1 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) SMT. LILA DEVI & OTHERS. V. BOBBY @ BALWINDER SINGH &ORS (2) ROOP CHAND V. SMT. LEELA DEVI & OTHERS. S. B. CIVIL MISC. APPEALS NO. 356/1999 & 506/1999, against the award dated 15.02.1999, passed by Shri Rajendra Singh, RHJS, Judge, Motor Accidents Claims Tribunal, Sri Ganganagar in MAC No.14/89 DATE OF JUDGMENT JULY 29, 2010 PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr.R.K.Singhal & Mr. G.R.Goyal , for Appellant (s). Mr. V.K.Agrawal and Mr. A.K.Dadhich, for Respondent (s). BY THE COURT: Above two appeals, first by claimants for also holding insurer liable and quashing order to pay part of compensation to father and brothers of deceased l and other by owner for holding insurer liable to pay, arise out of the same judgment, so are being decided together. On 31.10.88, at about 10.45 p.m., Shri Madan Gopal, on a 2 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 public way, was hit by car No. RSK 2700, resulting death due to injuries sustained compensation claim by wife, two minor sons, two minor daughters, parents of two brothers. Allowed and awarded, accepted by the tribunal for Rs.2,86,680/- and interest and in relation to award are the appeals. Relevant brief facts, per claimants, are that Shri Madan Gopal, 30 years, at the relevant time, was employed in government hospital as ward boy – was getting salary about Rs.750/- who also employed as home guard, used to get allowance Rs.15/- per day. On that day, deceased, along with three other home guards, reporting at police station and than riding on cycle, was going to duty place at food corporation. Then, on Suratgarh road, a car fastly and negligently driven, came and struck cycle, made Madan Gopal fell down, than car speedily escaped and injured admitted to hospital, where succumbed in evening on 1.11.88. Averred that FIR No.178/88 was registered on 1.11.88 on complaint of Chandi Prasad and that the vehicle owned by Roop Chand, was given for repairs at workshop of mistry Babulal and one Shri Bobby @ Balvinder Singh as such and worker employee of mistry on his behest was driving the vehicle. For earning Rs.1230/- per month, estimating loss for 30 years, Rs.10,42,800/- and deducting Rs.42,800/- for own expenses of deceased, Rs.75,000/- for pain, agony, deprivation of love and affection and Rs.5,000/- for expenses, claimed compensation Rs.10,80,000/-. 3 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 Owner Shri Roop Chand asserted that the vehicle for substantial repair and body work given to and was with Babulal and he did not know of any accident and also when driven by whom. The owner, accepting the deceased to be employed as above, asserted that the deceased fast moving cycle on, was chasing the car and cycle striking, he fell down. Said repairer respondent mistry Babulal replied that he since a day earlier, was away to Delhi and not in know of any accident and the vehicle when driven by whom, and that named person Bobby at that time or ever was not in his employment. Stated vehicle if driven by anyone, was not under instructions. Bobby @ Balwinder Singh replied denying all – stated that he neither driving, nor involved in accident and falsely implicating him, is chargesheet against him for the offence. Appellant insurance company, denying claim petition averments, stated that per claimants themselves, the vehicle was not driven by a person in control or supervision of employer and that even if the vehicle was for repair at workshop during which any accident occurred, still insurer not responsible. Also asserted that insurer was never informed of such accident which is mandatory and that so stated driver did not possess valid driving license. Compensation was claimed from owner, repairer mistry, said driver and the insurer. 4 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 Issues seven were framed relate to questions if incident occurred due to negligence of the said driver and caused is death in accident – dependency of claimants and necessity of succession certificate – relation of said repairer and compensation quantum. Issue No.6 is regarding whether vehicle owner did not inform insurer and if so, to what effect. Issue No.7 is whether vehicle driver had a valid license – if not, effect thereto. On behalf of the claimants, evidence is wife of deceased, father, police officer Sandeep Prasad, and Chandi Prasad who, per him, was with the deceased and lodged first information report. In defence are statements of owner Roop Chand and said driver Bobby @ Balwinder. For insurance company are statements of administrative officer. Placed on record and exhibited are certain copies of FIR, post- mortem report etc. Vide judgment of 19.11.96, learned Judge arriving at conclusions of accident – due to negligence of Bobby @ Balvinder Singh who driving – g injuries to Madan Gopal-who died of injuries – claimants dependent on him, estimating Rs.2,65,680/- as earning loss applying multiplier for annual income Rs.14,707/- and Rs.21,000/- for other heads, awarded total compensation Rs.2,86,680/-. Learned Judge arrived at conclusion that vehicle was not liable as was handed over to and with mistry for repairs. Responsibility for payment was held of owner, repairer, and drivers and also insurer challenging above award appeal No.11/97, 5 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 preferred by insurer, was disposed of by judgment dated 13.5.98, directing “in this view of the matter, the findings on issues No. 6 and 7 are set aside, the matter is remitted back to