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Subhadara Kumari & Ors v. Lallu Ram & Ors.
Structured Summary of the Opinion (C.M. Nayar, J.)
Factual and Procedural Background
This opinion arises from two connected matters: an application (C.M. No. 2069/94) by the appellants under Order 41 Rule 33 read with Section 151 of the Code of Civil Procedure and Section 74 of the Evidence Act to place on record certain official documents showing the salary and allowances that would have been payable to the deceased had he lived; and an appeal (FAO No. 263/79) from an award dated 10 August 1979 by the Motor Accident Claims Tribunal, Delhi.
The deceased, Chhajju Singh, was a constable in the Delhi Police (born 5 January 1943) who died on 3 August 1972 in a road accident when a truck allegedly driven by respondent no. 1 struck the bus (in which the deceased was a passenger) and the bus overturned. The appellants claimed compensation of Rs. 200,000 under Section 110-A of the Motor Vehicles Act.
The Tribunal found composite negligence on the part of the drivers of the truck and bus, held the appellants to be legal heirs, exonerated the Delhi Transport Corporation (respondent no. 7), and assessed limited liabilities: respondent no. 6 (insurer/party connected to the bus) was held liable to the extent of Rs. 5,000 and respondent no. 3 (insurer of the truck) to the extent of Rs. 50,000. The appellants appealed and also moved to place on record contemporary official salary documents of the post held by the deceased.
Legal Issues Presented
- Whether the appellants' application (C.M. No. 2069/94) for admission of additional official documents (salary/allowances) should be allowed by the appellate court in the interest of justice.
- Whether Chhajju Singh sustained fatal injuries due to rash and negligent driving of truck No. DLL 7819 (respondent no. 1) and/or bus No. DLP 5026 (respondent no. 4).
- Whether the petitioners are the legal representatives of the deceased.
- Whether respondent no. 7 (Delhi Transport Corporation) is not liable for reasons alleged in its preliminary objections.
- Whether respondent no. 6 is not liable for reasons alleged in its preliminary objections.
- Whether respondent no. 3 is not liable for reasons alleged in para 1 of its written statement (including any contention as to limited liability under an insurance policy).
- Relief — the proper quantum of compensation payable to the appellants and the parties liable to pay it.
Arguments of the Parties
Appellants' Arguments
- The appellants sought leave to place on record official documents showing the present salary structure for the post the deceased held, to assist in assessing future loss of dependency (application under Order 41 Rule 33 read with Section 151 CPC and Section 74 Evidence Act).
- Grounds assailing the Tribunal's award (as presented by learned counsel for the appellants):
- (A) There was no material on record to justify limiting respondent no. 6's liability to Rs. 5,000; respondent no. 6 had neither proved the policy nor produced a carbon copy to bring itself under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.
- (B) The liability of respondent no. 3 was wrongly assessed at Rs. 50,000 because the original policy had not been produced and no cogent evidence justified that limitation.
- (C) The total award of compensation was manifestly low; the full claim of Rs. 200,000 should have been allowed given the deceased's age, employment and prospects.
Respondents' Arguments (as reflected in the opinion)
- Respondents generally pleaded denial and (where applicable) limited liability in their written statements.
- Respondent no. 6 (insurer connected to the bus) relied on the statutory liability for death of a passenger (the Tribunal treated this as limiting liability to Rs. 5,000). The original policy was not produced and the office carbon copy was said to have been destroyed after records retention period.
