Partly allowed

National Insurance Co. v. Smt. Puspa Devi and Others

Allahabad HC13 Sept 2019FAFO/3730/2008

Case brief

AI extract

What is this about?

The High Court dealt with an appeal against a Motor Accident Claims Tribunal award in a Section 163A claim regarding the death of a driver. The Court upheld the maintainability of the claim despite the deceased being murdered, classifying it as accidental murder. It rejected the insurance company's argument regarding a fake license due to lack of proof. The Court partially allowed the appeal by re

What did the court decide?

Interest rate reduced to 7.5% p.a.; compensation to be reassessed by the Tribunal based on updated income figures.

National Insurance Co. Vs Smt. Puspa Devi and Others — Motor Accident Claims | Allahabad HC (2019)

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[1]

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A.F.R.

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Reserved on 21.8.2019 Delivered on 13.9.2019

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No. - 3730 of 2008

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Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Puspa Devi And Others Counsel for Appellant :- Radhey Shyam Counsel for Respondent :- Pradyumn Kumar

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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Heard Sri Radhey Shyam, learned counsel for the appellant and Sri Pradyumn Kumar, learned counsel for the respondent-claimants. None appeared on behalf of owner.

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This appeal, at the behest of the National Insurance Co. Ltd., challenges the judgment and award dated 4.9.2008 passed by Motor Accident Claims Tribunal/Special Judge, Mainpuri (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 268 of 2002 awarding a sum of Rs.1,77,000/- with interest at the rate of 8% as compensation in favour of the respondent-claimants.

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Factual scenario as it emerges for the purpose of this Court is that the deceased and one another person was found dead in Truck No. UP-84 2403 when they were going to load iron rods from Kanpur to Mainpuri. At about 12.45 p.m. on 7.6.2002, the owner was informed about this fact and he lodged a First Information Report. The claimants preferred claim petition claiming that the deceased was 35 years of age and was earning Rs. 4500/- per month and they had become destitute and, therefore, claimed Rs.17,50,000/- with 18% rate of interest.

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The respondent-owner appeared before the Tribunal, accepted

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[2]

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the age of the deceased, that the deceased was employed at his place, his vehicle was insured with Insurance Company and that his driver had proper driving license. The Insurance Company appeared before the Tribunal and filed its reply of negation contending that no cause of action arose against them that the deceased was not 35 years of age as his age certificate was not filed, that there was breach of policy condition.

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The Tribunal on 31.1.2006 framed four issues and returned the findings in favour of the claimants and against the Insurance Company holding that the claim petition was maintainable and allowed the same on the basis of evidence of P.W.1 and P.W.2 and held that the deceased was in employment. The witness withstood the cross-examination by Insurance Company. The Tribunal placed reliance on the decision of the Apex Court in Case of Rita Devi (Infra) and held in favour of the claimants. As far issue No. 2 is concerned, there is no dispute that the vehicle was insured, it had proper permit and that the documents were in order and, therefore, the said contention has not been raised. As for as issue No. 3 relating to license of the deceased-driver is concerned. the Insurance Company has disputed its liability contending that the driving license was fake as proved in M.A.C.P. No. 280 of 2002 and they should be exonerated. In view of this, the appeal requires to be decided.

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The learned counsel for the appellant has contended that the murder cannot be said to be giving cause of action to file a claim under the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988'). It is further contended that the compensation of Rs. 1,77,000/is on the higher side. The truck was neither looted and despite that the Tribunal wrongly decided in favour of the claimants. It is further submitted that the license of the deceased-driver was not produced. It is further submitted that in Motor Accident Claims No. 280 of 2002

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arising out of the same accident, the Tribunal held that the license was fake. This aspect should have been considered by the Tribunal.

