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Judgment
B.N. Mahapatra, J.—Both the appeals arise out of a common award dated 14th February, 2005 passed by the 2nd Motor Accident Claims Tribunal (hereinafter referred to as the "Tribunal"), Cuttack, in Misc. Case No. 860 of 1995.
M.A.C.A. No. 460 of 2005 has been filed by the Insurance Company u/s 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ''Act'') for setting aside the award passed by the Tribunal.
M.A.C.A. No. 291 of 2005 has been filed by the claimant-Respondents for enhancement of the awarded amount of compensation.
Though the matter is listed for admission today the learned Counsel for both the parties agree to settle the matter in the spirit and manner in which the motor accident claim cases are disposed of in Lok Adalat.
Since both the appeals arise out of the same accident, they are heard together and are disposed of by this common judgment.
In this case one Bhaktabandhu Senapati was killed in a vehicular accident. According to the claimants on 2.10.1995 the deceased was going on the left side of the road leading from Bhadrak to Chandbali. At that time, the offending vehicle bearing Registration No. ORB-7919 (Trekker) came in a high speed without blowing horn and dashed against the deceased, as a result of which the deceased sustained severe injuries. The deceased was taken to S.C.B. Medical College Hospital, Cuttack, for treatment but on 7.10.1995 he succumbed to the injuries. According to the claimants accident was caused due to the rash and negligent driving of the driver of the offending vehicle. The further case of the claimants was that the driver of the offending vehicle had valid driving license and the vehicle was validly insured with the Insurance Company covering the date of accident. The deceased who was aged about 30 years was working under M/s. Techno Mech. Engineers, Mesco-Project, Jajpur Road and earning a sum of Rs. 3,500/- per month at the time of accident.
On these allegations, the claimant-Respondents filed a petition before the Tribunal claiming a sum of Rs. 5,00,000/- from both the Insurance Company as well as the owner of the vehicle making them jointly and severally liable to pay the compensation.
The owner of the vehicle in his written statement filed before the Tribunal stated that the driver had valid driving license and the vehicle was also duly insured with the Insurance Company. According to him, the deceased was a pedestrian and the accident was caused due to the fault of the deceased when he suddenly turned towards right to cross the road. It has also denied the allegations of rash and negligent driving of the driver and further stated that it was not liable to pay any compensation to the claimant-Respondents.
The Insurance Company in its written statement stated that the deceased was not a pedestrian. On 7.10.1995 the trekker bearing Registration No. ORB-7919 was carrying some passengers, amongst whom the deceased was travelling when the accident was caused. The age and earning of the deceased were also denied by the Insurance Company.
From the above pleadings of the parties, the learned Tribunal framed the following issues for determination:
Is the case maintainable?
Whether the death of the deceased was caused due to rash and negligent driving of the driver of the vehicle bearing registration No. ORB-7919?
If the Petitioners are entitled to get any compensation and if so, to what extent and from whom?
To what relief, if any, are the Petitioners entitled?
After taking into consideration the oral and documentary evidence adduced by the claimants and the written statement filed by the owner of the vehicle and the Insurance Company, the learned Tribunal held that the driver of the offending vehicle was liable for the death of the deceased for his rash and negligent driving. Relying on the T.C. marked as Ext. 5, the learned Tribunal also found that the deceased was 34 years of age on the date of the accident. It is further observed in the award that in the claim petition the monthly income of the deceased was stated at Rs. 3,500/-. P.W. 1 in her statement stated that the deceased was earning Rs. 5,000/- per month. Ext. 6 was the Testing Card. One Welders Identity Card was filed by the claimants before the learned Tribunal. This snowed that the deceased was an employee in Mesco-Project. In absence of any acceptable evidence with regard to earning of the deceased, the learned Tribunal determined the monthly income of the deceased at Rs. 3,000/- and applying 15 multiplier worked out the total loss of income of the Petitioner at Rs. 3,60,000/-. Adding Rs. 5,000/- towards the loss of consortium and funeral expenses, the Tribunal determined Rs. 3,65,000/- towards just and proper compensation and directed the Insurance Company to pay the said compensation amount within a period of thirty days from the date of its order together with cost and interest at the rate of 9% per annum from 29.7.1996 (when the Insurance Company entered appearance) till realization. It was further ordered by the learned Tribunal that out of the compensation amount and interest a sum of Rs. 3,00,000/- in the name of claimant-Respondent No. 1, Rs. 1,20,000/- each in the name of claimant-Respondent Nos. 2 and 3 and Rs. 60,000/- in the name of claimant-Respondent No. 4 be kept in shape of unencumbrance fixed deposit in any Nationalized Bank for a period of six years (subject to renewal in case of Petitioner Nos. 2 and 3 till their maturity) for their future benefit and the balance amount with interest be paid to claimant-Respondent No. 1 in shape of cash.
