Punjab-Haryana High Court
Subhash Chand And Others vs Satya Rani And Others on 16 May, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.2412 of 1996 (O&M)
Date of decision:16.05.2013
Subhash Chand and others ...Appellants
versus
Satya Rani and others. ....Respondents
II. FAO No.2617 of 1996 (O&M)
Tarlok Chand Gupta and others ...Appellants
versus
Rajinder Kumar Saini, and others. ....Respondents
III. Civil Revision No.4426 of 1999 (O&M)
Subhash Chand and others ...Appellants
versus
Tarlok Chand Gupta, and others. ....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. C.B. Goel, Advocate, and
Mr. Nitin Jain, Advocate,
for the appellants in FAO No.2412 of 1996,
for the petitioners in CR No.4426 of 1999.
Mr. Suvir Dewan, Advocate,
for United India Insurance Company.
Mr. Neeraj Khanna, Advocate,
for Mr. Deepak Suri, Advocate,
for the appellants in FAO No.2617 of 1996.
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FAO No.2412 of 1996 (O&M) -2-
K.Kannan, J. (Oral)
1. All the appeals arise out of the same accident that resulted in death of a scooterist. The appeal in FAO No.2617 of 1996 is for enhancement of compensation for the death of the scooterist, aged 29 years, where the claimants were widow, two minor children and mother. The Court had assessed the compensation at `1,15,200/-. The owner is in appeal in FAO No.2412 of 1996 on a plea that the award is wrongly passed against the owner and the liability must have been fastened only on the insurer. The contention was that the accident was a result of deceased himself ramming into a stationary tractor and there was no proof of negligence. Consequently, there is no cause of action for prosecuting the claim. In any event, the driver had a valid driving licence and the Tribunal was in error in relying on an evidence that the endorsement of licence was made subsequent to the accident. The contention of the owner was that even a Clerk, who was examined from DTO's office, did not place any document and merely spoke about the alleged endorsement to drive a scooter as having been made subsequent to the accident. The counsel would place reliance on the document filed in Court and contended that it did not contain the date of endorsement of the driving licence. According to him, the driver had a valid driving licence. There is also a Civil Revision No.4426 of 1999 that challenges the award of FAO No.2412 of 1996 (O&M) -3- compensation for damages to the scooter assessed at ` 8,500/-.
2. The accident had taken place on 10.05.1995. The averment in the petition was that the claimant was going on the scooter on GT Road and when he reached in the area of village Teora near Teora on the GT Road, the respondent No.1 who was driving the tractor trolley rashly and negligently and without blowing any horn and violating all the traffic rules caused the accident. In evidence, PW2 had narrated that he saw the deceased overtaking him in his scooter, while he himself was riding a cycle. A tractor was being driven ahead of him and the tractor driver suddenly applied the brake and he lent a graphic description of the fact that the collision happened only when the tractor driver suddenly applied the brake and the scooterist rammed against the tractor. The counsel for the owner argued that the recital in the petition that the tractor which was being run on the wrong side must be taken as a vehicle coming from the opposite direction and PW2 himself gave evidence to the effect that the tractor was going ahead of the scooter and the collision took place when the driver of the tractor suddenly applied the brake. I cannot dissect the expression "driving by the driver on the wrong side" to mean that the vehicle was coming from the opposite direction. All the expressions that would constitute a negligent driving are put forth in the petition, namely, of a person, who was driving rashly and negligently without FAO No.2412 of 1996 (O&M) -4- horn, driving on the wrong side and violating all traffic rules. It is typically an inartistic pleading and if we must look for any clarity, it could come only from the evidence of a witness which cannot be said to be inconsistent with pleadings. On the other hand, it explains the pleading in its perspective. The witness's statement was clear that the tractor was going ahead with a trolley attached and it had suddenly applied brake when the scooterist rammed into it. The driver himself had his own version to give that at the relevant time he was not actually driving the tractor but the vehicle had remained parked on the kacha berm of the of the road and the accident had resulted by a recklessly driving of the scooterist. If there were two versions relating to how the vehicle was being driven, I would go with the version given by a person, who spoke about the negligent driving, more particularly, when that was the approach adopted by the Tribunal. But a person who rammed his vehicle from behind ought to be surely taken as a person contributing to the accident. A careful driving of a scooter does not result in collision. Certain amount of negligence ought to be there and I would hold that the Tribunal was not justified in casting the entire responsibility for the accident only on the driver of the tractor. A tractor does not require to sound horn. By the very nature of its size and a trailer on tow, it cannot be driven fast. If it could be driven rashly, any other person using the road at the same time ought to apply appropriate caution FAO No.2412 of 1996 (O&M) -5- not to come by harm. In this case, if there was evidence that scooterist hit him from behind, I will apportion equal responsibility for the accident and hold the deceased to have contributed to the accident by 50%.
