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2012 DIGILAW 1915 (RAJ)

National Insurance Co. Ltd. v. Pushpa Devi

2012-09-10

NISHA GUPTA

body2012
JUDGMENT 1. - Both these matters are against the same award dated 6.12.2011 passed by the learned Judge, Motor Accidents Claim Tribunal-, Udaipur in MACT Case No. 63/2009 and hence they are decided by this common order. 2. The contention of the Insurance Company is that application under Section 170 of the Motor Vehicles Act was allowed in favour of the Insurance Company. The contention of the Insurance Company was that the vehicle was driven without valid licence and hence the Insurance Company should be exonerated from the liability. 3. Per contra, the contention of the claimants is that amount of award has already been paid and for contravention of any condition policy the claimants cannot be penalised and cross objections have been filed regarding inadequacy of the compensation and the contention of the claimants is that the deceased at the time of the death was 38 years of age. He was a taxi driver and no future prospects have been considered by the learned Tribunal. Hence the compensation should be enhanced suitably. 4. Heard learned counsel for the parties and perused the impugned award. 5. The contention of the Insurance Company is that the driver was plying the vehicle without any valid licence and issue no.3 has been wrongly decided against the Insurance Company. The Insurance Company has served notice to the owner to produce the permit but it was not produced before the learned Tribunal and looking to the provisions of Section 106 of the Evidence Act, it was the duty of the owner to prove that he was having a valid permit. It is true that to prove the breach of the condition policy, the onus is on the Insurance Company which has been discharged by stating that no valid permit was with the owner and owner has not discharged his burden by producing the permit. The negative burden cannot be fastened on the Insurance Company and the reliance has been placed on Bhuwan Singh v. M/s Oriental Insurance Company Ltd. & anr. (JT 2009(3) SC 333) wherein it has been held that originally burden to prove the breach of condition is on the Insurance Company but looking to the provisions of Section 106 of the Evidence Act, it was the duty of the owner to discharge the said burden. (JT 2009(3) SC 333) wherein it has been held that originally burden to prove the breach of condition is on the Insurance Company but looking to the provisions of Section 106 of the Evidence Act, it was the duty of the owner to discharge the said burden. Here in the present case, the owner had not discharged the burden by producing the valid permit and hence the learned Tribunal was wrong in deciding issue no.3 against the Insurance company and hence issue no.3 is decided in favour of the Insurance Company. Further more, the contention of the Insurance Company is that company should be exonerated from the liability and the reliance has been placed on National Insurance Company Ltd. v. Challa Bharathamma & ors. ( 2005 R.A.R. 1(SC) 1) , but looking to the fact that the award has already been paid and disbursed to the claimants, the only liberty could be given to the Insurance Company to recover the amount of compensation from the owner and the driver. 6. The contention of the claimants is that at the time of death, the deceased was 38 years of age and no future prospects have been considered and reliance has been placed on Santosh Devi v. National Insurance Company Ltd. & ors. ( 2012 AIR SCW 2892) and hence the compensation should be suitably enhanced. Per contra, the contention of the Insurance Company is that future prospects should only be considered where the deceased was employed permanently. In the case of Santosh devi (supra) it has been held as under:- "Although, the wages/income of those employed in unorganized sectors not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no additional in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." 7. Looking at the above, when the Hon'ble Apex Court has categorically held that incremental enhancement in the income of the persons are unavoidable and even who are engaged in daily wages, monthly basis or even seasonal basis, will increase their income to meet the challenge of cost of living and rise in price. The deceased who was 38 years of the age and looking to the fact that he was a driver. It is true that he was having only a driving licence of motor vehicle and he was not a professional driver but still looking to his age, 15% increase in future prospects are reasonable and fair and looking at the above, multiplier of 16 would be the appropriate multiplier. Hence the income comes to Rs. 6,300 (15% of Rs. 42,000) + Rs. 42,000/- = 48,300/- and after deducting ⅓rd amount for personal expenses, the income comes to Rs. 48,300/- - Rs. 16,100 = Rs. 32,200/- and after applying the multiplier 16, the enhanced compensation comes to Rs. 32,200/- x 16 = Rs. 5,15,200- Rs. 4,48,000/- (as already awarded by the learned Tribunal) = Rs. 67,200/-. 8. 42,000) + Rs. 42,000/- = 48,300/- and after deducting ⅓rd amount for personal expenses, the income comes to Rs. 48,300/- - Rs. 16,100 = Rs. 32,200/- and after applying the multiplier 16, the enhanced compensation comes to Rs. 32,200/- x 16 = Rs. 5,15,200- Rs. 4,48,000/- (as already awarded by the learned Tribunal) = Rs. 67,200/-. 8. The other contention of the present appellant is that the deceased was having wife, mother and son but for loss of love and affection only 10000/- has been awarded. Looking at the above it should be 5000/- x 3 = 15,000/-. Hence the enhanced amount under this head comes to Rs. 15,000/- - Rs. 10,000/-(as already awarded by the learned Tribunal) = Rs. 5000/-. 9. The claimants are entitled for interest @ 7.5% per annum on the enhanced amounts of compensation from the date of filing of the appeal.Hence the appeal as well as the cross-objections are disposed of as indicated above.Appeal and cross-objection allowed. *******