Bombay High Court
Mamta Wd/O Santosh Chitakalwar And Ors vs Laxman Narayan Raut And Anr on 6 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 1663
Author: S.M. Modak
Bench: S.M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 1223 OF 2012
1] Mamta wd/o Santosh Chitakalwar,
Aged about 30 years, Occ.-Household,
2] Aditya Santosh Chitakalwar,
Aged about 07 years, Occ-Education.
3] Ku. Disha Santosh Chitakalwar,
Aged about 05 years, Occ-Education,
4] Satyabhama wd/o Sharawan Chitakalwar,
Aged about 62 years, Occ- Household,
All R/o. Sukrawar Peth, Tq. and District Washim. Appellants.
-Versus-
1] Laxman Narayan Raut,
Aged about Major, Occ.- Business,
R/o. Dhotra, Tq. Mangrulpir, District Washim.
2] Branch Manager, The Oriental Insurance Co. Ltd.,
Branch Office Washim. Respondents.
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Shri P.R. Agrawal, Advocate for the Appellants.
None present for resp. no.1.
Shri Ashish Paunikar, Advocate for resp. no.2.
CORAM : S.M. MODAK, J.
Reserved on : 27/10/2020
Pronounced on : 06/11/2020
Judgment
In this appeal the question arises is whether on the basis of the
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facts of the case, can it be said that the driver of the offending vehicle was
having valid driving license ? The connected issue involved is 'on whom
burden to prove fact of not holding license lies? And whether this Court
can direct the Insurance Company to pay first and then to recover from
the owner?
2. On the point of non requirement of endorsement on LMV
license,Learned advocate Shri Agrawal relied upon the judgement in case
of Mukund Dewangan vs Oriental Insurance Company. Whereas on the
point of burden of proof, learned advocate Shri Paunikar relied upon the
judgement in case of Pappu and others vs Vinod Kumar Lamba and
another. The Motor Accident claims Tribunal, Washim, as per the
judgment dated 08-10-2010, was pleased to answer that issue 'of not
holding valid license' in the affirmative and was pleased to exonerate the
Insurance Company for the breach of policy terms on the part of the
insured/respondent no.1.
3. By the impugned judgment, the claims Tribunal on one hand
exonerated the Insurance Company and on the other hand held the owner
responsible and directed him to pay compensation of Rs.12,37,600/-
along with the other benefits. The original claimants are challenging the
said judgment of exonerating the Insurance Company. They have also
asked for enhancement of the compensation.
4. I have heard learned Advocate Shri P.R. Agrawal for the
claimants/appellants and learned Advocate Shri Paunikar for respondent
no.2-Insurance company. Though appearance was put on behalf of the
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owner/respondent no.1, his Counsel has not remained present for arguing
the matter. Hence, I am supposed to decide this appeal on the following
grounds :-
Points Findings
(a) Whether the driver of the offending Yes.
vehicle Tractor was possessing valid
driving license at the time of
accident?
(b) On whom burden to prove 'absence First on the owner
of driving license' lies ? and then on Insurance
Company.
(c) Whether it was right on the part of Not totally.
the Claims Tribunal to exonerate the
Insurance Company?
(d) Whether the claimants are entitled Yes.
for enhanced amount of
compensation?
(e) What order ? As per final order.
REASONINGS
5. As to point nos. (i) to (v) :- There is no dispute about the
manner of the accident. The Claims Tribunal has elaborately discussed
the evidence on this point. Deceased Santosh Chitakalwar was a pillion
rider on a motorcycle. It was driven by his friend. The accident took
place on 23-11-2006 at about 18.30 hours. They were coming towards
Washim from Mangrulpir. When they came near Ambapur Phata, the
offending vehicle tractor dashed them. The tractor driver has negligently
and recklessly driven the tractor. Santosh died on the spot. On the report
of one Rahul Panditrao, Mangrulpir Police Station registered the offence
under Sections 279, 337, 338 and 304-A of the Indian Penal Code against
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the tractor driver No.MH 37/A 5471 (name not known). The deceased
was working as a Senior Clerk in the Maharashtra Jeevan Vikas
Pradhikaran. The claimant no.1 is the wife, claimant nos. 2 and 3 are the
minor son and daughter and claimant no.4 is the mother of the deceased.
