Gopal Singh Bhandari vs Mohd. Farooq and Others

Rajesh Tandon, J.—Heard learned Counsel for the parties Mr. I.S. Mehra, Mr. Tanveer Alam Khan and Mr. P.S. Rawat in Appeal No. 1359/2001 and Appeal No. 1360/2001.

The applicant has filed the present Appeal No. 1360/2001 (old No. 284 of 1990), Gopal Singh Bhandari v. Mohd. Farooq and New India Assurance Co. challenging the award of the Motor Accident Claims Tribunal to the extent of the liability which has been extended upon the owner and another Appeal No. 1359 of 2001 (old No. 306/1990) has been filed by the Insurance Company challenging the award of the Claims Tribunal to the extent of the liability extended upon Insurance Company of Rs. 1.50 lakhs.

Mr. Tanveer Alam Khan is present on behalf of the New India Assurance Company, Haldwani as a Counsel for the appellant in Appeal No. 1359/2001 (old No. 284/1990). Mr. I.S. Mehra is appearing on behalf of Mohd. Farooq claimant-respondent and Mr. P.S. Rawat on behalf of Mr. Gopal Singh Bhandari owner-respondent No. 2 in Appeal No. 1359/2001 and on behalf of the appellant in Appeal No. 1360/2001.

Both the appeals were filed under the old Motor Vehicles Act u/s 110-A of the Motor Vehicles Act, 1939 for the grant of compensation in respect of injuries suffered by the claimant in the matter of motor accident.

Brief facts giving rise to the present appeals are that the claimant, namely, Mohd. Farooq aged about 30 years is a shopkeeper and his monthly income was Rs. 1,500/-. On 23rd October, 1988 at about 9.00 a.m., the claimant was coming on his bicycle from Nai Mandi, Haldwani to Mangal Parao, Haldwani. A truck bearing registration No. UPD 680 came from Haldwani side which was being driven by Sri Lachhaman Singh (driver) in a rash, negligent and careless manner as the truck in question went to its extreme right crushing the bicycle and the claimant Mohd. Farooq.

The case of the claimant was that he was badly injured. His both legs were fractured. The right leg was so badly fractured that it was cut down 6 inches below the knee.

Claimant has submitted that he was immediately rescued to Civil Hospital, Haldwani and from there he was taken to Ram Manohar Lohiya Hospital, New Delhi. He was brought back to Haldwani and was admitted in Krishna Nursing Home, Haldwani. He was operated twice on 25th October, 1988 and 22nd November, 1988 and his right leg was amputated.

According to the claimant he is the only bread-earner for his family consisting of his wife and three children and due to injuries the claimant has suffered great pain and mental agony and he became a permanent disabled.

The claimant has given the details of the expenditure on his treatment and claimed Rs. 3,20,000/- towards compensation from the respondents. The owner of the truck has filed his written statement stating that the truck was not being driven in a rash, negligent or careless manner. The claimant himself was responsible for the accident. Further, it was stated that the truck in question was insured with the New India Assurance Company, Haldwani Branch and as such the entire compensation is payable by the Insurance Company.

The Tribunal vide his order dated 23rd December, 1989, has passed the order awarding the claim of a sum of Rs. 2,00,000/-. The liability was bifurcated to the extent of Rs. 1,50,000/- on the New India Assurance Company and a sum of Rs. 50,000/- to be paid by the owner. Interest to the extent of @ 12% per annum was awarded.

Mr. I.S. Mehra, Counsel for the claimant-respondent has argued that the amount awarded deserves to be enhanced.

Mr. Tanveer Alam Khan has submitted that the multiplier which has been applied by the Tribunal is totally incorrect inasmuch instead of applies the multiplier between 16 and 18, the multiplier of 30 cannot be justified in any manner whatsoever. Mr. P.S. Rawat has argued that the entire liability is on the Insurance Company and the owner is not responsible to pay a sum of Rs. 50,000/- inasmuch as the insured vehicle was comprehensively insured.

