New India Assurance Company Ltd. vs Fakira and Others

B.C. Kandpal, J.—This appeal u/s 173 of the Motor Vehicles Act, 1988 has been filed by the Appellant/insurance company against the judgment and award dated 15.12.2007, passed by Motor Accident Claims Tribunal/District Judge, Dehradun in M.A.C.T. Case No. 342 of 2005, Fakira v. Mohd. Yusuf and others.

Brief facts of the case are that the deceased was an electrician of high tension lines and he was earning Rs. 6,500 per month as salary. On 18.12.2005 at about 10.30 a.m., he was waiting on Mussoorie Diversion near Kuthal Gate, Dehradun for passenger vehicle, suddenly, a tractor bearing registration No. U.A.-071/4944 which was being driven by its driver in a rash and negligent manner dashed against the deceased who sustained multiple injuries. He had died on the way to Mahant Indresh Hospital, Dehradun on the same day. The claimant is the father of the deceased, hence, an amount of Rs. 16,20,000 was claimed as compensation in lieu of the death of his son.

The notices were issued to the opposite parties. The opposite party Nos. 1 and 2/owner and driver of the tractor contested the claim petition by filing their joint written statement before the Tribunal on the ground that the accident was not result of rash and negligent driving of the driver of the tractor. It has further pleaded that the driver was having a valid and effective driving licence and it was also pleaded that the tractor was insured with the New India Assurance Company Ltd.

The opposite party No. 3/New India Assurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal on the ground that the tractor was not insured for commercial purposes, driver was not holding any valid driving licence and at any rate at the time of accident was not being plied for agricultural purposes, was being used in breach of the insurance policy. On the above grounds the insurance company is not liable to make any compensation.

On the basis of pleadings of the parties, the Tribunal has framed following issues for consideration:

Whether on 18.12.2005 at about 10.30 a.m., at near Kuthal Gate, Mussoorie-Dehradun Road, Tractor No. U.A.-071/4944 which was being driven by its driver rashly and negligently hit the deceased Musahid resulting into the death of deceased aforesaid? If so, its effect?

Whether the claimant is entitled for any compensation due to the aforesaid accident? If so, how much and from which party?

Whether the driver had no valid licence on the date of the accident as pleaded in the W.S.?

Whether the vehicle in question was being driven against the insurance policy at the time of the aforesaid accident?

Thereafter, both the parties led evidence in support of their cases. After hearing learned Counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 2,42,000 alongwith interest @ 6% per annum from the date of filing the petition till the date of actual payment with cost of Rs. 3,000 vide judgment and award dated 15.12.2007.

Feeling aggrieved by the aforesaid judgment and award, the Appellant/insurance company has preferred this appeal before this Court.

Heard Mr. V. K. Kohli, learned senior advocate, assisted by Mr. I. P. Kohli, learned Counsel for the Appellant, Mr. Pawan Mishra, learned Counsel for the Respondent No. 1, Mr. Ramji Srivastava, learned Counsel for the Respondent No. 2 and perused the record.

In order to prove his case, the claimant examined himself as P.W. 1, Mobin Ali employer of the deceased as P.W. 2 and Sahid Khan as P.W. 3 (eye-witness) besides filing documentary evidence viz. photocopy of the F.I.R., registration certificate of tractor and certified copy of the charge-sheet, post-mortem report, inquest report, original salary certificate of the deceased, extract from family register, photocopy of driving licence of the driver as well as photocopy of insurance policy. The opposite party Nos. 1 and 2 have neither filed any documentary evidence nor adduced any oral evidence. The opposite party No. 3/insurance company has filed attested copy of the proposal form, photocopy of the policy, photocopy of the registration certificate and investigator''s report dated 15.5.2006 and 7.8.2006 and have examined its investigator Sri R. K. Sharma as D.W. 1.

As far as the factum of accident is concerned, the Tribunal has discussed this point while deciding issue N. 1. The Tribunal relied upon the statement of P.W. 3-Sahid Khan (eye-witness) who has stated in his deposition that there was none on the tractor except the driver and after accident tractor stopped there and on this very tractor the injured was taken to the hospital. The Tribunal on the basis of the statement of this witness who was the actual eye-witness of the accident as well as considering the documentary evidence available on record came to the conclusion that the accident took place on account of the rash and negligent driving of the driver of the offending tractor, that appears to be perfectly just and proper and I am in total agreement with the findings recorded by the Tribunal in this regard.

As far as the validity of driving licence as well as insurance policy is concerned, the Tribunal discussed this point while deciding issue No. 3. The Tribunal considering the photocopy of the driving licence as well as report of the investigator appointed by the insurance company came to the conclusion that the driving licence was valid and effective on the date of accident.

Learned Counsel for the Appellant/insurance company has confined his argument only to this point that the tractor was having a trolley, which was not insured and, as such, the insured has violated the terms and conditions of the policy and the insurance company is not liable to pay any compensation on that ground.

After hearing learned Counsel for the Appellant, I have gone through the record. The Tribunal has discussed this point while deciding issue No. 4 and it reveals from the record that the insurance company has raised this plea before the court below and the court below has categorically mentioned that admittedly the semi-trailer was not covered under the policy of insurance but the counsel of the insurance company could not produce any law on that point. In the present case, the deceased was a pedestrian and learned Counsel for the Appellant could not place before me any authority, which may show that the tractor was being plied in breach of the condition of the policy. On the basis of the material available on record, the Tribunal has rightly fastened the liability of compensation upon the insurer of the tractor, i.e., Appellant/New India Assurance Company Ltd.

As far as the amount of compensation is concerned, the Tribunal in the absence of any documentary evidence, the Tribunal considered the notional income of the deceased as Rs. 36,000 per annum and after deducting 1/3rd towards personal expenses, the annual dependency of the claimant comes to Rs. 24,000. The deceased was about 40 years of age at the time of the accident, therefore, the Tribunal adopted the multiplier of ''10'' in order to calculate the amount of compensation, thus the total amount of compensation comes to Rs. 2,40,000 (24,000 10). I am in total agreement with the findings recorded by the Tribunal. The amount of compensation awarded by the Tribunal does not require any interference. The appeal lacks merit and is liable to be dismissed.

Accordingly, the appeal is dismissed. The impugned judgment and award is hereby affirmed.

The statutory amount deposited by the Appellant before this Court be remitted to the Tribunal concerned.