1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. S.B. Civil Misc. Appeal No.751/2000 (Smt. Santosh Devi & Others Versus Ashok Kumar & Others) 2. S.B. Civil Misc. Appeal No.733/2000 (Smt. Dayawanti & Others Versus Ashok Kumar & Others) 3. S.B. Civil Misc. Appeal No.750/2000 (Mohan Lal & Others Versus Ashok Kumar & Others) 4. S.B. Civil Misc. Appeal No.752/2000 (Smt. Gayatri & Others Versus Ashok Kumar & Others) 5. S.B. Civil Misc. Appeal No.551/2000 S.B. Civil Misc. Stay Application No. 970/2000 (The New India Assurance Company Ltd. Versus Smt. Gayatri & Others) 6. S.B. Civil Misc. Appeal No.552/2000 S.B. Civil Misc. Stay Application No. 971/2000 (The New India Assurance Company Ltd. Versus Smt. Dayawanti & Others) 7. S.B. Civil Misc. Appeal No.553/2000 S.B. Civil Misc. Stay Application No. 972/2000 (The New India Assurance Company Ltd. Versus Smt. Santosh Devi & Others) 8. S.B. Civil Misc. Appeal No.590/2000 S.B. Civil Misc. Stay Application No. 999/2000 (The New India Assurance Company Ltd. Versus Mohanlal & Others) Date of Judgment :: 10.11.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Intzaar Ali for Mr. Mahendra Goyal, counsel for the claimants-appellants Mr. Tripurari Sharma, counsel for the Insurance company 2 BY THE COURT: Since all the aforesaid eight appeals arise out of and pertain to judgment and award dated 15th March, 2000 rendered by the Motor Accident Claims Tribunal, Jaipur District, Jaipur, they were heard together and are being disposed of by this common judgment. 2. Contextual facts depict that on 20th August, 1991 at about 11.30 PM, Kanhaiya Lal Soni and other members of his family were returning from Hanuman-Bheron Ji Ki Bagichi, situated at Amber to their home by Jeep No. RJ- 14/T 0062 after attending a social gathering. No sooner did their jeep reach 200 yards ahead Mawtha octroi outpost, one truck bearing registration no. DIG 967 driven by its driver rashly and negligently came from Jaipur direction at a fast speed and collided with their jeep on wrong side, resulting into the death of Babu Lal, Bhagwati Devi, Ashok Kumar, Santosh Kumar and jeep driver Kalu Ram Gurjar on the spot and injuries to other persons. It is alleged that the truck to some distance dragged the jeep and thereafter it capsized. The accident occurred owing to the negligent and rash driving of truck driver Ashok Kumar. 3. Being dissatisfied with the amount of 3 compensation under the award, the appellants have preferred these four Civil Misc. Appeals no. 751/2000, 733/2000, 750/2000 and 752/2000 for the enhancement of quantum of compensation. 4. Heard learned counsel for the parties and carefully perused the relevant material including the impugned award on record. CMA No. 751/2000: 5. The learned counsel for the appellants has confined his arguments merely to the application of multiplier and canvassed that the deceased Santosh at the time of accident was 27 years of age. Second schedule appended to the Motor Vehicles Act suggests the multiplier of 18 for a victim falling in the category of age above 25 years but not exceeding 30 years, but the learned Tribunal applied the multiplier only of 16, which is contrary to the statutory provisions. If the multiplier of 18, as suggested by law, is properly applied, the dependents of the deceased shall be able to get a reasonable amount of compensation, which shall meet the ends of justice. 6. Leaned counsel for the Insurance Company has not opposed to the submissions and simply submitted that the learned Tribunal 4 wrongly fastened the liability on Insurance Company, whereas the driver of the Jeep was not having a genuine and effective driving license at the time of accident and as such the Insurance Company may be given the right to recover the amount of compensation from the owner of the offending vehicle. 7. The submission of the learned counsel for the appellant seems to be just and legal and the same deserves to be allowed. I deem it just to apply the multiplier of 18 instead of 16. The learned Tribunal wrongly applied the multiplier of 16. Looking to the age of the deceased, it ought to have applied the multiplier of 18. Thus, after applying the multiplier of 18, the amount of compensation with regard to loss of income comes as under: 15,000 X 18 = Rs. 270000 8. Thus, the quantum of compensation deserves to be enhanced from Rs. 2,62,000/- to Rs. 2,92,000/-. CMA No. 733/2000: 9. In this appeal also, the learned counsel for the appellants has confined his arguments merely to the application of multiplier and canvassed that the deceased Ashok Kumar at the time of accident was 27 5 years of age. Second schedule appended to the Motor Vehicles Act suggests the multiplier of 18 for a victim falling in the category of age above 25 years but not exceeding 30 years, but the learned Tribunal applied the multiplier only of 16, which is contrary to the statutory provisions. If the multiplier of 18, as suggested by law, is properly applied, the dependents of the deceased shall be able to get a reasonable amount of compensation, which shall meet the ends of justice. 