JUDGMENT Yatindra Singh and R.K. Rastogi, JJ.
1. Brahmanand Ram was a police constable and Panna Lal Saroj was the Sub Inspector. They were going on a motor cycle on 8.2.1994 in the night. They were struck by a truck and in this accident Brahmanand Ram died. His widow and children filed a claim petition before the Motor Accidents Claims Tribunal which was allowed on 16.9.1998, hence the present appeal by the insurance company.
2. We have heard learned Counsel Mr. Neelambar Tripathi holding the brief of Mr. N.K. Chatterjee learned Counsel for the appellant and Mr. Deepak Verma, learned Counsel for the claimants-respondents.
3. Learned Counsel for the claimants-respondents submits that no permission was granted to the insurance company under Section 170 of Motor Vehicles Act and as such the appeal is not maintainable.
4. In this case neither the owner of the truck nor the driver of the truck appeared before the court. It was a fit case in which the Tribunal below ought to have granted permission to contest the case and we do so accordingly. Apart from it, this appeal is also on the ground of violation of the policy condition and as such the appeal is maintainable.
5. The deceased as well as Panna Lal Saroj were going on a motor cycle. The claimants in order to prove their case produced Panna Lal Saroj, PW 1, who was witness at the spot, Indrasani Devi, widow of the deceased, PW 2 and constable Vijay Shankar Yadav, PW 3. The appellant in order to prove its case produced Vishwa-nath Prasad, investigator of the insurance company, DW 1 and Vijay Shankar Yadav (sic) Sub Inspector in the company, DW 2. Panna Lal Saroj, PW 1, is witness at the spot. He has submitted that the truck hit them from behind and it was because of negligence of the truck driver. On the basis of this evidence the Tribunal below held that the truck driver was negligent. There is no illegality in this finding and the finding regarding negligence on the part of the truck driver is upheld.
6. The deceased was a police constable and he was getting a salary of Rs. 2,875 per month. Family dependency shall be 2/3rd of this amount. He was 38 years of age and as such multiplier of 16 ought to have been applied. The court below, after calculating the amount, awarded a sum of Rs. 3,16,000 which is slightly less than the amount if it is calculated on the correct multiplier. In this way we see no justification to interfere with the quantum awarded by the court below. There is no cross-objection filed by the respondents. In view of this, we do not think it proper to enhance the amount awarded by the court below.
7. The counsel for the appellant next submitted that there was no valid licence in possession of the truck driver and as such the liability cannot be fastened upon the insurance company. Neither the truck owner nor the truck driver appeared before the court below. The appellant had filed an application for summoning the truck driver to produce his licence. This application was allowed on 20.10.1997 and despite this order the truck driver did not appear before the court. Unless the licence or its photocopy is filed, the insurance company cannot lead evidence whether the licence is forged or not. The initial burden is on the truck owner to discharge. It is only when it is discharged that the burden shifts on the insurance company. In this case neither the truck owner nor the truck driver appeared before the court nor did they produce even a photocopy of the licence. In these circumstances, it cannot be said that burden was upon the insurance company to prove that the truck driver did not have a driving licence. In view of this, we think it proper that the insurance company may pay the amount of compensation to the claimants-respondents and thereafter the insurance company may recover that amount from the truck owner.
8. The counsel for the appellant next submitted that interest at the rate of 12 per cent is higher and at present the normal rate of interest is 6 per cent. This is correct. The interest which ought to have been awarded should have been 6 per cent from the date of filing of application.
9. In view of this, the appeal is partly allowed. The claimants-respondents will be entitled to compensation of Rs. 3,16,000 along with 6 percent interest from the date of filing of application and the insurance company is liable to pay this amount to the claimants-respondents and thereafter the insurance company may recover the same from the truck owner by filing an execution application against him. With these observations the appeal is partly allowed.
10. The amount deposited here may be remitted to the court below for its adjustment.