BILASPUR fC.G.l v. Panchu @ Panchuram Sahu

Judgment

#1. This is an appeal filed by the injured/claimant under Section 173 of the Motor Vehicles Act, 1988 (henceforth Tthe IVW Act' ) seeking enhancement of ^- compensation awarded Second Additional Motor Accidents Claims Tribunal^ Mahasamund "(henceforth 'the Claims Tribunal' ) in Claim Case No.127/2005 vide award dated 3.12.2005 whereas cross objection (M.(c).P. No.2018/2006) Insurance Company seeking exoneration liability^ fastened upon it by the Claims Tribunal- Therefore^ appeal enhancement compensation as v-7'ell as cross objection are being

disposed of^by this common order- ^y

#2. Learned Claims Tribunal^ vide impugned award, has partly allowed the claim petition filed by the claimant under Section 166 of the / Act and awarded compensation to the tune of ? I/IO^OOO/- along with interest @ 6% per annum from the date of filing of claim petition actual payment for' the \--..-...-^ . multiple injuries resulting in permanent disability to the extent of 45%^ fastening the. 1'iability of payment compensation respondent No.3/Insurance Company. 3, In aforesaid Insurance Company has taken a plea, by filing cross objection^ that the offending vehicle being a Mahindra Max bearing registration No.CG-05-3346 was insured for / private purpose sanctioned sitting capacity is nine v^-hereas on the date of accident 18 persons travelling said vehicle excess of its sanctioned capacity and, thus^ it is a breach of terms of policy conditions and^ therefore the Insurance Company is not . liable to pay any compensation.

#4. Shri Raghvendra Pradhan^ learned counsel appearing for the appellant/claimant would submit that the Tribunal has fallen in error in assessing the notional income of the deceased as ? IS^OOO/- per annum as the c.1aimant is a Tractor Mechanic at fssssass^ ^ y the time of accident a.nd used to earn ? 150/- per day.

#5. Mr. A.K< Anthalay^ learned counsel respondent No,3/Insurance Company would submit that the Tribunal has fallen in error in fastening the liability of payment of compensation" upon Insurance Company as there is overwhelming evidence available on record to . hold that Insurance Company is liable to pay compensation as there-was a breach of terms of the policy conditions and therefore^ submits that cross objection filed by the Insurance Company be allowed and the Insurance Company be exonerated from its liability. The said submission was opposed by Shrr Shivendu Pandya, learned counsel appearing • for ,.the respondent No< 1 -driver of the r>w^' vehicle. 6, On pleading parties, following points would arise for determination of this Court. ^(i)Whether the finding of fact recorded by the Tribunal holding Insurance Company is liable to make payment of compensation is liable to be set aside by granting the respondent- cross-objection Insurance Con-pany ?/' (ii) Whether the compensation awarded by enhanced. deserves Tribunal Claims ^ ^ ANSWER TO POINT N0. (i) 7, The respondent No< 3/Insurance Company taken a speci^^ plea by filing cross objection that the offending vehicle in question was registered as 3 private vehicle by Regional Transport Office/ and it was insured by the Insurance Company for private \.--' purpose on the date of accident but it was being us.ed for commercial purpose, and^ therefore, it is a breach policy conditions, Apart. this, sanctioned capacity of the offending vehicle was nine whereas on the date of accident 18 persons were sitting in the said vehicle which is the violation of policy conditions and, therefore, the respondent No.S/Insurance Company is not liable for payment of compensation. 8, In order to prove the aforesaid fact before the Tribunal^ respondent No•3/Insurance Company examined Shri Deepak Kumar Thawait (NAW-3)- Investigating Officer^ deposed before Tribunal^ that on being authorized by the Insurance Cc?mpany he has submitted investigation report with regard to age of the deceased and about their income and his report is based upon information supplied by claimants. Apart from this, no other evidence has been brought on record by the Insurance Company to prove the fact of alleged breach of terms of the insurance policy- |^as|jv^' ^ T" The Tribunal, after considering the evidence Deepak Kumar Thawait (NAW-3), held that evidence is based on probabilities and he has not made any enquiry during the course of investigation and there is no other evidence with regard to the alleged use by owner of the vehic.ie as a commercial \-'' vehicle by accepting fare. »

#10. Shri Shiv Prakash Agrawal (NAW-2) - owner of the offending vehicle has been examined and he has clearly denied the suggestion that vehicle was being used for cominercial purpose. Panchu @ Panchu Ram (N?iW~15- driver of the offending has also been examined before the Tribunal and he has also denied the use of vehicle for 'carrying passengers. These witnesses '-subjected lengthy examination but nothing has been brought on record to hold that the vehicle in question on the date of accident was being used for commercial purpose.