10. Leaned counsel for the Insurance Company, in contra, has simply contended that the learned Tribunal wrongly fastened the liability on Insurance Company, whereas the driver of the Jeep was not having a genuine and effective driving license at the time of accident and as such the Insurance Company may be given the right to recover the amount of compensation from the owner of the offending vehicle. 11. The submission of the learned counsel for the appellant seems to be just and legal and the same deserves to be allowed. In this appeal also, I deem it just to apply the multiplier of 18 instead of 16. The learned Tribunal, keeping in view the age of the 6 deceased to be 27 years, ought to have applied the multiplier of 18 instead of 16. Thus, the amount of compensation so computed suffers from legal infirmity, which needs to be rectified. Now having applied the multiplier of 18, the quantum of compensation under the head 'loss of income' comes as under: 1500 X 12 X 18 = Rs. 3,24,000 12. Thus, the quantum of compensation stands enhanced from Rs. 3,10,000/- to Rs. 3,46,000/- accordingly. CMA No. 750/2000: 13. The learned counsel for the appellants has contended that the annual income of the deceased Bhagwati was Rs. 20,000/- and at the time of accident, she was 35 years of age. The learned Tribunal, on the basis of price index, prevailing in the year 1991, determined the monthly income of the deceased to be 1000/- and after deducting 1/3rd in consideration of expenses the victim would have spent on herself, had she been alive, applied the multiplier of 15 and ascertained the quantum of compensation on lower side. Thus, the impugned award passed by the learned Tribunal deserves to be modified and the appeal of the appellants deserves to be allowed. 7 14. Per contra, the learned counsel for the respondents defended the impugned award and contended that the impugned award passed by the learned Tribunal is just and proper and no interference in is called for therein. 15. In the instant appeal, no documentary evidence was produced before the Tribunal to prove the monthly income of the deceased. In the absence of any documentary evidence, the Tribunal, rightly determined the monthly income of the deceased to be Rs. 1000/- on the basis of minimum wages prevailing at the relevant point of time. Further, as per the Second Schedule appended to the Motor Vehicles Act, the multiplier of 16 has been proposed for the victim, whose age is above 35 years, but not exceeding 40 years. Since in the instant case, the deceased is said to have been 35 years of age at the time of accident, therefore, the multiplier of 16 ought to have been applied instead of 15. After applying the multiplier of 16, the quantum of compensation under the head 'loss of income' comes as under: 1000 X 12 X 16 = Rs. 1,92,000/-. 16. It is relevant to mention here that since the income of the deceased had already been determined on the basis of minimum wages 8 prevalent at that point of time, therefore, no further deduction was required to be made. The income of the deceased is determined to be Rs. 1000/- per month. Thus, the quantum of compensation stands enhanced from Rs. 1,39,000/- to Rs. 2,14,000/-. CMA No. 752/2000: 17. The learned counsel for the appellants has contended that at the time of accident, the deceased was 45 years of age and his monthly income was Rs. 3000/-. The learned Tribunal after determining the monthly income of the deceased to be 1500/- and applying the multiplier of 14, awarded the quantum of compensation, which is at lower side. Thus, the impugned award passed by the learned Tribunal deserves to be modified and the appeal of the appellants deserves to be allowed. 18. Per contra, the learned counsel for the respondents defended the impugned award and contended that the impugned award passed by the learned Tribunal is just and proper and no interference in it is called for. 19. It is germane to record that had the income of the deceased been Rs. 3000/- per month or Rs. 36,000/- per annum, he would have filed the income tax return, but neither the 9 claimants produced any income tax return nor any other documentary evidence to prove the same before the learned Tribunal, hence, the learned Tribunal, rightly determined the monthly income of the deceased to be 1500/- and after deducting 1/3rd in consideration of the expenses, which the victim would have incurred on maintaining himself, had he been alive, rightly computed the dependency to be Rs. 1200/-. Further, the Second Schedule appended to the Motor Vehicles Act suggests the multiplier of 13 for the victim, whose age is above 45 years, but not exceeding 50 years. Since in the instant case, the deceased is said to have been 45 years of age at the time of accident, therefore, the multiplier of 13 ought to have been applied, but in the instant appeal, the learned Tribunal applied the multiplier of 14 instead of 13. 20. Since this aspect is not under challenge, the amount of compensation under the award is not required to be interfered with. The prayer of the claimants to enhance the quantum of compensation under the award is dismissed in view of the above facts and circumstances of the case. CMA Nos. 551/2000, 552/2000, 553/2000 and 10 590/2000: 21. Challenge in these four appeals is to the impugned award dated 15th March, 2000, whereby the learned Tribunal fastened the liability to pay the amount of compensation on Insurance Company. 