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2013 DIGILAW 139 (CHH)

UNITED INDIA INSURANCE CO. LTD. v. SANTOSHI YADAV

2013-04-29

N.K.Agarwal

body2013
ORAL AWARD 1. This is insurer's appeal against the award dated 03.09.2012 passed by the 1st Additional Motor Accidents Claims Tribunal, Raipur (for short 'the Tribunal') in claim case No. 30/2012. 2. As against the compensation of Rs. 17,50,000/- claimed by the unfortunate widow, minor children and parents of deceased - Jagat Ram Yadav by filing application under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') for his death in the motor accident dated 19.01.2010, the Tribunal awarded a sum of Rs. 4,72,000/- as compensation along with interest at the rate of 6% per annum from the date of claim application till its actual payment. 3. The learned Tribunal, on a close scrutiny of the evidence led by the parties, held: the motorcycle bearing registration No.C.G.04/DJ/5397 met with an accident resulting in death of pillion rider - Jagat Ram Yadav; appellant/insurance company liable for payment of compensation as it could not establish violation of policy conditions; assessed and awarded the aforesaid sum as compensation, to respondents No. 1 to 6/claimants. 4. Assailing the liability of payment of compensation, Shri Dashrath Gupta, learned counsel appearing for the appellant, would submit from the statement of am Prakash Joshi (N.AW.2), investigator, it would be clear that the driver of the motorcycle, i.e., Baliram Yadav, who also died in the accident, was not possessing any valid and effective driving licence to drive the motorcycle, inasmuch as, neither the copy of licence was seized by the Police nor the same was filed by its owner. It was further contended that the sum of Rs. 40,000/- awarded by the Tribunal on conventional heads in death cases would not be more than Rs. 9,500/-. 5. On the other hand, Shri Shivendu Pandya, and Shri C.K. Sahu, learned counsel appearing for respondents No. 1 to 6 and 7, while raising a question of law that in a claim petition filed by the claimants under Section 163-A of the Act, defences available to the insurance company (insurer of the offending vehicle) under Section 149 of the Act are not available for opposing the claim petition, have also submitted: the appellant/insurance company utterly failed to establish the defence taken by it in the written statement and the Tribunal has not committed any error of law in saddling the liability of payment of compensation upon the appellant/insurance company. 6. 6. I have heard learned counsel for the parties and perused the award impugned including the record of the Tribunal. 7. For determining the question revolved, the Scheme for payment of compensation under the Act can be divided as under : (i) Section 140. For no-fault liability in case of death or disablement; (ii) Section 161. In case of hit and run motor accidents where the identity of the vehicle cannot be ascertained - compensation amount is Rs. 25,000/- in case of death and Rs. 1,2500/- in case of grievous hurt; (iii) Section 163-A. Special provisions as to payment of compensation on structured formula basis without establishing or proving any wrongful act or neglect or default of any person; (iv) Section 168. Determination of compensation payable in pursuance of any right on the principle of fault liability. 8. Chapter XII provides for constitution of Claims Tribunals by the State Government for the purpose of adjudicating the claims for compensation and the procedure thereof. The Claims Tribunal is required to determine the application for payment of compensation either under section 140 or section 163A on the basis of no-fault liability and also on the basis of right to receive the compensation on the principle of fault liability on the basis of Law of Torts, as modified by the Fatal Accidents Act, 1855 read with Motor Vehicles Act, 1988. 9. Section 147 of the Act deals with requirements of policies and limits of liabilities. The insurance company is held liable only by virtue of issuance of policy under Section 147 of the Act. Section 149 (2) of the Act deals with defences available to an insurer. 10. As per Section 149 (2) of the Act, no sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings; or in respect of such judgment award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:- xxxxx xxxxx xxxxx xxxxx xxxxx 11. Therefore, if a liability of the insurance company arises by virtue of an insurance policy, then certainly it cannot be said that defences under Section 149 (2) of the Act are not available to it and in view of above, in my opinion, the defences under Section 149 of the Act are also available to the insurance company in a claim filed under Section 163-A of the Act. 12. As per Shri Dashrath Gupta, either claimants or the owner have not filed the copy of licence of the driver of the offending vehicle nor the same was disclosed during investigation to appellant's investigator am Prakash Joshi (N.A.W.2), and therefore, the Tribunal should have held that the driver of the offending vehicle was not possessing a valid and effective driving licence. 13. The owner of the vehicle was proceeded ex parte before the Tribunal. No efforts have been made by the appellant/insurance company by issuing a notice or approaching the insured, i.e., owner of the vehicle or even the legal representatives of deceased-driver for obtaining a copy of the licence. On the contrary, the investigator examined by the appellant/insurance company submitted his report based on criminal case. The Officer examined by the appellant/insurance company was not aware about the appointment of any investigator on behalf of company. As against it, as per his statement, such investigation report has not been filed by the appellant/insurance company. In view of above, merely because, copy of licence of late Baliram Yadav, i.e., driver of the vehicle, was not seized by the police, it cannot be said that the driver of the vehicle was not possessing valid and effective driving licence at the time of accident, and therefore, the Tribunal has not committed any error in fastening liability of payment of compensation upon the appellant/insurance company and the submission of the appellant needs rejection. 14. Nevertheless, the Tribunal has certainly fallen in error in awarding Rs. 40,000/- on conventional heads, inasmuch as, the claim being under Section 163-A of the Act, the Tribunal could not have awarded more than Rs. 9,500/- on conventional heads, i.e., Rs. 2000/- for funeral expenses, Rs. 5000/- loss of consortium and Rs. 2,500/- for loss of Estate, apart from actual medical expenses incurred before death supported by bills/ vouchers, as provided under second schedule appended to Section 163-A of the Act. 15. 9,500/- on conventional heads, i.e., Rs. 2000/- for funeral expenses, Rs. 5000/- loss of consortium and Rs. 2,500/- for loss of Estate, apart from actual medical expenses incurred before death supported by bills/ vouchers, as provided under second schedule appended to Section 163-A of the Act. 15. For the reasons mentioned herein above, the appeal is allowed in part. The amount of Rs. 40,000/- under other conventional heads awarded by the Tribunal is reduced to Rs. 9,500/-. The claimants are now entitled for Rs. 4,41,500/- as total compensation in place of Rs. 4,72,000/- as awarded by the Tribunal. The award is modified to the above extent. Rest of the conditions shall remain intact. 16. No order as to costs. Appeal Partly Allowed.