Court No. - 33
Case :- FIRST APPEAL FROM ORDER No.1354 of 2001
Appellant :- Oriental Insurance Co.Ltd. Alld.
Respondent :- Smt. Khalikun Nisa Counsel for Appellant :- Arvind Kumar Counsel for Respondent :- Ram Singh
AND
Case :- FIRST APPEAL FROM ORDER No. - 1788 of 2001
Appellant :- Smt. Khalikun Nishan And Others Respondent :- Siyamber Nath And Others Counsel for Appellant :- Ram Singh
Counsel for Respondent :- Arvind Kumar Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Arvind Kumar, learned counsel for the Insurance company and Sri Ram Singh, learned counsel for the claimants.
2. The brief facts are that the owner and the driver did not appear before the Tribunal. During this interregnum period, respondent no.2 has passed away. On 2.1.2000 accident took place wherein a tractor which was being driven rashly and negligently dashed with one Sajid Ali. The owner of the vehicle was intimated but he refused to acknowledge the accident having taken place. This led to the filing of the claim petition. An F.I.R. was lodged against Tractor no.UP-70 H/9407 and the witnesses were examined whose testimony has been examined by the Tribunal. The driving licence of the driver of the tractor was not renewed from 9.1.1997 till 19.1.2000. The vehicle is now admittedly not driven by a person who was authorized to drive the vehicle. The owner did not come before the Tribunal showing that he was aware that the licence has expired and, therefore, though recovery rights can be granted, they will have to be with the rider as directed by the Apex Court.
3. The accident is not in dispute. The quantum is though disputed will have to be reevaluated in view of the appeal of the claimants.
4. Should recovery rights be granted to the Insurance company once the Tribunal held that the vehicle was being driven by a person, who had no valid driving licence.
5. The appeal of Insurance company raises only this ground, therefore, on the short point and on the judgment of the Apex Court holding that where a person, who does not have a valid driving licence, drives the vehicle recovery right should be granted. On the date of accident, there was no licence of whatever kind and, therefore, the Insurance company ought to have been either exonerated but now as 19 years have elapsed and by virtue of the interim order of this Court, they have already deposited the entire amount. They should be given recovery rights. However, with a rider as held by the Apex Court in Ram Chandra Singh Vs. Rajaram and others, AIR 2018 SC 3789 and Pappu and others Vs. Vinod Kumar Lamba and others, AIR 2018 SC 592, recovery rights are ordered to be granted.
6. This takes this Court to the appeal preferred by the claimants, who are the heirs of the the deceased being FAFO No.1788 of 2001. They have been awarded a sum of Rs. 3 Lac against the claim of Rs. 15 Lac. The income, of the deceased was held to be Rs.1,500/- per month, as Rs.2,500/- has been deducted from his salary of Rs. 4,000/-. Future loss has not been granted. Nothing has been granted under the head of pain shock suffering, love and affection and multiplier of 10 has been granted though the deceased was 47 years of age. It is submitted that the interest should be 15% and not 9%.
7. Having gone through the record, as the deceased was a salaried person, his salary has been rightly considered to be Rs. 4,000/- per month by Tribunal. He was 47 years of age and hence 30% would be added to his income. He had six heirs. However, I am in agreement with the submission of Sri Arvind Kumar that 3 of them were minor hence 1/4th and not 1/5th as submitted by Sri Ram Singh would have been deducted. To that multiplier of 13 as per the judgment of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298, will have to be granted and Rs.40,000/- under all other heads will have to be granted. Demand of 15% rate of interest cannot be accepted in the light of judgment of this Court. However, I am unable to accept the submission of Sri Arvind Kumar that 7% rate of interest should be granted. The rate of interest on the enhanced amount would be 9% from the date of filing of claim petition till the judgment and 6% thereafter till the amount is deposited.
8. Both these appeals are partly allowed. On depositing this amount, the Insurance company will have the right to recover the amount from the owner.
9. Record and proceedings be sent back to the Tribunal forthwith.
Order Date :- 25.7.2019 Irshad