Mohd. Wasim vs Durga Prasad Pandey and Others

Rajiv Sharma & Dr. Satish Chandra, J.—s appeal is filed u/s 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 3rd December, 2011 passed by the Motor Accident Claims Tribunal, Faizabad in Claim Petition No. 309/2009. The brief facts of the case are that the deceased Karunesh Pandey was a young man of 27 years. On 5th July, 2007 at about 11.00 a.m., he was going on his motor-cycle with his wife Smt. Renu to visit a doctor as she was suffering from fever. When he was on Faizabad-Barabanki Highway at P.S. Raunahi, a Tata Truck No. UP 42-C 7431 was coming from the Faizabad whose driver was driving it negligently and rashly. The said truck hit the deceased, who was fallen down. Both the husband and wife were taken to the District Government Hospital, Faizabad where the deceased was declared as brought dead. The wife also got injuries. The claimants have filed a claim petition where a total compensation of Rs. 3,66,000/- was awarded alongwith interest @ 6% from the date of filing claim petition. The Insurance Company was directed to pay the amount to the claimants and got a right from the Tribunal to recover the same from the owner of the truck. Being aggrieved, the appellant who is the owner of the truck in question has filed the present appeal.

With this background, Sri Anil Kumar Tiwari, learned Counsel for the appellant submits that earlier two claim petitions have been filed by Smt. Renu were dismissed by the Tribunal for want of evidence. But, in the instant petition, a compensation was wrongly awarded. However, he has not disputed the factum of the accident; death of the deceased; and his age. The only disputed point he raised is pertaining to the quantum. According to him, the quantum is on higher side. Further, he submits that the vehicle was duly insured by the Oriental Insurance Company, so the sole liability lies with the Insurance Company to pay the compensation, "right of recovery" was wrongly given by the Tribunal. Lastly, he made a request that the judgment and award passed by the Tribunal may kindly be set aside.

We have heard learned Counsel for the appellant and gone through the material available on record. It is undisputed that the deceased Karunesh Pandey was a young man of 27 years and father of two children. He was working in M/s Farid Travel Agency. The Tribunal has taken the "notional income" for the purpose of compensation. By looking the age, the Tribunal has applied multiplier of 18. Thus, the compensation came to Rs. 3,60,000/-. In addition/a sum of Rs. 2,000/- for funeral expenses; Rs. 2,500/- as loss of estate; and Rs. 1,500/- as litigation expenses were also awarded to the claimants. Thus, the total compensation was awarded Rs. 3,66,000/-. When the income was taken as "notional income" for the purpose of compensation, then the award is not on higher side and the same appears reasonable in the peculiar facts and circumstances of the case.

Regarding the "recovery right", it appears that at the time of accident, the vehicle was driven by the driver rashly and negligently. The driver was not caught on the spot. An FIR against Sudeep Kumar, cleaner of the truck was lodged who was later arrested by the police. A criminal case was also lodged against him. Police presumed that the cleaner was driving the vehicle at the time of accident, who was not possessing a driving licence.

From the record, it appears that later, it was claimed by the owner that one Rajesh Kumar was driving the said truck, who had a valid and effective driving licence to drive the truck, but he was never appeared before the Tribunal to confirm this claim.

From the record, it also appears that Sri Rajesh Kumar was possessing only driving licence of light motor vehicle and he was not possessing the licence for heavy motor vehicle. In other words, the truck in question is a heavy motor vehicle for which he was not possessing a driving licence. Thus, it is a violation of the terms and conditions of the insurance policy which was valid on the date of accident. When the driver was not possessing a valid driving licence to drive the heavy motor vehicle then the liability lies with the owner of the vehicle in question as there is a violation of the terms and conditions of the insurance policy. Thus, the Insurance Company is not liable to pay the compensation. But, in the instant case, the compensation is paid by the Insurance Company to the claimants and "right of recovery" was rightly given to the Insurance Company.

Needless to mention that the Hon''ble Apex Court in the case of New India Assurance Company Limited v. Roshan Ben, 2009 (1) D.M.P. 153 : 2008 (3) T.A.C. 20 (S.C.), observed that when the driving licence of the driver was of light motor vehicle (LMV) and the truck causing the accident, it was not covered by the policy, as such it was held that the driver of the vehicle causing the accident, was not having valid and effective driving license to drive it. Similar view is taken by the Hon''ble Supreme Court in the case of Oriental Insurance Company Limited v. Angad Kol, 2009 (II) D.M.P. 292 : 2009 (2) T.A.C. 4 (S.C.).

In light of the above discussions and by considering the totality of the facts and circumstances of the case, we find no reason to interfere with the impugned award passed by the Tribunal. The same is hereby sustained in toto where "right of recovery" given against the appellant for the reason that vehicle in question either was driven by the cleaner or by a person who was not having valid and effective driving licence at the time of accident. Registry is directed to transmit the amount, if any, deposited in this Court to the concerning Tribunal within a period of four weeks alongwith lower Court record. In the result, appeal is dismissed.