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2012 DIGILAW 1179 (BOM)

Clara Baracho Pinto v. Vishnu Andrade

2012-07-03

F.M.REIS

body2012
Judgment : Both the above appeals are taken together for final hearing considering that both the appeals challenge the same judgment and award passed by the Motor Accident Claims Tribunal, Mapusa, dated 09.03.2007 in Claim Petition No. 66/2000. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 2. The claimant filed a claim petition claiming inter-alia that an accident took place on 05.07.2000 at Alto Porvorim near Nova Goa Complex when the husband of the claimant Mario Jose Vaz Ataide e Pinto was crossing the road and at that time a mini truck bearing no. GA-01-T-3710 suddenly came from Mapusa side and in a fast speed. The said truck driven in a rash and negligent manner and from the right hand side of the road and it gave a dash to the husband of the claimant and dashed against his scooter. It is further the case of the claimant that on account of the said impact, her husband was flung towards the other side of the road and sustained grievous injuries on account of which he expired at the hospital. The claimant further pointed out that her husband was 56 years of age at the time of the accident and earning salary of Rs.70,000/-per month and consequently the claimant has raised a total claim to the tune of Rs.47,43,376/-. The claim petition was filed against the respondent no.1 as well as the appellant herein besides an unknown person who was stated to be the driver at the relevant time. The respondent no.1 did not file any written statement nor contest the claim petition filed by the claimant. Only contest was on behalf of the respondent no.2-Insurance Company. The respondent no.2 in their written statement have disputed the claim petition filed by the claimant on the ground that they did not accept the claim of the claimant that the monthly salary of the deceased was Rs.70,000/-. The respondent no.2 further disputed the fact that there was any rashness and negligent on the part of the concerned vehicle. The respondent no.2 in their written statement have disputed the claim petition filed by the claimant on the ground that they did not accept the claim of the claimant that the monthly salary of the deceased was Rs.70,000/-. The respondent no.2 further disputed the fact that there was any rashness and negligent on the part of the concerned vehicle. It is further contention of the respondent no.2 that the driver and the owner was respondent no.1 and further that at the relevant time the respondent no.1 did not hold any valid driving licence and consequently there was a breach of the terms of the policy which entitle the respondent no.2 to refuse the payment of the compensation. The learned Tribunal after framing the issues and recording of evidence by the impugned judgment and award dated 09.03.2007 partly allowed the claim petition and directed the respondents to pay jointly and severally a total sum of Rs.4,25,000/-together with interest at the rate of 6% per annum from the date of filing of the claim petition up to the actual payment together with costs to the claimant. Being aggrieved by the said judgment dated 09.03.2007, the claimant as well as the respondent no.2 have preferred the present appeals. 3. Shri E. Afonso, learned Counsel appearing for the respondent no.2/appellant in First Appeal No. 166 of 2007 has assailed the impugned judgment on the ground that the original claim petition filed by the claimant is itself defective as according to him, the opponent no.2 shown therein was an unknown person as the driver of the concerned vehicle. The learned Counsel has pointed out that unless and until the driver has been made a party to the claim petition, the question of proceeding with the claim petition to award compensation to the claimant is totally unjustified. In support of his submissions he has relied upon the judgment of the Apex Court reported in 2007(5) SCC page 428 in the case of Oriental Insurance Co. Ltd., V/s Meena Variyal and others. The learned Counsel as such submits that on this count alone the impugned judgment deserves to be quashed and set aside and the claim petition filed by the claimant deserves to be rejected. The learned Counsel has further pointed out that the Tribunal whilst assessing the compensation payable to the claimant has assumed that the salary of the deceased was Rs.5000/-per month. The learned Counsel has further pointed out that the Tribunal whilst assessing the compensation payable to the claimant has assumed that the salary of the deceased was Rs.5000/-per month. The learned Counsel has further submitted that the claimant was alleging that the monthly salary of the deceased was Rs.70,000/-but however, there was no evidence adduced by the claimant to justify the said claim. The learned Counsel further pointed out that the purported salary certificate produced by the claimant has not been duly proved though the statement was recorded before the Indian Embassy at Paris nevertheless the said statement cannot be read in evidence as according to him, the respondent no.2 was not given an opportunity to cross examine the said witness nor any date intimated to that effect. The learned Counsel further