the Tribunal for fresh adjudication on issues No. 6 and 7 and then decide the case and adjudicate upon the liability of the insurance Company.” Learned tribunal than vide judgment dated 15.2.99 held (for issue No.6) that for accident, owner did not intimate insurer but this of no consequence and for issue No.7, held that driver Bobby @ Balvinder Singh did not have driving license – to whom vehicle given by insurer, so owner responsible for paying compensation, but not insurance company – consequently, awarded compensation Rs.2,71,680/- with interest, payable by owner, driver, repairer & not insurer. Claimants, preferring appeal, request that award also be against insurer and insurer ordered to pay – also request that order of a part of compensation in favour of father brothers deceased be set aside. Owner requests that quashing the finding on issue No.7 and holding insurer also responsible they be ordered for payment. Learned counsel for the claimants vehemently argued that (i) vehicle was statutorily insured, (ii) deceased was a third party in relation to this vehicle, (iii) irrespective of the fact who and in what capacity driving, dependents of deceased entitled to receive amount from the owner and consequently by the insurer, (iv) brothers of the deceased neither dependent on deceased, nor can be heirs particular when 6 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 deceased survived by wife, children and mother; (v) appeal of insurer decided vide order dated 13.5.98 and only issues No. 6 and 7 remain open. In support of contentions, cited are National Insurance v. Swaran Singh, WLC (SC) 2004 Vol.1 p.270; Sohan Lal Passi v. P.Sesh Reddy, AIR 1996 SC 2627; & Guru Govebar v. Filomena. Learned counsel for owner contends that the vehicle was rightly insured as provided by the provisions – he delivered it for repairs at a workshop - as he subsequently came to know Bobby @ Balwinder Singh mistry while driving under instructions of workshop owner met with an accident – either Bobby or any driving was not under owner's instruction or control – owner control only upto he handed over for repair and only insurer liable. On behalf of the insurer, thrustly argued that (i) entire version of handing over for repair and driven while under repairs and control of repairer, completely concocted and after thought only to obtain compensation from insurer, (ii) vehicle, per owner Roop Chand, was in a hopelessly dilated condition, so cannot be accepted for hand over for repair, more so when owner does not know when handed over and how many days for repairs need – owner cannot be allowed to be over-smart and that owner creating version ending is his liability – learned tribunal not properly appreciated evidence. Argued that earlier appeal decided, set aside the award and entire mater and all issues remain open. Submitted that if the insurer is held liable, then non-lialbility clause stand 7 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 circumvented and encouraged other grounds like with repairs etc. Argued that when vehicle driven in violation of policy conditions as here without a valid license, then insurer not at all liable. Thoughtfully considering arguments, gone through the record. Deciding earlier appeal, vide order dated 13.5.98 passed award dt 15.11.07 set aside and directing for fresh adjudication on issues No. 6 and 7, and then decide the case and adjudicate upon the liability of the insurance company. The vehicle is alleged to have been driven by Bobby @ Balwinder Singh and for the registered FIR of the incident, against him is filed a charge sheet for the offences. Certified copy of charge-sheet is on record and Bobby @ Balwinder Singh appearing in evidence, has accepted of criminal case against him pending. Owner Roop Chand NAW 1 in his evidence states that he soon after purchasing, handed over the vehicle for repairs at workshop of Bobby @ Balwinder Singh, where Babu Lal mistry also worked and joint owner of workshop with Bobby. Per owner, when he went to take back vehicle from Bobby, he was informed of the accident and the vehicle being with police. Bobby @ Balwinder Singh NAW 2 states that his is not any car, jeep or workshop and not ever was. According to this witness, he does not know driving any vehicle, not even scooter. The witness denies of ever any vehicle by Roop Chand given to him. As above, just opposite to each other is the evidence of the owner and the said driver. No other evidence to show who driving or not. 8 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 However, the position remains that police challan presented for the accident against the said driver and the FIR lodger Chandi Prasad AW 3 states of accident having occurred in his presence as above, so only inference, though evidence weak can be that accident occurred of and involving this vehicle owed by Roop Chand who had given for repairs and at the time, was being driven under instructions and control of person other than owner who appears to be repairer to whom given for repairs. Looking from other perspective, as far as deceased and his legal representatives are concerned, when involving the vehicle, the accident is proved to have happened here in given facts and situations, for them hardly is very relevant as to who and why was driving. Deceased Madan Gopal in night at about 10.30 p.m., going on a bicycle when he was struck by the vehicle. As far as Madan Gopal is concerned, he is completely a third party in relation to the vehicle and insurer. Given these facts, as deceased neither owner nor driver and in no way seems to have any connection with any is a third party so insurer becomes liable to pay – other matters being in domain between insurer and owner so insurer may be at liberty to recover from owner if held to be so. In the instant case, above being the position, argument that insurer under non-liability cannot be accepted. Hon'ble the Supreme Court, while dealing with , AIR 2008 SC--, NIC v. Geeta Bai. 2006 ACJ 1224 has also held on the same lines. 