Partly allowed

National Insurance Company Ltd. v. Satya Narain Keserwani and Others

Allahabad HC26 May 2023FAFO/1394/2006

Case brief

AI extract

What is this about?

Appeal by insurer against award for death in road accident; cross-objection by claimants for enhancement. High Court denied insurer's liability defence as owner failed to plead/prove basic facts; insurer directed to pay and recover. Compensation enhanced using multiplier of 18, 50% future prospects and conventional heads.

What did the court decide?

Compensation enhanced to Rs.5,96,000 with 7% interest per annum from date of petition; insurer to pay first and recover from owner.

National Insurance Company Ltd. Vs Satya Narain Keserwani and… — Insurance | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:124431

Court No. - 64

Reserved

A.F.R.

Case :- FIRST APPEAL FROM ORDER No. - 1394 of 2006 Appellant :- National Insurance Company Ltd. Respondent :- Satya Narain Keserwani and others Counsel for Appellant :- Mr. Komal Mehrotra, Advocate Counsel for Respondent :- Mr. Ram Singh, Mr. Vinay Kumar Chaturvedi, Advocates

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With

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Case :- Cross Appeal/ Cross Objection No. - 65668 of 2013

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Appellant :- Satya Narain Keserwani and another Respondent :- National Insurance Company Ltd. and others Counsel for Appellant :- Mr. Ram Singh, Advocate Counsel for Respondent :- Mr. Komal Mehrotra and Mr. Vinay Kumar Chaturvedi, Advocates

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Hon'ble J.J. Munir,J.

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1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award of the Motor Accident Claims Tribunal/ the Additional District Judge, Court No.13, Allahabad dated 28.02.2006 passed in MACP No.407 of 2004.

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2. The appeal is by the Insurance Company, who say that they are not liable.

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3. Cross Objection No.65668 of 2013 has been brought on behalf of the claimants, who are respondents to the appeal, saying that the compensation awarded is insufficient and ought to be enhanced.

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4. This judgment will decide both the appeal and the crossobjections.

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5. The facts giving rise to the claim petition are that one Dinesh Kumar Kesarwani was engaged in the business of retailing rice. On 08.07.2004, he was proceeding on a bicycle

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along with one Somnath Kesarwani – both riding their bicycles from Police Station Saini, District Kaushambi towards Shiv Kuti in Allahabad. He was riding his bicycle according to the rule of the road. At about 20 minutes past 12 in the afternoon hours, a gas tanker approached from the Phaphamau end of the road. It bore registration No. HR-29GA-0320. The tanker was driven by its driver at a high speed and negligently. On the Phaphamau bridge, the tanker aforesaid came over to Kesarwani's side and hit his bicycle. Dinesh Kumar Kesarwani was crushed under the wheels of the tanker and died on the spot. The claim petition was instituted by Satya Narain Kesarwani, the deceased's father, claiming compensation for himself and the deceased's mother, Smt. Nirmala Devi, the two dependents, who survived Dinesh Kumar Kesarwani. It was claimed that the deceased was 25 years old and engaged in the business of selling rice. He was a self-employed man, who would earn Rs.6000/- per month.

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6. The owner of the offending tanker, one Tara Chand Goel was impleaded as opposite party No.1 to the claim petition and the National Insurance Company Ltd., M.G. Marg, Civil Lines, Allahabad were the insurers of the offending tanker. The National Insurance Company (the appellant) and Tara Chand Goel (respondent No.3) shall hereinafter be referred to as 'the Insurers' and 'the owner', respectively. The father and the mother of the deceased, including the legal representatives of the father, substituted pending this appeal, shall be referred to as 'the claimants', unless the context otherwise requires. The claimants demanded a total compensation in the sum of Rs.12,55,000/-.

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7. The owner filed a written statement, generally denying the claimants' case. It is pleaded that the offending tanker is

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insured with the Insurers and information of the accident was given to the Insurers. The offending tanker had a national permit, and that, it was fit and roadworthy. The driver of the tanker held a valid driving licence. The accident happened on account of the deceased's negligence while riding his bicycle. It was the deceased, who by his own negligence, came under the wheels of the offending tanker. Along with the written statement, the owner filed eight documents, which include a power of attorney, a notice sent to the Insurers, registration certificate, permit, fitness certificate, a copy of the insurance cover, driving licence and the five yearly permit.

