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Judgment
Pradip Mohanty, J.—These two appeals arise out of the common order dated 1.11.2001 passed by the 2nd Motor Accidents Claims Tribunal, Cuttack, in Misc. Case No. 994 of 1992. Hence, this judgment will govern both the cases.
The fact of the case, in brief, is that on 6.10.92 at about 2.30 P. M. while one Surendra Kumar Mantri (deceased) was going towards Kujanga in his bicycle, the offending truck bearing registration No. ORY 5525 coming from Paradip side in a rash and negligent manner dashed against the deceased near Kujanga Post Office as a result of which he received severe injuries on his person. The deceased was removed to the hospital and on the way he succumbed to the injuries. The claimants, being the mother, brother and sister of the deceased have filed the petition claiming compensation for the death of the only earning member of their family.
The opposite party No. 1- owner filed written statement but did not take part ,in course of hearing, Opp. party No. 2, the Insurance Company contested the case and denied the liability.
After considering the evidence on record, the learned trial judge allowed the case and awarded compensation of Rs. 1,08,000/-to the claimants and directed that the entire share of petitioner Nos. 2 and 3 and a sum of Rs. 50,000/- from the share of petitioner No. 1 shall be kept in fixed deposit in any Nationalised Bank. The award amount is payable by the Insurance Company.
3.The impugned judgment has been challenged by the Insurance Company in M.A. No. 375 of 2002 and by the claimants in M. A. No. 510 of 2002.
In M. A. No. 375 of 2002 the legality of the award passed against the Insurance Company is impugned on the ground of want of possession of a valid driving licence by the driver of the offending vehicle. It is contended that a specific plea having been taken in the written statement by the insurer that the driving licence seized during police investigation was found to have not been issued by the licensing authority, the impugned award cannot be sustained. Such contention does not hold good in the absence of clinching evidence in support of the plea of fake licence. In the decision reported in United India Insurance Company Ltd. Vs. Lehru and Others, , it has been categorically laid down by the apex Court that the Insurance Company cannot escape its liability towards third party on the ground that the driver had a fake licence. In order to avoid liability u/s 149(2)(a)(ii) of the Motor Vehicles Act, it must be shown that there is a breach on the part of the insured. The liability towards 3rd party cannot be avoided but the Insurance Company may recover the same from the insured on proof of the breach. Therefore, the only ground advanced by the Insurance Company in M. A. No. 375 of 2002 is devoid of merit and is not acceptable.
The learned counsel for the appellants in M. A. No. 510 of 2002 vehemently submitted that the quantum of compensation is too low under the circumstances of the case. It appears that the deceased was aged about 25 years and the learned Tribunal has assessed his income to be Rs. 750/- only per month. Taking into account the evidence on record, the assessment of the deceased''s income as held by the learned trial Judge is found to be on the lower side. Therefore, this Court finds it just to enhance the award amount to Rs. 1,25,000/- (rupees one lakh and twenty-five thousand) payable with interest at the rate of 9% from the date of the claim application.
Accordingly, Misc. Appeal No. 375 of 2002 stands dismissed and M. A. No. 510 of 2002 is partly allowed. The impugned judgment is modified to the above extent. No cost.
The L.C.R. be sent back forthwith.