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2012 DIGILAW 2152 (DEL)

Purshottam Lal Goel v. Gurdhian Singh

2012-07-02

G.P.MITTAL

body2012
JUDGMENT : G.P. Mittal, J. These two appeals arise out of a judgment dated 13.9.1994 passed by the Motor Accidents Claims Tribunal ('the Claims Tribunal') whereby a compensation of Rs. 74,000 and Rs. 40,000 respectively was granted in favour of the appellants Purshottam Lal Goel and Savita Gupta (in F.A.O. No. 298 of 1994 and F.A.O. No. 302 of 1994 respectively) for having suffered injuries in a motor accident which occurred on 2.9.1973. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of taxi No. DLT 1960 by its driver Gurdhian Singh, respondent No. 1. As against a claim of Rs. 1,00,000, a compensation of Rs. 74,000 was awarded in favour of the appellant Purshottam Lal Goel and as against a claim of Rs. 50,000, a compensation of Rs. 40,000 was awarded in favour of the appellant Savita Gupta. During the inquiry, it was brought to the notice of the Claims Tribunal that owner of the taxi Mohal Singh, respondent No. 2, failed to produce the original insurance policy; its photocopy was obtained from counsel for the owner (Mr. J.N. Verma, Advocate) which reflected that the liability of the insurance company was limited to Rs. 5,000. United India Fire & Genl. Ins. Co. Ltd., respondent No. 3, was directed to pay the compensation of Rs. 5,000 in each case and the respondent Nos. 1 and 2 were held liable to pay the balance compensation. 2. The finding on negligence is not challenged by any of the respondents. The appellants challenge the impugned judgment dated 13.9.1994 on the following grounds: (i) The insurance company had failed to produce secondary evidence within the meaning of section 63 of the Indian Evidence Act, 1872 ('the Evidence Act') due to the non-production of the insurance policy by the insured, therefore, the liability of the insurance company was unlimited; (ii) The compensation awarded is on the lower side; (iii) The Claims Tribunal erred in not awarding any interest on the amount of compensation held payable to the appellants. The interest is compensation payable to a victim for detention of money by the tortfeasor/insurance company, therefore, the Claims Tribunal should have awarded the interest at the rate of 12 per cent per annum on the compensation granted to the appellants. Liability: 3. The interest is compensation payable to a victim for detention of money by the tortfeasor/insurance company, therefore, the Claims Tribunal should have awarded the interest at the rate of 12 per cent per annum on the compensation granted to the appellants. Liability: 3. While dealing with the issue of limited liability, the Claims Tribunal held that the original insurance policy was not produced by the owner, the respondent No. 2 herein, in spite of service of the notice under Order 12, rule 8, Civil Procedure Code; the insurance company was entitled to lead secondary evidence; the insurance company could not produce the office copy of the policy as the same was destroyed after five years; the insurance company's investigator, RW 1, obtained photocopy of the insurance policy, Exh. R2, from the owner's advocate which was duly proved, to show that the insurance company's liability was limited. 4. As far as service of the notice, Exh. R4, is concerned, the same is established from the postal receipts, Exhs.R5 and R6. Mohal Singh, respondent No. 2, himself entered the witness-box as RW 2. He did not utter a word that the notice, Exh. R4, was not received by him. A presumption of service of notice has to be drawn as per section 114 of the Evidence Act and section 27 of the General Clauses Act. I am supported in this view by a report of a three-Judge Bench of the Apex Court in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, (2007) CrLJ 3214. The relevant portion of the report in C.C. Alavi Haji (supra) is extracted hereunder: (12) Therefore, the moot question requiring consideration is in regard to the implication of section 114 of the Evidence Act, 1872, insofar as the service of notice under the said proviso is concerned. Section 114 of the Evidence Act, 1872 reads as follows: 114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations: The court may presume- (f) that the common course of business has been followed in particular cases; (13) According to section 114 of the Act, read with illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised u/s 27 of the General Clauses Act is a far stronger presumption. Further, while section 114 of the Evidence Act refers to a general presumption, section 27 refers to a specific presumption. For the sake of ready reference, section 27 of the General Clauses Act is extracted below: 27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. (14) Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed... 5. The Claims Tribunal's finding that the insurance policy in possession of the insurance company could have been destroyed as such records are destroyed after every five years is, however, not tenable. This accident took place on 2.9.1973. The claim petitions were filed on 27.2.1974 within a period of five months. The respondent insurance company must have been served with the notice of the claim petition immediately after it (the petition) was filed, the insurance company could have taken steps to preserve the record. In any case, the written statement was filed by the respondent insurance company on 25.4.1975, i.e., one year and seven months after the accident and the respondent insurance company took preliminary