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Judgment
Sanjay K. Agrawal, J.—This is insurer''s appeal against the award dated 29.4.2005, passed by the First Additional Motor Accident Claims Tribunal, Baloda Bazar in Claim Case No. 100/2005 by which the Tribunal has awarded a total sum of Rs. 6,01,000/- along with interest at the rate of 6% p.a., fastening liability upon the appellant to make payment of compensation. The brief facts, necessary for adjudication of this appeal, are as under:
(1.1) The claimants filed a claim petition before thee Tribunal u/s 166 of the Motor Vehicles Act, 1988 claiming total compensation of Rs. 33,80,000/- under various heads for the death of Girwar Prasad Verma in a vehicular accident on 11.6.2004.
(1.2) It is alleged that on 11.6.2004 at about 11.00 p.m. in the night deceased Girwar Prasad Verma along with some other persons was going to Raipur from his native village Karmada by the Jeep - Sumo (bearing registration No. C.G. 04-B/2475). On the way, near village Turra a Truck (bearing registration No. C.G. 04-ZC/0310), which was being driven in a rash and negligent manner by the respondent-driver (Dilip Kumar), hit the Sumo, resulting in death of four persons including Girwar Prasad Verma, owned by the respondent - Verdhman Cargo Carrier and insured by the appellant � Company.
(1.3) The Sumo (bearing registration No. C.G. 04-B/2475) in which deceased and other persons were traveling, was owned by the respondent � Surendra Bajpai, insured by the respondent -The New India Insurance Company) and being driven by the respondent - Jai Kumar Sahu.
(1.4) On close scrutiny the Tribunal assessed compensation of Rs. 6,01,000/- with interest and fastened liability on the appellant-company.
Shri Abhishek Sinha, learned counsel for the appellant submits that learned claims Tribunal has fallen into error while fastening liability on the appellant - Insurance Company. He further submits that the finding recorded by the claims Tribunal is wholly unjustified that the driver of the offending vehicle � Truck, insured by the appellant, was solely negligent in driving the vehicle. He further submits that the driver of the offending vehicle did not have a valid and effective driving licence to drive the vehicle on the date of accident and the quantum assessed by the Tribunal is also on the higher side. Learned counsel submits that the Insurance Company is entitled to challenge the impugned award on all counts as the permission u/s 170 of the Motor Vehicles Act, 1988 was granted vide order dated 6.1.2005, therefore, so far as the part of the award, fastening liability upon the appellant/Insurance Company is concerned, be set aside.
On the other hand Shri Anand Kumar Gupta, learned counsel for the respondent No. 11 (insurer of Sumo) submits that the findings recorded by the claims Tribunal with regard to negligence as well as the driving licence, are just and proper and the quantum is also not liable to be interfered with.
I have herd learned counsel for the parties, perused the record and considered their rival submissions.
In the written statement filed before the claims Tribunal the appellant/Insurance Company has taken a plea that the driver of both the vehicles were negligent in driving the vehicle and the driver of the offending vehicle, was also did not have valid and effective driving licence to drive the vehicle.
In order to prove the said fact of contributory negligence and that the driver of the offending vehicle did not have valid and effective driving licence, the appellant - Insurance Company led no evidence in respect of the pleadings taken by it in the written statement.
In a decision reported in Pepsu Road Transport Corporation Vs. National Insurance Company, the Supreme Court in para 8 has held as under:
In a claim for compensation, it is certainly open to the insurer u/s 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employer by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swarn Singh''s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.
The appellant - Insurance Company taking a plea of contributory negligence has failed to lead evidence to prove that the driver did not have a valid and effective driving licence to drive the offending vehicle. In the instant case, the appellant/Insurance Company has utterly and miserably failed to prove that the driver of the offending vehicle did not have valid and effective driving licence on the date of accident to drive the offending vehicle.
So far as the fact of negligence is concerned, in connected M.A. (C) No. 939/2005 I have examined the evidence wherein, Chandrika (AW 3) was an eye witness to the incident. He has clearly stated that the driver of the offending truck was rash and negligent. The claimant No. 1 Smt. Shanti Bai (AW 1) was examined before the Tribunal and she had filed three documents Ex. A/1 to A/3 relating to the accident in which Ex. A/1 is copy of the final report, Ex. A/2 is the F.I.R. and Ex. A/3 is the copy of the Dehati Nalishi. A bare perusal of these documents would show that the offence u/s 279, 337 and 304-A of the I.P.C. was registered against the driver/non-applicant No. 1 (Dilip Kumar) for driving the offending vehicle rashly and negligently and the charge-sheet was filed in the jurisdictional criminal Court. Thus, the testimony of the aforesaid two witnesses and the documents filed Ex. A/1 to Ex. A/3 clearly establish that the driver of the offending vehicle, namely Dilip Kumar was rash and negligent while driving the Truck and he caused accident in which deceased suffered injuries and died.
The Driver (Dilip Kumar) has not entered into the witness box to explain the circumstances in which the accident had occurred. The appellant - Insurance Company taking the plea of contributory negligence on the part of the driver of Sumo, has also not taken any steps to get both the drivers (Dilip Kumar and Jai Kumar Sahu) examined before the claims Tribunal and as such no evidence was brought into record by the appellant/Insurance Company, except to take a plea of contributory negligence and in absence of that it cannot be held that the driver of Sumo was also negligent in driving the said vehicle.
Thus the findings so recorded by the Claims Tribunal on the issue of driving licence and contributory negligence are based on the material available on record and it cannot be said to be either arbitrary or perverse or contrary to the evidence on record and I hereby affirm the same.
So far as quantum part of the award is concerned, the claims Tribunal has assessed yearly income of the deceased as Rs. 48,000/-, whereas the claimants have claimed that the deceased, who was a mosaic and tiles worker, used to earn Rs. 5000/- to 5,500/- per month. The claims Tribunal after deducting 1/3rd towards personal and living expenses assessed Rs. 32,000/- towards yearly dependency and looking to the age of the deceased and number of dependents has applied the multiplier of 18 and awarded a sum of Rs. 5,76,000/- (Rs. 32,000 x 18) towards loss of dependency. In addition to that, under the conventional heads Rs. 25,000/- has been awarded and thereby a total compensation of Rs. 6,01,000/- has been awarded to the claimants along with interest @ 6% per annum from the date of application. Since there is no appeal by the claimants for enhancement, I would hold that the amount awarded by the claims Tribunal to six claimants (widow, four minor children and mother of the deceased) cannot be said to be on higher side.
In the result, the appeal lacks merits and the same is dismissed accordingly. No order as to costs.