Darshan Singh and ors. Vs. Bimla Rani and anr. - Court Judgment

A. Banerjee, J.

1. This first appeal from order arises out of an award passed by the Motor Accident Claims Tribunal (V. Addl. District and Sessions Judge) Saharanpur awarding a sum of Rs. 24,528/- as compensation to the claimant Smt. Bimla Rani as against the two appellants and interest from the date of accident till the date of payment of the aforesaid amount @ 6% per annum. The claim against insurer M/s. New India Insurance Company was dismissed. The appellants, who have been directed to pay the entire amount of compensation, have filed this appeal.

2. The accident took place in the city of Saharanpur on 5th Nov. 1977 in which one Arun Kumar, son of the claimant was fatally injured by the motor truck No. USV 8320. The vehicle was owned by Ranjit Singh and was being driven by Darshan Singh. Arun Kumar was aged only 14 years and he was son of an Editor of a local daily newspaper. He was crashed in the accident and was removed to the hospital where he died seen thereafter. Bimla Rani mother of the deceased filed a claim petition praying for Rs. 50,000/- as compensation. It was alleged that the accident was caused due to rash and negligent driving Notice was issued to the Insurer and it was made a party in the proceeding. The present appellants filed their joint written statement. The fact that Arun Kumar was hit by vehicle No. USV 8320 at Banerji road on 5th Nov., 1977 at about 2 p.m. was not disputed. The fact that Ranjit Singh was the owner of the said truck was also not disputed. But it was stated that at the relevant time, the truck was not being driven by Darshan Singh. It was also denied that there was any rash or negligent driving. It was further denied that Arun Kumar was earning any amount or doing any electrical Job. The amount claimed was said to be highly excessive.

3. The insurance company in their separate written statement stated that the motor truck No. 8320 was not insured with them and the truck in question had no valid registration nor a valid route permit nor was driven by duly licensed driver.

4. The Tribunal held that the accident took place due to rash and negligent driving on the part of the driver of truck No. USV No. 8320. The driver was Sri Dharshan Singh. The truck was insured with the Insurer M/s. New India Insurance Company. Further finding of the Tribunal was that at the time of accident, the truck was not being driven by duly licenced driver and as such, the Insurer was not liable to pay any amount of compensation. No evidence has been led to show that the motor truck in question did not have valid registration and valid route permit. Consequently the issue was answered against the Insurer. On the question of compensation, the Tribunal held that Arun Kumar made contribution of an average of Fs. 120/- per month to his mother and he would have continued to do so for the next 11 years and thereafter for the next 16 years at the rate of Rs. 160/- per month. The Tribunal thus calculated that Arun Kumar would have contributed to his mother a sum of Rs. 36,440/- during her life time and deducting 30 per cent from the above as lump sum payment was called for, ultimately held that a sum of Rs. 24,528/- was payable as compensation in this case. It was also observed that 'the personal suffering regarding bodily pain etc., of Arun Kumar cannot obviously be cashed in this claim.' this amount was made payable as against O.P. Nos. 1 and 2 i.e. the present appellants whose liability was held to be joint and several. The Insurance Company was not held to be liable to made payment of any amount.

5. In this appeal, Mr. A.K. Sharma, learned Counsel for the appellants the owner and the driver of the truck raised four contentions. Firstly, there was no rash and negligent act on the part of the driver. Secondly, Darshan Singh was not the driver of the truck at the time of the accident. Thirdly, the amount of award was excessive for a boy aged 14 years, reading in Class VIII at the time of accident and fourthly, the Tribunal has wrongly directed that the amount of compensation will be realised from the appellants and not from the Insurance Company, which was also liable to pay the same.

