IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No. 1716/2017 (MV-D) BETWEEN:
1. SMT. NANDHITHA .N.S W/O. LATE HARISH, AGED ABOUT 31 YEARS.
2. CHIRANJEEVI S/O. LATE HARISH, AGED ABOUT 3 YEARS 3 MONTHS.
SINCE THE APPELLANT NO.2 IS MINOR HENCE REPRESENTED BY HIS MOTHER AS A NATURAL GUARDIAN BY THE APPELLANT NO.1 BOTH ARE R/AT NO.236.
8TH ‘C’ MAIN ROAD, SRINIDHI LAYOUT VIDYARANYAPURA, BENGALURU – 97.
PRESENT ADDRESS:
#768/3A, 3RD MAIN ROAD EAST, P.S. BADAVANE, DAVANAGERE CITY – 577 004. ... APPELLANTS (BY SMT. RADHA Y., ADVOCATE) AND:
1. SUBRAMANYA .P S/O. PERUMAL, NO.30, 1ST SQUARE, MURPHY TOWN, ULSOOR, BENGALURU, R.C. OWNER OF OIL TANKER BEARING REG. NO.KA-03-C-4082. BENGALURU – 560 008.
2. SHRIRAM GENERAL INSURANCE CO. LTD., NO.302, 3RD FLOOR, S & S CORNER BUILDING, NEXT TO KAMATH HOTEL, OPP. TO BOWRING HOSPITAL, BENGALURU – 560 080.
3. HANUMANTHAPPA S/O. LATE ESWARAPPA, AGED ABOUT 63 YEARS, R/AT 236, 8TH ‘C’ MAIN ROAD, VIDYARANYAPURA, BENGALURU – 97.
4. CHINNAMMA W/O. HANUMANTHAPPA, AGED ABOUT 57 YEARS, R/AT SRI VAYUSUTHA, 2ND CROSS, BASAVANAGUDI, SHIVAMOGGA – 577 201. ... RESPONDENTS (BY SRI RAGHU K.B., ADVOCATE FOR R-1;
SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R-2; SRI RAMESHAPPA., ADVOCATE FOR R-3 & R-4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2016 PASSED IN MVC.NO.5469/2013 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellants are the claimants. Being aggrieved by the judgment and award dated 14/10/2016, passed in MVC.No.5469/2013 by the Motor Accident Claims Tribunal and Additional Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH-19) (hereinafter referred to as “the Tribunal” for the sake of convenience), the claimants have preferred this appeal.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. The claimants, being the widow, minor son and parents of deceased H.Harish, who died in a road traffic accident that occurred on 24/07/2013, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (“the Act” for short) claiming compensation of Rs.2.00 crore on account of his death. According to the claimants, on 24/07/2013, at about 6.15 a.m., when Harish was riding his motorcycle bearing No.KA-04-EU-6082 on Outer Ring Road, Nagawara Junction slowly and cautiously observing traffic rules and regulations, at that time, an oil tanker lorry bearing No.KA-03-C-4082 driven by its driver in a rash and negligent manner endangering human life, without following traffic rules and in a high speed dashed against the motorcycle of Harish. As a result, he fell down and sustained fatal injuries and died on the spot. His dead body was shifted to Dr. B.R.Ambedkar Medical College and Hospital, wherein postmortem was conducted and the dead body was handed over to the appellants for performing his last rites. Contending that Harish was hale and healthy and was the only bread earner of the family and that on account of his death, the family was in mental agony, shock and penury, they filed the claim petition seeking compensation on various heads.
5. It was contended that Harish was aged about 33 years. He was working as a Software Engineer at Ero- Space at Bengaluru and earning salary of Rs.90,000/- per month and he used to contribute the entire income to the family. That Harish was sent to USA twice for professional training and he was well trained and he had every chance of getting promoted to higher post and earning good salary and dignity in the society. Banaswadi police had registered a case in Cr.No.80/2013 against the driver of the offending vehicle i.e., oil tanker under Sections 279 and 304-A of the Indian Penal Code, 1860. The claimants submitted that the respondent/owner of the vehicle and the insurer were jointly and severally liable to satisfy the award and pay compensation to them.
6. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared before the Tribunal and filed their separate written statements through their respective counsel.
7. Respondent No.1 denied all the material averments in the claim petition and contended that there was no negligence on the part of the driver of oil tanker bearing No.KA-03-C-4082. Respondent No.1 sought dismissal of the claim petition.
8. Respondent No.2/insurance company appeared through its counsel and filed the written statement denying the averments made in the claim petition by contending that the liability, if any, to satisfy the award under the insurance policy, would be strictly in accordance with the terms and conditions of the policy and that the driver of the oil tanker was not having a valid and effective driving licence to drive the oil tanker. The oil tanker being a heavy goods vehicle is used to carry petroleum products and hence, the driver of such a vehicle is required to have heavy transport vehicle and hazardous goods licence to drive the same, but in the instant case, the driver of the offending vehicle was not having valid licence to drive such type of vehicle. Therefore, there was violation of the terms and conditions of the policy. Hence, the insurance company was not liable to indemnify respondent No.1. Respondent No.2 sought for dismissal of the claim petition.
