IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
Reserved on: 21.11.2024
Pronounced on: 29 .11.2024
1. MA 8/2018
THE NEW INDIA ASSURANCE CO.LTD. Vs ABDUL LATIEF AND ORS.
2. MA 3/2018
THE NEW INDIA ASSURANCE CO. LTD. Vs KHURSHEEDA BANU AND
ORS.
3. MA 9/2018
THE NEW INDIA ASSURANCE CO.LTD. Vs RUBINA BANOO AND ORS.
4. MA 10/2018
THE NEW INDIA ASSURANCE CO.LTD. Vs ZULEKHA BANOO AND ORS.
5. MA 12/2018
THE NEW INDIA ASSURANCE CO.LTD. Vs SHABINA BANOO AND ORS.
6. MA 16/2018
THE NEW INDIA ASSURANCE CO.LTD. Vs FATIMA BANOO AND ORS.
7. MA 91/2018 THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER
H.S. DHALIWAL Vs RESHMA BANOO AND ORS
8. MA 92/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER
H.S. DHALIWAL Vs GULSHAN BANO AND ORS
9. MA 93/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER
H.S. DHALIWAL Vs MUZAFFER HUSSAIN AND ORS
10. MA 94/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs SAPOORA BANOO AND ORS
11. MA 95/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs MIR ALI AND ORS
12. MA 96/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER
H.S. DHALIWAL Vs MOHD SADIQ AND ORS
13 MA 97/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER
H.S. DHALIWAL Vs FATIMA BANOO AND ORS
14. MA 98/2018
NEW INDIA ASSURANCE CO. LTD. Vs MOHD.IQBAL AND ORS.
15 MA 99/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs MOHD. ISAQ AND ORS
1 27
Page of
2
16 MA 100/2018
NEW INDIA ASSURANCE CO. LTD. Vs MUDASSIR AND ORS.
17 MA 101/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs MUBINA BANOO AND ORS
18 MA 102/2018
NEW INDIA ASSURANCE CO. LTD. Vs MOHD.ASLAM AND ORS.
19. MA 103/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs ASHIQ HUSSAIN AND ORS
20. MA 104/2018
TEW INDIA ASSURANCE CO. LTD. Vs YASIR HUSSAIN AND ORS.
21 MA 105/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs ABDUL KARIM AND ORS
22 MA 106/2018
NEW INDIA ASSURANCE CO. LTD. Vs ZAREENA BANOO AND ORS.
23 MA 107/2018
THE NEW INDIA ASSURANCE CO.LTD. TH. ITS MANAGER H.S.
DHALIWAL Vs MEHNAZA BANOO AND ORS
24 MA 108/2018
NEW INDIA ASSURANCE CO. LTD. Vs YASIR HUSSAIN AND ORS.
appellants
……
Through: - Mr.Rupinder Singh Adv with
Mr. Damini Singh Advocate.
respondents
……
Through: - Mr. Rahil Raja Advocate
Mr. Adarsh Bhutyal Advocate.
CORAM:
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 By this common judgment, the afore-titled twenty four
(24) appeals which arise out of a common award passed by the learned
Motor Accident Claims Tribunal, Doda, are
(„the Tribunal‟ for short)
proposed to be decided.
3
2 As many as twenty four (24) claim petitions arose out of a
single road traffic accident involving vehicle (Mini Bus) bearing
registration No. JK066-
1588 („offending vehicle‟ in short) which
suffered accident while proceeding from Kahara towards Thathri in
District Doda due to rash and negligent driving by its driver,
respondent No.4. As a result of this accident, Miss Rozi Bano and Miss
Bibi Hanief suffered fatal injuries leading to their death, whereas Mohd
Iqbal, Reshma Banoo Fatima Banoo, Safoora Banoo, Yasir Hussain,
Muzaffar Hussain, Mir Ali, Zulekha Banoo, Rubina Banoo, Gulshan
Banoo, Mohd Isaq, Mehnaz Banoo, Mubina Banoo, Ashaq Hussain,
Shabina Banoo, Fatima Banoo, Yasir Hussain, Mohd Aslam, Mohd
Sadiq, Mudassir, Zareena Banoo and Khursheeda Banoo suffered
grievous injuries. The offending vehicle was insured with the
appellants-Insurance Company at the relevant time and it was owned
by respondent No.3. The injured passengers of the vehicle and the
dependants of the deceased filed (24) separate claim petitions before
the learned Tribunal seeking compensation from the owner, driver and
the insurer of the offending vehicle on account of death/injuries
sustained due to the accident.
3 The appellant-Insurance Company, while admitting the
currency of insurance policy of the offending vehicle at the time of the
accident, besides disputing the quantum of compensation sought by the
claimants, contended that it is not liable to indemnify the owner/insured
as the driver of the offending vehicle was not holding a valid and
effective driving licence. It was also claimed by the appellant-Insurance
4
Company that the offending vehicle was being plied in violation of
terms and conditions of the Route permit as well as the policy of
insurance.
4 On the basis of the pleadings of the parties, the learned
Tribunal framed the separate issues in the claim petitions filed by the
dependants of the deceased and the claim petitions filed by the injured.
