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2002 DIGILAW 418 (GAU)

Rumena Begum v. Gur Sevak Singh

2002-09-27

AMITAVA ROY, P.P.NAOLEKAR

body2002
A.ROY,J.— The appellant herein, the mother of the deceased Haidor Hussain who died in a motor accident, is before us being dissatisfied with the amount of compensation awarded by the learned Motor Accident Claims Tribunal, Golaghat in MACT Case No. 108 of 2000. 2. We have heard Mr. G. Soren, Advocate for the appellant and Mr. D. Majumdar, Advocate for the respondent No. 3. None appeared for the respondent Nos. 1 and 2, the owner and the driver of the offending vehicle though service of notice of the appeal had been duly effected on them as well. 3. A few facts are necessary to be stated to comprehend the issues involved in the appeal. The appellant filed an application before the Motor Accident Claims Tribunal at Golaghat claiming an amount of Rs. 7,40,000/- as compensation for the death of her son named hereinabove out of a motor accident which had taken place on 14.3.2000 on the National Highway No. 37 near Krishna Bhandar, Pulibor, Jorhat. It was inter alia, mentioned in the said application that the age of the deceased at the time of his death was 28 years and that, he was at the relevant time, engaged as an office Assistant with M/S A.H.S. Rahman at Bongalpukhuri, Jorhat. His monthly income was stated to be Rs. 5,000/-. The case of the appellant/claimant is that on 14.3.2000 at about 8 p.m. while the deceased was going towards Jorhat from Pulibor on his bicycle, the offending Maruti Car bearing registration No. WB-74C/7156 dashed him from behind as a result of which he suffered severe head injuries resulting in instantaneous death. The clear and categorical assertion in the application is that the accident had taken place due to rash and negligent driving of the said vehicle. The name of the respondent No. 1 was provided as the owner of the errant vehicle. It was further stated that at the relevant time the vehicle was insured with the National Insurance Co. Ltd., Dhubri Branch i.e., respondent No. 3 herein. 4. The respondent No.s. 1 and 2 filed a joint written statement wherein they stated that they had no personal knowledge about the age, occupation and monthly income of the deceased. They took a stand that they did not admit that the deceased was 28 years of age at the time of his death and that he had a monthly income of Rs. They took a stand that they did not admit that the deceased was 28 years of age at the time of his death and that he had a monthly income of Rs. 5,000/ -. While asserting that the vehicle at the time of accident, was insured with the respondent No. 3, they maintained that the accident had been taken place not due to the fault of the driver of the vehicle but due to the fault of the deceased. They denied the rash and negligent driving of the vehicle. 5. The respondent No. 3 in its written statement took vague pleas generally denying the correctness of the statement made in the claim application. It however, stated that the insured had violated the statutory terms and conditions subject to which the standard policy of the insurance was issued. It admitted that at the time of accident, the offending vehicle was insured with it but asserted that the amount of compensation claimed was exaggerated and exorbitant. It was even denied that the deceased had a monthly income of Rs. 5,000/-. 6. The appellant-claimant examined herself and 2(two) other witnesses. The respondent No. 3 insurer also examined two witnesses in support of its plea that at the relevant time, the driver of the offending vehicle did not hold a valid driving licence. The respondent No. 3 also produced a copy of the insurance policy, the original being with the insured. The respondent Nos. 1 and 2 however, did not adduce any evidence. 7. In her testimony, the appellant-claimant stated about the death of her son in the vehicular accident on 14.3.2000. She further stated that at the time of his death, the deceased was aged 26 years and was unmarried. She further deposed that her son used to work under a contractor and earned of Rs. 5,0007- per month. In her cross-examination, only suggestions were put to her disputing the engagement of her son under the contractor and his earning, which she denied. 8. PW 2 is the eye witness of the accident. He stated that on 14.3.2000 while the deceased was going on bicycle towards Jorhat Town, the Maruti Car No. WB-74C/ 7156 dashed him from behind as a result of which, he fell down. The. witness was not cross-examined. 9. PW 3 Md. Muhibul Hussain stated on oath that he was the Muharrar of the Contractor Ahammad Haidor Shah. He stated that on 14.3.2000 while the deceased was going on bicycle towards Jorhat Town, the Maruti Car No. WB-74C/ 7156 dashed him from behind as a result of which, he fell down. The. witness was not cross-examined. 9. PW 3 Md. Muhibul Hussain stated on oath that he was the Muharrar of the Contractor Ahammad Haidor Shah. He testified that Haidor Hussain used to work as a Clerk under the said Contractor and used to earn Rs. 5,0007- per month. He proved a certificate issued by the contractor to the said effect which was marked as Ext. 1 with Ext. 1(1) as the signature of A.H.S. Rahman, the employer. In cross-examination, he stated that he did not know from where the contractor had issued the certificate. He denied the suggestion that he was not serving under the said contractor. 