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8. The Insurers filed a separate written statement, generally denying the claimants' case. In the additional pleas, it was averred that the registration book, the driving licence and the permit of the offending tanker, besides other papers have not been filed along with the petition. The compensation claimed for the loss sustained was described as false and bogus, saying that no accident ever took place. It was averred that the claimants have not given the necessary documents and other information in support of the claim petition. The compensation demanded is disproportionate. A plea was also raised to the effect that the offending tanker was being driven against the terms and conditions of the insurance policy at the time of the accident, disentitling the claimants or the owners from recovering from the Insurers. In Paragraph No.29, it is averred that at the time of the accident, the driver of the offending tanker did not hold a valid and effective driving licence to drive the particular kind of vehicle that the offending one was. On these pleas, the Insurers asked to be relieved of their liability.

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9. On the pleadings of parties, the following issues were framed (translated into English from Hindi):

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“1. Whether on 08.07.2004 at about 12.20 in the afternoon, at the Ganga Bridge, Phaphamau, within the local limits of P.S. Shiv Kuti, District Allahabad, vehicle bearing registration No. HR29GA-0320, driven at a high speed and negligently by its driver, hit Dinesh Kumar Kesarwani, when he was riding his bicycle, on account of which he sustained injury, leading to his death?

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Whether the accident happened on account of the exclusive negligence of the deceased?

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Whether at the time of the accident, the driver of the vehicle in question held a valid driving licence?

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Whether at the time of the accident, the motor vehicle in question was insured the opposite party, Insurance Company, in accordance with rules?

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Whether the claimants are entitled to receive any compensation, if yes, from whom?”

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10. The claimants filed through a list of documents eight papers, that includes the First Information Report, the chargesheet, the site plan, the postmortem report, the technical inspection report, the registration certificate, the insurance policy and a copy of the driving licence.

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11. In the oral testimony, the claimants examined PW-1, Satya Narain, one of the two claimants. In addition, Somnath Kesarwani was examined as PW-2.

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12. On behalf of the owners, a copy of the driving licence was filed. The Insurers filed a report of their Investigator on 24.02.2006, who submitted his report along with a certificate from the concerned Regional Transport Officer about the driving licence, subject matter of consideration here.

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13. Issue No.1 was decided in favour of the claimants and against the owner and the Insurers. Issue No.2 was also decided in favour of the claimants and against the Insurers and

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the owner holding that there was no negligence of the deceased involved, leading to the accident. Issue No.3 was also decided in favour of the claimants and against the Insurers albeit with some vacillating remarks, but in the end holding that the Insurers could not prove by any evidence, apart from their own Investigator's report that the licence was forged or bogus. Issue No.4 was also decided in favour of the claimants and the owner and against the Insurers holding that on the date of the accident, the offending tanker was duly insured with the Insurers.

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14. While deciding Issue No.5, which relates to compensation, to which the claimants are entitled, the Tribunal credited the deceased with a daily income of Rs.100/- per day and making allowance for six days of holiday/ non-working days, the monthly income was determined at a sum of Rs.2400/-. The deduction towards personal and living expenses was ordered to the extent of a one-third, that is say, Rs.800/-, leaving back a dependency for the claimants in the sum of Rs.1600/- per month. The annual income was, therefore, determined at Rs.19,200/-. The deceased's father was aged 49 years and his mother 46. The Tribunal adopted the multiplier of '13', going by the age of the claimants rather than the deceased. Adopting that multiplier, a compensation of Rs.2,49,600/- was awarded, to which was added a sum of Rs.2000/- in funeral expenses. Thus, the total compensation, that was awarded, was a sum of Rs.2,51,600/- carrying 6% simple interest, annually reckoned, from the date of institution of the claim petition, until realization. The entire compensation payable was directed by the Tribunal to be shared equally between the claimants.

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15. Heard Mr. Komal Mehrotra, learned Counsel for the Insurers, Mr. Ram Singh, learned Counsel appearing on behalf of the claimants and Mr. Vinay Kumar Chaturvedi, learned Counsel appearing on behalf of the owner.

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16. Mr. Ram Singh, learned Counsel has been heard in support of the cross-objections and Mr. Komal Mehrotra and Mr. Vinay Kumar Chaturvedi in answer.

