BABU RAM SHARMA v. KAMLA DEVI — 1995 DIGILAW 402 (DEL)

C. M. Nayar ( 1 ) THE present judgment will dispose of FAO No. 141/91arising from the award dated 27/03/1991 of Shri J. P. Sharma, Judge Motoraccident Claims Tribunal, Delhi as well as cross objections filed on behalf ofrespondents/claimants. ( 2 ) THE brief facts of the case are that Nirmal Singh aged 32 years. Sub Inspectorin Delhi Police died in a road accident on 14/12/1984. The claim petition wasfiled by his widow Smt. Kamla Devi for self and on behalf of her minor daughterkm. Deepali and minor son Master Digvijay Singh besides Smt. Maha Devi and Shrikanwar Singh who were the parents of the deceased. Shri Kanwar Singh expiredduring the pendency of the petition before the Tribunal and his name wasaccordingly deleted. The claim for compensation was made in the sum of Rs. 10lakhs with interest at the rate of 18 per cent per annum and costs of the petitionagainst the driver Kesho Ram and the owner Babu Ram and the insurer of thevehicle National Insurance Co. Ltd. , respondent No. 5 herein. The deceasednirmal Singh was driving his two wheeler scooter bearing No. UST 1217 on 14/12/1984 and it is alleged that he was driving at a slow speed on left sideof the road with pillion rider Ramji Lal at about 6. 30 p. m. He reached near Librapetrol Pump, G. T. Kamal Road, Delhi. At that time truck bearing No. DHG 2751driven by appellant No. 2 came from behind at a very fast speed and hit the scooterwithout blowing any horn and without giving signal with the result that theoccupant of the scooter fell down and Nirmal Singh received serious grievousinjuries. The driver fled away from the spot with his truck and even knocked downone cyclist after hitting the scooter. The deceased Nirmal Singh was removed tohospital where he succumbed to injuries on 21/12/1984. lt was pleaded thatthe income of the deceased was Rs. 1600. 00 per month besides other benefits towhich he was entitled as Sub Inspector in Delhi Police. He was aged about 32 yearsat the time of his death and was a man of robust health and simple habits. It wasfurther contended that he was contributing all his earnings to his wife who wasspending the same for the welfare and benefit of the family. The deceased wasexpected to work for a number of years and due for next promotion in thedepartment. It wasfurther contended that he was contributing all his earnings to his wife who wasspending the same for the welfare and benefit of the family. The deceased wasexpected to work for a number of years and due for next promotion in thedepartment. ( 3 ) THE written statement was filed by appellant Babu Ram, who was owner ofthe truck and it was contended that the truck was not involved in the accident andthe deceased was driving the scooter rashly and negligently and died in consquenceof his accident with cyclist and that the driver of the truck was falsely implicated. The Insurance Company, respondent No. 5, raised number of preliminary objections including the plea of limited liability. It was further stated that truck No. DHG 2751 was not at all involved in the accident as it was under repairs with themotor mechanic. It was submitted that the deceased was driving his scooter rashlyand negligently and died as a result of the accident with the cyclist. ( 4 ) THE following issues were framed on pleadings of the parties: 1. Whether the petitioners are the L. Rs of the deceased late Shri Nirmalsingh?2. Whether the deceased sustainedi fatal injuries in an accident on 14. 12. 84caused due to rash and negligent driving of truck No. DHG 2751 onthe part of respondent No. 1?3. To what amount of compensation, if any, are the petitioners entitledand from whom?4. Relief. ( 5 ) THE Tribunal disposed of issue No. 1 by holding that the respondents-claimants were the legal representatives of the deceased Nirmal Singh. Issue No. 2 was considered on the basis of evidence on record and it was held that thedeceased sustained fatal injuries in the accident on 14/12/1984 caused dueto rash and negligent driving of truck No. DHG 2751 on the part of appellant No. 2. This issue was decided in favour of the respondents-claimants. The quantum ofcompensation was considered while dealing with issue No. 3. The salary of thedeceased was proved at Rs. 1343. 