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Sri Pradyumn Kumar, learned counsel for the claimants has relied on the decisions in Rita Devi and others Vs. New India Assurance Co. Ltd. and another, (2000) 5 SCC 113, Oriental Insurance Co. Ltd. Vs. Smt. Mainaz and Others, 2014 (3) T.A.C. 408 (All.) and Kalim Khan and others Vs. Fimidabee and others, 2018 (3) T.A.C. 337 (SC) to contend that as per the provisions of Section 166 of the Act, 1988, the involvement of the vehicle is proved. There is no breach of policy conditions and as contended that the compensation awarded requires to be re-evaluated as no amount under the head of future loss of income has been granted and that the amount under the head of non pecuniary damages is on the lower side .

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So as to appreciate the contentions raised by the counsels for the parties, this Court feels that the provision of Sections 147 and 166 of the Act, 1988 be reproduced here which are as follows:

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“ 147 Requirements of policies and limits of liability. —

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(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

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(a) is issued by a person who is an authorised insurer; and

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(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—

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(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

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Provided that a policy shall not be required—

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(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in

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respect of the death of, or bodily injury to, any such employee—

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(a) engaged in driving the vehicle, or

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(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

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(c) if it is a goods carriage, being carried in the vehicle, or

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(ii) to cover any contractual liability.

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Explanation. —For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

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(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:—

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(a) save as provided in clause (b), the amount of liability incurred;

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(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

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Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

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(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

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(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

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(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons”

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166. Application for compensation.—

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(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made—

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(a) by the person who has sustained the injury; or

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(b) by the owner of the property; or

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(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

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(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

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(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.[***] 3(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."

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The decision in National Insurance Company Limited Vs. Smt. Kusuma Devi, 2007 T.A.C. 729 (All.) relied on by the counsel for the claimant before the Tribunal and nothing in the rebuttal has been proved by the Insurance Company. The owner in his written statement contended that the vehicle was being driven by a qualified driver and, therefore, the said ground that the driver did not have proper driving license cannot be accepted. The Tribunal has held that it was the duty of the Insurance Company to prove the negative. The Tribunal has rightly relied on the judgment in Smt. Kusuma Devi (Supra) as the deceased had died. The widow submitted that she did not have the duplicate copy of the driving license.

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It is further contended that the owner in his reply has seen the license of the deceased and the judgment in M.A.C.P. No. 280 of 2002 was never placed before the Tribunal nor any rebuttal evidence was laid before the Tribunal. The submission here about M.A.C. P. No. 280 of 2002 cannot be found from the record of the Tribunal and just because in that matter some adverse inference was drawn, in this matter, the said cannot be made applicable unless it is proved that the

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driver did not have proper driving license or that the findings of M.A.C.P. No. 280 of 2002 were pressed into service. I do not think that the finding of the Tribunal required to be interfered with. The Insurance Company could have very well proved the negative. As far as the policy is concerned, the driver was covered in the said policy. There was proper permit. Just because the license was not produced by the claimants and a so called verification report of one Vineet Jain was produced without examining him on oath, a copy of the verification report and the appended photocopy of license of Chhavi Singh goes to show the license was issued by R.T.O., Mainpuri and the report of licensing authority of Agra was produced which shows that licensing authority from Agra had not issued license in name of Chhavi Singh. The Judgment of this Court in the Case of Smt. Kusma Devi (Supra) has been rightly relied by the Tribunal.

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I am supported in my view by the decision in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557 wherein the Court has held as under:

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“9. The question is whether the letter/certificate issued by Regional Transport Officer, Raipur (Chhatisgarh) can be considered to be a public document as defined in section 74 of the Indian Evidence Act, 1872, which required no proof or it was required to be proved by the person producing it before the tribunal by examining witnesses? A public document is a document that is made for the purpose of the public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licence. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licence is record of the acts of public officers. The State Register of Driving Licence is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licence is a public document as defined by Section 74 of the Evidence Act.

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10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form-54 as laid down by Rule 150(2). Form-54 being a certified copy of a public document, namely, the State Register of Driving Licence, need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under section 26(1) read with Rule 23 is issued in Form-54 it is admissible in evidence under 77 of the Evidence Act, and no further proof of Form-54 by oral evidence by examining witnesses is required.