22. The learned counsel for the New India Insurance Company Limited canvassed that the respondent no. 1 Ashok Kumar was employed on the offending vehicle Truck DIG 967 as a driver and he was not having a genuine and valid driving license with him at the time of accident. The learned counsel further canvassed that the Insurance Company produced one witness NAW – 2 Padam Singh, who was posted as UDC in the office of Licensing Authority, Shimla (Rural). This witness, having examined the driving license of driver Ashok Kumar, reported that the said license was found to have issued in the year 1986 and it bore the seal of License and Registration Authority, Shimla, whereas the License and Registration Authority came into existence in Shimla for the first time in the year 1991. Prior to that Sub Divisional Officer used to issue the licenses. The Insurance Company got the driving license of Ashok Kumar examined from their surveyor NAW 11 -1 Vijay Kumar Grover, who examined the genuineness thereof and found that the license in the instant case was not issued by Licensing Authority, Shimla. Thus, the license possessed by driver Ashok Kumar at the time of accident was fake and forged and the Insurance Company was not liable to indemnify the insured. 23. The learned counsel for the appellants, in contra, contended that NAW -1 Vijay Kumar Grover was the employee of the Insurance Company and working as a Surveyor. His report was not admissible in evidence. So far as NAW-2 Padam Kumar is concerned, neither he produced the relevant registers maintained by the Registering Authority nor any such register, by which it could be proved that in the particular series, the driving license of Ashok Kumar was not issued by the Registration Authority, Shimla. The insured, owner of the offending vehicle, after examining the driving license, employed Ashok Kumar as driver on the offending truck. Whatever the precautions an owner of the vehicle was required to take, he took all those precautions and having found the driver to be an expert and in possession of a valid driving license, employed him as driver 12 on the offending truck. Thus, it also cannot be said that the owner of the vehicle did not take any precaution before employing Ashok Kumar as the driver of the truck. The Insurance Company has failed to prove that the driving license possessed by Ashok Kumar was fake and thus, the Insurance Company cannot be absolved of its liability. 24. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the respondent no. 1 Ashok Kumar despite service of notice did not appear before the Tribunal. It goes without saying that the original driving license must have been in the possession of driver Ashok Kumar. It is very interesting to note that the photo-stat copy of the driving license was taken by the Insurance Company, which was examined by Surveyor and taken to License and Registration Authority, Shimla with a view to test its genuineness. The learned Tribunal discussed the evidence of both NAW-1 Vijay Kumar Grower and NAW-2 Padam Singh at length and found that the driving license which was subjected to examination by both the witnesses happened to be the photo-stat copy of the original driving license. This license was 13 not clearly visible and the seal of the authority was not legible. The crucial question arises as to whether the photo-stat copy, which was subjected to examination by the witnesses, was in-fact the true copy of the original driving license? It is more interesting to note that the original driving license was never produced before the Tribunal. Neither original driving license was taken by the Insurance Company in possession nor the original one was ever seen by NAW-2 Padam Singh. 25. In the instant case, it is not that important to view as to whether the driving license of Ashok Kumar was fake or not, but the more important aspect to scan is as to whether the respondent no.2, the owner of the offending vehicle had taken reasonable care to find out as to whether the driving license produced by the driver Ashok Kumar was fake one or otherwise. When an owner is hiring a driver, he will, therefore, have to check whether the driver has a driving license. If the driver produces a driving license, which on the face of it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a competent authority or not. The owner would then take the test of the 14 driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving license shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a license and is driving competently there would be no breach of section 149 (2) (a) (ii) of the Motor Vehicle Act. The Insurance Company would not then be absolved of its liability. If it ultimately turns out that the license was fake, the Insurance Company would continue to remain liable unless they prove that the owner / insured was aware or had noticed that the license was fake and still permitted that