Partly allowed

Manjit Kaur v. Ashok Kumar and Ors.

Punjab & Haryana HC4 Sept 2014FAO/1662/1998

Case brief

AI extract

What is this about?

The Court allowed the second appeal against enhancement of award in a motor accident death case, recalculating compensation to Rs. 3,95,400 based on higher income claims. The first appeal by the Insurance Company was dismissed as the company remained liable due to the owner's good faith verification of the license.

What did the court decide?

Appeal of Manjit Kaur partly allowed with enhanced compensation of Rs. 3,95,400 plus interest; Appeal of Insurance Company dismissed.

Manjit Kaur Vs Ashok Kumar and Ors. — Cheque Dishonour | Punjab & Haryana HC (2014)

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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1. FAO-1025-1998 (O&M) Date of Decision: September 4, 2014

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New India Assurance Company Ltd.

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......Appellant.

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vs.

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Manjit Kaur and others

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.......Respondents

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2. FAO-1662-1998 (O&M)

Manjit Kaur

.......Appellant

vs.

Ashok Kumar and others

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........Respondents

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CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI

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Present: Mr.Jatinder Nagpal, Advocate for the appellant-claimant in FAO-1662-1998

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Mr.Ashwani Talwar, Advocate for the Insurance Company.

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NARESH KUMAR SANGHI, J.(ORAL)

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The present judgment shall dispose of FAO-1025-1998 (New India Assurance Company Limited vs. Manjit Kaur and others) and FAO-1662-1998 (Manjit Kaur vs. Ashok Kumar and

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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others), since both the appeals have arisen out of the one and the same impugned judgment, dated 07.02.1998, passed by the learned Motor Accident Claims Tribunal, Patiala.

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FAO-1025-1998 has been filed by the New India Assurance Company Limited challenging the impugned award on the premise that Ashok Kumar, the driver of the offending vehicle, was not holding a valid driving licence on the date of accident and, as such, the learned Tribunal had wrongly held the appellantInsurance Company to satisfy the award.

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FAO-1662-1998 has been filed by claimant-Manjit Kaur, the mother of Devinder Singh (since deceased), for enhancement of the award amount.

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Mr.Ashwani Talwar, learned counsel for the appellantInsurance Company in FAO-1025-1998 submits that it was proved on record that Ashok Kumar was not holding a valid driving licence on the date of accident. Even if the fake license was perused by the registered owner of the vehicle and it was presumed by him that the driver was holding a valid driving licence, then also the appellant-Insurance Company could not be saddled with the liability to satisfy the award.

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On the other hand, learned counsel for the appellantclaimant-Manjit Kaur in FAO-1662-1998 submits that Devinder Singh (since deceased), aged about 19 years, was a shop keeper

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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and dealing in spare parts, thereby earning 2,000/- per month. The learned Tribunal has wrongly calculated his monthly income at the rate of 1200/- per month. There was no material with the learned Tribunal to rebut the deposition of the claimant, Manjit Kaur, who appeared as AW2, and specifically deposed that monthly income of Devinder Singh (since deceased) was 2,000/and, as such, after taking into consideration the monthly income of the deceased to be 2,000/-, 50% of the income be added as prospective income and, thereafter 50% from the same can be deducted on account of his personal expenses and then multiplier of 18 should be applied. He further contends that nothing has been awarded for love and affection and even a meagre amount has been awarded under the head 'funeral expenses'. In support of his contention the learned counsel has placed reliance upon the judgment rendered by Hon'ble the Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and others, 2009(2) SCC (Criminal) 1002.

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I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.

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Though there is no necessity to narrate the entire facts of the case since the appellant-Insurance Company has not disputed the factum of accident and negligence on the part of the

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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driver of the offending vehicle, yet to decide the present appeal, a brief narration of the facts is inevitable which are as under:-

