The New India Assurance Company Limited vs Nathu Singh & Ors.

Hon'ble Pankaj Purohit, J. (Oral)

This is an appeal preferred by appellant-New India Assurance Company under Section 173 of the Motor Vehicles Act, 1988, assailing the judgment and award dated 29.02.2012 passed by learned Motor Accident Claims Tribunal/District Judge, Almora, in Motor Accident Claim Petition No.19 of 2008 Nathu Singh Vs. Dilip Yashwant Patil and Ors., whereby, a compensation of ₹2,50,000/- has been awarded in favour of respondent No.1-claimant against the appellant-Insurance Company and respondent Nos.2 and 3, with interest @6% per annum from the date of filing of the claim petition i.e. 26.07.2008 till actual payment.

The brief facts of the case are that on 26.02.2008 at about 4:00 p.m., Jagveer Singh @ Mantu (son of respondent No.1-claimant), aged about 21 years, was travelling in Tempo No. MH-08-BV-2641 on Kelve Road, Kelvegaon, near the S.T. bus stop, when the said tempo, allegedly being driven rashly and negligently, overturned, resulting into his death. The deceased was employed as a driver/worker with respondent No.2, Dilip Yashwant Patil, and was stated to be earning ₹6,000/-per month.

The respondent No.1-claimant, instituted the claim petition seeking compensation of ₹10,50,000/-. Learned Tribunal, upon consideration of the evidence on record, held that the accident occurred due to rash and negligent driving of the tempo and awarded compensation of ₹2,50,000/- with interest @6% per annum from the date of filing of claim petition i.e. 26.07.2008 till payment. Aggrieved by the said judgment and award, appellant-Insurance Company has preferred the present appeal.

The respondent No.1-claimant pleaded that the deceased, Jagveer Singh @ Mantu, was employed with respondent No.2, Dilip Yashwant Patil (owner of tempo), and was earning ₹6,000/- per month. It was pleaded that on 26.02.2008, while travelling in Tempo No. MH-08-BV-2641, the tempo was driven rashly and negligently, due to which, it overturned and the deceased sustained fatal injuries. The deceased was unmarried, but was supporting the claimant and his family. On these grounds, compensation of ₹10,50,000/-was claimed.

The appellant-Insurance Company denied the claim and disputed the alleged income and dependency of the deceased. It was pleaded that the deceased was unmarried and there was no dependent upon him. It was further pleaded that the vehicle was being operated in violation of the terms and conditions of the insurance policy and the Motor Vehicles Act, and that the claimant was required to establish the validity of the vehicle's documents, including the registration, permit and driving licence. The Insurance Company also denied its liability to pay compensation and pleaded that, if any liability arose, the same was upon the owner and driver of the vehicle.

Respondent Nos.2 and 3, owner and driver of the vehicle respectively, despite service, did not contest the proceedings and were proceeded ex parte.

Learned Tribunal framed the following Issues:

While deciding Issue No.1, learned Tribunal, on the basis of claimant’s affidavit and the testimony of witnesses, including the evidence regarding accident, post-mortem report and other documentary evidence, found that deceased Jagveer Singh @ Mantu died in the accident dated 26.02.2008 due to rash and negligent driving of Tempo No. MH-08-BV-2641. Accordingly, Issue No.1 was decided in favour of respondent No.1-claimant.

While deciding Issues Nos.2 and 3, learned Tribunal considered these Issues together. It found that the Insurance Company had failed to establish that the vehicle did not possess requisite documents at the time of accident or that the accident occurred due to violation of the terms of insurance policy. The evidence also did not establish the alleged overloading in a manner sufficient to absolve the Insurance Company of liability. Accordingly, Issues No.2 and 3 were decided against the Insurance Company.