After hearing both the parties some of the facts which are not disputed, are summarized as under:

The accident had occurred on 23rd October, 1988 at about 9.00 a.m., when the claimant was coming on his bicycle from Nai Mandi, Haldwani to Mangal Parao, Haldwani. A truck bearing registration No. UPD 680 came from Haldwani side which was being driven by Sri Lachhaman Singh (driver) in a rash, negligent and careless manner as the truck in question went to its extreme right crushing the bicycle and the claimant Mohd. Farooq.

The case of the claimant was that he has been badly injured and his both the legs were fractured. The right leg was so badly fractured that it was cut down 6 inches below the knee and as such the claimant has become permanently disabled.

A finding has also been recorded by the Claims Tribunal that the claimant was earning a sum of Rs. 1,500/- per month and his age was 30 years at the time of accident.

So far as the evidence before the Claims Tribunal is concerned on behalf of the claimant P.W. 1 Mr. Riyasat Ali and P.W. 2 Dr. Jogendra Singh Khurana had appeared and the cover note of insurance policy was also produced before the Tribunal.

The accident had taken place on 23rd October, 1988 and the petition was filed on 6th June, 1989 and therefore, the petition is within time.

So far as with regard to the rash and negligent driving is concerned, the Tribunal has referred the statements of P.W. 1 and P.W. 2 Riyasat Ali who has proved that the truck was being driven rashly and negligently and the truck driver was also arrested on the spot.

Dr. Jogindra Singh Khurana has also proved the injuries on the part of the claimant.

The Tribunal has taken the average age of the claimant as 60 years and the loss of income has been calculated on the basis of Rs. 600/- per month which comes to Rs. 7,200/- per annum. Taking into consideration the multiplier of 30 it comes to Rs. 2,16,000/-. The claimant has also filed the expenses of treatment to the extent of Rs. 10,278/- and Rs. 2,963/- in Krishna Nursing Home and further claim was made to the extent of Rs. 5,000/- and Rs. 20,000/- for transportation charges spent in treatment at New Delhi. A total which has been calculated by the Tribunal comes to Rs. 42,000/-. The Tribunal has also deducted an amount of Rs. 41,000/- as the petitioner is getting a lump sum of Rs. 2,00,000/-.

The learned Counsel for the claimant Mr. I.S. Mehra has referred Swatantra Kumar v. Qamar Ali and Ors. Supreme Court judgment Swatantra Kumar Vs. Qamar Ali and Others, , is quoted below:

We have condoned the delay in the interest of justice as aforesaid.

In our view, it is well established that permanent partial disability was suffered by the appellant who was a pillon rider on the motor-cycle and was earning Rs. 500/- per month from his photography business. It appears to us that as he has suffered prolonged period of medical treatment and hospitalization in different hospitals and looking to the future economic loss he would suffer because of permanent partial disability which would affect his future photography business, interest of justice will be served if an additional amount of Rs. 1 lakh is granted to the appellant by way of compensation both on the heads of pain, shock and suffering as well as for future economic loss especially keeping in view the decision of this Court awarding an additional amount of Rs. 4 lakhs to the motor-cycle driver, Sri Shashendra Lahiri. The award of the Tribunal as confirmed by the High Court with due modification is further modified upward by awarding an additional amount of Rs. 1 lakh to the appellant. The said amount shall be paid with interest of 12 per cent per annum from the date of application till the date of actual payment. The said amount will be deposited by the respondent-Insurance Company within four months from today before the Motor Accident Claims Tribunal. It will be permitted to be withdrawn by the appellant after due verification. The appeal is allowed to the extent indicated above. No, costs.