- Respondent no. 3 (insurer of the truck) relied on a copy of the policy (Ex.RW2/1, alleged office carbon copy) and argued that the premium and contents of that paper indicated limited liability (Rs. 50,000). The witness for respondent no. 3 admitted that endorsements/warranties and precise terms were not attached to Ex.RW2/1 and that proformas/warranties issued in 1971 were no longer available in the office.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and others, (1994) 4 SCC 659 | Appellate court's power to receive additional evidence in the interest of justice (permissibility of admitting further evidence on appeal). | The court relied on this principle to allow the appellants' application to place on record official salary documents relating to the post held by the deceased, holding that those documents were issued by the concerned department and did not require corroboration. |
| National Insurance Co. Ltd v. Jugal Kishore and others, 1988 ACJ 270 | Proposition that comprehensive insurance and payment of higher premium do not, by themselves, increase the insurer's third-party liability beyond statutory limits unless a specific agreement (with separate premium) exists to extend liability. | The court acknowledged the principle but found it inapplicable on the facts because respondent no. 3 had not produced the original policy or established its terms and conditions; accordingly the respondent could not successfully invoke the principle to limit its liability. |
Court's Reasoning and Analysis
Admission of additional evidence:
The court first addressed the appellants' application to place on record official documents showing the present salary structure for the post held by the deceased. Relying on settled law (cited Billa Jagan Mohan Reddy), the court observed that the appellate court may receive additional evidence in the interest of justice. The official documents were produced by the Deputy Commissioner of Police, New Delhi, and the court treated them as proper official records not requiring corroboration. In view of relevance (to assess future earnings until the deceased's superannuation) and justice, the application was allowed.
Liability findings in the Tribunal award:
The Tribunal had found composite negligence of the truck and bus drivers and had determined that the appellants were legal heirs. It had exonerated Delhi Transport Corporation (respondent no. 7) on the evidence of contractual arrangements and release of the bus by its owner. The Tribunal limited respondent no. 6's liability to Rs. 5,000 (referring to statutory provision for passengers) and respondent no. 3's liability to Rs. 50,000, but did not discuss evidence in support of the latter limitation.
Reassessment of insurers' liabilities:
The court examined the evidence led for respondent no. 6 and found that the original policy was not produced and the office carbon copy had been destroyed; the copy produced before the Tribunal was prepared later from a carbon copy and therefore the Tribunal was not justified in treating the liability as limited to Rs. 5,000 based on the materials placed before it. Accordingly, the court upheld the appellants' contention that the Tribunal wrongly limited respondent no. 6 to Rs. 5,000.
For respondent no. 3 the court analyzed Ex.RW2/1 (alleged carbon copy) and the testimony of RW2 (D.K. Kapur). The witness conceded that Ex.RW2/1 omitted warrantees/endorsements and that he could not orally state the original policy's terms; proformas, warrantees and endorsements from 1971 were not available. On this basis the court held that respondent no. 3 had not discharged the evidential burden to establish a contractual limitation of liability and therefore could not rely on the proposition in National Insurance v. Jugal Kishore to limit its liability to Rs. 50,000. The court rejected respondent no. 3's contention and reversed the Tribunal's finding as to the limitation.
Quantum of compensation:
The Tribunal had fixed annual dependency at Rs. 2,544 and applied a multiplier of 20 to arrive at Rs. 50,880, then made deductions (pecuniary gain of Rs. 16,200 for pension and Rs. 1,719 as lump sum assessed at 5%) to arrive at Rs. 32,661. The appellate court found this approach inadequate because:
- The Tribunal did not account for the prospects of future advancement, regular pay revisions (e.g., by Pay Commissions), and additional allowances typical in government service.
- The deceased was young (28 at death) and would have continued in service until superannuation (age 58); annexures indicated a projected salary of Rs. 2,835 as on 1 January 1994.
- Taking future advancement into account, the appellate court assessed a just dependency at Rs. 1,000 per month (Rs. 12,000 per year) and found the multiplier of 20 used by the Tribunal to be inadequate in the circumstances.
Interest, apportionment and costs:
The court directed that respondents 3 and 6 are jointly and severally liable to pay the awarded amount; interest was fixed at 15% per annum from the date of the petition before the Tribunal until realization. The amount already disbursed to the appellants was to be taken into account in computing the balance. Costs were quantified at Rs. 5,000.
Holding and Implications
Holding:
APPEAL ALLOWED
The court allowed the appellants' application for additional evidence and allowed the appeal from the Tribunal's award. It reversed the Tribunal's findings that respondent no. 3's liability was confined to Rs. 50,000 and that respondent no. 6's liability was confined to Rs. 5,000.
