1. The appeal is directed against the Judgment and Award dated 01-09-2004 passed by the Motor accidents claims Tribunal Amravati in MACP no 11 of 2003 whereby the Tribunal had partly allowed the claim in the sum of Rs 3,82,000/- inclusive of no fault liability together with interest @ 9% p.a. From the date of the petition till realization.
2. The facts in brief are â
On 15-08-2002 Abdul Rauf aged about 35 years was victim of the motor vehicle accident while he was as fare paying passenger travelling by the Mahindra Savari bearing No. MH-27-C-5192 owned by Akil Khan Gaffar Khan and insured with the New India Assurance Co Ltd Amravati branch. One Abdul Salim was driving the auto rickshaw rashly and negligently. When the Rickshaw came near village Bhugaon, he lost control over the vehicle because of bursting of Tyre of rear wheel of the said vehicle. The vehicle had dashed against the tree. Abdul Salim was seriously injured and died on the spot. While the victim Abdul Rauf was admitted in the Irwin Hospital at Achalpur and then he was shifted to Medical Hospital Nagpur.. He had undergone treatment for 17 days and then was discharged from the Hospital on 03-09-2002. He died on 02-11-2002. He was doing the business of selling and purchasing the cattle and earning about Rs 4000/- per month. Widow, children and parents are claimants as dependents of the Abdul Rauf. They claimed compensation in the sum of Rs 500,000/- The insurer defended the claim on the ground that the driver was not rash and negligent but the vehicle was driven contrary to the insurance policy and the vehicle was overloaded by 15 to 16 passengers beyond carrying capacity of six passengers .The insurer denied the liability.
3. I have heard submissions at the bar. On behalf of the appellant it is contended that there was breach of the policy conditions and the breach of the permit and at the most liability of the insurer is limited to the extent of the five persons only.. While on behalf of the claimants it is contended that there was no evidence of any breach of policy or permit. According to learned Advocate for the claimant the insurer is liable to pay the higher liability .There was no any evidence led to establish that the owner had allowed the driver to carry excess number of passengers to be carried by the Mahindra Savari. There was no proof to establish that the owner had committed the breach of the terms of insurance Contract. In my view there is substance in the contentions of the claimants.
4. If a breach of the insurance Contract is alleged, it is for the insurer to plead and prove the breach. Furthermore, it is also required that breach of insurance policy must be proved as the cause of accident Mere allegation of the breach is not enough and insurer cannot escape from the liability to compensate the third party on the basis of the contract of insurance with the insured. Breach of policy conditions, for example, disqualification of the driver or invalid driving license of the driver has to be established or proved as breaches committed by the insured for avoiding liability of the Insurer. Mere absence of or , fake or invalid driving license 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 its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the manner of fulfilling the condition of the insurance policy contract regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. Thus the Insurance Company must not only prove, as a part of its defense, that the person driving the vehicle was disqualified as driver or that he did not held a valid driving license, it is also required to establish that the insured i. e. the owner of the vehicle had made positive breach of the condition to allow such incapable driver. As a matter of fact, unless the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, "the insurerâ company would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental and bound to have contributed to the cause of the accident. The Motor vehicle Act has socio-economic objective to compensate the third party who may have became the victims of the road accident as a result of the extensive use of the motor vehicles on the road. For these reasons the insurer company cannot avoid its liability to compensate the third party victim. Apex Court in a case of B.V. Nagaraju v. Oriental Insurance Co. Ltd. reported in 1996 ACJ 1178 held that merely carrying more passengers beyond the permitted capacity of the vehicle in a passenger transport vehicle cannot be said to be a fundamental breach and the insurer cannot use the same as a weapon for to avoid liability. Insurer in the present case has failed to plead and establish the breach by the evidence. Regarding the contention as to the breach of permit for carrying passengers, more than the number specified in the permit, will not ipso facto be violation of the purpose for which the permit is granted. In my opinion overloading of the transport vehicle is not such a breach which can be said to be a breach in terms of Section 149(2) of Motor Vehicles Act. It may be a breach of condition of registration certificate or route permit but it cannot be used as a weapon by the insurer for avoiding liability to compensate third party in terms of mandate of provisions of the Motor Vehicle Act, 1988. . Breach must be specifically pleaded and proved. It is not the case of the insurer-appellants that the offending vehicle Mahindra Savari was used for different purpose other than permitted by its registration certificate and route permit. Thus, really it cannot be said to be a âbreach and, cannot be a ground for avoiding liability to compensate third party.
5. The next question is about the quantum of the compensation. It is in evidence that victim Abdul Rauf had suffered the fracture with posterior dislocation of left femur amongst other injuries .for which He underwent medical treatment from 16-08-2002. His death certificate revealed that he died because of complications of injuries sustained by him in the motor vehicle accident. The FIR (Ex 25) and the Panchanama (Ex 26) supported the contention of the claimants that Abdul Rauf died due to the injuries sustained in the vehicular accident caused by the rash and negligent driving of the Mahindra Safari Auto Rickshaw. In the absence of evidence of the income the Tribunal considered the monthly income of the victim as Rs 2000/- to 2500/- per month and annual income at Rs 30000/- as the business of selling and purchasing the cattle is not the continuing business fetching regular income . After deducting the one third amount towards the self-expense the net dependency loss was computed at Rs 20000/- for the dependents and considering the age of the victim as 36 years at the time of his death the multiplier was applied at 16. (20000x 16=3, 20,000) plus under the conventional heads
Rs 40000 for loss of love and affection Rs 5000 each x 8 claimants
Rs 15000/- towards Medical treatment
Rs 2000 to funeral expenses
Rs 3, 82,000/- total sum @9% p. a. from the date of the Petition till realization.
The computation of the monthly income, yearly income of the deceased and deducting the one-third amount towards self expenses to arrive at the multiplicand and applying 16 as multiplier considering the age of the victim and the ages of the dependents as also the awarded sums under the conventional heads as aforesaid appear appropriate and reasonable in the facts and circumstances of the case. The impugned award is just and proper. No interference is warranted by this Court in exercise of the appellate jurisdiction.
6. The appeal is without merits. Hence dismissed with cost. The amount deposited with accrued interest shall be transferred to the Tribunal for to disburse the payment of compensation proportionately to the claimants-dependents subject to conditions as the learned Tribunal may deem it fit according to law.