IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) A.O. No. 428 of 2007 National Insurance Company Ltd. – Appellant. Versus Mahavir Singh Mall and another - Respondents. Mr. V.K. Kohli, Senior Advocate assisted by Ms. Vandna Mehra, Advocate for appellant. Mr. H.M. Bhatia, Advocate for respondent No.1. Mr. B.S. Negi, Advocate for respondent No.2. (2) A.O. No. 429 of 2007 National Insurance Company Ltd. – Appellant. Versus Km. Kalpana Rawat and others - Respondents. Mr. V.K. Kohli, Senior Advocate assisted by Ms. Vandna Mehra, Advocate for appellant. Mr. H.M. Bhatia, Advocate for respondent Nos.1 and 2. Mr. B.S. Negi, Advocate for respondent No.3. (3) A.O. No. 430 of 2007 Padam Singh – Appellant. Versus Smt. Rame Devi and others - Respondents. Mr. B.S. Negi, Advocate for appellant. Mr. V.K. Kohli, Senior Advocate assisted by Ms. Vandna Mehra, Advocate for respondent No.7. (4) A.O. No. 61 of 2008 Smt. Reena Parmar and others – Appellants. Versus National Insurance Co. and another -Respondents. Mr. Rakesh Thapliyal, Advocate for appellants. Mr. V.K. Kohli, Senior Advocate assisted by Ms. Vandana Mehra, Advocate for respondent No.1. Mr. B.S. Negi, Advocate for respondent No.2. (Hon’ble B.S. Verma, J.) Since all the appeals arise out against the same accident and similar controversy is involved in these appeals therefore they are being decided by this common judgment. 2 A.O. No. 428 of 2007, has been filed against the judgment and award dated 19-7-2007, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACT Case No. 79/2005,Mahavir Singh Mall Vs. Padam Singh and another, whereby a sum of Rs. 82,000/- has been awarded as compensation, in lieu of death of Km. Namita, daughter of the claimant, and the National Insurance Company was directed to deposit the amount within a period of one month, failing which interest @ 6% per annum shall be payable from the date of filing the petition till the date of actual payment. A.O. No. 429 of 2007, has been filed against the judgment and award dated 19-7-2007, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACT Case No. 77/2005, Km. Kalpana Rawat and another Vs. Padam Singh and another, whereby a sum of Rs.4,69,720/- has been awarded as compensation, in lieu of death of Bhagat Singh, father of the claimants, and the National Insurance Company was directed to deposit the amount within a period of one month, failing which interest @ 6% per annum shall be payable from the date of filing the petition till the date of actual payment. A.O. No. 430 of 2007, has been filed against the judgment and award dated 19-6-2007, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACT Case No. 97/2005, Smt. Rami Devi and others Vs. Padam Singh and others, whereby a sum of Rs. 8,60,200/- has been awarded as compensation, in lieu of death of Prem Lal, and the National Insurance Company was directed to deposit the amount within a period of two months, failing which interest @ 7% per annum shall be payable from the date of filing the petition till the date of actual payment. However, the Tribunal has also given right of recovery against the owner Padam Singh. A.O. No. 61 of 2008, has been filed against the judgment and award dated 19-7-2007, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACT Case No. 76/2005, Smt. Reema Parmar and others Vs. Padam Singh and another, 3 whereby the claim petition filed in lieu of death of Devendra Singh Parmar, was dismissed. Brief facts giving rise to these appeals are that claimants filed claim petitions with the allegation that on 22.5.2005, the deceased persons were travelling in Jeep bearing registration No. U.P. 07-K-9571, from Srinagar to Rishikesh. When the said jeep reached near Chupatya Toke on Rishikesh- Badrinath Motor Marg, at about 9.30 A.M. it met with accident due to rash and negligence of the driver and fell in deep ditch. The deceased persons died at the spot. The opposite party, Padam Singh, owner of the offending Tractor, contested the claim petitions and alleged that he had sold the jeep to Biseshwar Dutt Thapliyal on 27-8-2003 and had handed the documents of the jeep to him. Biseshwar Prasad himself was driving the jeep. He also alleged that the liability to pay the compensation is upon Sri Biseshwar Prasad or the National Insurance Company, with whom the jeep was insured. The opposite party, National Insurance Company, filed its written statements and denied the allegations made in the insurance policy. The insurance company also alleged that the claimants have claimed