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2004 DIGILAW 262 (MP)

Oriental Insurance Co. Ltd. v. Gyatri

2004-03-16

A.K.MISHRA, NARAIN SINGH AZAD

body2004
JUDGMENT Azad, J. -- Under section 173 of the Motor Vehicle Act, the appellant-Insurance company has challenged the award dated 7.3.2003, passed by Motor Accident Claims Tribunal, Chhindwara, filed on behalf of respondents No. 1 to 4, which was registered as Claim Case No. 57/2001. Deceased Manmohan Sharma, the forest guard aged 55 years, is stated to have met his death on 3.2.2001 by fall, near Kundali barrier, from the bus, bearing No. MP049-E/0009, in which, he was occupying the seat as a passenger, on account of sudden rash and negligent driving of bus by driver Rajaram, (respondent No.5), while the deceased was alighting the bus at the stoppage. Respondent Ravi Shankar is admittedly the owner of the aforesaid bus. Keeping in view the monthly income as stated in para 16 of the award, the annual dependency is calculated at the rate of Rs. 36,000/-, and then, on applying the multiplier of 11, the compensation amount of Rs. 3,96,000/- is arrived at. The grant of award is being challenged on the ground that the driver had no valid driving licence at the time of accident and in this regard, the appellant's application moved under order 26, rule 4, read with section 151 of CPC is erroneously rejected by the Tribunal, whereas driver and owner were being proceeded ex-parte after filing of their written statements and that the Tribunal has further erred in not deducting the amount of family pension, while calculating the amount of dependency. The respondent No.1 to 4 have filed cross-objections under order 41, rule 22 of the CrPC, seeking enhancement of the quantum of award to the claimed amount of Rs. 8,12,000/-. On the point of non-possession of valid licence by the driver, in agreement with the view taken in Skandia Insurance Co. Ltd. v. Kolilaben Chandravadan 1987 JLJ 662 = (1987) 2 SCC 654 , Sohanlal Pasi v. P. Sesh Reddy reported in (1996) 5 SCC 21 , and New India Assurance Co. v. Kamla reported in (2001) 4 SCC 342 , it is dictated in United India Insurance Co. Ltd. v. Lehru and others reported in 2003(1) BLJ 145 = (2003) 3 SCC 338 , that: "When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. v. Kamla reported in (2001) 4 SCC 342 , it is dictated in United India Insurance Co. Ltd. v. Lehru and others reported in 2003(1) BLJ 145 = (2003) 3 SCC 338 , that: "When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the fact of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of section 149(2) (a) (ii), the insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party but it may be able to recover from insured." Now on examining the facts of this case in the light of aforesaid legal position, it is noted that the appellant-insurer adduced no evidence in this case to prove the fact of non-possession of valid licence by the driver, and in the application moved on behalf of appellant-insurer under Order 26 Rule 4 read with section 151 of the CPC, for issuance of commission to record the statement of RTO Jabalpur, which is rejected by the Tribunal on 14.2.1993, it is found stated that the driver Rajaram (respondent No. 5)-non-applicant No.1, had a licence No. A/796/JBP/90 batch No. 25126, therefore, even if it is held that the learned Tribunal has erroneously rejected the appellant' s-insurer' s aforesaid application or that the licence possessed by driver Rajaram was not genuine but fake, in the absence of any evidence to prove that the owner-respondent No. 6/non-applicant No. 2, was aware or had noticed the licence being fake, still he permitted driver Rajaram, to drive the vehicle, the appellant-insurer cannot escape the liability to pay the compensation to the respondents No.1 to 4/claimants No.1 to 4, in the light of the aforesaid legal position, because in this case, the appellant-insurer has led no evidence. Then, it is found dictated in Union Bank of India v. Vijaysundari reported in 1991 MPLJ 784 and Kashmiran Mathur's case, reported in 1983 JLJ 113 = 1982 MPLJ 803 and the case of Prabhavati Sharma reported in 1990 ACJ 399 that "the deduction on account of family pension is not permissible if that is not proved as a benefit accruing to the claimants in the form of advantage resulting from the death" and in this case the receipt of pension amount is not found to have been proved as benefit accruing to the claimants in the form of advantage resulting from the death, therefore, the Tribunal is found to have committed no error in not taking into account amount of family pension while calculating the annual dependency of the deceased, and hence, we do not find any substance in this appeal. So far as cross-objections are concerned, the claimants-respondent No. 1 to 4 have claimed enhancement on the grounds that one-fourth of the total monthly income should have been deducted for calculating the monthly dependency whereas, the Tribunal, has deducted one-third, the appellant sought 18 adjournments to adduce the evidence between 27th May, 2002 to 11th Feb. 2003 and moved an application under Order 26 Rule 4 r/w. Section 151 of the CPC, also for recording the evidence of RTO on commission and thus delayed the disposal of the case, which left the respondent to face the economical crisis and that the appellant-insurer cannot escape the liability of payment of compensation on this ground that the driver has no valid licence. Since it is the settled position of law while calculating the monthly or yearly dependency of the deceased, one-third of his income has to be deducted, because a person spends atleast one-third of his monthly earnings, to maintain himself or herself, as the case may, the first ground for enhancement has no substance. Then, adjournments taken by the insurer or the delay in disposal of claim case, resulting from lawful steps taken on behalf of the insurer or any other party, cannot be weighed for enhancing the compensation awarded by the Tribunal. Lastly, the point of non-possession of valid licence by the driver is already considered and the same does not furnish a ground for enhancement. Thus, the cross-objections submitted on behalf of respondents No.1 to 4 also have no merits, which are disallowed and rejected. Lastly, the point of non-possession of valid licence by the driver is already considered and the same does not furnish a ground for enhancement. Thus, the cross-objections submitted on behalf of respondents No.1 to 4 also have no merits, which are disallowed and rejected. In result, this appeal so also the cross-objections filed on behalf of respondents No.1 to 4, stand disallowed and rejected.