9. On the basis of the aforesaid averments, the trial Court framed the following issues for its consideration:
(i) Whether the petitioners prove that they are the legal heirs of deceased Sri H. Harish?
(ii) Whether the petitioners further prove that deceased Sri H.Harish succumbed to the injuries in the RTA which occurred on 24/07/2013 at about 6.15 a.m. on outer ring road, near Nagawara Junction, Bengaluru, on account of the rash and actionable negligence on the part of driver of the Oil Tanker bearing Reg.No.KA-03-C-4082?
(iii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
(iv) What award or order?
10. In order to substantiate their case, the claimants examined the widow of the deceased as PW.1 and Suresh Naik, the Human Resource Officer of the Company in which deceased Harish was working as PW.2. The claimants produced twenty-five documents marked as Exs.P-1 to P-25, while the respondents examined five witnesses. RW.1 Subramanya P. is the owner of the vehicle/oil tanker; RW.2 Ashwaq Ahmed is the Regional Transport Officer; RW.3 Anandamurthy is the driver of the oil tanker; RW.4 V.K.Nefanand is the ARTO of Indiranagar and the Legal Manager of the insurance company was examined as RW.5 and got marked fifteen documents as Exs.R-1 to R-15(a).
11. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue No.3 partly in the affirmative and awarded compensation of Rs.55,41,000/- with interest at the rate of 6% per annum from the date of claim petition till realization and directed that the said compensation may be paid by the owner of the offending vehicle and thereby exonerated respondent No.2/insurer by dismissing the claim petition as against the insurer. This was by holding that the driver of the offending vehicle did not possess valid and effective licence to drive the vehicle used for transportation of dangerous or hazardous goods i.e., oil tanker. Being aggrieved by the quantum of compensation awarded and direction issued by the Tribunal to the owner of the vehicle to satisfy the award, exonerating the insurance company, the claimants have preferred this appeal seeking enhancement of compensation and to fasten the liability on the insurer.
12. We have heard Smt.Radha, learned counsel for the appellant/claimants, Sri Raghu K.B., learned counsel for respondent No.1, Sri A.N.Krishna Swamy, learned counsel for respondent No.2/insurer and Sri Rameshappa, learned counsel for respondent Nos.3 and 4/parents of the deceased Harish.
13. We have perused the material on record as well as the original record.
14. Learned counsel for the appellants being the widow and minor son of the deceased Harish, at the outset contended that the Tribunal was not right in fastening the liability to satisfy the award on the owner of the vehicle. She contended that the offending vehicle is, no doubt, a oil tanker, which is a hazardous vehicle; in the instant case, the driver of the vehicle i.e., RW.3 Anandamurthy was wholly negligent in causing the accident. There is no controversy with regard to the negligence, but while fastening the liability, the Tribunal has answered issue No.3 partly in the affirmative by holding that the driver of the offending vehicle did not possess a valid and effective licence for driving a petroleum goods vehicle, which is a hazardous vehicle. She contended that the evidence on record let-in by RW.1/owner of the vehicle and Exs.R-3 and R-4 would clearly prove that the driver of the offending vehicle had eligibility and skill to drive the oil tanker. The Tribunal has not considered the said documents and by ignoring the said documents has concluded that the driver of the offending vehicle did not possess a valid and effective licence to drive the oil tanker in the instant case.
15. Learned counsel for the appellants contended that when the driver of the oil tanker had the requisite licence to drive such a vehicle, merely because there was no endorsement on the said driving licence would not imply that he had no valid and effective driving licence to drive such a vehicle. She submitted that the absence of such an endorsement on the said licence of the driver of the offending vehicle would not prove that he was not having eligibility to drive the oil tanker or the hazardous vehicle. Inspite of the absence of such an endorsement, the driver of the offending vehicle had the eligibility and skill to drive such a vehicle. She contended that the eligibility to drive such a vehicle would arise from two factors: firstly, acquiring a valid and effective driving licence to drive heavy goods vehicle and secondly, by undergoing a refresher training course to drive such a vehicle. In the instant case, RW.3 the driver of the offending vehicle has been examined to prove that he had a valid and effective driving licence as on the date of the accident to drive the heavy goods vehicle and as per Rule 9 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as “the Rules” for the sake of convenience) had undergone the refresher training course and the same is evident from Exs.R-3 and R-4. Merely because there was no endorsement on the driving licence, could not lead to a conclusion that RW.3 had no skill or eligibility to have such a licence. She submitted that the Tribunal was not right in fastening the liability on the owner of the offending vehicle. Alternatively, she submitted that the Tribunal could have also given a direction to the insurance company to pay the compensation to the claimants and recover from the insured, which has also not happened in the instant case. She submitted that the claimants have been adversely affected and have been deprived of compensation on account of the finding arrived at on issue No.3 by the Tribunal. Therefore, the said finding may be reversed, and a direction may be issued to the insurance company to satisfy the award.
