IN THE HIGH COURT OF JHARKHAND AT RANCHI ---- M.A. No. 317 of 2013 ----- The Divisional Manager, United India Insurance Company Ltd., Dhanbad Divisional Office, Rajhans Market Complex, Bank More, Distt-Dhanbad at present represented through its Deputy Manager, United India Insurasnce Co. Ltd., Vypar Bhawan, Lalji Hirji Road, P.S.Kotwali, P.O.Ranchi, Distt-Ranchi, -Tapas Kumar Saha, S/o Late S.N.Saha, resident of Peace Road, P.O.Ranchi, P.S.Lalpur, Dist-Ranchi. …...Appellant. -Versus- 1. Smt. Madhulika Kumari,W/O Late Saurabh Kumar.
2. Samar Kumar, S/O Late Saurabh Kumar, Both residents of Village Shitalpur, Pirganj, P.O.Shitalpur, P.S.Dighawara, Distt- Saran(Bihr) at present C/O Upendra Kumar Singh of V.I.P Colony, Polytechnic Road, P.O.-B.Polytechnic, P.S. & Dist- Dhanbad.
3. S. Gulzar Singh, S/o S. Surat Singh, r/oCharach Road, Jammu Basti, P.O.P.S.Distt-Abohar(Punjab). ….... Respondents. ----- CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA ----- For the Appellant : Mr. Ashutosh Anand, Advocate. For the Respondents : M/s. S.K.Sharma, Awnish Shankar & J.Majumdar, Rajesh Kumar, Advocates. ----- 16/03.08.2015 This appeal has arisen out of the judgment and award dated 31.07.2013 passed by the learned District Judge cum M.A.C.T-VII, Dhanbad in Title(M.V.) Suit no.121 of 2009 whereby the appellant was fastened with the liability and directed to pay the awarded compensation of Rs.24,14,040/- with interest @ 6% per annum from the date of filing of the application till the date of realization.
2. The claimant-Madhulika Kumari is the wife of deceased-Saurav Kumar, driver of the Air Force vehicle bearing registration no.06 D/168498 on 11.01.2008 which was hit by a speeding truck no.HR57A4611due to which deceased Saurav Kumar died on the spot. It is stated that he was employed as CLP(Corporal) (MTD Section) with the Indian Air Force and his salary was Rs.9341/- per month(revised to Rs.16,000/- per month w.e.f. 01.01.2006). During the proceeding the evidence was laid by the parties whereafter the aforesaid impugned order was passed by the learned Tribunal.
3. Learned counsel on behalf of the appellant, United India Insurance Company Ltd. (for short the Insurer) has contended that the learned Tribunal has erred in not framing any issue on mis-joinder and non-joinder of necessary parties in view of the fact that the appellant had raised objection that the owner of the air force vehicle was a necessary party and the case was one of contributory -2- negligence. It has been urged that admittedly the F.I.R reveals that this was a case of head-on-collusion and the deceased himself contributed to the accident, consequently the claimants were not entitled to compensation and even if the compensation awarded is upheld the liability should be apportioned 50:50 between the owners of the truck and the Air-Force vehicle. That the learned tribunal erred in not applying the principles of res ipsa loquitar and should have deducted 50% of the compensation amount on account of contributory negligence on the part of the deceased. It is argued that no witnesses were examined to substantiate or establish the fact that the deceased was a permanent employee and in the absence of such evidence, the enhancement of the income by 50% on account of future prospects is illegal. Learned counsel has stressed and emphasized that no document has been brought on record that the deceased was holding valid and effective driving licence and mere certificate of competency by the Wing Commander cannot be a documentary proof for establishing the factum that the deceased was holding a valid and effective driving license. That there is no statement by the claimant that they had not received any compensation amount under the Workmen Compensation Act. It is argued that the learned tribunal has erred in computing the compensation by not deducting income tax and other deductions made as per Ext.1 and has wrongly held that the income of the deceased was not within the taxable limit whereas it would be evident from Ext.2 that Rs.27,381/- was deducted as income-tax for the year 2007-2008 and it is settled principle that actual salary is calculated less the tax payable. It is contended that the compensation amount is highly inflated and exorbitant and the direction to pay interest @ 6% from the date of application has been passed without considering the fact that the claim application did not linger due to any fault of the appellant rather the protraction of the litigation took place due to the laches of the claimants. In support of his contention, learned counsel has relied on the decisions and judicial pronouncement reported in 2004(4) JLJR670 2008(3) TAC193Supreme Court), 2007(3) TAC11Supreme Court), 2009 Vol.3 JCR351JHR); (2008) Vol.6 SCC767 2008(4) JLJR437 The aforesaid decisions have been filed on the point of contributory negligence and on the point of non-production of driving licence and apportionment of the compensation amount between the owners of the vehicle in case of contributory negligence and it is submitted that impugned order is not sustainable in law or on facts.
