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Judgment
K.N. Keshavanarayana, J.—Though these appeals are listed today for orders, by consent of the learned counsels appearing on both sides, matters are heard for final disposal. These appeals, one by the Insurer and other by the claimants are directed against the judgment and award dated 25.09.2008 passed by the Civil Judge (Sr.Dn.), Member, MACT, Muddebihal, in MVC No. 177/2006.
The occurrence of the accident involving the motor vehicle bearing Registration No. KA.28/6736 at about 1.30 p.m. on 23.06.2007 on Muddebihal-Basarakod Road and the consequent death of Basalingappa @ Raju, a passenger in the said vehicle is not in dispute. In respect of the death of the said Basalingappa, his mother and sister filed claim petition seeking compensation alleging that the accident was due to the negligent driving of the said vehicle by its driver. The claim petition was filed against the owner and insurer of the offending vehicle. Both of them appeared before the Tribunal pursuant to service of notice and contested the petitions. The owner of the offending vehicle contended that the vehicle was validly insured with the United India Insurance Co. Ltd. and the policy was in force as on the date of the accident, therefore, he is entitled to be indemnified by the insurer.
The insurer in its objection admitted the issuance of policy and its validity as on the date of the accident, however, sought to absolve it from the liability on the ground that there has been violation of the terms and conditions of the policy in as much as the driver of the vehicle did not possess a valid and effective driving licence to drive that class of vehicle which, was involved in the accident. In other words, it was the contention of the insurer that the vehicle being a transport vehicle, the driver did not possess a licence to drive the transport vehicle.
The parties led evidence in support of their rival contentions. The Tribunal on appreciation of oral and documentary evidence, by the judgment under appeal, held that the accident was due to the negligence of the driver of the offending vehicle, in which the deceased was proceeding as a passenger and therefore, the claimants are entitled for compensation. The Tribunal for the purpose of computing Loss of Dependency took last pay drawn by the deceased working as Village Accountant and after doubling the same, took average as Rs. 9,473/- and by deducting 1/3rd of the same and by adopting the multiplier of ''17'', computed the Loss of Dependency at Rs. 12,91,048/-. To this, the Tribunal awarded Rs. 5,000/- to each of the claimants towards loss of love and affection, Rs. 2,000/- towards transportation of dead body and Rs. 3,000/- towards funeral expenses. Thus, the Tribunal in all awarded Rs. 13,06,048/- and directed the insurer to pay the said amount with the interest at 6% pa. from the date of the payment till date of realization. Being dissatisfied with the quantum of compensation, the claimants have presented MFA No. 30557/2008, while being aggrieved by the award saddling the liability to satisfy the award, the insurer presented MFA No. 30043/2009.
I have heard learned counsel appearing on both sides. Perused the judgment and award under appeal. The points that arise for consideration are,-
i) Whether the Tribunal is justified in saddling the liability of satisfying the award on the insurer of the offending vehicle;
ii) Whether the compensation awarded by the Tribunal is just and proper;
As noticed supra, the insurer has not disputed the issuance of policy and its validity as on the date of the accident. The vehicle involved in the accident is a passenger carrying vehicle, in other words, it is a transport vehicle. The insurer sought to absolve it from its liability contending that the driver of the offending vehicle did not possess the licence to drive transport vehicle. Since the insurer took-up such a contention, the burden of establishing the same is on the insurer.
It is well-settled by catena of decisions that though this factor is a negative factor, still the burden of establishing the same is on the insurer. In the case on hand, the insurer except taking up such contention, has not placed any evidence in this regard. No doubt, the owner of the vehicle had entered appearance and had filed its statement of objections. It is the contention of the learned counsel for the insurer that since the owner of the vehicle in his objection had specifically contended that the driver possessed valid and effective driving licence to drive class of vehicle involved in the accident, it was incumbent upon the owner of the vehicle to have either produced the driving licence or to furnish the particulars of the driving licence and since the owner has not done so, the insurer will have to be held to have discharged its initial burden. I find no substance in this contention. It was the insurer who took-up the contention that the driver did not possess valid driving licence. In order to exonerate it from its liability to satisfy the award, it is for the insurer to take such steps to discharge its burden. As observed by the Apex Court in several decisions, one of the steps which the insurer could take-up in pursuit, of discharging its initial burden would be calling upon the owner or driver of the offending vehicle either to produce the driving licence or to furnish the necessary particulars and/or call upon the owner and the driver of the offending vehicle to depose before the court as its witness. In the case on hand, no such steps have been taken by the insurer.
