M/S. National Insurance Company Limited v. Srimati Abha Sinha & Ors.

1. This appeal, by the appellant National Insurance Company Limited, is directed against the judgment and award dated 31.5.91 passed by Motor Vehicles Claims Tribunal, Hazaribagh in Misc. Claim case no. 25/90 by which the learned ciaims Tribunal awarded a sum of Rs. 13,16,755/- by way of compensation on account of death of Major Niraj Sinha, an army officer in a motor vehicles accident. The claimant-respondents, who are widow and children, filed the aforementioned case for grant of compensation alleging inter alia that the deceased boarded a Minibus bearing registration no. BR-(L) 2223 at Koderma railway station in the morning of 3.1.90 for coming to Hazaribagh town. It is said that the vehicle was being driven in a very rash and negligent manner and dashed against a roadside tree as a result of which three occupants of the bus including driver and the deceased were killed. A number of other persons sustained injuries and removed to hospital. The deceased was an army officer aged about 34 years and was getting a salary of Rs. 5865/- per month. The claim was contested by opposite party-appellant by filing written statement and took the defence that the amount of compensation is excessive and exorbitant that the liability of the Insurance company is limited. The Claims Tribunal after hearing the parties disposed of the claim case by the impugned judgment. The Claims Tribunal held that the accident was caused due to rash and negligent driving of the bus. The Claims Tribunal assessed the compensation by taking into consideration various factors and came to the conclusion that the claimants are entitled to compensation amounting to Rs. 13,16,755/-.

2. Mr. D.N Chaterjee, the learned counsel for the appellant assailed the impugned judgment and award as being illegal and contrary to the evidence and fact on record.

3. Learned counsel firstly submitted that the person driving the vehicle had no valid driving licence and, therefore, Insurance company cannot be held liable for payment of compensation. Learned counsel secondly submitted that the amount of compensation awarded by the Tribunal is highly excessive and exorbitant. The Claims Tribunal has not correctly adopted the settled principle of law while assessing the quantum of compensation. According to the learned counsel the grant of compensation for mental shock and agony is erroneous in law. Learned counsel submitted that in no case the amount of compensation should have been more than Rs. 5 to 6 lacs. In this connection, learned counsel relied upon a decision of Sarla Dixit v. Balwant Yadav reported in 1996 ACJ (1) 581 (SC). Mr. Chaterjee then drew my attention towards a petition filed on 31.1.92 under Order 41 Rule 27 CPC on which this court after hearing the parties on that application on 22.10.92 ordered that the said petition shall be considered at the time of hearing. In the said petition appellant prayed for acceptance of photo copy of the driving licence and claim form as additional evidence. According to the appellant the vehicle was being driven on the date of the accident by Upendra Kumar Singh who also died in the accident. The said Upendra Kumar Singh was authorised to drive medium goods vehicle and the licence was valid upto 7.10.89 According to the learned counsel, therefore, the driving licence of the driver who was driving the vehicle had already expired and the driver was having no driving licence on the date of the accident. In that view of the matter the Insurance Company cannot be saddled with the liability for payment of compensation.

4. On the other hand, Mr. S. Srivastava, the learned counsel for the respondents-claimants not only supported the judgment and award passed by the Claims Tribuanl but also pressed the cross-objection filed by the Claimant-respondents for enhancement of compensation. According to the learned counsel the amount of compensation is much low inasmuch as the claimants claimed a sum of Rs. 45 lacs by way of compensation but a very low sum has been awarded by the Claims Tribunal. According to the learned counsel if the deceased would have been alive, his income would be enhanced upto the extent of Rs. 9,000/- and in that view Rs. 14 lacs would have been reasonable compensation.

5. At this juncture, it is worth to mention here that on 12.1.98 when this appeal was listed for hearing second application under Order 41 Rule 27 CPC was filed by the appellant-Insurance company for accepting the copy of one page of the insurance certificate as an additional evidence. However this application was not pressed at the time of hearing of this appeal.

