Purshottam Gupta vs Mus. Mahjbit Rahman and Others

G. Minhajuddin, J.—This appeal has been filed by the appellant/owner u/s 173 of the Motor Vehicles Act, 1988 against the award dated 4th August, 2000 passed by Motor Accident Claims Tribunal, Bilaspur (in short "the Tribunal"), in Claim Case No. 98/97, whereby and where under the respondent No. 7/insurance company has been exonerated and the appellant/owner has been fastened with the liability to pay compensation amount to respondents No. 1 to 5/claimants, jointly and severally, along with respondent No. 6/driver. Brief facts of the case, as per averments made in the claim petition, are that on 16.05.1997 Shoib Rehman, on the request of his friend i.e. the appellant herein, was going to Darjeeling by vehicle bearing registration No. MP-18-B/1149. However, on account of rash and negligent driving by respondent No. 6/driver, the vehicle dashed against a stationary bus, as a result of which, the vehicle turned turtle and Shoib Rehman sustained grievous injuries and succumbed to the same. Report of the accident was lodged at Police Station-Koda, Distt. Katihar (Bihar), whereupon after investigation, a criminal case was filed against respondent No. 6/driver before the competent Court.

At the time of accident, the deceased was a healthy man of 43 years. He was working as Chief Sanitary Inspector in SECL, Budhar Central Hospital and was drawing a salary of Rs. 11,192.22 per month. He was the only earning member of his family. Therefore, with the aforesaid averments, the claimants, who are widow, children and parents of the deceased, being his legal heirs/dependents, filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs. 35,74,431/- under various heads against the death of Shoib Rehman.

However, learned claims Tribunal, after hearing counsel for the parties and after close scrutiny of the evidence, by the impugned award granted a total compensation of Rs. 20,20,000/- in favour of the claimants, fastening the liability upon the appellant/owner, jointly and severally, along with respondent No. 5/ driver.

Heard learned counsel for the parties, perused the LCR as also the impugned award.

Learned counsel for the appellant/owner has contended that the burden to prove that there was breach of terms and conditions of the insurance policy was on respondent No. 7/insurance company and the same has not been discharged by it. He further contends that respondent No. 6/driver Manoj Kacher was, at the relevant point of time, possessing a valid and effective driving licence to drive LMV and the vehicle in question was, undoubtedly, a Mahendra Commander jeep, which comes within the ambit and purview of LMV under the Act, 1988. It has further been contended that despite there being no evidence on the point that at the time of accident, the vehicle in question was being plied as a taxi for hire, the claims Tribunal has committed a manifest error of law in holding that the vehicle was being plied as a taxi in breach of terms and conditions of the insurance policy, merely on the basis of surmises and conjectures.

Learned counsel has also contended that assessment of the compensation has been made exorbitantly on the higher side, which cannot be termed to be just and proper and deserves to be suitably reduced.

On the other hand, learned counsel for respondent No. 6 has supported the arguments advanced on behalf of the appellant/owner. Whereas learned counsel for respondents No. 1 to 5/claimants has contended that respondent No. 7/ insurance company has been wrongly exonerated.

Learned counsel for the parties, in addition to oral arguments, have also submitted case laws in support of their contentions.

The questions to be decided in this appeal is -

i. Whether on the date of accident i.e. 16.05.1997, the vehicle bearing registration No. MP-18-B/1149, which was owned by the appellant, was being plied as a taxi for hire in breach of terms and conditions of the insurance policy?

ii. Whether on the date of accident i.e. 16.05.1997, respondent No. 6/ driver was not possessing a valid and effective driving licence to drive a passenger carrying transport vehicle?

iii. Whether the compensation has been assessed on the higher side?

As per version of respondents No. 1 to 5/claimants and the appellant/owner, the appellant/owner and deceased Shoib Rehman were close friends and they were going together in the vehicle in question to Darjiling. As per case of respondent No. 7/insurance company, on the date of accident, the vehicle in question was being plied by the appellant/owner through his driver respondent No. 6 Manoj Kacher as a taxi for hire in breach of terms and conditions of the insurance policy and respondent No. 6/driver was not having a valid and effective driving licence to drive the said vehicle, which was registered as a passenger carrying transport vehicle, as per photocopy of the registration certificate.

It is no doubt true that burden to prove that there has been breach of terms and conditions of the insurance policy, lies on the respondent No. 7/insurance company. It is also true that in case there is collusion between the appellant/ owner and respondent No. 1 to 5/claimants, then there is no possibility of direct evidence to prove breach of terms and conditions of insurance policy and respondent No. 7/insurance company will have to solely rely on the circumstantial evidence.

The principle of proof beyond the shadow of reasonable doubt applies only in criminal cases, whereas civil cases are to be decided on the principle of preponderance of probabilities.

