JUDGMENT
Rajesh Tandon, J.
1. Heard Sri Binesh Kumar Gupta, counsel for the appellant and Sri D.C.S. Rawat, counsel for the respondent No. 5-owner. This is an appeal filed by the Insurance Company.
2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 28.10.2005 passed by the Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in Motor Accident Claim Case No. 14 of 2002 Smt. Kamla Devi and Ors. v. National Insurance Co. Ltd. and Anr., whereby the claimant – respondents No. 1 to 4 have been awarded a sum of Rs. 2,14,515/- towards compensation.
3. Briefly stated, a claim petition was filed by the claimant-respondents no. 1 to 4 being Motor Accident Claim Case No. 14 of 2002 Smt. Kamla Devi and Ors. v. National Insurance Co. Ltd. and Anr. under Section 140/166 of the Motor Vehicles Act, 1988 claiming a sum of Rs. 11,65,000/- towards compensation.
4. According to the claimants, on 9.2.2001 in the evening, when Hari Lal (hereinafter referred to as the deceased) was coming to Sri Nagar by Truck No. U.P. 07-2895 (in which furniture of the School was loaded), due to some technical fault in the truck at 10 p.m., the truck became disbalanced and fell down into a river. In this accident, the deceased drowned into the river and died. His body was recovered from the river after two days. The deceased was bread-earner in the family. At the time of accident, the deceased was 50 years of age and was earning a sum of Rs. 5,000/- per month. The claimants have claimed a sum of Rs. 11,65,000/-towards compensation.
5. National Insurance Company has contested the claim by filing a written statement, wherein the occurrence has been denied, but the insurance of the vehicle has been admitted. In the additional pleas, the Insurance Company has stated that at the time of accident, the driver of the truck in question was not holding valid and effective driving licence and the truck in question was being driven without fitness certificate. Insurance Company has stated that one of the dependents has already got the job in place of the deceased. It has also been stated that the respondent No. 1 has already received the other benefits and is still getting the pension. The Insurance Company has further stated in its written statement to the following effect:
mDr nq?kZVuk ds laca/k esa nks vU; okn 53@1 o 13@2 lquokbZ gsrq yfEcr gS vkSj mDr rhuks ekeyksa es dfFkr e`rdks dks jktdh; b.Vj dkyst ds QuhZpj ds lkFk vkuk crk;k tk jgk gS tcfd os u rks eky ds Lokeh dgs tk ldrs gS vkSj u mUgs Lokeh dk izfrfuf/k gh dgk x;k gS] bl izdkj ikfylh dh ‘krksZ ds vuqlkj os {kfriwfrZ jkf’k chek dEiuh ls ikus ds vf/kdkjh ugh gS A ;g Li”V ugh fd;k x;k fd fdlds }kjk mDr Vªd cqd fd;k x;k A tkap ds nkSjku ;g rF; Hkh lkeus vk;k fd dfFkr e`rd fdlh vU; xkM+h ls rhu/kkjk esa mrjk tgkWa Vªd ds pkyd o ifjpkyd [kkuk [kk jgs Fks vkSj rhu/kkjk ls mDr Vªd esa cSBk u fd ml LFkku ls tgkWa ls Vªd us QuhZpj Hkj dj ;k=k ‘kq: dh A bl izdkj u rks og lkeku dk Lokeh gh Fkk vkSj u Lokeh dk izfrfuf/k gh dgk tk ldrk gSA iz/kkukpk;Z }kjk nk;j fjiksZV ls Hkh ;g Li”V gS fd dfFkr e`rd rhu/kkjk ls dfFkr Vªd esa cSBk] bl izdkj e`rd voS/k lokjh Fkk vkSj ijfeV o ikfylh dh ‘krksZ ds mYya?ku ds Lo:i foi{kh chek dEiuh fdlh jkf’k dks vnk djus dk ftEesnkj ugh gS A iqfyl tkap ls Hkh ;g Li”V gS fd dfFkr e`rd rhu/kkjk esa fdlh vU; cl ls mrj dj mDr Vªd esa cSBk A ;g Hkh Li”V ugh gS fd fo|ky; dk lkeku fdlus [kjhnk vkSj fdlds }kjk cqd fd;k x;k A chek dEiuh dh dksbZ ftEesnkjh ugh gS A ;kfpdk [kkfjt gksus ;ksX; gS A
6. Narendra Singh Panwar – owner of the truck in question has also contested the claim by filing a written statement, where in the additional pleas, it has been stated that at the time of accident, the truck in question was validly insured with the National Insurance Company and the driver of the truck in question was holding valid driving licence. It has also been stated that the truck in question was carrying valid papers, thus, the liability to pay the compensation is of the Insurance Company.
