FAO No. 532 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.532 of 1986 Date of decision 18 .5.2010. FAO No. 532 of 1986 Mukhtiar Kaur and another. ...... Appellants. versus Lakhwinder Singh and others ...... Respondents. Present : Mr. G.S.Punia, Advocate for the appellants. Mr. Munish Gupta, Advocate for the respondent Nos. 1 and 2. Mr. Gopal Mittal, Advocate, for the Insurance Company. FAO No. 533 of 1986 Mukhtiar Kaur and another. ...... Appellants. versus Lakhwinder Singh and others ...... Respondents. Present : Mr. G.S.Punia, Advocate for the appellants. Mr. Munish Gupta, Advocate for the respondent Nos. FAO No. 532 of 1986 2 1 and 2. Mr. Gopal Mittal, Advocate, for the Insurance Company. CORAM : HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. By this common order I intend to dispose of FAO No.532 titled as Kamaljit Kaur and others versus Lakhwinder Singh and others and FAO No. 533 of 1986 titled as Mukhtiar Kaur and others versus Lakhwinder Singh and others and also X-objection No.100- CII of 1986 in FAO No.532 of 1986 and also X-objection No.101-CII of 1986 in FAO No.533 of 1986 filed by respondent No.5 United India Assurance Company against the common award dated April 2, 1986 passed by the Motor Accident Claims Tribunal, Ludhiana is under challenge and is being decided accordingly. The facts are being taken from FAO No.532 of 1986. The brief facts, which need to be noticed, are that persons namely Hari Singh, Kuldip Singh Brar, Gurdev Singh, Gurinderpal Singh and Iqbal Singh were travelling in car No. DEB 4398. They were coming to Ludhiana from Doraha and that car was being driven by Kuldip Singh Brar. The said car had crossed Sahnewal and was near the FCI Godowns in the outskirts of Ludhiana. An oil tanker bearing registration No. PJL-2774 driven by Nahar Singh-Driver was coming from Ludhiana and going towards Doraha. It has been averred that the aforesaid oil tanker was being driven in a rash and negligent manner with bright beams having been switched on. The truck FAO No. 532 of 1986 3 bearing registration No. PUR-6195 driven by Lakhwinder Singh was crossing in front of the car. The truck and the oil tanker collided with each other and as a result thereof, the tanker went out of control and turned turtle. The tanker hit against the car. The car got pushed and dashed into a tree along side the road. All the occupants of the car received injuries. Hari Singh, Kuldip Singh Brar and Gurdev Singh became unconscious. They were removed in a tempo to Christian Medical College, and Hospital, Ludhiana, where they died. The legal heirs of the deceased persons i.e Hari Singh and Gurdev Singh had filed respective claim applications before the Tribunal. It has been averred that Hari Singh was working as a SDO in PSEB and was drawing salary of Rs.1617.30. The deceased Gurdev Singh was working as Supervisor in the Market Committee, Zira and was earning Rs.630/- per month. Both set of claimants have claimed Rs.5 lacs and Rs.1,50,000/- respectively. The respondents have contested the claim of the claimants by submitting written statement to the respective claim applications filed. It may be noticed that the truck in question had been insured with United India Assurance Co. Ltd and oil tanker had been insured with M/S New India Assurance Company. The respondents have denied the allegations/averments made by the claimants vis-a-vis the manner in which the accident took place. Both the Insurance Companies have taken the pleas by taking the stand that their respective clients were not at fault and that the accident took place due to the negligence of truck and other person FAO No. 532 of 1986 4 i.e driver of the car. The Insurance Company, which had insured the oil tanker, has taken the plea that the truck No.PUR 6195 was being driven in a rash and negligent manner by its driver. The truck hit the rear side of the tanker as a result of which the tanker over turned towards its left side. In the process of getting over turned, the car DEP 4398, which was being driven in a rash and negligent by the driver of the car, got involved and dashed into a tree. Thus, the death of Hari Singh, Kuldip Singh Brarand Gurdev Singh took place due to the rash and negligent driving of the driver of the car and the truck as aforesaid. On the other hand, the insurer of the oil tanker has taken the plea that the