Bajaj Allianz General Insurance Company Limited vs Manju Singh Others

This is an application for condonation of delay in preferring the instant appeal beyond the statutory period.

It is stated in the instant application that the delay of 41 days occasioned because of the concurrence and/or approval required to be obtained from different departments.

The immovability in the Government or Government Companies is not unknown. Naturally, the file takes longer time to move from one desk to another and when the concurrence and/or approval of the legal department is also required, the delay in this regard cannot be said to be willful and/or deliberate.

We, therefore, find that the appellant was prevented by sufficient cause in not preferring the instant appeal within the statutory period provided therefor.

The application is, thus, allowed. The delay in preferring the instant appeal is condoned.

The office is directed to formally register the appeal.

By consent of the parties FMAT 504 of 2018 and COT 128 of 2018 are taken up by us.

This appeal is at the instance of the Insurance Company against the judgment and award dated 24th January 2018 by the Motor Accident Claims Tribunal, Paschim Medinipur in M.A.C. Case No. 459 of 2015 whereby and whereunder a compensation to the tune of Rs. 11,00,000/- was directed to be paid to the respective claimants together with an interest at the rate of 7% per annum from the date of filing of the case till its realization. Simultaneously, liberty was also granted to the Insurance Company to recover the said amount from the owner of the offending vehicle as the driver/owner was found to have driven the offending vehicle rashly and negligently, as they failed to prove that the driver was plying with the invalid driving licence.

Indubitably, the victim met with an accident on 6th September 2015 while returning home through the morum portion of National Highway-60 with the offending vehicle coming from Narayangarh side in high speed and later on succumbed to the fatal injuries caused to him. It is not in dispute that a criminal case was registered against the owner/driver of the offending vehicle under Sections 279/304A of the Indian Penal Code and the fate whereof has not been disclosed to us by the respective Counsels.

Be that as it may, a claim petition was filed not only by the widow and the minor children but also by the mother, father and the unmarried sister. It is alleged in the claim petition that the victim was a vegetable seller and used to earn Rs. 7,000/- per month from such avocation. The claimants raised a claim of Rs. 14,00,000/- with interest under Section 166 of the Motor Vehicles Act, 1988.

The Tribunal did not accept the contention of the claimants on the disclosed income and found that a sum of Rs. 6,000/- per month is the reasonable figure, which is expected from any vegetable seller to earn. There is no dispute over the age of the victim, who was 35 years of age at the time of his death.

The challenge to the award is basically founded on the assertion that the driver of the offending vehicle did not possess the valid driving licence and, therefore, the liability of the Insurance Company is excluded and foisted upon the owner/driver. In other words, the Insurance Company says that if the driver of the offending vehicle, which was covered under the insurance policy issued by the Insurance Company, did not possess the valid licence, it contravenes the policy conditions and exonerates the Insurance Company from paying compensation in the event any accident occurs.

Time and again the aforesaid plea is taken by the Insurance Company and ultimately the matter reached to the Supreme Court in case of Ram Chandra Singh vs. Rajaram and others, reported in 2018 ACJ 2703. The identical point was raised by the Insurance Company therein that if the driver was driving the offending vehicle possessing with fake driving licence, the Insurance Company is absolved of its statutory responsibilities/liabilities under the insurance policy. Repelling the aforesaid contention, the Apex Court held:

"Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be take, but that concession by itself was not sufficient to absolve the insurer."

It is, therefore, pertinent to say that mere taking a plea that the driver of the offending vehicle was possessing the invalid or fake licence does not ipso facto absolve the Insurance Company of its primary liability unless it is demonstrated with cogent evidence that the owner of the offending vehicle being conscious and aware that the driver did not possess a valid licence yet allowed him to ply the same.