exaggerated amount of compensation; the driver of the vehicle was not possessing valid driving license; the vehicle was also not having valid permit, fitness and that it was being driven against the terms of insurance policy as well as against the provisions of Motor Vehicle Act. The learned Tribunal framed relevant issues in the claim petitions. Thereafter parties led evidence. The Tribunal, after hearing learned counsel for parties and going through the evidence, passed the impugned awards. Feeling aggrieved by aforesaid awards, the National Insurance Company preferred A.O. Nos. 428/2007, 429/2007 and 430/2007 and the claimants in MACT Case No. 76/2005, preferred A.O. No. 61/2008, against the dismissal of their claim petition. The respondent No.1, Padam Singh, owner of the jeep in question also filed cross-objections annexing therewith the copy of driving license possessed by the driver Biseshwar Prasad. 4 I have heard learned counsel for parties and perused the impugned awards. Learned counsel appearing on behalf of appellant/National Insurance Company has submitted that the driver of the jeep in question was not having valid driving license, and no driving license of the driver was filed before the tribunal, and the tribunal has also found that it was not proved that the driver was having valid driving license, which was breach of terms of policy. However, the tribunal saddled the liability of compensation on the shoulder of insurance company, which is against law and the insurance company should be absolved from the liability of compensation. Learned counsel appearing on behalf of the owner of the vehicle has submitted that the driver Biseshwar Prasad was initially issued driving license for light motor vehicle (transport) and later on the said license was renewed to ply heavy motor goods vehicle. The driving license was also having endorsement of hill driving and it was lastly renewed from 6.2.2005 to 5.2.2008. Therefore, it cannot be said that the driver was not having valid driving license at the time of accident. It is pertinent to mention here that the owner has filed cross-objections in the above appeals and along with it also filed copy of driving license of Biseshwar. The licensing authority also issued certificate dated 30-8-2007 mentioning therein the particulars of license. This court vide order dated 27-4-2008, called for explanation of the Licensing Authority, Rishikesh that as to on what basis this entry has been verified that the driver Biseshwar Prasad was given the license for Heavy Goods Vehicle ( in short HGV) and Light Motor Vehicle(Transport) ( In short ‘LMV(T)’. In compliance of above order, the Licensing Authority, Motor Vehicle Department, Rishikesh vide his letter No. 66/License/09 Dated 6.5.2009, has submitted the explanation that according to the office records the license No. 1471/GBD/84 was issued by Licensing Authority, Ghaziabad, U.P. on 28.8.1984 in favour of Biseshwar Dutt S/o Surajmani and the said license was endorsed valid for hill routes of Dehradun Division by Rishikesh Office, vide license No. 5 5294/RKS/98 dated 25.5.98. It is also specifically mentioned therein that in the office records the above license is recorded valid for L.M.V.(T) and HGV. Learned counsel for the insurance company has challenged the above driving license on the ground that initially the driving license was issued for L.M.V.(T) and lateron it was renewed for Heavy Goods Vehicle, the jeep in question is a light motor vehicle, hence it cannot be said that the driver was possessing valid driving license. He has made reference to the case law Oriental Insurance Co. Ltd. Vs. Zaharulnisha, (2008) 12 SCC 385. In the above cited case the scooterist was possessing a driving license of driving HMV and he was driving a totally different class of vehicle and the Apex Court has found that the act of the scooterist was in violation of Section 10(2) of the Motor Vehicle Act. In the case of National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464, the Hon’ble Apex Court has held that “transport vehicle” has now been substituted from “medium goods vehicle” and “heavy goods vehicle”. The light motor vehicle continued, at the relevant point of time to cover both ‘light passenger carriage vehicle’ and ‘light goods carriage vehicle’. A driver who had a valid license to drive a ‘light motor vehicle’, therefore, was authorised to drive a ‘light goods vehicle’ as well. However, in the instant case the Licensing Authority, Motor Vehicle Department, Rishikesh vide his letter No. 66/License/09 Dated 6.5.2009, has submitted the explanation that according to the office records the license No. 1471/GBD/84 was issued by Licensing Authority, Ghaziabad, U.P. on 28.8.1984 in favour of Biseshwar Dutt S/o Surajmani and the said license was endorsed valid for hill routes of Dehradun Division by Rishikesh Office, vide license No. 5294/RKS/98 dated 25.5.98. It is also specifically mentioned that in the office records the above license is recorded as a valid license for L.M.V.