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Gurbachan Kaur Vs. Savita Kapoor and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inII(1984)ACC200
AppellantGurbachan Kaur
RespondentSavita Kapoor and ors.
Cases ReferredIn Bhagat Singh Sohan Singh v. Smt. Om Sharma and Ors.
Excerpt:
.....it, no liability for compensation payable to the claimants in this case could be fastened upon the insurance company. air1964pat548 .it follows, therefore, that as the insurance company has failed to show that the tractor was being driven by a person who did not hold a valid driving licence it cannot be absolved from liability for payment of compensation in this case. it was further observed that the suitable multiplier shall be determined by taking into consideration the number of years of the dependency of the various dependents, the number of years by which the life of the deceased was cut short and the various imponder able factors such as early natural death of the deceased, his becoming incapable of supporting the dependents due to illness or anyother natural handicap or clamity,..........according to him, it was the scooter which hit the tractor- trolly, but he too deposed that the tractor driver drove off the tractor after the accident. kuldip singh, respondent appeared as rw 2 and denied that he was driving the tractor at that time of the accident or that he had ever purchased it.10. the evidence on record thus establishes the fact that the accident took place while the scooter was trying to go past the tractor and the tractor suddenly turned to its right without giving any warning or indication to the deceased. there is no suggestion much less any evidence that the tractor driver had made any efforts to avoid the accident. it is also significant that the tractor driver did not stop after the accident, but drove off. there can thus, be no manner of doubt that the.....
Judgment:

S.S. Sodhi, J.

1. Travelling on his scooter on the Patiala Malerkotla Road, Varinder Kumar was trying to over-take a tractor going a head, when this tractor suddenly turned to its right to go on to the link road to village Dhingi. In the resultant accident, Varinder Kumar sustained injuries and was killed. This happened on January 3, 1979.

2. It was the finding of the Tribunal that the accident had been caused entirely due to the negligence of the driver of the tractor PUC-4974. A sum of Rs. 55,000/- was awarded as compensation to the claimants, they being the widow and two minor children of the deceased as also his parents. The liability for the payment of the amount awarded was fastened wholly upon Smt. Gurbachan Kaur, who was held to be owner of the tractor.

3. In appeal Smt. Guibachan Kaur in the first instance challenged the finding of negligence recorded against the driver of the tractor. In the alternative she raised the plea that the liability for the payment of the amount awarded was at any rate that of the respondent Insurance Company as the tractor stood with it on the date of the accident.

4. The claimants in their appeal sought enhanced compensation.

5. On the point of negligence, the case set up by the claimants was that the tractor had suddenly turned towards its right without any signal or warning and it was then that it hit against the scooter with such great force that the deceased was crushed under the wheel of the tractor-trolly and died at the spot.

6. Smt. Gurbachan Kaur in her written statement took ihe plea that she was not the owner of the tract or on the date of the accident and that she had sold it to respondent Kuldip Singh on December 12, 1978 and had also handed over possession thereof to him on that day.

7. The respondent Kuldip Singh controverted the plea of Smt. Gurbachan Kaur regarding owneiship of the tractor, by stating that he was not the owner of the tractor nor was it in his possession. He also denied that he had been driving the tractor at the time of the accident.

8. The stand of the respondent, Insurance Company was that as the tractor had been sold to Kuldip Singh respondent, no liability could be fastened upon it as he was not the insured in respect of the tractor. A plea was also raised that the tractor was not being driven by a licenced of authorised driver at the time of the accident.

9. As regards the issue of negligence, the eye witness account of the occurrence was given by Shakti Sarup Sharma, who was examined as PW 3. It was his testimony that he was sitting on the pillion seat of the scooter of the deceased at the time of the accident. He quite clearly and categorically stated that when the scooter was trying to go past the tractor, the tractor suddenly turned to its right without giving any signal and it then came and hit into the scooter. It was further his testimony that the driver of the tractor did not stop the tractor thereafter, but drove off and went away. He deposed that he was later told that the driver of the tractor was Kuldip Singh alias Deepu. In cross examination, however, he admitted that he could not identify the driver of the tractor when he appeared in the Criminal Court in the case against respondent Kuldip Singh. There is then the testimony of PW 3 Raj Kumar, who stated that he has a shop at bus stop Dhingi and was present when this acci- dent took place. According to him, it was the scooter which hit the tractor- trolly, but he too deposed that the tractor driver drove off the tractor after the accident. Kuldip Singh, respondent appeared as RW 2 and denied that he was driving the tractor at that time of the accident or that he had ever purchased it.

10. The evidence on record thus establishes the fact that the accident took place while the scooter was trying to go past the tractor and the tractor suddenly turned to its right without giving any warning or indication to the deceased. There is no suggestion much less any evidence that the tractor driver had made any efforts to avoid the accident. It is also significant that the tractor driver did not stop after the accident, but drove off. There can thus, be no manner of doubt that the blame of the accident must lie entirely with the driver of the tractor and consequently the finding of negligence recorded by the Tribunal against the tractor driver must be upheld.

11. The question which next arises for consideration is with regard to the identity of the driver of the tractor, as the Insurance Company had taken the objection that the driver did not have a valid driving licence and also that he had not been.authorised to drive it by the owner of the tractor. The evidence on record, does indeed show that the identity of the tractor driver was unknown. According to P W 3 Shakti Sarup Sharma, be had been told the name of the driver of the tractor namely respondent Kuldip Singh, but he had not seen him nor could he identify him. Shakti Sarup Sharma had mentioned that he had been giving the name of Kuldip Singh by Ashok Kumar, Raj Kumar, Som Nath and others, but none of these persons has been examined in this case. Kuldip Singh when he appeared as RW 2 categorically denied that he had been driving the tractor at the time of the accident. Indeed his statement was that he does not know how to drive a tractor. He also stated that he is not known as Deepu. It would be recalled that Shakti Sharma had said that the name of the driver of the tractor was Kuldip Singh alias Deepu. It follows, therefore, that the identity of the driver of the offending tractor has not been established in his case.

