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2018 DIGILAW 788 (GAU)

MANJU KARMAKAR v. MD. HAFIF

2018-05-11

MIR ALFAZ ALI

body2018
JUDGMENT : Mr. Mir Alfaz Ali, J. 1. Heard Mr. S. Dutta, leaned Sr. Counsel and Mr. A.K. Gupta, learned counsel. 2. Both the appeals are directed against the judgment and award dated 25.07.2012 passed by the learned MACT, Tinsukia in MAC Case No. 20/2010. 3. The undisputed facts in these appeals are that one Shiv Nath Karmakar died in a motor vehicle accident on 03.12.2009, involving vehicle bearing registration No. AS-01- F-0993 owned by the respondent No. 7 (in MAC No. 25/2014) and insured with the appellant (in MAC App. No. 24/2014). The age of the victim was 35 years at the time of accident and the accident occurred due to the rash and negligent driving of the offending vehicle. 4. The legal heirs of Shiv Nath Karmakar filed an application before the MACT, Tinsukia seeking compensation and the learned Tribunal by the impugned judgment, awarded a compensation of Rs. 5,40,800/-, which consisted of Rs. 4,60,800/- towards loss of dependency, Rs. 80,000/- towards conventional heads, namely, loss of consortium, funeral expenses, loss of estate and loss of love and affection. 5. Aggrieved by the said award, the claimant, filed an appeal for enhancement of the award, which was registered as MAC Appeal No. 275/2013. The Insurance Company also filed an appeal which was registered as MAC Appeal No. 24/2014. Both the appeals having arisen out of the same judgment and award, are taken together for disposal by this common judgment. 6. Learned Sr. Counsel Mr. S. Dutta, for the appellant, oriental Insurance Company, in MAC Appeal No. 24/2014, referring to the accident information report proved as Ext.1, submits that on the relevant date of accident, the driver of the offending vehicle did not have valid driving license and as such the Insurance Company could not be saddled with the responsibility to satisfy the award because of violation of the policy condition, inasmuch as, the driver having a valid driving license was a condition of the policy. 7. Par contra, Mr. A.K. Gupta, learned counsel for the claimant submits that the driver of the offending vehicle had valid driving license, and as such, the award made by the learned Tribunal, fastening responsibility with the Insurance Company cannot be faulted. 8. 7. Par contra, Mr. A.K. Gupta, learned counsel for the claimant submits that the driver of the offending vehicle had valid driving license, and as such, the award made by the learned Tribunal, fastening responsibility with the Insurance Company cannot be faulted. 8. Thus the sole question raised in the appeal filed by the Insurance Company is whether Insurance Company was absolved from indemnifying the insured because of violation of condition of the policy? 9. Contention of the Insurance Company is that the driver of the offending vehicle did not have valid driving license on the date of accident, which was a violation of the condition of policy, and as such, the insurer could not be saddled with the responsibility to indemnify the insured. The plea of the Insurance Company to avoid the liability is raised on the basis of an entry in the Accident Information report (Ext.1), where validity period of the driving license was mentioned as 28.04.2008. The impugned judgment and award transpires that the learned Tribunal, except referring to the said entry in the Ext.1, did not discuss the evidence brought on record on this issue, though, ultimately decided, that there was valid driving license at the time of accident. Learned counsel for the parties have taken me through the evidence adduced before the Tribunal. It is no doubt true that in the accident information report in column 8 (Ext.1), there was an entry to the effect, that driving license No. 52451 was valid upto 28.04.2008. The owner of the vehicle, who was arrayed as respondent No. 2 in the claim petition, testifying himself as defendant witness No. 1, stated, that as the original driving license was missing and a duplicate driving license was obtained from the concerned authority, which was renewed on 25.06.2008 and the same was valid upto 28.04.2011. In support of such averment in his affidavit, the owner also produced a certificate issued by the Regional Transport Authority proved as Ext.A, showing that the driving license of the driver involved in the instant case was renewed with effect from 25.06.2008, and the validity period was upto 28.04.2011. In cross examination of this witness, the Insurance Company put a suggestion that Ext.A certificate was procured illegally only to evade the liability by the owner, which was denied by him. In cross examination of this witness, the Insurance Company put a suggestion that Ext.A certificate was procured illegally only to evade the liability by the owner, which was denied by him. Along with the memo of appeal before this Court, the Insurance Company produced a report dated 31.08.2011 purportedly submitted by the investigator of the insurer, where the effective date of renewal of the driving license was shown as 09.12.2009. Basing on this document, Mr. S. Dutta, learned Sr. Counsel submits, that since the driving license was renewed on 09.12.2009 and the accident occurred on 03.12.2009, and as such, there was no valid driving license on the relevant date. 10. Mr. A.K. Gupta, learned counsel for the claimant submits that this report produced for the first time along with the memo of appeal cannot be accepted, as the same was not produced before the Tribunal, though, Insurance Company was in possession of the same during pendency of the claim petition and also when the owner adduced evidence. Submission of Mr. Gupta appears to be preponderous for two reasons, firstly, the document sought to be relied upon by the Insurance Company is a report purportedly submitted by their investigator on 31.08.2011, which was in their possession and the Insurance Company remained sitting over the same during the proceeding before the Tribunal and failed to confront the same to the owner, who had adduced evidence contrary to such report. This apart, the conduct of the Insurance Company is suppressing such report during the enquiry before the Tribunal itself raises a question as to the credibility of the contents of such report, which cannot even be considered as secondary evidence of the information contained therein. 