(T) and HGV. The insurance company has not filed any evidence in rebuttal to show that license issued in the name of Bisashwar Prasad was only for HGV and it was not valid for plying L.M.V.(T). 6 The Insurance Company has also not led any evidence before the Tribunal that the driver had no license. The Hon’ble Apex Court in the case of Punam Devi and another Versus Divisional Manager, New India Assurance Company Ltd. and others, reported in (2004) 3 Supreme Court Cases 386,has specifically held that burden of proof that the driver had no licence was open to the insurer which it failed to discharge. The Apex Court has allowed the appeal. In the instant cases although the insurance company has pleaded in the written statement that the driver was not possessing valid driving licence, but failed to discharge this burden by leading any evidence. It is also pertinent to mention here that if a person has been given a license for a particular type of vehicle as specified therein, he cannot be said to have no license for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a ‘light motor vehicle’ he can drive either a car or a jeep and it is not necessary that he must have driving license both for car and jeep separately. The deceased Biseshwar Prasad was initially issued L.M.V.(T), thereafter it was renewed for HGV and later-on it was also endorsed for hill routes by Rishikesh Office and it was also verified that the license was valid for both LMV(T) as well as HGV. The licensing authority also verified that the deceased was having HGV and LMV(T) both. In this way as the license was initially issued for LMV(T), lateron it was renewed for HGV also and the competent authority has verified that it was valid for LMV(T) as well as HGV, therefore, the deceased Biseshwar Prasad, could very well drive the jeep, a light motor vehicle. Learned counsel for insurance company also submitted that in MACT Case No. 97/2005 ( A.O. No. 430/2007), the Tribunal has also given recovery right to the owner. All the appeals relate to the same accident and recovery right should also be given to the insurer against the owner in all the impugned awards. It is admitted that the driver Biseshwar Prasad had died in the accident and the owner could not file driving license before the tribunal and tribunal recorded finding against the owner. Now in 7 appeals, the owner has filed copy of driving license and the Licensing Authority concerned has submitted his explanation that the driving license was found to be valid for L.M.V.(T) and HGV. The insurance company has not filed reliable evidence in rebuttal, therefore, no recovery right can be given to the insurance company against the owner. Therefore, in view of above discussion, I hold that the driver of the jeep in question was having valid driving license and the National Insurance Company has rightly been held to satisfy the awards. No other point has been raised by learned counsel for the insurance company. Therefore, the appeals filed National Insurance Company are liable to be set aside. Now I deal with the Cross Objections filed by claimant in A.O. No. 428/2007. In this case the deceased was Km. Namita. According to claimant she was a student and was doing tuition work and from tuition work she was earning Rs. 4,000/- per month. However the claimant has not filed the reliable evidence pertaining to income of the deceased. The tribunal took the notional income of the deceased at Rs. 15,000/- per annum. The accident took place in the year 2005, therefore, due to hike in price index the notional income should have been taken Rs. 36,000/- per annum and in view of Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298, the deduction towards personal expenses of the deceased should have been 50% where the claimants are parents and the deceased was a bachelor. Therefore, the net dependence of the claimants comes to Rs. 18,000/- per annum. The claimant has told his age as 55 years. The tribunal adopted multiplier of 8 which on lesser