The grievance of the Insurance Company is that the amount of compensation awarded by the Tribunal is high and excessive. The driver of the offending Trekker did not possess a valid driving license on the date of occurrence to carry passengers in a Trekker. The deceased was travelling in the Trekker bearing Registration No. ORB 7919 and was not a pedesterian at the time of accident. Finally it is argued that the offending vehicle was registered and insured as a private vehicle but at the time of accident the said vehicle was carrying passengers which is gross violation of condition of the insurance policy and, therefore, the Insurance Company is not liable to pay any compensation.
The above contention of the learned Counsel for the Appellant-Insurance Company are resisted by the learned Counsel appearing for the claimant-Respondents. According to him the deceased was a pedesterian and due to rash and negligent driving of the driver of the offending Trekker the accident occurred and as a result of which the deceased sustained grievous injuries and finally succumbed to the injury.
None appears on behalf of the owner of the vehicle.
After hearing the counsel for both parties and considering the facts of the case, this Court feels that compensation of Rs. 3,00,000/-(Rupees three lakhs) with 6% interest per annum from the date of claim application i.e. 21.10.1995 till its realization will be just and proper in this case.
The further contention of the learned Counsel for the Insurance Company is that the Insurance Company is not liable to pay compensation since the driver of the offending vehicle had no valid and effective driving license at the time of accident which is gross violation of the insurance policy condition. I am not inclined to accept this contention.
The Hon''ble Supreme Court in the case of New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., and also in the case of National Insurance Co. Ltd. v. Challa Bharathamma reported in 2005 (1) TAC 4 (SC), held that not possessing a valid driving license being breach of policy condition, the poor claimants should not suffer. The Hon''ble Supreme Court has further held that the Insurance Company should be directed to pay the amount to the claimants and should be directed to recover the same from the owner of the vehicle. In consonance with the ratio of the aforesaid decisions and Section 149 of the Act, this Court directs the Insurance Company to pay the compensation amount to the claimant-Respondents with interest.
In view of the above, the Insurance Company is directed to pay a compensation of Rs. 3,00,000/- (Rupees three lakhs) to the claimant-Respondents with interest at the rate of 6% from 21.10.1995 til its realization. Learned Counsel for the Insurance Company further submits that the Insurance Company had already paid a sum of Rs. 50,000/- as provided u/s 140 of the Act. To this, the learned Counsel for the claimant-Respondents has no denial. Hence, this Court directs that if a sum of Rs. 50,000/- had already been paid, the same shall be deducted from the total amount, payable by Insurance Company to the claimant-Respondents as per the direction given above and the balance amount be deposited before the Tribunal within a period of six weeks from the date of receipt of this order. After the amount is deposited before the Tribunal the same shall be disbursed to the claimant-Respondents in the same manner as directed by the Tribunal in its� award taking into account the revised amount of compensation with interest that would be paid by the Insurance Company.
If any proceeding is initiated by the Insurance Company for recovery of the awarded amount of compensation and interest from the owner of the vehicle, the learned Tribunal shall decide the inter se dispute between the Insurance Company and the owner of the vehicle in accordance with law. However, this Court makes it clear that the amount of compensation with interest as directed above shall be disbursed by the Tribunal to the claimant-Respondents without waiting for finalization of the inter se dispute between the Insurance Company and owner of the vehicle.
The further submission of the learned Counsel for the Insurance Company is for refund of statutory amount of Rs. 25,000/- deposited in this Court. It is directed that the statutory amount of Rs. 25,000/- along with interest accrued thereon may be refunded to the Appellant-Insurance Company on production of a receipt before the Registrar (Judicial) of this Court showing deposit of the compensation amount with interest as directed above before the Tribunal.
With the aforesaid direction, the appeal filed by the Insurance Company is allowed in part. In view of the order passed, learned Counsel appearing for the claimant-Respondents in M.A.C.A. No. 291 of 2005 does not want to press the appeal which is accordingly dismissed as not pressed.