Issues framed in the petition filed by the dependants of
the deceased:
“(i) Whether on 24.08.2009, the deceased was
travelling in vehicle bearing No. JK06-1588 from Kahara
to Bhathri and while reaching at Kancha Nalla near Kahara
the vehicle met with an accident due to rash and negligent
driving of the driver due to which the deceased died? OPP
(ii) If issue No.1 is proved in affirmative, what
amount of compensation the petitioner is entitled to and
from whom? OPP
(iii) whether the driver of the offending vehicle was
not holding a valid driving licence at the time of accident,
if so , what is its effect on the claim petition ? OPR1
(iv)Whether the offending vehicle was being driven
in violation of terms and conditions of Route permit as
well as poicy of insurance, if so, what is its effect on the
claim petition ? OPR-1
(v) Relief. Onus on parties
Issues framed in the claim petitions filed by the
injured.
“(i) Whether on 24.08.2009, the petitioner was
travelling in vehicle bearing No. JK06-1588 from Kahara
to Bhathri and while reaching at Kancha Nalla near Kahara
the vehicle met with an accident due to rash and negligent
driving of the driver due to which the petitioner received
permanent disablement? OPP
5
(ii) If issue No.1 is proved in affirmative, what
amount of compensation the petitioner is entitled to and
from whom? OPP
(iiii)Whether the offending vehicle was being driven
in violation of terms and conditions of Route permit as
well as policy of insurance as the driving was not holding
a valid driving licence at the time of accident, if so, what is
its effect on the claim petition ? OPR-1
(v) Relief. Onus on parties
”
An additional issue to the following effect was also
framed:
Whether the offending vehicle was overloaded at the time
“
of accident, if so what is its effect on the claim petition .
s”
5 On the basis of evidence led by the parties, the learned
Tribunal came to the conclusion that the vehicle in question was being
driven, rashly and negligently by its driver, respondent No.4 at the
relevant time which resulted in the accident. It was also concluded by
the learned Tribunal that the driver of the offending vehicle was
holding a valid and effective driving licence at the relevant time.
However, it was found that as many as (31) passengers were travelling
in the offending vehicle at the time of the accident, though the seating
capacity of the said vehicle was only 15+1. The learned Tribunal,
relying upon the ratio laid down by the Supreme Court in the case of
United India Insurance Co. Ltd vs K.M.Poonam and others, (2015)
15 SCC 297 directed that the appellant-Insurance Company shall
satisfy the highest of the claims to the extent of seating capacity of the
offending vehicle and the rest of the claims would be satisfied by the
appellant-Insurance Company with a right to recover the amount from
the owner of the offending vehicle.
6
6 While assessing the compensation, the learned Tribunal,
in relation to the cases pertaining to death of Miss Bibi Hanief and Miss
Rozi Bano, took the notional income of the deceased, who were
non-earning persons aged 15/16 years, as Rs.36000/- per annum and
awarded total compensation in the amount of Rs. 5,62,000/- (loss of
dependence= Rs.4,32,000/-, funeral expenses = Rs.25000/-, loss of love
and affection to parents= Rs.1,00,000/- and loss of Estate=Rs.5000/-) in
favour of dependants of each of the afore-named two deceased, along
with interest @ 7% per annum. In the cases of other (22) claim
petitions which related to the injury cases of non-earning students who
were proved to be travelling in the offending vehicle, the learned
Tribunal, after taking the notional income of the injured at Rs.36000/
per annum, assessed the loss of earning capacity on the basis of
disability certificates issued by a single Doctor, namely Dr. N.D.Dar
after scaling down the percentage of disability in each case by 10% and
awarded the compensation in the following manner:
(i) In the claim petition filed by the injured Mohd
Iqbal, the disability assessed by Dr. N.D.Dar is 35%, but the
Tribunal has scaled it down to 25% and assessed the total
compensation of Rs.2,57,000/-.
(ii) In the claim petition filed by the injured Reshma
Banoo, the disability assessed by Dr. N.D.Dar is 30%, but the
Tribunal has scaled it down to 20% and assessed the total
compensation of Rs.2,24,600.
(iii) In the claim petition filed by the injured Fatima
Banoo, the disability assessed by Dr. N.D.Dar is 45%, but the
Tribunal has scaled it down to 35% and assessed the total
compensation of Rs.2,89,400/-.
(iv) In the claim petitions filed by the injured Sapoora
Banoo, the disability assessed by the Dr. N.D.Dar is 45%, but
7
the Tribunal has scaled it down to 35% and assessed the total
compensation of Rs.3,21,000.
(v) In the claim petition filed by the injured Yasir
Hussain, the disability assessed by Dr. N.D.Dar is 40%, but
the Tribunal has scaled it down to 30% and assessed the total
compensation of Rs.289400.
(vi) In the claim petition filed by the injured Muzaffar
Hussain, the disability assessed by Dr. N.D.Dar is 40%, but
the Tribunal has scaled it down to 30% and assessed the total
compensation of Rs.289400.
(vii) In the claim petition filed by the injured Mir Ali, the
disability assessed by Dr. N.D.Dar is 45%, but the Tribunal
has scaled it down to 35% and assessed the total
compensation of Rs.321000.
(viii) In the claim petition filed by the injured Zulekha
Banoo, the disability assessed by Dr. N.D.Dar is 30%, but the
Tribunal has scaled it down to 20 % and assessed the total
compensation of Rs.2,03,000.
