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2016 DIGILAW 2285 (PNJ)

Asha Rani v. Makhan Singh

2016-08-26

DARSHAN SINGH

body2016
JUDGMENT : DARSHAN SINGH, J. This judgment shall dispose of both the appeals mentioned above, which have arisen out of the same award dated 13.09.2011, passed by the learned Motor Accidents Claims Tribunal, Patiala (hereinafter called the “Tribunal”), vide which Smt. Asha Rani and others the appellants of FAO No.3440 of 2012 have been awarded compensation to the tune of Rs.6,20,000/- on account of death of Narinder Singh in the motor vehicular accident which took place on 22.02.2010. 2. FAO No.3440 of 2012 has been preferred by the appellants-claimants for enhancement of the amount of compensation. FAO No.1238 of 2014 has been preferred by the driver and owner of truck bearing registration No.HR-46A-4202 assailing the award and challenging the recovery rights given to the respondent-Insurance Company. 3. Along with appeal, the appellants of FAO No.1238 of 2014 have also moved an application bearing CM No.4125-CII of 2014 under Section 5 of the Limitation Act, 1963 for condo nation of delay of 810 days in filing the present appeal on the grounds inter alia that they were proceeded against ex parte before the learned Tribunal. When they came to know that they have been proceeded against ex parte, they moved an application before the Tribunal on 26.07.2012 for setting aside the ex parte order but the record was summoned by this Court. The Tribunal could not decide the application. The same was withdrawn on 06.02.2014. Thus, the delay has resulted in filing the appeal. 4. This application has been contested by the respondent- United India Insurance Company Ltd. on the grounds inter alia that there is hardly any cogent reason given in the application which can constitute valid and sufficient cause to condone the inordinate delay in filing the present appeal. 5. The appellants of FAO No.1238 of 2014 have also filed an application bearing CM No.4127-CII of 2014 for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short the “CPC”) for additional evidence to place on record the copy of the insurance policy showing that the truck bearing registration No.HR-46A-4202 was duly insured with effect from 01.01.2010 to 31.12.2010. 6. I have heard learned counsel for the parties and gone through the paper-book meticulously. 7. Mr. 6. I have heard learned counsel for the parties and gone through the paper-book meticulously. 7. Mr. Hemen Aggarwal, Advocate, learned counsel for the applicants-appellants in FAO No.1238 of 2014 contended that the delay of 810 days has occurred in filing the appeal as earlier the appellants have filed the application under Order 9 Rule 13 CPC for setting aside the ex parte award but as the record of the case was summoned by this Court, the said application could not be decided. They have withdrawn that application. Due to this reason, the delay in filing the appeal has occurred, which was beyond the control of the appellants. 8. Learned counsel for respondent-Insurance Company contended that the filing of the application under Order 9 Rule 13 CPC does not constitute the sufficient cause for condo nation of delay. 9. I have duly considered the aforesaid contentions. 10. It is settled principle of law that where an ex parte decree is passed the aggrieved party can avail the remedy of moving an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree by showing the sufficient cause. He also has a remedy to file the appeal against the ex parte decree. In the instant case the appellants of FAO No.1238 of 2014 have exercised their right to file the application under Order 9 Rule 13 CPC for setting aside the ex parte award dated 13.09.2011. Later on, they withdraw said application on the plea that the record of the case was summoned by this Court, so the application could not be decided by the learned Tribunal. As per Section 14 of the Limitation Act, the period during which a party has been prosecuting with due diligence another civil proceedings, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. So, the provision of Section 14 of the Limitation Act shall not be applicable in this case as there was no defect of jurisdiction to entertain the application under Order 9 Rule 13 CPC by the learned Tribunal to set aside the ex parte award. So, the provision of Section 14 of the Limitation Act shall not be applicable in this case as there was no defect of jurisdiction to entertain the application under Order 9 Rule 13 CPC by the learned Tribunal to set aside the ex parte award. No other reason has been mentioned in the application to condone the delay, so the appellants have not been able to make out the sufficient cause for condo nation of delay. Hence, the application bearing CM No.4125-CII of 2014 for condo nation of delay in filing the FAO No.1238 of 2014 has no merits and is hereby dismissed. 