objection that its liability was limited. Therefore, it should have filed the office copy of the insurance policy along with the written statement, but it failed to do so. In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 Hon'ble Supreme Court emphasised the need to file a copy of the insurance policy by an insurance company along with the written statement. In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, AIR 1988 SC 719 Hon'ble Supreme Court emphasised the need to file a copy of the insurance policy by an insurance company along with the written statement. Para 9 of the report is extracted hereunder: (9) Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this court in civil appeal would, in all probability, have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised. 6. The finding of the Claims Tribunal on the basis of RW 3's testimony that the insurance company could not produce the office copy of the insurance policy as the record is destroyed after every five years is misconceived. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised. 6. The finding of the Claims Tribunal on the basis of RW 3's testimony that the insurance company could not produce the office copy of the insurance policy as the record is destroyed after every five years is misconceived. The insurance company could and should have placed on record the office copy of the insurance policy along with its defence if it really wanted to establish that the insurance company's liability was limited to Rs. 5,000. The explanation for non-production of the copy of the insurance policy given by the insurance company through RW 3 is, therefore, not tenable. Claims Tribunal admitted a photocopy of the insurance policy purported to have been obtained from Mr. J.N. Verma, Advocate, counsel for the respondent No. 2. The same was neither properly proved nor was secondary evidence within the meaning of section 63 of the Evidence Act. This finding is supported by the report of the Supreme Court in Smt. J. Yashoda Vs. Smt. K. Shobha Rani, (2007) 5 SCC 730 . In para 8, the Supreme Court held as under: (8) Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in section 63 is exhaustive as the section declares that secondary evidence 'means and includes' and then follow the five kinds of secondary evidence. 7. The document, Exh. R2, is only a photocopy of the insurance policy, the same does not fall in any of the five clauses within the meaning of section 63 of the Evidence Act and, therefore, the same cannot be looked into. In the absence of proof of the insurance policy, the appellant has failed to prove that its liability was limited to Rs. 5,000. It shall have to be held that the appellant's liability was unlimited. I am fortified in this view by the report of the Apex Court in Tejinder Singh Gujral Vs. Inderjit Singh and Another, (2007) 1 SCC 508 . Relevant para of the report is extracted hereunder: (13) The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. I am fortified in this view by the report of the Apex Court in Tejinder Singh Gujral Vs. Inderjit Singh and Another, (2007) 1 SCC 508 . Relevant para of the report is extracted hereunder: (13) The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. Learned single Judge of the High Court, in our opinion, rightly held that insurance policy having not been brought on record, a presumption would arise that the liability of the insurer was unlimited... 8. In Chandro Devi and Others Vs. Jit Singh and Others, (1989) ACJ 41 this court held that in the absence of proof of the insurance policy by the insurance company it shall be presumed that the liability of the insurance company is unlimited. Relevant para of the report says: The insurance company must prove that the policy in question is the 'Act only' policy. The amount mentioned by the statute is the minimum amount. But the policy can always cover higher risk to third party by taking additional premium. It is obligatory on the part of the insurance company to prove the insurance policy and its terms and conditions. In a number of decisions by this court, it has been held that where the insurance company fails to produce the insurance policy or prove the same in accordance with law, then it shall be presumed that the liability of the insurance company is unlimited. As I have already held that the insurance company has failed to prove the insurance policy in accordance with law, so I hold that the liability of the insurance company is unlimited in the present case. 9. In view of the non-production of the secondary evidence with regard to the insurance policy, I hold that the insurance company cannot take the plea that its liability was limited. Quantum of compensation: 10. With regard to the quantum of compensation, the contention raised is twofold. It is urged that compensation of Rs. 1,00,000 and Rs. 50,000 respectively should have been awarded in the case of appellants Purshottam Lal Goel and Savita Gupta as claimed. It is contended that the Claims Tribunal erred in not granting any interest during pendency of the petition. 11. I may say that this accident took place in the year 1973. It is urged that compensation of Rs. 1,00,000 and Rs. 50,000 respectively should have been awarded in the case of appellants Purshottam Lal Goel and Savita Gupta as claimed. It is contended that the Claims Tribunal erred in not granting any interest during pendency of the petition. 