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Judgment
H. Billappa, J.—This appeal by the appellants-claimants is directed against the judgment and award, dated 1.2.2010, passed by the 9th Addl. Judge, Court of Small Causes, MACT-7, Bengaluru, in MVC. No. 6897/2007.
By the impugned judgment and award, the Tribunal has awarded compensation of Rs. 4,33,000/- with interest at 6% per annum from the date of petition till the date of realization.
Aggrieved by that, the appellants-claimants have filed this appeal seeking enhancement.
Briefly stated the facts are:
That on 25.08.2007, the deceased Kemparaju was walking on the left side of the Old Madras Road, in front of 6th BMTC depot, Indiranagar, Bengaluru. While the deceased was crossing the road, a canter bearing No.KA-25-B-3827 driven in a rash and negligent manner dashed against the deceased. As a result of that, the deceased Kemparaju sustained injuries and succumbed to the same. The appellants who are the wife, children and parents of the deceased Kemparaju claimed compensation of Rs. 15,00,000/-. The Tribunal has awarded a sum of Rs. 4,33,000/- with interest at 6% p.a., from the date of petition till the date of realization. Aggrieved by that, the appellants-claimants have filed this appeal seeking enhancement.
The learned counsel for the appellants contended that the Tribunal has erred while not fastening the liability on the Insurance Company. Further he submitted that based on the charge sheet filed against the driver of the offending vehicle the Tribunal has held that the driver did not have valid and effective driving license which is not correct. The respondents have not produced any evidence. The burden was on the first respondent to show that the driver did not possess valid driving license at the time of the accident. Therefore, the Tribunal was not justified in holding that the driver did not possess valid driving license at the time of the accident. Further he submitted that the Tribunal has awarded a sum of Rs. 3,78,000/- towards loss of dependency taking the income of the deceased at Rs. 3,000/- per month. The deceased was working as a mason and earning Rs. 300/- per day. Without considering this, the Tribunal has taken the income of the deceased at Rs. 3,000/- per month which is not correct. The Tribunal should have taken atleast Rs. 4,000/- per month. Further the Tribunal has not considered future prospects. He also submitted that the amount awarded by the Tribunal towards conventional heads is also inadequate. Therefore, the impugned judgment and award needs to be modified. In support of his submission, he placed reliance on the following decisions:
i) Rukmani and Others Vs. New India Assurance Co. and Others, (1999) ACJ 171 : (1998) 7 JT 473 : (1998) 9 SCC 160 ;
ii) Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 ;
iii) 1982 ACJ page 237;
iv) Unreported decisions in MFA. No. 865/2011 and MFA. No. 6919/2010.
As against this, the learned counsel for the first respondent-Insurance Company submitted that the impugned judgment and award does not call for interference. Further he submitted that the Tribunal on proper consideration of the material on record has rightly held that the driver did not possess valid driving license at the time accident. The Tribunal has placed reliance on the charge sheet filed against the driver. It is perfectly justified in law. Further he submitted that the owner or the driver of the vehicle have not stepped into the witness box. They have not furnished requisite details as required in law. Therefore, adverse inference has to be drawn against them. Further he submitted that the deceased had no fixed income. Therefore, future prospects cannot be considered. The Tribunal has rightly not fastened liability on the Insurance Company Therefore, the impugned judgment and award does not call for interference. In support of his submission, he placed reliance on the following decisions:
(i) RESHMA KUMARI and Others vs. MADAN MOHAN and ANOTHER; Civil Appeal No. 4646/2009 with Civil Appeal No. 4647/2009;
(ii) Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 ;
(iii) Unreported decision of this Court in MFA. No. 9169/2005 c/w. MFA. No. 11116/2005;
I have carefully considered the submissions made by the learned counsel for the parties.
The points that arise for my consideration are;
1) Whether the Tribunal was justified in not fastening the liability on the first respondent-Insurance Company?
2) Whether the compensation awarded by the Tribunal is just and proper?.
POINT No. 1:
Insofar as point No. 1 is concerned, it was contended by the learned counsel for the appellants that the Tribunal has erred in not fastening liability on the 1st respondent-Insurance Company holding that the Driver did not possess valid driving license at the time of accident based on the charge sheet filed against the driver. The learned counsel for the first respondent-Insurance Company contended that the Tribunal was justified in holding that the driver did not possess valid driving license at the time of the accident.
