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2011 DIGILAW 2118 (PAT)

National Insurance Company v. Chandeshwar Dubey

2011-09-29

RAKESH KUMAR

body2011
ORDER The present appeal under Section 173 of the Motor Vehicles Act,1988 ( hereinafter referred to as the “M.V.Act”) has been preferred against the Judgment dated 13.05.2010 and Award dated 27.05.2010 passed in M.V. Claim Case no.120 of 2007 by the learned Addl. Addl. District Judge 6th-cum-Motor Vehicles Claims Tribunal , Muzaffarpur ( hereinafter referred to as the “Claims Tribunal”). 2. Short fact of the case is that on 09.03.2007, while one Ramashankar Singh, an Income Tax Officer posted at Samastipur, was going to Muzaffarpur along with his colleagues on Indica Car having Registration no.BR-01X-9750 and while the car reached near Markan Chowk on NH-28 on a bridge, the car dashed a truck having Registration no.BR-33A-4061 from the back side of the truck. In the said accident, the occupants of the car sustained serious injuries. Amongst them Ramashankar Singh was also injured and he was carried to S.K.M.C.H, Muzaffarpur, where he was declared dead. Thereafter, postmortem examination was conducted on the dead body of deceased Ramashankar Singh and relating to the said occurrence, an F.I.R. vide Sakara P.S.Case No.55 of 2007 was registered for offence under Sections 337,338, 304A of the Indian Penal Code against the driver of the vehicle. After investigation, chargehseet was submitted. 3. Since Ramashankar Singh died in motor vehicle accident, the wife of late Ramashankar Singh, namely, Bindu Devi and three sons of the deceased filed a claim case under Section 166 of the M.V.Act for claiming compensation against the insurer of the offending vehicle i.e. the appellant/ National Insurance Company Ltd. for total compensation amount of Rs.14, 35,852/- Before the Claims Tribunal, the owner of the vehicle as well as the appellant appeared and filed their written statements. The learned Claims Tribunal on the basis of salary certificate issued by the employer, which was Rs. 23,068/- per month, directed the appellant to pay a total compensation amount of Rs.14, 80,852/- and from the said amount Rs.50, 000/- , which was paid as interim compensation, was directed to be adjusted by its Judgment dated 13.05.2010 and, thereafter, an award was prepared on 27.05.2010. 4. Aggrieved with the Judgment and Award passed by the learned Claims Tribunal, the insurer i.e. the appellant has approached this Court by filing the present appeal. 5. Sri Ashok Priyadarshi, learned counsel for the appellant has raised several grounds in assailing the impugned Judgment and Award. 4. Aggrieved with the Judgment and Award passed by the learned Claims Tribunal, the insurer i.e. the appellant has approached this Court by filing the present appeal. 5. Sri Ashok Priyadarshi, learned counsel for the appellant has raised several grounds in assailing the impugned Judgment and Award. Sri Priyadarshi, learned counsel for the appellant has argued that the appellant was not required to make payment of compensation amount. It was argued that if the insurer was having defence under Section 149(2) of the M.V.Act, in that situation the insurer was not liable to pay compensation. In support of his argument, he has referred to a Judgment of the Apex Court reported in AIR 2004 (SC) 4882 (National Insurance Company Ltd Vs. Challa Bharathma & Ors.). He has further argued that the learned Claims Tribunal had committed an error of law by directing the appellant to pay compensation ignoring the law laid down by the Apex Court in AIR 2009 (SC) 3056 (Ninagamma Vs. United India Insurance Company Ltd), which says that if the deceased was travelling in a vehicle owned by his friend, he cannot be termed as a third party rather he steps in the shoes of the owner. Accordingly, it was argued that the appellant is not liable to pay compensation. Learned counsel for the appellant has also argued that the Claims Tribunal has not followed the guidelines given by the Apex Court in AIR 2009 (SC) 3104 (Sarla Verma Vs. Delhi Transport Corporation) and on the aforesaid grounds, it was argued that the impugned Judgment and Award is liable to be set aside. 