(ix) In the claim petition filed by the injured Rubina
Banoo, the disability assessed by Dr. N.D.Dar is 35%, but the
Tribunal has scaled it down to 25% and assessed the total
compensation of Rs.257000.
(x) In the claim petition filed by the injured Gulshan
Banoo, the disability assessed by Dr. N.D.Dar is 30%, but
the Tribunal has scaled it down to 20% and assessed the total
compensation of Rs.224600.
(xi) In the claim petition filed by the injured Mohd Isaq,
the disability assessed by the Dr. N.D.Dar is 40%, but the
Tribunal has scaled it down to 30% and assessed the total
compensation of Rs.289400.
(xii) In the claim petition filed by the injured Mehnaza
Banoo, the disability assessed by the Dr. N.D.Dar is 40%, but
the Tribunal has scaled it down to 30% and assessed the total
compensation of Rs.289400.
(xiii) In the claim petition filed by the injured Mubina
Banoo, the disability assessed by the Dr. N.D.Dar is 35%, but
the Tribunal has scaled it down to 25% and assessed the total
compensation of Rs.257000.
(xiv) In the claim petition filed by the injured Ashiq
Hussain, the disability assessed by the Dr. N.D.Dar is 30%,
but the Tribunal has scaled it down to 20% and assessed the
total compensation of Rs.224600.
8
(xv) In the claim petition filed by the injured Shabina
Banoo, the disability assessed by the Dr. N.D.Dar is 45%, but
the Tribunal has scaled it down to 35% and assessed the total
compensation of Rs.321000.
(xvi) In the claim petition filed by the injured Fatima
Banoo, the disability assessed by the Dr. N.D.Dar is 30%, but
the Tribunal has scaled it down to 20% and assessed the total
compensation of Rs.224600.
(xvii) In the claim petition filed by the injured Yasir
Hussain, the disability assessed by the Dr. N.D.Dar is 30%,
but the Tribunal has scaled it down to 20% and assessed the
total compensation of Rs.224600.
(xviii) In the claim petition filed by the injured Mohd
Aslam, the disability assessed by Dr. N.D.Dar is 30%, but the
Tribunal has scaled it down to 20% and assessed the total
compensation of Rs.224600.
(xix) In the claim petition filed by the injured Mohd
Sadiq, the disability assessed by Dr. N.D.Dar is 35%, but the
Tribunal has scaled it down to 25% and assessed the total
compensation of Rs.257000.
(xx) In the claim petition filed by the injured Mudassir,
the disability assessed by Dr. N.D.Dar is 40%, but the
Tribunal has scaled it down to 30% and assessed the total
compensation of Rs.289400.
(xxi) In the claim petition filed by the injured Zareena
Banoo, the disability assessed by the Dr. N.D.Dar is 35%, but
the Tribunal has scaled it down to 25% and assessed the total
compensation of Rs.257000.
(xxii) In the claim petition filed by the injured Khursheeda
Banu, the disability assessed by Dr. N.D.Dar is 30%, but the
Tribunal has scaled it down to 20% and assessed the total
compensation of Rs.2,24,6000.
7 The appellant-Insurance Company has challenged the
impugned award on the ground that the income of non-earning
deceased and the injured could not have been taken as Rs.36000/- per
annum. It has been contended that the compensation was required to be
assessed on the basis of income of a non-earning person as specified in
Second Schedule to the M.V. Act, which is Rs.15000 per annum. It has
9
been further contended that the vehicle in question was being driven by
a minor student, namely Irshad Ahmed, who was allowed by the
licensed driver, namely Mohd Rafiq to do so which resulted in the
accident, as such, the appellant-Insurance Company has to be
exonerated from its liability to satisfy the award. It has been also
contended that the disability certificates issued in favour of the
injured/claimants are by a single Doctor who is not an Orthopedician,
as such, the same could not have been relied upon by the Tribunal for
assessing the loss of earning capacity of the injured/ claimants. It has
been contended that the concerned Doctor is notorious for issuing ready
to use disability certificates and this Court has already in one of the
cases directed holding of an enquiry against the said Doctor. In such a
scenario, the Tribunal should not have accepted the certificates of
disability issued by the said Doctor..
8 I have heard learned counsels for the parties and I have
also gone through the grounds of challenge raised in the memo of
appeals, the record of the Tribunal and the impugned award.
9 The first contention raised by the appellant-Insurance
Company is with regard to assessment of compensation made by the
Tribunal by taking the income of the injured/deceased, who were
non-earning minor students, as Rs.36000/- per annum. As already
noted, according to the learned counsel for the appellant, the income of
a non-earning person while assessing the compensation, has to be
guided by the Second Schedule to the Motor Vehicles Act (
„MV Act‟
10
for short) according to which, the same is to be taken as Rs.15000 /-per
annum.
10 In the above context, it is to be noted that in the case of a
non-earning person, like a student, only the notional income including
the future prospects has to be the taken as the basis for calculating the
loss of dependency or loss of future income as the case may be. It is
„ ‟ „ ‟
true, that in the Second Schedule to the M.V. Act, the notional income
of a non-earning person has been specified as Rs.15000 per annum, but
it has to be borne in mind that the said Schedule was incorporated in
the M.V.Act in the year 1994. The accident, which is subject matter of
the present claim petitions, has taken place on 24.08.2009 i.e after more
than 15 years of incorporation of the Second Schedule. The income of a
non-earning person as specified in the Second Schedule was taken by
the Legislature keeping in mind the factors that were prevailing at the
relevant time. With the passage of time, there has been increase in
inflation and devaluation of the rupee with the increase in cost of
living. The value of the rupee has drastically come down since the year
1994 when the notional income of Rs.15000 was fixed in the Second
Schedule to the M.V. Act, as such, while considering the notional
income of a non-earning person after 15 years of incorporation of
Second Schedule, upward revision of the same is required to be
considered for arriving at the figure of just compensation.