95 per month till 1/01/1986 and the same wasaccepted by the Tribunal. The contribution towards family on that basis wasassessed at Rs. 800. 00 per month for a period of one year. The learned Judge thentook note of the revision of pay effective from 1/01/1986 and 1/07/1986 bywhich salary of the deceased would be revised to Rs. 2400. 00 per month. The contribution towards family on that basis wasassessed at Rs. 800. 00 per month for a period of one year. The learned Judge thentook note of the revision of pay effective from 1/01/1986 and 1/07/1986 bywhich salary of the deceased would be revised to Rs. 2400. 00 per month. Themonthly contribution in this background was taken to be Rs. 1500. 00 per month forthe subsequent years. The multiplier was adopted on the basis of age of retirement,which is fixed for Government service and the deceased having been about 32 yearsof age, the multiplier was adopted at 25 which in fact would mean that themultiplier of 26 was accepted taking into consideration the first year after the deathof the deceased. The total amount of compensation was assessed at Rs. 4,59,600. 00. The respondents-claimants were also held entitled to interest at the rateof 9 per cent per annum from the date of filing of the petition till realisation. ( 6 ) THE next question which was considered by the Tribunal was with regardto the liability of the Insurance Company, respondent No. 5 in this appeal. Thelearned Judge considered the evidence on record and held that the liability of theinsurance Company was limited to the extent of Rs. 1,50,000. 00. The relevantparagraph of the award reads as follows: "32. On the point of limited liability, the respondents examined Shri R. S. Fuliya, Assistant Divisional Manager, as RW-3 who proved the proposal formex. RW3/l, carbon copy of the renewal endorsements RW3/3, true copy ofthe policy Ex. RW3/2 and testified that their liability was limited to Rs. 1. 50lacs only as per the premium of Rs. 256. 00 (Rs. 240. 00 for 3rd party insuranceand Rs. 16. 00 for driver and cleaner ). Ram Kumar, Delvelopment Officer as RW-4 also stated that the proposalform Ex. RW3/1 was signed by Babu Ram owner in his presence and he paidhim the premium according to it in pursuance of which he issued cover noteex. RW4/1 on which he identified his signatures. The trend of cross examination of the witnesses shows that limited liability is admitted even by thepetitioners. The following suggestion was put to R. S. Fuliya, RW-3: "it is incorrect to suggest that on paying Rs. 4. 00 extra, one can get third partyliability enhanced to unlimited. RW4/1 on which he identified his signatures. The trend of cross examination of the witnesses shows that limited liability is admitted even by thepetitioners. The following suggestion was put to R. S. Fuliya, RW-3: "it is incorrect to suggest that on paying Rs. 4. 00 extra, one can get third partyliability enhanced to unlimited. "then following suggestions were put to Ram Kumar, RW-4: "it is incorrect that I did not tell Babu Lal as to how much risk was covered forhow much premium. " I see no reason to disbelieve the consistent and natural testimony of R. S. Fuliya, RW-3 and Ram Kumar, RW-4 on the basis of the documentaryevidence in view of what has been held by the Hon ble Supreme Court in thecase reported as 1988 ACJ 270. Accordingly, I hold that liability of theinsurance Company, in this case was limited to Rs. 1. 50 lacs only. "( 7 ) THE matter has been on board and was taken up for hearing on 4th, 5th 8thand 9/05/1995. No one has put in appearance for respondent No. 5. ( 8 ) THE present appeal has been filed by the owner of the vehicle. The learnedcounsel has not disputed the award of compensation in favour of the respondents/claimants but has only contended that the liability of the respondent Insurancecompany cannot be held to be limited to the extent of Rs. 1,50,000. 00. The Tribunalhas referred to the evidence of R. S. Fuliya, Assistant Divisional Manager, R. W. 3who proved the proposal form Ex. RW3/1, carbon copy of the renewal endorsement Ex. RW3/3, true copy of the policy Ex. RW3. /2 which testify that the liabilitywas limited to the extent of Rs. 1. 