Kamini Khanna & Ors vs Pradeep Kumar & Ors. on 18 November, 2011

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Delhi High Court

Kamini Khanna & Ors vs Pradeep Kumar & Ors. on 18 November, 2011

1. These two appeals arise out of the common award dated FAO 350/1999 & 391/1999 Page 1 of 11 04.02.1999 passed by the Motor Accident Claims Tribunal (the Tribunal) whereby a compensation of ` 1,02,112/- was awarded to the Claimants Smt. Kamini Khanna and Shri O.P. Khanna, the parents of the deceased Arun Khanna due to his death which occurred in an accident on 03.03.1990.

2. FAO No.350/1999 preferred by the United India Insurance Company Limited is for setting aside of the award on the ground that the accident did not take place on account of rash and negligent driving of the TSR driver Pradeep Kumar, whereas FAO No.391/1999 is for enhancement of compensation awarded on the ground that it is too low.

3. FAO No.391/1999 came up for hearing before this Court on 15.03.2011. Since none was present on behalf of the Respondents the case was renotified on 16.03.2011. On 05.05.2011 the Appeal for enhancement of compensation was allowed and an additional sum of ` 10,000/- towards love and affection was awarded. CM APPL. No.10246/2011 was moved for recalling the order dated 05.05.2011. By order dated 31.05.2011, the order dated 05.05.2011 was recalled and FAO No. 391/1999 was ordered to be listed along with the connected Appeal i.e. FAO No.350/1999. On the next date i.e. on 26.09.2011 this Court ordered as under:-

"I find no reason to recall the order dated May 5, 2011. The said order is maintained."

FAO 350/1999 & 391/1999 Page 2 of 11

4. It appears that the previous order (dated 31.05.2011) was not brought to the notice of the Court. In view of the order dated 31.05.2011, the order dated 26.09.2011 cannot be given effect to. Thus, both the appeals i.e. FAO No.350/1999 and 391/1999 are heard on merits.

FAO 350/1999

5. Before adverting to the respective contention of the parties, it would be worthwhile to briefly mention the facts leading to filing of the present petitions before the Tribunal.

6. On 03.03.1990 at about 3:00 P.M. deceased Arun Khanna along with his brother Anuj Khanna were sitting in front of their house. A TSR No. DAR 8824 driven by Pradeep Kumar came from the service lane and struck against an electricity pole. The TSR driver was advised not to go ahead as the electricity pole could fall leading to a fire. The TSR driver did not stop much to the annoyance of the deceased and Anuj Khanna. They, therefore, chased the TSR, went ahead of him and gave him a signal to stop. The TSR driver did not stop and hit against the two wheeler on which Arun Khanna (the deceased) was riding as a pillion rider and which was driven by Anuj Khanna. Arun Khanna sustained injuries which proved fatal.

7. FIR for an offence under Section 279/338 of the Indian Penal Code (IPC) was registered at Police Station Bhajanpura which was later on converted to under Section 279/304-A IPC. During FAO 350/1999 & 391/1999 Page 3 of 11 inquiry the Claimants Respondents No.1 and 2 Smt. Kamini Khanna and O.P. Khanna (in FAO No.350/1999) examined Anuj Khanna as PW-1 and ASI Chhote Lal, IO of the case under Section 279/338 IPC as PW-2. On appreciation of evidence, the Tribunal found that there was negligence on the part of Pradeep Kumar, the TSR driver. Respondents Kamini Khanna and O.P. Khanna (in FAO No.350/1999) claimed salary of the deceased to be ` 2,000/- per month, which according to the Tribunal was not established. In the absence of any evidence of the deceased's actual income, the Tribunal took the minimum wages of an unskilled worker; deducted 1/3rd towards personal expenditure and applied the multiplier of 16 to work out the dependency at ` 98,112/-. In addition, the Tribunal awarded a sum of ` 2,000/- each towards funeral expenses and loss of estate and thus awarded a total compensation of ` 1,02,112/-.

