COURT NO. 10 v. Smt. Kaushaliya

I have heard learned counsel for the parties and have thoroughly gone through the entire material on record including the lower court record. The main ground of challenge raised in this appeal by the appellant is that the driver of the ill-fated Jeep was not having a valid driving licence. The learned Tribunal has dealt with the point of driving licence at pages 4 and 5 of its judgment. It comes out on the basis of the evidence led by the petitioner-insurance company that the Insurance has failed to show that the driver Ranjeet Singh, who is said to be driving the ill-fated jeep, was not having a valid driving licence. It was open to the insurance company to examine some responsible person of the Regional Transport Office Haldwani, who could be the best witness to depose that the driver Ranjeet Singh was not having a valid driving licence. But it has not been done. It is interesting to note that D.W.2 C.S. Koranga, who is the witness of the petitioner and who prepared the survey report, could not dare say that the driver was not having a valid driving licence. On the other hand, the learned Tribunal on the basis of record found that the driver was having valid driving licence to drive light motor vehicle, motor vehicles and heavy goods for the period 24-4-2003 to 24.4.2006. Moreover, the Apex Court has held in paragraph 110(iii) of the judgment in the case of National Insurance Co. Ltd. Vs. Sawarn Singh reported in [(2004) 3 Supreme Court Cases, 297], as under:- “The breach of policy condition, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. invalid driving Mere absence, fake or licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of the policy fulfilling regarding use of vehicles by duly licensed driver or one who was not disqualified to driver at the relevant time.” the condition of liability towards Taking into consideration, the view of the Apex Court, I find that the petitioner has failed to discharge its burden. Moreover, the surveyor’s report 30-C filed by the Insurance Company, at point no.3 of the result, it was mentioned that all the documents of the vehicle were legal and complete. Having considered all the aspect of the matter from all the four corners, I am not inclined to accept that the finding recorded by the learned Tribunal that the driver was having a valid driving licence is in any way illegal or erroneous. No other point was urged or argued before me in this appeal. So far as the cross-objection filed by the claimant- respondents is concerned, they have prayed for enhancing the compensation amount by stating that the income or the deceased was Rs. 5,000/- per month. The claimants have not filed any affidavit in support of their contention raised in the cross-objection and have not led any evidence in support thereof. In his testimony, P.W.1 Kaushalya Devi has stated that her son used to earned Rs. 5,000/- per month from gardening and agriculture. The claimants have totally failed to bring on record any such evidence, which could indicate that the deceased was doing self-employment. The learned Tribunal has rightly discarded the contention of the claimants that the deceased was an earning member on the ground that the income certificate filed on record was obtained from Tahsildar after the death of the deceased. I have perused the income certificate (Paper No. 24-C), wherein it was certified by the Tahsildar concerned that the income of the deceased was assessed at Rs. 4,000/- per month. He has not disclosed the basis of income. It appears that for the purposes of claim petition, this document was obtained. I am not inclined to accept that the deceased Basant Ballah Dwivedi was having independent source of income. Even if it may be presumed that the deceased was engaged in the work of gardening and agriculture, the income derived there-from is not at all affected. The mother of the deceased P.W.1 has not said as to how the income from the said business has now ceased. It is but natural that in case any person is doing private business, there must be some document indicative of such business or profession. In my view, the learned Tribunal has rightly taken the aid of Second Schedule of Section 163-A of the Act while computing the income of the deceased. Taking into consideration the entire material on the point of loss of dependency, I find that the compensation awarded by the Tribunal is just and proper. There is no merit in the cross-objection filed by the claimant-respondents. In the result, the appeal as well as cross-objection has no force and deserves to be dismissed. The appeal is dismissed. Cross-objection filed by the claimant-respondents is also dismissed. The impugned award dated 24-10-2005 is upheld. No order as to costs. The amount in deposit with this Court, if any, be remitted to the Motor Accident Claims Tribunal Pithoragarh for being paid to the claimants. RCP (B.S.Verma, J.)