Mr. I.S. Mehra has further referred the judgment of Uttaranchal High Court where the Insurance Company has been deprived of filing the appeal regarding the quantum of compensation. The observations are quoted below:

The only issue is whether Appeal u/s 173 of Motor Vehicles Act filed by Insurance Company is non-maintainable. We find merit in the preliminary objection raised on behalf of the claimants. In the above judgment of the Supreme Court, it has been held that the Insurance Company can defend the claim petition only on the ground of breach of conditions of policy or on the ground that the policy is void for reasons given in Section 149(2) of the Act. That the Insurance Company cannot avoid its liability on any grounds except those mentioned in Section 149(2) of the Act. That the insurer has no right to file an appeal to challenge the quantum of compensation or the finding of the Tribunal as regards negligence or contributory negligence of the offending vehicle except in cases where Section 170 is applicable. That, in cases where in the course of inquiry, the Tribunal is satisfied that there is no conclusion between the claimant and the person against whom the claim has been made or if the Tribunal is satisfied in the course of inquiry that the person against whom the claim has been made has failed to contest the claim, the Tribunal may for reasons to be recorded in writing implead the insurer and in that case it is permissible for the insurer to contest the claim on the grounds which are available to the insured. Therefore, where conditions precedent to Section 170 are satisfied and the award is adverse to the insurer, the insurer has a right to file ah appeal challenging the quantum of compensation or negligence or contributory negligence on the part of the offending vehicle.

Another decision of the Delhi High Court has been referred in Ganga Devi and Others Vs. Randhir Singh and Others, , is quoted below:

The Hon''ble Supreme Court in a latest judgment Urmila Pandey and Ors. v. Khalil Ahmad and Ors. 1994 (24) A.L.R. 266 (S.C.), in similar circumstances determined the life expectancy of the deceased as 65 years when the accident took place in that case in the year 1970. The Tribunal, therefore, in the present case has erred in computing the compensation amount and was not justified in assuming the life expectancy to be 55 years as the deceased was aged 45 years at the time of his death, particularly when the deceased was an artisan and capable of earning as a carpenter. It could not be less than 65 years at that point of time. The Tribunal also fell in error in making further declaration from the sum of Rs. 35,000/- which was awarded. The appellants, therefore, are held entitled to compensation towards damages at Rs. one lakh which is assessed on the basis of Rs. 400/- per month as dependency towards the claimants i.e., Rs. 400 x 12 = Rs. 4,800/- per annum. The multiplier of 20 which is more appropriate to the present case can be used which will give an overall compensation to the appellants at Rs. 96,000/-. The Tribunal has also awarded a compensation of Rs. 5,000/- in a separate head and without going into any particular head, I enhance the compensation to the amount of Rs. 1 lakh on which amount the appellants shall also be entitled to interest @ 12% p.a. from the date of the application before the Tribunal till realization. This will obviously take into account any amount which has since been disbursed by the Insurance Company to the heirs of the deceased. In case, the amount is not paid within the period of three months the Insurance Company shall be able to pay interest @ 18% p.a. thereafter. The amount shall be paid by way of a demand draft in the name of Mrs. Ganga Devi who is the widow of the deceased on her behalf and on behalf of her children. The appeal as a consequence is allowed, the judgment of the Tribunal is modified in the above terms. The appellants shall be entitled to costs which are quantified at Rs. 5,000/-.

The United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., . Their Lordships of the Apex Court have laid down the principles of multiplier. On the multiplier the observations of the Apex Court are quoted below:

Ordinarily while awarding compensation, the provisions contained in the second schedule may be taken as a guide including the multiplier, but there may arise some cases which may fall in the category having special feature or facts calling for deviation from the multiplier usually applicable. By applying the multiplier other than the scheduled multiplier does not mean that any method other than multiplier method has been applied. For some special reasons some deviation from the scheduled multiplier can be made.

The amount of multiplicand shall surely be relevant and in case it is a high amount, a lower multiplier can appropriately be applied. The Court cannot be totally oblivion to the realities. The 2nd schedule while prescribing the multiplier, had maximum income of Rs. 40,000/- p.a. in mind, but it is considered to be a safe guide for applying prescribed multiplier in cases of higher income also. But in cases where the gap in income is wide it cannot be said that some deviation in the multiplier, would be impermissible. The purpose to compensate the dependants of the victims is that they may not be suddenly deprived of source of their maintenance and as far as possible they may be provided with the means as were available to them before the accident took place. It will be just and fair compensation. But in cases where the amount of compensation may go much higher than the amount providing the same amenities, comforts and facilities and also the way of life, in such circumstances also it may be a case where, while applying the multiplier system, the lesser multiplier may be applied. In such cases amount of multiplicand becomes relevant. The intention is not to overcompensate.