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On 19.02.1994, Devinder Singh @ Jaggu (since deceased) started from Patiala along with his friend Narinder Singh @ Bittu on Vespa Scooter. In the evening, they were coming back from Nabha and at about 4.30 p.m., when they reached near the petrol pump in the revenue estate of Village Rakhra, at that time Narinder Singh was driving the scooter whereas Devinder Singh was on the pillion. After getting the fuel filled, they started from the said petrol pump and in the meantime, the truck bearing registration No.PB-11-D-2466 being driven by Ashok Kumar, came from the Patiala side at a very high speed, without blowing horn, in a zig zag manner and struck against the scooter being driven by Narinder Singh. Resultantly, Narinder Singh and Devinder Singh received multiple injuries and they became unconscious. After hitting the scooter, the offending truck hit against an electric pole standing in the fields. Narinder Singh and Devinder Singh were taken to Rajendera Hospital, Patiala, by Tarsem Lal, who had witnessed the occurrence. On account of the injuries sustained in the accident, Devinder Singh died on 24.02.1994 in the Rajendera Hospital, Patiala. The matter was reported to the police and FIR No.45, dated 19.02.1994, for the offences punishable under Sections 279, 337 and 304-A, IPC,

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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was registered at Police Station, Sadar, Patiala.

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After collecting the relevant documents, Manjit Kaur and Rupinder Kaur, mother and sister respectively of Devinder Singh (since deceased), presented the claim petition claiming that Devinder Singh was aged 19 years; running a spare parts shop; earning 2,000/- per month and both the claimants were dependents on the earnings of Devinder Singh (since deceased). They claimed a sum of 4.00 lacs as compensation apart from the interest.

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Respondent No.1, the driver of the offending vehicle, was proceeded against ex parte. Respondent No.2, the registered owner of the offending vehicle, filed his reply alleging that the accident had occurred due to negligence on the part of Narinder Singh, the driver of the scooter. The truck owned by the said respondent was not involved in the accident.

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Respondent No.3-Insurance Company, in its separate reply, pleaded that Ashok Kumar, the driver of the offending vehicle, was not holding a valid driving licence at the time of alleged accident and the claim petition was bad on account of non-joinder of the driver, the owner and the Insurance Company of the scooter bearing registration No.HNA 7833. The factual aspects of the claim petition were denied.

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On the pleadings of the parties, the following issues

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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were framed:-

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“1. Whether Devinder Singh died in a motor vehicular accident on 19.02.1994 near petrol pump in Village Rakhra, due to rash and negligent driving of truck No.PB-11-D-2466 by respondent No.1 Ashok Kumar? OPA

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If issue No.1 is proved, whether the claimants are entitled to any compensation? If so, to what extent and from whom? OPA

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Whether the driver of truck No.PB-11-D-2466

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was not having a valid driving licence? OPR

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Whether the claim petition is bad for non-joinder of necessary parties? OPR

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Whether the claim petition is barred by time? OPR

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Whether the liability of the Insurance company is limited? OPR

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Relief.”

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In order to prove their case, the claimants examined Narinder Singh (AW1), who narrated the manner in which the accident had taken place while claimant Manjit Kaur appeared as AW2 and reiterated the contents of the petition and after placing on record certain documents closed their evidence.

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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The respondents examined Swaranjit Singh Bedi, Ahlmad, as RW1, Sukhjit Singh, a Clerk from DTO Office, as RW2 and Randhir Kumar as RW3.

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After hearing the learned counsel for the parties and taking into consideration the material available on record, the learned Tribunal decided Issue No.1 in favour of the claimants holding that the accident took place due to rash or negligent driving of the offending truck bearing registration No.PB-11-D2466.

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While deciding issue No.2, the learned Tribunal held that claimant Rupinder Kaur, being sister of the deceased, had no locus standi to file the claim petition since she was not dependant on the earnings of the deceased, however, it was held that claimant Manjit Kaur was entitled to compensation being the Class I heir and dependant of the deceased.

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Learned Tribunal held the income of the deceased as 1200/- per month and after deducting 1/3<sup>rd</sup> of his income as personal expenses, the annual dependency was calculated as 9600/-, and by applying the multiplier of 16, worked out the compensation to the tune of 1,53,600/-. An amount of 6,400/was awarded on account of treatment and funeral expenses. The total compensation worked out to be 1,60,000/-, however, awarded an amount of 1,20,000/- only as compensation on the

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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premise that the deceased had to maintain his family also.

