COMM. OF INCOME TAX RAJAHMUNDRY vs. M/S A.VENKATESWARLU AND OTHERS

Insurance

Company

Limited, Hanumangarh through Divisional Manager, National Insurance Company Limited. Residency Road, Jodhpur. .......(Non-Applicant No.3)

4/17 2. Ram Niwas s/o Dalip Chand, R/o 692 Urban Estate 2, Hissar (Haryana). ....(Truck Owner) 3. Laxman Singh s/o Kishanlal, R/o Sagada, Police Station Bhirani, District Hanumangarh. .......(Truck Driver) 4. Radheshyam s/o Gurdayalmal, by caste Agarwal, resident of 22 Arya Samaj Road, Sriganganagar. ........(Car Owner) ..........(Non-Applicants No.1, 2 & 4) (5) S.B.C.MISC. CROSS OBJECTION NO.34/2003 IN S.B.CIVIL MISC. APPEAL NO.273/2003 Appellant: 1. Pushpa Devi w/o Mal Chand, by caste Lakhotia Maheshwari, resident of Sector No.1, Mandi Area, Hanumangarh Town. Versus Respondents: 1. National

Insurance

Company

Limited, Hanumangarh through Divisional Manager, National Insurance Company Limited. Residency Road, Jodhpur. ........(Non-Applicant No.3) 2. Ramniwas s/o Dalilpchand, resident of 692 Urban Estate 2, Hissar (Haryana). .....(Truck Owner) 3. Laxman Singh s/o Kishanlal, R/o Sagada, Police Station Bhirani, District Hanumangarh. ........(Truck Driver) 4. Radheshyam s/o Gurdayalmal, by caste Agarwal, R/o 22 Arya Samaj Road, Sriganganagar. ........(Car Owner) (Non-Applicant Nos. 1,2 & 4)

5/17 (6) S.B.C.MISC. CROSS OBJECTION NO.36/2003 IN S.B.CIVIL MISC. APPEAL NO. 274/2003 Appellants: 1. Smt. Pushpa Devi widow of Shri Kaushal by caste Arora, aged about 39 years. 2. Pravesh Kumar s/o Shri Kaushal (minor at the time of accident) now aged 19 years. 3. Manisha d/o Shri Kaushal, minor aged about 17 years through natural guardian mother Smt. Pushpa Devi All by caste Arora R/o Hanumangarh Town. .....Claimants Versus Respondents: 1. National

Insurance

Company

Limited, Hanumangarh through Divisional Manager, National Insurance Company Limited. Residency Road, Jodhpur. .......(Non-Applicant No.3) 2. Ram Niwas s/o Dalilpchand, R/o 692 Urban Estate 2, Hissar (Haryana). .......(Truck Owner) 3. Laxman Singh s/o Kishanlal, R/o Sagada, Police Station Bhirani, Distt.Hanumangarh. ........(Truck Driver) 4. Radhe Shyam s/o Gurdayalmal, by caste Agarwal, resident of 22 Aryasamaj Road, Sriganganagar. ........(Car-Owner) (Non-Applicants No.1, 2 & 4) DATE OF JUDGMENT : 6th September, 2016

6/17 P R E S E N T HON'BLE MR.JUSTICE ARUN BHANSALI Mr.Sanjeev Johari, for the appellant-Insurance Co. Mr.Dron Kaushik ] Mr.J.R.Chawel for ]for respondents/cross objectors Mr.G.R.Punia ] BY THE COURT: These appeals and cross objections are directed against the judments & awards dated 18/10/2002 passed by the Motor Accident Claims Tribunal, Hanumangarh ('the Tribunal'), whereby, the Tribunal has awarded various sums to the claimants and has held the appellant Insurance Company liable for payment of compensation. At the outset, it may be noticed that besides the three claim petitions from which the present appeals and cross objections arise, another application for compensation was filed by Ms.Kirtika and as the compensation of Rs.5,000/- was awarded to her, the appellant Insurance Company filed S.B.Civil Writ Petition No.4274/2003, which writ petition was dismissed by this Court on 18/8/2003 on account of meager compensation involved and it was observed that the dismissal of the writ petition would not affect

7/17 the merits of the other cases. The applications for compensation were filed by the claimants inter alia with the averments that on 24/10/1997 Kaushal Kumar was driving Maruti Car No. RJ-13-C-3479 from Hanumangarh to Delhi and when the car reached near Kharakheda, Truck No. HR 39- 0277, which was being driven by Laxman Singh from Hisar side came and collided with the car resulting in death of the driver Kaushal Kumar on the spot, the occupants Mal Chand, Kirtika and Smt. Pushpa Devi suffered injuries, to which Mal Chand succumbed in the hospital. Based on these submissions applications were filed seeking compensation, while Smt. Pushpa Devi for the death of her husband Kaushal Kumar sought compensation to the tune of Rs.7,87,000/-, legal representatives of Mal Chand through Smt. Savitri Devi sought compensation to the tune of Rs.42,00,000/-, Smt.Pushpa for her injuries sought compensation to the tune of Rs.4,20,000/- and Kirtika sought compensation of Rs.80,000/-. Owner & driver of the truck remained ex-parte, on behalf of Insurance Company reply was filed disputing the liability of the Insurance Company on the ground

