Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 655 of 2004 Appellant :- Oriental Insurance Company Limited Respondent :- Babu Ram And Others Counsel for Appellant :- Amaresh Sinha, Counsel for Respondent :-Sharve Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Several years have elapsed but none has appeared for the owner though notices have been sent.
2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant-Oriental Insurance Company Limited, being aggrieved by judgment and award dated 19.12.2003 passed by the Motor Accident Claims Tribunal/Vth Additional District Judge, Bijnor in MACT Case No.191 of 2002.
3. Brief facts going to show that the plea has been taken that the driving licence were not valid. The Tribunal has held that the insurance company has failed to prove that the driver of the said vehicle was not authorized to drive the kind of vehicle which he was drive but the Tribunal has held that for the mistake of driver of owner, third party rights cannot be penalized. the Tribunal has held that the investigator's report was such that the owner was aware that the licence which has produced was not valid driving licence. The driving licence at 44K shows that the insurance company tried to prove that the licence was a fake licence.
4. The fact that the owner did not appear nor did the driver appear to prove that he had valid driving licnece. The Insurance Company did not file any proof that the licence was a fake driving licence. This Court in case of First Appeal From Order No. 123 of 1999, paragraph 8 has held as follows :
"8. The factual data available before this Court is that the owner had accepted that the deceased was employed by him. The liability under the Motor Vehicles Act,1988 and the liability under the Act, 1923 and on the judgment of Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557 and, therefore, the fact that the R.T.O. did not produce the list showing that the driver had no driving license or was a fake driving license. It has not been proved that the owner had placed the vehicle in the hands of the deceased even without seeing his licence. In absence of such proof, this Court cannot upturn the findings of Commissioner which are findings of facts. The Insurance Company has not been able to demonstrate here or before the Commissioner that there is breach of policy which would be said to be so fundamental so as to permit it to avoid its liability under the Act, 1923."
5. It is submitted by learned counsel for the appellant that the deceased was 28 years of age was a driver and his income in absence of any proof on 10.7.2000 could not have been considered to be Rs.2,500/- per month and multiplier of 15 should not have been granted and that the interest at 12% is also bad
6. Just by producing certificate of R.T.O. without any rebuttal evidence will not be permitted to be held that the finding is perverse and, hence, the Tribunal cannot be said have committed any error. It has not been proved that the owner was aware about the fact that the license produced by the driver was fake. In absence of proving the same, the Insurance company cannot claim that they are not liable to pay any compensation. I am supported in my view by the decision in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557, wherein the Court has held as under:
"9. The question is whether the letter/certificate issued by Regional Transport Officer, Raipur (Chhatisgarh) can be considered to be a public document as defined in section 74 of the Indian Evidence Act, 1872, which required no proof or it was required to be proved by the person producing it before the tribunal by examining witnesses? A public document is a document that is made for the purpose of the public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licence. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licence is record of the acts of public officers. The State Register of Driving Licence is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licence is a public document as defined by Section 74 of the Evidence Act.
10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form-54 as laid down by Rule 150(2). Form- 54 being a certified copy of a public document, namely, the State Register of Driving Licence, need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under section 26(1) read with Rule 23 is issued in Form-54 it is admissible in evidence under 77 of the Evidence Act, and no further proof of Form-54 by oral evidence by examining witnesses is required.
11. In the case in hand the information has not been furnished by the registering authority in Form-54. It had been provided in the following manner which is extracted below:-
"(Hindi matter omitted) Sri M. Ibrahim
12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form- 54 of the Rules. Deposit of fee would not convert the letter into a certificate under Rule 150. Therefore, the aforesaid letter issued by Regional Transport Officer, Raipur (Chhatisgarh) was required to be proved by the insurance company before the tribunal by oral evidence by examining witnesses. The insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the tribunal. The tribunal rightly refused to place reliance on the letter dated 20.4.2005.
