New India Assurance Co. Ltd. vs Kulvinder Singh and Others

S.K. Gupta, J.—By means of this appeal; the judgment and order dated 13th August, 2009 has been assailed. Such judgment awarded compensation to the tune of Rs. 1,80,000 to the claimant Mr. Kulvinder Singh, son of the deceased Mr. Gurubaksh Singh. The amount was held to be payable with effect from 4th January, 2008 with 7% interest payable uptil making the actual payment. The accident occurred on 11th July, 2007 by the Truck which was being plied by its driver Mr. Kailash Prasad, the respondent No. 3 herein. It is also pertinent to mention that respondent Nos. 2 and 3 have sufficiently been served but none has responded to this Court.

Learned Counsel for the appellant has argued that in the post-mortem report, the age of the deceased has been taken as 65 for applying the multiplier. This contention is not acceptable for the reason that the said report was not filed by the Insurance Company before the Tribunal and the only evidence, which was available before the Court below, was the statement of his son (claimant). So, on this score, the multiplier has rightly been applied.

The next contention of learned Counsel for the appellant is that the driving licence of Mr. Kailash Prasad, respondent No. 3, was found fake as the Tribunal has held while deciding the Issue No. 2, but, even though, the liability has been fastened upon the Insurance Company.

This position has been explained many a times by Hon''ble Apex Court in various judgments. For the sake of convenience, the following two authorities are being mentioned:

National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

Premkumari and Others Vs. Prahlad Dev and Others, .

In the case of Premkumari (supra), it was held in paragraph No. 20 as under:

"20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make inquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii) . The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, ; Sohan Lal Passi Vs. P. Sesh Reddy and others, and New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., cases. We are in full agreement with the views expressed therein and see no reason to take a different view."

On this score, it has not been proved by the Insurance Company that the owner of the vehicle i.e., Ajeet Singh, the respondent No. 2 herein, was well aware about the fakeness of such driving licence. So, in absence of such proof, the liability cannot be fastened upon the owner/driver of the vehicle.

It was further argued that the claimant was the only son of the deceased, who did not have his own family i.e., wife or any dependant son, so, in this eventuality, the Tribunal must have deducted one-half of the amount of the total dependency which the deceased would have incurred on himself. The Court do agree with this contention. So, the total dependency of Rs. 36,000 per annum is reduced to Rs. 18,000 per year, and when it is multiplied by 7, the total loss of dependency comes to Rs. 1,26,000 wherefore the petitioner was entitled. It is made clear that rest of the amounts awarded towards the cremation expenses and loss of affection are left intact by this Court. The appeal is partly allowed by directing that the liability shall remain fastened only as against the Insurance Company but it shall be construed be reduced to Rs. 1,38,000 (One lakh thirty-eight thousand only), instead of Rs. 1,80,000, which will be payable with effect from 4th January, 2008, along with the rate of interest as awarded in the impugned judgment.