The respondents i.e. owner and the Insurance Company have appeared
and filed written statement. The owner has pleaded about existence of the
insurance policy and fixing the responsibility on the Insurance Company.
Whereas Insurance Company has denied the manner of the accident,
negligent driving by the Tractor driver and also taken a plea about non
existence of valid driving license by the tractor driver.
6. Claimant no.1 entered into the witness box and examined one
Ashok Devisingh Rathod staff from the Maharashtra Jeevan Vikas
Pradhikaran. Through him the salary certificate was proved. The owner
had chosen to remain absent and neither given evidence nor cross
examined the witnesses as mentioned above. Insurance Company has
restricted itself in cross examining the witnesses and have not adduced
any evidence. On this background, the Claims Tribunal was pleaded to
quantify the amount of compensation at Rs. 12,37,600/- along with other
benefits. The liability was fastened only on the owner. The Claims
Tribunal has answered the issue of negligence of the Tractor driver in the
affirmative. The issue of contributory negligence about driver of the
motorcycle was answered in the negative. There is no challenge to these
findings.
7. The Claims Tribunal has considered the driving license of
tractor driver. But the Tribunal goes on to hold it is not sufficient to drive
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offending vehicle/tractor. It further held about lapse on the part of owner
in proving valid driving license.
Learned Advocate Shri Agrawal has challenged these findings.
According to him, once a person who will obtain license for driving light
motor vehicle, he is also entitled to drive any other class of light vehicle
and no fresh endorsement is required if he is driving transport vehicle of
light motor vehicle category. In support of his contention he relied upon
two judgments :-
(a) Mukund Dewangan vs Oriental Insurance Company
(2017) 14 SCC 663)
(b) Santlal vs Rajesh (2017(8) SCC 590)
It is true that the interpretation given in Mukund Dewangan's case was
not there when the impugned judgment was delivered on 08-10-2010.
8. As against this learned Advocate Shri Paunikar supported the
judgment and contended that the driving license of Tractor driver
(Exhibit-35) and certificate of registration of the Tractor (Exhibit-34) are
not proved. According to him, it is the responsibility of the owner of the
offending vehicle to prove that the Driver was holding valid driving
license. Once the owner has discharged that burden, then only the onus
will be shifted on the insurance Company. In support of his contention he
relied upon the observations in case of Pappu and others vs Vinod
Kumar Lamba and another reported in (2018) 3 SCC 208.
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CONCLUSION
9. The observations of Hon'ble Supreme Court in case of Mukund
Dewangan are binding on all of us. So I agree with learned Advocate
Shri Agrawal on that point. So I am inclined to hold that the person
having light motor vehicle driving licence can also drive transport vehicle
of that category. However, this observation is not useful to the claimants
unless documents on record are proved. We have to apply this analogy to
the facts before us and then to decide the matter. When this exercise is
done, I am inclined to hold that the owner has failed to prove 'that the
driver of the tractor was having a valid driving licence'. The claimants
have produced the driving licence at Exh-35. It was not referred during
the evidence of the claimants. It was just produced and marked as
exhibit. So the observations in case of Pappu (supra) are applicable. So I
am not inclined to interfere in the decision of the Claim Tribunal in
exonerating the insurance company. I will decide hereinafter whether pay
and recover order can be passed. So also I will give reasons for coming to
the conclusion as mentioned above.
10. Learned Advocate Shri Agrawal tried to argue that the facts in
case of Pappu are different from the facts of the present case. According
to him the identity of the driver Jogindersingh in case of Pappu was
disputed. Whereas in the present case the identity of the driver is not
disputed.
11. I have read the evidence and the pleadings. It is true that the
FIR at Exh.30 was registered against the tractor driver. His name is not
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known. The owner before the claim Tribunal has filed written statement
and submitted to pass on the responsibility on the insurance company as
valid insurance policy was in force. Whereas the Insurance Company in
the written statement has denied the manner of the accident, the
negligence of the tractor driver and also denied the allegation about
holding valid driving licence by the tractor driver.
