Delhi High Court High Court

Smt. Ram Kali vs Sh. Ram Kuber & Ors. on 4 May, 2009

Delhi High Court
Smt. Ram Kali vs Sh. Ram Kuber & Ors. on 4 May, 2009
Author: Kailash Gambhir
       * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No. 288/1999

                                      Judgment reserved on:22.01.2008
%                                     Judgment delivered on: 4.5.2009

Smt.Ram Kali    .                              ...... Appellants
                         Through: Ms.Manpreet Kaur, Advocate

                                      versus


Sh. Ram Kuber & Ors.                             ..... Respondents
                   Through: Nemo


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may
     be allowed to see the judgment?                      NO

2.   To be referred to Reporter or not?                   NO

3.   Whether the judgment should be reported              NO
     in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 22/3/1999 of

the Motor Accident Claims Tribunal whereby the Tribunal awarded a

sum of Rs. 98,000/- along with interest @ 12% per annum to the

claimants.

2. The brief conspectus of the facts is as follows:

FAO No.288/1999 Page 1 of 8

3. On 20.01.88 at about 11.10 a.m., the deceased Babu Singh was

going from Shahdara towards Bihari Colony on his cycle. When the

deceased reached at Loni Road near Rathi Mills all of a sudden a truck

no. DLG 5374 which was being driven by respondent no.1 at a very

high speed, rashly and negligently hit the deceased from behind as a

result of which the deceased fell down on the road and he received

fatal injuries. He was removed to GTB Hospital where he remained

alive for 12 days but thereafter died in the GTB Hospital due to the

fatal injuries received by him in the accident.

4. A claim petition was filed on 16/12/1988 and an award was

passed on 22/3/1999. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Ms. Manpreet Kaur counsel for the appellants contended that the

tribunal erred in assessing the income of the deceased as per the

wages for an unskilled workman whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the deceased as per the wages for a skilled workman as the

deceased was a tailor. The counsel contended that the tribunal has

erred in not awarding compensation towards loss of love & affection,

funeral expenses, loss of estate, loss of consortium, mental pain and

FAO No.288/1999 Page 2 of 8
sufferings and the loss of services, which were being rendered by the

deceased to the appellants. The counsel maintained that the tribunal

committed serious error in holding that the insurance company was

exempted from payment of compensation when the driver had a valid

driving licence at the time of the accident. The counsel submitted that

even if the insurance company was not liable, then also the tribunal

could have directed insurance company to pay the amount first and

then recover it from the owner and driver of the vehicle.

6. Nobody has appeared for the respondents.

7. I have heard learned counsel for the appellants and perused the

record.

8. The appellants claimants had not brought on record any

documentary evidence, therefore the tribunal assessed the income of

the deceased as per the minimum wages notified for an unskilled

workman. It is no more res integra that mere bald assertions regarding

the income of the deceased are of no help to the claimants in the

absence of any reliable evidence being brought on record. The thumb

rule is that in the absence of clear and cogent evidence pertaining to

income of the deceased learned Tribunal should determine income of

the deceased on the basis of the minimum wages notified under the
FAO No.288/1999 Page 3 of 8
Minimum Wages Act. After considering all these factors, I am of the

view that the tribunal erred in assessing the income of the deceased as

per the minimum wages notified for an unskilled workman while he

should have assessed the same as per the minimum wages notified for

a skilled workman. Therefore, the award is modified to this extent.

9. However, it has been the consistent view of this court that

whenever aid of Minimum Wages Act is taken while computing income,

then increase in minimum wages should also be considered. It is well

settled that future prospects are not akin to increase in minimum

wages. To neutralize increase in cost of living and price index, the

minimum wages are increased from time to time. A perusal of the

minimum wages notified under the Minimum Wages Act show that to

neutralize increase in inflation and cost of living, minimum wages

virtually double after every 10 years. For instance, minimum wages of

skilled labourers as on 1.1.1980 was Rs. 320/- per month and same

rose to Rs. 1,083/- per month in the year 1990. Meaning thereby, from

year 1980 to year 1990, there there has been an increase of nearly

238% in the minimum wages. Thus, it could safely be assumed that

income of the deceased would have doubled in the next 10 years.

FAO No.288/1999 Page 4 of 8

10. Therefore, the tribunal erred in not considering increase in

minimum wages, while assessing the income of the deceased and

same should be considered while computing compensation towards

loss of dependency.

