* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 22nd February, 2012 Pronounced on: 2nd July, 2012 + FAO. 394/1999 BEERWATI @ BEERMATI & ORS. Appellants Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates.
versus HUKAM CHAND & ORS. Respondents Through: Ms. Manjeet Chawla, Advocate for the Respondent No.2 Ms. Manjusha Wadhwa, Advocate for Respondent No.3 Insurance Company.
Ms. Debopama Roy, Advocate for IRDA.
WITH + FAO. 494/1999 THE ORIENTAL INSURANCE CO. LTD. Appellant Through: Ms. Manjusha Wadhwa, Advocate.
Ms. Debopama Roy, Advocate for IRDA.
versus BEERWATI & ORS. Respondents Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates for the Respondents No.1 to 7/Claimants.
Ms. Manjeet Chawla, Advocate for the Respondent No.9 CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. These two Cross-Appeals (FAO No.394/1999 and FAO No.494/1999) arise out of a judgment dated 21.05.1999 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby the Insurer’s plea of limited liability to the extent of `50,000/- was rejected while awarding a compensation of `2,07,000/-.
2. For the sake of convenience, the Appellants in FAO No.394/1999 (who are the legal representatives of deceased Mohinder Singh) shall be referred to as the Claimants and Oriental Insurance Company Ltd.(who is the Appellant in the Cross-Appeal FAO No.494/1999) shall be referred to as the Insurer.
3. A Claim Petition under Section 110A of the Motor Vehicles Act, 1939 (the Act) was preferred by the Claimants alleging that on 14.06.1980 the deceased Mohinder Singh was driving his car No.7497 from Mehrauli to his house in Nangal Devat. At about 8:30 pm, a bus No.DEP 2322 being driven in a rash and negligent manner by its driver Hukam Chand came from the opposite direction and hit the car with a great force due to which the car was dragged to some distance. Mohinder Singh suffered injuries which proved fatal. It was claimed that the deceased was engaged in agriculture. He owned 10 Killas of land and was earning `2,000/- per month. The deceased was survived by a widow, five minor children and aged parents.
4. By the impugned judgment, the Claims Tribunal accepted the deceased’s income to be `2,000/- per month, deducted 1/3rd towards his personal and living expenses, applied a multiplier of ‘12’ to compute the loss of dependency as `1,92,000/-. On adding a sum of `15,000/- towards loss of consortium, an overall compensation of `2,07,000/- was awarded. The Claims Tribunal held that a premium of `426/- was paid as against the basic premium of `84/- applicable for an ‘Act only policy’ and thus the Insurer’s liability was unlimited.
5. The following contentions are raised on behalf of the Appellant:
(i) The future prospects of the deceased were not considered;
(ii) Multiplier of ‘13’ ought to have been adopted instead of ‘12’ selected by the Claims Tribunal;
(iii) 1/3rd deduction towards the personal and living expenses was excessive;
(iv) The Claimants were not to be blamed for delay in the disposal of the case and the award of interest for a period of ten years only, as against the entire period for which the Claim Petition remained pending was unjustified.
6. On the other hand, the grounds raised by the Insurer are that the Claims Tribunal erred in concluding that the Insurer’s liability was unlimited. A sum of `426/- was charged as basic premium and an additional premium of `39/- was required to be paid to make the policy unlimited which was not paid in this case and thus, the liability was limited to `50,000/-.
7. In order to prove the deceased’s income, the Claimants examined Beerwati who testified that the deceased was an agriculturist and he used to give her `2,000/- per month. She testified that her husband died at the age of 40 years. The Claims Tribunal accepted the deceased’s income to be `2,000/- per month to compute the loss of dependency. The said finding is not challenged by the Insurer. The deceased was an agriculturist. As per the averments made in the Petition, he owned 10 acres of land, whereas evidence was adduced to the effect that he had a joint holding of 300 bighas of land. Although, the Claims Tribunal accepted the deceased’s income to be `2,000/- per month which finding, as stated above, has not been challenged by the owner or insurer, the Claims Tribunal, however, did not give any basis for accepting the deceased’s income to be `2,000/- per month. In case of death of an agriculturist, the land possessed by the deceased still remains with the Claimants as his legal heirs. The actual loss to the legal representatives is for the loss of supervisory services or the manual work carried out by the deceased. No evidence was adduced as to what was the value of the services rendered by the deceased. In State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484, the Supreme Court observed as under:
“8 …..The land possessed by the deceased still remains with the claimants as his legal heirs. There is, however, a possibility that the claimants may be required to engage persons to look after the agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of `4500/- per month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about “just compensation” the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life and the matter was pending before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauging the relevant aspects, noted above, the monthly income is fixed at `3000/- per month and after deducting `1000/- for personal expenses, financial contribution so far as the claimants are concerned, is fixed at `2000/- per month ”
8. Although, agriculture income is exempted from the Income Tax, yet a person having income beyond a prescribed limit including income from agriculture is expected to file a Return of Income Tax. During the period 1980-81, an income beyond `10,000/- was taxable. No evidence of filing of Income Tax Return was adduced by the Claimants. In this view of the matter, accepting an income of `24,000/- per annum by the Claims Tribunal was quite liberal. In the circumstances, no further addition towards future prospects is justified.
