Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 202 (JK)

National Insurance Co. Ltd. v. Mst. Azi & Ors.

2012-04-30

HASNAIN MASSODI

body2012
1. Sh. Abdul Rehman Bhat, S/o Mohammad Khalil Bhat, R/o Malangpora Pulwama lost his life in a vehicular accident on 18th November, 2001 when the deceased was proceeding towards Khanabal in a Maruti Car which was hit by a Sumo Vehicle bearing No.JKOlD/8700, driven rashly and negligently by its Driver Mohammad Amin Parry. The dependents of deceased, on 26.12.2001 filed a claim petition before Motor Accident Claims Tribunal,(hereinafter referred to as "Tribunal" ) claiming compensation of Rs. 21,40,000/- from the Insurance Company ( appellant herein) with which the offending vehicle was insured. 2. The claim petition was resisted by the present appellant on the ground that the vehicle insured with the Insurance Company was not involved in the accident that claimed the life of Ab.Rehman Bhat. The appellant next pleaded that the driver of the offending vehicle was not having valid and effective driving license at the time of accident and the insurance company was, therefore, not liable to indemnify the owner of the vehicle. 3. The owner of the vehicle and its driver opposed the claim petition on the ground that the accident was attributable to the drivers of Maruti bearing no. JK2764/JK13 in which the deceased was travelling at the time of accident. The respondents insisted that the Driver of the Tata Sumo Vehicle bearing no. JK01D/8700 was driving the vehicle at normal speed observing all care and caution and accident was caused due to rash and negligent driving of the driver of the Maruti vehicle. The Tribunal on perusal of the pleadings framed following issues:- Issue No.1: Whether due to rash and negligent driving of Mohammad Amin Parray while driving vehicle No.JK01D/8700 on 18.11.2001 at Kadlabal Charsoo which resulted in the death of Abdul Rehman Bhat.? Issue No.2 If the issue No.1 is proved in affirmative whether the petitioners are entitled to compensation.?. Issue No.3 Whether respondent driver was having a valid driving license at the time of accident? 4. The parties led their evidences to substantiate the case set up by them and learned Tribunal on going through the pleadings and the evidence, allowed the claim petition. The Tribunal decided all the issued in favour of the claimants and against the appellant and other respondents. It was held that the accident was caused due to rash and negligent driving of Tata Sumo Vehicle bearing no. The Tribunal decided all the issued in favour of the claimants and against the appellant and other respondents. It was held that the accident was caused due to rash and negligent driving of Tata Sumo Vehicle bearing no. JK01D/8700 by respondent no.6 The Tribunal did not feel persuaded to agree with the appellant's case that the appellant was to escape liability under the insurance contract on the ground that the respondent no.6 was not holding a valid and effective driving license at the time of accident. The Tribunal held that the deceased had an income of Rs. 6,000/- per month and after deducting 1/3 of the income on account of personal expenses applied Rs.4000 as multiplicand to work out loss of dependency. The Tribunal having regard to the age of deceased at the time of accident, applied multiplier of 13. The loss of dependency was assessed as Rs. 6,99,000/. The widow of deceased was awarded Rs.15,000/- on account of loss of consortium and further an amount of 10,000/-on account of funeral expenses. The Tribunal awarded an amount of 6,99,000/- with interest at the rate of 6% per annum from the date of filing of the claim petition till final realization of the awarded amount, in favour of the claimants. The award rendered by the Tribunal on 14.07.2009 is questioned in the instant Civil First Miscellaneous Appeal on the grounds that the appellant was not under obligation to indemnify the owner of the offending vehicle and owner was liable to pay compensation to the claimants, in as much as, the appellant convincingly proved before the Tribunal that the Driver of the insured vehicle was not having valid and effective driving license at the time of the accident. The finding returned by the Tribunal according to the appellant is in conflict with the settled legal position that the owner of the vehicle would be was guilty of breach of insurance contract in the event insured vehicle is handed over by him to a person not having a valid and effective driving license. The appellant is also aggrieved with the amount of compensation assessed by the Tribunal. It is pleaded that the Tribunal has without any evidence held income of deceased as Rs. 6000/- per month. The appellant also takes exception to the multiplier applied by the Tribunal. It is insisted that the Tribunal ought to have taken into account Rs. The appellant is also aggrieved with the amount of compensation assessed by the Tribunal. It is pleaded that the Tribunal has without any evidence held income of deceased as Rs. 6000/- per month. The appellant also takes exception to the multiplier applied by the Tribunal. It is insisted that the Tribunal ought to have taken into account Rs. 20007 per month as income of the deceased and applied multiplier of 5 instead of 12, applied in the present case. 5. I have gone through the memo of appeal as also the record received from the Tribunal. I have heard learned counsel for the parties. 