Miss Navroop Kaur and Another vs Dharam Pal and Others

Jawahar Lal Gupta, J.—On November 5, 1992 Partap Singh was going on his Tractor/Trolley on the G.T. Road, from Ambala towards Nilokheri. His Trolley was loaded with paddy. He was hit by a Truck Trailer number JK-02-8732 which was loaded with iron rods. As a result of this accident, Partap Singh received various injuries and he died. Dharam Pal was driving the Truck Trailer. Hardeep Kaur, the widow, alongwith the minor daughter Navroop Kaur filed a petition u/s 166 of the Motor Vehicles Act, 1988 for the grant of compensation. Separate petition was also filed by the parents of the deceased. After consideration of the evidence, the Motor Accident Claims Tribunal, Karnal, has held that the widow, minor daughter as well as the parents of the deceased are entitled to a total compensation of Rs. 2,04,000/- in equal shares. The widow and the minor child have filed this appeal. They have prayed for enhancement of the compensation. It is also prayed that the Insurer be held liable for the payment of compensation.

A few facts may be noticed.

Partap Singh was driving the Tractor Trolley. He was carrying paddy towards Nilokheri on the G.T. Road. According to the appellants, he was a hale and hearty youngman, a prosperous agriculturist and an expert driver. Accident had occurred on account of the rash and negligent driving by the driver of the Truck Trailer who had overtaken Anr. vehicle and was on the wrong side when he hit the tractor of the deceased. On this basis, a claim for an amount of rupees ten lacs with 24 percent interest was made. In the written statement filed on behalf of the National Insurance Company Ltd., it was interalia pleaded that the driver did not have a valid driving licence and that "conditions of the alleged insurance policy" had been violated. It was further pleaded that "no accident took place, nor the insured vehicle was involved in any accident." Separate written statements had also "been filed by the other parties in me case.

On the pleadings of the parties, the following issues were framed:

1) Whether the accident in question took place due to rash or negligent driving of Vehicle No. JK-02-A 8732 by respondent Dharam Pal? OPP-

2) If issue No. l is proved, whether the claimants are entitled to get compensation if so, how much and from which of the respondents? OPP

3) Whether the Insurance Company is not liable to pay any compensation in view of the preliminary objections taken in the written statement ? OPR.

4) Relief.

After recording evidence, the learned Tribunal found that the accident had occurred on account of the rash and negligent driving by Dharam Pal, the Driver of the Truck Trailer. Regarding Issue No. 2, it was held that the deceased had a monthly income of Rs. 2,500/-. He was contributing Rupees 1,7007- per mensem for the family viz. his parents, his widow and the child. On this basis, the annual dependency was fixed at Rupees 20.400/-. By applying a multiplier of ten, a total compensation of Rupees 2,04,000/- was awarded. The Tribunal further found that the drive had been directed to produce the driving licence. He having failed to do so, it was presumed that he did not have the driving licence for a heavy vehicle. Thus the Insurer was held to be not liable. Consequently, the liability was fastened on the owner and the driver of the vehicle. Aggrieved by the award, the widow and the minor daughter have filed the present appeal. The parents of the deceased have been impleaded as respondent Nos.4 and 5.

Mr. Ashit Malik, learned counsel appearing for the appellants has vehemently contended that the onus of proving that the driver did not have a valid driving licence was on the Insurer. It has not produced any evidence to discharge this onus. Thus the Insurer has been wrongly absolved of its liability. Secondly, it has been contended that the learned Tribunal has erred in applying a multiplier of ten. According to the learned counsel, a multiplier of eighteen should have been applied. On the other hand, Mr. J.S. Sidhu, Advocate who has appeared for the Insurer has pointed out that vide order dated January 13, 1995, the Court had directed the owner and the driver of the vehicle to produce documents in their possession. The driving licence having not been produced, the Tribunal has rightly drawn the inference in favour of the Insurer.

It is undoubtedly correct that the Insurer had raised a definite plea in the written statement that the driver did not have a valid driving licence. Even the issue regarding the liability of the Insurance Company had been framed. However, the onus of proving the issue was on the Insurance Company. It led no evidence to support its claim or to discharge its onus.