9. The deceased was survived by five minor children, a widow and a mother. Thus, there were seven dependents. Following Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the deduction towards personal and living expenses has to be confined to 1/5th and the appropriate multiplier at the age of 40 would be ‘15’. The loss of dependency, therefore, comes to `2,88,000/-(`24,000/- x 4/5 x 15).
10. The Claims Tribunal awarded a sum of `15,000/- towards non- pecuniary damages. I would make a provision of `10,000/- towards loss of love and affection and `5,000/- each towards loss of consortium, loss to estate and funeral expenses. The overall compensation thus comes to `3,13,000/-.
11. The Claims Tribunal awarded the interest @ 12% per annum from the date of filing of the Claim Petition for a period of ten years. The Claims Tribunal held that the issues were framed in the case in 1982 but the evidence was completed in the year 1994 in a piecemeal manner and, therefore, the Claimants were entitled to interest only for ten years. The Claims Tribunal was, therefore, justified in granting interest for a period of ten years only upto the date of the decision of the Claim Petition.
12. As far as plea of limited liability is concerned, the Claims Tribunal examined RW2 N.K. Mittal, an employee of Oriental Insurance Co. Ltd. He deposed that bus No.DEP 2322 was insured with the company for the period between 19.11.1979 to 18.11.1980. The original policy of insurance was sent to the insured. By a notice Ex.RW2/1 dated 21.09.1990 the insured (the owner) was asked to produce the original policy. The postal receipt and AD Card were proved as Exs. RW2/2 and RW2/3 respectively. A certificate of posting was proved collectively as Ex.RW2/4. The office copy of the policy was proved as RW2/5 and a certified true copy as Ex.RW2/6. In the cross-examination, the witness deposed that the insurance policy was signed by Mr. P.Gupta who was still working with the Oriental Insurance Co. Ltd. He (RW2) admitted that he neither issued the policy nor prepared the policy. He stated that he himself had not attested the certified copy of the policy Ex.RW2/6. He admitted that he had no personal knowledge about the policy and has deposed only on the basis of the record. He stated that during those days four pages policy used to be issued. He deposed that he had brought only one page of the policy. He admitted that for the ‘Act only policy’, the basic premium of `84/- used to be charged at the time of the accident. He denied the suggestion that the liability of the Insurance Company was unlimited.
13. The Claims Tribunal opined that in the absence of production of an Advocate who issued the notice Ex.RW2/1, the same was not legally proved and the Insurer was not entitled to lead any secondary evidence. RW2’s testimony regarding service of notice Ex.RW2/1 was not challenged in the cross-examination. The office copy of the notice Ex.RW2/1, postal receipt, the AD Card and UPC were duly proved. In my view, this evidence was sufficient to prove the service of the notice requiring the insured to produce the original policy.
14. In C.C.Alavi Haji v. Palapetty Muhammed and Anr., (2007) 6 SCC 555, a three Judge Bench of the Supreme Court dealt with the question of presumption of service when a letter is posted. The relevant portion of the report in C.C.Alavi Haji (supra) is extracted hereunder:-
“12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Evidence Act, 1872 reads as follows:
“114. Court may presume existence of certain facts.—
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The court may presume— (f) that the common course of business has been followed in particular cases;
13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
“27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression „serve‟ or either of the expression
„give‟ or „send‟ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed……”
15. In the circumstances, the Claims Tribunal’s conclusion that the notice (Ex.RW2/1) was not properly proved because of non- production of the advocate who issued the notice was not based on a sound legal principle. The service of notice Ex.RW2/1 in my view is established.
16. It is urged by the learned counsel for the Insurer that a comprehensive policy would not mean a policy with unlimited liability to the third party liability. Even in case of comprehensive insurance policy, the owner has to pay additional premium to make the liability towards third party to be unlimited. The learned counsel for the Insurer relies on the judgments in National Insurance Co. Ltd. v. Jugal Kishore & Ors., (1988) 1 SCC 626 and New India Assurance Co. Ltd. v.
C.M. Jaya & Ors., 2002 (2) SCC 278.
17. It is true that obtaining of a comprehensive policy by itself would not mean that the liability to third party is unlimited. Yet, the Insurance Company is under obligation to prove the break-up of the premium charged and to show that the premium has been charged only towards ‘Act only policy’ in addition to the own damage. The question for determination is whether the insurer has been able to prove that a premium of `84/- was charged towards third party liability. It is urged by the learned counsel for the Insurer that an additional premium of `39/- was required to be paid to make the liability unlimited. No evidence was produced by the Insurer in this regard.