12. On these pleading the claims Tribunal has framed the issue no.3
about 'holding valid driving licence'. As said above. except the claimant
no.1 and one witness on the point of salary, no other witnesses were
examined. The claims Tribunal has given the following findings :-
"The applicants have filed on record copy of driving
licence Exh.35 of Baban Narayan Raut, who was driving
the offending tractor on the date of incident. It discloses
that abovesaid Driver was holding a driving licence for
driving light motor vehicle transport (car). The N A No.1-
owner of said tractor has accepted his ownership, but has
not adduced any evidence to show that at the relevant
time concerned driver was holding valid driving licence of
the required category."
Whereas in case of Pappu (supra) there was a accident in between two
trucks. One truck driver succumbed to the injuries. The claimants have
not given the name of the driver of the offending truck. Whereas the
insurance company have also emphasized on this fact and expressed their
inability to verify the driving licence in absence of necessary details. On
this evidence, it was held by the Claims Tribunal in that case that
producing driving licence of one Jogindersingh is not sufficient. There
was a emphasis on absence of specific pleading that said Jogindersingh
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was driving the offending truck.
13. Whereas in this case none of the parties have stated the name of
the tractor driver. Only a certificate of registration and driving licence of
tractor driver were produced. Learned advocate Shri Agrawal submitted
that in many cases it is difficult to ascertain the name of the driver of the
offending vehicle and according to him it is the responsibility of the owner
of the offending vehicle and subsequently of the insurance company to
give these details. According to him the claimants cannot be blamed for
not giving those details.
14. He also submitted that Hon'ble Supreme Court in case of
National insurance Company vs Swaran Singh, reported in
(2004) 3 SCC 297 has held that -
"mere absence of driving licence are not in themselves
defences available to the insurer against the insured or the
third parties. The insurance companies with a view to
avoid their liability must not only establish available
defences but also establish breach on the part of owner of
the vehicle and the burden of proof where for would be on
them (para 1109 (iii and iv)."
According to him these observations still holds good and they are not
overruled in case of Pappu by Hon'ble Supreme Court. Whereas learned
Advocate Shri Paunikar submitted that the facts in case of Pappu and the
facts before us are more or less similar and the judgment in case of
Pappu was delivered later in time and it will prevail.
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15. It is true that as per the contract of insurance, the insurer
indemnity the insured for the loss sustained on account of vehicular
accident. In a given case the insured may be interested in passing on the
responsibility to the insurer and the insurer may be interested in
complaining of breach of policy terms by the insured. I do agree that this
is not the case of "giving of at least some evidence of breach of policy
terms by the insurance company and its wrong appreciation. This is a
case wherein there is failure to give evidence by the owner. So before us
there are two views expressed by Hon'ble Supreme Court one is 'burden
to prove breach (that too fundamental breach)" lies on insurance company
(Swaran Singh case). And other view is "initial burden to prove existence
of valid license" would lie on the owner and then to pass on company
(Pappu's case). I do agree with the practical difficulties expressed by
learned Advocate Shri Agrawal in giving details of the driver of the
offending vehicles but we have to abide by the observations of Hon'ble
Supreme Court and particularly in case of Pappu. Hon'ble Supreme Court
in case of Pappu has opined about fastening the liability on the insurance
company only when the insured/owner has discharged his burden. We
are bound by these observations. Hence for the above discussion, I am
inclined to hold that 'it is not proved that the driver of the offending
vehicle was having valid driving licence at the time of accident'. Hence,
for the discussion made herein before, the decision of the claims tribunal
about exonerating insurance company is liable to be affirmed.
AMOUNT OF COMPENSATION
16. The Claims Tribunal has granted compensation by considering
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the following factors-
(a) monthly salary - Rs. 8,975.00/-
(b) The contribution towards family Rs.71,800.00 p.a.
(after deducting personal
expenses)
(c) age of the deceased 30 yrs
(d) Multiplier - 17
Compensation - Rs.12,20,600.00
(e) Consortium - love and affection. Rs. 5000 and
Rs. 10,000/-
(f) Funeral expenses - Rs. 2,000/-
(g) Total compensation - Rs.12,37,600.00
The claimants are having the following grievances-
(a) Deduction towards personal it should be 1/4th
expenses. instead of 1/3rd
(b) Future prospect. 50% not
considered.
(c) Amount of consortium ought to Rs. 40,000/- per
have been. claimant.
(d) The amount of loss of estate Rs. 15,000/- each.
and funeral expenses.
