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Rajasthan High Court · body

2014 DIGILAW 708 (RAJ)

National Insurance Company Ltd. v. Smt. Ram Janki

2014-03-13

NISHA GUPTA

body2014
JUDGMENT 1. - This Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the award dated 21.5.2005 passed by the Judge, Motor Accident Claims Tribunal, Jhalawar in claim case no.47/2002 whereby a sum of Rs. 5,25,000/- has been awarded as compensation. 2. The brief facts giving rise to this appeal are that claimant filed a claim petition for accidental death of his son Lokesh Pancholi which occurred on 13.02.2002 at about 8.30 PM. The offending vehicle bearing registration No. RJ 17-P- 0017 being driven rashly and negligently by its driver hit Lokesh Pancholi. He sustained grievous injuries and died on the spot. 3. The contention of the Insurance Company is that court below has wrongly fastened liability on insurance company as the driver was not having valid and effective license on the date of accident and it was driven without any valid permit. Hence there was a breach of condition of insurance policy and insurance company cannot be held liable. His further contention is that penal interest has been awarded against the settled proposition of law and multiplier has been applied on the basis of age of the deceased. Hence, the insurance company be absolved from the liability and in alternate, the amount of compensation should be reduced accordingly. 4. Per Contra, the contention of the respondent-claimant is that there is no infirmity in the impugned award and the court below has allowed just and fair compensation in favour of claimant. 5. The contention of respondents no. 2 and 3 is that the driver was having valid license on the date of accident and valid permit as well and there is no evidence that condition of policy has been violated by the respondents. Hence, no interference is needed. 6. Heard learned counsel for the parties and perused the award as well as the original record of the case. 7. The first contention of the appellant that on the date of accident, driver of the impugned vehicle was not having valid license. License Ex.NA-10 has been placed on record which shows that the driver of the impugned vehicle was having valid license to drive the light vehicle as well as heavy vehicles. 7. The first contention of the appellant that on the date of accident, driver of the impugned vehicle was not having valid license. License Ex.NA-10 has been placed on record which shows that the driver of the impugned vehicle was having valid license to drive the light vehicle as well as heavy vehicles. The contention of the appellant is that as per driving license Ex.NA-10 license was renewed upto 31.01.2002 and admittedly accident has occurred on 03.02.2002, on the day of accident, the license was not renewed, the burden was on the appellant to prove that the driver was not having valid license and from Ex.NA-10 it has been amply proved that the driver was having valid license and endorsement NA-10 also shows that it has been renewed from 8.1.2003 to 7.1.2006. Apart from this in driving license register Ex.NA-11 an endorsement has been made on 8.4.2002 that license has been suspended for six month and suspension pre-supposes that license was in effect. In column no.3 of document Ex.NA-11 it has been stated that license is valid upto 19.10.2010 and when the license has been suspended on 8.4.2002 it pre-supposes that prior to it the license was effective hence the appellants have utterly failed to prove that on 3.2.2002 the driver was not having valid license. The court below has rightly observed so. There is no infirmity in the finding arrived at by the court below as regard the contention of valid license. 8. The other contention of the appellant is that the offending vehicle was not having valid permit. Ex.22 permit has been placed on record which is the complete answer to the objection raised by the appellant. The counsel for the appellant has submitted that the vehicle was driven in violation of permit and on the route which was not allowed in the permit but no such evidence has been produced by the appellant before the court below. Hence, these arguments have no force and are not accepted. 9. The contention of the respondents is that the appeal is not maintainable looking to the provisions of section 149(2) of Motor Vehicles Act. Reliance has been placed on Samundra Devi and others v. Narendra Kaur and others (2008) 9 SCC 100 and Punam Devi and others v. Divisional Manager, New India Assurance Co. Ltd. And others, AIR 2004 SC 1742 . Reliance has been placed on Samundra Devi and others v. Narendra Kaur and others (2008) 9 SCC 100 and Punam Devi and others v. Divisional Manager, New India Assurance Co. Ltd. And others, AIR 2004 SC 1742 . Here in the present case insurance company has assailed the order on the ground of breach of policy hence appeal is maintainable. Apart from this, the issue in this regard has been referred to larger bench hence it could not be said that appeal is not maintainable. 10. The other contention of the appellant that multiplier has been applied relying on the age of the deceased. Admittedly the age of the deceased was 26 years at the time of accident and claimant is the mother of the deceased and contention of the appellant is that as per age of the mother which is 48 years, the proper multiplier is 13. 11. Per contra, the contention of the respondents is that proper multiplier has been applied after considering the age of the deceased and reliance has been placed on Mohd. Ameeruddin and another v. United Insurance Company Limited and another (2011) 1 SCC 304 where after taking the age of the mother, multiplier has been applied. It does not support the case of the respondents. Further reliance has been placed on Leela Gupta and others v. State of Uttar Pradesh and ors., (2010) 12 SCC 37 where it has been explained that loss of dependency would be calculated on the number of years purchased and on which the loss of dependency is capitalized and purpose of award of compensation is to put dependents of deceased in the same position financially as if he had lived natural span of life. Hence, on this logic and sound legal well establish principle number of years purchased would govern the dependency and guiding factor for assessment of loss of dependency would be the age of parents. Further reliance has been placed on HS Ahammed Hussain and Another v. Irfan Ahammed and another (2002) 6 SCC 52 where it has been held that life expectancy of the deceased or the beneficiaries whichever is shorter is an important factor for applying multiplier and multiplier has been applied on the basis of age of the parents. Further reliance has been placed on HS Ahammed Hussain and Another v. Irfan Ahammed and another (2002) 6 SCC 52 where it has been held that life expectancy of the deceased or the beneficiaries whichever is shorter is an important factor for applying multiplier and multiplier has been applied on the basis of age of the parents. Further reliance has been placed on Bijoy Kumar Dugar v. Bidya Dhar Datta and others, (2006) 3 SCC 242 , Bilkish v. United India insurance Company Limited and another (2008) 4 SCC 259 , R. Sulochana v. Ullgannal and another (1998) 8 SCC 688 wherein just compensation has been assessed. Hence in view of the above, the court below has erred in applying multiplier on the basis of the age of the deceased. The multiplier should have been applied as regard the age of dependent which is admittedly 48 years. In the present case, proper multiplier of should be applied instead of 16. 12. The other contention of the appellant is that court below has awarded the penal interest, if the claim has not been honoured within the period of two months. It is well settled that awarding of penal interest is unreasonable and arbitrary and should not be sustained. 13. The appeal is partly allowed and the compensation in the head of loss of income is reduced to Rs. 4,05,000/- (31200x 13) instead of Rs. 4,99,200/-. The award is modified to that extent. Rest of the award is confirmed. Order of awarding penal interest in case of not depositing the award amount within a period of two months is also set aside.Appeal partly allowed. *******