6. The appellant's case before the Tribunal, as also before this court, is that the Driver of the offending vehicle was not holding a valid and effective driving license at the time of accident and that the owner of the offending vehicle by handing over his vehicle to the driver, not having a valid and effective driving license, was guilty of breach of insurance contract and that the appellant was not under obligation to indemnify the owner of the offending vehicle. The evidence brought on the file reveals that the driver of the offending vehicle-respondent no.6 obtained driving license from Regional Transport Officer, Srinagar, under no.32145-K on 16.04.1984. The license was valid upto 15.04.1987. The respondent no.6, thereafter, got his license renewed upto 28.12.1996 and from 27.12.2001 to 28.12.2002. 7. The accident in question occurred on 18th November, 2001. Respondent no.6, obviously, had not a valid and effective driving license on 18.11.2001 in as much as he had failed to renew the license from 28.12.996 to 27.12.2001. The Tribunal having regard to the evidence brought on file rejected the appellant's case relying upon the law laid down in case titled New India Assurance Company Ltd. v. Sugla Bibi & Ofs reported in 2006 (1) SLJ page 46, 2006 (2) JKJ [HC] 292. The Tribunal held that, even if, the driving license was not renewed on the date of accident, still respondent no.6 held a valid driving license from 1984 to 1996 and thereafter, from 27.12.2001 to 28.12.2002, he was to be held to possess the ability to drive the vehicle, in absence of the evidence that he had incurred a physical disability in the meantime. The view taken by the Tribunal is in conflict with the law laid down by the Supreme Court in Bhuwan Singh v. Oriental Insurance Company Ltd. AIR 2009 SC 2177 and National Insurance Company v. Vidhyadhar Mahriwala and ors AIR 2009 SC 208 . In the former case, the license had expired on 22.12.2000. The accident took place on 05.01.2001. The driver applied for regular license on 22.01.2001 and the license was granted to him. It was held that the Insurance Company was not liable to pay compensation and indemnify the owner as the driver was not holding the valid and effective driving license on the date of accident though he was granted such license two weeks after the accident. 8. In National Insurance Company Ltd. v. Vidhyadhar Mahriwala and Others the driver's license was initially valid for a period from 15.12.1997 to 14.12.2000 and thereafter from it was renewed from 29.12.2000 to 14.12.2003 and from 16.05.2005 to 15.05.2008. The driving license was, therefore, not renewed from 14.12.2003 to 16.05.2005. The accident took place on 11.06.2004. In opposition to plea raised by the Insurance Company that the driver was not holding the valid and effective driving license at the time of accident and the Insurance Company was thus not under duty to indemnify the owner, it was insisted that as the driver had a valid and effective driving license that expired some time before the accident and was renewed after the accident, the driver was to be held to have been capable of driving the vehicle though the driving license was not renewed on the date of accident. The Supreme Court rejected the stand taken and referring to law laid down in the case titled Ishwar Chandra and others v. Oriental Insurance Company Limited and others AIR SCW 1889 held the Insurance Company not liable to indemnify the owner. The Insurance Company was, accordingly, permitted to recover the compensation paid from the owner of the vehicle. 9. The deciding factor in such a case is whether at the time of accident driver had an effective and valid driving license within the meaning of Section 3 of the Motor Vehicles Act and not whether in the opinion of the Tribunal, driver independent of his not having driving license at the time of accident was competent to drive the offending vehicle. The finding returned by the Tribunal on issue no.3, therefore, is not in accordance with law and liable to be set aside. 