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11. In the case in hand the information has not been furnished by the registering authority in Form-54. It had been provided in the following manner which is extracted below:-

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“(Hindi matter omitted)

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Sri M. Ibrahim

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12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form-54 of the Rules. Deposit of fee would not convert the letter into a certificate under Rule 150. Therefore, the aforesaid letter issued by Regional Transport Officer, Raipur (Chhatisgarh) was required to be proved by the insurance company before the tribunal by oral evidence by examining witnesses. The insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the tribunal. The tribunal rightly refused to place reliance on the letter dated 20.4.2005.

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13. The learned counsel for the appellant has urged that the application filed by the insurance company before the tribunal on 19.7.2008 was illegally rejected. The application filed by the appellant under Order 12 Rule 2 of the Code of Civil Procedure to the effect that the claimant and the owner of the vehicle may be directed to either admit or deny the letter dated 20.4.2005 was rightly rejected by the tribunal on 19.7.2008 as the burden of proof was on the insurance company to prove that the driving licence of the driver of the offending truck was fake but the insurance company failed to discharge its burden. There is yet another to uphold the order of the tribunal dated 19.7.2008. Under Rule 221 of The Uttar Pradesh Motor Vehicle Rules, 1998 only some of the provisions of the Code of Civil Procedure had been applied to the summary proceedings before the Motor Accident Claims Tribunal. The provisions of Order 12 Rule 2 having not been made applicable to the proceedings before the tribunal, the application filed by the insurance company was not maintainable.

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14. The learned counsel for the appellant has lastly urged that the application filed by the appellant under Section 170 of the Act had illegally been rejected on 2.9.2006 by the tribunal and the appellant is also challenging this order in the appeal. We have examined the relief claimed in this appeal but we do not find that order dated 2.9.2006 had been challenged by the appellant. After the application under Section 170 was rejected it was open to the appellant to challenge the order under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. But the order dated 2.9.2006 cannot be challenged in an appeal, as an appeal under Section 173(1) of the Act lies only against the award of the Motor Accident Claims Tribunal and

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the order under Section 170 not being an award, no appeal would be maintainable against such an order.

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15. For the aforesaid reasons, we do not find any merit in this appeal. The appeal fails and is accordingly dismissed.”

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I am even supported in my view by the decision in Ram Chandra Singh Vs. Rajaram and Others, AIR 2018 SC 3789 wherein it has been held that the Insurance Company did not examine any witness and did not come out with a case that the owner of the vehicle was aware that the license of the driver was a doubtful license and, therefore, it cannot be said that there was any breach of policy condition as envisaged in Section 147 of the Motor Vehicles Act, 1988.

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Just because the truck was not looted, it cannot be said that the claim petition was not maintainable. It is proved that the vehicle was involved and just because he was murdered, it cannot be a ground for rejection of the claim petition.

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14. This Court in Smt. Mainaz and Others (Supra) has held as

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under:

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9. To answer the aforesaid question it would be useful to examine the decision of the apex court in Rita Devi's case (supra) which has been relied by the Tribunal. In Rita Devi's case, the facts of the case were that an auto rickshaw driver was murdered in the process of stealing the auto-rickshaw. The question before the apex court was as to whether the death of auto rickshaw driver was on account of an accident arising out of the use of motor vehicle and, if so, whether a claim under section 163A of the Motor Vehicle Act was maintainable. While deciding the said case, the apex court observed that from a reading of the provisions of section 163-A, a victim or his heirs are entitled to claim from the owner / Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle, without having to prove wrongful act or neglect or default of any one. It was observed that if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. As to whether murder, in a given situation, could be said to be caused due to an accident arising out of the use of motor vehicle, the apex court observed as follows:-

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"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is

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a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."

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Thereafter, the apex court proceeded to hold as follows:-

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"14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was dutybound to have accepted the demand of fare-paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing theft of the autorickshaw.