11. On the contention regarding that the tribunal erred in not

granting adequate compensation towards funeral expenses, and no

compensation has been granted towards loss of love & affection, loss

of estate and the loss of services, which were being rendered by the

deceased to the appellants. In this regard compensation towards loss

of love and affection is awarded at Rs. 10,000/-; compensation towards

funeral expenses is enhanced to Rs. 10,000/- and compensation

towards loss of estate is awarded at Rs. 10,000/-.

12. As far as the contention pertaining to the award of amount

towards mental pain and sufferings caused to the appellant due to the

sudden demise of her only son and the loss of services, which were

being rendered by the deceased to the appellants is concerned, I do

not feel inclined to award any amount as compensation towards the

same as the same are not conventional heads of damages.

13. On the basis of the discussion, the income of the deceased would

come to Rs. 976.50/- after doubling Rs. 651/- to Rs. 1,302/- and after

FAO No.288/1999 Page 5 of 8
taking the mean of them. After making 1/3rd deductions the monthly

loss of dependency comes to Rs. 651/- and the annual loss of

dependency comes to Rs. 7,812/- per annum and after applying

multiplier of 16 it comes to Rs. 1,24,992/-. Thus, the total loss of

dependency comes to Rs. 1,24,992/-. After considering Rs. 30,000/-,

which is granted towards non-pecuniary damages, the total

compensation comes out as Rs. 1,54,992/-.

14. As regards the issue of putting liability on the insurance company

in the first place and then directing its recovery from the owner and

driver of the offending vehicle, it has been proved beyond doubt that

the driver of the offending vehicle was not having a valid driving

licence at the time of the accident. In National Insurance Co. Ltd.

v. Swaran Singh and Others [(2004) 3 SCC 297], the Court

noticed an earlier decision of the Supreme Court, namely, Malla

Prakasarao v. Malla Janaki and Others [(2004) 3 SCC 343]

wherein one of the members of the Bench, V.N. Khare, J. (as the

learned Chief Justice then was) was a member. In that case, it was

held:

“1. It is not disputed that the driving licence of the
driver of the vehicle had expired on 20-11-1982
and the driver did not apply for renewal within 30

FAO No.288/1999 Page 6 of 8
days of the expiry of the said licence, as required
under Section 11 of the Motor Vehicles Act, 1939.
It is also not disputed that the driver of the vehicle
did not have driving licence when the accident
took place. According to the terms of the contract,
the Insurance Company has no liability to pay any
compensation where an accident takes place by a
vehicle, driven by a driver without a driving
licence. In that view of the matter, we do not find
any merit in the appeal.”

15. The Apex Court in Sohan Lal Passi v. P. Sesh Reddy and Ors.

MANU/SC/0662/1996 has held that breach on the part of the owner

should be so fundamental so as to entitle the insurance company to

claim complete exoneration from its liability to pay the insurance

amount.

16. In Swaran Singh (Supra), the Apex Court also observed as

under:

“Under the Motor Vehicles Act, holding of a valid driving licence
is one of the conditions of contract of insurance. Driving of a
vehicle without a valid licence is an offence. However, the
question herein is whether a third party involved in an accident
is entitled to the amount of compensation granted by the Motor
Accidents Claims Tribunal although the driver of the vehicle at
the relevant time might not have a valid driving licence but
would be entitled to recover the same from the owner or driver
thereof.

It is trite that where the insurers, relying upon the provisions of
violation of law by the assured, take an exception to pay the
assured or a third party, they must prove a wilful violation of
the law by the assured. In some cases violation of criminal law,
particularly, violation of the provisions of the Motor Vehicles Act
may result in absolving the insurers but, the same may not
necessarily hold good in the case of a third party. In any event,

FAO No.288/1999 Page 7 of 8
the exception applies only to acts done intentionally or “so
recklessly as to denote that the assured did not care what the
consequences of his act might be.”

17. In view of the above discussion, I find violation on the part of the

driver of the offending vehicle, was not proved to be intentional by the

insurance company. Therefore, the insurance company although has

no liability in the instant case but is liable to pay the award amount in

the first place and then shall recover it from the owner and driver.

18. In view of the above discussion, the total compensation is

enhanced to Rs. 1,54,992/- from Rs. 98,000/- with interest on the

differential amount @ 7.5% per annum from the date of filing of the

petition till realisation and the same shall be paid to the appellant by

the respondent nos. 1 and 2, who are jointly and severally liable within

30 days of this order.

19. With the above directions, the present appeal is disposed of.

04th May,2009                                 KAILASH GAMBHIR, J




                  FAO No.288/1999                                     Page 8 of 8