16. Learned counsel for the appellants next contended, the quantum of compensation awarded by the Tribunal is too meagre and on the lower side. She submitted that only a sum of Rs.55,41,000/- has been awarded, which is contrary to the oral and documentary evidence on record. Drawing our attention to Ex.P- 24/appointment letter, learned counsel for the appellants contended that in April 2013, the deceased Harish was promoted as a Lead Engineer. His annual salary was enhanced to Rs.11,51,000/-. In addition, he had other perks, but the Tribunal has assessed the net monthly salary only at Rs.25,000/-, which is erroneous. She submitted that based on the evidence on record, this Court may enhance the compensation on the head of loss of dependency by re-assessing the loss caused to the claimants on account of death of Harish. Learned counsel further submitted that having regard to the latest dicta of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi [(2017)16 SCC 680] (Pranay Sethi), 40% of the amount of salary has to be added to the salary while computing compensation towards future prospects of the deceased.
Further, the compensation on the head of loss of consortium, loss of love and affection, loss of estate and funeral expenses may be enhanced.
17. Learned counsel for respondent Nos.3 and 4, who are parents of the deceased Harish, adopted the submissions of learned counsel for the appellants and supported the same. He also contended that the liability must be fastened on the insurance company and the quantum of compensation must be enhanced. He also contended that the appeal filed by the appellants may be allowed.
18. Per contra, learned counsel, Sri Krishna Swamy appearing for respondent No.2/insurance company, vehemently supported the judgment and award of the Tribunal. He drew our attention to the provisions of the Motor Vehicles Act, 1988, particularly Sections 10, 14, and proviso to Section 14 of the Act and Rule 9 of the Rules. He submitted that in the instant case, what is required is, an authorization to drive the hazardous goods vehicle. Such an authorization is given by means of an endorsement made on the driving licence, which is given by the road traffic authority, on the conditions precedent being complied with by the driver of a vehicle. In this regard, our attention was drawn to the proviso to Section 14(2)(a) of the Act, wherein it has been expressly stated licence to drive a transport vehicle carrying goods of dangerous or hazardous nature is effective for a period of one year only and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. Therefore, he submitted that in the first place, the driver of a vehicle carrying goods of dangerous or hazardous nature must have a licence to drive a transport vehicle. Secondly, he must undergo one day refresher course of the prescribed syllabus every year before making an application for renewal of such a licence. That the licence to drive a vehicle carrying dangerous or hazardous goods is a special licence which cannot be granted in a casual or callous manner. Unless the conditions stipulated are complied with to the satisfaction of the licencing authority, no endorsement would be issued. The driver of such a vehicle must have the skill to deal with the vehicle in case of an accident and as to how there should be a mitigation of damage having regard to the fact that such a vehicle would be carring hazardous or dangerous goods. He contended that in the instant case, on the date of the accident i.e., 24/07/2013, the driver did not have the authorization to drive the offending vehicle as there has been no endorsement on the driving licence. Therefore, the Tribunal has rightly exonerated the insurance company, which does not call for any interference in this appeal.
19. He further contended that the award of compensation in the instant case is just and proper and that the same would not call for any enhancement in this appeal. He also drew our attention to the pay slips of June and July 2013 and submitted that those pay slips may be taken into account while computing monthly salary of the deceased and not Ex.P-24. Learned counsel for the insurer further submitted that a sum of Rs.23,42,527/- has been paid under the group insurance scheme by the employer to the employee to the claimants on account of the death of employee/Harish and the said amount would have to be deducted from the compensation to be awarded in the instant case. Learned counsel for the insurance company submitted that there is no merit in this appeal and the same may be dismissed.
20. Having heard learned counsel for the respective parties and on perusal of the material on record as well as the original record, the following points would arise for our consideration:
(i) Whether the Tribunal was justified in fastening the liability on respondent No.1/insurer or the owner of the vehicle and thereby exonerating respondent No.2/insurance company?
(ii) Whether respondent No.2/insurance company was liable to satisfy the award?
(iii) Whether claimants are entitled to additional compensation?
(iv) What order?
The aforesaid points shall be considered in seriatim.
21. The claimants have proved before the Tribunal that Harish died in a road traffic accident that occurred on 24/07/2013 at about 6.15 a.m. when he was proceeding on his motorcycle bearing No.KA-04-EU-6082 on outer ring road at Nagawara Junction, Bengaluru, when an oil tanker bearing No.KA-03-C-4082 came in a rash and negligent manner and the driver of the said vehicle dashed against the motorcycle. As a result, Harish sustained grievous injuries and died on the spot. There is no controversy with regard to the aspect of negligence in the instant case.
22. The main controversy is with regard to liability to satisfy the award. In this regard, the Tribunal, while answering issue No.3, which is with regard to the entitlement of the claimants to claim additional compensation and if so, from whom, has been answered partly in the affirmative by holding that RW.3/driver of the offending oil tanker was not duly licenced and consequently, the insurance company was exonerated of its liability to satisfy the award and a direction has been issued to the owner of the oil tanker to satisfy the award. This direction is appealed against by the claimants/appellants supported by respondent Nos.3 and 4 in this appeal.