7. On the pleadings of the parties, claims tribunal has framed following issues:
(1) Whether deceased Hari Lal sustained injuries in an accident on 9.2.2001 at about 10 p.m., near village Mulya Gaon on Devprayag Srinagar road due to rash and negligent driving of a truck bearing registration no. U.P. 07C-2895, as alleged in the claim petition?
(2) Whether the driver of said Truck No. U.P. 07C-2895 was not holding valid and effective driving licence at the time of accident?
(3) Whether the deceased was not a bonafide passenger, if so its effect?
(4) What amount of compensation, if any, are the petitioner entitled and from whom?
8. On behalf of the claimants, Smt. Kamla Devi was examined as P.W. 1. Towards documentary evidence, per List 8Ga four papers, per list 22 Ga three papers, per List 36Ga one paper and per List 37 Ga one paper has/have been filed.
On behalf of the Owner of the Vehicle per List 15Ga four papers have been filed.
9. While deciding the Issues as to whether deceased Hari Lal sustained injuries in an accident on 9.2.2001 at about 10 p.m., near village Mulya Gaon on Devprayag Srinagar road due to rash and negligent driving of a truck bearing registration no. U.P. 07C-2895, as alleged in the claim petition, as to whether the driver of said Truck No. U.P. 07C-2895 was not holding valid and effective driving licence at the time of accident and as to whether the deceased was not a bonafide passenger, the claims tribunal has relied upon the First Information Report, which was lodged by one Sohan Singh Patwa on 10.2.2001 at about 6.10 p.m. In the F.I.R. it has been stated that on 9.2.2001 at about 5 p.m. the aforesaid truck was coming with the furniture of G.G.I.C, Srinagar. The principal of the said college was also coming with another bus behind the truck. At about 10 p.m., when truck and Bus reached near Tindhara Dev Prayag all the passengers had the food and Senior Clerk of the G.G.I.C. Sri Hari Lal came down from the Bus and boarded in the truck. After having food, the Bus and truck in which five persons were sitting proceeded for Srinagar, but near Mulyagaon due to rash and negligent driving of the driver of the Truck an accident took place, in which the truck fell down into the river and the body of the deceased was found after two days. A.P.W. 1-Kumari Manjula Pandey has stated in her statement that on 9.2.2001, she had gone to Jwalapur for purchasing furniture along with her staff namely Dayal Singh, Hari Lal, Surendra Pal Bharti, Gabar Singh, Smt. Shanta Bisht, Smt. Poonam Dhaundiyal, Intzar Hussain-President of Teacher Guardian Committee, Anusuya Prasad and in the said accident, Dayal Singh, Anusuya Prasad and Hari Lal Dayal Singh died. The claims tribunal has further recorded a finding that at the time of accident, the truck in question was validly insured for third party, therefore, the Insurance Company is liable to pay compensation and has also stated that the deceased was a bonafide passenger as he was suggested by the principal Manjula Pandey that he will suggest the driver not to drive fast and to look after the goods. At the time of accident, the permit of the truck inquestion was also valid. Thus, in view of the above, the claims tribunal has decided the aforesaid issues in favour of the claimants.
10. While deciding the Issue No. 4 with regard to the quantum of compensation, the claims tribunal has assessed the income of the deceased as Rs. 35,916/- per annum. Further for assessing the age of the deceased, the claims tribunal has relied upon the Ration Card, where the age of the deceased has been shown as 50 years. According to the age of the deceased, the claims tribunal has selected multiplier of 13. Multiplying with the annual income with 13, the amount comes to Rs. 4,66,908. Claims Tribunal has further deducted 1/3rd of the personal expenses from the said amount and then the amount has been worked out to Rs. 3,11,272/-. The claims tribunal has further deducted 1/3 from Rs. 3,11,272/- stating that since a lumpsum amount is being paid therefore 1/3rd may be deducted from the said amount, the amount of compensation comes to Rs. 2,07,515/-. Apart from that the claimants have been given a sum of Rs. 2,000/- for funeral expenses and Rs. 5,000/- for love and affection. Thus, the claims tribunal has awarded a total sum of Rs. 2,14,515/- towards compensation.
11. Admittedly, the vehicle in question was insured with the Insurance Company. On the question as to whether status of the deceased was of a gratuitous passenger or not a finding has been recorded by the claims tribunal on the statement of Kumari Manjula Pandey that the truck was booked from Jwalapur and was loaded with the furniture of the college and Hari Lal was the representative of the owner of the goods and the truck was being driven rashly and negligently, he should have controlled the same. The deceased, therefore, has been held to be the representative of the owner of the goods. The permit was also valid and as such the Issue has been decided in favour of the claimant.