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17. It is argued by Mr. Komal Mehrotra that the Insurers are not liable in this case, because the driver was a man, named Hazrat Ali. He was not holding a valid licence. A photostat copy of the driving licence for this driver, that was provided, when verified with the Licensing Authority, Rajkot, Gujarat, who has purportedly issued it, revealed that the driving licence on the relative number was issued in the name of one Harsab Bhai. The driving licence verification report was submitted before the Tribunal. It is pointed out that along with the report that was filed, an application, paper No.26-Ga was moved, that is to say, the application dated 22^nd February, 2006, requesting the Tribunal to summon the original record from the Licensing Authority. It is pointed out that by means of an order dated 24^th February, 2006, the Tribunal directed the licence verification report to be kept on record, but did not pass any order to summon records from the Licensing Authority, Rajkot. It is argued that while deciding Issue No.3, the Tribunal committed a manifest error of law in holding that since the Insurers produced the Investigator's report on record to show that the driving licence was fake, whereas the claimants produced a copy of it, the Insurers' case about the licence being fake could not be accepted. It is emphasized that along with the Investigator's report dated 2^nd September, 2005, the driving licence verification report from the Licensing Authority, Rajkot in original

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was also filed. The submission is that the Insurers by producing all this evidence evidence discharged their burden to show that the licence claimed for the driver by the owner was fake. With so much of evidence, it was for the claimants or the owner to prove by leading evidence in rebuttal that the licence was genuine. It is urged that in the face of such facts, the Insurers should have been given the right to recover from the owner as there was a breach of the policy.

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18. About the compensation claimed, it is argued that there is no evidence of the deceased being gainfully employed in the business of retailing rice. Therefore, according to the Insurers, he could at best be credited with a notional income of Rs.15,000/- per year. The Tribunal was in error in finding for the deceased an annual income of Rs.19,200/-.

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19. Mr. Ram Singh, learned Counsel for the claimants has refuted the submissions advanced on behalf of the Insurers. He submits that it is enough for the owner to produce a photostat copy of the licnece, giving full particulars thereof. He emphasizes that to prove that the licence held by the driver was fake, burden lay upon the Insurers to ensure summoning of records from the Licensing Authority or an official of theirs, who issued the certificate about the licence, on the foot of which the licence is dubbed as fake. The official, once summoned, would have to prove the certificate and subject himself to crossexamination. It is then that the Insurers' burden could be discharged or shifted to the owner and the claimants, in the sense of the evidential burden.

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20. On the point of the validity of the licence, learned Counsel for the owner, Mr. Vinay Kumar Chaturvedi has supported the claimants' stand. He too submits that given the details of the

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licence, it was incumbent upon the owner to summon some official from the Licensing Authority's office for the purpose of proving the certificate, on which the Insurers rely.

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21. So far as the appeal is concerned, the thrust of the parties' contention is about the validity of the licence held by the driver and the standards by which it must be proved to be fake or held genuine. Of course, the allied question, who would bear the burden of dispelling the validity of the licence or affirming its genuineness, has been mooted at length during the hearing.

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22. In support of his submission, Mr. Mehrotra has relied upon the decision of this Court in United India Insurance United India Insurance Co. Ltd. v. Smt. Shashi Prabha Sharma and others, 2015 (4) TAC 650 (All) . Apparently, the said Full Bench deals with a very different question, which is concerned more about the mode to recover from the owner assuming a case where the direction is to pay and recover. Therefore, the said authority is not of much assistance to the Insurers.

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23. The next decision on which the learned Counsel for the Insurers has relied is National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 . The holding of their Lordships of the Supreme Court in Challa Upendra Rao ( supra ) is to the effect that where a transport vehicle plies without a permit, it constitutes a violation of Section 149(2) of the Motor Vehicles Act and affords a defence to the Insurers. In that case, it was held that the Insurers would have a right to pay and recover. To the understanding of this Court, that is not at all the point involved here.

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24. Mr. Mehrotra has further placed reliance upon an unreported decision of this Court in Shri Kedar Singh v. Sarla Devi and others, FAFO No.2261 of 2019, decided on

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27.09.2021 . In Shri Kedar Singh ( supra ), there are certain remarks of my esteemed brother Siddharth that require consideration. In Shri Kedar Singh , it has been observed by His Lordship:

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“16. Learned counsel for the respondent no.4/Reliance General Insurance Co. Ltd., has submitted that while deciding issue no.3 the tribunal has rightly proceeded and recorded a finding that the driver of the truck did not had a valid and effective driving licence at the time of the accident as the driving licence on record was found to be fake.A bare perusal of the finding on issue no.3 would go on to show that apart from bringing on record a mere photocpy of the driving licence (driving license no.2222/RJ/2005) no other evidence was filed by the owner/appellant. Neither the original driving license was brought on record by the owner of the truck/ appellant nor did he entered the witness box to substantiate the same. Even the driver was not examined by the owner of the truck/appellant. The insurance company on its part investigated the validity of the driving licence(DL No. 2222/RJ/2005) and consequently filed the report received from the concerned R.T.O. under Form 54 before the tribunal. The bare perusal of the report received on Form 54 would go on to show that the driving licence no. 2222/RJ/2005 was issued in favour of one Krishna Goapal and not in the name of the alleged offending driver i.e, Bhola. As such the photocopy of the driving licence of Bhola filed by owner of the truck/appellant was a fake document. It is a settled proposition of law that Form 54 is a public document which does not requires further evidence of formal proof by examining a witness....