23. Before proceeding to the nitty gritty of the controversy as such, it would be useful to refer to the relevant provisions of the Act. Section 2 of the Act is the definition clause, which defines “driving licence” in Section 2(10); “licensing authority” in Section 2(20) and the expression “prescribed” is defined in Section 2(32) of the Act. The same are extracted as under:
“2. Definitions.—In this Act, unless the context otherwise requires,— x x x (10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;
x x x (20) “licensing authority” means an authority empowered to issue licences under Chapter II or, as the case may be, Chapter III;
x x x (32) “prescribed” means prescribed by rules made under this Act.”
Next it would be useful to consider the definition of the expression “heavy goods vehicle” which is defined in Section 2(16) of the Act, which reads as under:
“(16) “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.”
The expression “goods” is defined in Section 2(13), which reads as under:
“(13) “goods” includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.”
“Transport vehicle” is defined in Section 2(47) of the Act. It includes a goods carriage and the expression “goods carriage” is defined in Section 2(14) of the Act. The aforesaid definitions are extracted as under:
“(47) “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.”
x x x “(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.”
Chapter II of the Act deals with “Licensing of Drivers of Motor Vehicles”, the relevant provisions for this case are Sections 3, 5, 10, 11 and 14 “3. Necessity for driving licence.— (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
x x x 5. Responsibility of owners of motor vehicles for contravention of sections 3 and 4.— No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle.
x x x 10. Form and contents of licences to drive.— (1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:— (a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
11. Additions to driving licence.— (1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such, documents and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.
(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application were for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.
x x x 14. Currency of licences to drive motor vehicles.— (1) A learner’s licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,— (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:
Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and (b) in the case of any other licence,— (i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof,— (A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years, whichever is earlier;
(ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be. renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:
Provided that every driving licence shall, notwithstanding its expiry under this sub-section continue to be effective for a period of thirty days from such expiry”
Rule 9 of the Rules reads as under:
“9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.— (1) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having success fully passed a course consisting of following syllabus and periodicity connected with the transport of such goods:
Period of training 3 days Place of training any institute recognized by the State Syllabus Government A Defensive driving Duration of training for Questionnaire A & B—1st and 2nd day Cause of accidents Accidents' statistics Driver's personal fitness Car condition Braking distance Highway driving Road/ Pedestrian crossing Railway crossing Adapting to weather Head on collision Rear end collision Night driving Films and discussion B. Advanced driving skills and training — Checklist (i) Discussion — outside/below/near vehicle Before starting — product side — inside vehicle During driving — correct speed/gear — signalling — lane control — overtaking/giving side — speed limit/safe distance — driving on slopes Before stopping — safe stopping place, signalling, Condition road width, After stopping — preventing vehicle movement — wheel clocks — vehicle attendance Night driving — mandatory lighting requirements — headlamp alignment — use of dipped beam (ii) Field test/training — 1 driver at a lime C. Product safety — UN classification Duration UN Panel — Hazchem Code of training — Toxicity for (C) Flammability Third day. other definitions Product information — Tremcards — CIS/MSDS — Importance of temperature pressure, level — Explosive limits — Knowledge about equipment Emergency procedure — Communication — Spillage handling — Use of PPE — Fire fighting — First Aid — Toxic release control — Protection of wells, rivers, lakes, etc.
— Use of protective equipment — Knowledge about valves, etc.
(2) The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper alongwith his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in Form 7, the application shall be accompanied by the fee as is referred to in Serial No. 8 of the Table to rule 32.
(3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.
(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.”
24. It may be noted that the proviso to Section 14(2)(a) of the Act was introduced by way of an amendment made to the Act with effect from 14/11/1994.
Similarly, Rule 9 has been amended with effect from 26/03/1993.
25. Sections 2(3), 2(4), 2(5), 2(6), 2(7), 2(9), 2(10), 2(14), 2(15) and 2(16) of the Act have been considered by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh and others [(2004)3 SCC 297] and various aspects of a driver of a motor vehicle possessing a driving licence as under:
“(a) when a person has been granted licence for one type of vehicle but at the relevant time he was driving another type of vehicle;
(b) where the driver’s licence is found to be fake;
(c) learner’s licence.”
After considering various judgments rendered till then, at paragraph No.104, the Hon’ble Supreme Court has observed that it is evident from the discussions made that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof was holding the field for a long time, but at paragraph No.107, the Hon’ble Supreme Court observed as under:
“107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.”
The summary of findings at paragraph No.110 read as under:
“110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.”
On a reading of the same, we find that sub-para (vi) is very significant and crucial to the present case. The Hon’ble Supreme Court has stated that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid the liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Courts in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act. It is in light of the aforesaid dictum, which has been followed in several cases thereafter, we propose to consider as to whether there is a fundamental breach on the part of the owner of the vehicle, which would result in exoneration of the respondent/insurance company as has been found by the Tribunal in the instant case.
26. But before doing so, it would be necessary to lay emphasis on proviso to Section 14(2)(a) of the Act read with Rule 9 of the Rules. Section 14 deals with currency of licences to drive motor vehicles, according to which, a learner’s licence issued under the Act is effective for a period of six months from the date of issuance of licence. A driving licence issued or renewed under the Act in the case of a licence to drive a transport vehicle is effective for a period of three years, but the proviso to Section 14(2)(a) states that in the case of a licence to drive a transport vehicle to carry goods of dangerous or hazardous nature shall be effective for a period of one year only and the renewal is subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. The syllabus prescribed is under Rule 9 of the Rules. Therefore, there are two conditions precedent with regard to issuance of a licence to drive a transport vehicle to carry petroleum goods or dangerous or hazardous nature. In order to seek a renewal of such licence, in the first instance, the driver must possess a driving licence to drive a transport vehicle and in addition, he must undergo one day training in the prescribed syllabus. The syllabus is prescribed in Rule 9 of the Rules.
