* 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 30FAO 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