National Insurance Co. Ltd. vs Maqbool Khatana

Hasnain Massodi, J.—Abdul Majid Khatana, a young boy of 14/15 years, lost his life in vehicular accident involving vehicle bearing

registration No. JK 01-2247 at Madin Sahib, Hawal Chowk. His parents laid a claim petition u/s 166, Motor Vehicles Act before Motor

Accidents Claims Tribunal, Srinagar. They pleaded that the offending vehicle was being driven rashly and negligently by its driver when it hit their

son riding a bicycle. It was averred that the accident had led to registration of case F.I.R. No. 50 of 2005 under sections 279, 304A at Police

Station Lal Bazar, Srinagar. The owner and driver of offending vehicle, though duly served, did not come forward to oppose the claim petition.

The Tribunal on going through the pleadings framed following issues:

(1) Whether on 5.9.2005 Abdul Majid Khatana, the deceased, while travelling on a bicycle on the left side of the road at Madin Sahib, Hawal

Chowk was hit by a tipper bearing registration No. JK 01-2247 when being driven rashly and negligently by respondent No. 3 from Hawal to Lal

Bazar with the result he sustained fatal injuries and died on his way to hospital? OPP

(2) If the issue No. 1 is proved in affirmative, whether the petitioners as the legal representatives are entitled to compensation on account of death

of the deceased and if so, to what extent and from whom? OPP

(3) Whether the deceased was learning cycling on the wrong side of the main road and on account of his own negligence collided with the bumper

of the vehicle and sustained injuries and as such the petitioners are not entitled to be compensated for the death of the deceased? OPR 3

(4) Whether the respondent No. 1, owner of the vehicle, has passed away, whereas the petitioners have failed to bring on record his legal

representatives and as such the claim petition in the present form is not maintainable?

(5) Whether the driver of the offending vehicle was not holding a valid driving licence and as such insurance company is not liable to indemnify the

owner for any liability on account of the accident caused? OPR 1

(6) Relief.

The parties adduced evidence to discharge the onus of proving issues, burden whereof was placed on them respectively. The Claims Tribunal

decided all the issues in favour of the claimants and worked out Rs. 3,85,000 as compensation payable by the insurance company to the claimants.

The Tribunal while holding the driver of the offending vehicle to have been driving the vehicle without a valid and effective driving licence held the

insurance company to be still liable to pay compensation as it failed to prove that the fact of driving licence being ineffective was in the knowledge

of the owner of the vehicle and that the accident was attributable to ineffective driving licence of the driver of the offending vehicle.

The insurance company questions the award dated 18.7.2009 in the present civil first miscellaneous appeal on the ground that the liability to

indemnify the owner was erroneously fastened on the insurance company and that the compensation worked out was excessive and on higher side.

I have gone through the appeal as also the impugned award and have heard learned counsel for the parties.

The Tribunal, while computing the loss of income to the claimants-respondent Nos. 1 and 2 herein, has taken age of the deceased as 16 years,

applied the multiplier of 15, having regard to the age of the respondent Nos. 1 and 2, and assuming that the deceased contributed an amount of Rs.

24,000 annually to his family kitty, computed compensation as Rs. 24,000 x 15 = Rs. 3,60,000. The Tribunal added Rs. 20,000 on account of

loss to estate and Rs. 5,000 on account of funeral expenses. The total compensation was, accordingly, determined as Rs. 3,85,000 and the

amount so determined, directed to carry interest at the rate of 6 per cent per annum from the date of filing of the complaint till its final realization.

The Tribunal while fixing Rs. 24,000 as annual contribution made by the deceased to his parents, relied upon law laid down by the Hon'ble

Supreme Court in Manju Devi and Another Vs. Musafir Paswan and Another and also the fact that the deceased was eldest son of his parents and

would have worked hard, conscious of his responsibility to support his parents in running the household as also bringing up his siblings.

It is pertinent to point out that evidence brought on record substantiated that the deceased was working in a hotel, on a monthly salary of Rs.