In the instant case the claim arises out of the death of a Doctor who had established himself in medical profession in America and has his own hospital. The annual income of the deceased, was $ 3,39,445. The amount of dependency was 2,26,297 US dollars. At the time of death, the deceased left his wife, two daughters, a son and his parents residing in Delhi. The two daughters of the deceased were of age of 19 and 17 years and the age of son was 13 years, parents of the deceased were 69/73 years. Looking to high amount of multiplicand and the ages of the dependants and the fact that parents are residing in India, application of multiplier of 10 and not the scheduled multiplier of 13 would be reasonable and would provide a fair compensation i.e. a purchase of factor of 10 years.

Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the Insurance Company in SLP (C) 20874/2001 preferred on the question of rash and negligent driving against the driver of the Troller advanced by the Courts of fact namely the Motor Accident Claims Tribunal and upheld by the learned Single Judge as well as the Division Bench can be reopened to reassess the evidence on the point.

In view of the discussion held above, we partly allow the appeals of the Insurance Company [S.L.P. (C) Nos. 20875 and 21858/2001] and set aside the part of the judgment of the Division Bench of the High Court by which it applied the multiplier of 13 in accordance with 2nd Schedule of the Motor Vehicles Act. We restore the order of the learned Single Judge to the extent it applied the multiplier of 10. The amount of compensation shall be calculated and be payable accordingly. So far as rate of interest on the enhanced amount is concerned, we set aside the order passed by the High Court awarding interest at the rate of 12% per annum and we reduce it to 9% per annum. The appeal of the Insurance Company challenging the award against the finding of negligence [S.L.P. (C) Nb. 20874/2001] on the part of driver of the Troller is dismissed.

So far as the appeal of the claimants [S.L.P. (C) No. 22304/200] for applying the conversion rate of Rs. 47/- is concerned, it is dismissed and the order passed by the Division Bench for applying conversion rate at Rs. 30/- is upheld. The appeal for allowing the deduction on account of receipt of the sums received by the claimants on social security system is dismissed and the order passed by the High Court disallowing any deduction is upheld.

So far as the multiplier is concerned in Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty 111 (2003) ACC 57 : 2003 (52) A.L.R. 722 (S.C.), the Apex Court has observed that while awarding the lump sum amount multiplicand will be in ratio of 17. The observations are quoted below:

The enhancement made was not proper, coming to the injuries, mental agony, pains and sufferings it is noted that the claimant was hospitalized for about seven weeks. Therefore, the amount of Rs. 1,00,000/- fixed by the High Court is unreasonable. So far as the loss of earning capacity is concerned, it is noted that the Tribunal had calculated the income at Rs. 12,000/- per annum, and the High Court enhanced it to Rs. 15,000/-. It referred to Schedule (II) to the Act for fixing notional income and the multiple. Though multiple of 17 as fixed by the High Court seems to be in order, there is no rational for fixing annual income at Rs. 15,000/-. The Tribunal had taken into account the possibility of non-engagement and the wages claimed. Same appears to be rational. Therefore, the annual income is fixed at Rs. 12,000/-. Applying the multiple of 17 the loss of future income is fixed at Rs. 2,04,000/- instead of Rs. 2,55,000/- as fixed by the Tribunal. Coming to the loss of material life and the non-possibility of marriage, the Tribunal had indicated basis for fixing the quantum at Rs. 75,000/-. Without any basis being indicated, the High Court fixed at Rs. 1.5 lakhs. In the case at hand since the claimant is a bachelor, it cannot be denied that the claimant is on the wheel chair and would need regular medical attention because of the continued complications. The cost of expenses during hospitalization was small, because treatment was at Government Hospital. The situation would not be different for future treatments. Above being the position, sum of Rs. 50,000/- would be adequate. The claimant is entitled to Rs. 4.5 lakhs as compensation along with interest @ 9% p.a. from the date of application for compensation till payment. Out of the aforesaid sum a sum of Rs. 3.5 lakhs along with entire interest payable shall be deposited in a fixed deposit for not less than five years in a nationalized bank. The claimant will be entitled to draw interest on the deposit, which shall be re-deposited for further terms of five years. In case of urgent need it shall be open to the claimant to move Tribunal for release of any part of the amount in deposit.

