United India Insurance Company Ltd v. Radha Mohan Paswan

Patna High Court MA No.929 of 2011 (5) dt.05-08-2013 The death of the son of the claimants-respondent No.1 occurred when the bus in which he was riding, turned turtle on the G.T. Road. The claim case in question was filed under Section 166 of the Act, setting up a claim of Rs. 3 lacs. The Tribunal upon consideration of the pleadings, the evidence adduced, formed an opinion that the claimants were entitled to a compensation amount of Rs. 5,76,000/- but taking into consideration that the claimants had assessed their loss of dependency at Rs. 3 lacs, awarded a compensation amount of Rs. 3 lacs after reducing the amount of Rs. 50,000/- paid to the claimant under Section 140 of the Act. The Insurance Company was directed to make payment of the balance amount of Rs. 2,50,000/- together with interest quantified at 7.5% payable from the date of filing of the claim case. This appeal has been preferred by the Insurance Company raising an issue of determination of multiplier and the invalidity of the driving license. According to the appellant, the multiplier should have been determined keeping in view the age of the claimant who is the father of the deceased but since the Tribunal consideration the age of the deceased for determination of the multiplier, the same is contrary to the settled legal position. Mr. Kumar, learned counsel for the appellant has further 3 Patna High Court MA No.929 of 2011 (5) dt.05-08-2013 with reference to the driving licence submitted that although the driver was entitled to drive only light motor vehicles and was not entitled to drive the mini bus, it was violation of the policy condition and thus the Insurance Company ought not to have saddled with the compensation amount. The argument of Mr. Kumar has been contested by Mr. Sahay appearing for the claimants who has relied upon judgment(s) of the Supreme Court reported in (2011) 10 SCC 634, 665 and 683 (Ibrahim Vs. Raju and Ors.) to submit that the object of the Tribunal/Courts has been consistently to arrive at a just compensation and if the Tribunal was of the opinion that the claimants were entitled to a compensation amount of Rs. 5,76,000/-, the hands of the Tribunal was not tied to award the said compensation to the claimants even if they had prayed for lesser compensation. I have heard learned counsel for the parties and I have perused the materials on record. I shall deal with each of the issues raised by the contesting parties separately. In so far as the issue of multiplier is concerned, taking into consideration the fact that the Tribunal has proceeded to determine the compensation amount on the basis of the loss of dependency as assessed by the claimants themselves, this Court does not deem it 4 Patna High Court MA No.929 of 2011 (5) dt.05-08-2013 necessary to express any opinion on this aspect of the matter for the simple reason that the compensation amount arrived at by the Tribunal by applying the multiplier on the basis of the age of the deceased, is not under challenge before this Court. In so far as the issue of invalid driving licence is concerned, the matter stands settled by the judgment of the Supreme Court rendered in the case of Swaran Singh reported in (2004) 3 SCC 297 which opinion has been reiterated in a subsequent judgment of the Supreme Court rendered in the case of Meena Variyal & Ors. reported in (2007) 5 SCC 428 and the relevant extract of paragraph 16 thereof is being reproduced hereinbelow for ready reference. “16.………….The breach of a policy condition has to be proved………..…………The question whether the owner has taken reasonable care to find out whether the driving license produced by the driver was fake or not, will have case………..….The amount that may be awarded to the Insurance Company against the insurer in an appropriate case could be recovered even by way of the enforcement of the very award…………….” to be determined Thus the view expressed by the Supreme Court on this issue answers the question raised by Mr. Kumar regarding the invalidity of the driving licence. The two issues raised before this Court by the appellants in this appeal having been answered, it is to be seen whether the 5 Patna High Court MA No.929 of 2011 (5) dt.05-08-2013 arguments of Mr. Sahay relying upon the judgment of the Supreme Court rendered in the case of Ibrahim Vs. Raju and Ors. (supra) would come to his aid for the purpose of enhancement of the compensation. It is admitted position that neither any appeal has been preferred by the claimant for enhancement of the award nor any cross appeal/cross objection has been filed by them in the present appeal which was filed as back as on 24.11.2011 and has remained pending since last 2 years. The legal position on this aspect is no more in controversy and stands settled by the judgment of the Supreme Court reported in AIR 2003 SC 674 (Nagappa Versus Gurudayal Singh & Ors.) in which their lordships have held that there is no restriction to exercise of power by the Tribunal or the Courts to enhance the compensation amount even if the amount claimed by the claimants is lesser than the amount arrived but having observed as such, whether such exercise could be done in an appeal preferred by the Insurance Company, stands answered by the judgment of the Supreme Court reported in (2011) 14 SCC 639 (Ranjana Prakash & Ors. Vs. Divisional Manager & Anr.) more particularly paragraph 18 thereof in which it has been held that the High Court cannot enhance a compensation in an appeal preferred by the owners/insurer for reducing the compensation nor it can 6 Patna High Court MA No.929 of 2011 (5) dt.05-08-2013 reduce the compensation in an appeal by a claimant seeking enhancement thereof. For the reasons aforementioned, neither the issue raised by the appellants nor the issue raised by the claimants warrants interference by this Court. This appeal is accordingly dismissed. Let the statutory amount deposited by the Insurance Company be remitted the Tribunal concerned for disbursement in accordance with law. Bibhash/- (Jyoti Saran, J)