Avjot Preet Kaur vs Gopal Singh United India Insurance Company Limited Vs Avjot Preet Kaur

Lisa Gill, J.—This order shall dispose of both the above-noted appeals i.e., FAO No. 1443 of 2002 and FAO No. 1820 of 2002, which arise out of the same award dated 18.10.2001 passed by the learned Motor Accident Claims Tribunal, Ludhiana (for short, the Tribunal'').

The claim petition was filed by Avjot Preet Kaur, minor daughter of the deceased-Harpreet Kaur. It is an admitted fact that the claimant''s mother, Harpreet Kuar, had obtained divorce from her husband-Avtar Singh i.e., the claimant''s father in February, 1996. The deceased had thereafter re-married with Kulraj Singh. On 22.04.1999, the deceased alongwith her second husband Kulraj Singh and the children from the second marriage, was travelling in a Tata Sumo bearing registration No. HP-41-7335 from Pehowa to Kurukshetra and to Delhi. When the Tata Sumo reached near village Indwari on the Pehowa-Kurukshetra road, at about 5.30 PM, a truck bearing registration No. PB-11K-1749 came from the opposite direction being driven by respondent No. 2 in a rash and negligent manner. The truck struck against the Tata Sumo. All the persons travelling in the Tata Sumo including deceased-Harpreet died at the spot. FIR No. 195 dated 22.04.1999 was registered at police station Sadar Thanesar, District Kurukshetra. Respondent No. 1 is the owner of the truck, which is insured with respondent No. 3.

The claim petition was filed by the minor daughter averring that she was still living with her mother after the divorce. The learned Tribunal has held that the accident occurred due to rash and negligent driving of the truck by respondent No. 2 resulting in the death of Harpreet Kaur. It was further held that there was nothing on the record to show that the claimant was living with the deceased after she had contracted the second marriage. But keeping in view the fact that she was the sole surviving legal representative of the deceased, the claimant was held entitled to get the compensation which was quantified at Rs. 1,00,000/- by applying the rule of thumb.

The Insurance Company had raised a plea that the driving licence held by respondent No. 2 was fake, therefore, it was not liable to pay the compensation. The learned Tribunal rejected the said plea and held the Insurance Company liable.

Learned senior counsel for the claimant has urged that the maintenance awarded is on the lower side and the claimant is entitled to a much higher amount.

However, it has been fairly stated by learned senior counsel for the claimant that there is nothing on the record to show that she, in fact, was living with the deceased at the time of the accident. It is an admitted fact that even the decree of divorce has not been placed on record. There is nothing on the record to prove the age of the deceased or her educational qualifications. It has come in the evidence of Avtar Singh, AW2 i.e., the father of the claimant that the claimant was re-admitted in the Sacred Heart Convent School, Jagraon in the year 1998. Avtar Singh is, admittedly, a resident of Jagraon.

In view of the above, the learned Tribunal had rightly held that the claimant is entitled to get the compensation only in her capacity as the sole surviving legal representative of the deceased. However, applying the rule of thumb the amount of compensation awarded by the learned Tribunal is enhanced from Rs. 1,00,000/- to Rs. 1,50,000/- in the given facts and circumstances of the case alongwith interest thereon.

Learned counsel for the Insurance Company has submitted that in view of the fact that the driving licence of respondent No. 2 has been held to be a fake driving licence, it amounts to a breach of the relevant conditions of the insurance policy, thus, entitling the Insurance Company to seek exoneration from indemnifying the insurer due to this breach.

This contention has been rightly rejected by the learned Tribunal specifically keeping in view the observations of the Hon''ble Supreme Court in case titled as National Insurance Co. Ltd. Vs. Swaran Singh and Others, . It is incumbent upon the Insurance Company to establish that the insurer was guilty of negligence and failed to exercise reasonable care. In the present case, it is a matter of record that the said driving licence had been renewed twice thereafter in the office of the DTO, Patiala. Reference can gainfully be obtained from the testimony of RW3 Himmat Singh, Clerk in the DTO office, Patiala in this regard. It has also come on the record that necessary inquiries had been made by the owner. Thus, the Insurance Company cannot be absolved of its responsibility.

Thus, in view of the above, FAO No. 1820 of 2002 filed by the Insurance Company is dismissed and FAO No. 1443 of 2002 filed by the claimant is partly allowed modifying the award of the learned Tribunal to the extent that the amount of compensation awarded to the appellants is enhanced from Rs. 1,00,000/- to Rs. 1,50,000/- with interest thereon at the rate of 9% on the enhanced amount from the date of institution of the petition till the date of realization of the payment. The respondents are liable to pay the compensation jointly as well as severally.