side in view of observation made by Hon’ble Apex Court in Sarla Verma’s case (supra). Therefore, after adopting the multiplier of 11 the compensation comes to Rs. 18,000/- X 11= Rs. 1,98,000/-. The tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses. Therefore the total compensation comes to Rs. 1,98,000/-+ Rs. 2,000/-= Rs. 2,00,000/-. The claimant is also entitled to get interest @ 6% per annum on the amount of 8 compensation from the date of filing the petition till the date of actual payment. In A.O. No. 429/2007, learned counsel for the claimants has submitted that the salary certificate of deceased Bhagat Singh shows the monthly salary of the deceased as Rs. 14321/- and the tribunal has wrongly made deduction for a sum of Rs. 6691/-, while the deductions for a sum of Rs. 1176/- towards HRA, washing allowance, income tax, MASP, Total Regt. should have been made out of the gross salary. In support of his contention learned counsel has cited before me the case of National Insurance Co. Ltd. Vs. Indira Srivastava and others, reported in (2008) 2 Supreme Court Cases 763.In the above cited case the Hon’ble Apex Court has held that the tribunal can make only statutory deduction such as Income Tax and professional tax and any other contribution which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependency compensation. The G.P.F. deduction is repayable by the employer to the employee, therefore, it should not be deducted from the gross salary for purposes of computing the dependency. In this way the total deductions should be Rs. 1176/- (Rs. 750/- HRA, Rs. 30/- Washing, Rs. 131/- Income Tax, Rs. 15/- MASP, and Rs. 250/- Total regt. shown in the salary slip) and the net income of the deceased comes to Rs. 14321/- (-) Rs.1,176/-= Rs. 13,145/-, the annual income being Rs. 13145/- X 12= Rs. 1,57,740/-. After deducting 1/3rd towards personal expenses of the deceased, the net annual dependency comes to Rs. 1,57,740/- (-) Rs. 52,580/-= Rs. 1,05,160/-. The deceased was 42 years of age therefore the multiplier of 15 has rightly been adopted by the tribunal. Thus the total compensation comes to Rs.1,05,160/- X 15 = Rs. 15,77,400/-./-. The tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of love and affection. In this way the total compensation comes to Rs. 15,77,400/- + Rs. 2,000/-+ Rs. 5,000/-= Rs. 15,84,400/-. The claimants are also entitled to get interest @ 6% per annum from the date of filing the petition till the date of actual payment. Now I deal with A.O. No. 61/2008, preferred by the claimants. In this case the tribunal has rejected the claim petition. 9 According to the claimant Smt. Reema Parmar, her husband Devendra Singh Parmar was travelling in the offending jeep from Srinagar to Rishikesh and he had died in the accident. His dead body was not found at the place of accident as it was flown in the river and lateron it was found on 22.5.2005 in the river Ganges at Haridwar. The claimants have filed the inquest as well as autopsy reports of unknown person. Claimant Smt. Reema, wife of Devendra Singh has produced herself before the tribunal. She has deposed that on 22.5.2005 her husband Devendra Singh Parmar boarded the jeep No. 9571 from Srinagar for Rishikesh. The jeep met with accident in front of Bagwan in which her husband had died at the place of accident. At the time of his death the age of her husband was posted as Postman at Delhi and he was getting Rs. 6699/- per month salary. She further deposed that the dead body of her husband had flown in the river water and they found the dead body at Haridwar. She further stated that her father had gone to Haridwar and 2-3 village persons were also with him. Her father had identified the dead body of her husband. The autopsy was conducted in Government Hospital. She had also gone to the place of accident and lodged the report after 4-5 days of accident. Later-on some injured person had given her the number of vehicle in question. This witness has admitted in her cross- examination that on the death of her husband the department has given a sum of Rs. 1,50,000/- relating to insurance. Besides this, a sum of Rs. 60,000/- pertaining to gratuity was also received by her and she is getting a sum of Rs. 3,000/- per month towards family pension. Thus, from the above statement of the claimant it is quite clear that Devendra Singh had died. The claimants also filed photocopy of application dated 25.5.2005 given by Smt. Reema Devi to Patwari Lalath Pathon. Perusal of this document shows that