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2012 DIGILAW 233 (JK)

Oriental Insurance Co. Ltd. v. Saraswati & Ors.

2012-05-09

J.P.SINGH

body2012
The Motor Accidents Claims Tribunal, Kathua awarded Rs.2,71,800/- as compensation to respondent Nos. 1 to 3 for the death of Vijay Kumar aged 18 years, who died because of the injuries received in Motor Accident that occurred on 23.04.2002 near Peer Baba Chenab Textile Mills, Kathua. The appellant-Oriental Insurance Company Limited has questioned the quantum of compensation awarded by the Tribunal as also the findings of the Tribunal holding it liable to indemnify the insured-owner. I have considered the submissions of the appellant s and claimants learned counsel. None, however, appeared for respondent Nos. 4 & 5. The records of the Tribunal too have been perused. Perusal of the statement of the appellant s witness Milap Chand, a Junior Assistant in the Office of the District Transport Office, Amritsar reveals that the entry pertaining to the Licence of Kuldeep Singh-respondent No.4, the driver of the offending Truck, had been deleted from the Official Register and in its place, Dr. Pawan Kumar was shown to have been issued the Licence. According to the records, the respondent No.4 was, therefore, not holding any Licence on the date of the accident. Even if the factor of deletion of Kuldeep Singh s name from the Register were not to be accepted, the Licence stated to have been issued to Kuldeep Singh permits him to drive a Scooter/Car and not Commercial Vehicle. The Insurance Company had, therefore, discharged the initial onus by proving that the driver of the vehicle did not hold valid and effective Driving Licence on the day he was driving Truck bearing Registration No. PB08K-9751. The owner of the vehicle, i.e., respondent No.5 was set ex-parte by the Tribunal for its failure to appear despite service. There was, therefore, no evidence in rebuttal to the evidence produced by the appellant. In the absence of any evidence in rebuttal, the appellant s witness Milap Chand s Statement needs to be accepted. The owner of the vehicle, i.e., respondent No.5 was set ex-parte by the Tribunal for its failure to appear despite service. There was, therefore, no evidence in rebuttal to the evidence produced by the appellant. In the absence of any evidence in rebuttal, the appellant s witness Milap Chand s Statement needs to be accepted. The view taken by the Tribunal that having failed to explain the cuttings appearing in the official records whereby the entry appearing against Kuldeep Singh s name had been scored off substituting it with the entry in the name of Pawan Kumar, the appellant had failed to prove that the Licence issued in favour of Kuldeep Singh was not valid and effective, is found unsustainable because it was not for the appellant to explain the cuttings in the official records when it had discharged its initial onus to prove that the Driving Licence of the Driver employed by the owner was not effective and valid on the date of the accident by producing the official witness, who had testified that the Driving Licence issued under Serial No.3173 would permit the holder of the Licence to drive only Scooter and Car. On the basis of the evidence produced by the appellant, it needs to be held that the driver of the vehicle bearing Registration No. PB08K-9751 was not holding a valid and effective Driving Licence when the vehicle had met with the accident. However, in order to succeed in avoiding its liability to indemnify the insured, the appellant was required to lead evidence to prove that the insured had permitted the truck covered by the insurance policy to be driven by respondent No.4 knowing it well that he did not hold a valid and effective Driving Licence. However, in order to succeed in avoiding its liability to indemnify the insured, the appellant was required to lead evidence to prove that the insured had permitted the truck covered by the insurance policy to be driven by respondent No.4 knowing it well that he did not hold a valid and effective Driving Licence. No evidence has, however, been led by the appellant to this effect, and in this view of the matter, the appellant cannot avoid its liability to indemnify the owner in view of the law laid down by Hon’ble Supreme Court of India in Prem Kumari and others versus Prahlad Dev and others, reported as 2008 AIR SCW, 682 where dealing with the issue, it was held as follows:- It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and driving the vehicle in question completely at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the Insurance Company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive. The appellant s learned counsel s plea that the Insurance Company was not liable to indemnify the owner, therefore, fails and is, accordingly, rejected. Coming to the appellant s learned counsel s next plea that the Award of the Tribunal being on higher side needs modification, it is found that the deceased was proved, by unimpeachable evidence, to have been employed as Worker in the Chenab Textile Mills and in this view of the matter, the Tribunal was right in taking his monthly income at Rs.2100/- at the time of his death. This is so because the average monthly income of a labourer, who is otherwise entitled to get minimum wages, would be the same as the Tribunal has assessed as income of the deceased. This is so because the average monthly income of a labourer, who is otherwise entitled to get minimum wages, would be the same as the Tribunal has assessed as income of the deceased. Therefore, even if the deceased was proved by his employer to have been paid Rs.952/- in March 2002 when he worked for only 12 days and Rs.1664/- when he had worked for 21 days, the average income of the deceased has been correctly taken as Rs.2100/- taking into consideration the increase that he would have got in the wages with the passage of time. Deducting 1/3rd therefrom as the personal expenses of the deceased that he would have spent on him had he survived the accident, the dependence of the family of the deceased has been rightly taken at Rs.1400/- per month. The Tribunal, however, appears to have erred in making the selection of the Multiplier to assess the compensation, which in view of the age of the mother of the deceased which was less than 55 years at the time of the accident, was not required to be taken as 16 as adopted by the Tribunal taking the age of the deceased into consideration. Keeping in view the facts and circumstances of the case that the deceased was the only bread winner of the family which consisted of his old mother and two minor brothers aged 10 years and 8 years, the Multiplier of 13 is adopted for assessment of compensation. The loss of dependence of the family on the income of the deceased would, therefore, be Rs.2,18,400/-. Adding Rs.15,000/- for loss of love and affection and Rs.15,000/- for expenses on funeral and other related post death religious rites, the total compensation payable to the claimants would be Rs.2,48,400/-. The Award of the Tribunal is, accordingly, modified as Award for Rs.2,48,400/- along with interest as allowed by the Tribunal. The amount payable to the claimants in terms of the modified Award minus the amount already received by them be released in their favour and rest of the amount be released in favour of the appellant by an Accounts Payee Cheque. This Appeal is disposed of accordingly.