11 The Supreme Court in the case of Kishan Gopal & anr vs
Lala, 2014 (1) SCC 244 calculated the compensation by treating
11
Rs.36000/- as notional income including future prospects in place of
Rs.15000/- as specified in Second Schedule to the M.V Act. Similarly,
in M.S.Grewal and ors vs Deep Chand Sood and ors, (2001) 8 SCC
151, (14) school students had died due to drowning in a river. The
Supreme Court, after noticing that the students came from an
upper middle class background awarded the compensation of Rs.5.00
,
lacs. There is a long series of judgments of the Supreme Court which
provide that the notional income of a non-earning person, having regard
to his/her background, the passage of time since the incorporation of
Second Schedule to the M.V. Act in the year 1994, as well as the
factors like inflation and the devaluation of the rupee, can certainly be
taken into account while taking the income of a non-earning person for
the purpose of assessing just compensation.
12 Learned counsel for the appellant-Insurance Company has
relied upon the judgment of this Court in the case of Bajaj Allianz
General Insurance Co. Ltd vs. Sajid Khan and others, (2019) 3
JKJ [HC] 397 wherein it has been held that the notional income of a
non-earning person has to be taken as Rs.25000 per annum and not
Rs.36000 per annum. The ratio laid down in the said judgment cannot
be applied to the present case, for the reason that it was in the facts and
circumstances of that case, that this Court came to the conclusion that
instead of Rs.36000 per annum, the income of the claimant therein
should be taken as Rs.25000 per annum. But, even in that case, this
Court has confirmed the principle that it is open to a Tribunal to take
12
the income of a non-earning claimant at a higher rate than specified in
the Second Schedule to the M.V.Act.
13 The learned Tribunal in the present case, on the basis of
the evidence on record, and in the light of the fact that most of the
injured/deceased were grown up students at the verge of attaining
majority, has correctly assessed the notional income of the
annum, as such, no fault
deceased/injured at the rate of ₹36,000 per
can be found in the said assessment. It would not be open to this Court
while exercising its appellate jurisdiction to interfere with the said
finding of the Tribunal which, as already stated, is based upon plausible
logic and reasons.
14 It has been contended by the learned counsel for the
appellant-Insurance Company that it was not open to the Tribunal to
award compensation to the dependents of the deceased in two death
cases under the head loss of love and affection to parents of the
„ ‟
deceased as the law does not provide for the same. According to the
learned counsel, as per the law laid down by the Supreme Court in
National Insurance Company ltd vs. Pranay Sethi and others,
(2017) 16 SCC 680, the compensation under the conventional heads of
loss of estate, loss of consortium, and funeral expenses only is
permissible in death cases
.
15 It is correct that as per the law laid down by the Supreme
Court in case (supra), the compensation under the
Pranay Sethi’
conventional head loss of consortium is permissible and there is no
„ ‟
13
separate head for loss of love and affection to parents provided in the
„ ‟
said judgment, but the question whether the parents of a deceased child
would be entitled to compensation under the head loss of consortium
„ ‟
has been answered by the Supreme Court in the later judgment of
Magma General Insurance Co. Ltd vs. Nanu Ram alias Chuhru
Ram and others, vs. Nanu, (2018) 18 SCC 130. In the said case, the
Supreme Court, while answering the aforesaid question, has observed
as under:
8.7 A Constitution Bench of this Court in Pranay Sethi
“
(supra) dealt with the various heads under which
compensation is to be awarded in a death case. One of
these heads is Loss of Consortium. In legal parlance,
“consortium” is a compendious term which encompasses
„spousal consortium‟, „parental consortium‟,and „filial
consortium‟. The right to consortium would include the
company, care, help, comfort, guidance, solace and
affection of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual relations
with the deceased spouse. Spousal consortium is generally
defined as rights pertaining to the relationship of a
husband-wife which allows compensation to the surviving
spouse for loss of “company, society, cooperation,
affection, and aid of the other in every conjugal relation
.”
Parental consortium is granted to the child upon the
premature death of a parent, for loss of “parental aid,
protection, affection, society, discipline, guidance and
training.”. Filial consortium is the right of the parents to
compensation in the case of an accidental death of a child.
An accident leading to the death of a child causes great
shock and agony to the parents and family of the deceased.
The greatest agony for a parent is to lose their child
during their lifetime. Children are valued for their love,
affection, companionship and their role in the family
unit.Consortium is a special prism reflecting changing
norms about the status and worth of actual relationships.
