Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 221 of 2005 Appellant :- United India Insurance Co Ltd Respondent :- Ram Kailash And Others Counsel for Appellant :- Ashish Kumar Bhattacharya Counsel for Respondent :- Amit Kumar Sinha And Case :- FIRST APPEAL FROM ORDER No. - 758 of 2005 Appellant :- Ram Kailash And Others Respondent :- Mangroo And Others Counsel for Appellant :- Ram Singh,Amit K Sinha Counsel for Respondent :- Ashish Bhattacharya,Ashish Kumar Bhattacharya
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the parties.
2. Both these appeals arise out of same judgment and award dated 17.11.2004 passed by Motor Accident Claims Tribunal/IIIrd- Additional District Judge, Allahabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 690 of 1998 awarding a sum of Rs. 1,69,000/- with interest at the rate of 8% per annum.
3. Both these appeals arise out of vehicular accident which took place on 06.09.1998 at about 02:00 P.M., when the deceased was going to purchase his books, the tractor driven by Ram Bahadur came and dashed him and he got injured. The injured was taken to the hospital where he declared dead. The owner Magru and Suryabali did not appear before the Tribunal but the tractor was insured with the United India Insurance Company. The deceased was 17 years of age at the time of accident. No number plate was affixed on the said tractor.
4. After hearing and after recording the evidence, the Tribunal had granted compensation of Rs. 1,69,000/- with 8% per annum interest to the claimants. This has aggrieved, both the Insurance Company as well as the owner and the driver who had not appeared before the Tribunal nor before this Court.
5. It is an admitted position of fact and as pointed out by Sri Ashish Bhattacharya, Advocate appearing for the Insurance Company that even the Tribunal has held that driver had not produced the driving license. The driving license was not even produced by the owner or the claimant. The Tribunal relied upon:-
United India Insurance Company Ltd. Vs. Gyan Chandra and Another, reported in 1998 (1) T.A.C. (S. C., Page 36) has held as under:-
“When the insured handed over the vehicle to an un-licenced driver, the insurance company would get exonerated from the liability of paying compensation.”
2004 (1) T. A.C. (S. C.), Page 321, National Insurance Vs.
Swarn Singh and others has held as under:-
“Motor insurance, driving licence when admittedly no licence was obtained by a driver, insurer entitled to succeed in its defence and avoid liability.”
In this regard Hon'ble Supreme Court has held as under:-
“Defence available to an insurer would be a limited one. Once assured proved that the accident is covered by compulsory insurance clause, it is for insurer to prove that it comes within an exception. Insurer cannot shake off its liability only by saying that at relevant point of time vehicle was driven by a person having no license.”
6. Learned counsel for the Insurance Company has relied upon the judgement of Pappu and others Versus Vinod Kumar Lamba and others, reported in AIR 2018 SC 592 and the subsequent judgement of the Apex Court whereby it has been held that it is the duty of the Insurance Company to indemnify the third party and recover the same from the owner, once it is proved that policy was not added in this case. It is not in dispute that vehicle was insured. Hence, the appeal of the Insurance Company has to be allowed.
7. This takes this Court to the appeal preferred by the claimants where claimants were parents of the deceased. The deceased was 17 years of age. His income at the time of accident has been considered to be Rs. 15,000/- per month and the multiplier granted by the tribunal which is now required to be modified in view of the judgement of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.
8. It is submitted by Sri Amit Kumar Sinha, learned counsel for claimants that this Court should grant compensation as per the judgement of Kishan Gopal and another v. Lala and others, 2013 (101) ALR 281 (SC), and Manju Devi's case, reported in 2005 (1) TAC 609. Unfortunately, I do not subscribe to the same.
9. Hence, considering his income to be Rs.15,000/- per month would be just and proper to which 40% i.e. Rs. 6,000/- will have to be added as per the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 which comes to Rs.21,000/- out of which, 1/2 will have to deducted for personal expenses which comes to Rs.10,500/-. As the deceased was in the age bracket of 15-20 years, the applicable multiplier would be 18 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that Rs.40,000/- is granted towards conventional heads as it is matter of 2005. Hence, the claimants are entitled to a total sum of Rs. 10,500 x 18+ 40,000 = 2,29,000/-.
10. In view of the above, both the appeals are partly allowed. The judgment and decree shall stand modified to the aforesaid extent.
11. The enhanced amount will carry interest at rate of 9% from the date of filing of the claim petition till the award of the Tribunal and 4% thereafter till the amount is deposited and shall be deposited within 12 weeks from today. On depositing the amount, they would be entitled to recover the same from both the owners and driver of the tractor.
Order Date :- 30.07.2019/AKT