Branch Manager, United India Insurance Company Limited vs Vijya Devi Dubey

The present appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') has been preferred assailing the award dated 24.12.2014 passed by the First Additional Motor Accident Claims Tribunal, Ambsikapur, District Surguja (C.G.) in Claim Case No.44/2013, whereby the claim of the respondent Nos.1 to 5 (claimants in the claim petition) has been allowed and an amount of Rs.26,70,000/- has been awarded in favour of the claimants/respondent Nos.1 to 5 as compensation on various heads on the principle of pay and recover and it was directed that the compensation would be paid first by the appellant insurance company and later on the said amount would be recovered by the appellant insurance company from the respondent Nos.6 & 7.

The brief facts of the case are that on 15.10.2013 at about 5 pm, deceased Devnath Dubey was returning from Village Kevra on his motorcycle bearing Registration No.CG-15-C-7863 and when he reached near Kesav Dhaba, near Singitana Main Road, the respondent No.6 Naval Sai driving his motorcycle bearing Registration No.CG-15-CP-2993 (owned by respondent No.7) rashly and negligently dashed the motorcycle of Devnath Dubey, as a result of which Devnath sustained serious injuries and died on 25.10.2013 during treatment, which resulted into filing of claim petition by the claimants before the Claims Tribunal claiming total amount of Rs.50,06,000/- for the loss of life of Devnath Dubey. The Claims Tribunal after appreciation of oral and documentary evidence available on record passed the award and total amount of Rs.26,70,000/- was awarded in favour of the claimants/respondent Nos.1 to 5 on various heads as compensation on the principle of pay and recover, which would be paid first by the appellant insurance company and later on the said amount would be recovered by the appellant insurance company from the respondent Nos.6 & 7. Hence, this appeal.

Learned counsel for the appellant insurance company submits that the impugned award is perverse and bad in law. There was head on collision between the motorcycle driven by the deceased Devnath Dubey and the motorcycle driven by respondent No.6 Naval Sai. The respondent No.6 was not having any valid and effective driving licence at the time of accident. The learned Tribunal has held only the respondent No.6 guilty for the accident, as he was not having any driving lience at the time of accident and thus breach of policy conditions was also proved against him. He further submits that the deceased was also equally responsible for the accident and he was also not having any valid and effective driving licence at the time of accident, as such the claimants were only entitled to get 50% of the compensation, whereas the learned Tribunal has held only the respondent Nos.6 guilty for the accident occurred and respondent No.7 being the owner of the offending vehicle, liability of compensation was fixed on both of them, thus awarded full compensation in favour of the claimants, which is bad in law. He next submits that though the insurance company has been exonerated from the liability of compensation, but the impugned award has been passed on the principle of pay and recover and it was ordered that the compensation would first be paid by the insurance company to the respondent Nos.1 to 5 and later on the same would be recovered by the respondent Nos.6 & 7, which is perverse and bad in law. The deceased, driver and owner were responsible for the aforesaid accident and not the insurance company, as the vehicles were driven breaching the policy conditions. Further, the learned Tribunal also incorrectly assessed the income of the deceased on higher side and age of the deceased being 59 years, multiplier of 9 has wrongly been applied to the multiplicand. The learned Tribunal has also erred in taking 15% salary of the deceased on the head of future prospect, as such the awarded amount of compensation is on higher side. Thus, the impugned award is liable to be set aside.

Learned counsel for the respondent Nos.1 to 5 supports the impugned award.

None for the respondent Nos.6 & 7, though served.

Heard learned counsel for the parties and perused the material available on record.

Before the learned Tribunal, the claimants/respondent Nos.1 to 5 filed certified copies of Crime No.263/2013 (Ex-P/1 to Ex-P/13) registered at Police Station Gandhi Nagar, Rajendra Nagar against the respondent No.6 for alleged accident. The witness Ushilram Rajwade (AW-2) stated that the accident occurred due to rash and negligent driving of respondent No.6 Naval Sai and he denied the negligent driving of the deceased. The respondent Nos.6 & 7 though contested the claim before the Tribunal, but they did not appear personally for rebuttal and based on the said fact as well as the evidence available on record, the learned Tribunal found that the accident occurred due to rash and negligent driving of respondent No.6 and the respondent No.7 being the owner of the offending vehicle, they both were held liable for compensation to the claimants

The learned Tribunal calculated the income of the deceased on the basis of salary slip of deceased vide Ex-P/39, which shows that the monthly salary of the deceased was Rs.39,341/- at the time of accident. The total salary claimed by the deceased was assessed by the Tribunal and Rs.38,952/- per month and annually Rs.4,67,424/- was held to be the actual salary of the deceased. The said income is based upon the salary slip of the deceased. The learned Tribunal after appreciating the evidence available on record and law as well applied the multiplier of 9 to the multiplicand, which was based on the guideline of the Hon'ble Supreme Court in the matter of Sarla Verma (Smt) and others vs Delhi Transport Corporation and another (2009) 6 SCC 121. The learned Tribunal also awarded compensation on other heads in light of the principle laid down by the Supreme Court in the matter of Rajesh and others vs Rajbir Singh and others (2013) 9 SCC 54, which is just and proper compensation in view of the principle laid down by the Supreme Court, thus this Court does not find any irregularity or perversity in the finding of Issue Nos.1, 2, 3 & 4.

Insofar as the Issue No.5 is concerned, the learned Tribunal found that at the time of accident, the respondent No.6 Naval Sai did not possess the valid and effective driving licence. The offending vehicle was registered in the name of respondent No.7. Though they contested the claim through advocate before the Tribunal, but they did not appear personally before the learned Tribunal for rebuttal. They did not even file copy of any valid and effective driving licence possessed by the respondent No.6 before the Tribunal. The learned Tribunal after appreciation of oral and documentary evidence available on record held the respondent Nos.6 & 7 responsible for the accident occurred, as they did not follow the conditions of insurance company and the offending vehicle was driven in breach of policy conditions, as such the finding of Issue No.5 was given against the respondent Nos.6 & 7, in which no illegality or perversity has been found. Based on the above said discussed issues, total amount of Rs.26,70,000/- was awarded by the Tribunal in favour of the respondent Nos.1 to 5/claimants as compensation on various heads. The insurance company was exonerated from paying compensation to the claimants/respondent Nos.1 to 5, however, in view of the principle laid down by the Supreme Court in the matter of National Insurance Company Limited vs Swaran Singh and others (2004) 3 SCC 297, it was ordered that the insurance company/appellant would first pay the compensation awarded in favour of the claimants/respondent Nos.1 to 5 and later on the same would be recovered by the insurance company from driver and owner of the offending vehicle i.e. respondent Nos.6 & 7, respectively.

The Hon'ble Supreme Court in the matter of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others 4 has held that if the driver of the offending vehicle does not possess the valid and effective driving license, the principle of “Pay and Recover” can be ordered to direct the Insurance Company to pay the compensation to the victim/claimant and then to recover the amount from the driver and owner of the offending vehicle, which the learned Tribunal ordered so in the present case. Thus, the finding of the learned Tribunal being a well reasoned finding does not warrant any interference by this Court.

Accordingly, the appeal is dismissed. No order as to cost (s).