Rajasthan High Court - Jaipur
Rama Nand vs Lalita Sharma And Ors. on 17 January, 1992
Equivalent citations: II(1992)ACC75, 1992(1)WLC250
ORDER Inder Sen Israni, J.
1. All the three appeals filed under Section 110-D of the Motor vehicles Act, 1939 (now Section 173 of the Motor Vehicles Act, 1988) arise out of the same award, therefore, they are decided by one order.
2. As stated in Appeal No. 368/90, respondents No. 1 to 6 filed a claim petition before the Motor Accidents Claims Tribunal, Jaipur, against the appellant and respondents No. 7 to 11, on account of accidental death of deceased Gopal Lai, on September 9,1982. It is stated that deceased, who was working in Sheep and Wool Department, was going on a cycle in normal speed. It is further stated that the deceased was on his correct side of the road. When he reached near Lal Kothi, Tonk Road, a Bus bearing No. RRL 1924 owned by the appellant, which is said to have been rashly and negligently driven by respondent No. 2, hit the deceased cyclist from behind, as a result of which he fell on the road. At the same time, a Tractor, bearing No. PUW 3663, was also coming from the same direction, which is said to have been driven rashly and negligently by respondent No. 8, ran over the body of the deceased and crushed him, as a result of which, he died instantaneously. The tractor is owned by respondent No. 7. The New India Insurance Company Limited, respondent No. 11, with which the tractor was insured, raised a defence that respondent No. 8, the driver of the tractor, had no valid licence, therefore, the Insurance Company is not liable to pay an" amount to the claimants. The National Insurance Company Ltd., respondent No. 10, w'. h which the bus mentioned above, was insured, claimed that the bus was not at fault, but, in any case, as per provisions of Sections 95 and 96 of the Motor Vehicles Act, 1939 (for short, 'MV Act'), it is not liable to pay more than Rs. 50,000/-. The learned Tribunal, in its award dated November 7,1988, while deciding issue No. 1, apportioned the negligence to the extent of 70% of 30% of the bus and the tractor drivers respectively. It further held while deciding issue No. 5 that since the tractor driver had no valid licence, therefore, the Insurance Company-respondent No. 11, was not liable to pay any compensation. While deciding issues No. 3 and 6, a sum of Rs. 87,000/- along with interest has been awarded to the claimants. The National Insurance Company Ltd., respondent No. 10, was made responsible to pay to the extent of limited liability amounting to Rs. 50,000/- only. For rest of the amount, both the drivers and owners of the bus and tractor have been made jointly and severally responsible for making payment to the claimant-respondents.
3. Mr. G.C. Mathur, learned Counsel for the appellant, in Appeal No. 368/90 has raised two fold legal contentions. Firstly, it is contended that the learned Tribunal has erred in apportioning the negligence as, in the matter under consideration, the death was caused due to the negligency of both the vehicles. Therefore, this is a case of composite negligence and the same cannot be apportioned, as done by the learned, Tribunal. Secondly, it is contended that the learned Tribunal has manifestly erred in holding that the driver of the tractor had no valid driving licence, therefore, respondent No. 11 -- New India Insurance Company Ltd. has been wrongly exonerated from its liability. The plea of driver of the tractor, having no valid licence, was raised by respondent No. 11, but no evidence was produced by it. Hence, it has completely failed to discharge the burden of proving the allegation put-forward by it. It is, therefore, contended that respondent No. 11 is also equally liable to pay the claim-amount, in accordance with the provisions of law.
4. Appeal No. 318/88 has been filed by registered owner of the tractor. It is submitted by Mr. M.M. Panjan, learned Counsel, that the tractor was being driver carefully and at a slow speed. It is further submitted that when the deceased was hit by the bus, he suddenly fell down on the road and the tractor over ran him. The driver of the tractor was not at fault, in any case. It is, therefore, contended that no liability, regarding payment of 30% compensation, should have been fixed on him and the Insurance Company, with which the ' tractor was insured.
