Rajasthan High Court - Jaipur
Smt Indrajeet Kaur And Ors vs Kumarji Pal And Ors on 2 May, 2019
Author: Sabina
Bench: Sabina
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 2989/2017
1. Smt. Indrajeet Kaur, aged about 30 years W/o Late
Sukhjeet Singh, By Caste Sikha, R/o Ward No. 3, Dabla
Road, Kasba - Kotputli, District - Jaipur Rajasthan
2. Gurukamal aged about 8 years S/o Late Sukhjeet Singh,
By Cate Sikha Minor Therefore Through His Natural
Mother Smt. In, R/o Ward No. 3, Dabla Road, Kasba-
Kotputli, District Jaipur Rajasthan
3. Manjeet Singh aged about 64 years S/o Harbhan Singh,
By Caste Sikha, R/o Ward No. 3, Dabla Road, Kasba -
Kotputli, District - Jaipur Rajasthan
4. Balvendra Kaur aged about 62 years W/o Shri Majeet
Singh, By Caste Sikha, R/o Ward No. 3, Dabla Road,
Kasba - Kotputli, District - Jaipur Rajasthan
----Appellants/Claimants
Versus
1. Kumarji Pal S/o Tolaram, R/o Gram Dholi Pyau,
Laxminagar, District Mathura U.p. Driver Truck No. Rj-14-
Gc-6852
2. Smt. Geeta W/o Vinod Chand Mishra, By Caste Brahman,
R/o D-25, Jagan Path Marg, Chomu House, Jaipur
Rajasthan Owner Truck No. Rj-14-Gc-6852
3. Dharmendra Bhuvneshwar Pandey, R/o Flat No. 102,
Durga Apartment, M.i.d.c. Nagpur Power Of Attorney
Owner Truck No. Rj-14-Gc-6852
4. Icici Lombard General Insurance Company Limited
Through Regional Manager, Regional Office Plot No. 9,
Basant Vihar, Nearby Gopalpura Flyover, Tonk Roda,
Jaipur Rajasthan Insurance Company Truck No. Rj-14-Gc-
6852 Valid From 12.01.2013 To 11.01.2014
----Respondents/Non-Claimants
For Appellant(s) : Mr. Atul Sharma Adv.
For Respondents : Mr. Vijay Kumar Sharma Adv. No.1 and 2 For Respondent No.4 : Mr. Chanderdeep Singh Jodha Adv. (Downloaded on 28/06/2019 at 11:02:27 PM)
(2 of 15) [CMA-2989/2017]
HON'BLE MRS. JUSTICE SABINA
Judgment / Order
02/05/2019
Appellants have filed this appeal, challenging the award dated 03.05.2017 passed by the Motor Accident Claims Tribunal, seeking enhancement of compensation amount.
Learned counsel for the appellants has submitted that as per the last income tax return Exhibit-24 for the assessment year 2012-13 filed by the deceased on 28.12.2012, the annual income of the deceased was Rs.2,31,950/-. Tribunal had erred in taking the income of the deceased as Rs.1,80,000/- per annum. Deceased was aged 35 years at the time of accident. Hence, appropriate multiplier to work out the amount of compensation would be '16'. Learned counsel has further submitted that the Tribunal has erred in exonerating the Insurance Company from indemnifing the insured. The insured had employed the driver after seeing his driving licence and had no way of knowing that the driving licence was not a genuine document. Even if, Insurance Company is exonerated, Tribunal should have ordered that the Insurance Company should pay the amount of compensation to the claimants at the first instance and then recover the same from the insured. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in National Insurance Company Limited Versus Pranay Sethi and others AIR 2017 (SC) 4973, wherein it was held as under:-
"39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three (Downloaded on 28/06/2019 at 11:02:27 PM) (3 of 15) [CMA-2989/2017] aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 37 (2003) 3 SLR (R) 601 31 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 dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. 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 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 dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. 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 the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as (Downloaded on 28/06/2019 at 11:02:27 PM) (4 of 15) [CMA-2989/2017] two-third."
x x x x x "44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below :-
"42. 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, M16 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."
x x x x "59. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
x x x x x "61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi 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, 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 has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision (Downloaded on 28/06/2019 at 11:02:27 PM) (5 of 15) [CMA-2989/2017] 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 48 between 40 to 50 years. In case the deceased was between the age of 50 to 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 to 50 years and 10% where the deceased was between the age of 50 to 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 paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of 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% in every three years."
Learned counsel has next placed reliance on the decision of this Court in Amrit Paul Singh and Another. Vs. Tata AIG (Downloaded on 28/06/2019 at 11:02:27 PM) (6 of 15) [CMA-2989/2017] General Insurance Company Limited and Others 2018(7) Supreme Court Cases 558, wherein it was held as under :-
"In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the (Downloaded on 28/06/2019 at 11:02:27 PM) (7 of 15) [CMA-2989/2017] claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."
Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in Pappu and Others Vs. Vinod Kumar Lamba and Others. (2018) 3 Supreme Court Cases 208, wherein, it was held as under:-
"The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)? This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus:
"We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to (Downloaded on 28/06/2019 at 11:02:27 PM) (8 of 15) [CMA-2989/2017] establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage."