27. Rule 9 stipulates that in addition to being the holder of a driving licence to drive a transport vehicle, the driver must have the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having successfully passed a course consisting of the syllabus prescribed and periodicity connected with the transport of such goods. The said period of training initially is for three days, but for a renewal, it is only one day. The place of training is at any institute recognized by the State Government. After getting a certificate as per sub-rule (1) and possessing minimum educational qualification, the holder of the driving licence has to make an application in writing along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in FormNo.7, the application shall accompany the requisite fee. The licensing authority, on receipt of the application referred to in the aforesaid manner shall make an endorsement in the driving licence of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. If the licensing authority, other than the original licensing authority makes any such endorsement, it shall communicate the fact to the original licensing authority. Thus, as per Rule 9 of the Rules, initially on complying with the conditions stated in the Rules, an application has to be made before the licensing authority for an endorsement in the driving licence that he is authorized to carry goods of dangerous or hazardous nature to human life. Subsequently, when it comes to renewal of the said licence, the condition precedent is that the driver must undergo a one day refresher course.
28. The aforesaid requirements shall be considered in light of the evidence on record vis-à-vis RW.3, the driver of the offending vehicle in the instant case. Exs.R-1 to R-4 have been produced by the owner of the vehicle i.e., the insured. Ex.R-1 is the copy of driving licence of the driver of the offending vehicle namely, Anandamurthy who has deposed as RW.3. The licence to drive a light motor vehicle was issued to him with effect from 04/05/2009 and for a transport vehicle with effect from 10/08/2010. The effectiveness of a licence to drive a transport vehicle is three years. The said condition has been complied with, by the driver in the instant case, as the accident occurred on 24/07/2013. But for the purpose of driving a transport vehicle carrying goods hazardous in nature, the effectiveness of such a licence is one year. In the instant case, it is noted that there is no endorsement on the driving licence Ex.R-1 to the effect that the driver of the offending vehicle was authorized to drive a hazardous vehicle such as the vehicle in question, which is a transport vehicle for carrying petroleum products, which are hazardous in nature. RW.1 also produced Exs.R-3 and R- 4, which are the certificates issued on 05/02/2012 (Ex.R- 4) and 03/03/2013 (Ex.R-3) issued by the Transport Department Officer’s Association, Karnataka State, authorized by the Government of Karnataka bearing No.TD 122 ENF 2010, Bangalore, dated 18/05/2010. The said certificates would clearly indicate that Anandamurthy, the driver of the offending vehicle in the instant case was qualified to drive a transport vehicle carrying goods of dangerous and hazardous nature after undergoing the refresher training course as required under the proviso of Section 14(2) of the Act read with Rule 9 of the Rules. Although the driver of the offending vehicle in the instant case drove a transport vehicle as on the date of accident i.e., 24/07/2013 and he had also undergone one day refresher course of the prescribed syllabus as per Exs.R-3 and R-4, we find that there was no endorsement on the driving licence as per Rule 9 of the Rules, whereby an authorization is granted to drive a goods vehicle carrying goods of dangerous and hazardous nature to human life.
29. In this regard, it is necessary to consider two aspects of the matter: the first is, as to, what is the object and purpose of authorization as per Rule 9, which is in the form of an endorsement made on the driving licence. The second is, whether, in the absence of there being an endorsement on Ex.R-1, the insurer could be exonerated from its liability to satisfy the award.
30. While considering the first of the two aspects, we find that the prescription stipulated under the proviso to Section 14(2)(a) of the Act must be complied with, before a person could undertake to drive a transport vehicle carrying goods of dangerous or hazardous nature in the context of renewal of the said licence. Thus, the two conditions precedent namely, to possess a licence to drive a transport vehicle and secondly, to undergo one day refresher course of the prescribed syllabus are mandatory conditions, which cannot be deviated from. If both these conditions are complied with, then there would be consideration for renewal of the driving licence for a period of one year by an endorsement on the licence. In other words, if either of the conditions is not complied, there would be no renewal of the driving licence to drive a transport vehicle carrying dangerous or hazardous nature.
31. As far as seeking an endorsement on the licence to drive a transport vehicle carrying goods of dangerous or hazardous in nature is concerned, the same is stipulated in Rule 9 of the Rules inasmuch as any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, he must in the first instance have the ability to read and write at least one Indian language out of those specified in VIII Schedule of the Constitution and English and also possess a certificate for having successfully passed a course consisting of the syllabus for a period of three days. Therefore, in the first instance, the aforesaid three conditions must be complied with. Thereafter, the person must make an application in writing to the concerned licencing authority in whose jurisdiction he resides for making necessary entries in his driving licence and the licensing authority, on receipt of such an application should make an endorsement in the driving licence of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. The purpose of authorization is to grant an approval to drive a transport vehicle carrying goods of dangerous or hazardous nature. Such an authorization is in the form of an endorsement. An endorsement is nothing but a public declaration or an approval granted on the driving licence so as to declare that the holder of such a licence is authorized to drive a transport vehicle carrying goods of dangerous or hazardous nature and has complied with the mandatory conditions stipulated for seeking such an endorsement on the driving licence.