6. We have carefully gone through the evidence on record and heard the learned Counsel for the parties. As far as the question of rash and negligent act is concerned, we have on the record vivid description as to how the truck crushed Ashok Kumar. He was accompanied by his father Babu Ram Hardy on that fateful day. This accident took place at a congested area of the city and was seen by may persons. After the accident, some people shifted the boy to a hospital. The father, seeing the accident, became unconscious. After regarding consciousness and learning that his son has been taken to hospital, he rashed to the hospital. The boy died in the hospital within a short time of his admission. Evidence on the record shows that his intestine had come out. It means that the truck had crushed the boy with its wheel. Evidence has been led to show that the vehicle's speed was about 15 to 20 kms. per hour. It was argued that when the truck was in such a slow speed there was no question of any rash or negligent act on the part of the driver. We are unable to accept this argument. If the vehicle was being driven at such a slow speed it ought not to have been at all difficult for the driver to have either stopped the vehicle completely or avoided running over the boy. It is well established that the boy was at the extreme left of the road. There is nothing to show that the boy dashed across the path of the vehicle suddenly and the driver was taken unaware. It is not enough to state that the vehicle was going a slow speed. What had to be established that there was no rash or negligent act on the part of the driver. The very fact that the driver failed to control the vehicle even at a slow speed and came to the extreme right of the road to run over the boy, is by itself in indication of his rash and negligent driving. Further, the driver of the vehicle left the vehicle and ran away, an indication of his guilt complex. All these factors go to show that the driver of the vehicle was responsible for the accident and the death of the boy. We find the driver guilty of rash and negligent act resulting in the death of Arun Kumar.

7. There is one more circumstance to be noticed. It was essential that the driver of the truck held at the relevant time a valid driving licence and was entitled to drive a truck, i.e., a transport vehicle, in a public place. A motor vehicle licence can be obtained by a person not before he has completed 18 years of age. Section 4(2) of the Act prohibits a person under the age of 20 years to drive a public transport vehicle in a public place. The only exception being the provision of Section 14 of the Act in regard to government vehicles. The same is not applicable to the facts of the present case. Let us now examine the evidence to see if Darshan Singh, the alleged driver of the vehicle, was holding a valid driving licence for a public transport vehicle.

8. Darshan Singh, brother of the owner of the vehicle Ranjit Singh, has stated that he was born on 12th May, 1958. He was therefore 19 years and months old on the date of the accident, i.e., 5th November, 1977. His own statement shows that he obtained the driving licence on the 21st February, 1976. It means that he was not even 18 years old when the driving by a person less than 18 years of age in a public place. Section 4(2) prohibits driving of a transport vehicle in a public place by a person under the age of 29 years. It is thus clear that not only was the licence wrongly issued or obtained by Darshan Singh in this case but he did not held a valid driving licence to drive a transport vehicle in a public place on the dale of the accident. A person driving a vehicle without a proper driving licence is an unauthorised driver and this by itself can be construed on a rash act.

9. We feel constrained to observe that granting of driving licence to minors or to persons ineligible for such licence by the Transport Authorities is a grossly illegal act and has grave consequences. It may very well be said that the transport authority grants licence to kill or main persons, in such cases. The facts of this case show that the driving licence was issued to Darshan Singh without proper verification of his age or eligibility.

10. The next question is whether Darshan Singh was driving the vehicle at the time of accident There is positive evidence on behalf of the claimant that Darshan Singh was the driver of the vehicle. Not only the father of the deceased but also Subhash Chand Bharti (P.W. 6) have stated this. An effort was made to show that they did not recount having seen him. But that would not absolve Darshan Singh. He refused the charge that he was driving the vehicle at the time of accident. He named one Fateh Mohammed, who was in employment of Ranjit Singh, the owner of the truck and was driving the said vehicle at the time of accident. If that were so, Fateh Mohammad should have been examined as he was the best person to depose as to how the accident took place. But Fateh Mohammad has not been examined in this case. Further, the evidence of Darshan Singh appears to be motivated for self-preservation. On the contrary, the evidence produced by the claimant appears to be reasonable and reliable. We, therefore, have no reason to disagree with the finding arrived at by the Claims Tribunal that Darshan Singh was driver of the vehicle at the time of accident.