Widow of the deceased Smt. Mahjabin Rahman examined herself as AW-2 and according to her statement, her husband deceased Mohd. Shoib Rehman, who was working as Chief Sanitary Inspector in Central Hospital of SECL at Budhar, Distt. Shahdol, was a close friend of the appellant/owner and on account of which, she and her husband along with family members of the appellant/owner were going in the vehicle in question, which was owned by the appellant, on a trip to Darjiling. It is not in dispute that the accident had occurred near Mahinathpur, Police Station Koda, Distt. Katihar (Bihar) on National Highway No. 31 and report of the accident, in which Mohd. Shoib Rahman died, was lodged by local watchman namely Ramdev Paswan.

In support of the claim petition filed u/s 166 of the Act, 1988, widow of the deceased namely Smt. Mahjabin Rahman has examined herself as AW-2 and Senior Clerk of Central Hospital SECL, Budhar, Distt. Shahdol, namely Neerapad Majila as AW-1. In addition to this, certified photocopies of the documents along with the charge sheet u/s 173(2) of Cr.P.C. have been filed, which have been marked as Ex. A/1 to A/7. Ex. A/1 is the pay-slip of the deceased of April, 1997; Ex. A/2 is salary particulars of the deceased for April, 1997, Ex. A/3 is particulars of salary of deceased for May, 1997, Ex. A/4 is salary particulars of the deceased for April, 1997, Ex. A/5 is certified copy of the postmortem report, Ex. A/6 is certified photocopy of the FIR and Ex. A/7 is the final report. The documents relating to salary and date of birth of the deceased have also been filed as Ex. A/8 and A/9.

The appellant/owner has examined himself as NAW-1 and has filed documents i.e. insurance policy (Ex. NA-1), certified photocopy of driving licence of respondent No. 6/driver (Ex. NA-2), certificate issued by RTO (Ex. NA-3) and photocopy of the certificate of registration.

Widow of the deceased namely Smt. Mahjabin Rahman (AW-2) and the appellant/owner Purushottam Gupta (NAW-1) have stated that the deceased along with his wife (AW-2) and the appellant/owner along with his wife and two children were going on a trip to Darjiling in the vehicle in question, which was being driven by respondent No. 6/driver Manoj Kacher. This is not in dispute that the accident had occurred on National Highway No. 31, near Mahinathpur, in the State of Bihar on 16.05.1997 at about 9.30 am when respondent No. 6/driver had dashed the vehicle against a stationary bus, which was standing by the side of the road due to mechanical break down. From the statement of Smt. Mahjabin Rahman (AW-2), it is clear that report of the accident was lodged by a local watchman namely Ramdev Paswan, on which FIR was registered for the offence under Sections 279, 337 and 304A of the IPC, as after the accident, respondent No. 6/driver Manoj Kacher had run away, as is clear from the statement of Smt. Mahjabin Rahman (AW-2).

From perusal of the certified photocopy of the final report, which has been marked as Ex. A/7, in addition to first informant i.e. watchman Ramdev Paswan; Mujib Rahman, Noushad Rahman, Shahina, d/o deceased Mohd. Shoib Rah-man, Naved Hussain, Dr. V.K. Singh, Dr. K.K. Sahu, widow of the deceased Smt. Mahjabin Rahman, Bharosingh, Mahesh Prasad Singh, Pradeep Kumar, Rajendra Singh and Ram have been shown as witnesses in the criminal case, which was initiated on the basis of charge sheet filed against respondent No. 6/ driver Manoj Kacher. Among the above mentioned witnesses, Mujib Rahman, Noushad Rahman, Shahina, Naved Hussain, have been shown to be the residents of Kalabalua, Police Station Raniganj, Distt. Araria (Bihar). The appellant/owner Purushottam Gupta (NAW-i) as well as Smt. Mahjabin Rahman (AW-2), although have stated that at the time of accident, the appellant/owner as well as his wife and two small children were also in the vehicle in question, but name of none of them finds place in the list of witnesses.

From the statements of eyewitness Smt. Mahjabin Rahman (AW-2) and the appellant/owner Purushottam Gupta (NAW-2), it is clear that after collision with the stationary bus, the vehicle in question had turned turtle thrice, on account of which deceased Shoib Rahman sustained grievous injuries and succumbed to the same and all the other occupants also received injuries. Although the appellant/owner has stated that he and his family members had also sustained minor injuries, but the same has neither been corroborated by any documentary evidence on record, nor presence of any of the family members of the appellant/owner is born out from the documents available on record. Had the appellant/owner and his family members been in the vehicle in question at the time of accident, it is not possible that they could have escaped unhurt, particularly looking to the intensity of the impact and the fact that the vehicle had turned turtle thrice. Moreover, the conduct of the appellant/owner speaks volumes against him because had he been in the vehicle at the time of accident, then looking to the fact that respondent No. 6/driver had run away after the accident, the appellant/owner would have been the first person to lodge FIR in respect of the accident, which had not been done.