6. First of all, I will take up the first point raised by Mr. Chaterjee learned counsel for the appellant that the person driving the vehicle had no driving licence on the date of accident as the period of licence already expired and therefore, Insurance company has no liability. I do not find any force in the submission of the learned counsel. From perusal of the written statement filed by the Insurance company in the claim case before the court below it does not appear that any specific defence was taken that the person driving the vehicle had no valid driving licence. No evidence to that effect was led by the appellant before the Claims Tribunal. From the petition filed under Order 41 Rule 27 CPC a plea was taken that driving licence of the driver was valid upto 7.10.89 while accident took place on 3.1.90 In support of that a copy of the permanent licence has been filed and annexed as Annexure-A to the said petition. From perusal of Annexure-A, it is evident that by the said licence the driver was authorised to drive the transport vehicles and the licence was valid from 8.10.86 to 7.10.89 There is endorsement of renewal of the licence made by the District Transport officer, Hazaribagh whereby the licence was renewed upto July, 1992. The defence sought to be taken by the appellant by relying on driving licence would not, in my opinion, improve the case of the appellant. It is not the case of the appellant that the person who was driving the vehicle had no valid driving licence at any point of time or the said person was not authorised to drive the vehicle. Admittedly, the driver who was driving vehicle on the date of accident was holding a valid driving licence duly granted by licensing authority in 1986 and the licence was valid upto 7.10.89 The driver was, therefore, authorised to drive transport vehicles and he was a licensed driver. Although there is an endorsement of renewal of the licence also as appearing in the licence but even assuming that there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licensed driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because of expiry of the period of licence and omission of the driver to get the licence renewed it cannot be said at any stretch of imagination that there is breach of condition of policy for which Insurance company can be exonerated from the liability. As stated above, the driver was authorised to drive the transport vehicles and the vehicle was entrusted by the insured to the licensed driver and therefore, in my considered opinion, this plea of the Insurance company to absolve itself from the liability cannot be sustained in law.

7. The second point raised by Mr. Chaterjee is with regard to the quantum of compensation. According to the learned counsel the quantum of compensation awarded by the Claims Tribunal is highly excessive and exorbitant. On the question of quantum of compensation, Claimants examined witness. AW 1 the father of the deceased who stated that his son used to pay income tax Rs. 494/- per year. The witness also proved salary certificate etc. to show that the deceased was drawing salary of Rs. 5865/- per month. The Claims Tribunal, however, taking into consideration the monthly salary of the deceased at Rs. 5865/- took the monthly dependency at Rs. 3910/-. By applying the multiplier theory and taking 24 years of purchase the Tribunal assessed the compensation at Rs. 11,26,080/-. The Tribunal further awarded Rs. 50,000/- for suffering mental pain and agony and awarded further sum of Rs. 1,66,755/- being the interest from the date of filing of the application to the date of judgment. In this way, the Tribunal awarded a sum of Rs. 13,16,755/-. So far the amount of compensation of Rs. 11,26,080/- is concerned. I am of the opinion that the Tribunal has not correctly applied multiplier theory in assessing the compensation. The Claims Tribunal has taken 24 years of purchase on the ground that the deceased would have served another 24 years in army service. This is not a correct approach of law inasmuch as the remaining period of service cannot be taken as number of years of purchase while applying multiplier theory. In my opinion the Claims Tribunal ought to have taken a maximum 18 years of purchase and by applying the same the amount of compensation should have been Rs. 8,44,560/- (i.e 39.10.00 ×12 18 = 8,44,569/-). In opinion round figure, 8,50,000/- would be the reasonable composition on the basis of multiplier theory. So far compensation awarded by the Tribunal on other heads is concerned, I do not find any reason to interfere with the same. The total compensation, therefore, payable to the claimants should be Rs. 8,50,000/- + Rs. 50,000/- + Rs. 1,66,755/- (which is amount of interest) i.e total Rs. 10,66,755/-. The decision upon which the appellant put heavy reliance (1996 ACJ 581 SC) does not help the appellant for the reason that in that case the deceased was a Captain in the Army and was drawing a salary of Rs. 1543/- whereas in the instant case admittedly the deceased was drawing a salary of Rs. 5865/-. So far amount of interest awarded by the Tribunal is concerned, it appears to me that the same is not reasonable rather vague, in one place, the Tribunal came to the conclusion that the claimants would be entitled to get compensation together with interest at the rate of 12% but in the operative portion of the judgment the rate of interest has been shown as 18%. In any case, 18% interest would be excessive. It appears that the Tribunal already awarded interest at the rate of 12% from the date of institution of the claim case till the date of the judgment. Accordingly, I hold that the claimant-respondents would be entitled to further interest at the rate of 12% on the actual amount of compensation of Rs. 9 lacs from the date of judgment till the date of payment.

8. In the result, this appeal is allowed in part and the judgment and award of the Claims Tribunal is modified accordingly.

9. Consequently, cross-objection filed by the claimant-respondents is dismissed.