While deciding Issue No.4, learned Tribunal assessed the deceased’s monthly income at ₹6,000/-and after considering the evidence regarding his earnings, and after deducted 1/3rd towards his personal expenses, assessed it at ₹4,000/-. Applying multiplier of 5, it assessed the loss of dependency at ₹2,40,000/-(₹4,000 X 12 X 5). A further sum of ₹5,000/- was awarded towards loss of estate and ₹5,000/- for funeral expenses, making the total compensation ₹2,50,000/-. The Tribunal accordingly held the claimant entitled to the said amount with interest at the rate of 6% per annum from 26.07.2008 till payment and directed the Insurance Company to satisfy the award.

Learned counsel for appellant-Insurance Company submits that learned Tribunal erred in fastening liability upon the Insurance Company. The offending vehicle was being operated in violation of terms and conditions of the insurance policy and the vehicle was carrying passengers in excess of its permitted capacity. It is further submitted by him that learned Tribunal failed to properly appreciate the evidence regarding validity of the permit, fitness and other requisite documents of vehicle. Learned counsel for appellant also challenged the assessment of compensation, particularly the income of deceased and multiplier applied by Tribunal, and submitted that the award was liable to be set aside or suitably modified.

Heard learned counsel for the parties and perused the record. The principal contention of appellant-Insurance Company is that offending vehicle was being operated in breach of terms and conditions of the insurance policy. The said contention, however, is not borne out from the documentary evidence available on record. The insurance policy was admittedly in force on the date of accident. The permit relating to offending vehicle was valid from 16.01.2004 to 15.01.2009 and authorized the vehicle to ply in State of Maharashtra. The accident having occurred on 26.02.2008 in State of Maharashtra, vehicle was accordingly covered by a valid permit on the date of accident. The registration certificate and permit further disclose the unladen weight and gross vehicle weight of the vehicle, as well as its authorized load capacity. Appellant-Insurance has not brought on record any reliable material to establish that the vehicle was actually carrying a load in excess of the permissible limit at the time of accident. Mere assertion of overloading, in the absence of evidence establishing the actual load carried by vehicle at the relevant time, cannot itself constitute proof of breach of the policy conditions. Likewise, the driving licence placed on record was valid during the relevant period. Thus, the material available on record does not establish that the vehicle was being plied either without a valid permit or in breach of any proved condition of the insurance policy.

It is well settled that the insurer, in order to avoid its statutory liability on the ground of breach of a policy condition, is required to establish the alleged breach by cogent evidence. In the present case, appellant-Insurance Company has failed to discharge that burden. The finding recorded by learned Tribunal fastening liability upon the Insurance Company, therefore, does not suffer from any perversity or illegality warranting interference by this Court.

So far as the quantum of compensation is concerned, learned Tribunal assessed the deceased’s monthly income at ₹6,000/- and after considering the evidence regarding his earnings, and after deducted 1/3rd towards his personal expenses, assessed it at ₹4,000/-. Applying multiplier of 5, it assessed the loss of dependency at ₹2,40,000/-(₹4,000 X 12 X 5). A further sum of ₹5,000/- was awarded towards loss of estate and ₹5,000/- for funeral expenses, making the total compensation ₹2,50,000/-. Appellant-Insurance Company has not demonstrated any such error in the assessment as would warrant interference with the award at its instance. The award, therefore, calls for no interference.

Accordingly, the present appeal is dismissed. The judgment and award dated 29.02.2012 passed by the Motor Accident Claims Tribunal/District Judge, Almora in MAC Case No.19 of 2008 is hereby affirmed.

The amount of ₹2,00,000/- already deposited by the appellant pursuant to interim order dated 11.05.2012 shall be adjusted against the awarded amount of ₹2,50,000/-. Appellant shall deposit/pay the remaining amount of ₹50,000/- along with interest thereon @6% per annum and from the date directed by learned Tribunal within one month from today. The amount already deposited, together with the interest accrued thereon, shall be dealt with by learned Tribunal in accordance with the award and law. The amount, if any, released in favour of the respondent No.1/claimant shall be adjusted.

Let the T.C.R. be immediately sent back to the learned Trial Court for consignment.