8. The award is challenged by the Insurance Company (in FAO No.350/1999) on the ground that the deceased did not die due to any injury sustained in the accident. Rather, it was a deliberate act on the part of the TSR driver (Pradeep Kumar) Respondent No.3 to have rammed the TSR against the deceased resulting in the injuries which proved fatal. It is submitted that even otherwise the driver did not possess an effective and valid driving licence and thus, the insurance company could not have been saddled with the liability to pay the compensation.

FAO 350/1999 & 391/1999 Page 4 of 11

9. PWs 1 and 2's testimonies clearly demonstrate that Arun Khanna suffered injuries on account of rash and negligent driving on the part of the TSR driver (Pradeep Kumar). It is true that Arun Khanna and the deceased chased the TSR because of his alleged misdemeanor as he (Pradeep Kumar) used abusive language instead of stopping the TSR when it struck against the electricity pole in front of the deceased's house. Yet, there was nothing on record which could have suggested that Pradeep Kumar had any intention to kill the deceased or had intentionally collided the TSR against the two wheeler. The negligence on the part of Pradeep Kumar was writ large. Otherwise also, the use of the words "arising out of the use of motor vehicle in under Section 165" are wide enough to neglect the eventualities even when there may be some intent to collide the vehicle against any other vehicle.

10. In Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 (3) SCC 530 there was a collision between a petrol tanker and a truck due to which the petrol tanker went off the road and fell at a distance of about 20 feet from the highway leading to leakage of petrol which collected nearby. Later an explosion took place in the petrol tanker resulting in fire. Number of persons who assembled near the petrol tanker sustained burn injuries and few of them succumbed to the injuries. The victims filed the claim petitions which were dismissed by the Claims Tribunal on the ground that the explosion and the fire had no connection with FAO 350/1999 & 391/1999 Page 5 of 11 the accident, and was altogether an independent accident. The appeal was allowed by the learned Single Judge of the High Court holding that the explosion was a direct consequence of the accident. The Division Bench of the High Court affirmed the findings of the learned Single Judge against which the matter came up before the Hon'ble Supreme Court.

11. The Hon'ble Supreme Court dismissed the Special Leave Petition holding that the explosion and fire resulting in injuries and death was due to the accident arising out of the use of the motor vehicle. The findings of the Hon'ble Supreme Court are reproduced hereunder:-

"25. These decisions indicate that the word "use", in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some break-down or mechanical defect. Relying on the abovementioned decisions, the Appellate Bench of the High Court had held that the expression "use of a motor vehicle" in Section 92-A covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case the learned Judges have observed that the tanker in question while proceeding along National Highway No. 4 (i.e. while in use) after colliding with a motor lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. We are in agreement with the said approach of the High Court. In our opinion, the word "use" has a wider connotation to FAO 350/1999 & 391/1999 Page 6 of 11 cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a break-down or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."

12. In Rita Devi v. New India Assurance Company Ltd., 2000 ACJ 801 (SC) the deceased was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day the auto rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for journey. As to what happened on that day is not known. It was only on the next day that the police was able to recover the body of the deceased but the auto rickshaw in question was never traced out. The owner of the auto rickshaw claimed compensation from the insurance company for the loss of auto rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the heirs of the deceased would be entitled to compensation.

13. Relying on Shivaji Dayanu Patil (supra) the Supreme Court in New India Assurance Company Limited v. Yadu Sambhaji More & Ors., (2011) 2 SCC 416 held that the injuries suffered by the persons who gathered near the leaking tanker on account of the FAO 350/1999 & 391/1999 Page 7 of 11 big explosion, would be said to have arisen out of the use of the motor vehicle.

14. Thus, there is no manner of doubt that negligent on the part of the TSR driver Pradeep Kumar was established. Even otherwise, on the authority of Shivaji Dayanu Patil (supra) the fatal injuries shall be deemed to have been suffered out of use of the motor vehicle.

15. Now, coming to the second contention, it is urged by the learned counsel for the Insurance Company that Pradeep Kumar was challaned under Section 3/112 of the Motor Vehicles Act, 1988 for driving the TSR without license. PW-2 ASI Chhote Lal admitted in his cross-examination that Pradeep Kumar was challaned for driving the TSR without any license. But, at the same time, it has to be borne in mind that whenever Insurance Company wants to avoid the liability on the ground of breach of condition of the policy, onus is on the Insurance Company to establish the said breach. Only a vague plea was taken in the written statement that Pradeep Kumar did not hold a valid driving licence at the time of the accident. No notice was issued to the driver or to the owner of the vehicle to produce the driving licence nor any evidence was adduced by the Appellant Insurance Company that Pradeep Kumar did not possess a valid and effective driving licence.

