Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 33 (JK)

United India Insurance Co. Ltd. v. Abha Mahajan

2015-02-19

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.:- 1. This Civil First Miscellaneous Appeal is directed against the judgment and award dated 20.09.2012 passed by the Motor Accidents Claims Tribunal, Jammu, in File No. 141/Claim, titled as Abha Mahajan & others v. United India Insurance Company Limited & others, whereby an award of Rs. 16,78,000/- along with interest @ 7.5% came to be awarded in favour of claimants-respondents 1 to 3 herein and against the insurer-appellant herein (for short, impugned award). The facts which led to the filing of claim petition are that deceased Rakesh Mahajan died in a road accident on 06.05.2011 when he was traveling in his car bearing No. JK02AL-7809, which was hit by the offending Truck bearing registration No. JK02AB-7295near Boompoint, Chander Kote on Jammu-Srinagar National Highway. He was a Journalist by profession and was 50 years of age at the time of accident. As per Income Tax Return, the annual income of deceased from his profession was Rs. 2,25,365/-. 2. Claimants, respondents 1 to 3 herein, filed a claim petition before the learned Tribunal seeking grant of compensation to the tune of Rs. 58 lacs as per the break-up given in the claim petition. Owner-insured as well as driver of the offending vehicle did not contest the claim petition and were set ex-parte. Appellant-insurer in its reply contended that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident and that there was violation of terms and conditions of the policy of insurance. 3. The following issues came to be framed by the learned Tribunal: "1. Whether an accident occurred on 06.05.2011 at Boom Point under jurisdiction of P/S Chander Kote by rash and negligent driving of offending vehicle No. JK02AB-7295 being driven by respondent No. 3 in which deceased received fatal injuries? OPP 2. If issue No. 1 is proved in affirmative, whether petitioners are entitled to the compensation, if so, to what amount and from whom? OPP 3. Whether driver of the offending vehicle was not holding valid and effective driving license at the time of accident and whether there was violation of terms and conditions of policy of insurance? OPR-1 4. Relief. OP Parties" 4. Claimants were directed to lead evidence and they examined PW Ramesh Sharma in support of their case. 5. Mr. OPP 3. Whether driver of the offending vehicle was not holding valid and effective driving license at the time of accident and whether there was violation of terms and conditions of policy of insurance? OPR-1 4. Relief. OP Parties" 4. Claimants were directed to lead evidence and they examined PW Ramesh Sharma in support of their case. 5. Mr. Chouhan, learned counsel for appellant-Insurance Company submitted that at the time of accident the offending vehicle was being plied in breach of the terms and conditions of the Insurance Policy, therefore, the learned Tribunal has fallen in error while holding the Insurance Company liable for payment of compensation, inasmuch as the driver of the offending vehicle was not having valid and effective driving license at the time of accident, rather it was being plied without valid route permit. 6. I have gone through the evidence recorded by the learned Tribunal and the documents on the file. Insurer had failed to lead any evidence in rebuttal or produce any document to prove that driver of the offending vehicle was not holding valid and effective driving licence at the time of accident or had committed any breach in terms of the mandate of Motor Vehicles Act read with any other law applicable. It was the insurer who had to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. Even the appellant-insurer had not specifically pleaded before the learned Tribunal that the offending vehicle was being plied without any route permit. Therefore, at this stage the appellant-insurer cannot raise the plea that the offending vehicle was being plied without route permit. This Court in United India Ins. Co. Ltd. v. Preeti Sharma, CIMA No. 359/2012 and other connected matters, reported as 2014 AAC 2503, has held that the initial onus to prove that there was breach of the terms and condition of the policy is on the insurance company. It would be relevant to reproduce paragraph 33 herein: "33. The case before this Court is not a case where there was no Route Permit at all, therefore, it cannot be said that the vehicle was being plied without a route permit. It would be relevant to reproduce paragraph 33 herein: "33. The case before this Court is not a case where there was no Route Permit at all, therefore, it cannot be said that the vehicle was being plied without a route permit. Otherwise too, it was the duty of the Insurance Company to prove that at the time of accident the vehicle was being plied without valid Route Permit. RWs Anil Suri and Vidya Sagar, Junior Assistants, RTO Office, Jammu, produced by the Insurance Company, deposed before the learned Tribunal that as per the records of Regional Transport Office, Jammu the offending vehicle was registered in the name of its owner, namely, Subash Chander and its seating capacity was 18. The witnesses did not whisper anything about the validity of Route Permit or that at the time of accident the vehicle was being plied in breach of the Conditions of the Route Permit nor has in cross-examination anything come out regarding the same. The violation, if any, would not amount to violation of the conditions of the insurance policy and would not give the insurer a defence under Section 149(2) of the Act. Otherwise too, the appellant-insurance company has satisfied the award passed under Section 140 of the Act as "No Fault Liability". It is well settled that the initial onus to prove that there is breach of the terms and conditions of the policy is on the insurance company. Therefore, the insurance company was required to establish the said breach by leading cogent evidence. Since it has failed to prove the same, it cannot be absolved of its liability. In the given circumstances, I do not find any reason to take a view other than the one taken by the learned Tribunal. Therefore, the findings returned by the learned Tribunal on this issue are also upheld." 7. Now the question arises for consideration is: whether the compensation awarded is just and proper. 8. It has come on record that the deceased was an income tax payee. The Income Tax Return of the deceased for the assessment year 2011-12 shows that the deceased was having annual income of Rs. 2,25,365/- from his profession. Learned Tribunal after deducting one third as his personal income, held that the claimants have lost source of dependency to the tune of Rs. 1,50,244/-. The Income Tax Return of the deceased for the assessment year 2011-12 shows that the deceased was having annual income of Rs. 2,25,365/- from his profession. Learned Tribunal after deducting one third as his personal income, held that the claimants have lost source of dependency to the tune of Rs. 1,50,244/-. Learned Tribunal taking the age of the deceased as 50 years at the time of accident, as per the postmortem report, has rightly applied multiplier 11. Learned Tribunal accordingly awarded an amount of Rs. 16,52,684/- in favour of claimants under the head loss of dependency, Rs. 5000/- under the head loss of dependency, Rs. 10,000/- under the head loss of estate and Rs. 10,000/- under the head loss of consortium to widow. Thus, in total, the learned Tribunal has awarded a sum of Rs. 16,78,000/- along with 7.5% interest in favour of claimants from the date of filing of the claim petition till its realization. 9. Therefore, in my view since the learned Tribunal has already given a well reason award, I do not find any ground to interfere with the same. Accordingly, the impugned award is upheld and the appeal is dismissed along with connected CMA(s), if any. Appellant-Insurance Company is directed to satisfy the award in terms of the conditions laid therein.