11. Once it is held that Darshan Singh was driving the vehicle at the time of accident and he was not qualified to drive a transport vehicle in the public place, it would be evident that the Insurer would not be liable to pay any compensation. An effort was also made to show that there was no clause in the Insurance Policy which made the Insurer not liable to pay any compensation for the accident. In our opinion, this contention has no substance at all. In the first page of the policy, which forms part of the record, one of the conditions was that the vehicle was to be driven by a person holding valid driving licence at the time of accident. The Insurance Policy which relates to the vehicle, in fact is made with the object of underwriting or converting the liability of the owner of the vehicle. It the owner is held liable to pay compensation in a motor vehicle accident to a third party the Insurer would pay an amount subject to the conditions of the policy. One of the conditions of the policy was that the liability was limited to a maximum amount of Rs. 50,000/-. Another condition for passing on the liability to the Insurer was that at the time of the accident the vehicle must be shown to have been driven by a person holding a valid driving licence. If there was any breach of conditions, the liability would not pass on to the Insurer.

12. Section 96(2)(d)(ii) of the Motor Vehicles Act provides that no sum shall be payable by an Insurer where there has been breach of specific condition of the policy for example a condition excluding driving by a named person or persons or by any person who is not duly licenced. The policy of Insurance filed in the present case clearly shows that there was a condition that the vehicle was to be driven by a person holding valid driving licence. Thus the Insurance Company would validly take defence under Section 96(2)(d)(ii) of the Motor Vehicles Act and in our opinion, the Insurance Company has been able to prove that there was a condition which has been breached by the Insured the owner of the vehicle in the present case. Reference may also be made to Section 5 of the Motor Vehicles Act which provides that no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provision of Section 3 or Section 4 to drive the vehicle. Consequently, where the owner permits a person who does not hold a valid driving licence for the transport vehicle, is equally liable.

13. In the present case, as mentioned earlier, Darshan Singh had obtained the driving licence on 21st February 1976 when he was certainly not even 18 years of age and on 5th Nov. 1977, he was driving a transport vehicle. He was under 20 years of age and consequently, the liability for payment of compensation would be squarely on the driver and the owner of the transport vehicle. The view taken by the Tribunal in this regard is correct and we upheld the same.

14. The last point urged was that the amount awarded was excessive. The Tribunal has held that a sum of Rs. 24,528/- was payable in lump sum to the claimant. No amount of money can ever compensate a person for loss of a child. Compensation is given to financially assist the family of the dependants of the deceased. There was a contribution made by Arun Kumar which was assessed as Rs. 120/- per month. He evidence was led from the other side to show that the figure given by the claimant was wrong or highly exorbitant. The finding of the Tribunal in regard to the amount of contribution made by the deceased to his mother appears to be plausible and in the absence of any cogent evidence on the contrary, we accept the same. The Tribunal has followed one of the two well known principles for assessing compensation in motor accident cases. Firstly, the gross amount which the deceased would have contributed to the claimant for the life time of the claimant or during the working years of the deceased, had he lived, and then deduct 38 per cent of the same as lump sum was to be paid. The other method is to find out the approximate yearly contribution of the deceased and apply the multiplier (between 15 to 20) and arrive at a lump sum figure from which no further deduction is made. There are decisions of their Lordships of Supreme Court and the High Courts on the point in issue that a multiplier of 16 is approved in the case of a person aged under 30 years. The multiplier goes on decreasing as the person's age increases. Even if the multiplier system is adopted and a multiplier by 16 is applied to the contribution of Rs. 120/-per month, i.e., Rs. 1440/- per annum, it would total a sum of Rs. 23,040/-. As there is not much difference between the sum of awarded and the amount of Rs. 23,040/-, we see no reason to interfere with the quantum of compensation awarded by the Tribunal. There is no cross-objection or any appeal on behalf of the claimant in this Court, consequently there is no question of enhancing the amount of compensation.

15. For the reasons indicated above, we find no merits in this appeal which must fail.

16. In the result, the award of the Tribunal dated 21st May 1973 is upheld and the appeal is dismissed with costs.