person to drive. More importantly, even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia's case, 1987 ACJ 411 (SC); Sohan Lal Passi's case, 1996 ACJ 1044 (SC) and Kamla's case, 2001 ACJ 843 (SC). I am in full agreement with the views expressed therein and see no reason to take a different view. 15 26. In order to avoid liability under the provisions of Section 149 of Motor Vehicles Act, the Insurance Company must prove that the insured committed the breach of the conditions of insurance policy. The breach must be on the part of the insured. The yardstick to test, as to whether the owner of the offending vehicle committed any breach is very simple and that is to be seen as to whether the owner of the vehicle took a reasonable care to find out the genuineness of the driving license produced by the driver. The Hon'ble Apex Court has rightly observed that the owner of the vehicle does not possess any agency to get such a case investigated. The Insurance Company would not then be absolved of its liability. 27. Adverting to the facts of the instant case, it is found that the respondent – Insurance Company has miserably failed to prove that the owner of the offending vehicle did not take reasonable care in employing Ashok Kumar as a driver on his truck and in examining the genuineness of the driving license produced by the driver. 28. In the case of Prem Kumari & Others Versus Prahlad Devi reported in 2008 ACJ 776, the Hon'ble Apex Court relied upon three Judge 16 Bench decision of that court rendered in the case of National Insurance Company Limited Versus Swaran Singh, reported in 2004 ACJ 1 (SC) and after analyzing the relevant provisions of old Motor Vehicles Act as well as 1988 Act summarized its findings in para 102. Finding no. (iii) is relevant in the case, which is reproduced thus: “(iii) The breach of policy condition, e.g., disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has to be proved to have been committed by insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.” 29. Sub-section (5) of Section 149 of MV Act envisages the liability of the Insurance Company to indemnify the insured. Sub-section (4) of Section 149 mandates that conditions in the insurance policy, which purport to restrict insurance would be of no effect if they are not 17 of the nature specified in sub-section (2). The liability of the insurance Company to pay, has further been emphasized by sub-section (5), which shows that the Insurance Company must first pay, then it can recover. If Section 149 is read as a whole, it is clear that sub- section (7) is not giving any additional right to the Insurance Company. On the contrary, it is emphasized that the Insurance Company cannot avoid its liability except on the limited grounds set out in sub-section (2). The question for the Insurance Company to recover the compensation amount from the owner of the vehicles arises only when there has been a breach of the conditions of insurance policy by the insured. That is not the case in the instant appeal. In the appeal on hand, neither the original driving license has been produced by the Insurance Company before the Tribunal nor was it ever subjected to scrutiny by the Surveyor or by the concerned license issuing authority. A photo-stat copy of any driving license is of no importance. As such a photo- stat copy of any document, which does not carry the genuineness, can lead to absurd consequences. In this scenario the statements of NAW-1 Vijay Kumar Grover and NAW-2 Padam 18 Singh are of no avail. Albeit, in the case of Prem Kumari (supra), the Hon'ble Apex Court has held that if the driver of the offending vehicle was not holding a valid license on the date of accident, then after making the payment of compensation to the claimants, the Insurance Company can recover the said amount from the owner of the vehicle, but in the instant appeals, the Insurance Company has miserably failed to prove that the owner of the vehicle had committed any breach of insurance policy by way of employing a driver, who was not having a valid license. 30. In view of above, the arguments advanced by the learned counsel for the respondents – Insurance Company are found to be devoid of force and untenable. Consequently, all these four appeals in the above backdrop deserve to be dismissed. 31. For the reasons stated above, the civil misc. appeal nos. 751/2000, 733/2000 and 750/2000 are partly allowed. In Civil Misc. Appeal no. 751/2000, the amount of compensation is enhanced from Rs. 2,62,000/- to Rs. 2,92,000/-; in Civil Misc. Appeal No. 733/2000, the amount of compensation is enhanced from Rs . 3,10,000/- to Rs. 3,46,000/-; and in Civil 19 Misc. Appeal No. 750/2000, the amount of compensation is enhanced from Rs. 1,39,000/- to Rs. 2,14,000/-. Rest of the terms under the impugned award shall remain unchanged. The impugned award in Civil Misc. Appeals No. 751/2000, 733/2000 and 750/2000 stands modified, as indicated here-in-above. 32. Civil Misc. Appeal Nos. 752/2000; 551/2000; 552/2000; 533/2000; and 590/2000, being bereft of merits stand dismissed. 33. There shall be no order as to costs. (MAHESH BHAGWATI), J. DK/-