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

disposed of by this- common order* o ^laims Tribunal,» impugned award^ partly allcwed claim petition filed by the claimants under Section 166 of the MV Act» who are parents brother deceased - • Sukhdev awarded conpensation to the tune of ? 1^02^000/~ along with interest @ 6% per annum from the date of filing of claim petition till its actual payment for the death of deceased Sukhdeo^ aged about 19 years^ fastening the liability of payment of compensation upon .respondent No.3/Insurance Company.

3. In aforesaid Insurance l^ 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 v^ere -travelling said vehicle excess of its sanctioned capacity and^ thus^ if is a breach of terms of policy conditions and, therefore Insurance Company is liable to pay any compensation. 4, Shri Raghvendra Pradhan, learned counsel appearing for .the appellants/claimants would submit that . deceased Sukhoeo unmarried -^- ^ r1 ^laimants and parents and brother and, therefore, the Tribunal has erred 'in applying the multiplier of 10 instead of 15<

5. Mr< A,K. Athaley/ learned. counsel respondent No.3/Insurance Conpany 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 o£ the policy conditions and therefore, submits that cross objection filed by the Insurance Company be al.lsowed and the Insurance Company be exonerated from its liability. The said submission vras opposed 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)Whether the finding of fact recorded ^ / by the Tribunal holding Insurance Company is liable to make payment of c-ompensation is li^ble to be set aside by granting the respondent- Insurance Company?// objection (ii) Whether the compensation awarded by enhanced. deserves Tribunal Claims \ 4 Pc ^ ANSWER TO POINT N0. (i)

7. The respondent No, 3/Insurance Company taken a specific plea by filing cross objection that the offending vehicle in question was registered as a private vehicle by Regional Tr.ansport 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 NOo3/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 'the 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, '^.. ;•: ^- ^ ^fa^-^1;^ rt T^jl^ \"^^ •/:/ "^-^r^ ^

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 Agrawal (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 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 others1 / the Supreme Court held thus: ^14< ..... The burden to prove that there was insurance/; was breach contract (1985) 2 SCC 574 ^ a enable shoulders discharged squarely placed It could not be said to insurance company. The second question in cross-examination. appellant was under no obligation to furnish insurance evidence company to wriggle out. its liability under licence R.T.A. keeps a record of the licences issued and The insurance company could renewed by it. evidence produced Applying the substantiate its allegation, test who would fail if no evidence is led^ insurance company,// contract issues insurance. driving obvious Further answer

12. In view of above settled 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 liability payment compensation resp-ondent No» 3/Insurance Company warranting interference by this Court.

13. Thus, cross objection (M.(c).P. No.2020/20065 Insurance Company deserves dismissed. The point No.l is'answered accordingly. Answer to point No. 2 14, The Tribunal assessing notional income of deceased as ?15,000/-, deducted l/3rd of towards personal expenses applied multiplier 10 a-warded ? 1,00^000/- account of loss of dependency. The Tribunal has further awarded ? 2000/- account funeral expenses and thus has avrarded. a total sum of ? 1,02,000/-. 15, Looking to facts and circumstances of the.case, opinion, multiplier 15 appropriate. By multiplying the claimant's annual dependency of Rs, 10,000/- with the multiplier of 15, the amount of compensation on account of loss of dependency ? 1,50,000/-. Furfher^ arnount of Rs< 2,000/- 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 Rs. 1,55,000/- compensation instead Rs. 1,02,000/- as awarded by the Tribunal.

16. Accordingly, compensation ? 1,02,000/- awarded by the Tribunal is enhanced to ? 1,55/000/-. The claimants are further .entitled to receive ? 53^000/- over and above the amount awarded by the Tribunal< Enhanced amount of ? 53/000/- shall carry interest @ 6% per annum from the date filing of claim petition till its actual payiuent. 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 ? 53^000/- along wlth interest @ 6% per annum from the date of filing l... petition before concerned Claims Tribunal < Thus No\ 2 answered accordingly.

18. Resultantly^ claimants' appeal enhancement is partly allowed and award is modified to the extent indicated hereinabove and the cross objectibn (M.C.P. No.2020/2006$ 'respondent No.3/Insurance Company exoneration '^y't from its liabili'ty of payment of compensation is dismissed.

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