Thus, in view of the above mentioned facts, it stands proved beyond doubt that at the time of accident, neither the appellant/owner, nor his wife or two children, were occupants of the vehicle in question. From the statement of Smt. Mahjabit Rahman (AW-2) and the appellant/owner Purushottam Gupta (NAW-1), it is clear that the deceased along with his wife and other relatives, who were his close acquaintance, were going by the vehicle in question on a 10 days trip to Darjiling. It is beyond contemplation that any person would spare his vehicle to another, howsoever close he may be to him, for a period of 10 days, that too, without charging anything from him. The appellant/owner has also stated that all the expenses of Darjiling trip were to be borne by him, which cannot be believed.

Therefore, in the view of the above facts and circumstances and on the basis of preponderance of probabilities, it stands established that the vehicle in question was give on hire by the appellant/owner to the deceased, who was going along with his wife and relatives or close acquaintance on a 10 days trip to Darjiling and the story of the appellant/owner accompanying the deceased was deliberately introduced only to show that the vehicle was not give on hire, but the deceased being a close friend of the appellant/owner, that the deceased along with hi family members and the appellant/owner with his family was going on a trip to Darjiling free of cost. Thus, it stands proved that at the time of accident, the vehicle in question was being plied by the appellant/owner through his driver/respondent No. 6 Manoj Kacher in breach of terms and conditions of the insurance policy, by giving the vehicle on hire to the deceased.

So far as respondent No. 6/driver Manoj Kacher not having a valid and effective driving licence on the date of accident to drive a passenger carrying transport vehicle is concerned, from perusal of photocopy of the certificate of registration, which has been filed by the appellant/owner, although not exhibited, and Rule 48 of the Central Motor Vehicle Rules, 1989 as well as Form 23, it is found that the additional particulars, which are required in the case of a transport vehicle in the certificate of registration, are not there in the photocopy of the certificate of registration available on record and the sitting capacity (SC) has been shown as 9 + 1. As per case of the appellant/owner, the vehicle in question was Mahendra & Mahendra Commander jeep and was registered as private car and from perusal of the licence of respondent No. 6/driver Manoj Kacher, it is found that he was having a licence to drive LMV. As such, there is no evidence on record, on the basis of which it can be said to have been established that the vehicle in question was a public service vehicle and the driver Manoj Kacher was not having a valid and effective licence to drive the same.

In addition to liability, learned counsel for the appellant/owner has also challenged the quantum. He has submitted that the compensation has been assessed on the higher side without properly appreciating the material available on record and therefore, the same deserves to be reduced suitably.

It is not in dispute that at the time of accident, the deceased was 43 years of age and being Chief Sanitary Inspector in SECL, Budhar Central Hospital, was drawing a salary of Rs. 11,192.22 per month. As per laid down by the Hon''ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 30% promotional prospects will have to be taken into consideration. Thus, after taking 30% promotional prospects in account, the monthly income comes to Rs. 14,550/-. Since the number of dependents, in the instant case, are 5, therefore, after deducting 1/4th towards personal and living expenses of the deceased, the monthly dependency come to Rs. 10,913/- and the annual dependency comes to Rs. 1,30,956/-. As per law laid down in Sarla Verma (supra), multiplier of 14 will be applicable in the instant case. Thus, after applying multiplier of 14, the total loss of dependency comes to Rs. 18,33,384/-. In addition to this, respondent No. 1/claimant shall be entitled to a sum of Rs. 10,000/- towards loss of consortium. The claimants shall also be entitled to a further sum of Rs. 5,000/- towards burial expenses and Rs. 10,000/- towards loss of estate. Thus, after adding this amount of Rs. 25,000/-, the total compensation comes to Rs. 18,58,384/-, which respondent No. 1 to 5/claimants shall be entitled to receive from the appellant/owner, jointly and severally, along with respondent No. 6/driver, with interest @6% per annum from the date of filing of the claim petition till its payment is made. However the Tribunal has awarded a total amount of Rs. 20,20,000/- with interest @12% p.a., which is definitely on the higher side and deserves to be reduced accordingly.

In the result, the appeal is allowed in part. While maintaining liability of the appellant/owner to pay compensation to the claimants, the impugned award is modified to the extent that respondents No. 1 to 5/claimants shall be entitled to receive a sum of Rs. 18,58,384/- from the appellant/owner, jointly and severally, along with respondent No. 6/driver, with interest @6% per annum from the date of filing of the claim petition till its payment is made. The appellant/owner shall be entitled to recover the excess amount, if already paid to the claimants, from the claimants. No order as to costs.