accident took place entirely due to the negligence of the truck driver and the driver of the car as they did not observe the traffic rules. Therefore, the claim application against the insurance company of the oil tanker deserves to be dismissed. It is also the plea of United India Assurance Co. that the liability of the Insurance Company is limited to the extent of Rs.50,000/- for one accident. Apart from the aforesaid pleas, technical objections have been taken vis-a-vis limitation, misjoindor of parties and non-joindor of parties etc. An additional plea has also been taken that the driver of the offending vehicle did not have a valid driving licence. The following issues had been framed in the claim petition filed by the claimants of deceased Hari Singh : - 1. Whether the deceased Hari Singh died in car accident while travelling in car No. DED 4398 on account of accident which took place between the truck No. PUR 6195 and truck oil tanker PJL 2274 and which of the three vehicles were FAO No. 532 of 1986 5 rash and negligent in driving ? 2. Whether the application is bad for non-joindor of necessary parties as alleged in preliminary objection No.1 by respondent No.2 ? OPR No.2 3. Whether the application is within time ? OPA 4. To what amount of compensation, the claimants are entitled to ? If so, from whom and to what extent ? OPA 5. Relief. In the claim application of the claimants of Gurdev Singh deceased, the following issues had been framed :- 1. Whether the accident in which Gurdev Singh died took place on account of the rash and negligent driving of truck No., PUR 6195 by Lakhwinder Singh respondent No.1 and of tanker No. PJL- 2274 by Nahar Singh respondent No.4 ? OPA 2. Whether the accident mentioned in Issue No.1, was caused on account of the rash and negligent driving of Lakhwinder Singh respondent No.1 of truck No. PUR 6195 ? OPR No.4 and 5. 3. Whether the accident in question was the result of the rash and negligent driving of the driver of car No. DED 4398 ? OPR No.1 and 2 4. Whether the application is bad for non-joindor of the necessary parties ? OPR No.6 5. To what amount of compensation the applicants are entitled and from whom ? OPA 6. Relief. This Court vide order dated 12.7.2006 while deciding in case Kamaljit Kaur and others versus Lakhwinder Singh and others in favour of the claimants directed the Tribunal to assess the amount of compensation. The relevant part of finding by this Court is reproduced FAO No. 532 of 1986 6 as under : - “...... The cumulative result is that the accident did take place involving the three vehicles but it is difficult to opine as to which of the vehicle was being driven in a rash and negligent manner. Though the driver of the tanker has categorically stated that the truck was being driven in a zig zag manner and of course, in a rash and negligent manner and when he came near the truck the front wheel of the truck struck against rear wheel of the tanker. It has not been explained as to how the front wheel struck the rear wheel of the tanker. However, it has been stated that the front wheel of the truck had snapped and had struck accordingly. No evidence in this regard has been brought record. Thus, the finding of the Tribunal that driver of the car was at fault and because of his negligence the accident took place, is absolutely incorrect. Resultantly, the finding of the Tribunal on these issues in both the cases is set aside.” This Court further observed that issue Nos.2 and 3 relating to nonjoinder of necessary parties and the question of limitation have not been pressed and resultantly the finding has been returned against the respondents. The Tribunal was asked to return the finding on issue No.4 in Kamaljit Kaur and others versus Lakhwinder Singh and others' case. It was further directed by this Court that Tribunal to FAO No. 532 of 1986 7 return finding on issue Nos.1, 2, 3 and 5 in the case Mukhtiar Kaur and others versus Lakhwinder Singh and others. It was further observed that the Tribunal is expected to give a finding upon issues of compensation even if the finding in regard to the negligence is returned. Thereafter, the report of the learned District Judge was received. Regarding issue No.1 in case Kamaljit Kaur and others versus Lakhwinder Singh and others, the learned District Judge/Tribunal held that claimants are entitled to claim Rs.3,15,000/- The income of the deceased after taking into account the deduction was taken as Rs.1500/- per month. 