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2016 DIGILAW 60 (CAL)

New India Assurance Co. Ltd. v. I. Venkat Rao

2016-01-18

DEBI PROSAD DEY, HARISH TANDON

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JUDGMENT : Debi Prosad Dey, J. 1. The appellant (M/s New India Assurance Co.Ltd), has challenged the award dated 30th June, 2015 passed by the Motor Accident Claims Tribunal, Andaman and Nicobar Islands, Port Blair in MACT No.28 of 2007 whereunder the learned Judge of Tribunal has awarded compensation in favour of the claimant to the tune of Rs.9,21,000/- along with interest @ 8% per annum from the date of filing the claim application on account of death of I. Sadu Babu in a road traffic accident. 2. The appellant contested the case by filing written statement. The owner of the vehicle was impleaded as Opposite Party No.2 but, the case was decided ex parte as the owner of the vehicle did not contest the case. 3. The brief fact of the case is that I. Sadu Babu along with B. Bhaskar Rao were returning after attending a marriage function at Tamizhar Sangam and suddenly one Trailer bearing Registration No.AN-01 C-7216 knocked down the petitioner and B. Bhaskar Rao resulting in death of I. Sadu Babu. 4. The specific case of the claimant is that such accident took place, due to rash and negligent driving of the driver of such Trailor, and the deceased is the only son of the claimant aged about 23 years only, who was working as Supervisor under a Government Contractor Shri Gopal Krishna of Bathubasthi and used to earn Rs.6000/- per month. 5. The specific case of the appellant before the Tribunal was that the driver of such vehicle was not responsible for such accident and that the claimant had demanded exorbitant amount of compensation. 6. The claimant examined himself as PW-1 and produced some documents before the Tribunal in order to justify his claim. It is evident that an FIR No.414/2007 dated 13.05.2007 was registered at PS Aberdeen and on completion of investigation charge sheet against the driver of the Trailor bearing Reg. No.AN-01 C-7216 was filed. The post mortem report has confirmed the death of I. Sadu Babu was on account of road traffic accident. The document further revealed that such Trailor was insured with the appellant at the time of such occurrence. 7. No.AN-01 C-7216 was filed. The post mortem report has confirmed the death of I. Sadu Babu was on account of road traffic accident. The document further revealed that such Trailor was insured with the appellant at the time of such occurrence. 7. The Tribunal on consideration of materials on record held that the victim was aged about 20-25 years of age at the time of his death and the victim was working as Supervisor under a Government Contractor with monthly salary of Rs.6000/-. Therefore, the annual income of the victim was assessed at Rs.72,000/- and after deducting 1/3 of such amount towards personal expenses, the actual annual income was assessed to Rs.48,000/-. In terms of schedule II of the Motor Vehicles Act, the learned Tribunal accepted the multiplier as 17 and thereafter decided the compensation to the tune of Rs.8,16,000/-. Learned Judge of the Tribunal awarded Rs.1,00,000/- to the future dependency and mental pain and agony of the claimant and Rs.5000/- towards funeral expenses of the deceased and, in all the learned Judge of the Tribunal awarded Rs.9,21,000/- towards compensation against the Insurance Company. 8. Learned advocate appearing on behalf of the appellant Mr. N.A. Khan contended that the learned Tribunal was not justified in deducting 1/3 towards personal expenses but, the Tribunal ought to have been deducted 50% towards personal expenses since the deceased was a bachelor. Learned advocate for the appellant has raised specific objection towards awarding of interest @ 8%. Learned advocate for the appellant has further pointed out that at the relevant point of time the driver of the offending vehicle had no driving licence and no opportunity was given to the Insurance Company to adduce evidence though the Insurance Company was ready with such witnesses and documents before the Tribunal. 9. Learned advocate appearing on behalf of the Opposite Parties contended that the Insurance Company has had no authority to challenge before the Tribunal in respect of the driving licence of the driver and the Tribunal was justified in awarding such compensation in faovur of the claimant. 10. It may be mentioned here that the claimant died during pendency of the appeal and the legal heirs of the claimant have been brought into the record as opposite parties. Learned advocate Mr. Roshan George has filed Vakalatnama on behalf of all the opposite parties. 11. 10. It may be mentioned here that the claimant died during pendency of the appeal and the legal heirs of the claimant have been brought into the record as opposite parties. Learned advocate Mr. Roshan George has filed Vakalatnama on behalf of all the opposite parties. 11. It is crystal clear from the given facts and circumstances of the case that there is absolutely no doubt that the victim died in a road traffic accident and the driver of the offending vehicle has already been charge-sheeted for causing such death of the deceased. 12. On careful scrutiny of lower court records, we find that sufficient opportunity was given to the appellant to adduce evidence but ultimately the appellant did not adduce any evidence. Finally the appellant closed its case before the Tribunal and therefore, the Tribunal disposed of the claim petition. 