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During the course of further hearing the owner of the truck/ appellant relied upon the judgement of the Apex court in the case of Pappu and others Vs. Vinod Kumar Lamba and another, reported in (2018) 3 SCC,208 and Pepsu Road Transport Corporation vs. National Insurance Company Ltd., reported in 2013(6) AWC 5736. Both these judgements have been relied upon by the owner of the truck/appellant which in fact support the stand of the insurance company/respondent. In the case of Pappu (supra) the Apex court has laid down the parameters of burden of proof of driving licence.

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It has been categorically held in para-13 in the case of Pappu(Supra) that " the insurance company would be made liable only when the foundational fact are pleaded and proved by the owner of the offending vehicle."

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In the facts and circumstances of the present case neither did the owner of the truck/applicant bring on record the original driving license of the driver(Bhola) of offending vehicle nor did he enter into the witness box to establish the validity of the

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driving license. In fact even the driver was not produced before the tribunal. In such circumstances mere filing of photocopy of the driving license would not absolve the owner of the truck/appellant of his liability. To the contrary the insurance company/respondent on its part had duly filed Form 54 which categorically established the fact that the document brought on record by the owner respondent was a fake, forged, fraudulent and fabricated document.

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So far as the case of Pepsu Road Transport Corporation(supra) is concerned the same is easily distinguishable and do not apply in the peculiar facts and circumstances of the present case. In the case of Pepsu(supra) the insurance Company had brought on record a photocopy of the register maintained for issuing the licence. The report itself was not conclusive since it mentioned that register might be missing. But in the facts and circumstances of the present case the Form 54 categorically mentioned that the driving licence was issued in the name of a different person than the alleged offending driver,i.e., Bhola.

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Apart from the above in the case of Pepsu(supra) the insured/employer during the process of employment of the driver had put the driver to a driving test and had infact imparted training to him also. The said aspect of the matter was duly pleaded and proved by the owner/insured by entering the witness box and proving the same. In the peculiar facts and circumstances of the present case, no such assertion or efforts had been made by the owner of the truck/appellant before the tribunal or for that matter before this court. He merely filed a photocopy of the driving license of driver Bhola, which would not discharge him from his burden of proof.

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Regarding the second submission of the learned counsel for the owner of the truck/appellant of the discarding of the validity of driving licence of the truck driver by the tribunal, this court finds that only photocopy of the driving licence of the driver, Bhola was brought on record by the owner /appellant before the tribunal. The vehicle owner never appeared in witness box before the tribunal to prove that the driving licence was given to him by his driver, Bhola and he was satisfied that it is genuine. He also did not proved that he made efforts to see that the driver is competent to drive. He was required to prove before the tribunal that he had taken reasonable care in employing the driver, who was qualified and competent to drive the vehicle. The liability as between the insurer and the insured depends upon the reasonable care taken by the owner of the vehicle, while employing a qualified and competent driver. These basic facts are required to be proved by the owner of the vehicle before the tribunal so as to protect himself from the liability viz- a- viz insurance company before the Motor Accidents Claims Tribunal.”

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25. In a more recent decision of the Supreme Court in Rishi Pal Singh v. New India Assurance Co. Ltd. and others, 2022 (3) ACC 556 , the question about the burden of proof regarding the validity of the licence in a motor vehicle accident claim as between the owner, the insurer and the claimant arose for consideration of their Lordships, where it was held:

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“10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver.”

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26. Rishi Pal Singh ( supra ) was a case where the driving licence was not found genuine, but the facts were that the owner deposed on affidavit before the Tribunal that prior to employing the driver, he had subjected the driver to a driving test and found his driving skills satisfactory. In his crossexamination, the owner said that the driver was employed with him for three years before the date of the accident. The owner stood by the fact in his cross-examination that he had taken the driver's driving test before employing him. One feature of the case was that the owner said that the driving licence was obtained from the driver and it was issued by a Licensing Authority in Nagaland, but the owner did not produce it in evidence. The Tribunal and the High Court held that the owner alleged that the driver had a licence from Nagaland, but did not produce it. Therefore, the Insurance Company was entitled to recover from the owner. Before their Lordships in appeal by special leave, as the report of the decision would show, the records of the Tribunal were requisitioned. The records revealed that the driver's licence was produced before the Tribunal by the claimant. The genuineness of that licence was investigated and in the report that was submitted, the driving

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licence purporting to be issued by the Licensing Authority, Mandi, State of Himachal Pradesh, was not found genuine. It was in the context of the above facts that in Rishi Pal Singh , it was held:

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“5. Thus, it was the claimant alone who relied upon the license issued by Licensing Authority Mandi. The same was not found to be genuine. The statement of the owner, that the license was from Nagaland is without any supporting documents and is thus meaning less. The fact remains, having appointing driver after taking test, the Appellant was not expected to make enquiries from the licensing authority as to whether driving license shown to him is valid or not.

