National Insurance Co. Ltd. v. Masood Ahmad Draboo
2012-02-04
HASNAIN MASSODI
body2012
DigiLaw.ai
1. Dr. Gowhar Masood Draboo Son of respondents 1 and 2, husband of respondent No. 3 and father of respondents 4 and 5 on 5th October, 2003 fell victim to a fatal vehicular accident near Kud on Jammu National Highway. The accident occurred due to rash and negligent driving of Tata Sumo vehicle bearing No. JK02T/4087 by its driver Shri Farooq Ahmad-respondent No. 7 in the present appeal. 2. The deceased working as lecturer in the department of Oral Medical in Pt. B.D. Sharma EGIMS Rohtak, Haryana, was at the time of accident on his way to Srinagar to join as B-Grade Dental Specialist in Family Welfare and Medical Education Department of the State Government. Soon after the tragic accident parents, widow and children of deceased laid a claim petition before Motor Accident Claims Tribunal, Srinagar. The case set up was that the vehicular accident occurred due to rash and negligent driving of vehicle by its driver and that as the vehicle was insured with the Appellant Insurance Company, it was under legal obligation to indemnify the owner of the vehicle and pay compensation to the claimants. The respondents 1 to 5 claimed an amount of Rs. 96,90,000/- on different counts from the Appellant Insurance Company. 3. The Appellant Insurance Company contested the claim on different grounds including the ground that as the driver of the offending vehicle was not in possession of valid and effective driving licence. The Appellant Insurance Company was not liable to indemnify the owner of the offending vehicle and pay compensation to the claimants. It was contended that the owner of the vehicle by employing a person not having valid and effective licence, had committed breach of insurance contract and allowed the Appellant Insurance Company to escape from the liability to pay compensation to the claimants. The Tribunal on perusal of the pleadings, settled following issues:- 01. Whether on 05.2003, the deceased, who was travelling in TATA Sumo No.JK03/3491, was being driven by the respondent driver rashly and negligently, as a result of which it collided with truck No.JK02T/4087, resulting in the death of the deceased.(OPP). 02. Whether the petitioners have no cause of action to file the instant claim petition against the respondent/Insurance Company and, as such, it merits dismissal(OPR-3). 03. Whether this Tribunal has no rerritorial jurisdiction to try the claim petition and, as such, the same is liable to be dismissed? (OPR-3).
02. Whether the petitioners have no cause of action to file the instant claim petition against the respondent/Insurance Company and, as such, it merits dismissal(OPR-3). 03. Whether this Tribunal has no rerritorial jurisdiction to try the claim petition and, as such, the same is liable to be dismissed? (OPR-3). 04. Whether the petition is not maintainable for mis joinder and non joinder of the necessary parties? (OPR-3). 05. Whether the driver of the offending vehicle was not holding a valid and effective driving license and, as such, the insurance company cannot be saddled with liability/(OPR-3). 4. The respondents 1 to 5 to substantiate their case examined Ishtiyaq Hassan, Mushtaq Ahmad and Gh. Nabi Lone as witnesses. Kahkashan Draboo widow of deceased also stepped in the witness box. The Appellant Insurance Company to rebut the evidence adduced by the respondents 1 to 5 and to reinforce its case set up in opposition to the claim petition, examined Traffic Assistant RTO Jammu, Mushtaq Ahmad Sadoor Legal Assistant National Insurance Company Shri Farooq Ahmad driver of the offending vehicle also stepped in the witness box. 5. The Tribunal on going through the evidence brought on the file decided all the issues in favour of the respondents 1 to 5 and against the Appellant Insurance Company. The fatal accident that claimed life of Dr. Gowhar Masood Draboo was held to have been caused due to rash and negligent driving of vehicle by its driver Shri Farooq Ahmad-respondent No. 7. Issues 2,3 and 4 were not pressed by counsel for the Appellant Insurance Company that the Tribunal did not find any merit in the claim that the driver of the offending vehicle was not having valid and effective licence at the time of accident. 6. The Tribunal after rejecting the defence set up in opposition to the claim petition assessed the compensation payable to the respondents 1 to 5 applying multiplier of 16 and having regard to the monthly salary of the deceased immediately before he met with the accident. The Tribunal allowed deduction of 1/3 on account of personal expenses and worked out loss of dependency as Rs. 37,09,248/-. An amount of Rs. 15,000/- was awarded for loss of consortium to widow of the deceased and further Rs. 10,000/- for loss of love and affection, and an amount of Rs. 10,000/- on account of funeral expenses. The Tribunal awarded Rs.