11. I may say that this accident took place in the year 1973. The appellant Purshottam Lal Goel suffered injuries on his head as the pieces of the windscreen glass pierced his skull. He also suffered a fracture in his left shoulder. Claims Tribunal dealt with the quantum of compensation in paras 23 to 25 of the impugned judgment, which are extracted hereunder: (23) Issue No. 3 relating to the case of Purshottam Lal, and according to the petitioner he has claimed Rs. 1,00,000 as compensation. According to para No. 11, he got injuries on his face, head. He received fractures in the arm and knees. He has not given the details of compensation claimed under different heads. Regarding his treatment, etc., his statement is there as PW 3 and from the hospital where he remained admitted, PW 7, PW 13, PW 11 and PW 12 are the relevant witnesses. According to Purshottam Lal himself as PW, glasses of windscreen entered his head and there was bleeding; he got his left shoulder fractured. (According to the petition he got his arm fractured). He was not normal for 6 months, his memory was also affected, he spent Rs. 1,500 for a doctor, he spent Rs. 20 per day for visit to the hospital, etc. Rs. 2,000 to Rs. 3,000 was spent on medicines, Rs. 6,000 on his special diet and he could not regularly attend to his duty as Metropolitan Council (sic Councilor) and as a Professor. He has been unable to give the number of leave availed by him. No bills, etc. regarding the treatment of the injured have been produced. Thus, there is no documentary evidence regarding the expenses incurred by him. But all the same it can be presumed that for getting recovered from the injuries he had to spend some amount. According to the doctors examined he remained admitted in the hospital from 2.9.1973 to 29.9.1973 and there was fracture on his person. Now this is all the evidence produced in this respect. Injuries are proved on his person from the medical record produced in this respect. According to the doctors examined he remained admitted in the hospital from 2.9.1973 to 29.9.1973 and there was fracture on his person. Now this is all the evidence produced in this respect. Injuries are proved on his person from the medical record produced in this respect. X-ray was also done. (24) For the purpose of assessing the compensation in the case of injuries to the person, broadly speaking the same can be divided under different heads like compensation for pain and suffering, loss of enjoyment of life, loss of income due to accident, expenses incurred in treatment, etc. and special diet. It is true that no amount of compensation can put the claimant in the same position as he was before meeting with the accident but all the same just compensation under the Motor Vehicles Act has to be assessed and in this regard, specially in the case of injuries, some guesswork has to be done. The claimant was 32 years of age when this unfortunate incident happened. He was earning Rs. 1,200 per month. He remained on leave for the period of at least one month. He has also to undergo pain and suffering, plaster was put on his person and even now he is not fully recovered. (25) Keeping in view the age, etc., I assess the compensation in this case as under: (1) Pain and suffering - Rs. 20,000 (2) Loss of enjoyment of life - Rs. 25,000 (3) Loss of income - Rs. 2,000 (4) Expenses incurred on medicines, special diet and conveyance - Rs. 20,000 (5) Other misc. expenses - Rs. 7,000 12. Similarly, appellant Savita Gupta who was a student of B.A. 1st year at the relevant time suffered fracture of right arm. The Claims Tribunal dealt with the aspect of grant of compensation in paras 26 to 28 of the impugned judgment, which are extracted hereunder: (26) Now in case of Savita Gupta she is a student of B.A. and she was of 17-18 years of age and she herself appeared as PW 5. According to her she cannot lift heavy weight and she cannot even dance. She has no flexibility in her right arm. According to her, her father had to spend Rs. 8,000 to Rs. 10,000 towards conveyance. Rs. 2,000 to Rs. 3,000 on medicines. Rs. 4,500 on special diet at Rs. 30 per day for 5 months. According to her she cannot lift heavy weight and she cannot even dance. She has no flexibility in her right arm. According to her, her father had to spend Rs. 8,000 to Rs. 10,000 towards conveyance. Rs. 2,000 to Rs. 3,000 on medicines. Rs. 4,500 on special diet at Rs. 30 per day for 5 months. As against it her father appeared as PW 6 and deposed that the expenses on medicines were Rs. 1,000, on conveyance also it was Rs. 1,000, amount paid to a private doctor, Dr. Daraswami, is Rs. 1,000. (27) There is clear discrepancy in the statement of the two persons with regard to the expenses incurred. There are no documents to prove any expenses. As mentioned above, it is difficult to assess the compensation exactly and cent per cent correct in injury cases. Some guesswork has to be done. (28) Keeping in view the evidence produced, I assess the compensation under different heads as under: (1) Pain and suffering - Rs. 10,000 (2) Loss of enjoyment of life - Rs. 15,000 (3) Expenses incurred on special diet, conveyance and medicines - Rs. 10,000 (4) Other misc. expenses - Rs. 5,000 Total - Rs. 40,000 13. Only a vague plea has been taken for enhancement of the compensation. No documentary evidence was produced by the appellants with regard to the expenditure on their treatment or the amount spent on conveyance. The oral evidence produced with regard to the amount spent on treatment in the case of the appellant Savita Gupta was found to be contradictory by the Claims Tribunal. Considering that this accident took place in the year 1973, I would say that Claims Tribunal was very liberal in awarding a sum of Rs. 45,000 towards non-pecuniary damages in case of Purshottam Lal and Rs. 25,000 in case of Savita Gupta. General damages awarded in respect of the expenditure incurred were also liberal. In the absence of any appeal by the insurance company or the owner, I would not interfere with the guesswork made by the Claims Tribunal in awarding the compensation. 