5 lacs. The record has been produced before thiscourt. I have examined the documents as referred to in the award of the Tribunal. Ex. RW3 /1 is merely a proposal form which indicates that premium of Rs. 256. 00 hasbeen paid for the risk date from 18/04/1982 to Apri 17/04/1983. The accident tookplace on 14/12/1984. Therefore, this document is of no relevance to thepresent case. Ex. RW3/2 is the typed renewal endorsement slip for the period of 12months from 20/04/1984 to Apr 19/04/1985. The following paragraph may be ofsome relevance: "it is declared and agreed that the insurance by this policy is renewed for afurther period of twelve months from 20. 4. 1984 to 19. 4. Ex. RW3/2 is the typed renewal endorsement slip for the period of 12months from 20/04/1984 to Apr 19/04/1985. The following paragraph may be ofsome relevance: "it is declared and agreed that the insurance by this policy is renewed for afurther period of twelve months from 20. 4. 1984 to 19. 4. 1985 (midnight I. S. T.)for an amount of Rs. Third Party at the following premium:third party Rs. 240. 00dr/cl Rs. 16. 00 Rs. 256. 00this document is not the original or even the carbon copy of the policy ofinsurance. The reading further indicates that it is signed by Divisionalmanager whereas the next document which is relied upon by the Tribunalex. RW3 /3 is a carbon copy of the renewal endorsement which is signed by thesenior Divisional Manager. The said copy obviously seems to be made froma hand written copy and not typed copy which is Ex. RW3 /2. In any case, theterms of renewal indicates that the policy which is operative for the relevantperiod covers third party risk. Ex. RW4/a is again a cover note relating to theperiod 18/04/1982 to Apr 17/04/1983, which also does not cover the periodwhen the accident took place. The learned Counsel for the appellant hasreiterated that the original policy of the insurance was never despatched tothe owner who is the appellant in this case. However, he has argued that onits own showing the third party risk was covered and there was no occasionfor the Tribunal to hold that the liability of the insurance Company waslimited. ( 9 ) THE documents referred to above and as noted by the Tribunal in its awardclearly indicate and establish two facts (a) that the original policy or the carbon copyof the same was never produced in the Court; and (b) the documents which wereproduced did not relate to the specific period when the accident took place or weremerely renewal endorsements and did not in any manner establish that the liabilityof the Insurance Company, respondent No. 5 herein, was limited to the extent of Rs. 1,50,000. 00. On the contrary, it is quite clearly specified that the policy of insurancecovered third party risk. The Tribunal in this background has erred in holding thatthe liability of the Insurance Company was limited. I have no hesitation in holdingthat the liability of respondent No. 5 is unlimited and the entire amount is sopayable by the Insurance Company. 1,50,000. 00. On the contrary, it is quite clearly specified that the policy of insurancecovered third party risk. The Tribunal in this background has erred in holding thatthe liability of the Insurance Company was limited. I have no hesitation in holdingthat the liability of respondent No. 5 is unlimited and the entire amount is sopayable by the Insurance Company. The appeal is allowed in the above terms. ( 10 ) THE respondents/claimants have also filed cross-objections, C. M. No. 327/92. 1 have heard learned Counsel for the respondents. He has not pressed forany enhancernent. He has only argued that the Tribunal has awarded interest at therate of 9 per cent per annum whereas the original claim was made at the rate of 18per cent per annum. The position of law is well settled that this Court isempowered to enhance the rate of interest in the present proceedings. The awardof the Tribunal is affirmed. The respondents/claimants are, however, held entitledto interest at the rate of 12 per cent per annum on the awarded amount from the dateof filing of the claim petition till realisation. The cross objections are disposed of inthe above terms. There will be no order as to costs.