pointed out that considering that the salary has not been established, the Tribunal ought to have fixed the compensation on the basis that the monthly income of the deceased was Rs.3000/-. The learned Counsel has further pointed out that the Tribunal whilst passing the impugned judgment has directed the payment of costs and as such the respondent no.2/appellant at the most can be directed to pay purported costs to the claimant. The learned Counsel as such submits that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Shri M. B. Da Costa, learned Senior Counsel appearing for the claimant has pointed out that in fact the amount of compensation awarded by the Tribunal is on the lower side. The learned Senior Counsel has further pointed out that from the evidence on record, it cannot be disputed that the deceased was working at Paris at the relevant time and in fact the salary certificate has been produced on record from the hotel where he was working. The learned Senior Counsel further pointed out that the evidence recorded before the Indian High Commission may not be read in evidence as no opportunity of cross examination was given to the respondent no.2 nevertheless the inference to the effect that the deceased was working at Paris can always be drawn. The learned Senior Counsel further pointed out that the evidence recorded before the Indian High Commission may not be read in evidence as no opportunity of cross examination was given to the respondent no.2 nevertheless the inference to the effect that the deceased was working at Paris can always be drawn. The learned Senior Counsel further pointed out that the deceased was working in Paris and the compensation fixed by the Tribunal on the assumption that the monthly salary of the deceased was Rs.5000/-, by no stretch of imagination be termed on the higher side and to that extent the question of any interference in the impugned judgment would not arise. The learned Senior Counsel further pointed out that the interest awarded by the Tribunal is on the lower side and considering the rate of interest prevailing at the relevant time, such rate of interest deserves to be enhanced. With regard to the contention of Shri E. Afonso, learned Counsel appearing for the respondent no.2/appellant that the driver has not been identified in the claim petition, Shri M. B. Da Costa, learned Senior Counsel has pointed out that the evidence on record clearly suggests on the basis of examination of the concerned Investigating Officer as well as the Inspector of the Regional Transport Office that the respondent no.1/owner was driving the vehicle at the relevant time. The learned Senior Counsel further pointed out that RW2 Raikar examined by the respondent no.2, who was the Investigating Officer has categorically stated that his investigation revealed that the respondent no.1 was driving the vehicle and that he was not holding any valid driving licence. The learned Senior Counsel as such submits that taking into consideration the evidence on record, the same establishes that the owner and the driver at the relevant time was the respondent no.1. The learned Senior Counsel as such submits that the objection of the learned Counsel appearing for the respondent no.2/appellant to the effect that the respondent no.2 shown as opponent no.2 in the claim petition was unknown person cannot be in any way affect the merits of the claim petition filed by the claimant in such circumstances. The learned Senior Counsel further pointed out that the amount of compensation is to be enhanced or in the event the question of any interference in the impugned judgment by this Court does not arise. 5. The learned Senior Counsel further pointed out that the amount of compensation is to be enhanced or in the event the question of any interference in the impugned judgment by this Court does not arise. 5. Upon hearing the learned counsels and on perusal of the records, the following points for determination arise in the present appeals : POINTS FOR DETERMINATION 1. Whether the claim petition filed by the claimant is defective and as such the same deserves to be rejected? 2. Whether the learned Tribunal was justified to fix the compensation on the basis that the income of the deceased was Rs.5000/-per month? 3. Whether the Insurance Company is entitled to refuse the payment of compensation on the ground of breach of terms of the policy as the driver did not have a valid driving licence at the relevant time? 6. With regard to the first point for determination, the claimant whilst filing the claim petition has impleaded the driver and identified him as an unknown person. This is understandable as the person who had injured in the accident was the husband of the claimant who had already expired. There is no evidence on record to otherwise suggest that the claimant herself was the witness to the accident. Hence, the said circumstances cannot be kept aside. In such mental condition, it cannot be expected of the claimant to clearly identify such driver. But however, the claimant has impleaded the driver whose name was not known and the summons were duly served on the newspaper. During the course of the evidence of the parties, the material produced on record suggested that the owner and the driver