10. This takes us to quantum of compensation awarded. The Tribunal as already stated held the deceased to have been of 49 years of age at the time of accident and accordingly applied inultiplier of 12 to work out loss of dependency. It was further held that the deceased was a businessman by profession and had an income of Rs.6000/- per month. The Tribunal deducted 1/3 or Rs.2000/- per month on account of personal expenses and made use of Rs.4000/- as multiplicand to determine loss of dependency. The appellant is aggrieved with the income of the deceased taken into account by the Tribunal while working out the loss of dependency, as also the multiplier applied. It is insisted that the multiplier in terms of law laid down in case titled Tamil Nadu State Transport Corporation Ltd. v. Rajapriya & Others reported in AIR 2005 SC 2985 is on higher side. 11. The appellant insists that the deceased was 34 years of age at the time of death and the Tribunal ought to have applied multiplier of 5 as against 12, to determine the compensation. It is next urged that the Tribunal ought to have held the income of the deceased as Rs.2000/- per month at the time of death and also not awarded Rs.15,000/- on account of consortium and 10,000/- on account of Funeral expenses. 12. The respondents case before the Tribunal was that the deceased was 49 years of age at the time of the accident. PW's Gh.Rasol ASI, Abdul Ahad Dar, Mohd. Yousuf, stated before the Tribunal that the deceased was 49 years of age at the time of accident. There was no evidence in rebuttal from the appellant, Insurance Company. The appellant Insurance Company was not in a position to impeach the credibility of the witnesses in cross-examination. The evidence available on file was, therefore, reliable as regards the age of the deceased. In the circumstances, Tribunal was left with no option but to accept the respondents/claimants case and held the deceased to have been of 49 years of age at the time of accident. The evidence available on file was, therefore, reliable as regards the age of the deceased. In the circumstances, Tribunal was left with no option but to accept the respondents/claimants case and held the deceased to have been of 49 years of age at the time of accident. The appellant having failed to controvert the evidence brought on the file by the respondents cannot be heard saying that deceased was more than 49 years of age at the time of his death and the multiplier applied was on the higher side. The Tribunal, as a matter of fact as held in Sarla Verma & Others v. Delhi Transport Corporation & Another (2009) 6 Supreme Court Cases 121, ought to have applied multiplier of 5 instead of 12. There is also no merit in the appellant's case that the monthly income of the deceased taken into account by the Tribunal while computing the loss of dependency was excessive or exaggerated. The deceased as per the evidence brought on the file was businessman, was a cement dealer and was also dealing in pesticides. If the witnesses examined by the respondents/claimants are to be believed, the deceased was having monthly income of Rs. 10,000/- per month. The Tribunal being alive to exaggerations made by the witnesses in such a case, has taken into account only Rs.6000/- as monthly income of the deceased. The Tribunal has allowed the deduction of 1/3 of the income of the deceased 'on account of his personal expenses. The Tribunal having regard to law laid down in case Sarla Verma (Supra) ought to have deducted only l/4th of the income of the deceased on account of personal expenses in as much as the deceased left behind five dependents including his widow, mother and three minor children one of whom was born after his death. Since there is no challenge to the quantum of the compensation from the respondents/claimant and the compensation awarded is otherwise just within the meaning of Section 168 of Motor Vehicles Act, It may not be proper to examine whether the amount assessed on account of loss of dependency needs to be enhanced because of excessive deduction on account of personal expenses directed by the Tribunal. 13. So viewed, no ground is made out for slashing down the compensation or no reversal of the award. 13. So viewed, no ground is made out for slashing down the compensation or no reversal of the award. The amount awarded on account of loss of consortium and funeral expenses cannot be labelled as exorbitant or unreal. The award for the reasons discussed is modified to the following extent:- The appellant Insurance Company shall pay compensation of Rs.6,99,000/-with the interest at the rate awarded by the Tribunal and subject to the terms and conditions laid down by the Tribunal. However, appellant Insurance Company would be at liberty to recover the compensation from the owner of the vehicle without filing fresh suit, resorting to law laid down in Ishwar Chandra v. Oriental Insurance Company Ltd. And ors. 2007 AIR SCW 1889. 14. All other conditions subject to which the award is made shall remain unmodified and unaltered. Disposed of.