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So far as issue No.3 is concerned, the learned Tribunal held that Randhir Kumar (RW3), the registered owner of the vehicle, had deposed that at the time of employing Ashok Kumar as driver, the driving licence (Ex.R1) was examined and the same appeared to be genuine and thereafter Ashok Kumar worked with him for five years and during that period he was driving the vehicle as an efficient driver. During cross-examination, Randhir Kumar deposed that before employing Ashok Kumar, the test was taken and he (Ashok Kumar) was found to be a good driver. Placing reliance on the judgment in the matter of Skandia Insurance Company Ltd. vs. Kokilaben Chandravedan and others , 1987(1) PLR 665, the learned Tribunal decided the said issue in favour of the claimants and the registered owner of the offending vehicle and against the Insurance Company.

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Since issue No.4 was not pressed at the time of arguments, as such, the same was decided in favour of the claimants and against the respondent-Insurance Company.

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Since the claim petition was within limitation, therefore, issue No.5 was also decided against the respondents.

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Issue No.6 was also decided against the Insurance

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Company.

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Issue No.7 with regard to relief was partly decided in

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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favour of the claimant, Manjit Kaur, since an award of `1,20,000/along with interest at the rate of 10% per annum from the date of petition till payment was passed in favour of the claimantappellant. Hence, the present appeals by the claimant for enhancement of the award and by the Insurance Company for exonerating its liability from satisfying the award.

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First taking the submission made by the learned counsel for the Insurance Company that once the licence was originally fake, in that eventuality, even if the same was perused and the registered owner had mistaken it to be true would not hold that the licence was genuine and, as such, the Insurance Company cannot be saddled with the liability, does not appears to be sound in view of the fact that at the time of employing Ashok Kumar as driver, Randhir Kumar, the registered owner of the offending vehicle, had perused the copy of the driving licence Ex.R1 and found it to be correct. He had also taken the test of the driving of Ashok Kumar and after finding him an efficient driver employed him on his truck to drive the same. Before the date of accident, Ashok Kumar had worked as an efficient driver for five years. The learned Tribunal while placing reliance in the matter of Skandia Insurance Company (supra) held as under:-

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“18. The learned counsel for the Insurance Company while relying upon the authority National Insurance

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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Company Limited vs. Santro Devi and others , (1998(1) PLR 61) has submitted that the deceased was not having a valid driving licence at the time of alleged accident, therefore, the Insurance Company is not liable to pay the compensation. On the other side, learned counsel for Randhir Kumar, respondent No.2 and the claimant have submitted that respondent No.2 did not violate the terms and conditions of the Insurance Policy and, as such, only the Insurance Company can be held liable for payment of compensation.

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On the consideration of the evidence produced by the Insurance Company no doubt is left in my mind that Ashok Kumar was not having a valid driving licence at the time of accident. Swaranjit Singh (RW1) produced the photostat copy of the driving licence from the judicial file. Sukhjit Singh (RW2), on the basis of the record, stated that driving licence No.41173 was issued in favour of Jagdish Ram son of Kishan Lal. He further stated that the driving licence in question was not issued by their office. However, statement of Randhir Kumar (RW3) shows that when he employed Ashok Kumar, respondent, as a driver, he examined

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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his driving licence, copy of which is Ex.R1. He further stated that he (Ashok Kumar) had been working with him for the last five years. He further stated in his cross-examination that when he employed Ashok Kumar, he took his test and found that he was a good driver. Ashok Kumar told that he was having experience of about 4/5 years as a driver of heavy vehicles. However, he denied that when Ashok Kumar was employed he knew that he had not a valid driving licence. When such are the circumstances, the law laid down in the authority Skandia Insurance Company Ltd. vs. Kokilaben Chandravedan and others (1987(1) PLR 665) will come to the rescue of the owner. In that case the Hon'ble Supreme Court laid down that the insurer will have to establish that the insured is guilty of infringement or violation of a promise that a person, who is not duly licenced, will not be in charge of the vehicle. The violation of infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously pointed that he has committed a breach? The law laid down in this

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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authority fully applies to the facts and circumstances of the present case. The owner of the vehicle at the time of employment of Ashok Kumar, respondent No.1 as a driver satisfied himself that he was having a valid driving licence. As a matter of routine, it is not possible at all for an individual to know that the driving licence was fake. The copy of the driving licence (Ex.R1) has been placed on the record and it gives a look of valid driving licence and thus it cannot be said that Randhir Kumar while employing Ashok as a driver committed breach of the conditions of the Insurance policy. On the contrary, I find that Randhir Kumar took the test of the driver before employing him and handed over the vehicle to Ashok Kumar after fully satisfying that he was a good driver. In this situation of the matter, it cannot be said that the Insurance company can avoid its total liability.”

