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2022 DIGILAW 1170 (MP)

Somibai v. Vijay Ram Tyagi

2022-09-20

DEEPAK KUMAR AGARWAL

body2022
JUDGMENT 1. This order shall govern the disposal of Misc. Appeal Nos.1370/2011 and 104/2014. 2. Being aggrieved by the award passed on 15.07.2011 in Claim Case No.79/2010 by Fourth Additional Motor Accident Claims Tribunal Morena (M.P.), appellants have preferred these appeals. 3. In brief facts of the case are that on 09.05.2009 deceased Rajendra Singh, who had come to the house of his sister at Raptapura, to go back to his house was standing on the road side, at that time at about 4:00 pm infront of house of Dataram Kushwah on Morena-Ambah road, respondent No.2 came driving the Tata Sumo Vehicle bearing registration MP 06 BA0186 which was in the ownership of respondent No.2 rashly and negligently and dashed deceased Rajendra Singh. Due the said accident, Rajendra Singh died on the spot. In regard to the accident, report was lodged by Dataram at Police Station Dimni for the offence punishable under Section 304-A of IPC. Postmortem was conducted. After investigation, charge-sheet was filed. Rajendra was aged about 32 years and before the accident he used to earn Rs.74,000/- per annum from agriculture and selling milk. Claimant No.1 Somi Bai is his wife and claimants No. 2 to 5 are his children while claimant No.6 is his mother. All the claimants were dependents on the earnings of deceased. Due to the accident, they have become hand to mouth. Claimants preferred application under Section 166 of Motor Vehicle Act seeking compensation and adduced oral and documentary evidence. Learned Tribunal awarded a sum of Rs. 4,39,500/- as compensation to the claimants and exonerated Insurance Company to pay the compensation. 4. M.A. No. 1370/2011 has been filed by the claimants on the ground that the quantum of compensation awarded by the Tribunal is on lower side and the learned Tribunal has erred in exonerating the insurance company to pay the compensation while M.A. No. 104/2014 has been filed by the owner of the offending vehicle on the sole ground of shifting the liability to pay compensation from owner and driver to Insurance Company. 5. Looking to the facts and circumstances of the case, the tribunal should have assessed the income of deceased at Rs. 4000/- per month. Hence, the annual income of the deceased comes to Rs.4000 x 12= Rs.48,000/-. After adding 40% towards future prospects (in light of decision of Apex Court in the case of National Insurance Co. Ltd Vs. 5. Looking to the facts and circumstances of the case, the tribunal should have assessed the income of deceased at Rs. 4000/- per month. Hence, the annual income of the deceased comes to Rs.4000 x 12= Rs.48,000/-. After adding 40% towards future prospects (in light of decision of Apex Court in the case of National Insurance Co. Ltd Vs. Pranay Sethi, 2017 ACJ 2700 (SC) since deceased was aged about 32 years at the time of accident), his annual income comes to Rs.67,200/-. After deducting 1/4 towards self expenditure, yearly income comes to Rs.50,400/-. After applying multiplier of 16, total amount comes to Rs. 8,06,400/-. Adding Rs. 2000/- under funeral expenses and Rs.500/- under travelling expenses and Rs. 5000/- under the head of loss of consortium, the total compensation comes to Rs.8,13,900/-. Thus, the claimants are entitled for total compensation to the tune of Rs.8,13,900/-. Hence, the respondent/claimant is held entitled to receive the enhanced amount of Rs.3,74,400/- (Rs.8,13,900/- - 4,39,500/-) in addition to the amount of compensation already awarded by the Claims Tribunal. The enhanced amount of award shall carry interest at the rate of 6% per annum from the date of filing of appeal till the date of realization. 6. Now the question is as to who will pay the compensation. The three-Judges Bench of Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh & others reported in (2004) 3 SCC 297 in paragraph no.110 has observed as under:- "110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition fled under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (ii) Insurer is entitled to raise a defence in a claim petition fled under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulflling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving license produced by the driver, (a fake one or otherwise), does not fulfll the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's license, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub- section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.' 7. In the light of the aforesaid judgment which still holds the field, it is directed that the insurance company at the first instance will indemnify the compensation amount to the claimant and thereafter recover the same from the driver and owner, jointly or severally. 8. Learned counsel for the owner submits that during trial driver of the offending vehicle remained ex-parte due to which he could not produce driving licence. 9. Learned counsel for the Insurance Company vehemently opposed the argument by submitting that learned Tribunal the said fact has been discussed by the learned Tribunal in Para 12 and 13 of the impugned judgment by holding that despite affording ample opportunities, neither owner nor driver produced driving licence. 10. In such a situation, the argument advanced by learned counsel for the owner is not sustainable. 11. The claim petition has been filed by the Claimants on 27.08.2009. Despite service of notice, initially the driver and owner of the offending vehicle remained absent. Thereafter the owner of the offending vehicle appeared regularly before the Tribunal from 07.08.2009 till passing of award on 15.07.2011, he had ample opportunities to produce driving licence of the driver of offending vehicle but he could not do so. 12. Despite service of notice, initially the driver and owner of the offending vehicle remained absent. Thereafter the owner of the offending vehicle appeared regularly before the Tribunal from 07.08.2009 till passing of award on 15.07.2011, he had ample opportunities to produce driving licence of the driver of offending vehicle but he could not do so. 12. Now after elapse of 11 years, application under Order 41 Rule 27 CPC cannot be considered since Insurance Company could not have opportunity to verify the genuineness of the said licence. 13. Rest of the conditions as imposed by Claims Tribunal shall remain intact. To the aforesaid extent the impugned judgment passed by the Tribunal is modified. 14. Parties are directed to bear their own costs.