10. D.W. 1 Rajoni Athporia, who was at the relevant time a Lower Division Assistant in the Office of the District Transport Officer, Kamrup (West Zone) stated that the driving licence D/L F/355/ 97(K-W 4) was issued from his office. He further stated that the original licence No. 937NB/97 was issued on 27.2.97 from the office of the District Transport Officer, Nalbari. The name of the driver was shown as Rajesh Barman. He proved exhibit Ka to be the entry in the corresponding original record and exhibit Kha as the photocopy thereof. 11. D.W. 2 Sri Jitendranath Kalita, a Lower Division Assistant in the office of the District Transport Officer, Nalbari deposed that the driving licence No. 937 NB/97 was issued in the name of one Sanjib Khaklari from his office. He stated that the said driving licence was not issued in the name of Rajesh Barman. He proved Ext. C, the original driving licence register of the office of DTO, Nalbari. He also proved Ext.D to be the certificate issued to the said effect by the DTO, Nalbari. 12. The learned Tribunal on a consideration of the pleadings of the parties and the evidence on record, held that at the time of the accident, the driver of the offending vehicle had no valid licence. It therefore concluded that the insured had violated the terms and conditions of the policy and, therefore, the Insurance Company could not be made liable to pay the compensation. It therefore concluded that the insured had violated the terms and conditions of the policy and, therefore, the Insurance Company could not be made liable to pay the compensation. Having held so, the learned Tribunal discharged the respondent No. 3 from its liability to pay-any compensation in the case. 13. While assessing the quantum of compensation, the learned Tribunal accepted the age of the deceased as 30 years and adopted a multiplier of 16. It however observed that there was no specific income of the deceased and assumed the same to be Rs. 15,000/- per annum. After allowing a deduction of one third thereof for his personal expenses, the learned Tribunal accepted the loss of annual dependency to be Rs. 10,000/- and by applying the multiplier of 16, computed the amount of compensation to be Rs. 1,60,000/- (Rs. 10,000/- x 16). To this, the learned Tribunal added Rs. 2,000/- as funeral expenses and thus awarded a total amount of Rs. 1,62,000/- as compensation. Interest @ 9% from the date of filing of the claim application was also allowed. The learned Tribunal directed the owner of the offending vehicle, the respondent No. 1 to make payment of the awarded amount. 14. At the hearing, Mr. Soren, learned counsel for the appellant stressed upon the point that the learned Tribunal was in error in computing the amount of compensation by taking Rs. 15,000/- as the annual income of the deceased by leaving out of consideration the evidence on record to the effect that at the time of his death the deceased had a monthly income of Rs. 5,000/-. He further argued that in the facts and circumstances of the case, the learned Tribunal ought not to have discharged the insurer, the respondent No. 3 from its liability to pay the compensation having regard to the fact that the offending vehicle at the relevant time was admittedly insured with it. The learned counsel in support of his submissions placed reliance on the following two decisions - (1) Ashini Kumar Mishra, Appellant vs. P. Muniram Babu and another, Respondents reported in (1999) 4 SCC 22 ; and (2) New India Assurance Co., Shimla, Appellant vs. Kamla and others, Respondents, reported in AIR 2001 SCI 419. 15. Countering the above submissions, Mr. The learned counsel in support of his submissions placed reliance on the following two decisions - (1) Ashini Kumar Mishra, Appellant vs. P. Muniram Babu and another, Respondents reported in (1999) 4 SCC 22 ; and (2) New India Assurance Co., Shimla, Appellant vs. Kamla and others, Respondents, reported in AIR 2001 SCI 419. 15. Countering the above submissions, Mr. Majumdar, learned counsel for the respondent No. 3 submitted that there is no evidence worth the name to conclusively hold that the deceased at the time of his death had a monthly income of Rs. 5,000/- and that, therefore, the learned Tribunal was perfectly justified in accepting Rs. 15,000/- as the annual income. Referring to Ext. 1, the certificate proved by C.W.3, the learned counsel argued that it was not a legally acceptable piece of evidence inasmuch as, neither the author of the said certificate had been examined nor any basis for issuance thereof has been indicated in the evidence. He therefore contended that the learned Tribunal rightly did not take into consideration the said document as a proof of the income of the deceased. 