Judgment:
P.D. Kode, J.
1. The aforesaid appeals are preferred respectively by respondent No. 1 -owner of offending vehicle involved in the accident (hereinafter referred as 'Owner') and claimants-legal representatives of one deceased Kanhaiyalal Pali -victim of accident (hereinafter referred as 'Claimants') in Claim Petition No. 802 of 2002 of Motor Accident Claims Tribunal at Nagpur taking exception to judgment and order dated 4th November, 2003 passed by said Tribunal in said claim, partly allowing claim for compensation made by claimants to the tune of Rs. 6,80,200/- along with an interest at the rate of 6 % from the date of their petition out of their original claim for Rs. 10,50,000/- only against the owner and dismissing their claim against respondent No. 2 Insurance Company in said claim petition ( hereinafter referred as 'Insurer').
2. The owner has preferred the appeal with a prayer for setting aside above referred judgment and order ordering her to pay compensation to claimants with further alternative prayer that in the event of said owner being found liable to pay compensation, then ordering the same to be recovered from the Insurer.
3. The claimants -legal representatives of deceased Kanhaiyalal Pali i.e. wife , children and parents have preferred the appeal with a prayer of setting aside above referred judgment and saddling the liability fastened on owner upon Insurer of the offending vehicle and so also setting aside deduction made by Tribunal while assessing lump sum compensation to be paid and ordering restoration of original amount of Rs. 8,19,000/- calculated by the Tribunal for the loss of the dependency caused to them.
4. The facts in brief, as disclosed from records, leading to filing of claim for compensation and above referred appeals can be described as under: The deceased Kanhaiyalal Pali, an employee of Western Coalfields Limited as a labourer in Kandri on 6.8.2002 proceeding towards Kamptee on motor-cycle bearing registration No. MH-31-AX-6382 with one Mahesh Pali on pillion seat at about 4.45 p.m. while being in front of Fouji Dhaba on National Highway No. 7 was forcibly dashed and knocked down due to the rash and negligent driving of Maruti Car bearing No. MH-31-Z-2543 belonging to appellants in First Appeal No. 91 of 2004 and insured with respondent No. 2 in the original claim petition and the said first appeal. As a result of the accident occurred, Kanhaiyalal was thrown on the ground and had sustained severe head injuries and shifted to CIIMS Hospital Nagpur for a treatment. He had succumbed to the death on 10.8.2002. The legal representatives of Kanhaiyalal described hereinabove have thereafter made claim for compensation of Rs. 10,50,000/- .
5. In support of the claim preferred, wife of deceased has given oral evidence at Exh.26 in addition to documentary evidence produced by her. Additionally she has examined CW2 Thekekutta Gangadhar Rajeev for proving salary certificate of the deceased at Exh.29.
6. Respondent No. 2 Insurance Company has examined one Pandurang Santosh Shende regarding policy issued by them at Exh.36 being for private car and same being not for using insured vehicle for a driving school and breach of terms of said policy having occurred in view of owner having converted and used said vehicle for such a purpose.
7. Original respondent No. 1 - owner of the offending vehicle has examined CW2 Ashok Ghanshyam Lohakare , driver of offending vehicle at the time of accident, regarding the manner in which accident had occurred and vehicle being used for personal purposes of the owner and himself holding a valid licence etc.
8. After assessing evidence adduced, Tribunal came to conclusion of accident having occurred due to negligence of driver of vehicle and hence claimants being entitled to recover compensation for the death of Kanhaiyalal occurred in accident.
9. In process of assessment of compensation, relying upon monthly salary of the deceased as revealed from the salary certificate Exh.29 being Rs. 5850/- and deducing an amount of Rs. 175/- for payments made towards professional tax, Tribunal assessed monthly income of the deceased being Rs. 5675/- and hence his annual income being Rs. 68,100/- and thereafter deducting 1/3rd of the deductions for the personal expenses of deceased came to conclusion of annual loss of dependency being Rs. 45,500/- . Tribunal having regard to deceased being within the age group of 25 to 30 years, determined multiplier to be applied being 18 and thus assessed net loss in dependency caused being Rs. 8,19,000/- . Tribunal deducted 20 % from same on count of same being accelerated payment and thus assessed compensation for loss of dependency being Rs. 6,55,200/- . The Tribunal added an amount of Rs. 10,000/- for wife on count of the loss of consortium and an amount of Rs. 10,000/- on count of depriving of love and affection for children and parents of the deceased and an amount of Rs. 5000/- towards the funeral charges and thus assessed total loss compensation to which the claimants were entitled being Rs. 6,80,200/- .