#11. The lav7 is vvrell settled, The burden to prove violation of policy conditions is upon the insurance company. In Narcinva V. Kamat and another v. Alfredo Antonio Doe Martins and others\ the Supreme Court held thus: ^14. •/• . • The burden to prove that there was breach squarely placed shoulders insurance contract (1985) 2 SCC 574 ^w^: nl.'lie^ s ..:.^y a. enable discharged contract insurance company. It could not be said to question in cross-examination^ The second appellant wa.s under no obligation to furnish evidence insurance company to . wriggle out its liability under R<T.A. licence keeps a record of the licences issued and renewed by it. The insurance company could evidence produced substantiate its allegation. Applying the test who would fail if no evidence is. led^ insurance company.// answer 1s the issues insurance- driving obvious Further ^

#12. In view of above settled legal position an.d in view of the aforesaid discussion, it cannot be said Tribunal committed illegality holding Insurance Company failed establish the violation of policy conditions andy therefore^ Tribunal has rightly fastened the K liability payment compensation respondent No. 3/Insurance Corapany warranting interference by this Court* V,;'

#13. Thus, objection (M.(c).P. No.2018/2006) Insurance Company deserves dismissed at the motion stage itself. The question No.l is answered accordingly. Answer to point No. 2 14, The Claims Tribunal^ asse.ssing notional income of the claimant as ? IS^OOO/-^ has awarded ? I^IO^OOO/- multiple injuries sustained by the claimant along with interest @ 6% -J ^ ^\ ....... ^. 'w^^'' ^ per annum from the date of filing of claim petition till its actual payment.

#15. Ex.P-56 disability certificate claimant- Rajesh Kumar Patel issued by District Medical Board, Mahasamund certified permanent disability to the extent of .45% and in support of that Dr. G.L. Chandrakar (NAW-2) has been examined and he has clearly stated in his evidence that claimant has suffered permanent disability to extent 45% proved certified the permanent disability certificate Ex.P-

#56. Another document Ex.P-57 which has been issued by Sarpanch of the Village in which the Sarapanch clearly stated claimant working Tractor Mechantc at the time of accident and he used to earn ? 150/- per day,

#16. Taking into consideration the oral as well as documentary evidence adduced in the case, it cannot be held that monthly income of the claimant is less ? 3f000/- accident i.e<

31.03.2005. Thus, I propose to re-compute the amount compensation by taking into consideration the income of the claimant as Rs*3^000/- per month and Rs,36,000/- per annum. 17, Looking to the claimant's permanent disability to the extent of 45%, claimant's annual income would ':''.^^- 'miS: .^^•.:-- -^ :v ..^' ^!;A'<'T be 16/200/-, By multiplying the annual income of the deceased as Rs . 16^ 200/~ • VT-ith . the multiplier of 18 looking the age of the claimant as 19 years, amount of compensation towards future loss of income works out to Rs .2y91y 600/-. The appellant/claimant further entitled for Rs. 60,000/- for perraanent disability awarded Tribunal. Besides Y above^ clairaant is also entitled for ? 25^000/- for mental agony suffered by him due to the accident , ^ and thus the appellant is entitled for a total sum of Rs, 3y76^600/~ as compensation instead of Rs. 1,10,000/- as awarded by the Tribunal.

#18. Accordingly^ scompensation ? 1^10,OOO/- awarded by the Tribunal isenhanced to ? 3,76,600/-. The clalmants are further entitled to receive ? 2,66,SOO/- amount awarded Tribunal. Enhanced amount ? 2y66,600/- shall carry interest @ 6% per annum from the date of filing of claimpetition till its actual payment. Award is modified to the above extent. Rest conditions mentioned remain intact.

#19. The respondent 3/The Oriental Insurance Company Limited granted three months deposit enhanced amount compensation ? 2^66,600/~ along with interest Q 6% per annum from the date of filing, of claim petition before the concerned Claims ~"^;< ' -. ^: ^:I'"':.; •>.1^' ^".-y ^'\.^ '1'... £1 Tribunal. Thus question No. 2 answered accordingly.

#20. Resultantly, claimants' appeal enhancement is partly allowed and award is modified to the extent indicated hereinabove and the cross objection (M.C.P. No.2018/2006) filed by respondent No.S/Insurance Company exoneration liability of payment of compensation is dismissed at ^> the motion stage itself,

#21. No order as to costs. Dubey/- Sd/- Sanjay K. Agrawal Judge