IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO No. 449/2003, Cross Objections No.561/2003 with FAO No.206/2004 Judgment reserved on : November 21, 2008 Date of Decision: December 11, 2008. FAO No. 449/2003 United India Insurance Company Ltd. …Appellant. Versus: Rattni Devi & others. …Respondents FAO No. 206/2004 Rattni Devi & Others …Appellants. Versus: Ram Chand & others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 No. FAO No. 449/2003 For the appellant: Mr. G. D. Sharma, Advocate. For respondents 1to 4. Mr. Vivek Thakur, Advocate. For respondents 5&6. Mr. T. S. Chauhan, Advocate. FAO No. 206/2004 For the appellant: Mr. Vivek Thakur, Advocate. For respondent No.3. Mr. Sanjeev Kuthiala, Advocate. SANJAY KAROL, JUDGE. This Court on 22nd March, 2006 passed the following orders in FAO No. 449/2003: “One of the points involved in this case is, “Whether a license permitting the holder to drive a light motor 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 vehicle entitles him to drive a transport vehicle or not”? This question has been referred to a larger Bench in FAO No.307 of 1998. Therefore, it is ordered that this appeal may be listed for hearing after the larger Bench decides the question(s) in FAO No. 307 of 1998.” It is a common case of the parties that the issue raised by the appellant, insurer M/s United India Insurance Company Limited is squarely covered by a decision rendered by a Full Bench of this Court in FAO No. 307 of 1998, titled as Prem Singh vs. Baldassi, dated 30th September, 2008. A copy of the decision of the Full Bench in the aforesaid matter has been placed on record by the Registry. On 17.7.2001, Kumari Pinki, aged 14 years, a student of class VIII died in an accident with vehicle No.HP-19-7251. The claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), was filed on behalf of the mother as well as the brothers and sisters (minor) of the deceased. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether Kumari Pinki Devi had died on account of rash and negligent driving of respondent No.2 of vehicle No.HP-18-7251? ….OPP 2. If issue No.1 is proved to what amount of compensation and from whom are the petitioners entitled to? ……….OPP 3. Whether the claim petition is not maintainable? ………OPR-3 3 4. Whether the respondent No.2 had not been in possession of a valid and effective driving licence at the time of accident, if so, with what effect? ….OPR-3 5. Whether vehicle No. HP-19-7251 was being plied without valid R.C., route permit and fitness certificate, if so, with what effect? …OPR-3 6. Relief. Relying upon the statements of Smt. Rattni Devi (PW-1), Shri Lekh Ram (PW-2) and F.I.R. Ext.PA, the Tribunal held that Shri Krishan Kumar, (respondent No.6 in Appeal No. 449/2003 and respondent No.2 in Appeal No.206/2004) had been driving the vehicle in a rash and negligent manner. The vehicle was owned by Shri Ram Chand, (respondent No.5 in Appeal No. 449/2003 and respondent No.1 in Appeal No.206/2004). Issue No.1 was decided accordingly. On issue No.2, the Tribunal held that the deceased Kumari Pinki, aged 14 years, student of VIII standard had a bright career. Purely on the basis of guess work, a lump sum amount of Rs.90,000/- was awarded to the claimants. The vehicle in question was insured and since the driver was possessed with a valid and effective driving licence (Ext.RW-1/A) and no terms of the policy (Ext.RA) being breached as such, the insurer was held liable to have indemnified the insured and pay the compensation to the claimants. The issues were decided accordingly. That the driver Shri Krishan Kumar was holding an effective and valid driving licence (Ext.RW/1A) to drive a light motor vehicle is not disputed. The same in any case stands proved on record by Shri Harmesh Chand (RW-1). In terms of the 4 said licence, he was authorized to drive a light motor vehicle. Admittedly, the vehicle in question was a transport vehicle (Tata 407). A Full Bench of this Court while deciding FAO No 307 of 1998 on 30th September, 2008 took into account the decision of the apex Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria alias Nesaragi and others, {2008 (3) SCC 464} wherein it has been and held that a person possessing a valid driving license to drive a light motor vehicle would be authorized to drive a “light goods vehicle” which includes a “light passenger carriage vehicle” and “light goods