13. The learned counsel for the appellant has urged that the application filed by the insurance company before the tribunal on 19.7.2008 was illegally rejected. The application filed by the appellant under Order 12 Rule 2 of the Code of Civil Procedure to the effect that the claimant and the owner of the vehicle may be directed to either admit or deny the letter dated 20.4.2005 was rightly rejected by the tribunal on 19.7.2008 as the burden of proof was on the insurance company to prove that the driving licence of the driver of the offending truck was fake but the insurance company failed to discharge its burden. There is yet another to uphold the order of the tribunal dated 19.7.2008. Under Rule 221 of The Uttar Pradesh Motor Vehicle Rules, 1998 only some of the provisions of the Code of Civil Procedure had been applied to the summary proceedings before the Motor Accident Claims Tribunal. The provisions of Order 12 Rule 2 having not been made applicable to the proceedings before the tribunal, the application filed by the insurance company was not maintainable.
14. The learned counsel for the appellant has lastly urged that the application filed by the appellant under Section 170 of the Act had illegally been rejected on 2.9.2006 by the tribunal and the appellant is also challenging this order in the appeal. We have examined the relief claimed in this appeal but we do not find that order dated 2.9.2006 had been challenged by the appellant. After the application under Section 170 was rejected it was open to the appellant to challenge the order under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. But the order dated 2.9.2006 cannot be challenged in an appeal, as an appeal under Section 173(1) of the Act lies only against the award of the Motor Accident Claims Tribunal and the order under Section 170 not being an award, no appeal would be maintainable against such an order.
15. For the aforesaid reasons, we do not find any merit in this appeal. The appeal fails and is accordingly dismissed."
7. I am even supported in my view by the decision of Apex Court in Ram Chandra Singh Vs. Rajaram and Others, AIR 2018 SC 3789 wherein it has been held that where the Insurance Company did not examine and did not come out with a case that the owner of the vehicle was aware that the license of the driver was a doubtful license they can be given recovery rights subject to proving the same as envisaged in Section 147 of Act, 1988. The Insurance Company has filed rebuttal evidence and hence subject to the aforesaid rider, they are given recovery rights.
8. The compensation awarded is also under challenge. It is submitted that the income of the deceased as Rs.2500/- per month and the multiplier granted and granting 12% rate of interest on the compensation is bad.
9. It is submitted by Sri Sharve Singh that 12% rate of interest was granted as a conditional rate of interest. The Tribunal in fact has granted 9% rate of interest and in default it has considered grant of 12%. However, as far as the grant of conditional higher rate is concerned, the Apex Court has deprecated this kind of directions. Hence, that portion is deleted. The interest would be only 9%.
10. This takes this Court to the oral cross objection. The deceased was 13 years of age and the deceased was a driver by profession when the accident occurred. He was 28 years of age. The income of the deceased in absence of any proof would not have been more than Rs.2,000/- when normal income of a driver would be Rs.2,000/- per month.
11. I am unable to accept the submission of Sri Amaresh Sinha, Advocate that as the deceased was below the age of 28 years, no amount under the head of future loss of income can be granted.
12. It is submitted by Sri Sharve Singh that the amount requires to be recalculated.
13. After hearing the learned counsels for the parties and perusing the judgment and order impugned, this Court feels that the income of the deceased should have been Rs.2,000/- per month, namely, Rs.24,000/- per year to which as the deceased was 28 years of age, 40% of the income requires to be added in view of the decision in National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017(0) Supreme (SC) 1050 which would come to Rs.24,000/- + 9,600/- = Rs.33,600/- out of which 1/3rd requires to be deducted as personal expenses of the deceased and, hence, the annual datum figure available to the family is Rs.22,400/- rounded up to Rs.22,500/-. As the deceased was in the age bracket of 26-30 years, the applicable multiplier would be 17 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that Rs.40,000/- is granted towards conventional heads as it is matter of 2004. Hence, the claimants are entitled to a total sum of Rs.22,500 x 17 +40,000 = 4,22,500/-.
14. The additional amount be worked out and be deposited within eighteen weeks from today.
15. The appeal is partly allowed on the ground of income and rate of interest. If the insurance company shall be entitled to recover the amount after depositing the same from the owner subject to the rider mentioned above. If the insurance company has deposited the amount, calculating the rate of interest at 12%, the amount be recalculated, calculating it with 9% rate of interest from the date of filing of claim petition till decision of the Tribunal and 6% thereafter. The oral cross objection is allowed under Order 41 Rule 33 of C.P. Code.
Order Date :- 30.7.2019 Mukesh