salary : Rs.3,000/- (future Deemed Salary on account of future
prospects : Nil) prospects : Rs.3,000/- +10%= Rs.3,300/-
th rd
(iii) After Deduction of 1/4 : Rs.2,250/- After Deduction of 1/3 = Rs.2,200/-
(iv) Annual: Rs.2,250x12=Rs.27, 000/ - Annual: Rs.2,200x12=Rs.26,400/ -
(v) Multiplier of 9: Rs.27,000 x9 Multiplier of 9: Rs.26,400x9=Rs.2,37,600/ -
=Rs.2,43,000/-
(vi) Plus Plus
Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/-
(vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/-
(viii)
(ix)
Loss of care & guidance : Nil
Total Award: Rs. 3,68,000/- plus
Loss to estate : Rs.15,000/-
Total Modified Award: Rs. 3,07,600/- plus interest interest.
FAO(MVA) No.318 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 53 years (ii) Assumed Salary : Rs.3,000/- (future Deemed Salary on account of future prospects : Nil) prospects : Rs.3,000/- +10%= Rs.3,300/- th rd (iii) After Deduction of 1/4 = Rs.2,250/- After Deduction of 1/3 = Rs.2,200/- (iv) Annual: Rs.2,250x12=Rs.27,000/ - Annual: Rs.2,200x12=Rs.26,400/ - (v) Multiplier of 11: Rs.27,000 x11 Multiplier of 11: Rs.26,400x =Rs.2,97,000/- 11=Rs.2,90,400/- (vi) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (vii) Total Award: Rs. 3,22,000/- plus Total Modified Award: Rs.3,05,400/- plus interest interest. FAO(MVA) No.319 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 32 years (ii) Assumed Salary plus future prospects: Deemed Salary on account of future Rs.3,000/ - +50%= Rs.4,500/- prospects : Rs.3,000/- +40%= Rs.4,200/- th rd (iii) After Deduction of 1/4 = Rs.3,375/- After Deduction of 1/3 = Rs. 2,800/- (iv) Annual: Rs.3,375x12=Rs.40,500/ - Annual: Rs.2,800x12=Rs.33,600/ - (v) Multiplier of 16: Rs.40,500 x16 Multiplier of 16: 33,600x16=Rs.5,37,600/- =Rs.6,48,000/- (vi) Plus Plus Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/- (vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (viii) Loss of care & guidance : Loss to estate : Rs.15,000/- Rs.1,00,000/- (ix) Total Award: Rs. 8,73,000/- plus Total Modified Award: Rs. 6,07,600/- plus ::: Downloaded on - 09/01/2018 23:17:33 :::HCHP 23 interest interest. FAO(MVA) No.320 of 2014 . Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 37 years (ii) Assumed Salary plus future prospects: Deemed Salary on account of future Rs.3,000/ - +50%= Rs.4,500/- prospects : Rs.3,000/- +40%= Rs.4,200/- th th (iii) After Deduction of 1/4 : Rs.3,375/- After Deduction of 1/4 : Rs.3,150/- (iv) Annual: Rs.3,375x12=Rs.40,500/ - Annual: Rs.3,150x12=Rs.37,800/ - (v) Multiplier of 15: Rs.40,500 x15 Multiplier of 15: Rs. =Rs.6,07,500/- 37,800x15=Rs.5,67,000/- (vi) Plus Plus Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/- (vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (viii) Loss of care & guidance : Loss to estate : Rs.15,000/- (ix) Rs.1,00,000/- Total Award: Rs. 8,32,500/- plus Total Modified Award: Rs.6,37,000/- plus interest @9% interest. FAO(MVA) No.321 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 34 years (ii) Assumed Salary plus future prospects: Deemed Salary on account of future Rs.3,000/ - +50%= Rs.4,500/- prospects : Rs.3,000/- +40%= Rs.4,200/- th th (iii) After Deduction of 1/4 : Rs.3,375/- After Deduction of 1/4 : Rs.3,150/- (iv) Annual: Rs.3,375x12=Rs.40,500/ - Annual: Rs.3,150x12=Rs.37,800/ - (v) Multiplier of 16: Rs.40,500 x16 Multiplier of 16 = Rs. =Rs.6,48,000/- 37,800x16=Rs.6,04,800/- (vi) Plus Plus Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/- (vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (viii) Loss of care & guidance : Loss to estate : Rs.15,000/- Rs.1,00,000/- (ix) Total Award: Rs. 8,73,000 plus Total Modified Award: Rs.6,74,800/- plus interest interest. FAO(MVA) No.322 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 42 years (ii) Assumed Salary plus future prospects: Deemed Salary on account of future Rs.3,000/ - +30%= Rs.3,900/- prospects : Rs.3,000/- +25%= Rs.3,750/- th th (iii) After Deduction of 1/4 : Rs.2,925/- After Deduction of 1/4 : Rs.2,812/- (iv) Annual: Rs.2925x12=Rs.35,100/- Annual: Rs.2812x12=Rs.33,744/- (v) Multiplier of 14: Rs.35,100 x14 Multiplier of 14: Rs.33,744 x14 =Rs.4,91,400/- =Rs.4,72,416/- (vi) Plus Plus Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/- ::: Downloaded on - 09/01/2018 23:17:33 :::HCHP 24 (vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (viii) Loss of care & guidance : Nil Loss to estate : Rs.15,000/- (ix) Total Award: Rs. 6,16,400/- plus Total Modified Award: Rs. 5,42,416/- plus interest interest. . FAO(MVA) No.323 of 2014 Sr.No. Award passed by the Tribunal Modified Award by this Court Details/Particulars Details/Particulars (i) Age of the deceased: 39 years (ii) Assumed Salary plus future prospects: Deemed Salary on account of future Rs.3,000/ - +50%= Rs.4,500/- prospects : Rs.3,000/- +40%= Rs.4,200/- th th (iii) After Deduction of 1/4 : Rs.3,375/- After Deduction of 1/4 : Rs.3,150/- (iv) Annual: Rs.3,375x12=Rs.40,500/ - Annual: Rs.3,150x12=Rs.37,800/ - (v) Multiplier of 15: Rs.40,500 x15 Multiplier of 15: 37,800x15=Rs.5,67,000/- =Rs.6,07,500/- (vi) Plus Plus Loss of consortium =Rs.1,00,000/ - Loss of consortium to widow: Rs.40,000/- (vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/- (viii) Loss of care & guidance : Nil Loss to estate : Rs.15,000/- (ix) Total Award: Rs. 7,32,500 plus Total Modified Award: Rs.6,37,000/- plus interest @9% interest.