1/3rd was deducted on account of personal expenses. The yearly dependency was taken as Rs.12,000/- per year. The multiplier of 25 was applied and as such the amount calculated comes to Rs.3,00,000/-. Another sum of Rs.5000/- was allowed regarding funeral expenses Rs.5000/- on account of loss of consortium and Rs.5000/- on account of loss of love and affection due to untimely death of his father and in this manner a sum of Rs.3,15,000/- was allowed. However, while returning finding on issue Nos.1, 2 and 3 in case Mukhtiar Kaur and others versus Lakhwinder Singh and others, the Tribunal held that accident has taken place due to the contributory negligence of Nahar Singh, Lakhwinder Singh and Kuldip Singh while driving the car, tanker and truck. Regarding driving licence in the name of Lakhwinder Singh, it was held that the licence was not renewed on 12.7.1982, on the date of accident, and the said licence of Lakhwinder Singh was valid from 6.9.1971 to 5.9.1974 and was renewed from 24.7.1999 to FAO No. 532 of 1986 8 23.7.2002, 9.10.2002 to 8.10.2005, 25.9.2006 to 24.9.2009. As regards Nahar Singh driver of tanker is concerned, it was observed that no document or driving licence has been produced on the record and as such he was not holding a valid driving licence. Regarding issue No.5 in case Mukhtiar Kaur and others versus Lakhwinder Singh and others' case, it was held that Gurdev Singh deceased was getting salary of Rs.677.60ps. 1/3rd amount was deducted on account of personal expenses of Gurdev Singh and the monthly dependency was calculated as Rs.452.60ps by rounding of comes Rs.450/-per month and annual income was taken by the Tribunal as Rs.9900/- and multiplier of 25 was applied and the amount was calculated Rs.2,47,500/- by rounding of Rs.2,48,000/-. Another sum of Rs.5000/- on account of loss of consortium to Mukhtiar Kaur and Rs.5000/- on account of love and affection to the other family members and in this manner the amount of calculated was Rs.2,63,000/-. It was held that Insurance Company shall pay the amount of compensation but shall be able to recover the amount from the driver and the owner. The Insurance Company has taken a plea that limit of the Insurance Company is to the extent of Rs.1,50,000/- but the Tribunal in the report held that since the case is being decided in the year 2007 and as such the liability of Insurance Company shall be unlimited. I have heard both the learned counsel for the parties and have gone through the records of the case. This Court vide order dated 12.7.2006 has categorically given a finding that driver of the car was not negligent. FAO No. 532 of 1986 9 In view of the finding of this Court vide order dated 12.7.2006 to the effect that driver of the car was not negligent, so, in these circumstances, the Tribunal could not return finding that the car driver was contributory negligent in respect of accident in question. Once this Court has given a clear cut finding that driver of the car was not negligent, the finding of the Tribunal to the effect that driver of the car i.e. the deceased Kuldeep Singh was negligent does not sustain the test of legal scrutiny. Consequently, the finding of the Tribunal in case Mukhtiar Kaur and others versus Lakhwinder Singh and others, to the effect that driver of the car is negligent stands set aside. However, the finding of the Tribunal to the effect that driver of oil tanker PJL 2774 and truck No. PUR 6195 are contributory negligent stands affirmed. The Tribunal has returned the finding in its report that Lakhwinder Singh was not holding a valid driving licence on the date of accident. Lakhwinder Singh respondent was issued HMV licence valid from 6.11.1971 to 5.9.1974 and the same was got renewed from 24.7.1999 onwards till 2009. The accident has taken place on 12.7.1982. So, Lakhwinder Singh was not holding a valid driving licence on that day. The counsel for the respondents could not dispute the factual position given by the learned District Judge in its report. The Hon'ble Apex Court in authority National Insurance Company vs. Vidyadhar Mahariwala (2008-4) PLR page 746 held that in case the driving licence is not renewed on the day of accident in that case the Insurance Company is not liable. In the said