4. Per contra, learned counsel for the respondent has submitted that the learned tribunal has considered and appreciated the material evidence on record including the evidence of eye- witness- Ram -3- Parwez(P.W.4), and has rightly held that the accident took place on account of the rash and negligent driving of the driver of the truck, i.e, the offending vehicle. The evidence on record shows that the driver of the offending vehicle sustained minor injuries and one of the occupants of the air-force vehicle, Monendra Kumar, survived the accident, however, Saurav Kumar, the driver of the air-force vehicle died on the spot. It is submitted that the appellant has not brought any evidence on record to show that Saurav Kumar was at fault or his negligence contributed to the accident. That perusal of Ext.2(revised pay) makes it abundantly clear that the income of the deceased was within the tax exemption limit and it is apparent from the letter addressed to the Manager, S.B.I Branch, Dhanbad with regard to payment of arrear amount of Rs.66,170/- to the deceased which shows that no income-tax was deducted consequently the computation of compensation is on the basis of actual salary and is in consonance with law. Learned counsel for the respondents has relied on the decision reported in 2009(2) JCR172SC) and submitted that in the absence of any evidence mere pleading is no proof. He has referred to the decision reported in 2009 AIR SCW4992regarding the settled steps to be followed for determining and computing compensation. He has also cited the decision in 2008 ACJ1165on the point of contributory negligence and also relied on the decisions in 2015 AIR514 2014 AIR SCW1709and 2008 Vol.2 JLJR96 5. Having heard the learned counsels for the parties, it would be evident that the emphasis of the learned counsel for the appellant is focused on the point that the learned trial court failed to consider whether the deceased had a valid and effective driving licence. In this context, it is noticed that the learned trial court has framed issue no.5 and held that the claimants filed a certified copy of the permit and driving licence of the driver of the truck bearing registration no.HR57 4611. The certificate issued by the Wing Commander, Commanding Officer 776 SLI, AF was considered and it was found by the court that the deceased was a mechanical driver of the Indian Air Force. The argument of the learned counsel for the appellant on this aspect is that such certificate issued by the Wing Commander cannot be termed as a valid driving license in terms of the provisions of the Motor Vehicles Act 1988. For appreciating the arguments advanced by the learned counsel for the appellant, it is pertinent to refer to Chapter II of the Motor Vehicle Act, 1988 which contains the provisions regarding the licensing of drivers of motor vehicles. Sections 3 and 4 prescribe the necessity for driving license and the age limit for the same. Section 9 provides for the grant of driving license and the 4. proviso a(ii) of Sub-section (3) of Section 9 stipulates that the applicant holds or has previously held a driving license to drive such class of vehicle issued under Section 18. Section 18 reads as follows:- “S.18....driving licence to drive motor vehicles belonging to the Central Government.- (1) such authority as may be prescribed by the Central Government may issue driving license valid throughout India to persons who have completed their 18th year to drive motor vehicles which are the property or for the time being under the exclusive control of the Central Government and are used for government purposes relating to the defence of the country and unconnected with any commercial enterprise.......” It is evident from the provision that an authority prescribed by the Central Government can issue a driving license with respect to the vehicles used for the purpose relating to the defence of the country. Admittedly, the certificate i.e. Ext.8 was brought on record which was issued by the Wing Commander, Commanding Officer. In such a fact situation, the onus lay on the insurance Company to bring on record that the Wing Commander was not a prescribed authority by the Central Government to issue the certificate regarding the competency of the deceased to drive the vehicle involved in the accident. It is evident from the record that the appellant-Insurance Company has not been able to substantiate its pleadings by bringing any document be it a letter or notification of the Central Government to rebutt or controvert the fact that the Wing Commander was not a competent authority prescribed by the Central Government to issue such a certificate. The argument advanced by the learned counsel that the claim was barred for non-joinder of the owner i.e. the Air-force, of the vehicle being driven by the deceased is not acceptable as the learned court below has considered the recital in the F.I.R wherein it is stated that when the informant along with the deceased reached near the bus stand on national highway no.10, then all of a sudden, the speeding truck bearing registration