5. The third Appeal, bearing No. 341/88, has been filed on the ground of claim by the appellants. It is submitted by Mr. Atul Luhadia, learned Counsel, that the deceased was IVth Class Government servant. He was getting salary of Rs. 516.87 per month and a certificate to this effect was produced before the learned Tribunal. It is further submitted that the negligency of the bus driver was held to be 70%, but the Insurance Company, with which the tractor was insured, was exonerated on the ground that the driver of the bus had no driving licence and the licence was forged. It is also submitted that this is only an allegation of prosecution in the criminal case, but no proof has been produced by the Insurance Company to prove that the licence was forged. Thus, the Insurance Company has failed to discharge the burden of issue No. 5. It is contended that wife of the deceased, Lalita Devi (P.W. 1) and Ors have clearly stated that the deceased was giving total amount to her and he had no habit of even chewing betel or smoking etc. Therefore, the learned Tribunal has seriously erred in keeping the contribution of Rs. 300/- only for the family. It is further contended that the petitioner was only 40 years old and Tribunal, by taking 60 years to be average age, has erred in applying multiplier of twenty years, whereas, the average life spent has been accepted to be 75 years by several Courts. Hence, the multiplier of 35 years should have been applied.
6. I have heard the parties and gone through the documents and evidence on record. From the facts and circumstances, mentioned above, it is clear that the deceased was going on his cycle on proper side, in normal speed, when he was knocked down by the bus. Thereafter, the tractor ran over him. This shows that the driver of the bus was driving his vehicle rashly and negligently and struck the deceased from behind. The learned Tribunal has also given finding that the driver of the tractor was also driving it rashly and negligently. In fact, if he were to driver cautiously and carefully, perhaps, he could have stopped his tractor and saved the life of the deceased. Thus, it is clear that the death of the deceased occurred on account of rash and negligent driving on the part of both the drivers of the vehicles. In these circumstances, there is no question of fixing up contributory liability separately on each of the drivers of the vehicles. This, in fact, is a case of composite negligence, as the death of the deceased has occurred, on account of rash and negligent driving by the driving by the drivers of both the vehicles. The learned Tribunal, has therefore, erred in fixing-up 70% liability on the driver/owner of the bus and 30% liability on the driver/owner/insurance Company of the tractor.
7. In find force in the contention Mr. G.C. Mathur, learned Counsel, that the learned Tribunal has erred in holding that since the tractor (driver) had no valid driving licence, the Insurance Company-respondent No. 11, is not responsible to pay any amount to the claimants. It may be stated that the learned Tribunal framed issue No. 5 which, when translated in English, reads as under: --
Whether the driver of the vehicle was running with forged driving licence, therefore, the Insurance Company is not liable to pay any compensation.
The learned Tribunal has held that the driver of the tractor was holding forged driving licence. It is contended by Mr. Bhargava, learned Counsel for respondent No. 11, New India Insurance Company, that even though the burden of proving issue No. 5 is on respondent No. 11, but, from the documents of challan, produced on behalf of the claimants, it is clear that Sita Ram, Driver of the tractor, had no valid driving licence. A forged driving licence has been produced by the owner of the tractor, which has also been confirmed by Sarwan Singh, ASI, who has been produced as witness No. 2 on behalf of the respondents. It may be pointed out that Sita Ram, driver of the tractor, in his statement, has stated that he has not produced any forged driving licence, during the course of investigation. He has further stated that he did have a valid driving licence, but it has been lost by him. The licence was obtained from Chandigarh. The criminal proceedings are still pending. Admittedly, the burden of proof, regarding issue No. 5, was squarely on respondent No. 11, the Insurance Company and merely because a forged licence alleged to be forged has been produced by the owner of the tractor, during the course of investigation, in a criminal case, it cannot be said that the Insurance Company has discharged the onus, regarding this issue. No evidence, whatsoever has been produced on behalf of the Insurance Company, respondent No. 11, to prove that Sita Ram, driver of the tractor, had no valid driving licence. The allegation of forged licence, which is denied by Sita Ram, driver, cannot be said to have been finally proved, since the criminal proceedings regarding the same are yet to be decided. Thus, there is no finding of any court what to talk of the Tribunal itself on the basis of any documentary evidence, to come to the conclusion that Sita Ram was driving the tractor on the basis of a forged document. Such jumping conclusions, on the basis of mere allegations in a criminal case, will not justify in holding that the driver of the tractor had a forged driving licence. Since no evidence whatsoever, has been produced by respondent No. 11, to discharge its, burden of proof regarding the driving licence, being forged, there is no reason to disbelieve the statement Sita Ram, driver of the tractor, that he did possess a valid driving licence. I am fortified in my opinion by a decision of the Apex Court in Narcinva V. Kamal and Anr. v. Alfredo Antonio Doe Martins and Ors.1985 ACJ 397, in which it was held by the Apex Court that