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If the owner has stated that driver had produced the driving license from Nagaland but no such license was produced on record, it is obviously a mistake on the part of the owner. However, such aspect cannot be used to grant liberty to the Insurance Company to recover the amount from the owner when the driving license actually produced by the claimant themselves was from Una, Himachal Pradesh. It may be stated that falsus in uno, falsus in omnibus is not the principle applicable in India. Therefore, even if a part of the statement that the driver has produced the license from Nagaland is not correct, it is wholly inconsequential.”

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27. There is no quarrel about the proposition that if it is the Insurers' case that the driver did not hold a valid driving licence, the burden of proof is upon the Insurers to prove it to be so. But, before that burden can be cast on the Insurers, there is an onus to be discharged by the owner of the offending tanker, which requires him to plead and prove the facts within his knowledge that the driver was the man he had authorized to drive the vehicle, and that, in the owner's belief, he held a valid driving licence at the time of the accident. In Pappu and others v. Vinod Kumar Lamba and another, (2018) 3 SCC 208 , this was precisely the question that fell for consideration of the Supreme Court, where it was held:

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“ 12. This Court in National Insurance Co. Ltd.

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[ National Insurance Co. Ltd. v. Swaran Singh , (2004)

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3 SCC 297 : 2004 SCC (Cri) 733] has noticed the defences available to the insurance company under Section 149(2)( a )( ii ) of the Motor Vehicles Act,

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The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.”

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(emphasis by Court)

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28. There are some further remarks in the context of the facts in Pappu ( supra ), which led their Lordships to hold about the owner's initial burden or the onus probandi to be discharged about the driver's driving licence and his authorization to drive the vehicle before the insurer's burden to dispel the validity of the driver's licence comes into existence. These facts are mentioned in Paragraph No.13 of the report in Pappu , which read:

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“ 13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No. DIL 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. …........ Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle.”

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29. The later part of Paragraph No.13 of the report in Pappu are again enunciative of the law about proof of the foundational

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facts that has to be discharged by the owner before the insurer can be called upon to discharge his burden about the validity of the licence. The aforesaid view has been followed by this Court in Shri Kedar Singh and also by the Bombay High Court in an unreported judgment in The Branch Manager, New India Insurance Co. Ltd. v. Kausalyabai and others, First Appeal No.259 of 2003, decided on 30^th September, 2022 .

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30. In this connection, reference may be made to the decision of the Supreme Court in Rukmani and others v. New India Assurance Co. and others, (1998) 9 SCC 160 , which was a case arising under the Motor Vehicles Act, 1939. In Rukmani ( supra ), a very brief judgment of their Lordships, it was observed:

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“ 2. The Insurance Company has been absolved from liability in respect of the claim for compensation by the High Court on the ground that the driver had no valid licence. The High Court has noted that under Section 96(2)( b )( ii ) of the Motor Vehicles Act, 1939, if the Insurance Company contends that the driver of the vehicle had no valid driving licence, the burden is on the Insurance Company to establish it. The High Court, however, came to the conclusion that this burden had been discharged by the Insurance Company.

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3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, “My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it.” In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)( b )( ii ) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set

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aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs.”

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31. The principle in Rukmani is about the general burden of the Insurance Company to establish that the driver did not hold a valid driving licence if they so allege, but apparently it does not decide the point about the onus probandi resting on the owner's shoulders to establish the basic facts spoken of in Pappu . Therefore, the judgment in Rukmani would not come to the owner's rescue in this case on a blanket basis, unless it be shown that the owner had established the basic facts about the validity of the driver's driving licence and his authorization to drive the offending tanker.

