The Manager Authorised Signatory vs Shivanand Shankar and Others

L. Narayana Swamy, J.—These appeals are filed by the insurance company, being aggrieved of the judgment and award, passed by the Claims Tribunal, Belgaum in the claim petitions filed by the respondents, both on the ground of liability as well as quantum on various grounds.

It is submitted by the learned counsel for the appellant that the driver of the motor cycle had no valid driving licence and he drove the vehicle with two pillion riders which is not permissible as per Rule 28 of the Motor Vehicle Rules thus contributing entirely to the accident. There is also FIR registered against the owner of the motor cycle having entrusted the vehicle to the person having no valid driving licence. The entire contributory negligence, on the part of the driver of the motor cycle, has not been considered by the claims tribunal. It is further submitted that instead of deducting 50% in the income, the claims tribunal has deducted one-third which is contrary to proposition laid down by the Apex Court. By referring sketch Ex. P4 drawn by the I.O. the learned counsel submitted, the rider of the motor cycle came in a wrong side, hence contributed to the accident. Ex. P7 charge sheet is also referred to substantiate the contention of two pillion riders traveled in the motor cycle.

On the other hand, the learned counsel for the claimants submits that driver of the truck has been charge sheeted both under Indian Penal Code as well as under M V Act. Not possessing driving licence by rider of the motor cycle or carrying two pillion riders, may be an offence but that cannot exonerate the insurance company from liability. From the sketch produced and marked as Ex. P4, the driver of the truck came to the right side of the road and dashed against the motor cycle. It is the entire rash and negligent driving on the part of the truck driver which has resulted in causing accident and death of three persons. If the driver of the truck had taken little care and caution, lives of three persons could have been saved. It is submitted that in a petition filed under Section 163-A the deduction is admissible only by one-third and not 50% as contended by the learned counsel for the appellant. Even with regard to multiplier, it is the age of the deceased, which has to be taken into consideration and not the age of parents and thus supported the judgment and award passed by the claims tribunal.

The learned counsel for the claimants placed reliance on unreported judgment of this Court in MFA No. 101262/2014 DD 28.10.2014 and contended that since there is material to demonstrate that driver of the offending vehicle drove the vehicle in a rash and negligent manner and is the cause for causing accident, and therefore not possessing valid driving licence or carrying two pillion riders by the driver of the motor cycle is not a ground to exonerate the insurance company from its liability to indemnify owner of the offending vehicle.

The learned counsel for the claimants also placed reliance on the judgment in Devi Singh Vs. Vikram Singh and Others, and referred Para-14 to advance the contention that violation of Section 128 of M V Act per se does not lead to presumption of contributory negligence.

I have heard both the learned counsel for parties. Firstly in order to find out, at whose negligence, the accident has taken place, I have examined the evidence of PW-1 to PW-3. It is their evidence that they were on the left side of the road and the vehicle, which was coming from the opposite direction came on its right side violating the traffic rules and dashed against the motor cycle causing the accident and due to its impact all the three died at the spot. In support of their evidence, Ex. P3 panchanama, Ex. P4 sketch, Ex. P5 M V Report which disclose that the truck was on right side of the road. The accident spot indicated, on right side of the road to the direction of the truck, thereby the driver of the truck has violated the traffic rules and caused the accident. When this is the material, available on record, as held by this Court, as well as the Supreme Court in the aforesaid citations, the driver of the motor cycle not possessing valid driving licence or carrying two pillion rider cannot exonerate insurance company from its liability to indemnify owner of the truck.

Further in United India Insurance Company Ltd. Vs. Sunil Kumar and Another, , the Hon''ble Supreme Court in Para-8, has held that compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an inquiry under Section 163-A . Section 163A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Hence the contention of the learned counsel for the appellant regarding liability either on the ground of contributory negligence or on the ground of not possessing valid driving licence or carrying two pillion riders, is liable to be rejected and it is accordingly rejected.

The next submission of the learned counsel for the appellant relates to deduction, which should be 50% and not one-third and so far as the multiplier, age of the parents has to be taken into consideration and not age of the deceased as is done by the Claims Tribunal. In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, of the judgment deals with standard deduction as one-third on account of personal living expenses of the deceased and with regard to multiplier, it is the age of the deceased, with reference to the provisions of Section 163-A , which has to be taken into consideration and not the age of the parents, as contended by the learned counsel for the appellant. Therefore, the contentions of the learned counsel for the appellant that deduction shall be one-third and age of the parents has to be taken into consideration cannot be agreed and they are accordingly rejected.

As per schedule-II, towards conventional head the maximum amount that could be awarded is only Rs. 4,500/-. In the instant case, the claims Tribunal has awarded Rs. 40,000/- in all the cases, which has to be reduced to Rs. 4,500/-. To that extent, the judgment and award of the claims tribunal is erroneous and is liable to be modified.

Accordingly, all the three appeals are partly allowed. The judgment and award of the claims tribunal in all the three appeals are hereby confirmed except with regard to compensation awarded under conventional head which is restricted to Rs. 4,500/-.

The amount in deposit is directed to be transmitted to MACT.