Direct consequences and implications:
- The appellants' damages were assessed at Rs. 200,000 in place of the Tribunal's award; interest at 15% per annum is payable from the date of the petition before the Tribunal until realization.
- Respondents 3 and 6 are jointly and severally liable to pay the amount; any sums already disbursed will be adjusted against the total now held payable.
- The court held that insurers who seek to limit liability by reference to policy terms must produce and establish the original policy and its terms (including warranties/endorsements); absent such proof, limitations asserted by insurers cannot be sustained. Although the court discussed National Insurance v. Jugal Kishore, it found that judgment inapplicable where the insurer fails to prove the policy terms.
- Costs of the appeal were quantified at Rs. 5,000 in favour of the appellants.
Broader precedent-setting note:
The opinion emphasizes established principles (admission of additional evidence in interest of justice; need to produce policy/terms to establish insurer's contractual limitation) but does not purport to lay down novel legal rules beyond applying these principles to the facts of the case. The immediate legal effect is the reassessment of liability and quantum in this matter and the reversal of the Tribunal's limited-liability findings as to respondents 3 and 6.
C.M Nayar, J.—
C.M No. 2069/94
1. This application has been filed by the appellants under Order 41 Rule 33 read with Section 151 of the Code of Civil Procedure and Section 74 of the Evidence Act. The appellants have moved this application to place on record certain documents to indicate the salary and allowances which would have been payable to the deceased from the date of his death till January, 1994 if he had not been killed in the accident. The deceased Chhajju Singh was about 28 years of age and was working as constable in Delhi police drawing the total emoluments of Rs. 312/- per month at the time of accident which took place on August 3, 1972. The appellants have brought on record the official documents, which would indicate the present salary structure of the post which the deceased was holding at the time of his death. These documents have been issued by the concerned department i.e by the office of the Deputy Commissioner of Police, New Delhi, and do not require corroboration or any evidence to prove the same. The position of law is well settled that the appellate court can receive additional evidence if it considers to be needed in the interest of justice. (Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and others, (1994) 4 Supreme Court Cases 659). The deceased was born on 5th January, 1943 and would have continued to work till the age of his superannuation on 5th January, 2001. Therefore, it will be relevant to know the present salary structure of the post which the deceased was holding. In view of the facts of the present case and in the interest of justice, the application is allowed.
FAO No. 263/79
2. The present appeal is directed against the award dated August 10, 1979 of Shri H.P Bagchi, Judge, Motor Accident Claims Tribunal, Delhi. The appellants filed a petition under Section 110-A of the Motor Vehicles Act against the respondents claiming compensation of Rs. two lakhs for the death of Shri Chhaju Singh in an accident, alleged to have taken place on 3rd August, 1972 at about 3.45 P.M The deceased Chhajju Singh was travelling in bus No. DLP 5062 from Patel Chest Institute towards Civil Lines and when the bus was taking a turn towards Civil Lines on Mall Road, truck bearing No. DLL 7819 driven by respondent no. 1 came on the road and the front of the truck hit the bus in which the deceased was travelling with great force. As a result of the impact, the bus overturned and the deceased was thrown out and was fatally injured and died on the spot. The deceased possessed good physique and had he not been killed in the accident, it is alleged, he would have lived to the age of 80 years as there is history of longevity of life in the family. The truck was owned by respondent no. 2 and respondent no. 1 was driving the same in the course of his employment. The said truck was insured with respondent no. 3. Respondent no. 4 was made a party as he was the driver of the bus in which the deceased was travelling and the said bus was owned by respondent no. 5 and insured with respondent no. 6. The bus was running under the operation of Delhi Transport Corporation at the time of accident. The usual pleas of denial and limited liability were taken by the respondents in their respective written statements.
3. Following issues were framed:
1. Whether Chhajju Singh sustained fatal injuries due to rash and negligent driving of truck No. DLL 7819 on the part of the respondent no. 1 and or bus No. DLP 5026 on the part of respondent no. 4?
2. Whether the petitioners are the legal representatives of the deceased?
3. Whether the respondent no. 7 is not liable for the reasons alleged in the preliminary objections of its written statement?