28. As regards FAO (MVA) No.328 of 2014, no interference is called for as the appeal has been filed only on limited ground that the driver of the vehicle was not possessed of valid and effective driving licence and the same already stands answered hereinabove against the appellant.
29. Now, adverting to the question of interest, I find that the learned Tribunal below has granted interest ranging from 7.5% to 9% and in majority of the cases, the interest rate is 7.5% which is on the lower side. This Court in CWP No.933 of 2011, titled The New India Assurance Company Ltd. vs. Jagdish Lakhanpal and others, decided on 22.3.2016, has elaborately considered this aspect in the following manner:
INTEREST:
"57. Learned counsel for the petitioner has laid challenge to the grant of interest, that too, from the date of filing of the petition till ::: Downloaded on - 09/01/2018 23:17:33 :::HCHP 25 date of actual deposit and has further questioned the rate at which such interest has been awarded i.e. 9% per annum.
58. It is vehemently argued by learned counsel for the .
petitioner that though the petition had been filed on 26.2.2000, it was on account of in action and negligence on part of the claimant that issues could only be framed on 4.11.2008 and thereafter additional issues were framed on 25.8.2009 and therefore, in such circumstances, no interest could have been awarded for the aforesaid period or else that would amount to granting premium to the claimant for his own inaction and negligence.
59. r Section 171 of the Motor Vehicles Act provides for grant of interest in cases arising out of compensation under the Motor Vehicles Act, which reads thus:-
"171. Award of interest where any claim is allowed. Where any claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
The aforesaid provision provides for awarding of simple interest on the compensation awarded at such rate and from such date, not earlier than the date of making the claim, as it may specify in this behalf. The interest is not awarded for the damage done. Interest is awarded to the claimant for being illegally kept away from the due money, which ought to have been paid to him. Conversely, the claimant cannot claim interest as a matter of right for the proved delay, inaction or negligence on his part.
62. Now coming to challenge laid with respect to the rate of interest, it would be noticed that the recent trend of the Hon'ble Supreme Court clearly indicates that instead of awarding 7 or 8%, as is canvassed by the learned counsel for the petitioner, it has been awarding interest @ 9% per annum. Here I need only refer to a recent judgment of the Hon'ble Supreme in Jakir Hussein Vs. Sabir (2015) 7 SCC 252, wherein it was held:-
::: Downloaded on - 09/01/2018 23:17:33 :::HCHP 26"20. As regards the rate of interest to be awarded on the compensation awarded in this appeal, we are of the view that the Tribunal and the High Court have erred in granting interest @ .
7% p.a. and 8% p.a., respectively on the total compensation amount instead of 9% p.a. by applying the decision of this Court in MCD Vs. Uphaar Tragedy Victims Assn. (2011) 14 SCC
481.Accordingly, we award the interest @ 9% p.a. on the compensation determined in the present appeal."
30. In view of the aforesaid discussion, FAOs (MVA) No.306 of 2014, 317 to 323 of 2014 are partly allowed in the terms indicated above, whereas, FAO(MVA) No.328 of 2014 is dismissed, leaving the parties to bear their own costs. All pending application(s) also stand disposed of.
Registry is directed to place a copy of this judgment on the files of connected matters.
31. However, before parting, it needs to be clarified that since the entire award amount along with up-to-date interest, as was determined by the learned Tribunal below, has been deposited by the Insurance Company before this Court, let the amount along with proportionate interest thereupon, as now determined by this Court, be released in favour of the claimants/respondents, while the remaining balance amount along with proportionate interest be released in favour of the Insurance Company, subject to their furnishing the details of the bank accounts.
( Tarlok Singh Chauhan ) th 9 January, 2018. Judge.
(krt) ::: Downloaded on - 09/01/2018 23:17:33 :::HCHP