12. As regards the owner of the tractor, it stands established that on the date of the accident the tractor was owned by Smt. Gurbachan Kaur. This finding of the Tribunal has not been challenged in appeal.

13. The tractor involved in the accident stood insured with the respondent Insurance Company on the date of the accident. Smt. Gurbachan Kaur was admittedly the insurer on that day. Mr. L.M. Suri, counsel for the respondent Insurance Company however, sought to raise the contention that as the claimants and Smt. Gurbachan Kaur had failed to prove that the tractor was being driven by a person holding a valid licence or by a person authorised to drive it, no liability for compensation payable to the claimants in this case could be fastened upon the Insurance Company. In other words, the burden of proving that the driver of the tractor had been authorised to drive it and that he held a valid driving licence lay upon the claimants and the owner of the vehicle, and this burden had not been discharged by them.

14. Under Section 96(2)(ii) of the Motor Vehicle Act, the insurer can defend a claim forcompensation on the grounds that the vehicle was being driven by the person, who was not duly licenced. The Supreme Court in Bishan Devi and Ors. v. Sirbaksh Singh and Anr. : [1980]1SCR300 , however, held that when the plea is taken that the driver of the offending vehicle was not duly licenced, it is the duty of the insurer to substantiate it. In M.. Subramanya Bhat v. Gobindraj and Ors. AIR 1979 Karnataka, 114, the driver named by the claimants was proceededex parte. The insurance Company had raised the plea that the driver did not hold a valid driving licence. The only witness examined on behalf of the Insurance Company stated that he did not know, who was driving the vehicle at the time of the accident. It was held that it was for the Insurance Company to establish any breach of conditions of the policy and the burden thus lay upon the Insurance Company to prove that the vehicle was driven by a driver, who did not hold a valid driving licence at the time of the accident. A similar view was expressed by the High Court of Patna in Jogindra Kuer and Ors. v. Jagdish Singh and Ors. : AIR1964Pat548 . It follows, therefore, that as the Insurance Company has failed to show that the tractor was being driven by a person who did not hold a valid driving licence it cannot be absolved from liability for payment of compensation in this case.

15. The question next arises as to the amount payable to the claimants as compensation in this case. The principles governing this matter are those as set out to the Full Bench in lachhman Singh v. Gurmit Kaur 1979 P.L.R. 1, where it was held that the compensation to be assessed is the pecuniary loss caused todependants by the death of the deceased and for the purpose of calculating the just compensation annual dependency of the dependants should be determined in terms of the annual loss accruing to them due to the abrupt. termination of life For this purpose annual earnings of the deceased at the time of the accident and the amount out of the same which he was spending for the maintenance of the dependents will be determining factor. This basic figure will then be multiplied by a suitable multiplier. It was further observed that the suitable multiplier shall be determined by taking into consideration the number of years of the dependency of the various dependents, the number of years by which the life of the deceased was cut short and the various imponder able factors such as early natural death of the deceased, his becoming incapable of supporting the dependents due to illness or anyother natural handicap or clamity, the prospects of the remarriage of the widow, the coming up of the age of the dependents and their developing independent sources of income as well as the pecuniary benefits which might accrue to the dependants on account of the death of the person concerned.

16. Seen in the context of the ruling of the Full Bench in Lachhman Singh's case (Supra) it deserves note that Varinder Kumar, deceased, was only 34 years of age at the time of his death. He was working as a Line Superintendent in the office of the Chief Engineer and according to PW 1 Sh. K. K. Sharma, Senior Auditor, his total emoluments at the time of his death were Rs. 750/- per month. It has also come on record that the deceased also had prospects of further advancement in his career which would have led to an increase in his emoluments. The deceased died leaving behind his widow Smt. Savita Kapoor, who was about 31 years of age at the time of his death and their two minor children. The parents of the deceased were of advanced age, bis father being 74 years old. In these circumstances, 16 would clearly be the appropriate multiplier to be adopted and after taking into account the amount that the deceased would have spent upon himself and various impon-derables as mentioned in the Full Bench decision, the loss deserves to be computed at the rate of Rs. 6,000/- per annum which would work out to Rs. 96,000/-.

17. A plea was raised that out of the amount payable to the claimants, a sum of Rs. 13,000/- deserved to be deducted, this being the amount which the employees of the Punjab State Electricity Board had collected and paid ex gratia to the claimants on account of the death of the deceased. There is clearly no warrant for making any such deduction on this account. In Bhagat Singh Sohan Singh v. Smt. Om Sharma and Ors. 1983 P.L.R. 1 it was held by the Full Bench that sums of money paid as public or private benevolence, have on principle been rightly excluded because their benefactors could never intend that their munificence should go to the tort feasor and not to the deceased.

18. The compensation payable to the claimants is accordingly hereby enhanced to Rs. 96,000/-. They shall be entitled there to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. The liability for the amount awarded shall be joint and several of respondent Smt. Gurbachan Kaur as also the Insurance Company. Out of the amount awarded a sum of Rs. 10,000/ shall be payable to the parents of the deceased in equal shares, Rs. 20,00.0/- each to the two minor children of the deceased and the balance to his widow. The amount payable to the children shall be paid in such manner as the Tribunal deems to be in their best interest.

19. In the result, both the appeal of the claimants as also that of the owner Smt. Gurbachan Kaur are hereby accepted with costs. Counsel's fee Rs. 300/- in each appeal.


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