4. Whether the respondent no. 6 is not liable for the reasons alleged in the preliminary objections of its written statement?
5. Whether the respondent no. 3 is not liable for the reasons alleged in para 1 of the preliminary objections of its written statement?
6. Relief.
4. The Tribunal disposed of issue no. 1 by holding that the accident was the result of the composite negligence on the part of the drivers of the bus as well as of the truck. This conclusion was based on appreciation of evidence on record and it has been reiterated that reasonable caution was not observed by both the drivers. Issue no. 2 was decided in favour of the appellants and they were held to be the legal heirs of the deceased. Issue No. 3 related to the liability of Delhi Transport Corporation, respondent no. 7 herein. It was held that the Delhi Transport Corporation had entered into an agreement with the owner of the bus and it was in evidence that the driver of the bus was under the employment of the owner and the bus after the accident was got released by the owner. The issue was decided in favour of respondent no. 7 and the Corporation was held not liable to pay any compensation. The liability of respondent no. 6 was discussed in issue no. 6 and the learned Judge held the said respondent was liable to pay compensation to the extent of Rs. 5,000/- only as the deceased was a passenger of the bus. This liability was assessed on the basis of the provisions of Motor Vehicles Act. The liability of respondent no. 3 was assessed only to the extent of Rs. 50,000/-
5. The learned counsel for the appellants has assailed the award on the following grounds:
A. There was no material on record to limit the liability of respondent no. 6 to the extent of Rs. 5,000/- only as the said respondent neither proved the policy nor filed the carbon copy of the same to bring it under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 wherein reference is made to the award of compensation for each individual passenger.
B. The liability of respondent no. 3 was wrongly assessed at Rs. 50,000/- as neither the original policy has been produced nor any cogent evidence has been placed on record to justify this conclusion.
C. The award of compensation is very much on the lower side and the entire claim of Rs. two lakhs should have been allowed in the facts and circumstances of the present case.
6. The Tribunal has dealt with the first point in favour of respondent no. 6 merely on the ground that the statute provides the liability of respondent no. 6 to pay compensation to the extent of Rs. 5,000/- in respect of death of a passenger. The policy in respect of the offending bus has not been proved. The evidence of R6W1, Shri R.P Sawhney, Senior Assistant, New India Assurance Co. Ltd., clearly indicates that the bus was insured with effect from November 9, 1971 to November 8, 1972. The original policy was issued to respondent no. 5. The said witness further states that the carbon copy maintained by the office has been destroyed because all records are destroyed after 3 years The copy which was produced before the Tribunal was prepared on the basis of the carbon copy of the letter dated September 21, 1973 issued to counsel Shri S.R Sarna on that date. Therefore, it is clear the said respondent could neither produce the original policy nor the carbon copy was available. The learned Judge was right in attaching no significance to the said copy of the policy which was prepared in the above circumstances. In this background it was wrong to hold that the liability of the company was only to the extent of Rs. 5,000/- when no such plea can be held to be established on the basis of evidence on record. There is force in the contention of learned counsel for the appellants. The same is, accordingly, upheld.
7. The question of liability of respondent no. 3, which has been confined to Rs. 50,000/- may now be considered. The Tribunal has not discussed any evidence in this regard and has only held in the concluding part of the award that the liability of the respondent will only be to the extent of Rs. 50,000/-. There is no discussion on this plea. I have been taken through the evidence by learned counsel for respondent no. 3. He has referred me to the policy, Ex.RW2/1, which is alleged to be the carbon copy of the original policy. The original was not produced. The bare reading of the same indicates the premium paid and it is argued that the amount as stated therein would only cover the limited liability of the company. There is no other document which is attached to this copy nor any terms and conditions have been filed along with the same. It is interesting to refer to the evidence of RW2, Shri D.K Kapur wherein the said witness has stated in the cross-examination as follows:
“It is incorrect that Ex.RW2/1 is not the correct copy of the original policy. Subject items are not mentioned in Ex.RW2/1. The warrantee and endorsements are attached with the original but they are not attached with the office copy. I cannot tell orally what were the terms and conditions of the original policy. I have not brought any other paper except the carbon copy of the policy Ex.RW2/1. Premium register is available in our office.”