when the Insurance Company contended that the driver did not have a valid driving licence at the time of accident as the driver failed to produce the licence when asked to do so in cross-examination, and no other evidence has been led by the Insurance Company to substantiate its contention, the Insurance Company has failed to discharge the onus to prove that the driver had no driving licence. The Insurance Company cannot escape the liability merely on the ground of non-production of licence by the driver and it is liably to indemnify the award. The learned Counsel for respondent No. 11 has placed reliance on Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Company and Ors. I(1990) ACC 1. This was a case, in which a Constable was knocked down by the tractor driven by unlicensed driver. It was held by the Apex Court the 'the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad, (PW 2). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of fatal accident." Therefore, it was held that the Insurance Company was not liable and the decision given in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. could not be of any help to the appellants. So far as the matter under consideration is concerned no reliance has been placed on the decision of Skandia Insurance Co. Ltd. Apart from that, the above-mentioned authority is of no help to respondent No. 11, since in the case of Kashi Ram Yadav (supra), the plea that the driver had valid licence was proved to be false and there was enough evidence on this point before the Tribunal Court (Tribunal). However, in the case under consideration, there is no even iota of evidence has been produced by respondent No. 11 to prove that the driver of the tractor had no valid licence and respondent No. 11 has completely failed to discharge its onus. Therefore, the finding of the learned tribunal that the driver of the tractor had a forged licence is not based on any evidence and is, therefore, set aside. The New India Insurance Company, respondent No. 11, will, therefore, also be jointly and severally responsible for discharging the liability of the award.
8. So far as Petition No. 341/88 is concerned, there seems to be force in the contention raised by Mr. Luhadia, learned Counsel, that the learned Tribunal has erred in holding that out of the meagre amount of the salary of Rs. 516/- per month, the deceased was to spend Rs. 200/- on his own expenses and contributed only Rs. 300/- to the family. AW 1, the widow of deceased, Smt. Lalita Devi, has stated in her evidence that the deceased had no habit of chewing betel, or smoking cigarette etc. Apart from the widow, the deceased had six children, the eldest being 17 years and the youngest four years. She has further stated in her statement that the deceased was giving her Rs. 500/- every month for expenses on the family and running the house. No evidence has been produced by any of the respondents to disprove the statement of AW 1 and her statement has not been shaken in the cross-examination. Therefore, there was no reason for the learned Tribunal to come to the conclusion that the deceased spent Rs. 200/- on his own and contributed only Rs. 300/- per month to up-keep his family, consisting of seven members. In these days of high living cost, perhaps, it is impossible for a family of seven persons to survive in less than Rs. 500/- per month. I am, therefore, of the considered opinion that the deceased contributed Rs. 500/-to the family every month. The learned Tribunal has mentioned in its award that the claimants are getting Rs. 200/- per month as pension. Merely because the claimants, who are seven in number, are getting Rs. 200/- per month as pension, the learned Tribunal has erred in holding, on this ground, that the contribution of the deceased to his family is fixed at Rs. 300/- per month. It may be mentioned that the. compensation amount should be so assessed that the legal representatives should receive such pecuniary benefit as they would have got from the deceased, if he had lived his normal life. Therefore, the compensation awarded should be just, reasonable and proportionate to the loss resulting from the death of the deceased. From the evidence, as mentioned above, it is clear that the deceased contributed Rs. 500/- per month to his family. The learned Tribunal has applied twenty years multiplier for reaching the amount to be awarded to the claimants. The deceased was forty years old at the time of incident. Even when a Government servant retires, he has to keep the pot boiling and carry on work, till he is healthy, to look after his family. Apart from this, in the cases of low income persons, as of deceased, with more number of dependents, no deductions for personal expenses should be made in computing the family dependency and justice should be done to the dependants, who had lost their sole bread-earner of the family. The average age of an Indian is considered to be at least 70 years. In the facts and circumstances I am of the opinion that ends of justice shall be met if the multiplier of twenty five is applied while fixing the amount of the award.
9. In the result the appeals are allowed and it is held that respondent No. 11 -- New India Insurance Company Ltd., in Appeal No. 368/90, shall be liable jointly and severally along with other respondents, regarding payment of the amount of the award, in accordance with law. The contribution of the deceased to the family is raised to Rs. 500/- per month. Thus, the amount of the award is raised from Rs. 80,000/- to Rs. 1,50,000/-. In addition to this, the claimants shall also be entitled to receive interest on the increased amount as awarded by the learned Tribunal. If payment is not made within three months, interest will be at the rate of 15% per annum.
10. The appeals are allowed, as above, with no order as to costs.