3. As regards the claims, the contention that the deceased was himself running a trading company called DK Trading Company, apart from the shop where he was working as a Commission Agent. The claimants produced telephone bills that showed a bi-monthly billing of `6,000 to `8,000/- for two consecutive billing periods. This was to lend support for a claimant's plea that he was a trader and he was earning about `8,000/- per month. The Tribunal, while considering this evidence, reasoned that he was not an income tax assessee. He had also no saving bank account or any amount with the post office. The telephone bills showed that the bills had been raised in his name. The telephone bills could not prove the nature of business activity that he had. The Tribunal, therefore, took the income of the deceased at `1,000/- per month and assessed the contribution to the family at `600/- per month. I am of the view that the Tribunal's assessment of income was erroneous. If the wife was giving evidence that her husband was doing his own business as DK Trading Company and was also giving a statement that her husband was a Commission Agent having a shop and if her evidence must be discounted at all, it could FAO No.2412 of 1996 (O&M) -6- be only about her assessment that her husband was earning about `8,000/- per month. This is on account of the fact that he was not an income tax assessee. There was also evidence that he had shares worth about `50,000/- and he had investment in some private Company called Golden Forest Company. The counsel for the Insurance Company points out that even the scooter that he was driving was not his own and it had been purchased in the name of his father by borrowing from a bank. He was supporting a family of widow, minor children and mother. I am prepared to assume that he was earning `5,000/- per month. In the the decision of the Supreme Court in Reshma Kumari and others Versus Madan Mohan and others, decided on 02.04.2013, the question raised was whether a determination of the multiplicand under 1988 Act provided for criterion particularly as regards determination of future prospects. The Supreme Court was reaffirming the principle of law laid down in Sarla Verma Versus Delhi Transport Corporation and another- 2009(6) SCC 121 with reference to future prospect and observed that the Court should have appropriate regard to the observations of the Supreme Court in Sarla Verma's case in paragraph 24. After this decision in a still later yet another judgment delivered in Rajesh and others Versus Rajbir Singh and others in Civil Appeal No.3860 of 2013, dated 12.04.2013, the Supreme Court was looking for a dilution of standards of proof and has held that even to persons FAO No.2412 of 1996 (O&M) -7- in unorganized sector, who are self-employed, there ought to be a prospect of increase. The Court was reaffirming what was stated in Santosh Devi Versus National Insurance Company Limited and others-2012(2) RCR (Civil) 882 that even a self-employed person should be provided with a prospect of increase by 50% if he was less than 40 years of age. I take the average income at the death at ` 5,000/- and take the prospect of increase at another 50% and take the average income at `7,500/-per month. I will apply a 1/4th deduction and take the contribution to the family at `5,625/- per month. I will adopt a multiplier of 17 and take the loss of dependency at `11,47,500/-. Although there have been recently attempts to revisit Sarla Verma (supra) to allow for a higher compensation for loss of consortium and loss of love and affection, considering the fact that the accident took place 1995, I will take the conventional head as was normally understood and provide `10,000/- for loss of consortium and `5,000/- for each of the minor children for loss of love and affection. I will also provide for `5,000/- for funeral expenses and `2,500/- for loss to estate. On the whole, the total compensation would be ` 11,75,000/-. Consistent with my finding that the claimant himself had contributed to the accident, I will make abatement of 50% of the amount as assessed and take the amount liable to be paid at ` 5,87,500/-. This amount shall be divided amongst all the claimants, namely, widow, minor FAO No.2412 of 1996 (O&M) -8- children and mother in the ratio of 2:2:2:1.