8. On further re-examination, the said witness has stated as follows:
“The policy proformas, warrantees and endorsements issued in 1971 are no more available with the company. It is wrong to suggest that liability provided by the Company under the policy of Insurance was in addition to the liability required under statute. I do not know what was the third party premium in 1971. It is correct that in this policy the basic premium charges is more than third party premium.”
9. The reading of the above testimony will demolish the case of the respondent and it cannot be said that the liability of respondent no. 3 was limited to the extent of Rs. 50,000/-.
10. The learned counsel has strongly relied on the judgment of the Supreme Court, as reported in National Insurance Co. Ltd v. Jugal Kishore and others 1988 ACJ 270 to state the proposition that “comprehensive insurance of the vehicle and payment of higher premium on this score do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub-section 2 of Section 95 of the Act. For this purpose, a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. “There is no doubt about this proposition but the above said respondent has neither produced the original policy nor established its terms and conditions and is only seeking to rely on one sheet of paper which does not indicate that the company is no more liable to discharge the liability as assessed by the Tribunal. The above said judgment will, therefore, be of no application to the facts of the present case. The contention of learned counsel for respondent no. 3 is, accordingly, rejected. The finding of the Tribunal that the liability of the said respondent is only to the extent of Rs. 50,000/- is reversed.
11. Coming now to the quantum of compensation as awarded by the Tribunal, the admitted facts are that the petitioner was a constable in Delhi Police at the time of accident on August 3, 1972. He was born on January 1, 1943 and, therefore, was correctly held to be aged 28 years at the time of his death. The Tribunal on the basis of evidence on record fixed the dependency at Rs. 2544/- per year and by adopting a multiplier of 20 awarded the compensation of Rs. 50,880/-. The deductions were made for the amount of Rs. 16,200/- as pecuniary gain to the appellants in respect of pension which had become payable. The further deduction was made of Rs. 1719/- for lump sum payment, which was assessed at the rate of 5%. The ultimate award of compensation was made in the figure of Rs. 32,661/-. This part of the judgment is correctly assailed by learned counsel for the appellants. The Tribunal has failed to take into consideration the fact that there is positive scope of future advancement in the career of a person, particularly, when he is young and is employed in a Government job. The pay scales are often revised on the basis of Pay Commission Reports as well as additional allowances are payable. The multiplier of 20 as adopted can also not be justified in the facts of the present case as the deceased would have continued to work till he attained the age of superannuation which is 58 years in the Government service. The data, which has been placed on record, has indicated the salary structure of the constables in Delhi police and it is so stated in the annexures filed with the application for additioinal evidence that the deceased, in any case, would have been earning a sum of Rs. 2835/- as on January 1, 1994. He would have superannuated in the year 2001. In this background the dependency amount as contribution of the deceased towards his family can easily be assessed at Rs. 1,000/- per month i.e Rs. 12,000/- per year after taking into account future advancement and other relevant factors. The decease was a young man of 28 years and the multiplier of 20 on that basis, as adopted by the Tribunal, is rather inadequate. The compensation, however, even on that basis would not be less than Rs. two lakhs, which is claimed by the appellants-claimants in the claim petition. I, therefore, assess the amount of damages as payable to the appellants-claimants as Rs. two lakhs which can be held to be just and reasonable in the facts and circumstances of the present case. The appellants are also held entitled to interest at the rate of 15 per cent per annum from the date of petition before the Tribunal till realisation. The amount, which has already been disbursed to them, shall be taken into account in working out the amount now held payable. Respondents 3 and 6 shall be jointly and severally liable to pay this amount and the finding of the Tribunal that the liability of respondent no. 3 is confined to Rs. 50,000/- and respondent no. 6 to Rs. 5,000/- is, accordingly, reversed
12. The appeal is allowed in the above terms with costs, which are quantified/at Rs. 5,000/-.
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