6. After going through the record, it is evident that the argument, which was advanced before this Court, has got no bearing with the facts and circumstances of the present case, which is evident from the facts and circumstances mentioned hereinafter. Before the Claims Tribunal in support of the claim case, the Claimants examined altogether five witnesses and also produced the documentary evidence to prove the case. It is evident that on 09.03.2007, while accident had occurred, the Indica Car in question was under insurance cover and the appellant was insurer of the said vehicle. Before the Claims Tribunal, the owner had appeared and produced photo copy of the driving licence of the driver of the offending vehicle and other papers relating to the ownership of the offending vehicle. Before the Claims Tribunal, the owner had appeared and produced photo copy of the driving licence of the driver of the offending vehicle and other papers relating to the ownership of the offending vehicle. The said vehicle was insured by the appellant vide Policy no.17065/31/06/6700003069, which was covered from 07.08.2006 to 06.08.2007. In the present case, the accident had occurred on 09.03.2007. Meaning thereby that the vehicle was insured by the National Insurance Company Ltd, Samastipur Branch. Similarly, the driving licence was issued by the office of the District Transport Officer, vide Licence no.194098237 and the same was valid up to 10.10.2008. It is further evident that the appellant/insurer before, the Claims Tribunal had produced no evidence to establish that the driver of the offending vehicle was not having valid driving licence. The fact remains that if the Insurance Company was taking the defence of invalid driving licence, which fact was proved by the claimants, thereafter the insurer was required to disprove the same by bringing cogent material on record. However, nothing was brought on record by the appellant/insurer, which is evident from paragraph nos.12 and 13 of the impugned Judgment. It further appears that the owner of Indica Car had pleaded that the accident had occurred not due to rash and negligent driving of the Indica Car, but since the truck, which was moving ahead, had suddenly stopped, the accident had occurred. From the impugned judgment, it is evident that primarily the appellant had taken a defence that the driver of the Indica Car was not having valid licence and, as such, the appellant being insurer of the said vehicle was entitled to recover the compensation amount from the owner. It was admitted by the appellant before the Claims Tribunal that at the time of accident, the offending vehicle was under the insurance cover of National Insurance Company Ltd. Though, the plea regarding non-availability of valid driving licence of the offending car was taken orally at the time of argument, but no material was brought on record. On the contrary, before the Claims Tribunal, photo copy of the driving licence was made available and it was specifically pleaded by the owner of the vehicle that the driver was having valid licence at the time of accident. On the contrary, before the Claims Tribunal, photo copy of the driving licence was made available and it was specifically pleaded by the owner of the vehicle that the driver was having valid licence at the time of accident. After going through the materials available on record, it is evident that no other plea was taken save and except the question of valid driving licence by the appellant before the Claims Tribunal. However, at the time of hearing of the present appeal, without any foundational fact, learned counsel for the appellant has referred the case laws, which have been noticed above. The case laws cited by the learned counsel for the appellant has got no relevance in the facts and circumstance of the present case. 7. In view of the facts and circumstances of the present case, the Court is of the opinion that the learned Claims Tribunal considering the oral and documentary evidence, particularly salary certificate of the deceased, which was marked as Ext.1 and issued by the Income Tax Department, the deceased drawing Rs.23.068/- per month as salary and since the deceased at the time of death was about 56 years old, as per Schedule-II of the M.V.Act multiplier of 12 was taken into account and after deducting 1/3rd of the income the total loss of dependency had come to Rs.14,76,352/- The Claims Tribunal has rightly and legally directed to pay the said compensation amount along with Rs.2000/- as funeral expenses and Rs.2050/- as loss of state i.e total amount of compensation has come to Rs.14,80,852/-. The learned Claims Tribunal directed to pay the said amount after deducting Rs.50,000/- as interim compensation. The compensation amount was directed to be paid along with interest @ 6 % per annum from the date of claim petition. 8. The Court after going through the material available on the record finds no merit in the appeal and, accordingly, the appeal stands dismissed The appellant/National Insurance Company Ltd. is directed to pay compensation amount in terms of the impugned Judgment and Award within a period of two months. In view of dismissal of the appeal, statutory amount deposited at the time of admission may be remitted back to the learned court below. ?