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18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."

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10. In the light of the law laid down by the apex court, in the instant case, what is, therefore, to be seen is whether from the evidence brought on record, it is proved that the death of Naseem Khan was as an incident of loot/ robbery/ dacoity, that is an "accidental murder", or "murder simpliciter". If this Court comes to a conclusion that it was a case of murder simpliciter that is, where the perpetrators of the crime had the intention of committing murder only, then, the claim under Section 163-A of the Motor Vehicles Act would not be maintainable. But, if this Court comes to a conclusion that it was a case of an accidental murder that is

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where the perpetrators of the act did not have any motive against victim but the death was a result of an act to ensure commission of another act of felony, while the vehicle was in use, then, the claim under Section 163A of the Motor Vehicles Act would be maintainable.

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In that view of the aforesaid factual data, the contention that the petition was not maintainable cannot be accepted because there is an involvement of vehicle. The incident occurred due to use of Motor Vehicle. The deceased was a driver on the said vehicle and was on duty and during the course of employment, this incident occurred. Hence, the said ground fails and the findings of the Tribunal are upheld.

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The Motor Vehicles Act is a beneficial piece of legislation. It has been time and again held that trappings of civil and criminal proceedings cannot be applied in a very strict manner. I am fortified in my view by the decisions in Sunita and others Vs. Rajasthan State Road Transport Corporation and Another, 2019 LawSuit (SC) 190, Mangla Ram Vs. Oriental Insurance Company Limited and Others, 2018 (5) SCC 656 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186

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The compensation is ordered to be reassessed in view of the submission of Sri Pradyumn Kumar and in view of the decision in F.A.F.O. No.2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 .

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The deceased was 35 years of age at the time of accident and was survived by 6 dependants. The Tribunal has granted a sum of Rs.1,77,000/- with 8% rate of interest. The Tribunal considered the income of the deceased to be Rs.15,000/- per year and deducted 1/3rd holding that he would be spending that much amount on himself and granted multiplier of 17 and added Rs. 7,000/- for non-pecuniary damages. This amount requires to be re-evaluated. A driver in the year 2002 when the accident occurred can be safely held to be earning

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Rs.3,000/- per month. The owner did not give any certificate about his income, hence, Rs.3000/- per month would be proper amount. The submission counsel for the appellant that his age should be considered to be 50 years cannot be accepted as the Tribunal has relied on the post-mortem report at Exhibit 19/G. Hence his as considered by the Tribunal to be 35 years requires to be accepted and no fault can be found on this finding of fact by the Tribunal.

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Hence, the income of the deceased is held to be Rs.3,000/- per month namely Rs.36,000/- per year, to which as the deceased was below 40 years of age, 40 % of the income i.e. Rs. 14,400/- requires to be added as future income of the deceased in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 which would come to Rs.36,000+ 14,400 = 50,400/-. Deduction towards his personal expenses would be 1/3rd as he was survived by six dependants out of which three were minor. Hence, after deduction of 1/3rd, the annual datum figure available to the family would be Rs.33,600/-. As the deceased was in the age bracket of 31-35, the applicable multiplier would be 16 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that, Rs.70,000/- is granted under the head of nonpecuniary damages in view of the decision in Pranay Sethi (Supra) . Hence, the claimants are entitled to a total compensation of Rs.33,600 x 16 + 70,000 = 6,07,600/-.

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However, the rate of interest which is 8% would be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

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"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had

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awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

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In view of the above, the appeal is partly allowed qua interest. The cross objection is allowed. The amount be deposited within 12 weeks from today with interest at the rate of 7.5% from the date of filing the of claim petition till the amount is deposited.

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Record and proceedings be sent back to the Tribunal forthwith.

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Order Date :- 13.9.2019 DKS

National Insurance Co. v. Smt. Puspa Devi and Others

Case brief

What is this about?

What did the court decide?

National Insurance Co. v. Smt. Puspa Devi and Others

Case brief

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What did the court decide?

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