9 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 Similarly, the factum that the said driver Bobby @ Balwinder Singh did not possess any license and also that insurer was never informed of accident by owner, is immaterial for awarding compensation to claimants. Now, thinking for question of of the owner, it appears that in the present case the vehicle was handed over for repair at a workshop. This being so, for appellant not possible to control vehicle minute to minute, including also for who drives and how. After much time of handing over for repairs at workshop, if the vehicle is driven by a person, not authorized, then the same very hardly can be said to be in knowledge or instruction of the owner. As observed on evidence and facts only conclusion, as above, is of vehicle being at workshop for repair, so in absence of his knowledge or connivance, evidence and reasons and on evidence disclosing facts and circumstances, the owner cannot be held liable. Admittedly, effective insurance as necessary under Section 147 was in force. Therefore, appeals of owner and partially of claimants succeed. Now, coming to second part of claimants, appeal that father and brothers are not entitled to any compensation. Indisputably, brothers being second class of heirs in relation to other claimants so cannot claim any legal representations and/or inheritance but dependency not necessarily always equitable to succession. However, this is to be 10 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 borne in mind for love and affection, dependency etc. compensation can be to parents. Question whether or not brother can ask for compensation apart, parents can always claim compensation that and if their dependency on deceased or injured is/was higher because of reasons of high family liability and dependency (of children) on them. Acceptable or not, is a entire different matter. In the instance case, claimants happened to be wife, four children, parents and two brothers of deceased. Laxminarain PW 2, father after six years of the incident, stated his age to be 65. Per claim, youngest of the son was 14 years. This being so, other brothers claimant perhaps not below 21 years particularly when eldest child of deceased was 9 years. Brothers are not strict legal representatives and even if some dependency of the brothers even then, learned tribunal for father and mother seems to have inferred of parents to that extent, including other sons. If the amount is not disbursed, then considering wife and four minor children of deceased and now belatedly appropriate shall be to order 1/4th for parents and 2/3rd to wife and four children. On behalf of the appellants, argued that post judgment 19.11.96, tendered Rs.5,40,543/-, trial Court directed Rs.2,36,111/- (excluding earlier interim paid) to wife and four children and rest equal to parents and brothers which abnormally disproportionate. The argument has merit. On perusal of file, it appears that no specific division, except of some FDs in favour of minor is in judgment and, thereafter, of 1.3.97 order of disbursement as above is. Consequently, subsequent payment 11 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 made or not, clearly so emerges from the record and directions given by the tribunal. Per order-sheet dated 4.4.97, learned Tribunal directed to call back refund bill. Though the apportionment as above, is not justified but as they are parents and brothers of the deceased, so now, after 14 years of disbursement (if payment actually made), shall not be in the interest and conducive of close relationship, if now directed, is recovery. However, if amount is not disbursed, then considering wife and four minor children of deceased and as while assessing dependency, multiplier of 18 is used and period elapsed so for, 1/4th for parents and 2/3rd for wife and four children of deceased shall be appropriate. However, the disbursement in excess to it, if already made, then not to be effected recovery. However, if disbursement not made consequential to order dated 1.3.97 or made only in part, then only, 25% of the compensation amount shall be payable to respondent parents, i.e. R4 & R5 and this 25% shall include all amount paid so far. Per findings, as above, both the appeals are to be decided. Partly allowing appeal No.356/99, is ordered that insurance company respondent No.3 is also liable to make payment of the compensation. Disbursement, out of compensation amount to respondents No. 6 and 7, is set aside. Respondents No.4 and 5 (parents) are entitled for 1/4th of the total compensation amount, including earlier paid. Amount already paid, if any, to any of R4, 5, 6 and 7, not to be recovered now. Accepting appeal No.506/99 of owner, is ordered that insurer respondent 12 (1) S.B.Civil Misc.Appeal No.356/99 (2) S. B. Civil Misc. Appeal No.506/99 shall be liable to pay and satisfy award of compensation. However, Rs.25,000/- deposited or paid by owner to be set off against compensation and shall be payable to claimants. No order as to costs. Order as above in two appeals. (C. M. TOTLA), J. scd