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Himachal Pradesh High Court · body

2015 DIGILAW 1656 (HP)

Oriental Insurance Co. Ltd. v. Tara

2015-11-06

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. All these appeals are the outcome of common award, therefore, are being taken up together for final disposal. 2. Claim petition No.39-S/2 of 2008, titled Tara vs. Seema Sharma and another, and Claim Petition No.43-S/2 of 2008, titled Bimla vs. Seema Sharma and another, were determined by the Motor Accident Claims Tribunal (II), Mandi, H.P., (for short, the Tribunal), vide award, dated 26th August, 2013, whereby compensation to the tune of Rs.2,72,000/- each, with interest at the rate of 7.5% per annum from the date of filing of the claim petitions till realization, came to be awarded in favour of the claimants in both the claim petitions and the insurer was saddled with the liability, (for short the impugned award). 3. Feeling aggrieved, the insurer filed the appeals, being FAO No.4158 of 2013 and 4159 of 2013, while the claimants filed FAO Nos.296 of 2014 and 78 of 2015 for enhancement of compensation. Brief facts 4. Claimants i.e. Smt.Tara and Smt. Bimla, invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), claiming compensation to the tune of Rs.27,25,000/- in each claim petition, as per the break-ups given therein, on account of death of their respective sons, namely, Ankush and Pankaj Mehra, in a vehicular accident, occurred on 30th March, 2008 at Cheli Kasumpti, Shimla. 5. Replies were filed and the claim petitions were resisted by the respondents. On the pleadings of the parties, the following almost similar issues came to settled by the Tribunal in both the claim petitions and the issues framed in one of the claim petition i.e. Claim Petition No.39-S/2 of 2008 are being reproduced below:- “1. Whether the death of Ankush took place due to rash and negligent driving of vehicle No.HP-01A-0349 by the driver deceased Manoj Kumar? OPP. 2. If issue No.1 is proved, what amount of compensation the petitioner is entitled to and from whom? OPP. 3. Whether the petition is not maintainable having not been filed in accordance with Rules framed under Motor Vehicles Act? OPR. 4. Whether the petition is not maintainable as against the respondent No.1? OPR-1. 5. Whether the petition is not maintainable as the vehicle was not insured? OPR-2 6. OPP. 3. Whether the petition is not maintainable having not been filed in accordance with Rules framed under Motor Vehicles Act? OPR. 4. Whether the petition is not maintainable as against the respondent No.1? OPR-1. 5. Whether the petition is not maintainable as the vehicle was not insured? OPR-2 6. Whether the petition is not maintainable in view of the fact that the vehicle was being driven in a rash and negligent manner by the deceased himself? OPR. 7. Whether the driver was not having valid and effective driving licence? OPR-2. 8. Whether there is collusion between the petitioners and the respondent No.1? OPR-2. 9. Whether the petition is not maintainable as there is breach of conditions of insurance policy? OPR-2. 10. Relief.” 6. Firstly, FAO Nos.4158 of 2013 and 4159 of 2013, filed by the insurer, are being taken up. It has been argued by the learned Senior Advocate appearing for the insurer that the Tribunal has fallen in error in fastening the liability upon the insurer inasmuch as the driver of the offending vehicle was not having a valid and effective driving licence. It was further argued that the owner/insured had committed breach of the terms and conditions contained in the insurance policy and, therefore, the insurance company is entitled for exoneration. 7. The argument of the learned Senior Advocate appearing for the insurer is devoid of any force for the simple reason that it was for the insurer to plead and prove that the owner/insured had engaged the driver without taking due care and caution and it was known to the owner that the licence of the driver was fake. No such evidence was led by the insurer, thus the insurer has failed to discharge the onus cast upon him. 8. My this view is fortified by the judgment of the Apex Court in National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow:- “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings; but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149 (2) of the Act.” 9. It is also profitable to reproduce para 10 of the judgment of the Apex Court in the case of Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217 hereinbelow:- “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran ingh case. If despite such information with the owner that the licence possessed by his driver is 8: fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 10. The Tribunal has made detailed discussion in paragraph 32 of the impugned award and has rightly saddled the insurer with the liability. 11. Having said so, the appeals filed by the insurer i.e. FAO Nos.4158 of 2013 and 4159 of 2013 are dismissed. 12. The Tribunal has made detailed discussion in paragraph 32 of the impugned award and has rightly saddled the insurer with the liability. 11. Having said so, the appeals filed by the insurer i.e. FAO Nos.4158 of 2013 and 4159 of 2013 are dismissed. 12. Coming to the appeals filed by the claimants i.e. FAO No.296 of 2014 (arising out of Claim Petition No.39-S/2 of 2008) and FAO No.78 of 2015 (arising out of Claim Petition No.43-S/2 of 2008), the Tribunal has rightly made the guess work and has rightly assessed the income of the deceased, in both the claim petition, as Rs.3,000/- per month and after making deduction has rightly held that the claimants lost source of dependency to the tune of Rs.1,500/- per month. 13. The learned counsel for the appellants/claimants argued that the Tribunal has fallen in error in applying the multiplier of 14. 14. Admittedly, the age of the deceased, in both the cases, was 21 years. As per schedule 2 appended with the Motor Vehicles Act, 1988 and as also as per the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, multiplier 15 was applicable. Thus, the Tribunal has fallen in error in applying the multiplier of 14. Therefore, it is held that multiplier of 15 is just and appropriate in this case. 15. Accordingly, the claimants, in each claim petition, are held entitled to Rs.1500 x 12 x 15 = Rs.2,70,000/-, under the head 'loss of source of dependency’. 16. In addition, the Tribunal has awarded Rs.10,000/- under the head ‘loss of estate’, Rs.5,000/- each under the heads ‘funeral charges’ and ‘transportation charges’, which amount is also on the lower side. Therefore, keeping in view the recent judgments of the Apex Court, a sum of Rs.10,000/- each is awarded under the heads ‘loss of love and affection’, ‘loss of consortium’, ‘loss of estate’ and ‘funeral expenses’. 17. Thus, a sum of Rs.2,70,000/- + Rs.40,000/- = Rs.3,10,000/- each is awarded in favour of the claimants, in both the claim petitions, with interest as awarded by the Tribunal. 18. 17. Thus, a sum of Rs.2,70,000/- + Rs.40,000/- = Rs.3,10,000/- each is awarded in favour of the claimants, in both the claim petitions, with interest as awarded by the Tribunal. 18. In view of the above, the appeals filed by the claimants are allowed and the impugned award stands modified, as indicated above. 19. The enhanced amount, alongwith interest, be deposited by the insurer within a period of six weeks from today and on deposit, the amount be released in favour of the claimants strictly in terms of the impugned award. 20. All the appeals stand disposed of accordingly.