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Judgment
N.K. Mody, J.—This is an appeal filed by the claimants u/s 173 of the Motor Vehicles Act against an award dated 13/05/2009 passed by 2nd Additional Motor Accident Claims Tribunal, Alirajpur in claim Case No. 123/2009. By the impugned award, the Claims tribunal has awarded a total sum of Rs. 1,54,000/- with interest to the claimants for the death of one Revla who died in vehicle accident and Respondent No. 2/Insurance Company was exonerated. Short facts of the case are that the appellants filed a claim petition before the learned tribunal alleging that on 23/06/2007 Revla, aged 14 years was going on a motor bike bearing registration No. MP-46-M-8865 which was being owned and driven by respondent. No. 1 and deceased Revla was pillion rider and carrying metal stone in a gunny beg. It was alleged that because of rash and negligent driving of respondent No. 1 deceased Revla fell down and passed away. It was alleged that claim petition be allowed and Compensation be awarded.
Respondent No. 1 filed written statement wherein the allegations made in claim petition were denied. However, it was alleged that in case the claim petition is allowed then the respondent No. 2 is liable for payment of compensation. Claim petition was also contested by respondent No. 2 on various ground including on the ground that respondent No. 1 was not possessing driving licence at the relevant time and goods was being carried on motor bike which was strictly prohibited and the risk of pillion rider was not covered under the policy. It was prayed that the claim petition filed by the appellants be dismissed.
After framing of issues and recording of evidence, learned tribunal allowed the claim filed by the appellants by awarding a sum of Rs. 1,54,000/- Break-up of the amount awarded is as under:-
Learned tribunal exonerated respondent No. 2 on account of violation of the terms of policy. Hence this appeal.
Learned counsel for the appellants argued at length and submits that the amount awarded is inadequate. Income assessed on notional basis and on the other heads also the amount awarded is on lower side. Learned counsel further submits that since the offending vehicle was insured with respondent No. 2 and the deceased was minor, therefore, the learned tribunal committed error in exonerating respondent No. 2. It is submitted that amount of compensation be enhanced and the respondent No. 2 be also held liable for the compensation.
Learned counsel for respondent No. 1 submits that the amount awarded by the learned tribunal is just and proper and no case of further enhancement is made out. So far as liability is concerned, since offending vehicle was insured, therefore, learned tribunal committed error in exonerating respondent No. 2. It is submitted that appeal be allowed in part and findings regarding exoneration of respondent No. 2 be set aside. Learned counsel for respondent No. 2 supports the contention of the counsel for the respondent No. 1 so far as it relates to amount of compensation. So far as findings relating to exoneration of respondent No. 2 is concerned, it is submitted that the exoneration of respondent No. 2 is based on due appreciation of evidence on record which is just and proper and needs no interference, hence the appeal be dismissed.
From perusal of the record it is evident that learned tribunal has exonerated the respondent No. 2 on three grounds. Firstly, on the ground that the deceased was pillion rider and risk of pillion rider is not covered under the policy. Secondly on the ground that offending vehicle was carrying goods at the relevant time which was strictly prohibited under the policy. Thirdly that respondent No. 1 was possessing learner''s licence and did not follow the procedure laid down under the law for driving a vehicle by learner. So far as findings of learned tribunal relating to the risk of pillion rider is concerned, since the policy was comprehensive and as per circular dated 16/11/2009 issued by IRDA the risk of pillion rider is also covered in a package policy, therefore, on that ground respondent No. 2 cannot be exonerated. So far as the fact that respondent No. 1 was possessing the learner''s licence is concerned Section 8 of the Motor Vehicles Act deals with grant of learner''s license. Rule 3 of the Central Motor Vehicles Rules, 1989 deals with the learners licence which reads as under:-
General - The provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or granting experience in driving with the object of presenting himself for a test of competence to drive, so long as-
(a) such person is the holder of an effective learner''s license issued to him in Form 3 to drive the vehicle;
(b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and
(c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in red on a white background as under:
Note.- The painting on the vehicle or on the plate or card shall not be less than 18 centimetres squares and the letter "L" shall not be less than 10 centimetres high 2 centimetres thick and 9 centimetres wide at the bottom;
Provided that a person, while receiving instructions or gaining experience in driving a motorcycle (with or without a side-car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b).
In this regard in the evidence which has adduced by respondent No. 2 nothing has been stated by the respondent No. 2. No effort was made by the respondent No. 2 to call the respondent No. 1 for the purposes of cross-examination to prove that the respondent No. 1 was driving the offending vehicle in violation of the provisions relating to learner''s licence. Similarly nothing has been stated by the respondent No. 2 in evidence that which term of the policy was violated which restrains the insurer to carry the goods. In the circumstances on these grounds the learned tribunal was not justified in exonerating respondent No. 2.
So far as the amount of award is concerned since it was a case of child death and the accident is of the year 2007, it appears that the amount awarded is inadequate and the same is further enhanced by Rs. 75,000/-. Since the respondent No. 1 was present before the learned tribunal and did not turn-up to give his statement and is also duly represent before this court, therefore, in the opinion of this court at the first instance respondent No. 2 shall deposit the amount awarded by the learned tribunal and enhanced by this court. The enhanced amount of Rs. 75000/- shall carry 8% per annum from the date of application. The amount awarded shall be deposited by the Insurance Company with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant No. 2 in the nearest Nationalized Bank, in the area where the appellant No. 2 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No. 2 which shall be opened by the appellant No. 2 from where appellant No. 2 can withdraw the amount as per needs. However, on an application by the appellant No. 2 this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant No. 2.
So far as liability of respondent No. 2 is concerned the case is remanded back to the learned tribunal to re-decide the liability after giving an opportunity to adduce the evidence to both the parties i.e. respondent No. 1 & 2. Parties are directed to remain present before the learned tribunal on 06/1/2013. With the aforesaid observations, the appeal stands disposed of.