11. Evidently, the owner of the vehicle himself come to the witness box and adduced evidence both oral as well as documentary (Ext.A) to prove that there was indeed a valid driving license on the date of accident. However, the Insurance Company sought to deny the genuineness of Ext.A, the certificate issued from the Regional Transport Authority, indicating that the driving license was not valid on the date of accident, putting a suggestion that it was fake or procured document. However, the Insurance Company sought to deny the genuineness of Ext.A, the certificate issued from the Regional Transport Authority, indicating that the driving license was not valid on the date of accident, putting a suggestion that it was fake or procured document. When the owner adduced evidence and thereby established that the driving license was renewed and it was valid on the date of accident and Insurance Company sought to question the veracity of such evidence, in order to avoid its liability under the policy, burden necessarily shifted to Insurance Company to rebut the evidence of the owner. 12. From the record it appears that no endeavor was made by the Insurance Company to adduce any evidence to rebut the evidence of the owner of the vehicle, that the driving license was valid at the relevant time. Though, the Insurance Company sought to avoid the liability on the ground of violation of the condition of the policy and burden lies with the Insurance Company to prove such plea of violation of the condition of the policy, Insurance Company helplessly failed to discharge its burden. In absence of any rebuttal evidence, I am unable to accept the submission of the Insurance Company, that there was no valid driving license on the date of accident. Though, the learned Tribunal did not discuss all these evidence in the award, ultimate findings of the Tribunal that there was valid driving license, was correct and cannot be faulted merely for want of detailed discussion. In view of the above scenario of the matter, the contention raised by the learned counsel for the Insurance Company that there was no valid driving license on the date of the accident or there was violation of the policy condition, cannot be accepted. 13. Since the appeal filed by the Insurance Company was on the sole point of violation of policy condition, because of not having valid driving license by the driver of the offending vehicle at the time of accident and such allegation of violation of condition of policy having not been established, in my considered view, the appeal filed by the Insurance Company is devoid of merit and deserves to be dismissed. 14. Coming to the appeal filed by the claimant, the contention of Mr. A.K. Gupta is that there was evidence showing specific income of the deceased. 14. Coming to the appeal filed by the claimant, the contention of Mr. A.K. Gupta is that there was evidence showing specific income of the deceased. However, the learned Tribunal ignoring such evidence, took notional income erroneously and therefore learned counsel prays for enhancement of the award on the basis of actual income of the deceased. 15. The claimant examined herself as CW-1 and another witness as CW-2. The claimant, in her evidence stated that the deceased was a Plumber and also a Mason and earning Rs. 6,000/- per month. CW-2 stated that the deceased was a Plumber. The evidence of CW-1 and CW-2 trying to project, that the deceased was a Plumber or Mason was not accepted by the learned Tribunal and as such notional income of Rs. 3000/- was assumed. It is no doubt true, that in a case like the present one, when the person is engaged in an unorganized sector, has to rely on oral evidence and cannot be expected to produce documentary evidence with regard to income. However, on the basis of the inconsistent oral evidence in the instant case, as deposed by CW-1 & CW- 2, it is difficult to accept that the deceased was indeed a skilled worker. Having considered the nature of evidence adduced by the claimant in the instant case, the notional income of Rs. 3000/- at the relevant time, assumed by the learned Tribunal cannot be faulted, inasmuch as, such income appears to be commensurating with the wages of unskilled worker as per Minimum Wages Act at the relevant time. Apparently, no addition was made to the said income towards future prospect, to which the claimant was certainly entitled. Considering the age of the deceased, an amount equal to 40% of the actual income needs to be added to the income of the deceased for determining just and reasonable compensation. 16. The quantum of award on the conventional heads granted by the Tribunal requires no modification. Evidently, there was no dispute with regard to the multiplier 16 adopted by the learned Tribunal and deduction of ?th towards personal expenses of the deceased. Thus, the enhanced compensation, which the claimant is entitled to is assessed as under: Loss of dependency Rs. 3000+1200(40%)X12X16 = Rs. 8,06,400/- Deduction ?th = Rs.- 1,61,280/- = Rs. 6,45,120/- Funeral expenses = Rs. 10,000/- Loss of consortium = Rs. 10,000/- Loss of estate - Rs. Thus, the enhanced compensation, which the claimant is entitled to is assessed as under: Loss of dependency Rs. 3000+1200(40%)X12X16 = Rs. 8,06,400/- Deduction ?th = Rs.- 1,61,280/- = Rs. 6,45,120/- Funeral expenses = Rs. 10,000/- Loss of consortium = Rs. 10,000/- Loss of estate - Rs. 10,000/- Love and affection = Rs. 50,000/- Total Rs. 7,25,120/- 17. The above award of Rs. 7,25,120/- shall be paid by the Oriental Insurance Company by depositing the same with the jurisdictional Tribunal within 6 weeks. The claimant is also entitled to interest @ 6% from the date of filing the claim petition. Any payment made in the meantime towards satisfaction of the award shall be adjusted. It is made clear that the future prospect added to the actual income shall not carry any interest. 18. The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned. 19. The Tribunal shall ensure that 50% of the awarded amount be fixed deposited in the name of the claimants No. 2 to 6 in a nationalized bank till their attaining majority. Another 25% be fixed deposited in the name of the claimant No. 1 for a period of 1 year. Rest of the amount shall be released to the claimants by A/C payee cheque. 20. The appeal filed by the Insurance Company is dismissed and the appeal filed by the claimant is allowed. 21. Send back the LCR.