Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 472 (UTT)

New India Assurance Co. Ltd. v. Subhash Chandra

2016-08-12

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. All these appeals filed by the insurance company have arisen out of the judgment and order passed by the Tribunal, which deals with the awarding of compensation in the same accident, hence are being taken up together for adjudication by this common verdict. 2. The accident has not been denied, which occurred on 3.7.2008 at 1:00 PM, when the passenger Mini Bus No. UA-04-A-0397 was being plied from Haldwani to Bazpur. As has been deposed by Mr. Pawan Kumar (husband of owner of vehicle Smt. Sudesh Kumari), such accident occurred on account of a sudden mechanical defect developed in the bus, with the result, it dashed against a tree, as a consequence whereof, several passengers got seriously injured and at least 21 of them succumbed to their injuries. Several claim petitions were filed in different Tribunals of this province, hence the insurance company has challenged the award before this Court on different scores. 3. Learned counsel for the insurance company, at the outset, has vehemently stressed on the report of Sub Divisional Magistrate dated 20.3.2009, which runs in as many as 10 pages. Such report discloses that the vehicle was being driven at the relevant time by one Mr. Gurdeep Singh Ladi S/o Suchha Singh, who did not possess a valid driving licence at the relevant time. 4. Whereas, on the other hand, witness Mr. Pawan Kuamr, (husband of owner of vehicle Smt. Sudesh Kumari), who examined on behalf of the claim petitioners, has deposed that the vehicle was being driven by Mr. Faheem Ahmed, who did possess a valid driving licence to drive the transport vehicles. 5. I am not inclined to base my reliance on the report of SDM for the reason that if the stakes of the insurance company were so high, then none prevented such company to apply before the Tribunal for sending summons to the SDM concerned to be examined in the witness box and providing an opportunity to the claimants’ counsel for cross-examination. But it was not done for the reasons best known to the insurance company and in pursuance of such report, which is altogether unproved, it is difficult to belie the deposition of Mr. Pawan Kumar (husband of owner of the vehicle). 6. But it was not done for the reasons best known to the insurance company and in pursuance of such report, which is altogether unproved, it is difficult to belie the deposition of Mr. Pawan Kumar (husband of owner of the vehicle). 6. As regards the factor of non-possessing an appropriate driving licence to drive a commercial vehicle, such a ground cannot be considered to dismiss these petitions for the reason that the position has been made clear by the Constitutional Bench of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Others, (2004) 3 SCC 297 , wherein the difference of Sections 3 and 149(2) of the Motor Vehicles Act (hereinafter to be referred as the Act) has been clarified in the following words:- “Under the Act holding of a valid driving licence is one of the conditions of the contract of insurance. Driving of a vehicle without a valid licence is an offence. Whereas in Section 3 the words used are “effective licence” it has been differently worded in Section 149(2) i.e. “duly licensed”. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms in terms of Section 141 of the Act but Section 149 pertains to insurance as regards third-party risks. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the expressions contained in different provisions are ordinarily construed differently. The words “effective licence” used in Section 3, therefore cannot be imported into Section 149(2) of the Act. Moreover, the words “duly licensed” used in Section 149(2) are used in the past tense.” 7. So, in view of the aforesaid proposition, it is now well settled that even if the driver of the vehicle did not possess an effective licence, he, if found duly licensed, then the liability upon the owner/driver cannot be shifted. The Apex Court has made it clear in so many words that the words ‘effective licence’ used in Section 3 cannot be imported into Section 149(2) of the Act and in violation of such minor terms in driving licence, can invoke the power of concerned authorities to make the Challans of such vehicles including the seizure of the Driving Licence. 8. 