Learned counsel for the insurer sought to place reliance on the decision of this court in The Oriental Insurance Co. Ltd. Vs. Chikkegowda and Others, to contend that the owner of the vehicle was under an obligation to furnish necessary particulars regarding driving licence. I am afraid, the insurer could draw any sustenance from this decision for the reason that, in this decision, this court has considered the requirement of the claimant to furnish the minimum particulars regarding insurance policy. This decision does not deal with the issue of driving licence, therefore, the said decision has no application to the facts of the case on hand. In the absence of any evidence placed by the insurer, in my considered view, the Tribunal is justified in saddling the liability of satisfying the award on the insurer. There is no illegality or perversity in the said finding recorded by the Tribunal.
With regard to the quantum of compensation awarded by the Tribunal is concerned, there is no dispute that the deceased was working as a Village Accountant, thereby he was a Government Servant. There is also no serious dispute that he was drawing monthly salary of Rs. 6,987/-. He was aged about 28 years and a bachelor. As laid down in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , since the deceased was a Government Employee having assured employment and he was aged about 28 years, 50% of his last pay drawn should be added to his existing salary towards the future prospects. 50% of Rs. 6,987/- would be Rs. 3,493.50 and the total works-out to Rs. 10,480.50. However, the method adopted by the Tribunal in doubling the last pay drawn and thereafter taking average, is not recognized by any law or the precedent. Therefore, the method adopted by the Tribunal is not proper. Therefore, the monthly income of the deceased for the purpose of finding out the loss of dependency will have to be taken as Rs. 10,480.50. Admittedly the deceased was a bachelor aged about 28 years and the claimants are his mother and sister. As held in Sarla Verma''s case referred to supra, in case of bachelors, 50% of the income of the deceased should be deducted towards his living and personal expenses. Therefore, the monthly loss of dependency works-out to Rs. 5,240.25. The Tribunal has rightly adopted the multiplier of ''17'' referable to the age of the deceased. On this basis, the total loss of dependency works-out to Rs. 10,69,011/- as against 12,91,048/- awarded by the Tribunal. To this extent, the compensation awarded by the Tribunal under this head requires to be reduced.
The Tribunal has awarded Rs. 5,000/- to each of the claimants towards loss of love and affection. In my considered opinion, this award is on the lower side. Having regard to the facts and circumstances of the case, in my considered opinion, the interest of justice would be met by enhancing the compensation under this head in all to Rs. 25,000/-. The Tribunal has not awarded any compensation towards loss of estate. The claimants are entitled for Rs. 25,000/- towards loss of estate. The Tribunal has awarded a meager amount of Rs. 2,000/- towards transportation of dead body and Rs. 3,000/- towards funeral expenses. In my considered opinion, this requires to be enhanced to Rs. 10,000/-. Thus, the claimants are entitled for Rs. 11,29,011/-, which is rounded-off to Rs. 11,29,000/-, as against Rs. 13,06,048/-.
In view of the above, the appeal filed by the insurer deserves to be allowed-in-part, while the appeal filed by the claimant deserves to be dismissed. In the result, MFA No. 30043/2009 is allowed- in-part. The judgment of the Tribunal saddling the liability on the appellant-Insurance Company to satisfy the award is hereby affirmed. The compensation payable to the claimants awarded by the Tribunal at Rs. 13,06,048/- is reduced to Rs. 11,29,000/-. The appellant-Insurer is directed to pay the compensation amount, if already not deposited, together with interest, as ordered by the Tribunal within four weeks from today. The compensation amount determined by this court shall be apportioned and disbursed amongst the claimants in the same ratio as indicated in the award of the Tribunal.
MFA No. 30557/2008 filed by the claimants is hereby dismissed.
Office to draw-up the award accordingly.