MANVEER & ANR vs ANITA SADH & ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 25th January, 2024 Judgment pronounced on : 19th March, 2024 + MAC. APP 1121/2018 and CM APPL. 52733/2018 MANVEER & ANR. ….. Appellants Through: Mr. Aditya Vikram and Mr. Ayushman Sharma, Advs. versus ANITA SADH & ORS. ….. Respondent Through: Mr. Mohinder Malhotra, Adv. for R-1 to R-4 Ms. Hetu Arora Sethi, Adv. for R-5/NIC. CORAM: HON’BLE MR. JUSTICE DHARMESH SHARMA J U D G M E N T
1. This present appeal has been preferred on behalf of the appellants, who are the driver and purchaser/owner of the offending vehicle, under Section 1731 of the Motor Vehicles Act, 19882 assailing the impugned judgment-cum-award dated 26.10.2018 passed by the learned Presiding Officer, Motor Accident Claims Tribunal,
1 173. Appeals. – (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court, unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2)No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than [one lakh] rupees. 2 MV Act
Karkardooma Courts, Delhi3 in MACT No. 138/2016 titled as Smt. Anita Sadh and Ors. v. Manveer and Ors., whereby the claim petition of the claimants/respondents No.1 to 4 herein was allowed.
3 Tribunal
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the claimants/respondents No.1 to 4, who are the widow and children of the deceased Sh. Rajpal Sadh, that the deceased aged 52 years, died in a motor vehicle accident on 02.01.2015, Kanti Nagar traffic light, Bihari Colony Chowk, Krishna Nagar, Delhi, when he was traveling on the left rear side in Maruti Ritz bearing registration No. DL-2C-AL-6550, driven by his brother Vinay Singh and was hit by the offending vehicle (motor cab-Tata Sumo) bearing registration No. HR-38S-8827, driven in a rash and negligent manner by the Appellant No. 1 herein, that had collided with the Maruti Ritz on the left rear door side.
3. The claimants initiated an accident claim case under Section 166 read with Section 140 of the M.V. Act, seeking monetary compensation of Rs. 60,00,000/-, in light of the Detailed Accident Report submitted by the Investigating Officer. Accordingly, an FIR bearing No.01/2015 under sections 279/304A of the Indian Penal Code, 1860, was lodged against the driver, registered owner, insurer and the owner-in possession of the offending vehicle.
PROCEEDINGS BEFORE THE TRIBUNAL AND IMPUGNED JUDGEMENT-CUM-AWARD:
4. During the course of proceedings before the learned Tribunal, appellant No. 1/respondent No.1 filed his written statement, denying
the accident and the involvement of the offending vehicle and claimed false implication. The respondent No.6 herein (registered owner of the offending vehicle), in his written statement, submitted that M/s Magma Finance Corporation had financed the offending vehicle and pleaded that the said finance company repossessed the offending vehicle, as he had committed defaults in paying the loan instalments. The contention of the respondent no. 6 was that the offending vehicle was transferred to someone else and that the said finance company is responsible for the use of the offending vehicle.
5. The appellant no.2/respondent No.4 (buyer-cum-owner), in his written statement, contended that the offending vehicle did not cause the accident and that it was not in a running condition. The appellant No.2 claimed that the offending vehicle was being driven by one Satvir, and when he was waiting for the green light, one person requested Satvir to take the deceased to the hospital and on his expressing some difficulties to do so, those people abused Satvir.
6. Based on the pleadings of the parties, following issues were framed by the learned on 22.12.2015: –
(i) Whether the deceased suffered fatal injuries in a road accident on 02.01.2015 involving vehicle bearing registration No. HR-38S 8227 driven by the respondent No. 1 in a rash negligent manner?(OPP) (ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP) (iii) Relief.
7. The appellant No.2 was examined by the learned Tribunal as R-4/W-1 and he deposed that he had purchased the offending vehicle
in a public auction on 25.06.2014 vide Agreement exhibited as Ex. R-4/W-1A.