It is appropriate to refer to the decisions cited by the learned counsel for the parties.
In RUKMANI and Others vs. NEW INDIA ASSURANCE Co. Ltd., and Others reported in Rukmani and Others Vs. New India Assurance Co. and Others, (1999) ACJ 171 : (1998) 7 JT 473 : (1998) 9 SCC 160 , the Hon''ble Supreme Court has observed as follows at para No. 3:
"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 respondent No. 1 did not produce the license to drive the aforesaid scooter. The respondent No. 1 even after my demand did not submit the license 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 respondent No. 1 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 Regional. 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 aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs."
In MFA. No. 865/2011 disposed of on 19.9.2013 TFFCO-TOKIO GENERAL INSURANCE Co. Ltd., vs. Mr. K. PRABHAKAR REDDY and Another, this Court has observed as follows at para No. 7;
"7. Keeping the dicta laid down by the Apex Court in the above referred case and also the judgments of the co-ordinate benches of this court and applying the same to the facts on hand, it would clearly indicate that insurer having raised a plea in its written statement about the driver of the offending vehicle not possessing a valid licence, by relying upon Exhibit P5 to claim that it should be absolved of its liability, particularly when the contents of Exhibit P5, (charge-sheet) has not been proved either by examining the Investigating Officer or any other concerned official to prove the same. Said plea has remained as such without proof."
In MFA. No. 6919/2010 disposed of on 13.1.2015 in the case of Smt. MAHADEVAMMA and Others vs. Sri ANAND, this Court has observed as follows at paras 6 and 7;
This Court in the case of Ananthkumar v. United India Insurance Company Limited and Others in MFA Nos. 8840/2008 and 988/09 (disposed of on 28.6.2012) has specifically held in paragraph 22 of the judgment that the burden is always on the insurer to prove that the driver of the offending vehicle did not have a valid and effective driving license on the date of the accident. This is a statutory liability cost on the insurer. It is further held that in order to prove its defence, the insurer cannot fall back on the lapses of the insured who has abstained from participating in the proceedings before the Tribunal.
The insurer, having undertaken to indemnify the insured against third party risks under the terms of the policy issued, is statutorily required to discharge its liability. This aspect of the matter has been considered elaborately by this court in a decision rendered in MFA 6729/2008 disposed of on 1.3.2010 (Bajaj Allianz General Insurance Company Limited v. Rajesh and Another). Though charge sheet had been filed in the said case against the driver for not possessing a valid and effective driving license, still this court has held in both the decisions that it would not be a ground for the insurer to avoid liability.
In UNITED INDIA FIRE and GENERAL INSURANCE COMPANY LIMITED, BENGALURU vs. NAGARATHNA and Others reported in 1982 ACJ page 237, the Division Bench of this Court has observed as follows in para 11;
"It was for the Insurance Company to summon the driver. That the driver had not stepped into the box cannot in any way prejudice the claim of the petitioner who has suffered the injuries. The company has not taken any steps to summon the driver to come with the licence. The insurance company could have again summoned the R.T.O. to produce the relevant licence if any, or at any rate, produce the certified copy of the licence from the R.T.O.s Office, or an endorsement from the R.T.O. that the driver had no licence."
In NEW INDIA ASSURANCE CO. LTD., vs. Sri AFROZ and Another in MFA. No. 9169/2005 c/w. MFA. No. 11116/2005, disposed of on 30.11.2010, this Court has held that the driver did not possess valid driving licence based on the charge sheet.
It is clear from the above decisions, the burden is on the first respondent to prove that the driver did not possess valid and effective driving license at the time of accident. In the present case, the Insurance Company has relied upon the charge sheet to contend that the driver did not possess valid driving license. The Insurance Company, driver or the owner have not led any evidence. The production of charge sheet by itself cannot be the proof of the fact that the driver did not possess valid driving license.