Modern jurisdictions world over have recognized that the
rtium far exceeds the economic
value of a child‟s conso
value of the compensation awarded in the case of the death
of a child. Most jurisdictions therefore permit parents to
be awarded compensation under loss of consortium on the
death of a child. The amount awarded to the
14
parents is a compensation for loss of the love,
affection, care and companionship of the deceased
child.. The Motor Vehicles Act is a beneficial legislation
aimed at providing relief to the victims or their families, in
cases of genuine claims. In case where a parent has lost
their minor child, or unmarried son or daughter, the
parents are entitled to be awarded loss of consortium
under the head of Filial Consortium. Parental Consortium
is awarded to children who lose their parents in motor
vehicle accidents under the Act. A few High Courts have
awarded compensation on this count. However, there was
no clarity with respect to the principles on which
compensation could be awarded on loss of Filial
Consortium. The amount of compensation to be awarded
as consortium will be governed by the principles of
awarding compensation under „Loss of Consortium‟ as
laid down in Pranay Sethi (supra
)”
16 From the foregoing analysis of law on the subject, it is
clear that the compensation permissible under the head loss of
„
consortium is also available to parents of a deceased child which can
‟
be termed as parental consortium or filial consortium . The same has
„ ‟ „ ‟
to be awarded at the rate as provided in Pranay Sethi .
‟s case (supra)
17 Thus, the parents of the deceased in both the death cases
would be entitled to compensation under the head loss of filial
„
consortium at the rate of Rs.40000 to each parent. The same would
‟
come to Rs.80,000/-. Therefore, an excess amount of Rs.20,000/- has
been awarded by the Tribunal to the parents of the deceased under this
head. Although, the Tribunal has awarded Rs.25000/- under the head
„Funeral expenses‟ which is also on higher side, yet the Tribunal has
award only Rs.5000/- which is definitely on a lower
as „loss of Estate‟
side. As per the ratio laid down by the Supreme Court in Pran
ay Sethi‟s
case (supra), in a death case, funeral expenses of Rs.15000 and loss of
estate of Rs.15000 is admissible. In the present case, when we reduce
15
the funeral expense and increase the loss of estate to bring it at par with
what has been provided in P (supra), it evens out.
ranay Sethi‟s case
However, the compensation awarded to the claimants in the two death
cases under the head „loss of consortium‟ upon its reduction by
Rs.20000/- would bring down the total compensation admissible to the
claimants in these two cases to Rs.5,42,000/- from Rs.5,62,000/-.
18 That takes us to the contention of the appellant that the
vehicle in question was being driven by a minor student and not by its
driver at the relevant time which resulted in the accident which,
according to the appellant, constitutes a violation of terms of insurance
policy entitling the insurer to avoid its liability to satisfy the award. It
has been contended that in the Challan relating to the accident, it has
been specifically stated that the vehicle in question was being driven by
a minor student, namely Irshad Ahmed who was allowed to do so by
the driver Mohd Rafiq. According to the learned counsel for the
appellant-Insurance Company, since the claimants have relied upon the
challan filed by the police to prove the accident, therefore, the finding
in the challan that the vehicle in question was being driven a minor
student at the relevant time is binding upon them. In this regard, the
learned counsel has relied upon the judgment of Supreme Court in the
case of Oriental Insurance Co. Ltd vs. Premlata Shukla and others,
(2007) 13 SCC 476 and the Judgment of this Court in the case of
United India Insurance Co. vs. Amina Begum and others (CIMA
No. 217 of 2008, decided on 15.12.2011).
16
19 In the above context, it is to be noted that there is no
dispute to the fact that in the challan in respect of the FIR relating to the
accident which is subject matter of claim petitions, not only the driver
Mohd Rafiq has been made as an accused, the minor student Irshad
Ahmed has also been made as an accused on the basis of the allegation
that the driver Mohd Rafiq had allowed the minor student Irshad
Ahmed to drive the vehicle in question which resulted in the accident.
The question arises as to whether the said finding in the Challan is
binding upon the claimants.
20 Along with the claim petitions filed by the claimants, they
have only annexed a copy of the FIR relating to the accident. As per the
FIR, the accident had occurred on account of rashness and negligence
on the part of an unknown driver. So, in the FIR, there is no allegation
that the vehicle in question was being driven by a minor student at the
time of the accident. The claimants have not annexed copy of the
Challan in any of the claim petitions. It is the appellant-insurer who has
produced copy of Challan before the Tribunal. In
Prem Lata Shukla’s
case (supra) and in case (supra), the claimants had
Amina Begum’s
sought to rely upon the FIR/Challan for the purpose of proving the
accident, but turned around and contended that the other contents
contained in rest part of the FIR/Challan should not be read against
them. It is in those circumstances that the Supreme Court and this
Court held that the same is not permissible in law. So, the ratio laid
down in Prem La Amina
ta Shukla‟s case (supra) and in Begum‟s case
(supra) cannot be made applicable to the present case as the facts are
17
clearly distinguishable. It is open to the claimants in the present case to
plead and prove that the vehicle in question was being driven by the
driver Mohd Rafiq and that it is on account his negligence that the
accident had taken place.
21 In the above context, a look at the evidence on record
shows that the witnesses produced by the claimants have categorically
and in one voice stated that the vehicle in question was being driven by
the driver Mohd Rafiq at the time of the accident. In fact, suggestions
were put by the learned counsel for the insurer to these witnesses that it
was Irshad Ahmed who was driving the vehicle, but the same was
denied by the witnesses. In fact, all the witness have stated that Irshad
was not travelling in the vehicle in question. As against this, the
appellant has led no evidence, except placing on record a copy of the
challan to prove that the vehicle in question was being driven by Irshad
Ahmed and not by the Driver Mohd Rafiq. Even the Investigating
Officer has not been produced by the insurer to prove the contents of
the Challan. In the face of this position, the assertion of the appellant
that the vehicle in question was being driven by Irshad Ahmed, a minor
student and not by the driver Mohd Rafiq, the licensed driver, is not
established from the evidence on record.