carriage vehicle”. In effect, the reference was answered by holding that the driving license permitting the holder of the license to drive a light motor vehicle also entitled him to drive a transport vehicle. Even though it is not so specified in the judgment but the court was dealing with the statute as it stood prior to its amendment w.e.f. 28th March, 2001. Therefore, in my view, the driver was entitled to drive the vehicle in question and it cannot be said that he was not possessing an effective and valid driving license to drive the vehicle at the time of the accident. The Tribunal has rightly held so. The issue raised by the learned counsel for the insurer that the driver was not possessing a valid and effective driving licence, is therefore, not accepted. 5 That the Insurance Company had neither sought nor was granted permission under Section 170 of the Act, is not in dispute. On the question of compensation as awarded by the Tribunal, admittedly the insurer has not sought permission, therefore, the challenge is impermissible in law but, however, the claimants’ appeals need to be considered. There is no dispute that the deceased aged 14 years was a student of VIII standard. The Tribunal has held that she was rendering some services towards the household. Be that as it may be, the fact of the matter is that the mother has been deprived of the love and affection of the daughter. The claim petition on behalf of the brothers and sisters (minor), in my view, is not maintainable. In Manju Devi & another vs. Musafir Paswan & Another {2005 ACJ 99}, the Apex Court, while dealing with a case of a young boy of 13 years who died in a motor accident by taking into account the 2nd Schedule of the Act, took the income of the non earning person to be Rs.15,000/- per annum and after applying a multiplier of 15 awarded compensation of Rs.2,25,000/-. Even this Court in Hukamabati & Others vs. Punjab Roadways & Others {2006 ACJ 260}, where a young boy of 15 years and a student of class 10th had died in a road accident, by taking the income to be Rs.5000/- per month by applying a multiplier of 15, awarded a sum of Rs.2,70,000/- in addition to 6 Rs.10,000/- for love and affection and Rs.10,000/- for funeral expenses. The income of Rs.5000/- was taken into account keeping in view the fact that the accident took place in the year 1996 whereas in the instant case, the accident took place on 17.7.2001. Further, in Leela Devi & another vs. Narinder Pal Singh & Others {2006 ACJ 2637}, this Court while dealing with a case of a young boy of 13 years and a student of class 8th, determined the income of the deceased to be Rs.96,000/- per year and by applying a multiplier of 15, awarded a sum of Rs.1,44,000/- as compensation in addition to Rs.6,000/- as conventional and funeral charges. This Court further in New India Assurance Company vs. Shankar Lal & Others {Latest HLJ 2007 HP 32}, while dealing with a case of a deceased who was 6 years of age, by taking the notional income to be Rs.15000/- applied a multiplier of 15 and awarded compensation of Rs.1,50,000/- after deducting 1/3rd for the personal expenses of the deceased. This Court has consistently held that the determination of the compensation has to be on case to case basis and there cannot be any exact formula on the awarded amount. The Court has been awarding interest at the rate of 9% pendente lite and future. In the present case, considering the age of the deceased as also the age of the mother (33 years), in my view, 7 the income of the deceased can notionally be taken to be Rs.15000/- per annum and after carrying out deduction of 1/3rd on the same for personal expense, the net income can be arrived at Rs.10,000/-. In my view, the multiplier of 16 can be reasonably applied and, therefore, the mother would be entitled to a sum of Rs.15,000/- less 1/3rd = Rs.10,000/- multiplied by 16 = Rs.1,60,000/-. The claimants would be entitled interest at the rate of 9% pendente lite and future. The Tribunal has not awarded anything towards the funeral and the other conventional charges. In my view, a total sum of Rs.5,000/- towards the same would be just, fair and reasonable. It is awarded accordingly. The impugned Award is accordingly modified. The appeal filed by the insurer is dismissed and the appeal filed by the claimants as well as the cross objections are allowed. (Sanjay Karol), December 11, 2008. Judge. (rana)