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2017 DIGILAW 512 (JK)

New India Assurance Co. Ltd. v. Gh. Nabi

2017-08-01

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : DHIRAJ SINGH THAKUR, J. 1. The present appeal has been preferred against the judgment and award dated 26.10.2009 passed by the Motor Accident Claims Tribunal, Jammu (for short, 'Tribunal') whereby an amount of Rs. 6,03,000/- along with interest @ 7.5% p.a. has been awarded in favour of the claimants. Briefly stated the material facts are as under: 2. On account of the death of one Gama Bibi in a road accident on 10.11.1997, a claim petition came to be filed by the claimants/respondent Nos. 1 to 3 before the Motor Accident Claims Tribunal, Jammu. 3. In response to the claim petition, the Insurance Company, inter alia, took an objection that on the date of the accident, the driver involved in the accident did not possess a valid and effective driving licence. 4. The Tribunal, on a perusal of the pleadings of the parties, framed the following issues: i. Whether an accident occurred on 10.11.1997 at Mangal Katra due to rash and negligent driving of offending vehicle No. 6559/JK02 Van by its driver/respondent No. 3 in which deceased Gama Bibi has died? OPP ii. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation; if so to what amount and from whom? OPP iii. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving licence? OPR-1 iv. Relief. O.P. Parties. 5. On issue No. 3, the Tribunal returned a finding that on the date of the accident, the driver of the offending vehicle, in fact, did not possess a valid and effective driving licence. However, it proceeded to pass the award after determining the compensation to the tune of Rs. 6,03,000/- in favour of the claimants/respondent Nos. 1 to 3 by treating the income of the deceased at Rs. 5,500/- per month as against Rs. 7,000/- per month that had been claimed by the claimants on account of the tailoring business of the deceased. The Tribunal also held the claimants entitled to the compensation along with interest @ 7.5% p.a. from the date of filing of the claim petition under the following heads: (i) For loss of dependency Rs.5,72,052/- (ii) For funeral expenses Rs.15,000/- (iii) Consortium to widow Rs.15,000/- 6. The Tribunal also held the claimants entitled to the compensation along with interest @ 7.5% p.a. from the date of filing of the claim petition under the following heads: (i) For loss of dependency Rs.5,72,052/- (ii) For funeral expenses Rs.15,000/- (iii) Consortium to widow Rs.15,000/- 6. The aforesaid amount was directed to be paid by the insurance company with liberty to the insurance company to recover the same from the owner of the offending vehicle. 7. The grounds of challenge in the present appeal are two fold; firstly that there was no proof of income on record that the deceased was earning Rs. 5,000/- per month and secondly, that the compensation, if at all payable, was to be paid by the owner of the vehicle inasmuch as the Tribunal itself had recorded a finding that the driver of the offending vehicle did not possess a valid and effective driving licence. 8. Heard learned counsel for the parties. 9. In regard to first issue raised and urged at the time of hearing, it can be seen that there was material evidence on record to the effect that the deceased was earning Rs. 7,000/- per month from her tailoring business, which had been reduced by the Tribunal to Rs. 5,500/-. 10. The argument that there was no evidence with regard to the income of the deceased is, therefore, not supported by the evidence on record. 11. The second issue raised was with regard to the liability of the appellant-company to satisfy the award. 12. The principle of pay and recover applicable to the insurance company is no longer res integra. 13. The Apex Court in "Manager, National Insurance Company Limited v. Saju P. Paul and anr. (2013) 2 SCC 41 ," in paragraph Nos. 20 & 26 held as under: 20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein). 26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. 26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 (National Insurance Co. Ltd. v. Saju P. Paul, SLP) No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (supra). 14. The same view has been followed by the Apex Court in "Manuara Khatun and ors. v. Rajesh Kr. Singh and Ors. (2017) Supreme (SC) 176". 15. The Tribunal, therefore, did not commit any error in either determining the amount of compensation payable to the claimants or in directing the insurance company to satisfy the award with liberty to recover the same from the owner. The appeal is found to be without any merit and is accordingly dismissed.