8. The learned Tribunal decided the issue No.1 in favour of the claimants and against the appellants based on the examination of Vinay Singh (PW-2), FIR and the MLC of the deceased. The relevant portion of the judgment-cum-award is reproduced below:
20. The case of the respondent No, 4 was that one Satvir was driving the car. However, he has not impleaded Satvir as one of the respondents. Moreover, the respondent No. 1, in his written statement, has not pleaded that he was accompanied by one Satvir and the said Satvir was driving the vehicle. Such plea was introduced after impleadment of the respondent No. 4. The case of the respondent No. 4 is that one Satvir was driving the offending vehicle was an afterthought. The respondent No. 1 did not appear in the witness box to depose that the said Satvir was driving the offending vehicle. The respondent No. 1 was arrested and charge-sheeted by the police but no complaint till date made by him against his false implication. 21. From uncontroverted evidence of PW-2 Vinay Singh corroborated by contemporary documents, it is proved that the respondent No. 1 was driving the offending vehicle in high speed and while driving so, it had hit left side of the car in which the deceased was traveling with considerable force. The respondent No. 1 neither stated nor deposed as to why he could not avoid the accident. The respondent No. 3/ insurer has not examined the respondent No. 1 to elicit anything to the contrary. Mechanical Inspection Reports (MIR) of the offending vehicle and the car would reveal extensive damage due to the accident. 22. According to MLC, the deceased was admitted in Shri Ram Singh Hospital &Heart Institute on 02(01.2015 at 5.45 a.m. as a case of road traffic accident (RTA). Post-mortem report would show that the deceased died due to ‘hemorrhage and shock consequent to blunt force impact’. 23. It is, therefore, proved that the respondent No. 1 was driving the offending vehicle in rash and negligent manner and while driving so, he had caused fatal injuries to the deceased. 24. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
9. Further, issue No.2 was decided in favour of the claimants and a compensation of Rs. 22,70,000/- was awarded to them with interest. The relevant portion of the judgment-cum-award is reproduced below:
ASSESSMENT OF INCOME OF THE DECEASED 26. First step towards computation of loss of dependency is the ascertainment of income the deceased. 27. PW-1 Anita Sadh, in her affidavit Ex.PW1/A, deposed that her husband was doing business of ‘dying jeans clothes’. She relied on income tax returns of the deceased for the assessment years 2012-13 and 2013-14 Ex.PW1/1 (colly). The petitioners examined PW-3 Jogender Singh, Tax Assistant, Income Tax Office, Ward 56(2), New Delhi. He proved income tax returns of the deceased for the assessment year 2012-13 EX.PW3/2 and 2013-14 Ex.PW3/1. R1W1 Sunder, Office Superintendent, Income Tax Office, Vikas Bhawan also proved income tax returns of the deceased for the assessment years 2013-14 Mark ‘A’, 2014-15 Mark B” and 2015-16 Mark C”. 28. Income tax return for the Assessment year 2014-15 Mark B” and 2015-16 Mark C” were filed on 31.03.2016 and therefore, they cannot be considered as benchmark for assessment of income of the deceased. 29. Income tax return for the assessment year 2013-14 EX.PW3/1 was filed on 15.04.2014. It can be considered as benchmark for assessment of income of the deceased. 30. Accordingly, annual income of the deceased is computed as Rs. 2,70,051/- after deducting income tax liability of Rs. 5,885/- from the gross income of Rs. 2,75,936/- as mentioned in income tax return for the assessment year 2013-14 EX.PW3/1. DEDUCTION TOWARDS PERSONAL LIVING EXPENSES: 31. The deceased was survived by his wife and three children. It may be noted that the petitioner No. 4/Smt. Rohini was already married at the time of death of the deceased. PW-1 Smt. Anita Sadh stated that her daughter Rohini was married 5- 6 years back. Accordingly, she cannot be considered as dependent upon the deceased. As such, the deceased was survived by three dependents. Therefore, one-third of his income is deducted towards his personal living expenses. APPLICATION OF MULTIPLIER:
32. The deceased was 52 years old. His date of birth is mentioned as 01.03.1963 in income tax return Ex.PW3/l. Therefore, multiplier of 11 as applicable to age group between 51 to 55 years would apply FUTURE PROSPECTS: 33. The deceased was self-employed. He was between 50 to 60 years. Following the ruling of a Constitution Bench of Supreme Court delivered on 31.10.2017 in SLP(C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors., there will be addition of income to the extent of 10%. LOSS OF DEPENDENCY: 34. Applying the multiplier of 11 after making deduction to the extent of one-third from the income of the deceased and addition of 10% of future prospects, the loss of dependency is computed as (2,70,051 x 2 / 3 x 110 / 100 x 11) = Rs. 21,78,411.4/- (rounded of) = Rs. 22,00,000/-. NON-PECUNIARY DAMAGES: 35. As per dispensation in Pranay Sethi (supra), Rs. 40,000/- towards loss of consortium and Rs. 15,000/- each on account of loss of estate and funeral expenses are added. 36. The compensation awarded to the petitioners is computed, as under:
Sl. No.