11. The appellants of FAO No.1238 of 2014 have also filed an application bearing CM No.4127-CII of 2014 under Order 41 Rule 27 of CPC for leading the additional evidence in order to produce the copy of the insurance policy to show that truck bearing registration No.HR-46A-4202 was duly insured on the date of accident with the respondent-Insurance Company. The perusal of the award shows that learned counsel for respondent-Insurance Company has not raised the plea at the time of arguments that the truck in question was not insured with it. The recovery rights have already been given to the respondent-Insurance Company on the ground that the permit was not meant for the State of Punjab and the driving licence of appellant Makhan Singh was fake. Thus, the production of the copy of insurance policy is not required to enable this Court to pronouncement the judgment. Hence, the same is hereby dismissed. 12. Mr. Ishan Cooner, Advocate appearing for Mr. J.S. Cooner, Advocate, learned counsel for appellants-claimants of FAO No.3440 of 2012 contended that inadequate amount of compensation has been awarded. The learned Tribunal has wrongly deducted 1/3rd of the income of the deceased towards his personal and living expenses even though deceased had left four dependents. The multiplier has also been applied wrongly. The multiplier of 17 should have been applied in view of the age of the deceased. Less amount has been awarded towards loss of consortium and funeral expenses. Neither the future prospects have been awarded nor any amount has been given to the minor children of the deceased on account of loss of love and affection. Thus, he contended that the just compensation has not been awarded. 13. Less amount has been awarded towards loss of consortium and funeral expenses. Neither the future prospects have been awarded nor any amount has been given to the minor children of the deceased on account of loss of love and affection. Thus, he contended that the just compensation has not been awarded. 13. On the other hand, learned counsel for the respondent- Insurance Company as well as learned counsel for the driver and owner contended that the deceased was not doing any permanent job, so he was not entitled for any future prospects. The Tribunal has rightly awarded the compensation under other conventional heads. So, there is no scope for any further enhancement in the amount of compensation. 14. Mr. Hemen Aggarwal, Advocate, learned counsel for the owner and driver contended that the recovery rights have been wrongly given to the respondent-Insurance Company against them. The vehicle in question was duly insured with the respondent-Insurance Company. Mere this fact that the truck in question was not having the permit for the State of Punjab is not a valid defence available to the Insurance Company. Mere this fact that the driving licence of driver Makhan Singh was found fake is also no ground to absolve the Insurance Company. He has relied upon case National Insurance Company Ltd. Vs. Swaran Singh, 2004 (2) RCR (civil) 114. Thus, he contended that the respondent-Insurance Company has no right to effect the recovery of the awarded amount from the driver and owner of the vehicle. 15. On the other hand, Mr. Rajesh K. Sharma, Advocate, learned counsel for the respondent-Insurance Company contended that from the evidence on record it was established that the licence of Makhan Singh driver was fake, which was a clear violation of the terms and conditions of the insurance policy. So, there is no illegality in granting the recovery rights to the Insurance Company. 16. I have duly considered the aforesaid contentions. 