The New India Assurance Co. Ltd. vs Shailesh Keshav Bhave & Ors.

. By consent of both sides heard finally at the stage of admission.

This Appeal is filed by the Insurer taking exception to the judgment and award dated 22^nd March 2018 passed in MACP No.1046 of 2010 on the ground of quantum as well as breach of condition of policy. Whereas the Claimant seeks enhancement of the compensation by filing Cross objection.

The facts involved in this case are not in dispute with regard to the unfortunate death of a young boy aged about 16 years in the motor vehicular accident. The Ownership and Insurance coverage of the offending vehicle is not in dispute. The only is dispute arises in this Appeal and Cross-Objection with regard to the correctness or otherwise of the quantum of compensation decided by the Tribunal. Similarly, the Court has to see as to whether the case is made out by the Appellant-Insurer of breach of condition of policy by insured.

The learned counsel for the Appellant submits that the issue of breach of condition of policy was specifically raised in the Written Statement, so also evidence was led before the Tribunal to substantiate the same. It is her contention that the Tribunal has erred in not taking into consideration the evidence in proper perspective and which led to rejection of the said defense of the Insurer. On the point of the quantum it is her submission that, the amount of the Rs.8,000/- considered by the Tribunal by way of notional income is on higher side.

The learned counsel for the Claimant supports the finding recorded by the Tribunal in respect of the defence of breach of policy. She drew attention of the Court to the fact that there is admission on the part of the witness of the Insurer that there is no condition in the policy of having a fitness certificate. It is argued that the Tribunal has committed error in accepting the notional income @ Rs.8,000/-. She placed reliance on judgment of V.Mekala V/s. M. Malathi & Anr^{11.Civil Appeal No.4880 of 2024 (Arising out of SLP© No.16561 of 2013) dated 25/4/14} to argue that the notional income be considered at least at Rs.10,000/-

Perusal of the evidence on record indicates that the Claimant has led evidence to show that, the deceased was a bright child and had bright future too. The Tribunal has also taken into consideration the said aspect for the purpose of granting future prospects @ 50%. The Tribunal however has accepted the notional income @ Rs.8,000/-. By following judgment in case of V.Mekala (Supra), the notional income is accepted @ Rs.10,000/-, in the instant case.

Insofar as, future prospects are concerned, the impugned award records reason for granting 50% future prospects. In the facts of the case the said findings are not perverse in order to cause interference therein. However, the Tribunal has failed to grant consortium to the Claimants that they are entitled to receive Rs.40,000/- each on that head.

Insofar as the defence of the Insurer about the breach of condition of Policy is concerned, even though the Insurer has led evidence by examining of the Officer. There is an admission of witness of the Insurer to the effect that, there is no condition policy requiring fitness certificate. The contract of Insurance does not provide for the discharge of the liability of the Insurer for want of fitness certificate. Apart from this, it is clear that, at subsequent point of time at least fitness certificate is obtained. This indicates that vehicle was fit for transportation during the relevant time.

Having regard to the afore-stated discussion, the Appeal is dismissed and Cross-objection is partly allowed as per the calculation herein below.

The Original Claimants would be entitled to receive a sum of Rs.4,04,000/- along with interest @ 8% per annum from date of Claim Petition till realization of amount.

Rest of the judgment and award stands, unaltered.

The Claimants to pay additional Court fees as per Rules.

Record and Proceedings be sent back to the Tribunal.

Statutory amount be transmitted to the Tribunal as per Rule.

All pending Applications are disposed of.