Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 3782 of 2008 Appellant :- The Oriental Insurance Co Ltd Respondent :- Vittan Devi And Others Counsel for Appellant :- S.K. Kakkar Counsel for Respondent :- B.P. Singh
Hon'ble Saral Srivastava,J.
Heard learned counsel for the parties.
The present appeal has been preferred by the appellant- insurance company challenging the judgement and award dated 06.09.2008 passed by the Motor Accident Claims Tribunal/Special Judge (E.C. Act), Mirzapur, in MACP No.82 of 2007 whereby, the Tribunal has awarded Rs.7,32,000/- along with 5% interest as compensation to the claimants/respondents.
The claim petition was instituted by the claimants/respondents claiming compensation of Rs.27,72,000/- for the death of one Kanhaiya Lal in an accident on 24.04.2007 with Truck No.U.P- 63-AF-9589.
Learned counsel for the appellant-insurance company has contended that the driver of Truck No.U.P-63-AF-9589 (hereinafter referred as 'offending vehicle') was having two driving licence which is in violation of Section 6 of the Motor Vehicles Act and, therefore, the owner has committed breach of insurance policy. He contends that when the driving licence alleged to have been issued from the Licensing Authority, Sonbhadra was found to be not valid on the date of the accident, the owner produced another driving licence of the driver of the offending vehicle and as such, there was breach of insurance policy thus, the insurance company is not liable to pay the compensation to the claimants/respondents.
Learned counsel for the appellant further contends that income of the deceased assessed by the Tribunal to be Rs.6,000/- per month is on higher side inasmuch as, though it has been stated in the claim petition that deceased was carrying on the business of Kirana but the claimants/respondents did not lead any evidence to prove the income of the deceased and as such, the Tribunal has erred in holding the income of the deceased to be Rs.6,000/- per month.
Per contra, learned counsel for the claimants/respondents submits that the driver of the truck was having a valid driving licence, and as per the terms and conditions of the insurance policy, the insurance company is liable to pay the compensation. He further contends that even if for the sake of argument, the contention of learned counsel for the appellant in respect of driving licence is accepted, the insurance company has to prove that breach of policy on the part of owner was deliberate and until and unless the insurance company proves breach of insurance policy on the part of owner was deliberate, the insurance company cannot avoid its liability to pay compensation. In this regard, he has relied upon the judgement of Apex Court in the case of Ram Chandra Singh Vs. Rajaram and Others (2018) 8 SCC 799.
Learned counsel for the claimants/respondents further submitted that the fact that claimant/respondent was running a business of Kirana has not been disputed by the insurance company and further, the income of the deceased was proved by the claimants/respondents by producing PW-3 Sunil Mishra who had stated the income of the deceased to be Rs.6,000/- per month, hence, the Tribunal was right in assessing the income of the deceased to be Rs.6,000/- per month.
I have heard the rival submissions of the parties and perused the record.
The Tribunal while recording the finding on driving licence has held that though driving licence of the driver of the offending vehicle issued from the Licensing Authority, Sonbhadra was not valid on the date of the accident, but the driving licence issued from the Licensing Authority, Bhadohi was valid and this fact was not disputed by the insurance company. Further, as per terms and conditions of the insurance policy, the insurance company can avoid its liability only if the vehicle in question is driven by a person not holding a valid driving licence and the breach of policy on the part of the owner was deliberate.
In this regard, it would be useful to notice the paragraph 11 of the judgement of Apex Court in the case of Ram Chandra Singh (supra) which 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.."
Thus, the insurance company has to prove that the owner has failed to take due care in handing over the vehicle to a person not holding valid driving licence and breach of the insurance policy on the part of owner was deliberate.
Since, no such plea was taken by the insurance company nor insurance company led any evidence to establish that the breach of policy has been committed by the owner deliberately, the insurance company cannot avoid its liability to pay the compensation.
Thus, for the reasons given above, the finding of the Tribunal on the issue of driving licence is affirmed.
So far as the contention of learned counsel for the appellant in respect of quantification of compensation is concerned, the Tribunal has considered the testimony of PW-3 Sunil Mishra, who has proved that deceased was engaged in the business of Kirana and was earning about Rs.6,000/- per month. The finding of the Tribunal in respect of income of the deceased is based on proper appreciation of evidence on record led by the claimants/respondents. Thus, the finding of the Tribunal on the issue of quantification of compensation is just and proper and does not call for interference by this Court in the appeal.
Thus, for the reasons given above, the appeal lacks merit and is accordingly, dismissed. There shall be no order as to costs.
Order Date :- 19.12.2018 Sattyarth