14. 45,000 towards non-pecuniary damages in case of Purshottam Lal and Rs. 25,000 in case of Savita Gupta. General damages awarded in respect of the expenditure incurred were also liberal. In the absence of any appeal by the insurance company or the owner, I would not interfere with the guesswork made by the Claims Tribunal in awarding the compensation. 14. As far as grant of interest is concerned, section 110-CC of Motor Vehicles Act, 1939 (section 171 of the Motor Vehicles Act, 1988) provides payment of simple interest on the amount of compensation at such rate and from such date not earlier than the date of making a claim, as the Claims Tribunal may decide. Normally, the Claims Tribunal and the courts grant interest as payable on long-term fixed deposit by the nationalised banks. In Dharampal and Others Vs. U.P. State Road Transport Corpn., AIR 2008 SC 2312 the Supreme Court held as under: (10) Interest is compensation for forbearance or detention of money, which ought to have been paid to the claimant. No rate of interest is fixed u/s 171 of the Act and the duty has been bestowed upon the court to determine such rate of interest. In order to determine such rate we may refer to the observations made by this court over the years. In the year 2001 in the case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, AIR 2001 SC 485 on the question of rate of interest to be awarded it was held that earlier, 12 per cent was found to be the reasonable rate of simple interest but with a change in economy and the policy of the Reserve Bank of India the interest rate has been lowered and the nationalised banks are now granting interest at the rate of 9 per cent on fixed deposits for one year. Accordingly, interest at the rate of 9 per cent was awarded in the said case. We may at this stage also refer to the following observations of their Lordships in the aforesaid decision which are relevant to the present case: (23) Now, we have to fix up the rate of interest. Accordingly, interest at the rate of 9 per cent was awarded in the said case. We may at this stage also refer to the following observations of their Lordships in the aforesaid decision which are relevant to the present case: (23) Now, we have to fix up the rate of interest. Section 171 of the M.V. Act empowers the Tribunal to direct that 'in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf. Earlier, 12 per cent was found to be the reasonable rate of simple interest. With a change in economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9 per cent on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9 per cent per annum from the date of the claim made by the appellants.... (11) In the year 2002, in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., (2002) 6 SCC 281 this court held that the interest is payable on the equitable grounds to the aggrieved person who is deprived of using the money which is due and payable to him. Following the observations made in the case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, interest at the rate of 9 per cent was awarded in this case also. It was held as follows: In our view the reason indicated in the case of Kaushnuma Begum (supra) is a valid reason and it may be noticed that the rate of interest is already on the decline. We, therefore, reduce the rate of interest to 9 per cent in place of 12 per cent as awarded by the High Court. (12) In the year 2003 in the case of Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, (2003) 3 SCC 148 it was held that the question as to what should be the rate of interest, in the opinion of this court, would depend upon the facts and circumstances of each case. (12) In the year 2003 in the case of Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, (2003) 3 SCC 148 it was held that the question as to what should be the rate of interest, in the opinion of this court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. After referring to the aforementioned decisions interest at the rate of 9 per cent was awarded in the said case. (13) However, in year 2005, in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, (2005) 6 SCC 236 this court again taking note of the then prevailing rate of interest on bank deposits directed for lowering the rate of interest fixed by the Tribunal at 9 per cent per annum and altered the same to 7.5 per cent per annum. 15. In the instant case, Claims Tribunal did not give any reason for awarding interest only for a period after 30 days of the passing of the order. The rate of interest in 70's and 80's was quite high. The same started falling since the beginning of this century. Taking all the facts and circumstances into consideration, I would award interest at the rate of 7.5 per cent per annum from the date of filing of the petition till the date of award and then from the date of the award till the date of decision in these appeals. 16. The insurance company, respondent No. 3, is directed to deposit the balance compensation along with interest in the name of the appellants with UCO Bank, Delhi High Court Branch, within 6 weeks. On deposit, the amount shall be released to the appellants forthwith. 17. The appeals are allowed in above terms. Pending applications are disposed of accordingly.