32. In the instant case, considering the documentary evidence on record, we find that RW.3/Anandamurthy possessed a licence to drive a transport vehicle as per Ex.R-1 and Exs.R-3 and R-4 are the certificates to the effect that he had undergone one day refresher course for renewal of licence for the relevant period, but the fact remains that there is no endorsement on the said licence. The question is, merely because there is no endorsement to drive a transport vehicle carrying goods of dangerous or hazardous in nature, would it amount to RW.3/the driver, in the instant case, not having an effective driving licence. In other words, was he not duly licenced or lacked the skill and therefore, was not qualified to drive such a licence? In this regard, we would like to consider the matter in light of the provisions of law as stated in Section 14 read with Rule 9 of the Rules and thereafter, the facts of the present case.
33. When we consider the requirement of possessing a licence to drive a transport vehicle carrying dangerous or hazardous nature, what are necessary to be complied with, as already noted above are, the requirements which are stated in Rule 9. Once the requirements of Rule 9 are satisfied, an application must be made to seek an endorsement on the driving licence and the endorsement is made by the concerned licensing authority authorizing to drive such a vehicle is granted. Therefore, there can be no two views in the matter that the requirements as stipulated in Rule 9 of the Rules must be mandatorily complied with for the purpose of making an application to get an endorsement on the driving licence. There cannot be any deviation nor any exemption from the said requirements, but once the requirements have been fulfilled, then the only remaining requirement is, to make an application to the concerned licensing authority to seek an authorization in the form of an endorsement. In the instant case, we find that RW.3/Anandamurthy driver of the offending vehicle had complied with all the requirements under Rule 9 of the Rules. But there was no endorsement made in the driving licence at the relevant point of time.
34. Further, when it comes to the renewal of driving licence, it is noted that the condition precedent is that the driver has to undergo a refresher course, which requirement is also complied with by the driver of the offending vehicle, in the instant case. Merely because there is no endorsement on Ex.R-1, can it be said that the driver of the offending vehicle did not possess the skill or did not have the eligibility to drive the vehicle in question? We do not think that such a view could be taken in the instant case as we find that the driver of the offending vehicle did possess the licence to drive a transport vehicle as on the date of accident. He had also undergone the requisite one day refresher course, which is a mandatory requirement for the renewal of a licence to drive a transport vehicle carrying dangerous and hazardous nature. Thus the driver had acquired the skill to drive the offending vehicle in the instant case. The only thing which is absent in Ex.R-1 is there is (no renewal of the driving licence to drive the transport vehicle carrying goods of hazardous in nature) no endorsement, which was made on the driving licence. But, by that, it cannot be said that the driver of the vehicle lacked skill or the eligibility to drive the vehicle in question i.e., a transport vehicle carrying goods dangerous and hazardous in nature. In other words, there is no endorsement to the effect that there was renewal of the licence for a period of one year after although the driver of the vehicle had undergone one day refresher course on 03/03/2013 (Ex.R-3). What is pertinent to note in the instant case is that the conditions precedent for securing renewal of licence of the driving licence to drive a transport vehicle carrying dangerous or hazardous nature had been complied by RW.3 as there cannot be any exemption from complying with such conditions. But, once the said conditions have been complied with, merely because there is no endorsement on the driving licence it would not mean that the driver of the vehicle in question was not authorized to drive the same in the context of not having the skill to drive such a vehicle. In the circumstances, while we are in full agreement with what has been contended by the learned counsel for the respondent/insurer insofar as the mandatory requirements of proviso to Section 14(2)(a) read with Rule 9 of the Rules are concerned, at the same time, when we apply the same to the facts of the present case, we find that we cannot take an extreme view by holding that because there was no endorsement on Ex.R-1 would imply that the driver in the instant case did not have nor possessed the skill or the ability or for that matter, the qualification to drive the transport vehicle in question which was meant to carry goods of dangerous or hazardous nature.
35. In the above context, we have perused the oral evidence on record. As already noted, RW.1 is the owner of the vehicle and the insured who has produced Exs.R-1 to R-4 in his examination-in-chief and there is nothing incriminating which has been elicited in his cross- examination. RW.2 is Ashwaq Ahmed, RTO, Yeshwanthpur, Bengaluru, who has also spoken about the requirements of a valid driving licence to drive a transport vehicle meant for carrying hazardous or dangerous goods as referred to above. RW.3/driver of the offending vehicle has also stated that he possessed a driving licence to drive the heavy goods vehicle from the year 2010 onwards and that he also stated in his examination-in-chief that he had undergone the refresher course, which is as per Exs.R-3 and R-4. In his cross-examination, he stated that he had paid a sum of Rs.700/- as fee for the training for the refresher course and he had received the certificates from the office of the RTO at Yeshwanthpur.