It is true that as per the judgment in case National insurance Company
Limited vs Pranay Sethi reported in 2017 (16) SCC 680 50% ought to
have been considered towards the future prospect if the deceased is
having a permanent job. The witness Ashok Rathod has been examined to
prove the occupation of the deceased in Maharashtra Jeevan Vikas
Pradhikaran. The salary certificate is at Exh 42. Hence we have to believe
that the deceased was the permanent employee.
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17. As per the observations of the Supreme Court in case of Sarla
Verma vs Delhi Transport Corporation, reported in 2009 (6) SCALE 129.
Hon'ble Supreme Court has laid the guidelines for calculating the
contribution towards the personal expenses. If the deceased is survived by
the parents and the siblings 50% would be treated as personal and living
expenses and not 1/3rd as observed by the Claims Tribunal in para 14. So
also as observed in case of Magma General Insurance Co. Ltd vs Nanuram
reported in (2018)18 SCC 130 loss towards spousal consortium, parental
consortium and filial has to be considered. An amount of Rs.40,000/- for
each claimant has been laid down. So claimants are entitled to
Rs.1,60,000/-. The claims Tribunal has granted insufficient amount on
that head. They are also entitled to get Rs. 15,000/- each on account of
loss of estate and funeral expenses.
18. The claimants are right in their submission in considering the
salary of Rs. 8,800.00 pm. The certificate is at Exh.42. The gross salary is
Rs. 8,975.00 and net salary is Rs. 8,370.00/-. The Claims Tribunal has
considered the gross salary of Rs. 8,975.00/-. There are deductions. Some
are voluntary and some are statutory. Rs.175.00 is deducted towards
professional tax. it is a statutory deduction. So that amount only needs to
be deducted from the gross salary. It comes to Rs. 8,800.00 pm So the
claimants are entitled to get the compensation on following heads:-
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Salary for the purpose of assessment. Rs.8,800 x 12
months
=Rs.1,05,600.00
Calculation 50 % additions towards the Rs. 52,800.00
future addition.
Total salary Rs.1,58,400.00
1/4th deduction towards personal Rs. 39,600.00
deduction.
Salary for multiplier Rs. 1,18,800.00
Multiplier 17
Loss of consortium Rs. 40,000/- per Rs. 1,60,000.00
claimant.
loss of estate and funeral expenses Rs. 30,000.00
Total compensation Rs.22,09,600.00
PAY AND RECOVER DIRECTION
19. In case of Pappu Hon'ble Supreme Court has relied upon
observations of Hon'ble Supreme Court in case of National Insurance
Company Ltd Vs Swaran Singh (supra) in direction (x) para 110 of
Swaran Singh's judgment Hon'ble Supreme Court has bestowed on the
Claims Tribunal power to direct the insurance company to pay to the third
party and then to recover from the insured/owner. I think in this case the
Claims Tribunal ought to have issued this direction. However, the
tribunal has restricted themselves in exonerating the insurance company.
It will be detrimental to the interest of the claimants. Hence, case for
issuing that direction is made out. Hence, I proceed to pass the following
order -
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ORDER
(a) Appeal is partly allowed. (b) The judgment given by the Motor Accident Claims
Tribunal, Washim in MACT No.29/07 dated 08-10-2010 is modified as follows :-
(i) The applicants are entitled for compensation to the tune of Rs.22,09,600.00 (Twenty Two Lakhs Nine Thousand and Six Hundred only.).
(ii) The respondent no.2 insurance company is directed to pay this amount to the applicants with interest @ 7% from the date of filing of the application till realization.
(iii) The direction about distribution of the amount amongst the applicants given by the Claims Tribunal is confirmed.
(iv) The applicant nos. 2 and 3 must have attained the majority or on the verge of attaining the age of majority hence, the direction to invest their amount till attaining the majority is set aside.
(v) If the appellant nos. 2 and 3 have not attained the majority, the amount towards their share be paid to appellant no.1.::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 19:24:33 :::
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(vi) The respondent nos. 1 and 2 to bear their own costs and to pay the costs to the appellants.
(vii) The respondent no.2 is entitled to recover the amount from respondent no.1 owner.
(viii) The respondent no.2 is at liberty to deduct an amount of Rs. 50,000/- ascertained on account of 'no fault liability' and then to pay the remaining amount to the claimants.
(c) Award be drawn accordingly.
JUDGE
Deshmukh
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