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2007 DIGILAW 216 (CHH)

ORIENTAL INSURANCE CO. LTD. v. KANTI BAI

2007-03-15

DILIP RAOSAHEB DESHMUKH

body2007
JUDGMENT : Dilip Raosaheb Deshmukh, J.—Heard on admission. In this appeal by the insurer the impugned award dated 12.12.2006, passed by Ninth Addl. Motor Accidents Claims Tribunal in Claim Case No. 129 of 2005 is under challenge whereby in a death case, the liability to pay compensation of Rs. 2,16,250 was imposed on the appellant insurance company. Brief facts of the case are that on 21.1.2005, Bahadur Kaushik, respondent No. 7 herein, was driving a light motor vehicle, i.e., an autorickshaw No. CG 10-3390. The said autorickshaw dashed with a motor cycle resulting in the death of its driver Lakhanlal aged 30 years. 2. Learned Counsel for the appellant has not disputed the following facts: (a) that the autorickshaw No. CG 10-3390 falls under the category of light motor vehicle; (b) that at the time of accident the auto-rickshaw No. CG 10-3390 was insured by appellant for commercial purpose; (c) that Lakhanlal died as a result of the accident; (d) that Bahadur Kaushik, respondent No. 7, possessed a valid driving licence for driving light motor vehicle at the time of the occurrence; (e) that the learned M.A.C.T. has vide its order dated 10.8.2006 granted permission to the appellant insurer u/s 170 of the Motor Vehicles Act. 3. In this appeal the appellant insurer has raised the following grounds: (a) that Bahadur Kaushik, the respondent No. 7 herein did not possess a valid driving licence to drive the offending autorickshaw thereby resulting in clear breach of policy by the owner; (b) that the Tribunal wrongly assessed the income of the deceased at Rs. 3,000 per month instead of adopting the notional income of Rs. 15,000 per annum; (c) that the deceased also contributed to the accident and, therefore, the sole liability for paying compensation cannot be fastened upon the appellant insurer. No other ground was urged. 4. The learned Counsel for the appellant has placed reliance on National Insurance Co. Ltd. Vs. Kusum Rai and Others, , in support of the contention that Bahadur Kaushik did not possess a valid driving licence to drive a commercial vehicle. It is not disputed that the autorickshaw driven by Bahadur Kaushik at the time of the accident was a light motor vehicle and that Bahadur Kaushik did possess a valid driving licence to drive a light motor vehicle at the time of accident. It is not disputed that the autorickshaw driven by Bahadur Kaushik at the time of the accident was a light motor vehicle and that Bahadur Kaushik did possess a valid driving licence to drive a light motor vehicle at the time of accident. The impugned award in para 14 also reflects that there is no material to show that autorickshaw driven by Bahadur Kaushik was transporting goods at the time of the accident. In National Insurance Co. Ltd. Vs. Swaran Singh and Others, , it was held by the Apex Court that "Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Claims Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer u/s 149 (2) of the Act". In view of the fact that the autorickshaw, a light motor vehicle was driven by a duly licensed driver authorised to drive light motor vehicle and the fact that the said autorickshaw was insured by the appellant at the time of the accident, the insurer cannot escape from the liability to pay the compensation because there is no material to show that the purely technical breach was in fact fundamental in nature and had in any manner contributed to the accident. The facts of the case-law cited by the learned Counsel for the appellant are clearly distinguishable since in Kusum Rai's case (supra) the offending vehicle was in fact being used as a taxi at the time of accident. Apart from the undisputed facts mentioned in para 3 (a) to (d), there is no material to show in this case that at the time of the accident the autorickshaw was being used for transporting goods. The learned M.A.C.T. has thus rightly fastened the liability to pay compensation on the appellant insurer. 5. Apart from the undisputed facts mentioned in para 3 (a) to (d), there is no material to show in this case that at the time of the accident the autorickshaw was being used for transporting goods. The learned M.A.C.T. has thus rightly fastened the liability to pay compensation on the appellant insurer. 5. So far as the second ground urged by the learned Counsel for the appellant is concerned, though evidence was led before the learned M.A.C.T. that the deceased was earning Rs. 4,200 per month, yet learned M.A.C.T. has taken the monthly income of the deceased at Rs. 3,000 which in no manner could be said to be unreasonable or arbitrary. Since the deceased was aged 30 years at the time of the accident, multiplier 17 was rightly adopted by the Tribunal. Thus, the compensation awarded by the learned Tribunal is just and reasonable compensation and cannot be faulted with. So far as the last point urged by the learned Counsel for the appellant is concerned, there is absolutely no material to show that the deceased had, in any way, contributed to the accident. 6. Having thus considered the grounds urged by the learned Counsel for the appellant, I am of the considered opinion that the impugned award passed by the learned M.A.C.T. is unimpeachable. The appeal being devoid of merit is dismissed at the stage of admission. In view of the above, I.A. No. 1 of 2007 for stay is also dismissed. No order as to costs.