FAO 350/1999 & 391/1999 Page 8 of 11

16. In these circumstances, the Insurance Company cannot avoid its liability to pay the compensation which may found to be payable in respect of the accident in question.

17. The appeal being FAO No.350/1999 is without any merit, the same is accordingly dismissed with costs. Counsel's fee is quantified at ` 11,000/-.

FAO 391/1999

18. It is urged by Mr. O.P. Mainee learned counsel for the Appellants that deceased Arun Khanna was earning ` 2,000/- per month. The Tribunal, however, awarded the meager amount of ` 1,02,112/- against a claim of ` 3,00,000/-. In the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 2009 (6) SCC 121, the Supreme Court reviewed the law with regard to the selection of multiplier, deduction towards personal expenses. The deceased was aged about 26 years at the time of the accident. The age of the deceased's parents has not come on record. The Tribunal did not make any effort to even ask the age of PW-3 O.P. Khanna, the deceased's father. Considering the age of the deceased in the year 1990 to be 26 years, I would assume the average age of the parents to be less than 50 years and the multiplier as per Sarla Verma (supra) in the case would be 13 as against 16 applied by the Tribunal.

19. Similarly, there would be deduction of 50% towards the personal expenses in case of a bachelor.

FAO 350/1999 & 391/1999 Page 9 of 11

20. Apart from a bald statement made by PW-3 Shri O.P. Khanna, the deceased's father that the deceased was working with M/s. Allied Data Processing and getting a salary of ` 2,000/- per month, nothing was placed on record to prove the deceased's income. The qualification of the deceased was also not proved. The Tribunal, therefore, rightly took the minimum wages i.e. ` 767/- per month as deceased's income.

21. In view of the judgments of this Court in (i) UPSRTC v. Munni Devi, IV (2009) ACC 879; (ii) National Insurance Company Ltd. v. Renu Devi & Ors., III (2008) ACC 134; and (iii) Narinder Bishal & Anr. v. Rambir Singh & Ors. MAC APP. 1007-08/2006 decided by this Court on 20th February, 2008, 50% of the minimum wages have to be added to offset the inflation due to indexation. The minimum wages are revised not only to meet the inflation but also to improve the standard of living of the lowest paid workers and hence there is need to add 50% of the minimum wages to arrive at the victim's income.

22. Thus, the dependency works out to be ` 767/- + 383/- - 50% x 12 x 13 = 89,700/-. The award of ` 2,000/- each towards loss of estates and funeral expenses was also on the lower side. Moreover, the Tribunal did not award any amount towards loss of love and affection. Considering that the accident took place in the year 1990, I would award an amount of ` 10,000/- towards loss of estates (instead of ` 2,000/-) and ` 5,000/- on FAO 350/1999 & 391/1999 Page 10 of 11 account of funeral expenses (instead of ` 2,000/-). I would further award a sum of ` 10,000/- towards loss of love and affection. The total compensation payable thus works out to ` 1,14,700/-. The enhanced amount of compensation shall carry an interest @ 8% per annum for the period 11.05.1990 to 03.08.1993 and then from 14.05.1998 till the realization of the amount in terms of the order passed by the Tribunal. Respondent No.3 M/s. United India Insurance Company Limited is directed to make the payment along with the upto date interest in the name of the Appellant No.2 Shri O.P. Khanna. The amount to be deposited with the Registrar General of this Court within 30 days which shall be disbursed to the Appellant No.2 Shri O.P. Khanna, father of the deceased. (The other Appellant Smt. Kamini Khanna has died during the pendency of this Appeal).

23. The appeal is allowed in the above terms. No costs.

24. All pending applications stands disposed of.

(G.P. MITTAL) JUDGE NOVEMBER 18, 2011 vk FAO 350/1999 & 391/1999 Page 11 of 11

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