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Judgment
This appellant / Insurance Company has filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short MV Act), being aggrieved by the award dated 10/12/2018 passed in Claim Case No. 28/2016 by the Additional Motor Accident Claims Tribunal, Gariyaband (C.G.).
By the impugned award, against a claim of Rs.40,50,000/-, the learned Tribunal has awarded compensation of Rs.10,38,088/- in favour of the respondent No.1 to 4 / claimants on account of death of deceased Siyaram Sahu in an accident that occurred on 21/02/2016 by rash and negligent driving of the offending vehicle Mahindra tractor bearing registration No. CG-04-DM-9642 and unnumbered trolley. Respondent No. 5 is the driver and respondent No. 6 is the owner of the offending vehicle and insured with the appellant / insurance Company.
As per further pleadings of claim application, respondent No.5 parked the offending vehicle Tractor and unnumbered trolley without parking light on the Public way. The deceased was driving the motorcycle along-with Siyaram Markam was coming from Village Korba. Since the offending vehicle was parked on the Public Way he dashed motorcycle to the Tractor and fell down and sustained severe injuries. He was taken to Govt. Hospital, Rajim where he was declared dead at around 06:30pm. The accident occurred as the respondent No.5 parked the offending vehicle without indicator or parking light. The report was lodged at Police Station Rajim upon which Crime No. 0/16 was registered and therefater crime No.36/2016 was registered at Police Station - Banduka as the accident occurred in its jurisdiction.
Respondent No.5 and 6 filed the written statement and pleaded that the offending vehicle was insured with the Insurance Company and denied the averments of the claim application. It was further pleaded that the owner and Insurance Company of the motorcycle driven by the deceased are necessary parties and they are not added by the respondent. There is a non-joinder of necessary parties. The respondent No.5 had valid and effective driving license and they have not violated any terms and condition of the insurance Policy. Hence, they are not liable to pay compensation. The accident occurred as a result of sole negligence of the deceased.
The appellant / Insurance Company also filed its written statement and denied the averments of the claim application. It was further pleaded that the report was lodged after two days. The accident occurred as a negligence of the driver of the motorcycle as he dashed to the stationary vehicle and did not have valid and effective driving licence. As the deceased was shown to be a pillion rider, the driver, owner and Insurance Company of the motorcycle are the necessary parties. There was no valid permit and fitness of the offending vehicle, driver of the offending vehicle did not have valid and effective driving license. There is a violation of the terms and condition of the Insurance Company and Insurance Company is not liable to pay the compensation.
On the basis of the above broad pleadings, the learned Tribunal as many as framed four issues and decided the same in favour of the respondent No. 1 to 4 / claimants and awarded the above stated compensation.
Learned Counsels for the appellant / Insurance submit that there is a violation of terms and condition of the Insurance Policy as the offending vehicle was being used for towing the other vehicle. He further submits that excessive amount of the compensation is awarded and interest at rate of 7.5% percent is awarded which is liable to be reduced.
Learned Counsel for the respondent No. 6 supports the award and submits that the offending vehicle was not being used for towing the other vehicle, this defense is not available to the Insurance company under Section 149(2) of the M.V. Act, just compensation has been awarded, therefore, the appeal has no merit and is liable to be dismissed.
Heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection.
Firstly this court would like to deal the submission with regard to excessive compensation having been awarded and whether the interest @ 7.5 % is on higher side. The date of accident is 21/02/2016. As per pleading of the claim application deceased was aged about 50 years and his profession is shown to be Doctor (private) having monthly income is Rs.20,000/-. Respondent No.1 Bhagwanteen Bai examined and deposed that the deceased was a private Doctor and he was earning Rs.20,000/- per month. Certificate for R.M.P. of the deceased vide Ex.P/23, endorsement certificate of the same is also filed as Ex.P/24. The B.A.M.S.(Alt.) certificate of deceased is filed and marked as Ex.P/25. From perusal of these documents it appears that deceased was practicing alternative medicine and was a Registered Medical Practitioner.
Looking to the evidence on record, the learned Tribunal assess the monthly income of the deceased to Rs.10,000/-. In the opinion of this Court it cannot be said to be excessive. Deceased was found to be 52 years and adding 10% of the future prospects, the learned Tribunal has awarded compensation in the following manner:
S.No.
Head
Calculation
1.
For loss of dependency
Rs.9,68,088/-
2.
For funeral expenses
Rs.15,000/-
3.
For loss of consortium
Rs.40,000/-
4.
For loss of estate
Rs.15,000/-
Total compensation
Rs.10,38,088/-
It is to be seen that Tribunal has deducted only one third income for personal expenses. There are four numbers of dependent shown in the claim application, therefore Tribunal could have deducted one fourth income from the personal expenses of the deceased. No parental consortium was awarded by the Tribunal. Therefore considering the entire evidence available on record, the award of compensation does not appears to be excessive warranting inference by this Court. Hence this contention is rejected. Now the question is whether the award of interest @ 7.5% is liable to be reduced for ready reference section 171 of M.V. Act is quoted below :-
Section 171 of the M.V. Act Award of Interest where any claim is allowed- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
The learned tribunal in its wisdom exercised the power under section 171 of M.V. Act and thereby awarded interest @ 7.5%.
Considering the fact and circumstances of the case particularly the evidence on record this court is not inclined to interfere with the award of interest by the learned Tribunal. This leads to the second submission with regard to the violation of terms and condition of the Insurance Policy. The submission of the learned counsel for the appellant is that the offending vehicle was used for towing the other vehicle which is violation of Insurance Policy. In this context to Section 149 (2) of the MV Act is reproduced as under:-
149.(2) No sum shall be payable by an insurer under sub-section(1) in respect of any judgment or a award unless, before the commencement of the proceedings in which the judgment or a award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side\car being attached where the vehicle is a motor cycle;or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification;or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
The statutory defense available to Insurance Company is envisaged in section 149(2) of M.V. Act. The defense as projected by learned counsel for appellant / Insurance company does not appear to be statutory defense under Section 149(2) of M.V. Act. In light of the above submissions of the learned counsel for the appellant with regard to violation of terms and condition of Insurance Policy is also negated. Apart from this there is no cogent evidence available to suggest that the offending vehicle was being used for towing any other vehicle rather from the evidence on record it is established that the offending vehicle was parked on the way without indicator on.
Consequently, the appeal fails and dismissed.