Smt. Gomti Patel v. Panchu @ Panch Ram Sahu

Judgment

#1. This is an appeal filed by the claimants under Section 173 Motor Vehicles Act, 1988 (>henceforth ?the MV Act') seeking enhancement of compensation awa'rded Second Additional Motor Accidents Claims Tribunal, 'Mahasamund (henceforth 'the Claims Tribun.al') in Claim Case No.123/2005 vide award dated 02.12.2005 whereas cross objection (M.(c).P. No.2010/2006) filed. Insurance Company seeking exoneration liability, fastened upon it by the Claims Tribunal. Therefore^ appeal enhancement compensation as well as cross objection are being

disposed of--by this common order, ..•;;;^-' -—-""-^ 1-J/ o

#2. The Claims Tribunal, vide impugned award^ partly allowed c.1aim petition filed by the claimants^ who are unfortunate widowy son and father of the deceased-Shyam Kumar, under Section 166 of the ^•W Act^l9S8 and awarded compensation to the tune of ? 2^81^636/~ along with interest @ 6% per annum from the date of filing of claim petition till its actual payment of . deceased Shyam Kumar^ fastening liability payment compensation respondent No. 3/Insurance Company.

#3. In aforesaid Insurance Company has taken a plea^ by filing cross objection, that the offendi.ng vehicle being a Mahindra Max bearing registration No.CG-05-3346 was insured for private purpose sanctioned sitting ca.pacity is nine whereas on the date of accident 18 persons travelling said . vehicle excess of its sanctioned capacity and, thus, it is a breach of terms of po.licy conditions and, therefore the Insurance Company is liable to pay any compensation,

#4. Shri Raghvendra Pradhan, learned counsel appearing for the appellants would submit that the Claims Tribunal has fallen in error in assessing the ..:--^^ ': •i,' /' 'h monthly income of the deceased as ? 2,000/- per month as the. dece.as ed v.ras working as Carpenter and in the year 2005 even an unskilled labour could have easily earn ? 3^000/~ per month, 5< Mr< A<K, Anthalay^ learned counsel 'for respondent No<3/Insurance Company would submit that the Tribunal has falien in error in fastening the liability of payment of compensation upon Insurance Conpany as there is overwhelming evidence available rec.ord 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 Conpany1 be allowed and the Insurance Company be exonerated from its liability. The said submission v.ra.s cpposed by Shri Shivendu Pandya, learned counsel appearing for the respondent No. 1 -driver of the vehicle. 6< On pleading parties, following points would' arise for determination of this Court, ^ (i)^\Thether the finding of fact recorded by the Tribunal holding Insurance Company is liable to make pa^7ment of compensation is liable to be set aside by granting the respondent- Insurance Company?// objection (ii) Whether the compensation awarded by enhanced. deserves Tribunal Claims 4 ANSWER TO POINT N0. (i)

#7. The respondent No. 3/Insurance Company taken a specific plea by filing cross objection thaf the offending vehicle in question vras registered as a 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 used 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 Company 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. ^ "^^--~

#9. The Tribunal, after considering the evidence Deepak Kumar Thawait (NAW-3), 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 vehicle as a commercial ^,' vehicle by accepting fare<

#10. Shri Shiv Prakash Agraw-al (NAW-2) - owner of the offendina vehicle has been examined and he has clearly denied the suggestion that vehicle vras 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 witnes-ses -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 law is well 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: t ^14. . breach squarely placed • .. • The burden to prove that there was insurance shoulders contract (1985) 2 SCC 574 .,-^^"* ^•^ ^ %y^^ 1, %. ^^^^,.. '^ ^- ^£33^' 6 a enable discharged contract insurance company. It could not be said to question in cross-examination. The second appellant was 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. Appiying the test who would fail if no evidence is led^ insurance company,// issues insurance< driving obvious Further answer

#12. In view of above se.ttled legal position and in view of the aforesaid discussion, it cannot be said Tribunal committed illegality holding Insurance Company failed establish the violation of policy conditions and^ therefore, the Tribunal rightly fastened the liabi.lity pa^mient compensation respondent No,3/Insurance Company warranting interference by this Court< r

#13. Thus, objection (M.(c).P. No.2010/2006) Insurance Company deserves dismissed^ The question No.l answered accordingly. Answer to polnt No, 2 14 < The deceased was working as Carpenter, The Tribunal after assessing the monthly income of the deceased as ? 2,000/-, deducted l/3rd of it fowards his personal expenses and applied multiplier of 17 and awarded ? 2^72frl36/~ on account of .^^ /:^^ /' ^ .'\-:' ^ J ^ %^/ dependency. The Tribunal further awarded ? 9,500/- on other heads and thus has awarded a total sum of ? 2,81.636/-. '

#15. Admittedly/ Deceased Shyam Kumar was 32 at the time of accident and was working as Carpenter. In the year 2005, even an unskilled labour could have easily earn ? S^OOO/- per month andy therefore, the Tribunal has certainly fallen assessing the income deceased as ?2^000/- per month. Therefore^ I propose to re-compute the amount of compensation by taking consideration monthly income deceased as ? 3,000/- and ? 36,000/- per annura,

#16. After deducting 1/3TO income deceased towards his personal and living expenses, claimants' annual dependency assessed ? 24/000/-. By multiplying the claimants' annual dependency of- ? 24,000/- v.rith the multiplier of 17 applied Tribunal^ the. amount compensation tow^rds of dependency would be ? 4,08,000/-. Further, amount ? 2,000/- towards funeral expenses, ? 5^000/- towards loss of consortium and ? 2^500/- towards of estate awarded by the Tribunal also appear to be on lower side. I am of considered opinion compensation awarded under the head funeral expenses •\i;- ,/ > 1—1 II 1 ; deserves to be enhanced to ? 5,000/-, compensation awarded' under the head loss of consortium deserves to be enhanced to ? lO^OOO/- and the compensation awarded under the head of loss of estate to be enhanced to ? 5^000/~. Thus^ the claimants would be entitled a ? 4,28,000/- corripensation instead. of ? 2^81,636/-as awarded by the Tribunal•-

#17. Accordingly^ the compensation of ? 2^81,636/- awarded Claims Tribunal enhanced ^ 4^28,OOO/-* The appellants/claimants are further entitled to receive ? 1,46,364/~over and above the amount awarded by the Tribunal. Enhanced amount of ? 1/46,364/- shall carry interest @ 6% per annum from the date of filing 'o.f claim petition till its actual payments. Rest of the conditions mentioned in the award shall remain intact.

#18. The respondent 3- The Oriental Insurance Company Limited granted three months deposit enhanced amount compensation ? 1^46,364/- along with interest @ 6% per annum simple interest before concerned Claims Tribunal. Thus, question No. 2 answered accordingly.

#19. Resultantly, claimants' appeal enhancement -is partly allowed and impugned award is -.1. •.."^- Dubey/-," ) mo.dified to the extent -indicated hereinabove and the objection respondent No.S/Insurance Company exoneration liability of pa^^ment of compensation is dismissed. 20 < No order as to costs< Sd/- Sanjay K. Agrawal Judge