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2006 DIGILAW 710 (ORI)

NEW INDIA ASSURANCE CO. LTD. v. KHEKU GADAYAT

2006-10-13

N.PRUSTY

body2006
JUDGMENT : N. Prusty, J. - Even though the matter is listed for admission/ hearing under Order XLI Rule 11 C.P.C., Learned Counsel for both the parties submit that the same can be disposed of at this stage, since the main ground of challenge in this appeal is with regard to quantum of award, application of multiplier 13 for computation of the aware as well as liability of the Insurance Company for payment of the awarded amount indemnifying the owner of the vehicle even if the Driver of the vehicle was not having a valid Driving Licence - which is violative of the terms and conditions of policy. 2. This appeal has been filed by the Insurance Company challenging the award-dated 05.01.2005 passed by the Learned Additional District Judge-cum- Motor Accident Claims Tribunal, Rourkela in MAC Case No. 199/98 (277 of 2000), which was filed by Respondent Nos. 1 and 2 for compensation of Rs. 2, 50, 000/- as their 22 years son, who was earning Rs. 3000/- per month as a labourer and by doing cultivation, died in an accident caused due to rash and negligent driving of the driver of a Trax vehicle bearing Registration No. OR-14C -5387 on 30.04.1998. 3. In support of their Case, the Claimants have examined two witnesses and exhibited certain documents. On the other hand, the Insurance Company and the owner of the vehicle did not examine any witness and also did not file any document in support of their contentions. 4. The Tribunal taking into consideration all the facts and materials available on record, both oral and documentary, awarded compensation of Rs. 1,32,000/- applying multiplier 13, together with interest at the rate of 6 % per annum from the date of filing of the petition, i.e. 14.05.1998 till the date of realization, assessing income of the deceased to be Rs. 15000/- per annum and directed Opposite party No. 2/Insurance Company (Appellant) to pay the amount indemnifying the owner of the vehicle, since the vehicle was insured with the Appellant Company. 5. Heard Mr. P.K. Bhuyan, Learned Counsel for the Appellant and Mr. P.P. Mishra, Learned Counsel for Respondents 1 and 2. 6. Mr. 15000/- per annum and directed Opposite party No. 2/Insurance Company (Appellant) to pay the amount indemnifying the owner of the vehicle, since the vehicle was insured with the Appellant Company. 5. Heard Mr. P.K. Bhuyan, Learned Counsel for the Appellant and Mr. P.P. Mishra, Learned Counsel for Respondents 1 and 2. 6. Mr. Bhuyan, Learned Counsel appearing on behalf of Appellant/ Insurance Company forcefully submitted that the Insurance Company is not liable to pay the compensation indemnifying the owner of the vehicle, since the driver of the offending vehicle was not having a valid Driving Licence and as such the owner of the vehicle has violated the terms and conditions of the policy. Determining the income of deceased at Rs. 15000/ - per annum and application of multiplier 13 for assessing the compensation amount, is on the higher side and as such Claimant-Respondents 1 and 2 are not entitled to the amount as has been awarded by the Learned Court below. These submissions are strongly repudiated by Mr. P.P. Mishra, Learned Counsel for Respondents 1 and 2. 7. It is submitted by the Respondents that the Tribunal has correctly awarded the amount of compensation as per the entitlement of the Claimant keeping in view the evidence on record with regard to the occurrence, age and income of the deceased and his contribution to the family. So far as violation of the terms and conditions of the policy is concerned, law is well settled in this regard by the Hon'ble Apex Court in a series of decisions including the decision in the Case of New India Assurance Company Ltd. v. Kamala and Ors. reported in 2001 (2) TAC 243(SC) and following the above said decision of the Hon'ble Apex Court, the Insurance Company can be directed to pay the compensation amount, with liberty to proceed against the owner of the vehicle for realization of the same, in accordance with law, in case the terms and conditions of the policy have been violated by the owner. 8. I have heard Learned Counsel for the respective parties at length. Perused the materials on record. So far as quantum of award is concerned, taking into consideration the facts and circumstances of the case, age and income of the deceased as well as the dependency of the Claimants, in my considered view, the amount of compensation of Rs. 8. I have heard Learned Counsel for the respective parties at length. Perused the materials on record. So far as quantum of award is concerned, taking into consideration the facts and circumstances of the case, age and income of the deceased as well as the dependency of the Claimants, in my considered view, the amount of compensation of Rs. 1,32,000/- awarded by the Learned Tribunal by assessing the income of the deceased as Rs. 15000/ - per annum and applying multiplier 13, in no way can be said to be on the higher side and as such the award is just, proper and adequate /equitable to meet the ends of justice. 9. It is well settled that ordinarily the quantum of award can be challenged by the owner of the vehicle and not by the Insurance Company. The Insurance Company is only to indemnify the owner of the vehicle, in case the vehicle is insured with it. So far as violation of terms and conditions of the policy is concerned, the Insurance Company (insurer) shall have to pay the awarded amount with costs, interest etc. to the third party and shall be at liberty to proceed against the owner of the vehicle (insured) for realization of the amount paid by it to the Claimants/third party, in case the terms and conditions of the policy are violated. Not possessing valid Driving Licence definitely amounts to breach of policy condition as has been held by the Hon'ble Apex Court in a catena of decisions. In consonance with the ratio of decision of the Apex Court vis-a-vis Section 149(4) of the M.V. Act, the poor Claimants should not also suffer for such breach of policy condition and as such, in such cases the Appellant Insurance Company ought to be directed to pay the amount of compensation with liberty to realize the same from the owner of the offending vehicle in accordance with law. As such, in the instant Case the Appellant/ Insurance Company shall have to pay the compensation amount along with up-to-date accrued interest and cost with liberty to proceed against the owner of the vehicle/Respondent No. 3 for realization/recovery of the entire sum deposited/paid by it, in accordance with law, for violation of the terms and conditions of the Policy. 10. In view of the above, the Appellant Insurance Company is directed to deposit entire awarded amount of Rs. 10. In view of the above, the Appellant Insurance Company is directed to deposit entire awarded amount of Rs. 1,32,000/- along with interest on the same at the rate of 6% per annum from the date of filing of the Case, i.e. 14.05.1 998 till the date of realization/ actual deposit in the Trial Court within a period of eight weeks from today. Immediately after the entire amount, as directed above, is deposited, 30 % of such deposit shall be disbursed by the Learned Tribunal in favour of the Claimant-Respondents 1 and 2, keeping balance 70 % of the amount in an unencumberable fixed deposit, equally in the name of both Claimant-Respondents 1 and 2 for a term of six years and no loan of any kind shall be sanctioned/ disbursed in their favour by the concerned Bank during the entire period for which the money is kept in fixed deposit. 11. As is stated earlier, liberty is also given to the Appellant Insurance Company to proceed against the owner of the vehicle for realization of the entire amount deposited by it, in accordance with law, for violation of the terms and conditions of the policy by the insured/owner of the vehicle/Respondent No. 3, if any. 12. After the entire awarded amount along with interest is deposited before the Tribunal as directed above, the deposits which have already been made by the Appellant-Insurance Company before this Court along with up-to-date interest accrued thereon, be refunded to the Appellant on proper application. 13. The appeal is accordingly disposed of with the above modification of the impugned award. No order as to costs.