36. RW.4 is the ARTO of Indiranagar, who, in his cross-examination, has categorically stated that as per Ex.R-1, the driver of the offending vehicle had licence to drive a heavy goods vehicle. That Exs.R-3 and R-4 are the certificates issued to the driver of the offending vehicle for having undergone refresher training course for a day i.e., as stipulated. He also admitted that without certificates like Exs.R-3 and R-4, the driver cannot be permitted to drive a hazardous goods vehicle. He also admitted that Exs.R-3 and R-4 should be shown to the RTO Authorities for an endorsement within a particular time. The said evidence would indicate that once the certificates of undergoing training refresher course is issued, no time is fixed under the Act or in the Rules for making an application seeking an endorsement on the driving licence so as to obtain authorization to drive a transport vehicle meant for carrying hazardous or dangerous goods. In the instant case, as already noted, there is no such endorsement issued on Ex.R-1, but we have already noted that though there is no such endorsement issued on Ex.R- 1, the other conditions required for seeking such an endorsement were fulfilled by the driver of the offending vehicle RW.3 in the instant case. Therefore, we think that this is not a case where there can be an exoneration of the insurance company from its liability to satisfy the award. At the same time, as we have stated that the object and purpose of seeking endorsement on the driving licence after complying with Rule 9 of Rules and the proviso to Section 14(2)(a) of the Act is to seek authorization to drive a transport vehicle meant for carrying hazardous or dangerous goods, we cannot also ignore the importance of such an authorization. For seeking such an authorization, it is necessary to make an application and get an endorsement on the driving licence. The object and purpose of an endorsement on a driving licence to make a public declaration that the holder of such a licence is authorized to drive the said vehicle namely, a transport vehicle meant for carrying dangerous or hazardous goods is in the instant case. But merely because there is no authorization or public declaration in the instant case, it cannot be held that the driver did not possess the skill or qualification to drive such a vehicle, but there was no declaration of the same on the driving licence by way of an endorsement. Hence, in the instant case, we hold that the insurance company is liable to satisfy the award and seek recovery of the same from the insured. The reason why we are stating so is on account of the fact that there is an absence of the endorsement on the driving licence, but there is compliance of all the conditions required for making an application to seek such an endorsement under the Act as well as under the Rules. Hence, point No.1 is answered accordingly by reversing the finding of the Tribunal.
37. This takes us to the next point, which is, the quantum of compensation awarded by the Tribunal. The detailed narration of facts and contentions would not call for reiteration. Learned counsel for the claimants placed reliance on Ex.P-24, while learned counsel for the insurance company placed reliance on Ex.P-15, which are the pay slips for the period June-July 2013. It is noted that the accident occurred on 24/07/2013. The deceased Harish was working as a software engineer at Ero-Space at Bengaluru and in April 2013, Harish was promoted as a Lead Engineer and his salary was revised to Rs.11,51,000/- per annum. Ex.P-25 is Annexure-1 compensation structure. The same is extracted as under:
Annexure I – Compensation Structure
Fixed Components 1 Basic Salary 449698 Flexi Benefits Plan (FBP) 2 Total of FBP 553084 Variable Pay Component
Note:
Apart from the Cost to Company mentioned above, you will also be eligible for benefits like, transportation facility, non-transferable meal coupons, Group Health Insurance and Group Personal Accident Insurance as per company policy.
*Employees covered under The Payment of Bonus Act 1965 will be paid either Bonus or Gain share whichever is higher.
Sd/- Basavaraj S. Gadigeppagoudar Director II – Human Resources”
On perusal of the same, it is noted that there were several components to the annual salary of Rs.11,51,000/- in the form of Fixed Components, Flexi Benefits Plan (FBP), Variable Pay Component, Retirals Benefits. In addition, Harish was also entitled to benefit of transportation facility, non-transferable meal coupons, Group Health Insurance and Group Personal Accident Insurance as per company policy.
38. On perusal of Exs.P-24 and P-25, it is noted that the annual salary of Rs.11,51,000/- is the gross salary and we find that it is relevant to consider the said documents for the purpose of computing the compensation on the head of loss of dependency and not the other pay slips on which heavy reliance was placed by learned counsel for the insurance company. The amount of pay from one month to another may vary, but the total gross salary per annum is Rs.11,51,000/- as per Exs.P-24 and P-
25. From the said amount a sum of Rs.2,400/- towards professional tax and 30% towards income-tax i.e., Rs.3,44,580/- would have to be deducted and the resultant amount is Rs.8,04,020/-.