were one and the same person. There is no dispute that the owner was already party to the claim petition as respondent no.1. Merely because he was being sued in two capacities by itself does not make the claim petition filed by the claimant defective which would entail rejection. Apart from that, the records further reveal that during the pendency of the claim petition, the respondent no.2/Insurance Company filed an application for amendment of the written statement bringing on record the fact that the owner as well as the driver were one and the same person. The claimant did not raise any objection to such averments. Apart from that, the records further reveal that during the pendency of the claim petition, the respondent no.2/Insurance Company filed an application for amendment of the written statement bringing on record the fact that the owner as well as the driver were one and the same person. The claimant did not raise any objection to such averments. This further suggest that the claimant had accepted that the driver and the owner were one and the same person. On perusal of the evidence of RW2 Raikar, same reveals that during the course of the investigation of the accident, it transpired that the owner and the driver of the vehicle were one and the same person and further the driver did not have any valid driving licence. Considering the facts and circumstances of the case and in view of the fact that the owner who was also driving the vehicle at the relevant time is already made a party to the proceedings, the contention of Shri Afonso, learned Counsel appearing for the respondent no.2/appellant that the claim petition is defective cannot be accepted. In the peculiar facts of this case, the judgment reported in (2007) 5 SCC 428 in the case of Oriental Insurance Co. Ltd., (supra ) relied upon by the Shri Afonso, learned Counsel appearing for the respondent no.2/appellant is not applicable to the facts of the present case. The first point for determination is answered accordingly. 7. With regard to the second point for determination, the claimant in the claim petition has contended that the deceased was earning Rs.70,000/-per month. It is further contention of the claimant that the deceased was working in Paris in a hotel. In support of her contention that the deceased was earning the said sum of money, the salary certificate has also been produced. But however, the said certificate was marked for identification subject to prove. Though the original thereof was thereafter produced, nevertheless, the contents thereof were not established. The evidence sought to be relied upon to establish the salary on the basis of the statement made before the Indian High Commission in France cannot be admitted in evidence as admittedly the respondent no.2 did not get a chance to cross examine the person who has given such statement and the contents of the documents were seriously disputed by the respondent no.2. But on the basis of material on record, it cannot be disputed that in fact the deceased was working for gain in Paris. The Tribunal on the basis of evidence adduced by the parties has come to the conclusion that the claimant cannot take support of the said certificate for assessing the compensation payable to the claimant. The Tribunal on the basis of material on record has come to the conclusion that the claimant has not established by producing passport to show that the deceased was working at Paris at the relevant time. Considering the appreciation of the evidence by the Tribunal which cannot be said to be perverse or contrary to the material on record, I find that the findings of the Tribunal on that count do not call for any interference. But however, the contention of Shri E. Afonso, learned Counsel appearing for the respondent no.2/appellant that the Tribunal has wrongly assessed the compensation on the assumption that the monthly income of the deceased was Rs.5000/-is on the higher side cannot be accepted. Taking note of the fact that the material on record discloses that the deceased was otherwise working for gain abroad, at the relevant time, I find that the amount of compensation fixed by the Tribunal on the assumption that the salary of the deceased was Rs.5000/-does not call for any interference. It is well settled by the Apex Court that the claims in the Motor Accident Claim Petition are to be decided on the touchstone of preponderance of probabilities. Considering the facts and circumstances of the case and taking note of the fact that the deceased was otherwise working for gain abroad, a salary of Rs.5000/-per month by no stretch of imagination can be considered on the higher side. Hence, the Tribunal was justified to fix the compensation on the basis that the salary of the deceased at the relevant time was Rs.5000/-per month. The second point for determination is answered accordingly. 8. With regard to the third point for determination, the Tribunal whilst passing the impugned judgment came to the conclusion that the respondent no.2/appellant-Insurance Company has failed to establish that the driver did not have any valid driving licence at the relevant time. The second point for determination is answered accordingly. 