Indira Goel and Another vs Ashok Singh and Others

Vinod K. Sharma, J.—This is an appeal against the award passed by the learned Motor Accident Claims Tribunal, Sonepat (for short the Tribunal) in a M.A.C.T. Case No. 19 of 1992.

The claimants filed a claim petition u/s 166 read with Section 140 of the Motor Vehicles Act, 1988 (for short the Act) claiming a compensation on account of the death of Late P.P. Goel in a motor vehicular accident on 12.12.1991 at village Barot while going to Sonepat in his official Car bearing Registration No. HYW-79. The deceased was Chief Engineer, Irrigation Department, Government of Haryana was aged 50 years at the time of his death. He was drawing a salary of Rs. 6,500/-per month exclusive of allowances. The deceased had gone for inspection on the date of the accident and the vehicle was being driven by his driver Phool Singh. When the deceased was going to Sonepat at about 3.50 P.M., a truck bearing Registration No. PCW-4425 came in a rash and negligent manner and hit the car. The car was dragged and was thrown in ditches abutting the road. On account of the said accident both the driver and the deceased Shri P.P. Goel sustained injuries. Shri P.P. Goel was shifted to hospital where he succumbed to his injuries. F.I.R. No. 383 dated 12.12.1991 was also registered. It was claimed that the deceased used to give entire salary to the family and a sum of Rs. 25,000/- was being spent on the education of claimant Neeraj Goel, a student of Medical College, Rohtak. It was claimed that the deceased would have lived upto the age of 80 years as per the longevity in the family and was to reach up to the rank of Engineer-in-Chief. Being a technical man, he could work as a consultant even after his retirement. A sum of Rs. 15 lacs was claimed as compensation.

The claim was contested by respondents No. 1 and 2 by filing a joint written statement. It was alleged that the accident had occurred due to rash and negligent driving of the car and therefore, the claimants were not entitled to any amount.

The Insurance Company pleaded that the car driver was solely responsible for the alleged mishap and FIR registered was false. It was claimed that the deceased was 55 years old. The entitlement of the claimants was also challenged. It was also claimed that respondent No. 1 was not holding a valid driving licence at the time of the accident and therefore, the Insurance Company was absolved of its liability.

On the pleadings of the parties, the following issues were framed by the learned Trial Court:

Whether the accident resulting in the death of Pritam Parkash Goel took place on account of rash and negligent driving of truck No. PCW-4425 by respondent No. 1? OPP

If issue No. 1 is proved, to what amount of compensation the petitioners are entitled and from Whom?

Relief.

On issue No. 1 the learned Tribunal recorded a finding that the accident had occurred due to the rash and negligent driving of truck No. PCW-4425 by respondent No. 1.

On issue No. 2, the learned Tribunal was pleased to grant a compensation to the tune of Rs. 6,80,500/- and in addition thereto another sum of Rs. 2,000/- was awarded towards funeral charges , Rs. 5,000/- towards consortium and Rs. 2,500/- towards the loss of estate. In all compensation to the tune of Rs. 6,89,500/- was awarded. In order to reach this calculation the annual income of the deceased was assessed at Rs. 85,000/-i.e. Rs. 1,02,300/- minus Rs. 17,300/- i.e. tax payable on this amount. Keeping in view the age of the deceased multiplier of 8 was applied. The learned Tribunal while deciding issue No. 2 was pleased to hold that respondent No. 1 was not holding a valid driving licence and therefore, the Insurance Company was absolved of its liability.

Mr. Hakesh Manuja, learned Counsel appearing on behalf of the appellants has challenged the finding of the learned Tribunal on issue No. 2 on two counts. Firstly, on the ground that the learned Tribunal was wrong in applying a multiplier of 8 though the age of the deceased was 50 years. He has also challenged the finding of the learned Tribunal on issue No. 2 on the ground that future prospect have not been taken into consideration while assessing the dependency. Learned Counsel for the appellants also challenged the findings of the learned Tribunal vide which the Insurance Company was absolved of its liability.

Learned Counsel for the appellants contended that it was proved on record that the deceased was Chief Engineer in the Irrigation Department and was aged 50 years. The contention of the learned Counsel for the appellants was that keeping in view the fact that since the longevity of the family stood proved on record, multiplier of 8 cannot be said to be justified. He further contended that the learned Tribunal should have also seen the future prospect in order to assess the dependency of the claimants on the deceased.

On the other hand, learned Counsel appearing on behalf of respondents No. 1 and 2 contended that in the present case no enhancement can be granted as the learned Tribunal has taken into consideration the total salary for calculating the dependency and nothing has been deducted on account of personal expenses.