22 Even if, it is assumed for the sake of argument that
respondent- driver, who was admittedly duly licensed, had allowed a
minor student Irshad Ahmed to drive the vehicle which resulted in the
accident, still then, the appellant cannot escape its liability to indemnify
18
the insured in the facts and circumstances of the present case. The law
on the subject is well settled that if owner of a vehicle hands over the
charge of the vehicle to a duly licensed driver, who without the
knowledge of the owner, allows an unlicensed person to fiddle with the
vehicle, it cannot be termed as violation of the conditions of the policy
„
of insurance .
‟
23 The question, as to whether the insurance company can
escape its liability to pay the compensation in respect of the accident by
a vehicle only by showing that at the relevant time, it was being driven
by a person having no licence, was considered by the Supreme Court in
the case of Skandia Insurance Co. Ltd vs. Kokilaben
Chandravadan and others, (1987) 2 SCC 654. Para (12) of the said
judgment is relevant to the context and the same is reproduced as
under:
12.The defence built on the exclusion clause cannot
“
succeed for three reasons, viz:
1. On a true interpretation of the relevant clause which
interpretation is at peace with the conscience of Section
96, the condition excluding driving by a person not duly
licensed is not absolute and the promisor is absolved once
it is shown that he has done everything in his power to
keep, honour, and fulfil the promise and he himself is not
guilty of a deliberate breach.
2. Even if it is treated as an absolute promise, there is
substantial compliance therewith upon an express or
implied mandate being given to the licensed driver not to
allow the vehicle to be left unattended so that it happens to
be driven by an unlicensed driver.
3. The exclusion clause has to be 'read down' in order that
it is not at war with the 'main purpose' of the provisions
19
enacted for the protection of victims of accidents so that
the promisor is exculpated when he does everything in his
power to keep the promise .
”
24 Again, in the case of Kashiram Yadav & anr vs Oriental
Fire & Gen. Insurance Co. & ors, (1989) 4 SCC 128, the Supreme
Court reiterated the views expressed in Skandia Insurance Co case
’s
(supra) and while referring to the said judgment, the Supreme Court
observed as under:
5. Counsel for the appellants however, submitted that
“
insurer alone would be liable to pay the award amount
even though the tractor was not driven by a licensed
driver. In support of the contention, he placed reliance on
the decision of this Court in Skandia Insurance Co. Ltd. v.
Kokilaben Chandravadan and Ors. We do not think that
that decision has any relevance to the present case. There
the facts found were quite different. The. vehicle concerned
in that case was undisputedly entrusted to the driver who
had a valid licence. In transit the driver stopped the
vehicle and went to fetch some snacks from the opposite
shop leaving the engine on. The ignition key was at the
ignition lock and not in the cabin of the truck. The driver
has asked the cleaner to take care of the truck. In fact the
driver had left the truck in the care of the clean- er. The
cleaner meddled with the vehicle and caused the accident.
The question arose whether the insured (owner) had
committed a breach of the condition incorporated in the
certificate of insurance since the cleaner operated the
vehicle on the fatal occasion without driving licence. This
Court expressed the view that it is only when the insured
himself .entrusted the vehicle to a person who does not
hold a driving licence, he could be said to have committed
preach of the condition of the policy. It must be established
by the Insurance Company that the breach is on the part of
the insured. Unless the insured is at fault and is guilty of a
breach of the condition, the insurer cannot escape from the
obligation to indemnify the insured. It was also observed
that when the insured has done everything within his
power in as much as he has engaged the licensed driver
20
and has placed the vehicle in his charge with the express
or implied mandate to drive himself, it cannot be said that
the insured is guilty of any breach.
6.We affirm and reiterate the statement of law laid down in
the above case. We may also state that without the knowl-
edge of the insured, if by driver's acts or omission others
meddle with the vehicle and cause an accident, the insurer
would be liable to indemnify the insured. The insurer in
such a case cannot take the defence of a breach of the
condition in the certificate of insurance
”
25 To examine the correctness of the views expressed in
S the matter was referred to
kandia Insurance Company‟s case (supra),
a three Judge Bench in the case of Sohan Lal Passi vs P. Sesh Reddy
& Ors, (1996) 5 SCC 21. While examining the same, the Supreme
Court expressed its agreement with the view taken in the case of
S The Court went on to
kandia Insurance Company‟s case (supra).
observe as under:
“12……………………………………………………………
………………………………………………………………..
To examine the correctness of the aforesaid view this appeal
was referred to a three Judges' Bench, because on behalf of
the insurance company, a stand was taken that when 'Section
96(2)(b)(ii) has provided that the insurer shall be entitled to
defend the action on the ground that there has been breach of
a specified condition to the policy i.e. the vehicle should not
be driven by a person who is 'not' duly licensed, then the
insurance company cannot be held to be liable to indemnify
the owner of the vehicle. In other words, once there has been
a contravention of the condition prescribed in sub-section
(2)(b)(ii) of Section 96, the person insured shall not be
entitled to the benefit of subsection (1) of Section 96.