16, The learned counsel while referring to the evidence of D.W.I and DW 2 strenuously urged that it was apparent in the facts and circumstances of the case that the insured had violated an express condition of the policy inasmuch as, it was fully established from the evidence of the said witnesses that the driver of the insured vehicle at the relevant time did not hold a valid licence. He therefore contended that the learned Tribunal was justified in discharging the insurer from its liability to pay the compensation awardable to the appellant claimant in the case in hand. 17. We would, at first, like to deal with the finding of the learned. Tribunal with regard to the liability of the insurer. On a perusal of the written statement filed by the respondent No. 3, we find that no specific plea had been taken that at the relevant time the insured vehicle was being driven by a person who did not hold a valid and an effective driving licence and that, therefore, the insured had thereby contravened that condition of the policy. The plea taken in the written statement with regard to the violation of the terms and conditions of the policy is a general and omnibus one. The plea taken in the written statement with regard to the violation of the terms and conditions of the policy is a general and omnibus one. We therefore do not consider it to be a proper pleading so far as the plea of violation of the said condition of the policy is concerned. We are constrained to observe that the written statement on behalf of the insurer respondent No. 3 has been drawn up in a casual and indifferent manner. We have further noticed that the learned Tribunal had also not framed any issue in this regard. For want of proper pleadings on the above plea of the insurer, we are not inclined to entertain the same. In absence of any pleading as indicated hereinabove, no amount of evidence in support of the said plea establish the same. The evidence of DW 1 and DW 2 cannot thus be taken into consideration in support of the stand of the insurer that at the relevant time, the respondent No. 2 did not hold a valid driving licence. This view of ours finds support in the decision of the Privy Council in Siddik Md. Shah, Appellant vs. Mi. Savan and others, Respondents reported in AIR 1930 PC 57. We further find that no issue in this regard had been framed by the learned Tribunal. We therefore cannot lend our concurrence to the finding of the learned Tribunal that in the facts and circumstances of the case, the insurer, respondent No. 3 has no liability to pay the amount of compensation awardable to the appellant-claimant. 18. In this connection, it would be profitable to refer to the decision of the Apex Court in New India Assurance Co., Shimla, Appellant v. Kamla and others, Respondents (supra). The question posed in the said case was whether if a fake driving licence is renewed by the statutory authorities, would the fakeness thereof get legally sanctified and if not, would the Insurance Company be liable to pay compensation in respect of a motor accident which had occurred while the vehicle was driven by a person holding such a sham licence ? In that case, the appellant-Insurance Company in its written statement before the Claims Tribunal had inter alia, pleaded that the driver did not have a valid driving licence and hence, there was a breach of the policy condition and that, therefore, it could not be fastened with the liability to pay compensation. In the facts of that case, while examining the scheme of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act), the Apex Court more particularly, referring to Chapter XI thereof, held that when a valid insurance policy had been issued in respect of a vehicle as evidenced by a certificate of insurance, the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured. In the said case, it was contended on behalf of the insured that it was enough for him if he could establish that he made all due enquiries and had believed bona fide that the driver employed by him had a valid driving licence and in such case, there would be no breach of any policy condition. The Apex Court in the conspectus of facts of that case, after noticing that the awarded amount had been paid by the insurer, remitted the matter to the learned Tribunal to decide as to whether the insurance company was entitled to recover that amount from the owner of the vehicle on account of the vehicle being driven by a person who had no valid licence to drive the same. 19. While we respectfully agree with the principle of law laid down by the Apex Court in the above case, we are of the opinion, keeping in view the vagueness of the plea of the insurer, respondent No. 3 in its written statement regarding breach of the policy relating to driving licence and the omission on the part of the learned Tribunal to frame an issue in that regard, that the insurer is not entitled to any further direction in the instant appeal as provided by the Apex Court in the case before it. We thus hold that in the facts and circumstances of the present case, the insurer-respondent No. 3 is not entitled in law to be discharged from its liability of indemnifying the insured under the policy. 20. Turning to the question of compensation, we notice that the application had been filed by the mother of the deceased. She was examined on 21.4.2001 when she stated her age to be 45 years. The accident had occurred on 14.3.2000. Therefore, at the time of filing of the claim application, the appellant-claimant was aged about 44 years. This age is relevant for the purpose of choosing the appropriate multiplier. The learned Tribunal had accepted 16 as the multiplier. We however find while referring to the Second Schedule of the Act that the multiplier of 15 ought to have been taken keeping in view the age of the appellant-claimant. This is in view of the fact that the deceased being a bachelor, the age of his parents would decide the multiplier as has been held by the Apex Court in H.S. Ahammed Hussain and another, Appellants vs. Irfan Ahammed and another, respondents, reported in (2002) 6 SCC 52 . 