Further, in paragraph No.110, the Court observed thus:
110. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section (Downloaded on 28/06/2019 at 11:02:27 PM) (9 of 15) [CMA-2989/2017] 149(2)(a) (ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time,
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and (Downloaded on 28/06/2019 at 11:02:27 PM) (10 of 15) [CMA-2989/2017] the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) xxx
(ix) xxx
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against (Downloaded on 28/06/2019 at 11:02:27 PM) (11 of 15) [CMA-2989/2017] insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
(emphasis supplied)
15. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL-5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law." Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Swaran Singh and Ors. (2004) 3 Supreme Court Cases 297, wherein, it was held as under:-
"In Pragraph 110(viii) of the report in Swaran Singh (Supra), it has been also held that the same would be the position in case the driver of the offending vehicle had a learner's licence. The ratio of the law laid down by this Court in Swaran Singh (Supra) is in consonance with the object behind the enactment of the Motor Vehicle Act, 1988. Taking into account the same and the decision of this Court in Swaran Singh (Supra), we are of the view that in the facts of the present case the insurer-respondent No.2 (Oriental Insurance Company Ltd.) should be directed to satisfy the award as enhanced by us and thereafter would be at liberty to recover the said amount from the owner of the lorry (transport vehicle). In doing so we have also taken note (Downloaded on 28/06/2019 at 11:02:27 PM) (12 of 15) [CMA-2989/2017] of the fact that the respondent No.1 (S.S.Murthy), the owner of the vehicle, despite service of notice has chosen not to appear before this Court."
Learned counsel for the respondents No.1 and 2 has opposed the appeal and has submitted that the driver of the offending vehicle had shown his driving licence to the owner at the time of his employment and the owner had no way of knowing that the driving licence of the driver was a fake one and the Tribunal has erred in exonerating the Insurance Company from indemnifying the insured.
Learned counsel for respondent No.4 has opposed the appeal and has submitted that as the driver of the offending vehicle was not holding a valid driving licence, Insurance Company had been rightly exonerated by the Tribunal.
Appellant had filed the claim petition under Section 166 of the Motor Vehicle Act, 1988, seeking compensation on account of death of Sukhjeet Singh in the motor vehicle accident, which had occurred on 18.03.2013.
As per Exhibit-20 copy of driving licence of the deceased, his date of birth is 13.02.1978. Thus, the deceased was aged about 35 years at the time of accident. Hence, appropriate multiplier to work out the amount of compensation would be '16'.
As per Exhibit-22 income tax return for the assessment year 2010-11, annual gross income of the deceased was Rs.1,90,560/-. As per Exhibit-23 income tax return for the assessment year 2011-12, annual gross income of the deceased was Rs.2,25,870/-. As per Exhibit-24 income tax return for the assessment year 2012-13, annual gross income of the deceased was Rs.2,31,950/-. Thus, it is evident that the income of the deceased had shown (Downloaded on 28/06/2019 at 11:02:27 PM) (13 of 15) [CMA-2989/2017] steady increase. Hence, the income of the deceased was liable to be taken as Rs.2,31,950 per annun.
Appellants are the wife, minor son and parents of the deceased. Hence, 1/3rd out of the income of the deceased was liable to be deducted towards his personal expenses. Thus, the annual dependency of the appellants comes to Rs.1,54,634/-. Hence, the appellants would be entitled to receive compensation to the tune of Rs.1,54,634 X 16 =Rs.24,74,144/- Appellants would be further entitled to receive an addition of 40% of the said amount towards loss of future prospects of the deceased and the said amount comes to Rs.9,89,657/-. Appellants would be further entitled to receive Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.
Thus, in all, appellants would be entitled to receive Rs.24,74,144 + Rs.9,89,657 + Rs.40,000 + Rs.15,000 = Rs. 35,18,801/-.
The next question that requires consideration is as to whether Insurance Company is liable to indemnify the insured.
Exhibit-18 is the driving lecence of the driver of the offending vehicle alleged to have been issued by Licencing Authority Mathura (U.P.).
Exhibit-NA-1 is the report submitted by Licencing Authority Mathura (U.P.) to the effect that the driving licence Exhibit-18 had not been issued by the said Licencing Authority.
Owner of the offending vehicle had not appeared in the witness box, nor the driver of the offending vehicle had appeared in the witnesses box. Hence, in view of the report of Licencing Authority Exhibit-NA-1, Insurance Company is liable to be exonerated from its liability to indemnify the insured in view of (Downloaded on 28/06/2019 at 11:02:27 PM) (14 of 15) [CMA-2989/2017] breach of terms and conditions of the Insurance policy Exhibit-NA-2.
Keeping in view the decisions of the Hon'ble Supreme Court relied upon by learned counsel for the appellants, Insurance Company is liable to be directed to pay the amount of compensation to the appellants in the first instance and recover the same from the owner in accordance with law.
Accordingly, this appeal is allowed. Impugned award dated 03.05.2017 passed by the Tribunal is modified to the extent that the appellants would be entitled to receive Rs.35,18,801/- by way of compensation instead of Rs. 26,67,500 as awarded by the Tribunal. The remaining terms and conditions of the award shall remain unchanged. It is further ordered that the share of enhanced amount of compensation of the claimants be invested in separate Fixed Deposit Receipts with some Nationalized Bank, initially for a period of three years and the interest accrued on the deposit shall be paid to them on monthly basis. Secretary, District Legal Services Authority, Kotputli, District Jaipur in the interest of the appellants shall invest the amount in Fixed Deposit Receipts in the name of the appellants in some Nationalized Bank. The Secretary, District Legal Services Authority, Kotputli, District Jaipur, shall further apprise the appellants with regard to the amount which has been granted to them by way of enhancement and the fact that the enhanced amount of compensation shall be invested in Fixed Deposit Receipts in some Nationalized Bank for their benefit.
It is further ordered that Insurance Company respondent No.4 shall pay the amount of compensation to the appellants in the frist instance and the Insurance Company would be at liberty (Downloaded on 28/06/2019 at 11:02:27 PM) (15 of 15) [CMA-2989/2017] to recover the said amount from the owner of the offending vehicle in accordance with law.
(SABINA)J. Sanjay Kumawat-71 (Downloaded on 28/06/2019 at 11:02:27 PM) Powered by TCPDF (www.tcpdf.org)