1. Heard Heard Sri N.K. Srivastava, learned counsel for the appellant and Sri K.N. Bind, learned counsel for the respondents.
2. All the four appeals arise out of the same accident and the issues in all the appeals are common, therefore, the appeals are being decided by a common judgement.
3. On 29.11.1997 some persons were travelling in a Jeep bearing registration no.MH-04A-7703 which met with an accident with truck bearing registration no.DIG-7721. In the accident, three persons namely Prema Devi, Ashok Kumar and Vijay died on the spot and Hemant Kumar suffered injuries. Later on, Hemant Kumar had also succumbed to his injuries.
4. The dependants of the aforesaid persons instituted claim petitions claiming compensation for the death of the aforesaid four persons.
5. The Tribunal framed number of issues on the issue of negligence, the Tribunal on the basis of statement of eye witness P.W.2 Babu Lal, has held that the accident was caused due to sole negligence of the driver of the truck. With regard to the driving license, the Tribunal has held that though the Insurance Company had proved that the driving license of the driver of the truck was fake but the Insurance Company has failed to prove that the truck owner knew that the driving license of the driver of the truck was fake and the breach of insurance policy on the part of the owner of the truck was deliberate. The Tribunal has held that the claimant being third party should not suffer, and accordingly, fastened the liability upon the Insurance Company to pay compensation. The Tribunal awarded Rs.2,33,998/- as compensation on the basis of the notional income alongwith 12% interest in M.A.C.P. No.56 of 1998.
6. Learned counsel for the appellant has made following three submissions:-
(i) The Tribunal has erred in holding the sole negligence of the driver of the truck in the accident inasmuch as it was a case of head on collision between jeep and truck and, therefore, there was some negligence on the part of the driver of the jeep in the accident.
(ii) The Tribunal erred in fastening the liability upon the appellant to pay compensation despite the fact that the driving license of the driver of the truck was fake and the owner has committed breach of insurance policy.
(iii) 12% interest awarded by the Tribunal is on higher side.
7. Per contra, learned counsel for the respondents has submitted that the Tribunal on the issue of negligence has relied upon the testimony of P.W. 2 Babu Lal has deposed before the Tribunal that the accident was caused due to sole negligence of driver of the truck and in absence of any evidence filed by the appellant rebutting the testimony of P.W.2, the finding of the Tribunal with regard to the negligence cannot be faulted with. On the issue of driving license, learned counsel for the respondents has submitted that the claimant being third party should not be suffer for the breach committed by the owner of the vehicle. He submits that it is settled in law that the Insurance Company has to establish that the breach of insurance policy was deliberate on the part of the owner of the insured and in the instant case neither there was any pleading to this effect by the Insurance Company nor the Insurance Company led any evidence to establish that the owner had committed deliberately the breach of insurance policy.
8. I have considered the rival submission of the parties and perused the record.
9. So far as the contention of the learned counsel for the appellant with regard to the negligence of driver of the jeep is concerned, the Tribunal has considered in detail the testimony of P.W.2 who has categorically stated in his testimony that the accident was caused due to sole negligence of the driver of the truck. There was no evidence on record led by the Insurance Company to rebut the testimony of P.W.2. Thus, the Tribunal was right in relying upon the testimony of P.W.2 in holding the negligence of the driver of the truck in the accident and there being no perversity in the finding of the Tribunal on the said issue, the finding of the Tribunal on the issue of negligence is a finding of fact and cannot be interfered with in appeal.
10. With regard to issue of driving license, it needs to be noticed that the appellant has not pleaded in the written statement that the owner of the truck has committed the breach of insurance policy deliberately and further, the Insurance Company did not make any effort to establish that the breach of insurance policy on the part of the owner was deliberate. The Tribunal recorded a specific finding that the Insurance Company has failed to prove that the breach of insurance policy by the owner of the vehicle was deliberate. The finding of the Tribunal in this regard is supported by the judgement of the Apex Court in Civil Appeal No. 8145 of 2018 [Ram Chandra Singh Vs. Rajaram and others (arising out of SLP (C) No.6760 of 2017]. Paragraphs 11 and 12 of the judgement is extracted herein-below:-
"11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer.
12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of the appellant-owner of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same."
11. Consequently, the submission of the learned counsel for the appellant is not sustainable in law and the finding of the Tribunal on the issue of driving license is affirmed.
12. So far as the award of 12% interest is concerned, the same may be on higher side but the fact remains that the claimants are entitled for just, fair and adequate compensation and in the instant case, the Tribunal has not awarded any amount for future prospects. So for this reason, this Court is of the opinion that the 12% interest awarded by the Tribunal is not liable to be reduced.
13. Thus, for the reasons given above, the appeals lack merit and are dismissed.
Order Date :-12.9.2018 S.Sharma