21. The appellant in her deposition had stated that the age of her son at the time of her death was 26 years. The post Mortem Report indicates that he was aged 30 years at the time of his death. We therefore, hold that the learned Tribunal was correct in accepting 30 years to be the age of the deceased. 22. The evidence with regard to the monthly income of the deceased may now be considered. The appellant-applicant stated on oath that the deceased was at the relevant time serving under a contractor with a monthly income of Rs. 5,000/-. The respondents apart from putting some suggestions to the said witness did not further cross-examine her or elicit any further information in that regard. PW 3 who was at the relevant time a Moharrar under the employer of the deceased, categorically stated that he (deceased) at the relevant time was serving as a Clerk under the said contractor and had a monthly income of Rs. 5,000/-. He also proved the certificate issued by the contractor Ext.l with Ext. 1(1) as the signature of the employer. The testimony of this witness could not be shaken in cross-examination. 23. 5,000/-. He also proved the certificate issued by the contractor Ext.l with Ext. 1(1) as the signature of the employer. The testimony of this witness could not be shaken in cross-examination. 23. In view of the state of evidence on the issue of income as above, we are of the view that the appellant-claimant had been able to adduce some evidence in support of her claim that her son had monthly income of Rs. 5,000/- at the time of his death. The learned Tribunal or this aspect of the matter, held that the deceased had no specific income though he was a worker under the contractor and assumed his income to be Rs. 15,000/- per annum. We do not find any material on record in support of the said finding of the learned Tribunal. We are, therefore, not in a position to concur with the same. 24. The appellant-claimant being the mother of the deceased had stated that her son had a monthly income of Rs. 5,000/-. Nothing contrary thereto has been extracted from her in cross-examination. PW 3 as noticed above, had supported the statement of the appellant-claimant and had also proved the certificate, Ext.l. There : nothing in the cross-examination of the said witness to indicate that the respondent No. 3 had assailed the authenticity or genuineness of the said document. The witness however had conceded that he was not aware as to on what basis the said certificate had been issued. 25. The Apex Court in a number of cases have held that while assessing the amount of compensation, some amount of guesswork, some hypothetical considerations and some amount of sympathy are involved but such elements are required to be viewed with objective standards. However, while assessing the damage, the Court cannot base its opinion mainly on speculation or fancy though conjectures to some extent are inevitable. These observations, we find in one of the recent decisions of the Apex Court rendered in Ashwini Kumar Mishra (supra). 26. Thus with regard to the income of the deceased, we are inclined to make a moderate estimate on the basis of the evidence and, accordingly, assess the amount of compensation. This is because, we are of the view that there is.no basis for the learned Tribunal to accept Rs. 15,0007- as the annual income of the deceased. 26. Thus with regard to the income of the deceased, we are inclined to make a moderate estimate on the basis of the evidence and, accordingly, assess the amount of compensation. This is because, we are of the view that there is.no basis for the learned Tribunal to accept Rs. 15,0007- as the annual income of the deceased. We feel that it would meet the ends of justice if we accept Rs. 3,6007-(Rupees three thousand and six hundred, as the monthly income of the deceased in the above premises. 2). Now the arithmetic. For assessing the loss of monthly dependency, one third of the monthly income has to be deducted towards the personal expenses of the deceased, which therefore, comes to Rs. 2,400/- (Rs. 3,600/- - Rs. 1,200/-). The loss of annual dependency therefore would be Rs. 2400/- x 12. Thus, the amount of compensation on account thereof would be Rs. 4,32,000/- (Rupees four lakhs and thirty two thousand) (Rs. 2400/- x 12 x 15). We further allow a sum of Rs. 2,000/-(Rupees two thousand) as funeral expenses. The total amount of compensation thus comes to Rs. 4,32,000/ - + Rs. 2,000/- = Rs. 4,34,000/- (Rupees four lakhs and thirty four thousand). The appellant-claimant would be entitled to interest thereon @ 9% per annum from the date of filing of the claim petition. 28. The amount of compensation awarded as above would be paid by the insurer-respondent No. 3 within a period of 3 (three) months from today. The impugned award is modified to the extent indicated above. The appeal stands allowed. However, in the facts and circumstances of the case, there would be no order as to costs. 16 and not otherwise discussed.