12. Counsel for the appellant has referred the judgment of National Insurance Co. v. Kusum Rai 2006 (2) TAC Page 1 to the following effect:
8. In a proceeding arising out of a claim petition filed under Section 166 of the Motor Vehicles Act, the Insurance Company is a necessary party as it is required to indemnify the owner or driver of the vehicle. Even in a case where the owner colludes with the claimants or is not otherwise represented, the Insurance Company can contest the matter on merits of the claim petition upon obtaining leave of the Court as is provided under Sub-section (2) of Section 170 of the Act. However, there does not exist any embargo in raising a defence which comes within the purview of Sub-section 92) of Section 149 of the Act which reads as under:
149. Duty of insurers to satisfy judgments and award against persons insured in respect of third party risks.
(1) xxx xxx xxx
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle
(a) for hire or reward, where the vehicle is on the date of contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
13. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefore. Ram Lal was allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.
14. We have noticed hereinbefore that the Tribunal has not gone into the said question. It proceeded on the basis that the case was covered by Kamla (supra). The correctness of the said decision came up for consideration before this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. , wherein this Court clearly held:
The owner of the a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a vlaid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving license. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (see Jitendra Kumar)
15. In Swaran Singh (supra), to which one of us wa a party, this Court noticed an earlier decision of this Court, namely, Malla Prakasarao v. Malla Janaki and Ors. , wherein one of the members of the Bench, V.N. Khare J. (as the learned Chief Justice then 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 th November, 1982 and the driver did not apply for renewal within 30 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.
16. Aforesaid case law is distinguishable on the ground that recoverable rights has been given to the Insurance Company on the ground that the driver is not holding valid driving licence. In the present case, on behalf of the claimant it was fully proved that the driver was possessing valid driving licence. The Insurance Company has not produced any rebuttal evidence that there was no valid driving licence.
17. It is well established that once, it has been proved by the claimant that the driver had a valid driving licence, the burden lies on the Insurance Company to rebut the same.
18. The claims tribunal has, therefore, believed the entire documents including the driving licence and I do not find any illegality in the findings recorded by the claims tribunal.
19. However, during the appeal owner has also filed the application under Order 41 Rule 27 of the Code of Civil Procedure annexing the copy of the driving licence D.L. No. A-1671/RW /92 in the name of Arjun Singh S/o Anand Singh Village Shgul, P.O. Noqdw Tehri Garhwal and the validity is form 11.5.1998 to 10.5.2001 fro HGV w.e.f 24.6.1994 along with Hill endorsement. On 10th September, 2007 time was allowed to the appellant for filing the reply to the application filed under Order 41 Rule 27 of the C.P.C. Thus, against the said application a counter affidavit was filed. In paragraph 8 of the counter affidavit it has been stated that the driver of the vehicle was not holding the valid driving licence at the time of the alleged accident. However, there is no averment disputing the correctness of the said licence. Entire paragraph 8 is quoted below:
8. That the contents of para 6 of the affidavit filed on behalf of the respondent no. 6 are totally wrong and frivolous, as such are not admitted. The driver of the vehicle was not having a valid and effective driving licence at the time of alleged accident and the respondent No. 5 totally failed to prove the validity of the alleged driving licence. The respondent No. 5 i.e. the owner of the vehicle can not shy away from his liabilities by merely saying that he was not knowing the legal procedure therefore, he could not file the original driving licence before the learned Tribunal and the same apology is not admissible in the eyes of law. It is also relevant to mention here that alleged certified copy filed by the respondent No. 5 as Annexure no. 1 is also not admissible in the eyes of law at this state. Provisions of Order 41 Rule 27 of Code of Civil Procedure are not applicable in this particular case because no due diligence was exercised by the respondent no. 5 and such documentary evidence was well within the knowledge of the respondent No. 5 and he should produce the same before the learned Tribunal. But the respondent No. 5 totally failed to procedure such documentary evidence before the learned Tribunal and the alleged document produced by the respondent No. 5 before this Hon’ble Court is not admissible at this state.
20. Counsel for the appellant has referred the judgment dated 29th October 2005 passed in A.O. No. 1379 of 2001 Bhupesh Chandra Joshi v. Mukhtar Alam and Anr. regarding the fact that the driving licence has to be proved either by the driver of the vehicle or by the owner of the vehicle. Relevant portion of the aforesaid judgment is quoted below:
12. It maybe mentioned here that the Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. has laid down the law on the point. Paragraph No. 110 (iii) reads as under:
(iii) The breach of policy condition e.g. disqualification f the driver or invalid driving licence of the driver, as contained in Sub-section (2) (a) (ii) of Section 149, has 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 either the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.” In view of the law laid down by the Apex Court, it was incumbent upon the Insurance Company to establish that the owner of the vehicle was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the policy conditions regarding use of vehicles by a duly licensed driver.