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32. The entire gamut of principles in United India Insurance Co. Ltd. v. Lehru and others, (2003) 3 SCC 338 , National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 , New India Assurance Co. v. Kamla and others, (2001) 4 SCC 342 , and above all Rukmani , lay down principles in the context of a motor accident claim, that has the owner before the Tribunal. In all those cases, one part of the principle grants a very liberal cover to the owner, where in the face of a fake driving licence, the owner comes forward with a case that he went by the apparent tenor of the driving licence, that was produced by the driver before him at the time of employment and then tested the driver for his driving skills, which he found to be reasonably proficient. If the owner proves the said fact by his testimony before the Tribunal, a driving licence, howsoever fake, cannot entitle the insurer to recover. Nevertheless, before this part of the protective principle for the owner comes into play, the other part of it mandates, what was laid down in Pappu that the onus would shift to the insurer after the owner ' pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive

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the vehicle and was having a valid driving licence at the relevant time ' to borrow the words of their Lordships.

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33. It is in the context of the aforesaid principles that the case of parties the way it is pleaded and sought to be proved requires examination. The owner did appear before the Tribunal and filed a written statement. He did not further appear at the hearing, testify on oath in the witness box or tender evidence on affidavit. No doubt, he has filed some documents with his written statement, which includes a photostat copy of the driver's driving licence, the offending tanker's registration certificate, the national permit, the five yearly permit, the fitness certificate and the insurance cover. In addition, a power of attorney in original was also annexed to the written statement. There is not a word in the written statement filed by the owner that he had seen the driving licence of the driver before recruiting him and gone by its apparent tenor. It is also not pleaded that he had tested the driving skills of the driver and found him to be proficient. Nothing of the kind has been said in the owner's written statement. Since the owner did not tender any evidence on affidavit or in the witness box, it goes without saying that he said nothing about the driver or his driving licence.

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34. The Insurers on their part have produced an investigation report written by their own Investigator dated 02.09.2005, bearing paper No. 28-Ga, saying that the driving licence in question was verified with the Licensing Authority, the R.T.O., Bhuj, who has certified that Licence No. MH0260547, the number carried on the xerox copy of the licence relied upon by the owner was issued in the name of one Harsab Bhai. The report of the Investigator is accompanied by a certificate of the Regional Transport Officer, Bhuj, who certifies the name of the

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licence holder as Harsab Bhai with reference to the relative licence number relied upon by the owner. The documents produced by the Insurers to dispel the validity of the licence, if the Insurers indeed bore the burden, would hardly discharge it. The reason is that no one was produced from the office of the R.T.O., Bhuj to prove the the certificate on which the Insurers rely. But, all these issues are irrelevant because onus probandi was never shifted to the Insurers, requiring them to prove the licence, as the owner never pleaded the basic facts nor proved them by his testimony on affidavit or viva voce . The Insurers' failures are, therefore, irrelevant and discounted.

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35. The other evidence that the owner has annexed to the written statement and about which there is no quarrel, certainly shows that the vehicle was duly insured and plied on the basis of valid papers. It is a case, therefore, where the Insurers cannot be absolved altogether of their liability, but must be granted the right to recover from the owner. It is held accordingly.

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36. Now, the other question that arises is about the compensation, to which the claimants are entitled. There is a cross-objection by the claimants seeking enhancement of the compensation awarded. The learned Counsel for the claimants urges that it ought to be enhanced whereas the learned Counsel for the owner and the Insurers say in one voice that the Tribunal has passed a just award. The Tribunal has worked out the dependency on an income of the deceased being a sum of Rs.100/- per day. The evidence on record shows that the deceased was into the retailing of rice. There is no reason why the income of any businessman, of whatsoever scale, should be rated on a daily basis. The system of rating income on a daily basis is applicable to daily-rated labourers, particularly

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once it comes to discounting a few days of rest from the month. This kind of an approach to the assessment of income is classically associated with casual labourers who would not have engagement throughout the days of the month, and, in any case, would have to suffer or enjoy a day of holiday at the weekend or other non-working days. A businessman of any kind, particularly, a retailer is not tied down to a daily schedule of earnings. His income has to be assessed on a monthly basis or may be for the whole year, based on a monthly division. The deceased here was retailing rice moving about on his bicycle. Therefore, he was a man who was earning not even in a market set up that had market regulations about ‘closed’ days.