case, the accident FAO No. 532 of 1986 10 has taken place on 11.6.2004. The driving licence was initially valid for the period from 15.12.1997 to 14.12.2000 and thereafter from 29.12.2000 to 14.12.2003. It was again renewed on 16.5.2005 to 15.5.2008. The licence was not renewed from 15.12.2003 to 15.5.2005 and during the intervening period i.e. on 11.6.2004, the accident has taken place and the Hon'ble Apex Court has held that Insurance Company is not liable to pay the compensation on account of breach of the terms. So, in view of the authority National Insurance Company vs. Vidyadhar Mahariwala's case, the Insurance Company is not liable to pay the amount of compensation. Similarly, Nahar Singh has not produced the licence even on asking. So, the Tribunal has also held that he was not holding valid driving licence. The finding of the Tribunal to the effect that in view of authority National Insurance Co. Ltd . vs. Swaran Singh 2004 Accidents Claims Journal reported at page 1 , the Insurance Company of oil tanker and truck would be liable to pay the amount of compensation and shall be entitled to recover the said amount from the driver and the owner of the offending vehicle. The other question for determination in this case is whether the amount of compensation assessed in respect of death of Hari Singh and Gurdev Singh in both the cases is appropriate? Now first of all taking the case of FAO No.532 of 1986 in respect of death of Hari Singh. The Tribunal has assessed the amount of compensation as Rs.3,15,000/- as detailed above. Learned counsel for the claimant has submitted that income of the deceased was FAO No. 532 of 1986 11 Rs.1617/-. The deceased Hari Singh was aged 32 years. So, the 50% of the income should be added to the income of deceased in respect of future expenses in view of authority Smt. Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77. On the other hand, counsel for the Insurance Company has submitted that multiplier of 25 is unheard and the Tribunal has wrongly applied the multiplier of 25. Even according to Smt. Sarla Verma and others' case (supra), the multiplier at the age of 32 years cannot be more than 16. It is contended that the amount of income has been taken as Rs.1617/- correctly. The deceased was working as Sub Divisional Officer, Punjab State Electricity Board and his income as per salary record was Rs.1617.30ps. Out of which Rs.116/- was house rent and Rs.2/- as water charges were deducted. The carry home salary by the Tribunal has taken as Rs.1500/- per month. The amount of house rent was deducted as the deceased must have got the Government accommodation and Rs.2/- were deducted on account of use of the water. So, both these amounts are the income spent upon having a house as well as use of water. So, that amount cannot be deducted from the income of the deceased and the income of the deceased is taken as Rs.1617/- per month by adding 50% amount on account of future prospectus in view of authority Smt. Sarla Verma and others' case (supra), the amount is calculated as Rs.2425/- per month. On account of personal expenses of the deceased, 1/3rd amount is deducted . So, the amount of dependency comes to Rs.1616.66ps. The yearly FAO No. 532 of 1986 12 dependency comes to Rs.19,399.39ps ( say Rs.19,400/-). The multiplier applicable at the age of 32 is 16 as per Smt. Sarla Verma and others's case (supra). So, the amount of compensation stands calculated as Rs.3,10,400/-. The Tribunal has granted an amount of Rs.15,000/- regarding funeral expenses, loss of consortium etc. So, by adding that amount, the amount of compensation comes to Rs.3,25,400/- by rounding of it comes Rs.3,25,500/-. The claimant shall be entitled to interest @ 6% per annum on the date of application till realization. So far as the FAO No.533 of 1986 is concerned, as per report of the trial Court, the amount of compensation assessed is Rs.2,63,000/- as detailed above. Age of Gurdev Singh was 36 years. Salary of Gurdev Singh being employee of Market Committee, Zira was found to be Rs.675/- per month. By adding 50% amount in respect of future prospectus, the amount is calculated comes to Rs.1012/- (Rs.675 +337) by deducting 1/3rd amount in respect of personal expenses. The amount of monthly dependency comes to Rs.674.66ps. Per month saying Rs.675/- per month. The yearly dependency comes to Rs.8100/-. The