ICICI Lombard General Insurance vs Mathurabai Devendra Wankhede and Others

R.K. Deshpande, J. (Oral) - In a claim petition filed under Section 163A of the Motor Vehicles Act, 1988, registered as M.A.C.P. No. 174 of 2008, the Motor Accident Claims Tribunal, by its award dated 2392013, has held the respondent No. 5Ganesh s/o Bhumaka Mavaskar, the owner of the vehicle, i.e. Hero Honda Motor Cycle bearing registration No. MH27/AE9464, liable to pay the compensation of Rs. 3,68,000/ to the respondent Nos. 1 to 4/claimants on account of death of one Devendra Jotirao Wankhede, with interest at the rate of 6% per annum from the date of filing of the petition till its realization. The Tribunal has further directed the appellantInsurance Company to deposit an amount of compensation payable to the claimants and then to recover the said amount from the respondent No. 5, the owner of the vehicle.

The points for determination are as under :

(i) Whether the award passed by the Motor Accident Claims Tribunal directing the appellantInsurance Company to deposit the amount of compensation and then to recover it from the owner of the vehicle is liable to be interfered with? And

(ii) Whether the Tribunal was right in awarding compensation of Rs. 3,68,000/?

The deceased was the occupant in the autorickshaw bearing registration No. MH27/P5208, which was dashed by Hero Honda Motor Cycle bearing registration No. MH27/AE9464 on 2992008 near shivar of Village Tondgaon, near Triveni Sangam on ParatwadaChandur Bazar Road. The motor cycle was insured with the appellantInsurance Company on the date of occurrence of the accident. Undisputedly, the Act Policy of insurance was in force. So far as the appellantInsurance Company is concerned, the deceased would be a third party, and in a claim petition under Section 163A of the Motor Vehicles Act, the aspect of negligence has no role to play.

In the light of the aforesaid factual position, the finding of the Tribunal that there was a breach of policy on the part of the rider of the Motor Cycle, needs to be considered. The finding in para 8 of the award of the Tribunal is that one Pravin Bhaiyyaji Taide was the rider of the Motor Cycle at the time of the accident and the licence possessed by him to drive the said vehicle was valid for the period from 1412005 to 1312008. The accident occurred on 2992008, and, therefore, the Tribunal has answered the issue in the affirmative, holding that on the date of accident, the rider was not possessing a valid driving licence and there was a breach of policy.

No doubt, that the Tribunal has not recorded the finding that the appellantInsurance Company along with the owner of the Motor Cycle in question are jointly and severally liable to make the payment of compensation. This, however, by itself, shall not absolve the appellantInsurance Company from discharging its liability towards third party whose risk is covered by the "Act Policy" and to frustrate the very object of compulsory insurance, more particularly when the deceased was not in any manner contributing to the negligence resulting in his death. The appellantInsurance Company is, therefore, bound to pay the amount of compensation to the claimants, who are the dependents of the deceased, as the policy of insurance was valid and subsisting on the date of occurrence of the accident in respect of the vehicle, which is the Motor Cycle in question.

The question is of the appellantInsurance indemnifying the owner of the said vehicle. In the absence of any finding that the appellantInsurance Company was jointly and severally liable to pay the compensation, the Tribunal was right in holding that it shall be open for the appellantInsurance Company to recover the amount paid to the claimants from the owner of the vehicle on the ground that he is not entitled to be indemnified on account of breach of policy. Hence, no fault can be found with the said view taken by the Tribunal.

On the aspect of quantum of compensation, it is the contention raised by Shri Pophaly, the learned counsel for the appellantInsurance Company, relying upon the postmortem report at Exhibit 35, that the age of the deceased is shown as 50 years in the said report. Hence, according to him, the multiplicant of 11 was required to be applied in the present case as against the multiplicant of 13.

Undisputedly, in the claim petition, the age of the deceased is shown as 48 years. This fact is not disputed. The claimants had entered the witnessbox and deposed about the age of the deceased. The appellantInsurance Company could not elicit anything adverse from the claimants on the question of age proof of the deceased, except putting the suggestion that false documents are produced in support of the age proof of the deceased. None of the documents placed on record can constitute relevant evidence to show the age of the deceased. If the appellantInsurance Company wanted to raise the dispute regarding age of the deceased, such a stand should have been taken in the written statement so that appropriate issue could have been framed and the parties could have led evidence on this aspect of the matter. Shri Pophaly, the learned counsel for the appellantInsurance Company, does not dispute that if the age of the deceased is considered as 48 years, then the multiplicant of 13 was properly applied by the Tribunal. In view of this, no interference is called for in the total amount of compensation determined by the Tribunal.

In the result, the appeal is dismissed. If the appellant Insurance Company has deposited any amount, the same shall be permitted to be withdrawn by the claimants along with interest, if any, accrued thereon. No order as to costs.