APPELIANTS Claimants v. Panchu @ Panchu Ram Sahu ;./ MISC. APPEAL UNDER SECTION 173 & Ors.

Present: Mr. Kripesh G. Kela, counsel for the appellants. Mr. Shivendu Pandya, counsel for respondent No. 1 & 2. Mr. No. 3/Insurance Company. for respondent Athaley, counsel A.K. ORM. ORDER (27.11.2013)

1. This is an appeal filed by the claimants under Section 173 Motor Vehicles Act, 1988 >^?t (henceforth 'the MV Act' ) seeking enhancement of compensation awarded Second Additional Motor Accidents Claims Tribunal, Mahasamund (henceforth 'the Claims Tribunal') in Claim Case . No.133/2005 vide awa'rd dated 01.12.2005 whereas cross objection nv[;_«;).P. No.2004/2006) Insurance .Company seeking exoneration liability, fastened upon it by the Claims Trii3up.al. Therefore, appeal enhancement m •^ '"^ 'y 37 compensation as well as cross objection are being disposed of by this common order.

2. Claims Tribunal, impugned award, partly allowed claim petition filed by the claimants under Section 166 of the MV Act, who are parents and brother of deceased - Nirakar @ "'Nirru and awarded compensation to the tune of ? 1,02,000/- along with interest @ 6% per"annum rrom.the date of filing of claim petition till its ,actual payment for the deat'n of deceased Nirakar @ Nirru, aged about 20 years, fastening liability payment compensation upon respondent No.3/Insurance Company.

3. In aforesaid Insurance Company has taken a plea, by filing cross objection, the offending vehicle being a Mahindra Max bearing registration No.CG-05-3346 was insured for private purpose sanctioned sitting capacity is nine whereas on the date of accident 18 persons were 'travelling said vehicle excess of its sanctioned capacity and, thus, ifc is a breach of terms of policy conditions and, therefore - the Insurance Company is liable to pay any compensation.

4. Shri Kripesh G. Kela, learned counsel appearing appellants/claimants ' would submit deceased Nirakar & Nirru was unmarried and- the nrwraft^na clai-msnts are parents and brother of the deceased and, therefore, the Tribunal has erred in applying the multiplier of 10 place of 13 looking to the age or the parents of the deceasd Mr. A.K. Athaley, 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 I'nsurance Con-pany as there is overwhelming evidence available on record to hold that Insurance Company is not liable to pay compensation as there was a breach of terms of the policy cond.itions and therefore, submits that cross objecfcion filed by the Insurance Company be allowed and the Insurance Company be exonerated from its liability. The said submission was opposed by Shri Shivendu Pandya, learned counsel appearing for the respondent No. 1 -driver of the vehicle.

6. On pleading parties, following; poinfcs would arise for determination of this Court. - . "(i)Whether the finding of fact recorded by the Tribunal1 holding Insurance Company is liable to make pa^ent of compensation is liabie to be set aside ?" (ii) Whether the compensation awarded bv enhanced. deserves Tribunal Claims ANSWER TO POINT N0. (i) ^l The respondent No. 3/Insurance Company taken a specific plea by filing cross objection that offending vehicle question registered a private vehicle Regional Transport Office, insured Insurance Company for privafce purpose on the date of accident commercial purpose and, therefore, a breach of policy conditions. Apart from this, sancti'oned capacity of the offending vehicle was nine whereas on the date i of accident 18 persons were sitting in the said vehicle which is the violation of policy conditions and, therefore, respondent No.3/Insurance Company is not liable for payment of compensation.

8. In order to orove the aforesaid fact before the Tribunal, respondent No.3/Insurance Company examined Shri Deepak Kumar Thawait SNAW-3)- Investigating Office of the Insurance Company, 'deposed before fhe Court below on being authorized Insurance Company submitted investigation report -with regard deceased and about their income and his report is based upon claimants' evidence. Apart from this, no other evidence has been brought on record by the Insurance Company to alleged breach of terms of the insurance policy. ^^

9. The Tribunal, considering the evidence Deepak Kumar Thawait (NAW-3), evidence is based on Drobabilities 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 vehicle as a cominercial vehicle by accepting fare. f \^ • >

10. Shri Shiv Prakash Aqrawal (NAW-2) - owner of the offending vehicle has been examined and he has clearly denied the suggestion that-' vehicle was being used for commercial purpose. Panchu @ Panchu Ram (NAW-1)- 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 subjecfced lengthy examination but nothing has been brought on record to hold that the vehicle in question on the dafce of accident was being used for commercial purpose.

11. The law is well settled. The burden to prove violati'on of policy. conditions is upon the insurance compsny. In Narcinva V. Kasiat and another v. Alfredo Antonio Doe Martins and .others , the Supreme Court held thus: "14. breach squarely placed insurance comDanv. The burden to prove that there was shoulders It could not be said to insurance contract —T-. l--' (1985) 2 SCC 574 a enable discharged contract question in cross-examination. The second appellant vras 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." issues insurance. driving obvious Further answer

12. In view of above settled legal position, cannot Tribunal, has committed illegality in holding Insurance Company has failed establish violation policy conditions and, therefore, the Tribunal has rightly rastened the liability of payment of compensation respondsnt No.3/Insurance Company warranting interference of this Court in the instant appeal.

13. Thus, cross objection (M.(c).P. No.2004/2006) filed by the Insurance Company deserves to be and is accordingly dismissed. The point No.l is answered accordingly. Ans-wer to point No. 2 "•-U. The Tribunal after • assessing notional income of deceased as ?15,000/-, deducted 1/3 towards personal expenses applied multiplier 10 awarded ? 1,00,000/- account of loss of dependency. The Tribunal has further awarded ? 2000/- on account funeral expenses awarded a sum of ? 1,02,000/- . 15 . Looking to age of the parents of the deceased, I am of the considered opinion, multiplier . of 13 would be appropriate. By multiplying the claimant's annual dependency Rs. 10,000/- multiplier of 13, amount compensation on account of loss of dependency would be ? 1,30,000/-. Further, the amount of Rs. 2,OOO/-j awarded by the Tribunal under the head of funeral expenses ,also appears to be on lower 'side. I, am of the considered opinion that the compensation awarded under the head funeral expenses deserves to be enhanced by Rs. 5,000/-. Thus, the claimants would be entitled for a total sum of ? 1,35,000/- as compensation instead of ? 1,02,000/- as awarded by the Tribunal.

16. For the foregoing reasons, the appeal filed by claimants enhancement of compensation partly allowed. ' The compensation ? 1,02,000/- awarded by the Tribunal is enhanced to ?• 1,35,000/-. The claimants are further entitled to receive ? 33,000/- over and above the amount awarded by the Tribunal. Enhanced amount of ? 33,000/- shall carry interest @ 6% per annum from the date of filing of claim petition till its actual payment. Jj11 ??~^ '•vsswws^ssiaies^i. —. Award is modified to the above extent. Rest of the conditions mentioned remain intact.

17. The respondent 3/The Oriental Insurance Company Limited is granted three months to deposit enhanced amount of compensation of' ? 33,000/- along with interest @ 6% per annum from the date of filing 'claim petition before concerned Claims Tribunal. Thus, No.. [2 j answered accordingly.

18. Resultantly, claimants' appeal enhanceinent is partly allowed and award is modified to the extent indicated hereinabove and the cross objection (M.C.P. No.2004/2006) respondent No.3/Insurance Company for exoneration'of liability payment compensation dismissed.

19. No order as to costs Dubey/- Sd/- SanjayK.Agrawal Judge