21. Having considered the entire material on record, I am of the considered view that the learned Tribunal was not justified in holding that the Insurance Company was not liable to pay the compensation because the driver of the Truck No. UTF-1641 was hot having a valid driving licence. I am further fortified in my view by the Apex Court judgment in the case of Punam Devi and Anr. v. Divisional Manager, New India Assurance Co. Ltd. and Ors. wherein provisions of Sections 149(2) and 147 of the Motor Vehicles Act were considered. The Apex Court has observed that “Insurance Company neither pleading nor leading evidence that the offending driver had no licence-Claims Tribunal awarding compensation-Held, quantum of compensation cannot be challenged and the only ground open to the Insurance Company is under Section 149(2), to show that the insured was negligent or that he failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicle-Since the Insurance Company failed to discharge this burden, High Court erred in allowing the appeal.” In the instant case also, the Insurance Company has totally failed to discharge its burden. No plea was taken by the Insurance Company in its written statement that the driver of the offending vehicle was not having a valid licence. Paper No. 29-C/2 has not been proved on record as mentioned earlier. The Insurance Company-respondent No. 2 is liable to pay the compensation. The finding of the learned Tribunal is liable to be set-aside to that extent. The learned Tribunal has awarded compensation of Rs. 25,000/-, which shall be payable by the insurer-respondent No. 2.
22. So far as award of interest @ 12% per annum is concerned, I am of the view that the rate of interest is on higher side, which may be suitably reduced. The bank rate of interest is on decline at present. In view of the Apex Court judgment in the case of United India Insurance Co. Ltd. etc. etc. v. Pattricia Jean Mahajan and Ors. etc. etc. 2002 (2) Apex Court Judgments 100 (S.C.) rate of simple interest can be suitably reduced from 12% p.a. to 9% per annum from the date of filing of claim petition till the date of payment. In the result., the appeal deserves to be allowed.
The appeal is allowed. The impugned order stands modified to the above extent. The amount of compensation i.e. Rs. 25,000/- (twenty five thousand) along with up to date interest @ 9% per annum from the date of claim petition till payment shall be paid by the Insurance Company -respondent No. 2.”
23. In the present case, the driver had expired, owner of the vehicle has stated that the driver had a valid driving licence. The owner has filed its written statement, wherein in paragraph 9 it has been stated:
9& ;g fd okgu nq?kZVuk ds fnu uS’kuy ba’;ksjsal dEiuh }kjk chekd`r Fkk A rFkk okgu MªkbZoj ds ikl oS/k MªkbZfoax ykblsUl Fkk o okgu oS/k dkxtkrks ij py jgk Fkk A
24. In view of the aforesaid findings, I do not find any infirmity while recording the finding on issues No. 1, 2 and 3. So far as quantum of compensation is concerned, no permission under Section 170 of the Motor Vehicles Act has been obtained. Age of the deceased has been taken as 50 and the income of the deceased as been taken as 4993/-, but since the claimant No. 1 is getting Rs. 2000/- per month as pension, therefore, only 2,993/- has been taken as income. According to the age of the deceased multiplier of 13 has been selected. Further the claims tribunal has deducted 1/3rd of the said amount twice though it should have been once, but since no cross objection has been filed, the finding cannot be interfered.
Counsel for the appellant has submitted that the interest is on the higher side.
25. In Managing Director, T.N.S.T.C. v. Sripriya and Ors. 2007 (67) ALR 813 Supreme Court, the Apex Court has observed as under:
10. In regard to choice of the multiplicand the Halsbury’s Laws of England in Vol. 34, para 98 stats the principle thus:
98. Assessment of damages under the fatal Accidents Act, 1976.–The Courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.
The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-hald the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased’s working life at the date of death.
15. Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs. 5,76,000. The other expenses awarded unaltered. In other words, total entitlement of the claimant is fixed at Rs. 6,00,000. It would be appropriate to fix the rate of interest at 7.5.% instead of 9% as done by the Tribunal and maintained by the High Court.
26. In view of the above, so far as the interest part is concerned, the same shall be payable at the rate of 7.5% per annum in place of 9% per annum.
With the aforesaid modification in the rate of interest, Appeal lacks merit and is dismissed. No order as to costs.