After hearing the learned Counsel for the parties, I find that the learned Tribunal was right in calculating the dependency to be Rs. 85,000/- per annum as in case the future prospect are taken into consideration and thereafter deduction in personal expenses is made the dependency will have to be assessed at Rs. 85,000/- per annum as per the evidence brought on record.

However, I agree with the learned Counsel for the appellant that multiplier applied is on the lower side. Keeping in view the age of the deceased and also the evidence brought on record with regard to the age in the family, I think multiplier of 13 should have been applied. Consequently, it is held that the claimants would be entitled to a sum of Rs. 11,05,000/- (85,000 x 13) as compensation on account of death of Shri P.P. Goel. In addition thereto they are also held entitled to funeral expenses and consortium and loss of estate as held by the learned Tribunal. Thus, the total compensation payable to the appellant-claimants is assessed as Rs. l1,14,500/- (Eleven Lacs fourteen thousands and five hundred only). Findings on issue No. 2 are accordingly modified.

Learned Counsel for the appellants placed reliance on the judgment of Hon''ble Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla (2001)127 P.L.R 830 (S.C.) to contend that even if for the sake of arguments a licence is taken to be fake in that even also the Insurance Company is to be held liable to pay compensation to the claimants and the said amount can be recovered from the insured by the Insurance Company. This contention of the learned Counsel for the appellants has been contested by the learned Counsel appearing on behalf of the respondents. Learned Counsel for respondents No. l and 2 has placed reliance on the judgment of Hon''ble Supreme Court in the case of Lal Chand Vs. Oriental Insurance Co. Ltd., to contend that as the insurance company has failed to prove the negligence on the part of respondent No. 2 in proving that the owner was aware of the fact that the licence was not valid the � Insurance Company would be liable and cannot recover the same from respondents No. 1 and 2.

Mr. D.P. Gupta, on the other hand, learned Counsel appearing on behalf of respondent No. 3 contended that in view of the law laid down by Hon''ble Supreme Court in the case of National Insurance Corporation Ltd. Vs. Mrs. Kanti Devi and Others, the case is required to be remanded back to the learned Tribunal for fresh consideration for permitting the parties to lead such further evidence in view of the principle enunciated by the Hon''ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, of Kanti Devi''s case (supra) read as under:

Obviously, defence can be raised by the insurer about the licence being fake. By analogy, the insurer can also take a defence that the driver did not have the requisite driving licence to drive a particular type of vehicle. Such defence can be raised and it will be for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. The effect of the evidence in this regard has to be considered by the concerned Tribunal.

In the instance case, the High Court did not go into the relevant questions at all and relying on Krishan Dev Vs. State of Haryana and Others, held that the insurer has to pay the amount and recover from the insured. It has to be noted that in Swaran Singh''s case (supra) the earlier decision in Lehru''s case (supra) was noted. In para 106 of the judgment it was noted as follows:

Although, as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent.

The essence of Lehru''s case (supra) was delineated in paras 92 and 100 as follows:

It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed herein before, is whether the insurer must prove that the owner was guilty of the willful breach of the conditions of the insurance. In Lehru''s case the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish willful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later.

This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case.

The decision in Swaran Singh''s case (supra) was not before either the MACT or the High Court when the respective orders were passed. Therefore, we think it proper to remit the matter to the MACT for fresh consideration. It shall permit the parties to lead such further evidence as they may intend to lead. The matter shall be decided keeping in view the principle enunciated by this Court in Swaran Singh''s case (supra).

On consideration of the respective contentions I find that the liability of the Insurance Company for making payment of the compensation to the claimants cannot be disputed. Accordingly, it is ordered that the payment of compensation awarded in favour of the appellant-claimants shall be the responsibility of the Insurance Company though the liability of respondents No. 1 to 3 is held to be joint and several for payment to the claimants. The claimant would also be entitled to interest at the rate of 9 per cent per annum on enhanced compensation awarded by this Court from the date of claim application till payment. Insurance Company is directed to disburse the compensation to the claimants within one month of the receipt of the certified copy of this order. The case, is however, remanded back to the learned Tribunal, Sonepat for limited purpose to adjudicate as to whether the Insurance Company can recover this amount from respondent No. 2 in view of the fact that the licence held by respondent No. 1 is held to be take. The Insurance company as well as respondents 2 would be permitted to lead such further evidence in terms of the law laid down by Hon''ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, in support of their respective stands.

With the above observations, the appeal is allowed.