Head of compensation
Amount
1.
Loss of dependency
Rs. 22,00,000/-
2.
Non-pecuniary (in view of Pranay Sethi(supra)
Rs. 70,000/-
Total
Rs. 22,70,000/-
10. The learned Tribunal fastened the liability of the compensation upon the Insurance Company and granted recovery rights against the appellants. The relevant portion of the judgment-cum-award is reproduced below:
37. The respondent No. 3 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the driving license of the respondent No. 1 was not valid for driving light motor vehicle (non-transport). 38. The respondent No. 1 was holding driving license DL No. UP82/2014/0006434 issued on 18.07.2014 having validity till 17.07.2034 for driving motorcycle with gear (MCWG) and light motor vehicle. The offending vehicle is a motor cab. In view of judgment in Mukund Dewangan us. Oriental Insurance Company Limited, 2017 (7) SCALE. 731 that the driving license was valid for driving the offending vehicle. 39. The respondent No. 3 / insurer further pleaded breach of terms and conditions of insurance policy on the ground that the offending vehicle was used for commercial purpose. It examined R3W1 B.S. Yadav, Assistant, Insurance Co. He deposed that the offending vehicle was being used for commercial purposes. It examined R1W2 Naseeb Singh, Sub-Inspector (Transport), RTA, Faridabad, Haryana. He proved permit of the offending vehicle Ex.RlW2/A. He proved that the offending vehicle was holding permit for taxi for the period from 16.08.2014 to 15.08.2015. Insurance policy Ex.R3Wl/2 would show that the offending vehicle was insured as ‘private car’ for the period from 30.06.2014 to 29.06.2015. The respondent No. 4 admitted that he got the offending vehicle insured with the respondent No. 3 for the period from 30.06.2014 to 29.06.2015. He had purchased the offending vehicle on 25.06.2014 vide agreement Ex.R4Wl/A and cash receipt Ex.R4Wl/B. He. admitted that he had authorization to ply the offending vehicle in Delhi. It is, therefore, evident that the respondent No. 4 had purchased the offending vehicle 25.06.2014 and thereafter, he got it insured for the period from 30.06.2014 to 29.06.2015. It is relevant to note that he obtained permit for the offending vehicle for the period from 16.08.2014 to 15.08.2015. 40. It is proved that the offending vehicle was being used as a taxi whereas it was insured as a ‘private vehicle’. It amounted to breach of main purpose and violation of fundamental terms and conditions of insurance policy. 41. However, the insurance policy was valid and operative on the date of the accident. Breach of terms and conditions of insurance policy cannot defeat rights of the third party. The insurance company shall, at the first instance, pay the compensation to the petitioners. The respondent No. 3/insurer is granted recovery rights against the respondent No. 1 and 4.
GROUNDS OF APPEAL:
11. The appellants have assailed the impugned judgement-cum-award on the ground that the learned Tribunal awarded an exorbitant amount despite evidence suggesting contributory negligence attributable to rash driving by Vinay Singh of the Maruti Ritz.
12. The appellants have contended that the learned Tribunal should have considered fastening the liability to pay compensation upon the Respondent No. 5/Insurance Company agitating that they collected premium which was payable on commercial vehicle, but erroneously labelled the offending vehicle as private in the policy. The appellants state that they shared their previous policy with the agent of the insurance company, and it was the agent”s responsibility to accurately record the vehicle”s classification in the policy.
13. The appellants assert that despite the accident, the offending vehicle was insured with the Insurance Company on 30.06.2015, wherein it was listed as Tata Sumo Gold (Taxi), with respondent No.6 as the insured owner. The appellants submit that since the offending vehicle was being used as a taxi for commercial purposes, it did not contravene any conditions of the insurance policy.
ANALYSIS & DECISION:
14. I have given my thoughtful consideration to the submissions advanced by learned counsels for the rival parties at the Bar and have perused the relevant record of the case. At the outset, learned counsel for the appellants conceded at the Bar that the appellants are not raising any objections to the quantum of compensation as such and
their main grievance is the grant of recovery rights to respondent No.5/National Insurance Company Ltd. by the learned Tribunal.
15. It would be sufficed to state that even otherwise, no legal infirmity or perversity has been pointed out by the learned counsel for the appellants with regard to decision on issue No.1 and the award of quantum of compensation by the learned Tribunal.