In the present case the claimant was aged about 30 only at the time of accident and as well appear facts on the record that his right leg was so badly fractured and cut down to 6 inches below the knee. Another leg also been fractured and he has spent heavy amount in his treatment.

The Tribunal has awarded the amount taking into account the multiplier of 30 after taking the age factor as the claimant would have earned his livelihood upto a period of thirty years more and due to his accident the whole family is starving.

The Counsel for the Insurance Company has also referred the judgment of New India Assurance Co. v. Kamla and Ors. showing that the Insurance Company is entitled for the reimbursement of the amount from the owner as there has been a violation of the insurance policy as the driver was not having a valid licence.

The Counsel for the owner has vehemently argued that no such point was taken before the Court below with regard to the driving licence. Further the Insurance Company has never pressed this point before the Tribunal. Neither any issue was framed nor any argument was raised before the Tribunal.

He has also relied upon the judgment of United India Insurance Company Ltd. Vs. Lehru and Others, .It has been held as under:

The question was again considered by a three-Judge Bench of this Court in the case of Sohan Lal Passi v. P. Sesh Reddy. In this case the bus was driven by the cleaner, an employee of the owner, at the time of accident. The cleaner did not have a valid licence. The Insurance Company sought to avoid liability on the ground that there was breach of Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 inasmuch as the vehicle was being driven by a person who was not duly licensed.

While interpreting the contract of, insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an Insurance Company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one Forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realization for such amount by sale of properties of the owner of the vehicle. The procedure and result of execution of the decree is well known.

This Court in the case of Kashiram Yadav v. Oriental Fire and General Insurance Co. reiterated the views expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan. While referring to that case it was said S.S.C. pp. 130-31, paras 5-6.

...There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.

We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by driver''s acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.

We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokikben Chandravadan.

In spite of the above enunciation of law the Insurance Companies still continue to disclaim liability on the ground that the licence was fake. In the case of New India Assurance Co. v. Kamla, the question was whether by virtue of Section 149(2)(a)(ii) an Insurance Company could avoid liability if it is proved that the driving licence was fake. This Court considered, in detail, Section 149 of the Motor Vehicles Act, 1988 and held that the insurer has to pay to third parties on account of the fact that a policy of insurance has been issued in respect of the vehicle. It is held that the insurer may be entitled to recover such sum from the insured if the insurer was not otherwise liable to pay such sum to the insured by virtue of the contract of insurance. The question as to whether or not the insured would be protected if he had made all inquiries was left open. However, this point has been squarely dealt with in Skandia and Sohan Lal Passi cases.

When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the fact of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a Competent Authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make inquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii), The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see no reason to take a different view.

The Counsel for the Insurance Company has confined his argument on multiplier only. His contention is that the multiplier of 30 may be reduced to 17 only with a further payment of Rs. 25,000/-.

The Counsel for the Insurance Company as well as claimant both have agreed that the Insurance Company will pay the amount upto the multiplier of 17 which comes to Rs. 1,19,400/- + Rs. 25,000/- towards mental agony including the charges of travelling. The total comes to Rs. 1,44,400/-.

However, so far as the rate of interest is concerned the same shall be payable at the rate of 9%. The claimant, therefore, will be entitled to a sum of Rs. 1,44,400/- from the Insurance Company along with interest of 9%.

Both the parties have agreed, therefore, that the award may be modified to the extent of Rs. 1,44,400/- only taking into account the multiplier of 17 with interest of 9% per annum.

The order passed by the Tribunal, therefore, is modified to the extent of Rs. 1,44,400/- with 9% interest.

Both the appeals are partly allowed to the extent of the amount of compensation of Rs. 1,44,400/- only along with 9% interest.