8/17 that driver of the truck was not in possession of valid driving licence. Based on the submissions, the Tribunal framed issues in all the applications. The applications were consolidated and evidence was led by the parties, wherein, the Insurance Company produced two witnesses, Ramesh Chand and Praveen Kumar, the claimants also produced various witnesses in support of their claims. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by both the drivers, Kaushal Kumar and Laxman Singh, which resulted in death of Kaushal Kumar, whereas, Mal Chand, Smt. Pushpa and Kirtika suffered injuries. While considering the defence of the Insurance Company regarding lack of valid driving licence, the Tribunal came to the conclusion that from the material available on record it was not proved that the driver was not in possession of a valid driving licence and, therefore, the Insurance Company was held liable for making payment of compensation. While deciding the issue pertaining to compensation, the Tribunal awarded a sum of Rs.2,85,000/- to Smt.

9/17 Pushpa Devi towards death of Kaushal Kumar, Rs.2,81,667/- for the death of Mal Chand and Rs.65,000/- for the injuries suffered by Smt. Pushpa. While the Insurance Company has filed the appeals questioning its liability to pay the compensation, the claimants have filed cross objections seeking enhancement of the amount of compensation. It is submitted by learned counsel for the appellant that the Tribunal committed an error in coming to the conclusion that the Insurance Company failed to prove that the driver was not in possession of a valid driving licence and held the Insurance Company liable for making payment of compensation. It was submitted that from the evidence available on record it is apparent that the driver Laxman Singh was not in possession of a valid driving licence and the said fact was proved by producing documents Ex.A/6, which was the response given by owner of the Truck as well as report Ex.A/7 given by the Investigator. It was further submitted that no positive evidence was led by the claimants to show that the driver was in possession of a valid driving licence and, therefore, the awards impugned deserve to the set aside and the appellant

10/17 Insurance Company deserves to be exonerated. Learned counsel for the respondent claimants supported the awards impugned. It was submitted that from the material available on record, it cannot be said that the driver was not in possession of a valid driving licence and, therefore, the Tribunal was justified in holding the appellant Insurance Company liable for making payment of amount of compensation. Reliance was placed on the Division Bench judgment of this Court in the case of National Insurance Co. Ltd. vs. Yogesh & ors. : 2010 (2) WLN 181 (Raj.). Making submissions regarding cross objections, learned counsel for the claimants submitted that the Tribunal in the case of death of Mal Chand has wrongly applied the multiplier of 8 as the multiplier of 11 should have been applied in terms of the judgment of Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation : (2009) 6 SCC 121. Regarding the case of Smt. Pushpa Devi qua the death of Kaushal Kumar, it was submitted that the multiplier of 11 has been adopted, whereas, in terms of the judgment in the case of Sarla Verma (supra) multiplier of 14 should have been adopted.

11/17 Regarding the claim case of Smt. Pushpa Devi qua her injuries also it was submitted that the compensation awarded is meager and, therefore, the same deserves to be enhanced. Learned counsel for the appellant Insurance Company making submissions regarding cross objections submitted that the Tribunal has awarded just compensation and the same does not call for any interference. I have considered the submissions made by counsel for the parties and have perused the material available on record. So far as the issue raised by the appellant Insurance Company regarding its liability to pay compensation is concerned, the plea raised pertains to lack of valid & effective driving licence with the driver of the offending Truck. The owner and driver of the vehicle remained ex-parte. The burden to prove the said issue about the violation of Policy condition/lack of valid driving licence has been squarely on the appellant Insurance Company. The Insurance Company on its part got recorded the statement of two witnesses and exhibited certain documents including Ex.A/2 to

12/17 Ex.A/7. Ex.A/2 pertained to notice issued by the Advocate of the appellant Insurance Company to the owner & driver of the vehicle for producing the licence. The owner of the vehicle gave a response Ex.A/6 inter alia indicating that the vehicle was being driven by Laxman Singh at the time of accident, the driver after the accident left the service and has not given him his driving licence. The driving licence is with the driver and, therefore, he was not in a position to produce the same. Document Ex.A/7 pertained to investigation report by one Balraj Pabbi inter alia indicating that he has made investigation regarding the driving licence of the driver and that the driver had no driving licence. The plea taken by the owner of the vehicle regarding his inability to produce the licence as the driver has already left his service, cannot lead to a conclusion that the driver was not in possession of a valid driving licence. The investigation report produced by the Insurance Company also is ipse dixit inasmuch as the investigator has simply gone through the record of the criminal case which pertained to the accident and as the licence was not produced in those proceedings, he has recorded his conclusion that the

