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2003 DIGILAW 258 (JK)

National Insurance Co. Ltd. v. Gh. Mohd. Wani

2003-08-30

SYED BASHIR-UD-DIN

body2003
1. In claim petition No.32/2000, the MACT (District Judge Pulwama) has by order dated 8.8.2002 awarded compensation in the sum of Rs. 4,00,000/- to the claimant parents of one Sheeraz Ahmed Wani with 6% simple interest from the date of filing of the petition (5.3.2000) till realization. This award is impugned in this appeal by National Insurance Co. 2. The counsel for the appellant Insurance Co. has made two fold submission. First that the award is on higher side and second that the owner and driver of the vehicle are to be saddled with liability to pay the award amount as the driver (respondent no. 1) is found by the Tribunal driving the offending vehicle on the material date without driving licence. Counsel for the claimant in reply has defended the award on the ground that the compensation has been awarded in terms of law as assessed on evidence on record. It is conceded that driver respondent no. 1 is without a valid license. But even so the counsel contends that this amount is to be paid by the Insurance Co. and the amount can be recovered by the Insurance Company from the owner (Respondent No.2). 3. It is not in dispute that the Sheeraz Ahmed Wani who died as a result of fatal injuries sustained by him in the Vehicular accident in question when respondent no. 1 was on the steering was of 22 years age, the claimants are his father and mother and the rash/negligent driving is the cause of accident. The vehicle so far as 3rd party is concerned was duly covered by Insurance cover and the policy on the material date is also admitted. The impugned judgment is perused. 4. Ld. Counsel for the parties do agree that on evidence recorded and appreciated deceased™s per month income is assessed at Rs. 3000/- and after applying recknor of 15 and deducing l/3rd as personal expenses of the deceased the compensation is assessed at Rs. 3,60,000/- (2000x 12x 15). The MACT has specifically referred while arriving at the figure of compensation to schedule-II read with Section 163-A of the Motor Vehicle Act. The provision provides that in case of death due to accident arising out of Motor Vehicle compensation as indicated in the IInd schedule shall be paid to the legal heirs of the deceased by the owner of the vehicle. The provision provides that in case of death due to accident arising out of Motor Vehicle compensation as indicated in the IInd schedule shall be paid to the legal heirs of the deceased by the owner of the vehicle. This 2nd schedule structured formula in assessing the compensation provides in a case like the present one a multiplier of 17 after the annual income is treated as Rs. 36,000/-. The figure arrived at is to be reduced by 1/3rd for consideration of the expenses which the victim may have incurred to maintain himself had he been alive. Seen thus on appreciation of evidence the MACT has correctly assessed the compensation and awarded Rs. 3,60,000/- as the compensation for the fatal accident in question. However, the Ld. Counsel for the appellant has taken an exception to award of Rs. 10,000/- as funeral expenses and Rs. 10,000/- for loss of love and affection and Rs.20,000/- on expectation of life. Added thus is Rs. 40,000/- to the above awarded compensation. 5. The counsel is right in submitting that the general damages which are payable in addition to the above compensation under head funeral expenses as given by the structured formula is Rs. 2000/- and other expenses as applicable to the facts and circumstances of this case are not provided by the schedule. The counsel is not denying this legal preposition as applicable to this case but goes on to contend that the claimants are entitled to this amount in addition to the compensation awarded. Even if the contention of counsel is taken at face value then there has to be some evidence to show that the general damages awarded on account of loss and affection an on account of expectation of life has actually occasioned. This is not the case here. No evidence is available on either count. It cannot be ipsi dixit of MACT even given the fact that Schedule-II serves as guide notwithstanding the mistakes which may be detected in calculation of the income and figure arrived at in the schedule. The instruction to this pre-determined structured formula qua the award of compensation and the multiplier, are there for consistency and uniformity as far as possible in the matter of award of compensation and to supply firm basis on long catena of cases to the award of speedy compensation to the victims. The instruction to this pre-determined structured formula qua the award of compensation and the multiplier, are there for consistency and uniformity as far as possible in the matter of award of compensation and to supply firm basis on long catena of cases to the award of speedy compensation to the victims. After all the structured formula cannot be said to be surplusage when it has statutory backing. If the MACT has taken re-course to the structured formula and the multiplier, then he is to abide by its terms and cannot award general damages on other counts for which there is no evidence or basis. 6. Seen thus there is no legal justification for awarding compensation of Rs. 10,000/- and 20,000/- under the head ˜loss of love and affection™ and loss of expectation of life, and inflated sum of Rs. 10,000/- for funeral expenses ˜the prescribed slab when for funeral expenses just Rs. 2000/-. The over all compensation is therefore, assessed as Rs. 3,62,000/- the interest shall be paid as assessed and awarded by the Tribunal. The Tribunal has recorded a positive finding that the Driver Respondent No. 1 who was driving the vehicle at the time of accident was not in possession of valid driving licence. Neither party disputes this preposition. 7. Even so the contention of Ld. Counsel for the appellant is that the insurance co. is not liable to pay the compensation and compensation is to be paid by the owner. The invalidity of the driving license cannot stand a bar to the claimants getting compensation from insurance Co. and the Insurance company has right to recover the amount from the owner on account of breach of policy condition of the vehicle being driven without a valid driving license. 8. In New India Assurance Co. Shimla Vs. Kamla and Ors (AIR 2001 SC 1419), the Apex Court in the context of liability of the insurer and the owner of the insured vehicle in respect of liability to pay compensation to a 3rd party observed after examining the matter in the context of provisions of Section 149 of M.V. Act as under:- "The position can be summed up thus the insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if he established that he made all due enquiries and believed bonafide that the driver employed by him had a valid driving licence. In which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants third parties) from the insured person.� 9. In result with the above modifications as to the quantum of compensation and liability of owner to pay the amount to insurer-appellant Company, the appeal is dismissed.