According to us, Section 96(2)(b)(ii) should not be interpreted
in a technical manner. Sub-section (2) of Section 96 only
enables the insurance company to defend itself in respect of
the liability to pay compensation on any of the grounds
mentioned in sub-section (2) including that there has been a
21
contravention of the condition excluding the vehicle being
driven by any person who is not duly licensed. This bar on
face of it operates on the person insured. If the person who
has got the vehicle insured has allowed the vehicle to be
driven by a person who is not duly licensed then only that
clause shall be attracted. In a case where the person who has
not insured the vehicle with the insurance company, has
appointed a duly licensed driver and if the accident takes
place when the vehicle is being driven by a person not duly
licensed on the basis of the authority of the driver duly
authorised to drive the vehicle whether the insurance
company in that event shall be absolved from its liability? The
expression "breach" occurring in Section 96(2)(b) means
infringement or violation of a promise or obligation. As such
the insurance company will have to establish that the insured
was guilty of an infringement or violation of a promise. The
insurer has also to satisfy the Tribunal or the Court that such
violation or infringement on the part of the insured was
willful, It the insured has taken all precautions by appointing
a duly licensed driver to drive the vehicle in question and it
has not been established that lt was the insured who allowed
the vehicle to be driven by a person not duly licensed, then
the insurance company cannot repudiate its statutory liability
under sub-section (1) of Section 96. In the present case far
from establishing that it was the appellant who had allowed
Rajinder Pal Singh to drive the vehicle when the accident
took place, there is not even any allegation that it was the
appellant who was guilty of violating the condition that the
vehicle shall not be driven by a person not duly licensed.
From the facts of the case, it appears that the appellant had
done everything within his power inasmuch as he has
engaged a licensed driver Gurubachan Singh and had placed
the vehicle in his charge. While interpreting the contract of
insurance, the Tribunals and Courts have to be conscious of
the fact that right to claim compensation by heirs and legal
representatives of the victims of the accident is not defeated
on technical grounds. Unless it is established on the materials
on record that it was the insured who had willfully violated
the condition of the policy by allowing a person not duly
licensed to drive the vehicle when the accident took place, the
insurer shall be deemed to be a judgment-debtor in respect of
the liability in view of sub- section (1) of Section 96 of the
Act. It need not be pointed out that the whole concept of
22
getting the Vehicle insured by an insurance company is to
provide an easy mode of getting compensation by the
claimants, otherwise in normal course they had to pursue
their claim against the owner from one forum to the other and
ultimately to execute the order of the Accident Claims
Tribunal for realization of such amount by sale of properties
of the owner of the vehicle. The procedure and result of the
execution of the decree is well known
”
26 From the foregoing analysis of law on the subject, it is
clear that merely because a licensed driver has allowed another
unlicensed person to drive the vehicle, the Insurance Company cannot
escape its liability to indemnify the insured, unless it is shown that the
aforesaid act of the licensed driver was in the knowledge of the insured.
Once owner of a vehicle has given the charge of a vehicle to a duly
licensed driver who, in turn, allows it to be fiddled with by an
unauthorized person without the knowledge of the owner, it cannot be
a case of willful violation of the terms and condition of the Insurance
policy on the part of the insured so as to constitute a ground for
exoneration of the insurer from its liability to indemnify the insured.
27 In the instant case, it is not even the contention of the
appellant that the owner of the offending vehicle knew that the
respondent-driver had allowed the offending vehicle to be driven by a
minor student. It is an admitted case of the parties that the respondent-
driver was holding a valid and effective driving licence at the relevant
time, as such, the owner of the vehicle by handing over the same to a
duly licensed driver, had done whatever was within his competence. If
the driver has breached that trust and has allowed an unauthorized
23
person, a minor student, to ply the vehicle, then it would constitute a
negligence on the part of the driver and the owner becomes vicarious
liable for his negligence. Since there is no willful default in breaching
the conditions of the insurance policy on the part of the owner in this
case, as such, the appellant-Insurance Company is liable to indemnify
the insured.
28 The last argument that has been vehemently urged by
learned counsel for the appellant is with regard to reliability of the
disability certificates issued by Dr. N.D.Dar. According to the learned
counsel, Dr. N.D.Dar is a physician and not an orthopadecian and the
disability certificates have been issued by a single Doctor and not by a
Medical Board, as such, the same could not have been relied upon by
the Tribunal. The learned Tribunal has referred to the judgment of this
Court in the case of Oriental Insurance Co. Ltd vs. Gh. Qadir and
another (MA No. 464, decided on 24.09.2021 and connected matters
decided on 21.02.2023) wherein serious strictures have been passed
against the same Doctor by this Court. In the said judgment, this Court
has come down heavily on the aforesaid Doctor and observed that the
said Doctor, while issuing the disability certificates, has committed
grave professional misconduct.
29 Learned counsel appearing for the injured/claimants has
contended that the disability certificates have been proved in the
present case and, in fact, it is the appellant-Insurance Company who
has examined Dr. N.D.Dar as its witness and from his statement, the
24
disability certificates have been proved. It has been contended that, in
this scenario, it is not open to the appellant to deny authenticity of the
disability certificates. It has also been contended that in India, there is
no rule of practice that if a witness has been dubbed as unreliable in
one case, his testimony cannot be relied in any other case. It has been
submitted that each case has to be judged on the basis of the quality of
the testimony given by a witness and not on the basis as to what was
said about the said witness in some other case.