The Hon''ble Supreme Court in RUKMANI and Others vs., NEW INDIA ASSURANCE CO. LTD., and Others reported in Rukmani and Others Vs. New India Assurance Co. and Others, (1999) ACJ 171 : (1998) 7 JT 473 : (1998) 9 SCC 160 has held, the examination of the Inspector of Police who investigated the accident and who deposed before the Court that his enquiry revealed that the respondent No. 1 did not possess driving license to drive the aforesaid scooter and even after demand did not produce the driving license was not sufficient to prove that the driver did not possess the driving license. It has observed that the Insurance Company did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. Therefore, the Insurance Company has failed to discharge its burden.
In the present case, the Insurance Company has not produced any evidence except the charge sheet. Therefore, it cannot be said that the Insurance Company has discharged its burden to prove that the driver did not possess valid driving license at the time of accident. Therefore liability can be fastened on the Insurance Company. The Tribunal has erred in holding that the driver did not possess valid driving license at the time of accident based on the charge sheet. Therefore, the finding of the Tribunal cannot be sustained in law. Point No. 1 answered accordingly holding that the Insurance Company has failed to discharge its burden to prove that the driver did not possess valid driving license at the time of accident and it is liable to pay the compensation.
Point No. 2:
The Tribunal taking the income of the deceased at Rs. 3,000/- per month has awarded a sum of Rs. 3,78,000/- towards loss of dependency. The deceased was working as a mason. It is in the evidence of PW. 1 that the deceased was earning Rs. 150/- to Rs. 200/- per day as mason. However, there is no documentary evidence regarding the income. Therefore, it is proper to take the income of the deceased at Rs. 4,000/- per month instead of Rs. 3,000/- per month. Accordingly, it is taken. The deceased was aged 42 years at the time accident. Therefore, the appropriate multiplier is ''14''. The learned counsel for the first respondent-Insurance Company placing reliance on the decision of the Hon''ble Supreme Court in RESHMA KUMARI and Others vs. MADAN MOHAN and Another submitted that as the deceased had no fixed income future prospects cannot considered. The learned counsel for the appellants-claimants placing reliance on the decision of the Hon''ble Supreme Court in RAJESH and Others vs. RAJBIR SINGH and Others reported in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 , submitted that future prospects need to be considered even in respect of persons who are self-employed or who are engaged on fixed wages. In the decision in RESHMA KUMARI and Others vs. MADAN MOHAN AND Another relied upon by the learned counsel for the first respondent-Insurance Company, the Hon''ble Supreme Court has observed as follows at para 40(v);
"While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the judgment in Sarla Verma."
In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , the Hon''ble Supreme Court has observed as follows;
"Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the Courts will usually take only the actual income at the time of death."
However, in RAJESH and Others vs. RAJBIR SINGH and Others reported in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 , the Hon''ble Supreme Court has held that future prospects may be applied to the persons who are self-employed or were engaged on fixed wages. The decision in RAJESH and Others vs. RAJBIR SINGH and Others is the latest decision. Therefore, it needs to be followed.
In the present case, the future prospects can be taken at 30%. If 30% is added to the monthly income of Rs. 4,000A, it comes to Rs. 5,200/-. There are six dependents. Therefore, 1/4th needs to be deducted towards personal expenses of the deceased. If 1/4th is deducted towards personal expenses the balance comes to Rs. 3,900/-. Therefore, the loss of dependency per month is Rs. 3,900/-. The deceased was aged 42 years at the time of the accident. Therefore, the appropriate multiplier is ''14''. The compensation payable towards loss of dependency comes to Rs. 3,900 x 12 x 14 = Rs. 6,55,200/-. Accordingly, it is awarded.
The Tribunal has awarded, in all, a sum of Rs. 55,000/- towards funeral expenses, transportation of dead body, loss of consortium, loss of love and affection and loss of estate. It needs to be enhanced. Accordingly, it is enhanced to Rs. 1,00,000/-.
The total compensation payable comes to Rs. 7,55,200/- and the break up is as follows:-
Accordingly, the appeal is allowed and the impugned judgment and award passed by the Tribunal in MVC. No. 6897/2007 is modified granting compensation of Rs. 7,55,200/- instead of Rs. 4,33,000/- with interest at 6% per annum from the date of petition till the date of realization. The first respondent-Insurance Company shall deposit the amount within eight weeks from today. The apportionment shall be as done by the Tribunal.
Draw up the award, accordingly.