13/17 driver was not in possession of a valid driving licence, which investigation report is laconic inasmuch as the investigator has not cared to even contact the driver/owner of the vehicle in this regard. In view thereof, the burden which was on the appellant Insurance Company to prove that the vehicle was driven by the driver without valid/effective driving licence has not been discharged by the appellant Insurance Company. The Division Bench of this Court in the case of Yogesh (supra) has held that mere issuance of notice to the owner/driver is not sufficient to discharge the burden of the Insurance Company to prove lack of driving licence. In view thereof, the submissions made by the appellant Insurance Company regarding lack of valid driving licence with the driver of the Truck cannot be accepted and the finding recorded by the Tribunal in this regard does not call for any interference. So far as the cross objections filed by the claimants are concerned, the claimants Smt. Savitri Devi & others have claimed compensation for the death of Mal Chand. On behalf of the claimants, three Income Tax Returns were produced for the Assessment Years 1995-96, 1996-97 and 1997-98 as Ex,.4, 5 and 6

14/17 respectively. While Ex.4 and Ex.5 were filed before the death of Mal Chand, the Income Tax Return Ex.6 was filed on 12/2/1998 i.e. after his death and the income of the deceased from Rs.16,427/-p.a. for the year 1996-97 has gone upto Rs.63,781/-p.a. in the Assessment Year, 1997-98, which income of the deceased, based on the Return filed after his death, could not have been accepted. However, the Tribunal by taking the average of the three years has assessed the income of the deceased at Rs.32,161/- per annum and after providing for future prospects, has taken the income of the deceased at Rs.50,000/- p.a. and after deducting one third and applying the multiplier of 8, has awarded compensation towards loss of income at Rs.2,66,667/- and further sum of Rs.15,000/- towards mental distress has been awarded. Learned counsel for the appellant submitted that the multiplier of 8 is contrary to law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra). However, in view of the fact that the Tribunal has taken the multiplicand i.e. the annual income of the deceased at a much higher rate inter alia based on an Income Tax Return which was filed after his death, the use of

15/17 multiplier of 8 instead of 11, in the over all circumstances of the case, appears to be justified and does not call for any interference inasmuch as the issue cannot be examined only in terms of multiplier and as noticed hereinbefore if the multiplicand is examined, the same appears to be excessive. In view thereof, the enhancement of compensation sought in the cross objection filed by the legal representatives of Mal Chand does not call for any interference. So far as the compensation in the case of Smt. Pushpa Devi for the death of her husband Kaushal Kumar is concerned, the Tribunal has accepted the income of the deceased at Rs.2000/- per month instead of Rs.2,500/- as claimed, and after taking into consideration the future prospects, has determined the monthly income at Rs.3,000/- and has applied the multiplier of 11, though the age of the deceased was taken at 42 years and after deducting one third towards personal expenses and awarding Rs.21,000/- towards non-pecuniary loss, the Tribunal has awarded a compensation of Rs.2,85,000/- . The multiplicand in the present case also appears to be just and proper in

16/17 the circumstance of the case, however, the multiplier adopted is less as in the case of Sarla Verma (supra) the same has been indicated as 14. In view thereof, the claimant Smt. Pushpa Devi would be entitled to a further sum of Rs.72,000/- towards loss of income and interest @ 7% p.a. on the said enhanced amount of compensation from the date of application i.e. 19/3/1998 till the date of actual payment. The third cross objection pertains to injuries suffered by Smt. Pushpa Devi. The Tribunal, based on the evidence available on record, came to the conclusion that for the injuries suffered by Smt. Pushpa Devi, she was entitled to compensation to the tune of Rs.15,000/- towards medical expenses, Rs.10,000/- towards mental agony and Rs.40,000/- towards permanent disablement and in all a sum of Rs.65,000/- was awarded. The award of compensation of Rs.65,000/- by the Tribunal, in the circumstances of the case, based on the evidence available on record, wherein, permanent disablement was indicated at 7- 8% & there was no proof of income and that the certificate of disablement was by a single doctor and

17/17 not of the medical board, does not call for any interference. In view of the above discussion, while the appeals filed by appellant Insurance Company, Civil Cross Objection No.35/2003 (Savitri Devi & ors. vs. National Insurance Co. Ltd.) and Civil Cross Objection No.34/2003 (Pushpa Devi vs. National Insurance Co. Ltd.& Ors.) are dismissed, the Civil Cross Objection No.36/2003 filed by Smt. Pushpa Devi & ors. is partly allowed. The claimant Smt. Pushpa Devi is entitled to a further compensation of Rs.72,000/- along with interest @ 7% p.a. from the date of application i.e. 19/3/1998. The said enhanced amount of compensation along with interest be paid to Smt. Pushpa Devi in her Saving Bank Account. The appellant Insurance Company is directed to make the payment of enhanced compensation along with interest within a period of six weeks from the date of this judgment. (ARUN BHANSALI), J. item no. 4 to 6 & suppl.1 to 3 baweja/-