Divisional Manager vs Golap Nayak & Others

K.R. Mohapatra, J

Heard Mr.Mohan Ch. Nayak, learned Counsel appearing for the Appellant-Insurance Company and Mr.Nanda, learned counsel for the respondents-claimants.

This Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'MV Act') has been filed assailing the Award dated 03.10.2003 passed by the learned Member, 3rd Motor Accident Claims Tribunal, Bhubaneswar (for short, 'the Tribunal') in MACT Case No.157/17 of 2002 awarding compensation of Rs.5,48,280/- to be paid by the Appellant-Insurance Company (Opposite Party No.2 before the Tribunal) to the Claimants-respondent Nos. 1 to 3.

Short narration of facts relevant for proper adjudication of this Appeal are that on 26.10.2001 at about 4.00 PM, when the husband of the respondent No.1, namely, Dhirendra Kumar Nayak (for short, 'the deceased') was going in a Scooter bearing registration No.OR-02-M-9530 as a pillion rider from Sriya Talkies Square towards Master Canteen Square, the offending vehicle (Tata Sumo) bearing registration No. OR-02-K-0770 (for short, 'offending vehicle') came in a high speed and dashed against the Scooter, as a result of which the deceased was thrown to a distance and sustained multiple injuries on his person. Soon after the accident, the deceased was shifted to Capital Hospital for treatment, but he succumbed to the injuries in course of the treatment. It is alleged in the claim petition that the accident occurred due to rash and negligent driving of the driver of the offending vehicle, for which a Police Case was registered as Kharvel Nagar Police Station Case No.276 of 2001 under Section 279/304-A, IPC. The deceased was a government servant and 54 years old at the time of accident. He was earning Rs.6,110/- per month. As such, the claimant-respondent Nos. 1 to 3, who are the widow and children of the deceased, filed the claim petition under Section 166 of the MV Act claiming compensation of Rs.8.50 lakh.

The owner of the vehicle-respondent No.4 did not contest the case and was set ex-parte.

The appellant- Insurance Company filed its written statement challenging the claim of the respondents-claimants. Amongst other grounds, the Insurance Company specifically challenged the validity of the driving licence as well as the insurance policy of the offending vehicle on the date of the accident. Learned Tribunal, taking into consideration the materials available on record, came to a categorical finding that death of the deceased occurred due to the accident caused by rash and negligent driving of the driver of the offending vehicle. Taking into consideration the income of the deceased, dependency of the claimants and other factors, learned Tribunal awarded the aforesaid amount against which this appeal has been filed.

Mr.Nayak, learned counsel for the appellant-Insurance Company, vehemently argued that driver of the offending vehicle was one Madhusudan Patnaik. In course of investigation, the Police seized the driving licence No.1066 dated 30.09.1994/BBSR from him. The said driving licence has been marked as Ext.A. Although the said driving licence disclosed that the driver was authorized to drive Light motor vehicle and Heavy transport vehicle and the driving licence was valid up to 11.08.2002, but the same stood in the name of one Madhusmita Nanda issued by the licensing authority, Bhubaneswar. Thus, the driver of the vehicle, namely, Madhusudan Patnaik was unauthorizedly driving the offending vehicle. The driving licence seized by the Police was a fake one. Thus, the Insurance Company cannot be held liable to pay the compensation. He further submitted that the compensation awarded is inflated and needs interference. Accordingly, he prays for setting aside of the impugned judgment and award.

Learned counsel for the claimant-respondent Nos. 1 to 3 supported the impugned judgment and award.

Upon hearing learned counsel for the parties and on perusal of materials on record, it is found that in fact Ext.A, the driving licence stands in the name of one Madhusmita Nanda. Thus, apparently Madhusudan Patnaik did not have any valid driving licence on the date of the accident and was not authorized to drive the offending vehicle, but there is no material on record to show that the driving licence seized by the Police was a fake one, as alleged, although it stood in the name of one Madhusmita Nanda. Be that as it may, there is no dispute to the fact that the offending vehicle was duly covered under a valid insurance policy on the date of the accident. Law is no more res-integra on this issue. It has been decided in a handful of case laws that in such a situation in order to avoid sufferance of the claimants in receiving the compensation, the Insurance Company should pay compensation to the claimants at the first instance and take steps to recover the same from owner of the offending vehicle.

So far as the quantum of compensation is concerned, it appears from the impugned award that PW-1, the widow of the deceased in her evidence, has categorically deposed that the deceased was a Junior Compositor (technical) in the office of the Director of Government Book Press and was getting Rs.6,110/- per month. The same was not challenged by the appellant-Insurance Company. Thus, deducting an amount of Rs.50/- towards professional tax from the gross salary, learned Tribunal assessed the dependency of the respondent Nos.1 to 3 taking into consideration the income to be Rs.6,060/- per month. Applying the principle, the total dependency of the family per annum was determined at Rs.46,480/-. Adhering to principles decided in Smt. Sarla Verma & others Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, learned Tribunal adopted 11 multiplier taking into consideration that the deceased was 54 years old at the time of his death. Although Mr.Nayak, learned counsel for the appellant-Insurance Company, at the time of argument objected to the income of the deceased, he could not bring to the notice of the Court any material to the contrary to take a different view. Age of the deceased was 54 years at the time of his death, which is not seriously disputed. Thus, taking into consideration the principles decided in Sarla Verma (supra), the Tribunal came to a conclusion that he claimant-respondent Nos.1 to 3 are entitled to compensation of Rs.5,48,280/-. This Court finds no infirmity in the said conclusion. In other words, upon scrutinization of materials on record, I do not find any infirmity in the judgment and award impugned herein.

It is, however, directed that the appellant-Insurance Company shall deposit the awarded amount along with interest before learned Tribunal within a period of eight weeks hence, which shall be disbursed to the claimant-respondent Nos.1 to 3 in terms of the impugned award. On deposit of the awarded amount before learned Tribunal within the time stipulated above and on producing proof thereof before the Registry of this Court, the statutory deposit along with accrued interest shall be refunded to the appellant-Insurance Company on proper identification.

With the aforesaid observation, the instant appeal being devoid of any merit stands disposed of.