37,09,248/-. An amount of Rs. 15,000/- was awarded for loss of consortium to widow of the deceased and further Rs. 10,000/- for loss of love and affection, and an amount of Rs. 10,000/- on account of funeral expenses. The Tribunal awarded Rs. 37,45,000/- as compensation in favour of respondents 1 to 5. The award amount was directed to carry interest @ 6% per annum from the date of filing of claim till its final realization. The Appellant Insurance Company was given an option to deposit the entire award amount within 30 days from the date of order and in default pay interest @ 9% on the awarded amount. 7. The award dated 5th September, 2008 is questioned in the Civil First Miscellaneous Appeal on hand on the grounds that the Tribunal erred in holding PSV endorsement on the driving licence as genuine on the ground that the Appellant Insurance Company has failed to prove PSV endorsement was fake. It is contended that it was for the owner and driver of the offending vehicle to prove that PSV endorsement was genuine and the Tribunal ought to not have saddled the Appellant Insurance Company with the onus to prove that PSV endorsement was fake. The Tribunal is said to have lost sight of the fact that the PSV endorsement No. 1019/MVD/1203 dated 01.09.2003 related to DL No. 4412/MVD/RTO) dated 24.08.2003 in the name of one Fayaz Ahmad Dar and not the driving licence No. 4932/MVD/RTOJ held by the respondent No. 7. It is next urged that even if the Insurance Company was assumed to have been liable to pay compensation, the Tribunal ought not to have awarded Rs.37,45,000/- as compensation, which according to Insurance Company is exorbitant, excessive and unjust. It is pleaded that the tribunal applied the higher multiplier and without any justification added 50% of the salary on account of future prospectus. 8. The Appellant Insurance Company referring to the case law on the subject insists that the Tribunal ought to have weighed various factors, while quantifying the amount of compensation and make it a point to ensure that the compensation awarded was just and not a bonanza or a source of profit for the claimants. The appellant also finds fault with the rate of interest allowed by the Tribunal in the event of failure of the Insurance Company to deposit the amount within 30 days. 9.
The appellant also finds fault with the rate of interest allowed by the Tribunal in the event of failure of the Insurance Company to deposit the amount within 30 days. 9. I have gone through the memorandum of appeal, as also record received from Tribunal and have heard learned counsel for the parties. 10. The appellant Insurance Company questions the award, as revealed in the memo of appeal, and its liability to indemnify the owner and pay compensation to respondents 1 to 5, primarily on the ground that owner of the Offending Vehicle was guilty of breach of Insurance Contract in as much as he handed over the offending Vehicle to the driver not having valid and effective driving license. The Tribunal, however, did not agree with the stand taken by the appellant insurance company. Let us see whether the evidence brought on the file on dispassionate and objective analysis what lead to a conclusion different from one arrived at by the Tribunal. 11. It needs to be pointed out at the outset that the appellant Insurance Company having raised plea of "in-effective" and "Invalid" driving license, was required to substantiate the plea. It is to be noted out that the driver of the offending vehicle was found to have the driving license with PSV endorsement entitling the driver to drive the offending vehicle. In the circumstances, the appellant Insurance Company was required to prove by cogent and convincing evidence that the driving license with PSV endorsement recorded thereon was false and forged. The present case is distinguishable from the case where the driver is found to have been driving the offending vehicle without PSV endorsement on his driving license valid for light motor vehicles. In such a case, the Insurance Company is not to labour much to convince the Tribunal that the driving license held by the Driver of the offending vehicle was inffective, if not, invalid. 12. In the present case, the driving license admittedly was valid, though, according to the appellant Insurance Company, it would not entitle the driver to drive the Passenger Vehicle in absence of PSV endorsement, recorded on the license by the competent authority. The appellant Insurance Company, obviously, was required to prove that the PSV endorsement was fake or recorded by an incompetent authority. 13.