17. Deceased Narinder Singh was 30 years of age at the time of the accident and his consequent death. The learned Tribunal has determined the income of deceased Narinder Singh to be Rs.5000/- per month i.e. Rs.60,000/- per annum. He was treated as a driver by profession. As the deceased was a driver by profession, so he was a skilled person. His income was bound to increase with the passage of time. The learned Tribunal has determined the income of deceased Narinder Singh to be Rs.5000/- per month i.e. Rs.60,000/- per annum. He was treated as a driver by profession. As the deceased was a driver by profession, so he was a skilled person. His income was bound to increase with the passage of time. It is a fact of common knowledge that the income of an individual never remains stagnant. It is bound to increase with the passage of time. That is why even the minimum wages of the labourers are being periodically revised by the government. So, certainly the future prospects should have been awarded towards the income of the deceased. Thus, in view of the age of deceased Narinder Singh, 50% of his income is required to be added to his income towards future prospects. The total income of the deceased comes to Rs.90,000/-. The deceased has left a widow and three children, so the deceased had four dependents. So, 1/4th of his income shall be deducted towards his personal and living expenses. The remainder comes to Rs.67,500/-.The age of the deceased was 30 years, so the multiplier of 17 shall be applicable. The loss of dependency comes to Rs.11,47,500/-. 18. In addition to the aforesaid amount, appellant-claimant No.1 the widow of deceased shall be entitled to Rs.1,00,000/- towards loss of consortium. Appellants-claimants No.2 to 4, minor children of deceased shall also be entitled to Rs.1,00,000/- towards loss of love, care and guidance. The appellants-claimants shall also be entitled to Rs.25,000/- towards funeral expenses. The total amount of compensation comes to Rs.13,72,500/-. 19. Now let us see as to whether the recovery rights has been rightly given to the respondent-Insurance Company or not. I found substance in the plea raised by learned counsel for appellants in FAO No.1238 of 2014 that mere this fact that the truck in question was not having the permit for the State of Punjab, will not amount to violation of the terms and conditions of the policy when the truck in question had a valid permit Ex.R-1 for the State of Haryana. To support this view, reference can be made to cases Hans Raj Chaudhary Vs. Smt. Nanhi Devi and others, 2013 (7) RCR (Civil) 2574, Future General Insurance Co. Ltd. Vs. Smt. Surjo Devi and others, 2013 (2) RCR (Civil) 564 and National Insurance Company Ltd. Vs. To support this view, reference can be made to cases Hans Raj Chaudhary Vs. Smt. Nanhi Devi and others, 2013 (7) RCR (Civil) 2574, Future General Insurance Co. Ltd. Vs. Smt. Surjo Devi and others, 2013 (2) RCR (Civil) 564 and National Insurance Company Ltd. Vs. Rajinder Giri and others, 2012 (2) RCR (Civil) 183. However, from the statement of RW-2 Laxmender Singh, Clerk RTO Office, Mathura, it is established that the driving licence of appellant Makhan Singh was fake. RW-2 Laxmender Singh has brought the driving licence No.8157 dated 30.05.2007. He has categorically deposed that he has seen the copy of the said driving licence of Makhan Singh in the judicial file and the same has not been issued by their office on this number and date to said Makhan Singh, rather driving licence No.8157 dated 30.05.2007 was issued in favour of Sham Singh son of Ramesh Chand, resident of Aduki Narholi, Mathura. So, the licence of appellant-driver Makhan Singh was fake, which is a clear violation of the terms and conditions of the insurance policy. The Hon'ble Supreme Court in cases M/s United India Insurance Company Ltd. Vs. Davinder Singh, 2007 (4) RCR (Civil) 790 and National Insurance Company Ltd. Vs. Geeta Bhat and others, 2008 (3) RCR (Civil) 44 has granted the recovery rights to the Insurance Company from the owner and driver of the vehicle on the ground that the driver of the vehicle possess the fake licence. So, in view of the aforesaid authoritative pronouncements of the Hon'ble Apex Court, no fault can be found with the recovery rights given to the Insurance Company by the learned Tribunal. 20. Thus, keeping in view my aforesaid discussion, FAO No.3440 of 2012 filed by appellants-claimants is hereby partly allowed. The amount of compensation payable to appellants-claimants is enhanced to Rs.13,72,500/- from Rs.6,20,000/- as awarded by the Tribunal. The appellants-claimants shall be entitled to interest on the enhanced amount from the date of filing the petition till realisation at the rate as determined by the learned Tribunal The liability to pay the enhanced amount shall remain as determined by the learned Tribunal in the main award. However, FAO No.1238 of 2014 filed by the driver and owner of the truck in question has no merits and the same is hereby dismissed on merits as well as barred by limitation.