The Oriental Insurance Company v. Seema Devi & Ors.

Present : Mr. D.P.Gupta, Advocate for the appellants in FAO No. 3470 of 2009. Mr. S.N.Pilana, Advocate for the respondents. Mr. A.K.Bishnoi, Advocate for respondent. K.C.PURI. J. Vide this judgment, I intend to dispose of two FAOs, i.e. FAO FAO No. 3470 of 2009 2 No. 3470 of 2009 preferred by The Oriental Insurance Company against the Award dated 19.5.2009 passed by Motor Accident Claims Tribunal, Hisar for absolving the liability of Insurance Company and FAO No. 4928 of 2009 preferred by the claimants for enhancement of the compensation. Briefly stated the legal representatives of Gopi Ram filed claim petition claiming compensation on account of death of Gopi Ram in a motor vehicular accident. It is pleaded that on 12.5.2007 deceased Gopi Ram was going on his bicycle from Mandi Adampur to Dhanies. He was being followed by his brother Surta Ram and one Bhim Singh son of Khayali Ram on another cycle. Gopi Ram was driving the cycle on his left side. At about 11/11.30 a.m. when he reached near Electricity Board of Mandi Adampur, tractor bearing registration No.HR-20L/9605 driven by respondent No.1 rashly and negligently at a very high speed, without blowing any horn came from the back side and struck into the cycle of deceased, as a result thereof, deceased-Gopi Ram fell down on the road and tractor crossed over his body. Gopi Ram received serious injuries on his abdomen, hips etc. Respondent No.1ran away from the spot after the accident and did not provide any help to the deceased while in an injured condition. Gopi Ram was shifted to General Hosital, Hisar from where he was referred to Agroha Medical College, Agroha, from where he was further referred to Hisar and then he was shifted to Jindal Institute of Medical Care and Research Center Model Town, Hisar. Thereafter, he was referred to General Hospital Hisar but he succumbed to his injuries in the way to the General Hospital, Hisar in the evening of the same day. FIR No.128 dated 12.5.2007 under Sections 279, 304-A and 427 of the Indian FAO No. 3470 of 2009 3 Penal Code was registered against Satbir Singh driver at the instance of Surta Ram brother of Gopi Ram. Respondent Nos.1 and 2 filed joint written statement denying the accident. It is pleaded that vehicle was with Shiv Tractor Company, Hisar for repairs on the day of occurrence and a false case has been registered against the drive to grab the compensation. Respondent No.3-Oriental Insurance Company Ltd filed separate written statement denying the contents of the petition. It is pleaded that claim petition is exaggerated and has been filed in collusion with respondent No.5 and respondent No.1 and 2. There is a breach of term of condition regarding driving licence. From the pleadings of the parties, following issues were framed by the Tribunal :-

1. Whether the accident in question took place due to rash and negligent driving of Tractor bearing registration No.HR- 20L/9605 by respondent No.1 resulting into death of Gopi Ram as alleged ?OPP.

2. If issue No.1 is proved whether the claimants are entitled for compensation, if so to what amount and from whom ?OPP.

3. Whether the petitioners have no locus standi and cause of action to file the present petition ?OPR3.

4. Whether the petition is result of collusion in between the claimants and respondents No.1 and 2 ?OPR3.

5. Whether the respondent No.1 was not having a valid driving license and the tractor in question was being driven in violation of the terms and conditions of the insurance policy at the time of accident?OPR3.

6. Relief. To prove its case, claimant Seema Devi appeared as PW-1 and FAO No. 3470 of 2009 4 also examined Dr.Vivek Gupta as (PW-2), Kamal Anand, Criminal Ahlmad (PW-3), ASI Satbir Singh (PW-4) and Surta Ram (PW-5) eye witness of the occurrence and then closed the evidence. In rebuttal, Satbir examined himself as RW-2 and also examined Gulab Singh, Clerk Licensing Authority, Hisar (RW-1). The learned Tribunal, after appraisal of the evidence returned the finding on issue No.1 in favour of the applicant and against respondent No.1-Satbir. While deciding issue No.2, the income of deceased was taken as Rs.3000/-per month and the dependency was taken as Rs.2330/- per month and the annual dependency was taken as Rs.27960/-. Taking the age of deceased as 30 years, multiplier applied was 16. Rs.10,000/- was allowed on account of transportation and last rites of Gopi Ram and in this manner an amount of Rs.4,57,360/- was granted to the claimants. While deciding issue No.5, it was held that respondent No.1 was not holding a valid driving licence but the vehicle was duly insured. Consequently, the Insurance Company was directed to make the payment of compensation to the claimants with liberty to recover the same from driver and the owner of the offending vehicle. Issue No.3 and 4 were not pressed during the course of arguments before the Tribunal and as such these were decided against the Insurance Company. Feeling dis-satisfied with the above said Award, Insurance Company has preferred the appeal for absolving its liability to pay the compensation whereas claimants have filed appeal for enhancement of compensation. FAO No. 3470 of 2009 5 Since both these appeals have arisen out of the same Award and as such are being disposed of with the common order. Learned counsel for the appellant-Oriental Insurance Company has submitted that there is a definite finding of the Tribunal that respondent No.1 was not holding valid driving licence. From these circumstances, insurance company is not liable to pay the compensation amount. The Tribunal has wrongly held that Insurance Company should first pay the amount to the claimants and thereafter can claim the said amount from the owner and driver of the offending vehicles. To support this contention learned counsel for the Insurance Company has relied upon authority National Insurance Co. Ltd., Vidhyadhar Mahariwala and others 2008 ACJ 2860 and authority Devinder Singh and others vs. Rambha Devi and others 2009 ACJ 2847 , Parkash Transport Co-op. Society Ltd and others vs. Tripurai Saran Tripathi and others 2009 ACJ 2430 and also The Oriental Insurance Company Limited vs. Sombir and another FAO No.2568 of 2007 decided on 19.9.2008. I have considered the submissions of learned counsel for the appellant-Insurance Company and have gone through the records of the case with the able assistance of counsel for the parties. This aspect of the case has been dealt in by the Tribunal in paragraph 19 of the Award. On the basis of testimony of Gulab Singh (RW- 1) Licensing Authority, Hisar, the Tribunal came to the conclusion that on the day of occurrence i.e. 12.5.2007 Satbir Singh was not holding any driving licence. Originally, the driving licence No.87385 was issued in FAO No. 3470 of 2009 6 favour of Satbir Singh respondent No.1 on 17.9.1996, which was valid upto