39. Having regard to the dictum of the Hon’ble Supreme Court in Pranay Sethi, 40% of the said amount has to be added towards future prospects of the deceased Harish who was only 32 years of age at the time of his death. The same is Rs.3,21,608/-. Consequently, the total sum would be Rs.11,25,628/- and 1/4th of the said amount (Rs.2,81,407) would have to be deducted towards personal expenses of the deceased as there are four claimants in terms of the decision of the Hon’ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation [(2009)6 SCC 121]. Thus, the resultant figure is Rs.8,44,221/-. Since the deceased was 32 years of age, the appropriate multiplier is 16. Thus, the compensation to be awarded on the head of loss of dependency is Rs.1,35,07,536/-. Having regard to the dicta of the Ho’ble Supreme Court in Pranay Sethi and Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others [2018 ACJ 2782] (Magma General Insurance Co.), a sum of Rs.40,000/- is awarded is awarded towards loss of spousal consortium. Further, the minor son of the deceased is awarded Rs.30,000/- towards loss of parental consortium and the parents of the deceased are awarded Rs.30,000/- each towards loss of filial consortium and a sum of Rs.15,000/- is awarded towards loss of estate and a further sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation is Rs.1,36,67,536/- instead of Rs.55,41,000/- awarded by the Tribunal. The same shall carry interest at the rate of 6% per annum from the date of claim petition till realisation. The aforesaid compensation shall be paid by respondent No.2/insurer with right to recover from respondent No.1/owner of the vehicle.
40. One other aspect of the matter is to consider the contention of learned counsel for the insurance company to deduct Rs.23,42,527/- payable to the legal representatives of the deceased Harish on account of the said amount being paid by the employer of the deceased M/s. UTC Aerospace Systems. We do not think that the said amount, which has been paid by the employer to the claimants under a group insurance policy, which is a policy taken by the employer for the benefit of his employees could be deducted as the same arises out of a contract of employer and the employee. But, what is being computed in the instant case is the compensation payable to the claimants on account of death of Harish in a road traffic accident.
41. Further, PW.2 has not admitted as to whether there was a scheme of group insurance covering the deceased Harish, but PW.2 has admitted that a sum of Rs.23,42,527/- was paid towards gratuity on superannuation, employer provident fund amount etc. Out of the said sum, a sum of Rs.8,81,337/- has been paid to the mother of the deceased. In this regard, it would be relevant to refer to the judgment of the Hon’ble Supreme Court in the case of Helen C.Rebello vs. Maharashtra State Road Transport Corporation [AIR 1998 SC 3191]. While delineating on the expression “just compensation”, the Hon’ble Supreme Court has stated that it must have a correlation with accidental death and no other form of death. The said observations are apposite and are extracted as under:
“33. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the ‘pecuniary advantage’ which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words ‘pecuniary advantage’ from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the ‘pecuniary advantage’ resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110, is as the Section states:
“....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ”
34. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the ‘pecuniary advantage’, liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
35. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one’s labour or contribution towards one’s wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the ‘pecuniary gain’ only on account of one’s accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.
36. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured’s death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. ”
(emphasised in the Report) 42. Further, in the case of Sebastiani Lakra and Others vs. National Insurance Company Limited and another, [AIR 2018 SC 504], (Sebastiani Lakra), it has been observed as under:
“12. The law is well-settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. ”
43. In Rajeshwari G. Bhuyar and others Vs.
Sindhu Travels and another, [2017 ACJ 87], (Rajeshwari G.Bhuyar) it has been observed that the fruits of an amount received through contributions/premium made by the insured or the employer of the deceased cannot be deducted out of the amount receivable under the Motor Vehicles Act. In the said case, the amount received by the claimants under group personal accident claim settlement for which premium was being paid by the employer was disallowed from being deducted from the compensation. Hence, in the instant case, a sum of Rs.23,42,527/- which has been paid towards terminal benefits on account of the death of Harish by the employer cannot also be deducted from the compensation determined in this case. The same would have been paid even if the employee Harish had died of any cause, but in the instant case, what has been considered is the compensation that would have to be paid under the provisions of the Motor Vehicles Act on account of the death caused due to a road traffic accident under Section 166 of the Act due to the negligence of the driver of the offending vehicle when the same is proved. Hence, there is no merit in the contention of the insurance company that the monetary benefits paid to the legal representatives of the deceased Harish by his employer would have to be deducted from the total compensation. Accordingly, point No.2 is answered.
44. Respondent No.2/insurance company is directed to pay compensation of *Rs.1,36,67,536/- to the claimants with interest at the rate of 6% per annum from the date of the claim petition till realization.
The directions regarding apportionment and deposit are as under:
To the widow of the deceased 30%, minor son of the deceased 40% and to the parents of the deceased 15% each.
*Corrected V.C.O. dated 24/08/2020 The directions with regard to deposit are as under: 75% of the compensation awarded to the widow of the deceased shall be deposited in any nationalized bank and/or post office for an initial period of fifteen years and she shall be entitled to draw periodical interest on the said deposit and the balance amount shall be released to her after due identification.
The entire compensation awarded to the minor child of the deceased shall be deposited in any nationalized bank or post office until he attains the age of majority. The interest accrued on the said deposit shall also not be drawn until he attains the age of majority.
75% of the compensation awarded to each of the parents of the deceased shall be deposited in any nationalized bank and/or post office for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
It is needless to observe that the claimants shall be prudent in utilizing the compensation amount.
The compensation amount with upto date interest shall be deposited by the insurance company within a period of six weeks from the date of receipt of the certified copy of this judgment.
The insurance company on satisfying the said amount is entitled to recover the same from respondent No.2/insurer by executing this judgment in accordance with law.
In the result, the appeal filed by the appellants/claimants is allowed in part.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE S*