Anjani Sharan Singh and Another vs Smt. Sonkunwar Bai and Others

R.L. Jhanwar, J.

By this common order M.A.(C) No. 717/2008 and M.A. (C) no. 1314/ 2008 are being disposed of as the same are arising out of order dated 29.02.2008 passed by the Additional Motor Accidents Claims Tribunal, Mungeli, Dist. Bilaspur (in short ''The Tribunal'') in Claim Case no. 45 of 2007 whereby the Tribunal has awarded a sum of Rs. 2,73,500/- as compensation to the claimants.

Brief facts necessary for disposal of this appeal are that on 30.04.2007 at about 6.00 a.m. while the deceased - Titraram and one Mahetaruram were strolling from village Belsari to Takhatpur, at the same time, Bus bearing registration number C.G. 10-A/5159 belonging to Shaktimai Travels, being driven by Anjani Sharan Singh in a rash and negligent manner vigorously dashed them, as a result of which Titraram die on the spot and Mahetaruram got serious injuries. F.I.R. for offence punishable u/s 279 and 304 A of the I.P.C. was registered against the driver of the bus at Police Station Takhatpur.

As against the compensation of Rs. 22,75,000/-, claimed by the claimants by filing a claim petition u/s 166 of the Motor Vehicles Act for the death of Titraram in the motor accident on 30.04.2007, the Tribunal awarded a total sum of Rs. 2,73,500/- to the claimants along with interest (a 6% per annum from the date of filing of the claim petition till the date of actual payment. The Tribunal further directed that the insurance company shall first pay the total compensation with interest awarded by it to the claimants and then recover the same from the owner and driver of the said bus.

Aggrieved by the impugned order dated 29.02.2008, the driver and owner of the Bus has preferred M.A. (C) No. 717/2008 so also the insurance company has preferred M.A. (C) No. 1314/2008.

Mrs. Neelima Verma, learned counsel appearing for the appellants i.e., driver and owner of the Bus argued that the compensation of Rs. 2,73,500/ - awarded by the Tribunal is on a higher side; the Tribunal considering that the driver of the Bus was not having a valid licece has exonerated the insurance company and the Tribunal has committed error in awarding 9% interest as penalty whereas on the other hand Shri Sudhir Agarwal, learned counsel appearing for the insurance company argued that at the time of accident the driver of the Bus was not having a valid driving licence to drive passenger Bus but having licence of Light Motor Vehicle; the Tribunal ought not to have fastened the liability on it to pay first and recover later from the owner and driver. He placed reliance in the matter of New India Assurance co. Ltd. Vs. Roshanben Rahemansha Fakir and another, 2008 (3) T.A.C. 20 (S.C.)

I have heard learned counsel for the parties at length, perused the record of the Claims Tribunal including impugned award.

Arvind Xalxo, N.A.W. 3 has in his evidence deposed that on the date of accident, the offending Bus was insured w.e.f. 28.08.2006 to 27.08.2007 and sitting capacity of Bus is only for 20 passengers, as per terms and conditions of the insurance policy. He further deposed that as per the report of investigating offier of insurance company the driver of the offending Bus was having licence of Light Motor Vehicle w.e.f. 12.01.2004 to 11.01.2007 and on the date of incident the driver was driving the offending Bus without having valid licence, which is in violation of terms and conditions of the insurance policy, therefore, the insurance company is not liable to pay compensation. The Tribunal after taking note of the evidence and documents produced on behalf of insurance company recorded finding that on the date of accident the driver (Anjani Sharan Singh) was driving the Bus in violation of terms and conditions of insurance policy. Despite recording such finding, the Tribunal, after awarding a sum of Rs. 2,37,500/- to the claimants, ordered that the insurance company shall firstly pay compensation to the claimants and then recover the same from the owner and driver.

So far as the liability of the insurance company to pay compensation first and then recover the same from owner and driver as founded by the Tribunal is concerned, I am of the view that the Tribunal has erred in arriving at such conclusion because it is evident that the driver of the offending Bus was not holding an effective and valid licence on the date of incident and possession of an effective licence is necessary in terms of Section 10 of the Motor Vehicles Act. Moreover, no evidence on behalf of the driver and owner has come on record in controverting the evidence adduced by the insurance company. In the matter of New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir and Another (supra) the Apex court held as above and while exercising its jurisdiction under Article 142 of the Constitution directed the Insurance Company to satisfy the award in favour of the claimants and recover the same from owner. Needless to say in a particular case, when such directions are given to meet ends of justice, then the same are given in exercise of extraordinary jurisdiction of the Apex Court. The same powers, which are available to the Apex court under Article 142 of the Constitution, are not available to the Tribunal or High Court. In view of the dictum of Apex Court in the above matter, I hold that since the driver of the offending Bus was not holding a valid and effective licence to run the Bus on the date of accident and it was rightly pointed out by the insurance company by leading evidence before the Tribunal on this point, the insurance company is exonerated from its liability to pay compensation first.

Consequently, M.A. (C) no. 1314 of 2008 filed by the insurance company is allowed.

Now the question remains to be considered is whether or not the compensation of Rs. 2,73,500/- awarded by the Tribunal is on higher side looking to the facts and circumstances of the case. The Tribunal in its paragraph 22 of the impugned order has, taking into consideration the age of the deceased at 55 at the time of accident, fixed the annual income of the deceased at Rs. 36,000/-. By deducting l/3rd from it, the Tribunal worked out the dependency to Rs. 24,000/- and upon which multiplier of 11 was taken. In this manner, the Tribunal worked out the total dependency at Rs. 2,64,000/-. The Tribunal further awarded a sum of Rs. 200/- towards funeral expenses and Rs. 7,500/- towards loss of income and loss of consortium thereby the total compensation awarded by the Tribunal comes to Rs. 2,73,500/-. I am of the view that the Tribunal has not erred in rightly fixing the annual income of the deceased; in rightly determining the dependency and in rightly assessing the compensation. Further the Tribunal has rightly used the multiplier of 11. In sum and substance, the compensation awarded by the Tribunal is neither meager nor bonanza in the facts and. circumstances of the case. The contention of the learned counsel for the owner and driver that the compensation of Rs. 2,73,500/- awarded by the Tribunal is on higher side is, therefore, unaccepted in view of what has been stated above.

In view of foregoing discussion, I hold that the owner and driver are wholly responsible to pay the compensation of Rs. 2,73,500/- along with interest @ 6% per annum as awarded by the Tribunal,

In the result, M.A. (C) no. 717/2008 is dismissed summarily.

A copy of the order be kept in M.A. (C) no. 717/2008.