Mr. Sidhu has pointed out that Insurer had filed an application for a direction to the driver to produce the driving licence. The learned Counsel is right, An application had been filed. Thereupon the Tribunal had passed the order on January 13, 1995 in the following terms:

"Present: Counsel for the parties:

The Ld. Counsel for National Insurance Co. has made an application that respondents No. l and 2 be directed to produce the original R.C., D.L. and other documents. Copy given to the other side. Respondents No. l and 2 are directed to produce the documents whatever are in their possession on the next date of hearing. If the judicial file is to be summoned, necessary application be moved by the parties concerned for the purpose. Now to come up for RWs on 16.2.1995.

Sd/- MACT Karnal. 13.1.1995."

On February 16, 1995 the following order was passed:

"Present: Counsel for the parties.

Respondents No. 1 and 2 did not produce the original D.L., R.C. etc. Two witnesses examined for the Insurance Co. Now to come up for remaining evidence if any and arguments on 17.2.1995.

Sd/- MACT Karnal 16.2.1995."

On February 17, 1995, the following order was passed:

"Present: Counsel for the parties.

Respondents No. l and 2 have closed the evidence after tendering insurance policy Ex.RF. Original D.L. and R.C. not produced despite directions given on 13.1.95 by the Court. Hence, adjourned to 20.2.95 for evidence of insurance company, if any and arguments. Last opportunity granted to the insurance company.

Sd/- MACT Karnal 17.2.95"

On February 20, 1995, the insurance company produced no evidence. Thus the evidence was closed. Arguments were heard and the claim petition was decided.

From a perusal of the above, it cannot be said that the Insurance Company had discharged the onus of proving that the driver did not have a valid driving licence. It had undoubtedly filed an application for the issue of direction to respondent Nos.1 and 2. Still the licence was not produced. The Insurance Company could have filed an application for summoning the driver as a witness. It did not do so. It could have summoned the owner of the vehicle and examined him with regard to the factum of the driver having a driving licence. It did not do so. Still further, it is established on the record that a criminal case had been registered against the driver for rash and negligent driving. The Insurance Company could have summoned the records of the criminal case which would indicate as to whether or not the driver had any licence and as to what is the result of the investigation conducted by the police. For reasons which are not clear on the record, no such attempt was made. In this situation, it does not appear to be fair to hold that the Insurance Company had discharged the onus and absolved itself of the liability to indemnify the owner of the vehicle or to compensate the injured parties.

Admittedly, there was a contract between the insured and the insurance company. Since it was the case of the insurer that the insured had violated the terms of the contract, it was its duty to lead evidence and to prove the facts. In the absence of a clear proof, the insured as well as the injured party were entitled to protection under the law. The rule in this behalf was clearly enunciated by their Lordships of the Supreme Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, . This decision was followed by a Division bench of this Court in New Delhi Assurance Co., Ltd. v. Gurbachan Kaur and Ors..

In view of the above, the first contention raised on behalf of the appellants is accepted. It is held that the Insurance Company had failed to discharge the onus of proving that the insured had violated the terms of the contract. It had also failed to prove that the driver did not have a valid driving licence. In this situation, the finding on Issue No. 3 as recorded by the Tribunal cannot be sustained. It is consequently reversed to the extent that the Insurance Company; was held to be not liable.

As for the second question, it was contended on behalf of the appellants that the learned Tribunal had erred in applying a multiplier of ten. The factua position is not in dispute. Admittedly, the deceased was 22 years of age at the time of accident. In this situation, a multiplier of ten was wholly unreasonable. In Adikanda Sethi (Dead) through Lrs. and Another Vs. Palani Swami Saran Transports and Another, where the age of deceased was 24 years, a multiplier of eighteen had been applied. Even if a conservative view is taken, a multiplier of sixteen would be the least that should be applied in the circumstances of the case. Still further, if the figure as arrived at by the learned Tribunal is accepted to be correct and it is held that the annual dependency was Rupees 20.400/-, the claimants viz. the present appellants and respondent Nos.4 and 5 would be entitled to a compensation of Rupees 3,26,400/-. It is ordered accordingly.

In view of the above, the appeal is allowed. It is held that an amount of Rupees 3,26,4007- shall be payable by the Insurance Company to the appellants and respondent Nos.4 and 5 in equal shares viz. Rupees 81,600 each. They would also be entitled to interest at the rate of twelve per cent as awarded by the Tribunal. In the circumstances, there will be no order as to costs.