30 As has already been noted, the learned Tribunal while placing
reliance upon the disability certificates issued by Dr. N.D.Dar in favour
of the injured/claimants has observed in each of the cases that the
physical appearance of the injured does not match with the percentage
of disability recorded in the disability certificates. On this basis, the
percentage of disability has been scaled down by the Tribunal by 10%
in each of the cases, meaning thereby that the Tribunal was not satisfied
about the manner in which the percentage of disability was assessed by
the Doctor. In fact, this Court, upon perusal of the record of the
Tribunal, could not find the corresponding medical record in respect of
the injuries suffered by the injured/claimants in most of the cases. The
fact, that even the Tribunal has expressed its reservations about the
authenticity and reliability of the percentage of disability mentioned by
the Doctor in the certificates issued by him, coupled with the fact that
the record of the Tribunal does not contain the medical record
corresponding to the injuries suffered by the injured/claimants/ it would
25
be highly unsafe to rely upon the disability certificates issued by
Doctor N.D.Dar.
31 The learned Tribunal has, after noticing the unreliability of
the certificates of disability, made a guess work on the basis of personal
opinion of the Presiding Officer, who is definitely not an expert. The
approach adopted by the learned Tribunal is not proper. Instead of
relying upon his personal expertise, the Presiding Officer of the
Tribunal should have taken guidance from the principles laid down by
the Supreme Court in the case of Raj Kumar vs Ajay Kumar and
another, (2011) 11 SCC 243 for assessing the actual loss of earning
,
capacity of the injured/claimants. Para (12) of the said judgment is
relevant to the context and the same is reproduced as under:
12. The Tribunal should also act with caution, if it
“
proposed to accept the expert evidence of doctors who did
not treat the injured but who give `ready to use' disability
certificates, without proper medical assessment. There are
several instances of unscrupulous doctors who without
treating the injured, readily giving liberal disability
certificates to help the claimants. But where the disability
certificates are given by duly constituted Medical Boards,
they may be accepted subject to evidence regarding the
genuineness of such certificates. The Tribunal may
invariably make it a point to require the evidence of the
Doctor who treated the injured or who assessed the
permanent disability. Mere production of a disability
certificate or Discharge Certificate will not be proof of the
extent of disability stated therein unless the Doctor who
treated the claimant or who medically examined and
assessed the extent of disability of claimant, is tendered for
cross- examination with reference to the certificate. If the
Tribunal is not satisfied with the medical evidence
produced by the claimant, it can constitute a Medical
Board (from a panel maintained by it in consultation with
26
reputed local Hospitals/Medical Colleges) and refer the
claimant to such Medical Board for assessment of the
disability .
”
32 Form the foregoing analysis of law on the subject, it is
clear that, in order to ascertain the nature of disability of an
injured/claimant and its effect upon his earning capacity, the Tribunal
has to make every effort to record the evidence of the Doctor who has
treated the injured or who has assessed his permanent disability. It is
also incumbent upon the Tribunal to constitute a Medical Board and
refer the claimant to such Medical Board for assessment of his/her
disability in case the Tribunal is not satisfied with the medical evidence
produced by the claimant.
33 In the instant case, as already stated hereinbefore, the
Tribunal itself was not satisfied with the accuracy of the percentage of
disability mentioned by Doctor N.D Dar in the certificates issued in
favour of the injured/claimants. In such a scenario, instead of trusting
his own expertise, the learned Presiding Officer of the Tribunal should
have referred the claimants/injured to a standing Medical Board for
assessment of their disability.
34 The contention of the learned counsel for the
claimants/injured that Dr. N.D Dar is a witness who has been produced
by the appellant before the Tribunal, as such, his statement is binding
upon the appellant, is not tenable, for the reason that the Tribunal,
while assessing the compensation under the MV Act is not bound by
the rules of evidence, but it is expected to make an enquiry and collect
27
the material on its own, so as to arrive at the figure of just
compensation. In this direction, once the Tribunal had come to a
conclusion that the disability certificates issued by the Doctor were not
accurate and reliable, the only option available with the Tribunal was to
refer the injured/claimants to a Medical Board for assessing their
disability.
35 For what has been discussed hereinbefore, the aforetitled
appeals are disposed of in the following manner:
(i) The amount of compensation awarded by the Tribunal
vide the impugned award in the claim petitions No. 24 and
93 relating to death of Miss Rozi Bano and Ms Bibi Hanief
is reduced from Rs.5,62,000/- to Rs.5,42,000/- along with
interest as awarded by the Tribunal; and,
(ii) The other appeals pertaining to injury cases are
allowed and the award passed by the Tribunal to the extent
of quantum of compensation is set aside and the cases are
remanded to the Tribunal with a direction to refer the
injured/claimants to a Medical Board for assessment of
their disability and, thereafter, pass fresh awards in
accordance with the law. The learned Tribunal shall do
well to decide the remanded cases within a period of six
months from the date a copy of this judgment is made
available to it.
36 The record along with a copy of this judgment be sent
back.
(Sanjay Dhar)
Judge
Jammu
29 .11.2024
“Sanjeev, ”
Whether the order is speaking: Yes
Whether the order is reportable: Yes