18. The vital question for consideration is whether the Appellant produced secondary evidence within the meaning of Section 63 of the Indian Evidence Act, 1872 (the Evidence Act) so as to rely on the copy of the alleged insurance policy Ex.RW2/5. The secondary evidence has been defined under Section 63 of the Evidence Act, which is extracted hereunder:
“63. Secondary Evidence -
Secondary evidence means and includes:-
(1). Certified copies given under the provisions hereinafter contained;
(2). Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
(3). Copies made from or compared with the original;
(4). Counterparts of documents as against the parties who did not execute them;
(5). Oral accounts of the contents of a document given by some person who has himself seen it.”
19. The alleged office copy of the policy Ex.RW2/5 does not contain any condition with regard to the insurance policy. It simply gives the break up that too is not shown appropriately against each column. Although, `426/- was paid as basic premium and `700/- towards own damage and perhaps `318/- towards 53 passengers carried in the vehicle, it is not clear as to how a sum of `350/- and `16/- was paid. No evidence has been produced that Ex.RW2/5 was prepared from the original by a mechanical process to ensure the correctness of the policy. Similarly, although Ex.RW2/5 was proved as certified copy of the insurance policy, but it is not shown as to from which copy Ex.RW2/6 was prepared. RW2 admitted that he himself had not prepared the certified true copy of the policy. RW2 also admitted that although Ex.RW2/5 was the first page of the office copy of the policy and the other pages were also available, yet for the reasons best known to the Insurer, the complete insurance policy was not produced. Apart from this, RW2 made an important admission. He stated that the policy was issued by Mr. P. Gupta and admitted that the said Mr. P. Gupta was still available and working with the Appellant Insurance Company. The document Ex.RW2/5 being incomplete and not containing the terms of the insurance, it is not admissible as secondary evidence of the insurance policy. Similarly, the alleged certified copy RW2/6 is also not admissible, as it is not known as to from which document the certified copy was prepared. The Appellant Insurance Company was under obligation to produce the complete office copy of the insurance policy so as to make it admissible under Section 63 of the Evidence Act. That having not been done, the insurer’s plea of limited liability to the extent of `50,000/- is liable to be rejected and it shall have to be held that the insurer’s liability was unlimited. I am supported in this view by the report of the Supreme Court in Tejinder Singh Gujral v. Inderjit Singh & Anr., (2007) 1 SCC 508. Relevant para of the report is extracted hereunder:-
“13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. Learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited ”
20. In Chandro Devi & Ors. v. Jit Singh & Ors., 1989 ACJ 41, this court held that in the absence of proof of the insurance policy by the insurance company it shall be presumed that the liability of the insurance company is unlimited. Relevant para of the report says:-
“The insurance company must prove that the policy in question is the „Act only‟ policy. The amount mentioned by the statute is the minimum amount. But the policy can always cover higher risk to third party by taking additional premium. It is obligatory on the part of the insurance company to prove the insurance policy and its terms and conditions. In a number of decisions by this court, it has been held that where the insurance company has to produce the insurance policy or prove the same in accordance with law, then, it shall be presumed that the liability of the insurance company is unlimited. As I have already held that the insurance company has failed to prove the insurance policy in accordance with law, so I hold that the liability of the insurance company is unlimited in the present case.”
21. In view of the forgoing discussion, FAO No.494/1999 filed by the Oriental Insurance Co. Ltd. is devoid of any merit; the same is accordingly dismissed.
22. The enhanced compensation of `1,06,000/- shall carry interest @ 12% per annum for a period of ten years upto the date of the decision of the Claim Petition by the Claims Tribunal i.e. upto 21.05.1999. It shall further carry interest @ 7.5% per annum from 22.05.1999 upto the date of payment.
23. The amount deposited in terms of order dated 25.10.1999(in FAO No.494/1999) shall be released in favour of the Claimants in terms of the order passed by the Claims Tribunal. The enhanced amount of `1,06,000/- along with interest shall enure for the benefit of the First Appellant in FAO No.394/1999. The enhanced amount along with interest, as stated earlier, shall be deposited in her name in UCO Bank, Delhi High Court Branch within six weeks. 50% of the amount so deposited shall be released to her immediately. Rest shall be held in Fixed Deposit for a period of one year and two years in equal proportion.
24. Appeal FAO No.394/1999 filed by the Claimants is allowed in above terms.
25. All pending Applications are disposed of accordingly.
26. The statutory amount of `25,000/-, if deposited, shall be refunded to the Appellant Insurance Company.
JULY 02, 2012 pst (G.P. MITTAL) JUDGE