Smt. Reema had mentioned therein that on 22.5.2005 her husband had boarded the Jeep U.A. 07- K/9571 from Srinagar to Rishikesh along with other relatives Smt. Manju Bisht, her son Chunnu, Sashi Mall and her daughter Nabita. The claimants also filed the photocopy of report verified by Patwari Lalath Paton dated 28-5-2005 in which it has been mentioned that in 10 the vehicle eight persons and a driver were travelling. Out of them two women and a man was injured and dead bodies of Chunnu, Km. Nabita, Bhagat Singh, Prem Lal and driver Biseshwar Prasad were recovered and sixth person was Devendra Singh, whose dead body was not recovered. The jeep was found by the bank of river Alaknanda in a destroyed condition. The Patwari also mentioned in it that the dead body of Devendra Singh might have flown in the river. Investigation is going on. The claimant also filed death certificate issued by S.D.M. Kirtinagar, in which it has been mentioned that on the basis of inquiry report dated 5-9-2005 submitted by Patwari Lalath Paton, Devendra Singh Parmar had died on 22.5.2005 in the accident of Jeep No. U.P. 07-K-9571. Here it may be mentioned that the S.D.M. might have issued the death certificate based on some report submitted by competent authority. The claimants also filed copy of Parivar Registrar and death certificate issued by village Pradhan. It is also pertinent to mention here that Smt. Manju Bisht and Smt. Sashi Mall, who were travelling in the jeep in question and they were survived after sustaining injuries, are the best witness to prove the death of Devendra Singh in the accident in question. The father of Smt. Reema, who allegedly had given application in Kotwali City Haridwar that the photos taken by police regarding the unknown dead body are his son-in-law Devendra Singh and he had identified those photos, but the action taken by police in this direction is not known. Therefore, the father of Smt. Reema can throw some light on the identification of the dead body. Patwari of the area, who had submitted the report to the S.D.M. Kirtinagar after inquiry that Devendra Singh was also travelling in the jeep in question, can also be summoned to prove the death of Devendra Singh, so that true facts could come before the tribunal. Further, the owner of the vehicle and the insurance company neither disputed the death of Devendra Singh in the accident in question in their written statement nor adduced any evidence in this direction. Therefore, in the interest of justice, an opportunity should be provided to the claimants to adduce further evidence in the case before the tribunal concerned. 11 Consequently, A.O. No. 61 of 2008, preferred by the claimants, is allowed. The impugned judgment dated 19-7-2007, is set aside and the matter is remanded back to the tribunal concerned to decide the claim petition afresh in accordance with law, after affording an opportunity to the claimants as well as to the opposite parties to adduce further evidence in the matter on the point of death of Devendra Singh in the accident in question. The A.O. Nos. 428/2007 and 429 of 2007, preferred by Insurance Company are dismissed. The cross objection filed by owner of the vehicle in A.O. Nos. 428/2007 and 429/2007are allowed. It is held that the National Insurance Company is liable to pay the compensation. The A.O. No. 430/2007 filed by owner of the vehicle is allowed. The recovery right given by the tribunal to the insurance company against the owner of the vehicle in MACT Case No. 97/2005 (A.O. No. 430/2007) is set aside. The cross objections filed by the claimants in A.O. No. 428/2007 and 429/2007 are allowed. In A.O. No. 428/2007 the claimant is entitled to get a sum of Rs. 2,00,000/- as compensation instead of Rs.82,000/- as has been awarded by the tribunal. The claimant is also entitled to get interest @ 6% per annum from the date of filing the petition till the date of actual payment. The impugned award stands modified accordingly. In A.O. No. 429/2007 the claimants are entitled to get a sum of Rs. 15,77,400/- as compensation instead of Rs. 8,60,200/- as has been awarded by the tribunal. The claimants are also entitled to get interest @ 6% per annum from the date of filing the petition till the date of actual payment. The impugned awards stands modified accordingly. The statutory amount deposited by the insurance company in the above appeals, be remitted to the tribunal concerned. Let a copy of this judgment be placed in the file of each appeal. Dated: 7-4-2011 (B.S. Verma, J.) ISB