16.9.2001 authorizing him to drive scooter, motorcycle, car, jeep and tractor. The said licence was renewed on 18.1.2002 for a period of five years i.e. upto 17.1.2007. thereafter paper for renewal of said licence were received before before Licensing Authority on 22.5.2007. So, the licence was not renewed from 18.1.2007 onwards and respondent No.2 was not holding driving licence on 12.5.2007. So far as the authority Vidhyadhar Mahariwala and others' case (supra) is concerned in that authority, it has been held that the driver did not get renew the licence and the accident has taken place in that case, the Insurance Company is not liable as the owner has violated the terms of the policy. In that authority it has been held that owner and driver are liable to pay the amount. In authorities Devinder Singh and others' case (supra), Parkash Transport Co-op. Society Ltd and others' case (supra), The Oriental Insurance Company Limited's case (supra) and Sombir and another's case (supra) it has been held that Insurance Company is not liable to pay the amount if the driving licence was not renewed on the day of accident. However, in none of the authorities the liability of Insurance Company to pay the awarded amount to the third party, at the initial stage, has been discussed. Authority National Insurance Co. Ltd. vs. Swaran Singh and others reported in 2004 Accidents Claims Journal (Volume 1) Page 1 of three judges Bench of Hon'ble Supreme Court clearly lays down the law that where there is a valid policy in that case Insurance Company is liable to pay the amount of compensation to the 3rd party, but FAO No. 3470 of 2009 7 can recover the same from owner or the driver if there is a breach of terms of the policy on the part of owner of the vehicle. It has been further held in the said authority that this position is holding the field for a long time and as such the doctrine of stare decisis persuades the Hon'ble Supreme Court not to deviate. Not even a single authority has been placed contrary to the above said authority laid down by Hon'ble three Judges Bench. If there is a violation of term of the policy by the owner as envisaged under Section 149 of the Act, 1988 the remedy by the Insurance Company is first to pay compensation amount to the 3rd party and thereafter the Insurance Company is entitled to recover the said amount from owner. So far as the facts of the present case are concerned, the Insurance Company has already been held entitle to recover the amount from the owner and driver as Satbir Singh driver was not holding a valid driving licence on the day of occurrence. So, the right of the Insurance Company has already been protected by the Tribunal. In these circumstances, the appeal preferred by the Insurance Company is without any substance and the same stands dismissed. Now reverting to the enhancement of compensation to the claimant is concerned. After considering whole of the circumstances, I am of the view that multiplier applied by the Tribunal is on the lower side. The Tribunal has assessed the age of the deceased as 30 years and has applied the multiplier of 16. However, in view of Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009 (3) R.C.R.(Civil) 77, multiplier applicable in the age group 26 to 30 should be 17. So, the multiplier is held to be applicable 17. FAO No. 3470 of 2009 8 The Tribunal has taken the income of the deceased Rs.3000/- per month and by applying unit system, the yearly dependency has been calculated as Rs.27960/-. Rs.10,000/- has been granted on account of transportation, last rites of Gopi Ram etc. Learned counsel for the appellant has submitted that no amount has been granted in respect of medical expenses although according to oral testimony, the deceased had been removed to three hospitals. However, to counter that arguments, learned counsel for the Insurance Company has submitted that no bill has been placed on the file. The amount of Rs.10,000/- has been allowed on account of transportation and last rites of Gopi Ram. After considering the rival submissions, I am of the view that some amount might have been spent on the treatment of deceased. So,I assess that amount as Rs.2000/-. So, in this manner, the claimants are held entitled to claim Rs.29,960/- (Rs.27,960/- on account of multiplier of one + Rs.2000/- on medical expenses). However, by rounding of the amount, the claimants are held entitled to claim Rs.30,000/- more in addition to the amount awarded by the Tribunal as ordered by the Tribunal. The Insurance Company shall entitle to recover the said amount of Rs.30,000/- also from the owner and driver of the vehicle. The said amount of Rs.30,000/- shall be paid to widow Smt.Seema Devi in cash alone along with interest @ 7% p.a. from the date of appeal till payment The appeals stand disposed of in the manner indicated above. FAO No. 3470 of 2009 9 A copy of this judgment be sent to the trial Court for strict compliance. February 15 , 2010 ( K.C.PURI ) JUDGE