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This Court has no reason to set aside the well reasoned findings of the learned Tribunal that Randhir Kumar, the registered owner of the offending vehicle, had employed Ashok Kumar as driver after perusing the copy of the licence (Ex.R1), taking a test drive and finding Ashok Kumar to be an efficient driver, therefore, the Insurance Company cannot be exonerated

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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from indemnifying the award only on the ground that Ashok Kumar, the driver of the offending vehicle, was not holding a valid driving licence.

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There appears to be substance in the submissions made by the learned counsel for the appellant-claimant when he submitted that the learned Tribunal has wrongly calculated the monthly income of Devinder Singh (since deceased) as 1200/-. In fact, the material available on record clearly shows that Devinder Singh (since deceased) was earning 2,000/- per month and since the Insurance Company as well as the other respondents had failed to rebut the said fact, therefore, the learned Tribunal should have taken monthly income of Devinder Singh as 2,000/-. After going through the material available on record, this Court is also of the considered view that Devinder Singh (since deceased) was dealing in spare parts and was earning 2,000/- per month.

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In view of Sarla Verma 's case (supra) and keeping in view the age, marital status of the deceased and other relevant factors, this Court would add 50% income in the income of Devinder Singh (since deceased) as future prospects making the total 3000/- and hence, by deducting 50% (as his personal expenses) from 3,000/-, then it would come to 1500/- per month and 18,000/- per annum. Keeping in view the age of the deceased, the multiplier of 18 would be just and, thus, the annual

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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dependency comes to 3,24,000/-. An amount of 50,000/- can be awarded for love and affection and another amount of 15,000/as funeral expenses. It has also come on record that Devinder Singh (since deceased) remained hospitalized for about five days and a sum of 6400/- was spent on his treatment etc., therefore, that amount has also to be awarded to the claimant. The total amount come to `3,95,400/-, as per calculations made in the

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following table:-

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Sr. No.	Heads	% / fraction / multiplier applied	Detail of calculation	Amount (in `)
(A)	(B)	(C)	(D)	(E)
1	Net Income of the deceased		Per month	2000
2	Future prospects	50%	of 1(E)	1000
3	Monthly income after addingfutureprospects		1(E) + 2(E)	3000
4	Monthly personal expenses of the deceased	50.00%	of 3(E)	1500
5	Net dependency (per month)		3(E) - 4(E)	1500
6	Multiplier to be applied	18
7	Compensation after applyingthe multiplier		5(E) X 12 X 6(C)	324000
8	Loss of consortium			0
9	Love and affection			50000
10	^{Funeral expenses}			15000
11	^Treatment			6400
	Total Compensation awarded			395400

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During the course of dictation, the learned counsel for the Insurance Company submitted that the mother of the

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FAO-1025-1998 (O&M) and FAO-1662-1998 (O&M)

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deceased was more than 40 years of age at the time of accident, therefore, the multiplier should be applied as per the age of the mother of the deceased.

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I have considered that aspect also. It is apposite to

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mention that claimant Manjit Kaur is present in Court. The accident had taken place in the year 1994, i.e. about 20 years back. The multiplier of 18 is being applied only while she has lived for 20 years and still she has to live a long life, therefore, the multiplier of 18 applied in this case appears to be just and proper.

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As a sequel to the above discussion, FAO-1662-1998 is partly allowed and sum of `3,95,400/- along with interest at the rate of 7.5% from the date of filing of the petition till the payment is made is awarded in favour of appellant- claimant Manjit Kaur.

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However, FAO-1025-1998 filed by the Insurance Company sans merit and is hereby dismissed.

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September 4, 2014 meenu

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(NARESH KUMAR SANGHI) JUDGE

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Manjit Kaur v. Ashok Kumar and Ors.

Case brief

What is this about?

What did the court decide?

Manjit Kaur v. Ashok Kumar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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