8. With regard to the third point for determination, the Tribunal whilst passing the impugned judgment came to the conclusion that the respondent no.2/appellant-Insurance Company has failed to establish that the driver did not have any valid driving licence at the relevant time. The learned Judge has also relied upon the judgment of the Apex Court in the case of Swaran Singh, reported in ACJ 2004 page 1, to the effect that in such circumstances, when the breach of the terms of the policy have not been established by the Insurance Company, the Insurance Company cannot be exonerated from the payment of the compensation. On perusal of the evidence on record, I find that RW1 who is the manager of the respondent no.2 has stated in his deposition that the driver/respondent no.1 did not hold a valid driving licence at the relevant time. To establish the said aspect, the respondent no.2 has taken the initiative to examine the officers from the RTO to ascertain as to whether the respondent no.1 had a driving licence at the relevant time. RW3 who was the RTO Inspector has stated that unless and until such particulars are furnished to the department, the information sought cannot be traced. Apart from that, the inquiry officer has also been examined in the proceedings. RW2 Raikar has stated that during the course of the investigation, it was revealed that the respondent no.1 was not holding a valid driving licence. This respondent no.1 chose not to appear before the Tribunal nor defended himself. The said statement of the inquiry officer coupled with the evidence of the manager of the respondent no.2 establishes that the respondent no.1 did not hold a driving licence at the relevant time. It is also to be noted that the respondents also made attempts to call the respondent no.1 as a witness in the said proceedings. In fact despite of numerous attempts, the respondent no.1 could not be traced for recording such evidence. It is also revealed that the respondent no.2 even sought a relief from the Tribunal to issue a warrant of arrest against the respondent no.1 which has been dismissed. In fact despite of numerous attempts, the respondent no.1 could not be traced for recording such evidence. It is also revealed that the respondent no.2 even sought a relief from the Tribunal to issue a warrant of arrest against the respondent no.1 which has been dismissed. Considering the said circumstances, an adverse inference can always be drawn against the respondent no.1 for not responding to the said summons nor appearing before the Tribunal and also not filing the written statement to dispute the said facts of the case. In such circumstances, on the basis of overwhelming evidence on record mentioned herein above, I find that the Tribunal was not justified to come to the conclusion that the respondent no.2 has failed to discharge the burden that the respondent no.1 did not hold a valid driving licence on the relevant date. Once the breach of the essential term of the policy has been established, it cannot be disputed that the Insurance Company is always entitled to claim the amount from the owner/driver. In the judgment passed by this Court in the case of United India Insurance Co. Ltd., V/s Sindhubai Kondiram Darwante & Ors, reported in 2010(4) Bom. C. R. 325, it has been held that the Tribunal and this Court has powers depending on the facts and circumstances of the case to direct the insurer to pay the compensation and recover the same from the insured in accordance with law. In the facts and circumstances of the case and taking note of the fact that the husband of the claimant has expired, I find it appropriate that the respondent no.2 can be directed to pay the compensation to the claimant reserving their right to recover the said amount from the respondent no.1 in accordance with law. Subject to the above, the third point for determination is answered accordingly. 9. Next contention of Shri M. B. Da Costa, learned Senior Counsel appearing for the claimant to the effect that the interest awarded by the Tribunal is on the lower side, I find that there is no material on record to substantiate such contention of the learned Senior Counsel as to what was the prevailing rate of interest at the relevant time in respect of the deposit with the Nationalized bank. When such evidence is not found on record, the Tribunal was justified to fix the rate of interest at the rate of 6% per annum within its discretion in the facts and circumstances of the case. 10. Next contention of Shri E. Afonso, learned Counsel appearing for the respondent no.2/appellant that the costs awarded by the Tribunal should be modified in the proportion to the amount awarded by the Tribunal is justified. To that extent, the impugned judgment deserves to be modified. 11. In view of the above, I pass the following : ORDER (i) The appeals are partly allowed. (ii) The impugned judgment and award dated 09.03.2007 directing the payment of compensation by the respondent nos. 1 and 2 jointly and severally is confirmed subject to the right reserved to the respondent no.2 – Insurance Company to pay the compensation and recover the same from the respondent no.1 in accordance with law. Proportionate costs to be paid by the respondents to the claimant throughout. (iii) The appeals stand disposed of accordingly.