Shamsher Kaur & Ors. v. Lachhman Dass & Ors.

CORAM : HON'BLE MR. JUSTICE K.KANNAN Present : Mr. R.S.Longia, Advocate for the appellants in FAO No.681 of 1998 and for respondents No.1 to 3 in FAO No.1464 of 1998. Mr. V.D.Sharma, Advocate for Mr. R.S.Tacoria, Advocate for the appellants in FAO No.1464 of 1998 and for respondents No.1 & 2 in FAO No.681 of 1998. Mr. Anil Kumar, Advocate for New India Assurance Co. Ltd. Mr. V.K.Garg, Advocate. Mr. Paul S.Saini, Advocate for National Insurance Co. Ltd. ****

1.To be referred to the reporters or not? 2.Whether the judgment should be reported in the Digest? **** K. Kannan, J. 1) Both these appeals, arising from the same accident occurred in the year 1995, are for enhancement of compensation. The FAO No.681 of 1998 -2- scooter was insured with New India Assurance Company Ltd. The accident had taken place on 03.10.1995 when the scooter collided with the truck resulting in death. The truck had been insured with National Insurance Company Ltd. The claimants are the parents and the sister of the deceased and the tribunal awarded a compensation of ` 1,15,200/- without specifically adverting to the several heads of the claim that will have to be examined in the case of claim for death. (2) Learned counsel appearing for the appellants-claimants would contend that the deceased was a painter earning an income of ` 6,000/- to ` 7,000/-. The Tribunal observed, in the absence of any documentary evidence, his average income could be taken only as between ` 30/35 per day. Learned counsel submits that he was a semi- skilled person and the Tribunal could not have provided for an average income which was even less than what an unskilled labourer was getting. According to his estimation it would have been even more for an unskilled worker ` 60/- per day. (3) While admitting the argument that ` 30/35 per day is grossly low, in the absence of any specific evidence about his income status, I take what Schedule II provides as a notional income at ` 15,000/-. I would take 1/3rd deduction for personal expenses and take a contribution to the family at ` 10,000/- per year and adopt a multiplier of 18 as per Schedule II and determine ` 1,80,000/- as loss towards dependency. I also grant ` 4,500/- towards loss to estate and funeral expenses as provided under the said Schedule. On the whole, the amount that will become payable will be ` 1,84,500/- and the amount in expenses of over what the tribunal has provided for would attract interest @ 6% from the date of petition till the date of payment. FAO No.681 of 1998 -3- (4) The Tribunal, on a finding that the driver did not have a valid driving license, made the owner wholly liable for compensation. Even if the license had not been issued, the claimants ought to have been provided with the right of enforcement against the Insurance Company and if at all for any violation of terms and policies, the Insurance Company could have been granted the right of recovery against the owner. Consequently, the amount that I have found the claimants to be entitled is recoverable from the insurance company, which was the insurer for the offending truck. I find from the records that during the pendency of the appeal, there has been no stay and if the claimants have already recovered the amount from the insured, the claimants shall obtain the right of recovery against the insurer also for the balance of the amount what is found to be payable for the enhancement that is ordered by this Court. (5) The appellants' (insured's) grievance in FAO No.1464 of 1998 is that the license produced before court showed that the license to be a duplicate one issued on 07.03.1996 and it was stated to be valid till 26.12.1996. The Tribunal reasoned that since the accident taken place in the year 1995, he could not have had a valid driving license. It is urged by the owner in appeal that the license had been issued even on 24.12.1979 and it had been renewed and it was valid upto 26.12.1996 and that further when the accident took place on

03.10.1995, he had no effective driving license. In my view, the tribunal was in error in assuming that merely because that duplicate copy of the license had been secured on 07.03.1996, the driver could not have a valid driving license on the date of accident. Such an inference does not appear to be proper, for, if the issue of license had FAO No.681 of 1998 -4- been done for the first time after the accident, then it could be stated that the driver did not have a valid and effective driving license. It is most unlikely that the license was issued for the first time only on

07.03.1996 since there is no provision under Motor Vehicles Acts and Rules to provide for the validity of the license only for a period of 9 months. If it was a learner's license, it should be valid for a period of 6 months and it was a license for truck, which is a transport vehicle, the validity of the license ought not to have been for a period less than 3 years, if not for 5 years. There is no proper evidence which is available about when the license was issued. If there had been any periodical renewal of the license, then the benefit of the owner to claim, in the absence of violation of terms of the policy, to full indemnity from the insurer shall be made available. This is essentially a dispute inter se between owner and the insurer and I would therefore, vacate the finding of the tribunal regarding the invalidity of the license and remit the matter for consideration on the validity or otherwise of the driving license of the driver of the truck bearing No.HR-12-4385, which was involved in the accident. (6) The appeal in FAO No.681 of 1998 is allowed making an enhancement as referred to above with the right of recovery for the claimant against the insurer. The appeal in FAO No.1464 of 1998 is allowed and remitted for disposal by the tribunal in accordance with law. It is clarified that it shall not be necessary for the claimants to participate in the inquiry for the issue of adjudication. It is matter of dispute inter se between the insurer and insured and the finding by the tribunal will determine the respective liability of the insurer and the insured. FAO No.681 of 1998 -5- (7) Parties are directed to appear before the Tribunal on

27.11.2010. October 15, 2010 (K. KANNAN) JUDGE