no.HR57 4611 being driven in a rash and negligent manner dashed Air Force vehicle, head-on as a due to which the informant sustasined serious injuries and the driver i.e. Saurav Kumar died on the spot. On the basis of the F.I.R Fatehabad P.S.Case No.1108 was registered under Sections 279/304A/427 IPC against Gurmeet Singh, driver of the offending vehicle and charge-sheet(Ext.5) was submitted against the driver of the offending vehicle, i.e., truck bearing registration no.HR57 4611 under the aforesaid sections. P.W.4 is the eye witness and the court has discussed his evidence 5. wherein he has testified that he was driving a coal-laden truck no.HR38-5359 and truck no.HR57 4611 tried to overtake his vehicle and dashed the fauji(defence vehicle) which was coming from the opposite direction. Consequent thereto the driver of the defence vehicle was trapped between the steering wheel and died on the spot. P.W.4 has categorically stated the accident occurred due to the rash and negligent driving of the offending truck no. HR57 4611. He was cross-examined but his evidence remained intact. On the basis of the evidence the trial court held that the accident occurred due to the rash and negligent driving of the truck no.HR57 4611. The onus was on the insurer to rebut the same and it could have produced the surveyor's/ investigator's report or the accident report to substantiate the plea that the accident had occurred due to the contributory negligence of the deceased driver-Saurav Kumar. It is settled principle of law that the burden of proof in terms of Section 103 of the Evidence Act, lies on the person who alleges the same. It is well settled that pleadings are required to be proved by leading cogent evidence and mere pleading is no proof and in the absence of any evidence in support of the pleading, the contention of the learned counsel for the appellant and the decisions relied on are of no help rather the contention is misplaced and not acceptable.
6. Learned counsel for the appellant has contended that the claimants have brought on record the certified copy of the F.I.R wherein the recital reveals that there was head-on collision between the air-force vehicle bearing registration no.060/168498 and the truck bearing registration no.HR57 4611. It is argued that since the claimants have relied on the said contents of the F.I.R, they cannot be permitted to deny the manner in which the accident took place since there was a head-on collision between the two vehicles, the trial court should have held that there was contributory negligence on the part of the air-force vehicle. That had the Air-Force vehicle taken due care and caution by slowing down or swerving the vehicle, the accident could have been avoided. Since the deceased driver neither slowed down nor swerved the vehicle hence both the drivers were equally negligent and their contributory negligence was the cause of the accident. In support of his contention, he has relied on the decision reported in 2007(3) TAC II(SC) and 2008(3) TAC193SC). He has also stated that it is a case of composite negligence and the owner of the Air Force vehicle was a necessary party accordingly the claim case is bad for non joinder of parties.
7. The contention of the learned counsel is not tenable in view of the discussion made in the above paragraph that it is revealed from the testimony of P.W.4, a witness to the accident, who has testified that on 6. that day he was on his way to Bhatinda on truck bearing registration no.HR38 5359 and the offending vehicle, viz, truck no.HR57 4611 which was coming behind his truck, tried to overtake his vehicle near village Dhangar and dashed the 'fauji' vehicle coming from the opposite direction. He deposed that the offending vehicle was being driven in a rash and negligent manner. That the driver of the truck sustained minor injuries and the wind-shield of both the vehicles were damaged. He also denied the suggestion that the accident occurred due to the fault of Saurav Kumar. The charge-sheet was submitted against the driver of the truck no.HR57 4611. The Insurance Company has not adduced any cogent evidence to substantiate its plea that it is a case of composite negligence and if not composite, it is a case of contributory negligence. The evidence of P.W.4 has remained intact that the offending vehicle tried to overtake P.W.4's truck and was being driven rashly and negligently and it hit the air-force vehicle coming from the opposite side due to which the driver of the air-force vehicle was trapped between the steering wheel. The other occupant of the air-force vehicle received serious injury and the driver of the offending vehicle received minor injuries. If one picturises the manner of the accident, it is abundantly clear that the impact of the collision was towards the seat of the driver of the Air Force vehicle and the truck being a heavy and taller vehicle had damaged the side occupied by the driver of the Air-Force vehicle. It was due to this that the driver of the truck received minor injuries whereas the driver of the Air-Force vehicle on account of