Admittedly, in the instant case, neither the owner nor the driver appeared and contested the said proceeding. Despite the same, the Tribunal granted liberty to the Insurance Company to recover the amount of compensation so paid to the claimants, which we do not feel to interfere therewith as neither the appellant nor the contesting respondents have any issues thereupon. In the view of the exposition of law enunciated in Ram Chandra Singh (supra), it is a primary duty of the Insurance Company to prove by cogent evidence that the owner of the offending vehicle was aware that the driver had a fake or invalid licence. Since there is no evidence forthcoming in the instant case, we do not find that such plea warrants interference with the impugned award.

However, we appreciate the other points raised by the Insurance Company on the quantum awarded by the Tribunal under the conventional heads. The Tribunal awarded a sum of Rs. 25,000/- towards funeral expenses, Rs. 1,73,000/- as loss of consortium and Rs. 1,00,000/- towards loss of love and affection of children and the parents and another Rs. 1,00,000/- for loss of consortium for the widow.

The aforesaid amount under the conventional heads appear to be contrary to the judgment rendered by the Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in 2017 (16) Supreme Court Cases 680. In the said report, the Constitution Bench took note of all the earlier judgments of the Apex Court rendered on quantum of compensation under conventional heads i.e. loss of estate, loss of consortium and funeral expenses and ultimately held:

"61(viii). Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

In view of the ratio as laid down in the above noted decision the Tribunal erred in awarding an exorbitant amount under the aforesaid conventional heads, which are hereby set aside. The claimants are entitled to a sum of Rs. 70,000/-, the break up whereof is Rs. 15,000/- towards loss of estate, Rs. 40,000/-towards loss of consortium and Rs. 15,000/- towards funeral expenses, instead of Rs. 3,98,000/- as awarded by the Tribunal.

Reverting to the cross-objection filed by the claimants/respondents, we do not find any materials forthcoming from the record that the claimants have been able to prove the income higher than the one, which is accepted by the Tribunal. However, this Court finds substance in the ground taken by the claimants/respondents so far as it relates to the future prospect. In Pranay Sethi and others (supra), the Apex Court held that a self-employed deceased should get a fixed amount on the established income as future prospect depending upon his/her age at the time of death. The relevant excerpts from the said judgment is quoted as under:

"61(iv). In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

Admittedly, the victim was a vegetable seller and was self-employed. We do not find any grounds warranting interference on the established income so determined by the Tribunal at Rs. 6,000/- per month. We, therefore, find that the claimants are also entitled to an additional sum being 40% of the established income on future prospect.

Another plea has been taken in the cross-objection that the Tribunal has wrongly applied the multiplier 13 when, admittedly, the age of the victim was 35 years at the time of his death. The reliance is placed upon the judgment of the Apex Court rendered in case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121 in support of the contention that the multiplier 16 should have been applied. In paragraph 42 of the said judgment, the Apex Court held:

"We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

Undisputedly, the victim was held to be aged about 35 years at the time of his death and, therefore, in view of the judgment rendered in Sarla Verma (Smt) and others (supra), the Tribunal ought to have applied multiplier 16 instead of multiplier 13.

The impugned award is, therefore, modified to the extent that the claimants are entitled to a sum of Rs. 8,64,000/- towards compensation based upon the monthly income of Rs. 6,000/- by applying multiplier 16. In addition to the same, a sum of Rs. 3,45,600/- shall be paid to the claimants on future prospect and further sum of Rs. 70,000/- under the conventional heads i.e. loss of estate, loss of consortium and funeral expenses. The claimants are, therefore, entitled to a sum of Rs. 12,79,600/-, which shall carry the interest at the rate awarded by the Tribunal to be reckoned from the date as indicated therein.

It is open to the Insurance Company to apply before the Registrar General of this Court for release of the statutory amount deposited with it and if such application is made, the Registrar General shall release the said amount within two weeks from the date of the application.

The Insurance Company is directed to pay the compensation in the proportion as indicated in the impugned award within a month from date.

The appeal and the cross-objection both are disposed of.

In view of the disposal of the appeal itself, the connected application being CAN 4902 of 2018 has become infructuous and the same is also disposed of.

There shall, however, be no order as to costs.