The appellant Insurance Company, obviously, was required to prove that the PSV endorsement was fake or recorded by an incompetent authority. 13. Appellant's witness, Hakeem Muzafar Ali, Traffic Assistant RTO, Jammu has admitted that driving license held by the driver of the offending vehicle bears PSV endorsement No. 1019/MVD/1203 though witness has expressed his inability to identify the authority that made the endorsement. The witness also clarified that the endorsement was not required to be made only by the RTO Jammu, where from the license was initially issued and that the endorsement could be made by any licensing authority. 14. Appellant's witness, Mushtaq Ahmad Sadoor, Legal Assistant, National Insurance Company has admitted that the verification report received from Its Investigator was not placed before the Tribunal. The witness while admitting that the driving license is valid has expressed his suspicion as regards PSV endorsement. The driver of the offending vehicle, on the other hand, has insisted to have PSV endorsement made on his driving license on 1st. September, 2003. The witness has appeared in the witness box on 07.12.2007 in presence of the counsel for the appellant Insurance Company and has not been subjected to cross-examination on this aspect of the matter. There has been no attempt on part of the counsel for the appellant before the Tribunal to shake or question credibility of his claim The Tribunal, in the circumstances, was right in concluding that the Insurance Company failed to discharge the onus of proving issue no.5. This apart, the owner of the vehicle in view of the fact that the driver to whom he entrusted the vehicle was admittedly having valid driving license with PSV endorsement cannot be held guilty of negligence and breach of Insurance Contract. The appellant Insurance Company, has not been in a position to the convert the doubts into proof and establish by preponderance of probabilities that Driver of the offending vehicle was not in possession of a valid and effective driving license at the time of accident so as to escape the liability under Insurance Contract to indemnify the owner. 15. This takes us to second limb of the appellant's case as regards the quantum of compensation awarded by the Tribunal. The deceased at the time of accident was 35 years of age.
15. This takes us to second limb of the appellant's case as regards the quantum of compensation awarded by the Tribunal. The deceased at the time of accident was 35 years of age. The Tribunal as laid down in case titled "Sarla Verma & Others v. Delhi Transport Corporation & another, 2009 (6) SCC 121 rightly applied multiplier of 16 and worked out loss of income. Tribunal, it may be pointed out, did not take into account the salary the deceased was likely to get on his appointment as B-Grade Specialist in the Dental Health & Medical Education Department of the State Government but relied on the salary deceased was getting from Rothak Hospital immediately before his tragic demise though lesser than the salary the deceased would draw enjoining as B Grade Specialist. The Tribunal having regard to the age of the deceased was right in computing 50% of the salary on account of future prospects. It is pertinent to point out that Tribunal in view of the number of dependents ought not to have deducted 1/3rd of the income on account of personal expenses. Tribunal ought to have realized that a person with five dependents would ill afford to spend 1/3rd of his income on his personal expenses and should have restricted such deduction to 1/4th of the salary. We have not to dilate on this issue in as much as respondents 1 to 5 have not questioned the award on that count. Respondents 1 to 5 were not to be awarded any amount on account of loss of love and affection, as such, loss is to be taken to be internalized and to come within purview of loss of dependency. The award in the circumstances, is to be modified only to said extent. 16. For the reasons discussed above, the award is modified as under:- The appellant Insurance Company shall pay an amount of Rs 37,35000/- to respondents 1 to 5 in lieu of all claims under the award impugned in the present appeal. However, rate of interest and other conditions subject to which award is passed are left unaltered/unmodified. 17. Appeal is, accordingly, disposed of.