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37. The deceased was a bachelor and supporting his parents. The deceased was a young man in the prime of his life, just 25 years old. The testimony of PW-1, Satya Narain, the deceased's father clearly shows that in the examination-in-chief he has asserted that the deceased would earn Rs.6000/- per month from his business in retailing rice. In fact, on the fateful day too, he was returning back from Phaphamanu Bazar along with the witness's nephew. In the cross-examination, at the instance of the Insurers, it is said that the deceased would do retailing of rice at Jhalwa. The said business does not require registration. There are no receipts relating to sale and purchase of rice filed on record, nor did the witness have such receipts. It is but logical that there would be no accounts or balance-sheets for a man earning his livelihood by retailing rice in a semi-urban part of the city. To expect of this kind of retailers to maintain records, like balance-sheets or file income tax returns is nothing, but the betrayal of an unrealistic approach on the Tribunal's part. At the same time, the non-maintenance of such records, like balance-sheets, receipts, accounts, registers or

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returns cannot derogate from the fact that the man would have been in profitable business, supporting his family at that age. Business outside the organized sector cannot be ignored when it come to assessment of their profits; when it is time to pay them.

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38. The deceased died in the year 2004 and the figure of Rs.6000/- for his income has almost gone effectively unchallenged. Bearing in mind the deceased's circumstances, it would be reasonable to assume for him a monthly income of Rs.3000/-, without any deductions, for non-working days as done by the Tribunal. This would lead to an annual income of Rs.36,000/-. The Tribunal has deducted a one-third towards the deceased's living and personal expenditure. Going by the law laid down in Sarla Verma (Smt) v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , the deceased being a bachelor, deduction towards living and personal expenses would be a one-half; not a one-third. The Tribunal has adopted a multiplier of '13'. The way the evidence goes, the deceased was a young man of 25 years. Following the table set out in Paragraph No.40 of the report in Sarla Verma ( supra ),a multiplier of '18' is appropriate to adopt. The Tribunal has erred in adopting the multiplier of '13' going by the age of the deceased's parents. It is, accordingly, held about the deduction to be made and the multiplier to be adopted.

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39. Nothing has been awarded by the Tribunal towards future prospects. The issue has received consideration of the Constitution Bench in National Insurance Company v. Pranay Sethi and others (2017) 16 SCC 680 , where the benefit of future prospects has been extended to the self-employed as well. In Pranay Sethi ( supra ), it has been held:

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“ 56. The seminal issue is the fixation of future prospects in cases of deceased who are self-employed or on a fixed salary. Sarla Verma [ Sarla Verma v. DTC , (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.

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57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person

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who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

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58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [ Sarla Verma v. DTC , (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari [ Reshma Kumari v. Madan Mohan , (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.”

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40. The next question that falls for answer is whether future prospects, which the claimants would be entitled to, are to be determined in accordance with the law laid down in Pranay Sethi or Rule 220-A (3) of the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998). This is answered by the holding of the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822 , where it was observed:

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" 9. It is to be noted that the validity of the Rules was not, in any way, questioned in the instant matter

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and thus the only question that we are called upon to consider is whether in its application, sub-Rule 3(iii) of Rule 220A of the Rules must be given restricted scope or it must be allowed to operate fully.

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10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.

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11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethicannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.

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12. We, therefore, reject the submission advanced on behalf of the appellant and affirm the view taken by the Tribunal as well as the High Court and dismiss this appeal without any order as to costs."

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41. Therefore, there is little doubt that in the State of Uttar Pradesh, future prospects are to be determined in accordance Rule 220-A(3) of the Rules of 1998.

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42. The question whether Rule 220-A(3) of the Rules of 1998, that came into force w.e.f. 26 September, 2011, would apply retrospectively to an accident that took place much before the amendment, is no longer res intergra . A Division Bench of this Court in Sushil Kumar and others v. M/s. Sampark Lojastic Private Limited and others, 2017 (35) LCD 1311 has held:

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" 31. Rule 220-A was inserted in the Uttar Pradesh Motor Vehicles Rules, 1998 in view of the various decisions of the law courts for providing benefit on account of future prospects of the injured/deceased. It provides for addition of certain percentage of the income of the injured/deceased in his actual income depending upon the age of the injured/deceased for the purposes of determination of the compensation. The aforesaid Rule came into effect on 26.09.2011 after the decision of the claim petition but before filing

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of the appeal though the accident took place on 08.05.2010 much before the enforcement of the above Rule.

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32. It is in view of the above that an argument is being raised that Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident which had taken place on 08.05.2010.

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33. In Ram Sarup Vs. Munshi AIR 1963 SC 553 it was laid down that a change in law during the pendency of an appeal has to be taken into account and will cover the rights of the parties.

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34. The view expressed above was followed by the Supreme Court in Mula Vs. Godhu AIR 1971 SC 89.

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35. In Dayawati Vs. Inderjit AIR 1966 SC 1423 the court had observed as under:-If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.

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36. In Amarjit Kaur Vs. Pritam Singh AIR 1974 SC 2068 effect was given to the change in law during the pendency of an appeal as the hearing of an appeal under the procedural law of this country is in the nature of rehearing of the suit by superior court.

