National Insurance Company Ltd. vs Smt. Kushla Devi and Others

Mansoor Ahmad Mir, C.J. (oral) - Subject matter of this appeal is the award dated 25th April, 2009, passed by the Motor Accident Claims Tribunal (I) Kangra at Dharamshala (hereinafter referred to as �the Tribunal�), in M.A.C.P No. 48-G/II-2004, whereby compensation to the tune of Rs. 3,62,000/-with interest @ 9% per annum from the date of filing of the claim petition, came to be awarded in favour of the claimants-respondents No. 1 to 5 herein and the insurer--National Insurance Company-appellant herein, was saddled with liability, (hereinafter referred to as �the impugned award�).

The claimants, owner and driver have not questioned the impugned award, on any count. Thus, it has attained finality, so far it relates to them.

Appellant-insurer has questioned the impugned award on the following four grounds:

(i) That the driver of the offending vehicle was not having a valid and effective driving licence;

(ii) That the deceased was traveling as a gratuitous passenger in the offending vehicle;

(iii) That the owner-insured of the offending vehicle has committed wilful breach; and

(iv) That the amount awarded is excessive.

All the four grounds are not tenable and are rejected for the following reasons:

The Tribunal, after examining the pleadings of the parties, framed the following issues:-

"1. Whether on 22.5.2004 the respondent No. 2 was driving vehicle No. HP-38- 6207 rashly and negligently as a result of which the vehicle fell down in a deep gorge and Jaswant Singh sustained injuries and later on succumbed to the injuries? �OPP

If Issue No. 1 is proved, what amount of compensation, the petitioners are entitled to and from whom? ...OP Parties

Whether the respondent No. 2 was not holding a valid and effective driving licence at the time of alleged accident? �OPR-3.

Whether the vehicle was not insured at the time of alleged accident? �.OPR-3

Whether the deceased was traveling as a gratuitous passenger as alleged? �.OPR-3.

Relief."

The parties have led evidence. The insurer has failed to prove that the driver was not having a valid and effective driving licence at the time of accident. The Tribunal has discussed the said issue in para-22 of the impugned award. However, I have gone through the entire record. The insurer has not led any evidence to prove the said fact. Thus, the evidence led by the claimants has remained unrebutted.

Learned Counsel for the insurer argued that the deceased was a mason. The claimants in their claim petitions have averred that the deceased, in addition to the mason, was also loading and unloading the fuel wood in the offending vehicle. The said fact is not denied by the respondents in their replies. However, the Tribunal has discussed the said issue in paras 8 to 18 of the impugned award, needs no interference. Even otherwise, the risk was covered. Accordingly, the findings returned by the Tribunal on issues No. 1 and 2 are upheld.

The amount of compensation is inadequate for the reason that the Tribunal has deducted ⅓rd towards the personal expenses of the deceased, whereas ⅕th was to be deducted, in view the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, AIR 2009 SC 3104, upheld by a larger Bench of the Apex Court in a case titled as Reshma Kumari and others v. Madan Mohan and another, reported in 2013 AIR (SCW) 3120 read with the judgment rendered by the Apex Court in case titled as Munna Lal Jain and another v. Vipin Kumar Sharma and others, reported in 2015 AIR SCW 3105. But the claimants have not questioned the quantum of compensation. Accordingly, the amount of compensation is reluctantly upheld.

The Registry is directed to release the award amount in favour of the claimants, strictly in terms of conditions contained in the impugned award, through payees account cheque or by depositing in their accounts.

Viewed thus, the impugned award is upheld and the appeal is dismissed.

Send down the records after placing a copy of the judgment on the file of the claim petition.