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2015 DIGILAW 940 (HP)

Oriental Insurance Company v. Manju Devi

2015-07-24

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award, dated 12.12.2007, made by the Motor Accident Claims Tribunal, Bilaspur, H.P. (for short "the Tribunal") in M.A.C. Case No. 61 of 2005, titled as Smt. Manju Devi and others versus Shri Jameel Akhter and others, whereby compensation to the tune of Rs. 8,03,000/- with interest @ 6% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants and the insurer came to be saddled with liability (for short "the impugned award"). 2. The owner-insured, the driver and the claimants have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The appellant-insurer has questioned the impugned award on three counts: (i) That the driver of the offending vehicle was not having a valid and effective driving licence at the time of the accident; (ii) That the multiplier applied by the Tribunal is not in consonance with the Second Schedule appended with the Motor Vehicles Act, 1988 (for short "MV Act") read with the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120; and (iii) That the income of the deceased assessed by the Tribunal is on higher side. 4. In order to determine all these points, it is necessary to give a flashback of the facts of the case, the womb of which has given birth to the appeal in hand. 5. The claimants invoked the jurisdiction of the Tribunal in terms of Section 166 of the MV Act for grant of compensation on the ground that they lost their sole bread earner, Shri Krishan Kumar, in a vehicular traffic accident, which was caused by the driver, namely Shri Gopal Dass, while driving truck, bearing registration No. HP-31 B-0307, rashly and negligently, on 18.04.2005, at about 11.15 A.M. on National Highway near Ghambrola bridge, in which he sustained injuries and succumbed to the injuries. 6. 6. The respondents in the claim petition, i.e. the owner-insured, the driver and the insurer, resisted the claim petition on the grounds taken in the respective memo of objections. 7. Following issues came to be framed by the Tribunal on 04.04.2006: "1. Whether the deceased Krishan Kumar had died in the accident of truck No. HP-31 B-0307 which was being driven rashly and negligently by respondent No.2 at the time of the accident, if so, its effect? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation and from which of the respondents the petitioner is entitled to? OPP 3. Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident ? OPR-3 4. Whether the offending vehicle was being plied contrary to the provisions of the Motor Vehicles Act, if so, its effect? OPR-3 5. Relief." 8. Parties led evidence. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation in favour of the claimants and saddled the appellant-insurer with liability. 9. There is no dispute about the findings returned by the Tribunal on issue No. 1. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld. 10. Issues No. 2, 3 and 4 are covered by the questions framed hereinabove. Admittedly, the deceased was 37 years of age at the time of the accident, has rightly been held by the Tribunal and admitted by the learned counsel for the parties appearing before this Court. 11. While going through the Second Schedule appended with the MV Act read with the judgment made by the Apex Court in Sarla Verma's case (supra) and upheld by a larger Bench in Reshma Kumari's case (supra), two has to be deducted from the multiplier given in the Schedule. Viewed thus, the Tribunal has fallen in an error while applying the multiplier of 16', as multiplier of 14' was applicable. 12. The Tribunal has held that the deceased was a trained plumber and has assessed his income as Rs. 6,000/- per month by exercising guess work. I am of the considered view that the guess work exercised by the Tribunal is just and proper and the assessment made is not on the higher side. 12. The Tribunal has held that the deceased was a trained plumber and has assessed his income as Rs. 6,000/- per month by exercising guess work. I am of the considered view that the guess work exercised by the Tribunal is just and proper and the assessment made is not on the higher side. The Tribunal has rightly deducted one third towards personal expenses in view of the judgments (supra) and held that the claimants have lost source of dependency to the tune of Rs. 4,000/-per month, i.e. Rs. 48,000/- per annum. 13. Having said so, the claimants are held entitled to compensation under the head 'loss of dependency' to the tune of Rs. 48,000/-x 14 = Rs. 6,72,000/-. The compensation awarded by the Tribunal under the heads 'loss of consortium' to the tune of Rs. 25,000/- and 'conventional charges' to the tune of Rs. 10,000/- is upheld. 14. Viewed thus, the claimants are held entitled to total compensation to the tune of Rs. 6,72,000/- + Rs. 25,000/- + Rs. 10,000/-= Rs. 7,07,000/-. 15. The driving licence, Ext. R-4 is on the record. While going through the said driving licence, one comes to an inescapable conclusion that the driver of the offending vehicle was having a valid and effective driving licence to drive 'HTV' with effect from 20.04.2002. The accident has taken place on 18.04.2005. Thus, it can be safely held that the driver of the offending vehicle was having a valid and effective driving licence to drive the offending truck, bearing registration No. HP-31 A-0307, at the relevant point of time. 16. Learned Senior Counsel appearing on behalf of the appellant-insurer argued that the driving licence was not issued in terms of the provisions contained in Section 7 of the MV Act. The argument of the learned Senior Counsel, though attractive, is devoid of any force for the following reason: 17. The owner-insured has discharged his duty by checking the contents of the driving licence of the driver. It was not for the owner-insured to verify the contents of the said driving licence. Even otherwise, the driving licence, Ext. R-4, is on the record. It contains the endorsement of 'HMV', appears to be legal one. 18. The appellant-insurer has not proved that the owner-insured has committed any willful breach. 19. It was not for the owner-insured to verify the contents of the said driving licence. Even otherwise, the driving licence, Ext. R-4, is on the record. It contains the endorsement of 'HMV', appears to be legal one. 18. The appellant-insurer has not proved that the owner-insured has committed any willful breach. 19. Viewed thus, the Tribunal has rightly directed the appellant-insurer to indemnify the owner-insured because the offending vehicle was insured with it, which factum is not in dispute. 20. Having glance of the above discussions, the appeal is disposed of and the impugned award is modified, as indicated hereinabove. 21. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification. The excess amount be released in favour of the appellant-insurer through payee's account cheque. 22. Send down the record after placing copy of the judgment on Tribunal's file.