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37. It was in the light of the above decisions that in Lakshmi Narayan Guin and others Vs. Niranjan Modak AIR 1985 SC 111 it was held that a change in law during the pendency of an appeal has to be taken into account and will cover the right of the parties.

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38. The aforesaid decision was followed by a Division Bench of this court in U.P. State Road Transport Corporation Vs. Smt. Madhu Sharma and others, 2003 (4) AWC 2620 which was a case in relation to the provisions of the Motor Vehicles Act and it was observed that it is apparent that the change in law during the pendency of the original proceedings has to be taken into account so as to cover the rights of the parties.

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39. In view of above decision the view expressed by the Division Bench of this court in ICICI Lombard (Supra) is not of good law as it does not takes into account the decisions referred to above in holding that the Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident that took place prior to the said date only for the reason that the Rule was not specifically stated to be retrospective in nature."

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43. According to the law laid down by the Division Bench in Sushil Kumar ( supra ), which apparently binds this Court, the award of future prospects is to be made in accordance with

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Rule 220-A(3) of the Rules of 1998, notwithstanding the fact that the accident happened prior to the amendment. Rule 220A(3), going by the age of the deceased, which is far less than 40 years, would entitle the claimants to add 50% to his income under the head of future prospects.

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44. It still requires determination what the entitlement of the claimants would be under the conventional heads. The principles in Pranay Sethi on the issue are clear, where it is held:

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“ 48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [ UP SRTC v. Trilok Chandra , (1996) 4 SCC 362] . Recently, in Puttamma v. K.L. Narayana Reddy [ Puttamma v. K.L. Narayana Reddy , (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54)

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“ 54 . … we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.”

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49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows:

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“ 3. General damages (in case of death):

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The following general damages shall be payable in addition to compensation outlined above:

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(i) Funeral expenses Rs 2000 (ii) Loss of consortium, if Rs 5000 beneficiary is the spouse (iii) Loss of estate Rs 2500 (iv) Medical expenses — actual Rs 15,000” expenses incurred before death supported by bills/vouchers but not exceeding

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50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra [ UP SRTC v. Trilok Chandra , (1996) 4 SCC 362] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium in Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . The justification for grant of consortium, as we find from Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] , is founded on the observation as we have reproduced hereinbefore.

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51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.

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52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [ Santosh Devi v. National Insurance Co. Ltd. , (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided.

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Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”

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(emphasis by Court)

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45. The question of compensation for the loss of consortium was considered by the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130 , where it has been held:

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“ 21. A Constitution Bench of this Court in Pranay Sethi [ National Insurance Co. Ltd. v. Pranay Sethi , (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [ Rajesh v. Rajbir Singh , (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149]

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21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”. [ Black's Law Dictionary (5th Edn., 1979).]

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21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”.

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21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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(emphasis by Court)

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46. Considering the issue of a just compensation to be made, the award would have to be revised in the following manner:

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(i)	Monthly Income (of the deceased)	=	3000
(ii)	Annual Income (of the deceased) = 3000x12	=	36000
(iii)	Annual Income+Future Prospects (annual income x 50%) = 36000+18000	=	54000
(iv)	Annual Dependency = Annual Income – one-half deduction towards personal expenses of the deceased = 54000-27000	=	27000
(v)	Total Dependency = Annual Dependency x Applied Multiplier = 27000 x 18	=	486000
(vi)	Claimant’s entitlement towards
	conventional heads = Loss of Estate
	+ Funeral Expenses + dependents’ Consortium =15000+15000+40000x2	=	110000
The	total compensation would
ther	efore, work out to a figure of
Rs.	486000+ Rs.110000	=	596000

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47. In the result, both the appeal and the cross-objections are allowed in part . The impugned award passed by the Tribunal is modified and it is ordered that while the owner would be liable to satisfy the award, the Insurers would be obliged to satisfy the award in the first instance and then recover from the owner through miscellaneous proceedings before the Tribunal. The compensation awarded would stand enhanced to Rs.5,96,000/- . The aforesaid sum of money shall carry simple

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interest at the rate of 7% per annum from the date of institution of the claim petition, until realization. Any sum of money already deposited with the Tribunal by the Insurers, pursuant to the impugned award or the interim orders passed by this Court, shall be adjusted against the award. The other directions of the Tribunal in the award shall remain intact.

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48. Costs easy.

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Order Date :- 26.5.2023 Anoop

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Court No. - 64

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Case :- Cross Appeal/ Cross Objection No. - 65668 of 2013

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Hon'ble J.J. Munir,J.