13. We do not find any lapses on the part of the Tribunal. Per contra, we find that the appellant did not adduce any evidence before the Tribunal and as such there is absolutely no scope to adduce any sort of evidence in this appeal by the appellant. Only 8% interest has been awarded by the Tribunal from the date of filing of the claim petition. 14. The claimant is definitely entitled to get interest from the date of filing of the application under section 166 of the Motor Vehicles Act. Secondly, the rate of interest awarded by the Tribunal is also not more than a prevailing rate of interest and we do not find any illegality in awarding 8 % interest by the Tribunal. 15. It is well settled principle of law that the insurer can safely take a plea that the driver of the offending vehicle had no requisite driving licence at the time of such occurrence/fatal accident and as such the insurer had/has no liability to pay any amount towards the claim. In that event, the insurer should obtain a report from the transport authority and produce the same before the Tribunal to absolve the insurer of such claim. 16. We have carefully gone through the written statement field by the appellant and we do not find any such averment in the written statement of the appellant that the driver of the offending vehicle had no licence to drive the vehicle at the relevant point of time. 16. We have carefully gone through the written statement field by the appellant and we do not find any such averment in the written statement of the appellant that the driver of the offending vehicle had no licence to drive the vehicle at the relevant point of time. Accordingly, the appellant cannot take such plea in the appeal without having any averment to that effect. There is no denial in the written statement filed by the appellant with regard to the validity of the insurance policy on the date of such accident. 17. Even, if there be any violation towards the conditions of the insurance policy, the Insurance Company is at liberty to recover the amount from the owner of the vehicle by taking appropriate steps. The owner of the vehicle had appeared before the Tribunal but did not contest the case and accordingly the case has been decided exparte against the owner of the vehicle. The Insurance Company did not take any leave of the court to defend the owner under section 170 of the Motor Vehicles Act and therefore the objection of the Insurance Company will be limited to section 149 of the Motor Vehicles Act only. 18. In the premises set forth herein above, we do not find any substance in the contention of the learned advocate for the appellant except on the point of deduction of the amount by Tribunal towards personal expenses of the deceased. 19. Relying on a number of decisions, the Apex Court, time and again, observed that one half of the amount has to be deducted if the deceased was a bachelor (2009) 2 SCC 225 (Syed Basheer Ahamed and others vs. Mohammed Jameel and another). It may be stated herein that the calculation arrived at by the Tribunal appears to be not in inconformity with the settled principle of law and, therefore, we may certainly interfere with the amount of compensation assessed by the Tribunal. Secondly, the claimant, being father of the deceased, is a retired government servant and, accordingly, the matter of dependency comes into question. In no stretch of imagination, it can be said that the claimant was the absolute dependent of the deceased. No evidence to that effect has also been adduced by the claimant before the Tribunal. Secondly, the claimant, being father of the deceased, is a retired government servant and, accordingly, the matter of dependency comes into question. In no stretch of imagination, it can be said that the claimant was the absolute dependent of the deceased. No evidence to that effect has also been adduced by the claimant before the Tribunal. The Insurance Company has had no authority to challenge the income of the deceased and the Tribunal was justified in holding that the monthly income of the deceased was Rs.6000/- on the basis of the documents produced before the Tribunal. However, if we apply the aforesaid principle of law as enunciated by the Apex Court, in that event, the calculation of compensation by the Tribunal comes into question and which can be calculated as follows: 20. The annual income of the deceased comes to Rs.6000 x 12 = Rs.72,000/-. One half of such amount has to be deducted since the deceased was a bachelor and accordingly, the annual income of the deceased should be Rs.36,000/-. Accepting the multiplier as 17 in terms of the schedule II of the Motor Vehicles Act and having regard to the age of the deceased, the award would be Rs.36,000/-x 17 = 6,12,000/-. Besides that calculation we do not want to disturb awarding of Rs.5000/-towards funeral expenses and Rs.1,00,000/-towards mental pain and agony including future dependency to the claimant by the Tribunal. We also do not like to propose any change in respect of the rate of interest awarded by the Tribunal. Only, the total amount of compensation would come to the tune of Rs.7,17,000/-. The Insurance Company, thus, would pay Rs.7,17,000/-to the claimant in terms of the direction of the Tribunal along with interest @ 8% from the date of filing of such claim petition. 21. The award of the Tribunal is, thus, modified with regard to the amount of compensation only. The remaining directions of the Tribunal remained unaltered. 22. The F.A. No. 003 of 2015 is thus, disposed of in terms of the aforesaid direction. No order as to costs. Harish Tandon, J. : I agree.