multiplier at the age of 36 years in view of Smt. Sarla Verma and others' case (supra) is 15. So, the amount of compensation comes to Rs.1,21,500/-. The Tribunal has allowed a sum of Rs.15,000/- as funeral expenses and loss of consortium, love and affection. So, that amount stands upheld and as such the claimants are entitled to claim Rs.1,36,500/- along with interest @ 6% per annum. The counsel for the Insurance Company has submitted that the liability of the Insurance Company is limited to the extent of FAO No. 532 of 1986 13 Rs.1,50,000/- (as per amendment dated 1.10.1982 raised the liability of Insurance Company from Rs.50,000/- to Rs.1,50,000/- and the Tribunal has held that Rs.1,50,000/- has to be paid by the Insurance Company). To support this contention, learned counsel for the Insurance Company has relied upon constitutional five Judges Bench in authority New India Insurance Company Limited vs. C.M.Jaya and others 2002(2) PLR 171. In reply to the above noted submissions, learned counsel for the claimants has relied upon authority Oriental Insurance Company Ltd vs. Cheruvakkara Nafeessu and Ors JT 2001 (1) SC 341 and on the strength of the same, it is argued that in view of Section 95(2) and Section 96(1), the Insurance Company is liable to pay the amount and can recover the same from the owner/driver. I have considered the said submissions made by both the learned counsel for the parties as mentioned above and have gone through the records of the case. The Tribunal has held that since the claim petition is being decided in the year 2007 and as such the authority Prabhavati Sharma and others versus Brijmohan Parihar and others 1990 ACJ page 399 regarding limited liability is not applicable. However, this view of the Tribunal is erroneous. The liability of the Insurance Company has to be assessed on the date of accident by taking into account the terms of the policy. This aspect of the case has been dealt in by the Constitutional Bench of Hon'ble Apex Court in authority New India Insurance Company Limited vs. C.M.Jaya and others' case (supra). The other aspect of the case that insurance company shall pay the amount FAO No. 532 of 1986 14 and recover the same from the owner and driver has not been dealt in. This aspect of the case has been dealt in by the Division Bench authority of Hon'ble Apex Court in authority Oriental Insurance Company Ltd vs. Cheruvakkara Nafeessu and Ors' case (supra) and it was held as under :- “A conjoint reading of all the terms of the policy of insurance executed in this case indicate that the total extent of liability of the insurance policy is Rs.50,000/- but the company is liable to indemnify the insured against all sums including claimant's costs and expenses which insured becomes liable to pay and nothing in the policy affects the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of Section 96 of the Act. However, the insured is liable to repay to the company all sums paid by the company which the company would not have been liable to pay but for the condition of liability relating to third party. Despite holding the liability under the policy limited to the extent of Rs. 50,000, the Claims Tribunal and the High Court were not unjustified in directing the appellant- company to pay whole of the awarded amount to the claimants on the basis of the contractual obligations contained in clauses relating to the liability of the third parties and avoidance clause. However, the Claims FAO No. 532 of 1986 15 Tribunal and the High Court were not justified in rejecting the right of the appellant-company to recover from the insured the excess amount paid in execution and discharge of the award of the Tribunal. The appellant-company is liable to pay the entire award amount to the claimants. Upon making such payment the appellant can recover the excess amount from the insured by executing this Award against the insured to the extent of such excess as per Section 174 of the Motor Vehicles Act, 1988 No costs.” So, in view of the above discussion, the Insurance Company is held liable to pay whole of the amount and held entitled to recover the amount of compensation from the driver and owner of the offending vehicles later on. So, the appeal as well as cross-objections stand disposed of as narrated above. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 18th, 2010 sv