8. It was further argued by learned counsel for the insurance company that the total capacity of the bus concerned was for 30 passengers and the insurance cover too was also for 28+2 persons, who were present inside such carriage at the relevant time. Therefore, if more than 30 persons are found to be either dead or injured, then the insurance company is not liable to pay the compensation to all of them. 9. This argument has also been dealt with by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. v. Anjana Shyam & Others, 2007 AIR SCW 5237, where it was held that the extent of liability of insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act is limited only to the number of passengers authorized to be carried in the vehicle. Then the question arises as to what would be the method of awarding compensation to the claimants and such question was also answered in an articulative manner by the Apex Court in the selfsame judgment and it was held that ‘liability of insurance company to be calculated by adding up those number of awards of higher compensation to the extent of number of passengers covered by insurance. Such method would ensure that maximum benefit is derived by insurance taken for the passengers. In other words, it was opined that the insurance company can be made liable only in respect of the number of passengers, for whom, insurance can be taken under the Act and for whom, insurance has been taken as a fact and not in respect of other passengers involved in the accident in a case of overloading. 10. Where 42 awards are to be satisfied by the insurance company, then such awards would be the 42 awards in the descending order starting from the highest of the awards. Meaning thereby, the higher of 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount, which the insurance company would be liable to deposit. Thereafter, it will be for the Tribunal to direct proportionately distribution of the money so deposited by the insurance company to all the claimants. 11. Thereafter, it will be for the Tribunal to direct proportionately distribution of the money so deposited by the insurance company to all the claimants. 11. In the case in hand, the insurance company will also deposit the amount of compensation starting from the higher award up to the last 30th award. The sum total of all these 30 higher awards will be distributed in the proportionate manner and such proportion will be calculated as per the compensation awarded and affirmed by this Court. 12. Since, some of the petitions were filed in Rampur & Bareilly Courts falling within the State of Uttar Pradesh and the appeals where-against are pending in the Hon’ble Allahabad High Court, as has been apprised, hence the insurance company will take this factor into account for consideration in order to assist the distribution of the proportionate of all the claimants, as indicated above. 13. Now, I come to the individual case as regards the quantum. Appeal from Order No. 37 of 2012 14. In this matter, learned counsel for the insurance company has agreed that a sum of Rs.3,85,000/- has rightly been awarded by the Tribunal to the claimants and there seems to be no apparent irregularity in such award. Hence, this appeal has no force and it is hereby dismissed. Appeal from Order No. 575 of 2011 15. Learned counsel for the insurance company has argued that the deceased Rajpal Maini, a businessman, lost his life in the accident. The only infirmity noticed in the judgment is that where the annual income of the deceased was accepted to the tune of Rs.1,51,590/-, but 1/3rd instead of 1/4th should have been deducted towards the personal expenses of the deceased and therefore, deducting a sum of Rs.50,530/-, the annual amount comes to Rs.1,01,060/-. Applying the multiplier of ‘13’ as rightly applied by the Tribunal, the amount of compensation comes to Rs.13,13,780/-. The sum grants towards the funeral expenses and loss of consortium are left intact. 16. This appeal is allowed in the above terms. Appeal from Order No. 36 of 2012 17. In this case, deceased was a Principal in some school, who lost his life. The total amount of award which has been decreed is Rs.14,44,738/-. The sum grants towards the funeral expenses and loss of consortium are left intact. 16. This appeal is allowed in the above terms. Appeal from Order No. 36 of 2012 17. In this case, deceased was a Principal in some school, who lost his life. The total amount of award which has been decreed is Rs.14,44,738/-. Learned counsel for the insurance company has relied upon the precedent of Hon’ble Apex Court in the case of Bhakra Bears Management Board v. Kanta Aggarwal & Others, 2008 ACJ 2372 , wherein, it was held that if the deceased was survived by his widow and three children-Employer of the deceased provided employment to his widow on compassionate grounds and she was getting Rs.4,700/- per month and residence was also provided to her-then it was held that the failure on the part of Tribunal as well as High Court to consider these facts, was not proper. The Apex Court allowed the appeal of the insurance company and held that the benefits, which the claimant has received on account of death, have to be deducted while computing the compensation and such benefits, which the claimants received on account of death, have to be duly considered while fixing the compensation. The lump-sum deduction was made by the Apex Court and in the case in hand, I deduct the amount of Rs.2,44,738/- which is out of Rs.12.00 lakh. This way, the total compensation, which the claimants would be entitled to receive, shall be Rs.12.00 lakh along with the interest, which has been granted by the Tribunal. 