5,000. The respondent Nos. 1 and 2 examined Mohd. Amin, the hotel owner, in this behalf. However, the Tribunal did not believe the evidence so

produced and instead relied on law laid down in Manju Devi's case (supra). There is no reason to find fault with the reasoning given by the

Tribunal to apply multiplier of 15 and Rs. 24,000 per annum as contribution made by the deceased to his parents in running the household. It is

also important to note that the Tribunal did not conclude that deceased had an income of Rs. 2,000 per month. It instead laid focus on the

contribution made by the deceased from his income to the family fund. The argument advanced by the learned counsel for the respondent Nos. 1

and 2, that the compensation assessed is on lower side and that the Tribunal ought to have applied a higher multiplier and multiplicand, is devoid of

any substance. There cannot be any disagreement with learned counsel for the respondent Nos. 1 and 2 that the appellate court even in absence of

a cross-appeal is required to grant relief to the claimants in a claim application u/s 166 of the Motor Vehicles Act where it finds that compensation

assessed is not 'just compensation' within the meaning of section 168, Motor Vehicles Act. However, in the present case the compensation

determined by the learned Tribunal is in tune with the mandate of law and is 'just compensation' warranting no interference.

It is well settled law that the insurance company is to escape liability to indemnify the owner of the offending vehicle on account of accident

involving the insured vehicle where the driver employed by the insured or owner was not having valid and effective driving licence at the time of

accident. The insured would be guilty of breach of insurance contract, in the event he hands over his vehicle to a person not authorised to drive the

vehicle. The insurance company cannot be held under a duty to prove that the owner of the vehicle was having knowledge as regards defect in the

driving licence or that the driving licence held by the driver of the offending vehicle was ineffective and invalid. It would be impossible for the

insurance company to prove a fact based on knowledge or an understanding of the owner of the vehicle. It would be for the owner of the vehicle

to prove that he was not aware that the driving licence possessed by the driver of offending vehicle was ineffective and invalid, that he had taken all

steps expected of a person of ordinary prudence to ensure that the driving licence possessed by the driver to whom he was handing over his

vehicle was effective and valid and that he in a bona fide manner believed such licence to be effective and valid.

In the present case, the owner of the vehicle though given an opportunity to contest the claim petition did not opt to appear before the Tribunal

or this court and plead that he was not aware that the driver to whom he had handed over his vehicle did not possess a valid and effective driving

licence. Once the owner of the vehicle did not come forward to make such an assertion, it was not open to the Tribunal to rush to the conclusion

that the owner of the offending vehicle was not aware that the driving licence possessed by the driver of the offending vehicle was ineffective or

invalid.

The Tribunal was not right in saddling the insurance company with burden to prove that the owner of the offending vehicle was aware that the

driver of the offending vehicle was having an effective and valid driving licence. In such a case, onus would be always on the owner that he acted

as a person of ordinary prudence while employing driver for the offending vehicle.

So viewed, the finding returned by the Tribunal on issue No. 5 is not based on correct appreciation of facts and law and is, accordingly, set

aside.

For the reasons discussed above, the appellant is not under contractual obligation to indemnify owner of the offending vehicle and the

compensation assessed by the Tribunal is to be paid by the owner of the vehicle to the claimants-respondent Nos. 1 and 2. However, the

insurance company has already deposited the compensation amount with the Registry and part thereof has been paid to the respondent Nos. 1 and

The respondent Nos. 1 and 2 have been prosecuting the matter for last eight years. They belong to downtrodden and marginalised section of

society and cannot be asked to chase the owner of the vehicle for recovery of compensation assessed after such a long delay. The insurance

company, on the other hand, shall be in a better position to recover the amount paid by it in terms of the award from the owner of the offending

vehicle. Such a recourse, i.e., 'pay and recover' principle, has found approval of Supreme Court in a number of cases including United India

Insurance Co. Ltd. Vs. K.M. Poonam and Others, .

So viewed, award dated 18.7.2009 is modified as under:

The appellant insurance company shall pay an amount of Rs. 3,85,000 along with 6 per cent interest to the claimants with a right to recover the

paid amount from owner of the vehicle.

Civil first miscellaneous appeal is, accordingly, disposed of.