4. As regards the liability, the evidence as contained in the petition is that it was a tractor with trailer attached. That a tractor had been attached to a trailer was not in dispute but the evidence of the driver was that he was not driving the vehicle. This is another way of saying that there existed a circumstance where it was whether the driver had a valid driving licence or not was irrelevant. Where driving itself did not constitute to accident, this was an excepted circumstance in National Insurance Company Limited Versus Swaran Singh-(2004) 3 SCC 279 and it would be immaterial whether the driver had a driving licence or not. In this case, I have held that PW2's evidence must be preferred to the driver's own assertion that the vehicle was stationary and I have also found that the driver of the tractor was equally responsible as the deceased himself was. Therefore, the question of whether the driver had a valid driving licence definitely assumed significance. Even assuming that the evidence of the Clerk of the DTO's office could not be relied on without documentary proof that the driving licence endorsement was made subsequent to the accident, reliance placed on the copy of the driving licence produced by the driver himself clearly points out to the fact that the licence was to drive a motor vehicle other than a transport vehicle and it was valid from 11.08.1994 to 03.08.1999. The accident had taken place on FAO No.2412 of 1996 (O&M) -9- 10.05.1995. Evidently during the relevant time of the accident, there existed no transport vehicle endorsement in the licence. A tractor with the trolley attached is a transport vehicle as defined under the Motor Vehicles Act that it requires a special endorsement under Section 3 of the Motor Vehicles Act. If there was no special endorsement, he will not be said to be duly licensed to make him liable. The learned counsel for the Insurance Company relies on a judgment of the Supreme Court in United India Insurance Company Limited through its Divisional Manager Versus Sujata Arora and others in Civil Appeal No.231 of 2012, decided on 10.01.2012 where the Supreme Court was holding that if the van which is a transport vehicle was not duly licensed, the Insurance Company cannot be made liable. The Court was referring to a judgments in National Insurance Company Limited Versus Laxmi Narain Dhut-2007(4) SCALE 36; National Insurance Company Limited Versus Swaran Singh-(2004) 3 SCC 279 and Jawahar Singh Versus Bala Jain and others-2011(5) SCALE 494 holding that if an offending vehicle was driven by a driver, who was either not holding a licence or had a fake licence, then it amounts to violation of terms and conditions of policy and no liability can be fastened on the Insurance Company. The liability fastened on the Insurance Company was set aside.
FAO No.2412 of 1996 (O&M) - 10 -
5. It is not too clear from the award whether the amount had been realized already by the claimant against the Insurance Company and whether the Insurance Company could have proceeded only against the owner and driver for recovery. The issue of liability of an Insurance Company in spite of the violation of terms of policy is considered in a string of decisions and it is authoritatively laid down that the principle of pay and recover will apply in all situations where any of the defences under Section 149 succeeds for the insurer. The issue of operation of Section 149(4) proviso and Section 149(5) of the Motor Vehicles Act make it clear that if there is a violation of terms of policy, the Insurance Company shall have a right to recover the amount of liability which it had to shoulder. This principle of pay and recover was dealt with particularly in the context of a fake licence in Swaran Singh's case (supra). The judgment in Sujata Arora's case (supra) case ought not to be taken as excluding the law laid down by the Supreme Court in Swaran Singh's case that provides for a right of recovery. Indeed the judgment in Sujata Arora's case (supra) does not even make a reference to Sections 149(4) and 149(5) of the Motor Vehicles Act.
6. The liability therefore cannot be excluded for the Insurance Company for making the payment to the claimant. It will have only a right of recovery against the insured for the violation of terms of policy which, in this case, is that the driver did not have a FAO No.2412 of 1996 (O&M) - 11 - valid driving licence to drive a transport vehicle. Under the circumstances, the appeal by the claimant in FAO No.2617 of 1996 is allowed to the extent of providing for compensation at ` 5,87,500/-. This finding will also obtain the benefit of interest to be loaded at 7.5% from the date of petition till date of payment. The owner's appeal in FAO No.2412 of 1996 and the Civil Revision No.4426 of 1999 questioning the liability are dismissed but I will hold that the right of recovery will be exercised by the claimant against the Insurance Company and the Insurance Company will in turn have a right to enforce it in the same cases at the execution stage. The liability portion will stand modified to the above extent.
(K.KANNAN) JUDGE 16.05.2013 sanjeev