16. A meticulous perusal of the record would show that the offending vehicle i.e. TATA Sumo Gold was insured with Magma HDI General Insurance Company Ltd. vide cover note dated 21.06.2013 in the name of Amit Kumar, C/o Mahavir Singh i.e. respondent No.6 in the present appeal. The vehicle was ticked marked as commercial vehicle on the cover note, which was valid for the period 21.06.2013 to 20.06.2014. It is also pertinent to mention that the registration certificate of the offending vehicle, i.e., TATA Sumo dated 30.09.2013 issued by the Transport Department, Government of Haryana, indicates that it was registered as motor cab/car taxi, saloon type and having sitting capacity of 09 persons with unladden weight of 1820 kgs.
17. Incidentally, the learned Tribunal examined the appellant No.2, which was arrayed as respondent No.4, i.e., Vijay Dev as R-4/W-1 on 11.12.2017 and it was brought to the fore that he had purchased the offending vehicle in a public auction on 25.06.2014. The vehicle was thereafter insured for the period 30.06.2014 to 29.06.2015 with respondent No.5/National Insurance Company Ltd. as a private car (policy and package) for which total premium of Rs.17,924/- was
charged. The insurance policy of the vehicle is again in the name of Amit Kumar, S/o Sh. Mahavir Singh, and evidently, it was insured as a private vehicle. Apart from the basic premium that was charged i.e. Rs.10,294/-, it also shows that there is stipulated liability to passenger(s) and indicating the number of passengers as 08 for which separate premium of Rs.5,032/- was charged. They were charged separate premium for one employee to the tune of Rs.50/-.
18. Although the policy taken for subsequent years, i.e., 30.06.2015 to 30.06.2016 and 30.06.2016 to 29.06.2017, would show that additional interest premium had been charged towards liability to passenger(s) for 08 passengers, apart from separate workman compensation for one employee. It is further borne out from the documents placed and proven on the record that there was a permit in the name of erstwhile owner/insured, Amit Kumar, issued by the Regional Transport Authority, Faridabad, authorising the use of the offending vehicle for a tourist taxi permit for the period 16.08.2014 to 15.08.2015.
19. Now, what stares on the face of the record is that, as per the registration certificate, the offending vehicle was registered as a motor cab/car taxi. At the time of initial purchase, the vehicle had been insured as a commercial vehicle according to the cover note dated 21.06.2013. Evidently, the insurance premium has been charged by respondent No.5/Insurance Company as a policy package, including for 08 passengers. Since the respondent No.5/Insurance Company has used a standard form contract, their plea that the vehicle was insured
as a private vehicle and not as a commercial vehicle is not legally palatable. At the cost of repetition, the offending vehicle has been insured as a policy package, including coverage for 08 passengers, besides additional liability of the driver for which additional premium was charged.
20. Before parting with this case, there is no gainsaying that the plea of the respondent No.5/Insurance Company, that the driver of the offending vehicle was not possessing a valid driving licence as it was meant for Light Motor Vehicle and there was no specification that it could be used for transport vehicle, cannot be sustained either in view of the decision in Mukund Dewangan v. Oriental Insurance Co. Ltd.4, which was approved in the recent case of Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi5, wherein the Supreme Court held as under:
4 (2017) 14 SCC 663 5 2022 SCC OnLine SC 287
3. The referral order quoted the conclusions drawn in paras 60 to 60.4 in Mukund Dewangan [Mukund Dewangan v. Oriental Insurance Co. Ltd., 60.
60.1. Light motor vehicle as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, unladen weight of which does not exceed 7500 kg and holder of a driving licence to drive class of light motor vehicle as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500
kg or a motor car or tractor or roadroller, the unladen weight of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.
21. In view of the foregoing discussion, this Court has no hesitation in holding that the impugned award dated 26.10.2018 passed by the learned Trial Court, insofar as it has affixed the liability of payment of compensation primarily upon the Insurance Company, but granting the respondent No.5/Insurance Company recovery rights against the appellants cannot be sustained in law. In other words, the impugned award dated 26.102.018 is modified to the effect that the appellants shall stand absolve of any liability to reimburse/refund the amount of compensation that would be eventually paid by the respondent No.5/Insurance Company to the claimants.
22. In aforesaid terms, the appeal is disposed of along with the pending application.
DHARMESH SHARMA, J. MARCH 19, 2024/ck