18. This appeal stands allowed in the above terms. Appeal from Order No. 569 of 2011 19. Claimant was the married sister and deceased Km. Pooja. These eventualities have been dealt with by the Hon’ble Supreme Court in the case of Smt. Manjuri Bera v. Oriental Insurance Co. Ltd. & Another, 2007 (2) TAC 431 (SC), wherein, it was held that in such matters, even if the claimant is not dependent on the deceased, then also, such claimant is entitled for compensation under Section 140 of the Act. This way, the compensation of Rs.50,000/- has rightly been granted by the Tribunal and adding such compensation with Rs.3,000/- as the funeral expenses. I am not inclined to disturb the same. 20. This appeal fails and it is hereby dismissed. Appeal from Order No. 394 of 2011 21. This way, the compensation of Rs.50,000/- has rightly been granted by the Tribunal and adding such compensation with Rs.3,000/- as the funeral expenses. I am not inclined to disturb the same. 20. This appeal fails and it is hereby dismissed. Appeal from Order No. 394 of 2011 21. Learned counsel for the insurance company has fairly accepted that in grant compensation of Rs.2,98,000/- there seems to be no irregularity. Hence, this appeal has no force and it is also dismissed. Appeal from Order No. 570 of 2011 22. Deceased Makhan Singh was a 53 years man, who was a teacher. Learned counsel for the insurance company has agitated the award of compensation on the ground that the Tribunal would have taken the Basic Salary plus Dearness Allowance for making calculations, and this law has been propounded by Division Bench of this Court in the case of Smt. Sushila & Others vs. Mustafa & Others, 2007 (1) U.D. 380 . The basic pay of the deceased was Rs.7,700/- and D.A. was Rs.3,850/-. The total comes to Rs.11,550/-. Multiplying it by ‘12’ it comes to Rs.1,38,600/- per annum. After deducting 1/3rd towards the personal expenses, it comes to Rs.92,400/- and multiplying it by ‘11’ it becomes Rs.10,16,400/-. I modify the award to this effect. 23. The appeal stands allowed accordingly. Appeal from Order No. 572 of 2011 24. Learned counsel for the insurance company has fairly accepted that there seems to be no irregularity in the impugned award because the claimants were the parents and deceased was a young B.Sc. Student. 25. Hence, this appeal has no force and it is also dismissed. Appeal from Order No. 573 of 2011 26. In this appeal, deceased Mr. Sunder Singh Bhandari, a 40 years man, lost his life. Since he had left six dependents, hence 1/4th deduction has rightly been made towards the personal expenses by the Tribunal. Therefore, no fault has been highlighted in the amount of compensation as awarded by the Tribunal. 27. This appeal also does not have any force and it is also dismissed. Appeal fro Order No. 571 of 2011 28. Smt. Rajendri Devi lost her life in the accident. She was a Clerk in the post-office and was getting basic pay of Rs.1,670/- plus D.A. of Rs.1,697/- and the total comes to Rs.3,367/-. 27. This appeal also does not have any force and it is also dismissed. Appeal fro Order No. 571 of 2011 28. Smt. Rajendri Devi lost her life in the accident. She was a Clerk in the post-office and was getting basic pay of Rs.1,670/- plus D.A. of Rs.1,697/- and the total comes to Rs.3,367/-. Annual income comes to Rs.40,404/- and after deducting 1/3rd towards the personal expenses, it becomes Rs.26,936/- and applying the multiplier of ‘14’ it leads to Rs.3,77,104/-. This calculation has also been made by this Court in light of the precedent of Smt. Sushila & others (Supra). The award, so granted by the Tribunal, is modified to this extent. 29. This appeal stands disposed of accordingly. 30. In all these appeals, the amount of statutory deposit, if lying in the registry, shall be remitted back to the Tribunal concerned forthwith and the entire deposit will be made by the insurance company in light of what has been discussed in the body of this judgment. 31. The excess amount, if any found, shall be refunded back to the insurance company as per above calculations made by this Court.