the impact by the heavier vehicle, was nailed between the steering wheel and died on the spot. It would be relevant to mention that the Insurance Company has taken the plea of Contributory/Composite Negligence for the reason that there was head on collision. It is significant to notice that every case of head on collision does not make out a case of Contributory Negligence. The manner and place of collision has to be proved. The offending vehicle moving to the wrong side of the road colliding head on with the vehicle coming from the other side will never be a case of Contributory Negligence. But head on collision in the middle of the road could be a case of Contributory Negligence. In the instant case as per the evidence, accident took place when the offending vehicle was trying to overtake. This speaks in volumes of the negligence by the offending truck. As noticed, it is just the pleading of the Insurance Company and no evidence was brought forth by the appellant-Insurance Company to establish the contention that this case was of composite negligence or even of contributory negligence on the part of the deceased driver of the air-force vehicle. In view of the evidence on record, it is held that the accident resulting in 7. the death of the deceased Saurav Kumar was on account of rash and negligent driving by the driver of the offending truck. The contention that the owner of Air Force vehicle was a necessary party is misdirected because the choice of selecting the tort- feasor is with the claimant or the legal heirs of the deceased and in case of composite negligence the claimant can recover the compensation from any of the joint tort-feasors. In the facts of the instant case such plea is discarded.
8. Learned counsel has also contended that the tribunal has erred in computing the compensation by not deducting the income-tax from the salary which was taxable. Responding to the argument of the counsel it is evident from the impugned judgment/award that the trial court has considered the salary slip (Ext.1) , which has been proved by Rajesh Kumar(P.W.3), an employee of Air-Force, Bihta. He has proved the authorisation letter(Ext.3) issued by the In-charge Legal Officer, Bihta and also proved the revised salary slip which is Ext.2. The revised salary slip, which was effective from 01.01.2006 disclosed that the salary of the deceased was Rs.11,760/- as on 01.01.2008 and the deceased was also paid arrears of Rs.62,595/- . The deceased died on 11.01.2008 and at that time his salary was fixed at Rs.11,760/-. The Tribunal held that the income of the deceased was within the exempted limit of income-tax thus, the contention of the learned counsel that the tribunal has not deducted the tax payable from the salary of the deceased while computing the compensation is not tenable. The trial court has discussed the ratio laid down in the case of Sarla Verma vs. Delhi Transport Corporation, reported in 2009 ACJ1298and has deducted 1/3rd towards personal expenses. It is amply clear that the deceased was a salaried person holding a permanent job. He was aged 28 years. The learned Tribunal considered the promotional avenue of the deceased and in Ext.2 it is described that in normal course the promotional post was up to Master Warrant Officer. In view of the guidelines of the Apex Court, the Tribunal has correctly added 50% of the income towards future prospect and assessed the annual loss of dependency of the family at Rs.1,41,120/- and by applying the multiplier of 17, the total loss of dependency has been computed at Rs.23,99,040/-. The trial court has awarded an amount of Rs.5,000/ each towards loss of consortium, funeral expenses and loss of estate. To my considered view, this amount is meagre considering the age of the dependents. Accordingly this Court awards a consolidated amount of Rs.1,50,000/- towards loss of estate, loss of consortium and funeral expenses. Thus the final amount awarded by the trial court stands modified to the extent that the amount payable is enhanced to Rs.25,49,040/- payable with interest @ 6% per annum from the date of 8. filing of the claim application, till the date of passing of the award by the trial court and at the rate of 9% from the date of award of the trial court to the date of payment to be made within two months from the date of this order failing which 12% interest shall be payable from the date of this judgment.
9. In view of the discussions made above, this Court finds no reason to interfere with the impugned judgment. The appellant is directed to pay the aforesaid amount of Rs.25,49,040/- with interest as stated above. The aforesaid payment shall be made after deducting the amount paid, if any, in the name of the respondent no.1 who shall receive the same for herself and on behalf of her minor daughter. Respondent no.1 is directed to deposit Rs.15,00,000/- in a fixed deposit scheme with any nationalized Bank for a period of 5 years or till the attaining of the majority of her minor daughter.
10. The award is accordingly modified and the appeal is hereby dismissed. (Amitav K. Gupta, J) Biswas.