10. Tribunal came to conclusion that evidence on record had established that owner of the vehicle was using same for purposes of driving school and thereby breach of terms of policy issued by Insurer had occurred as the Policy was issued for using insured vehicle as a private car. Tribunal thus came to the conclusion of the Insurer being not liable to pay compensation and hence passed judgment and award against the owner for the sum of Rs. 6,80,200/- with interest against respondent No. 1.
11. The learned Counsel for claimants urged for allowing their appeal and awarding the compensation as claimed by them by allowing their claim jointly and severally against owner and insurer by assailing the judgment and order passed by the Tribunal on the count of:
(i) Tribunal having manifestly erred in making deduction of Rs. 1,63,000/- i.e. 20 % of amount of compensation assessed for loss of dependency by relying upon the decision in a case of Sakharibai Hassain Ali v. Dilipkumar Rupchand Gadiya reported in 1997 ACJ 95;
ii) Tribunal having erred in relying upon said decision without any of the parties having placed reliance upon the same;
iii) Tribunal having erred by making such deduction on the basis of said decision without giving notice of same to parties and that too without assigning any cogent reason and in spite of making such a deduction being contrary to law laid down by Apex Court;
iv) making such deduction of 20 % on alleged count being liable to be set aside on the basis of the decision of the Apex Court in a case of Gyanchand v. Parmanand reported in 2003 (1) T.A.C. 490;
v) Tribunal having erred in coming to the conclusion of insurer having established breach of terms of insurance policy being committed by owner due to erroneously drawing such a conclusion not emerging from the evidence of driver of offending vehicle and witness of insurer ;
vi) in the said process Tribunal having erred in relying upon the report of an investigator without same being proved and further erred in coming to conclusion of all said evidence having established of offending vehicle being used for driving school while same being insured for private purpose; and hence breach of insurance policy having occurred;
vii) Tribunal having erred in appreciating evidence and erroneously coming to the conclusion of insurer having established of offending vehicle being used for a driving school at the time of accident, by misconstruing the evidence of driver of offending vehicle and relying upon investigation report of Monica Arland not duly proved and thus insurer having established breach of insurance policy having occurred;
viii) Tribunal having failed to appreciate ratio in the decision given by Apex Court in a case of New India v. Kamla reported in TAC 2001 page 243 and in view of the same in spite of the alleged violation ( even which is not established) both the respondents i.e. owner and insurer were jointly and severally liable
ix) Tribunal having erred in not asking insurer to initially satisfy the amount awarded and thereafter recovering the same from owner at least having due regard to subsequent decisions of an Apex Court in light of Motor Vehicle Act being a beneficial legislation.
x) award being passed by Tribunal only against owner same being paper decree and hence same causing undue hardship to claimants.
12. The learned Counsel for owner of offending vehicle-appellant in First Appeal No. 91 of 2004 prayed for allowing appeal and saddling respondent No. 6 Insurance Company liability to pay compensation in view of contract of insurance of indemnifying such a liability being entered by appellant with respondent No. 6 and breach of same having not occurred ; by modifying the award passed only against the appellant by making the submission on some what similar lines as made by learned Counsel of the claimants qua the question of breach of insurance policy, assailed the judgment and order passed by the Tribunal on the count of:
i) Tribunal having manifestly erred of coming to conclusion of evidence surfaced having established of offending vehicle used for purposes of a driving school; ii) Tribunal having erred in coming to such conclusion only on the basis of evidence on the record having established offending vehicle being fitted with duel control system;
iii) Tribunal having manifestly erred in relying upon inadmissible evidence in shape of report of investigator- Monica Arland and further erred in coming to conclusion of same having established of offending vehicle being fitted with duel control system;
iv) Tribunal having erred in not ignoring said report due to author of said report being not examined by insurer;
v) Tribunal having gravely erred in overlooking respondent No. 2-Insurance company having not adduced any evidence to come to conclusion that duel control system allegedly fitted to vehicle being for the purposes of using the same for a driving school;
vi) Tribunal being not entitled to draw such an inference i.e. offending vehicle being used for driving school even assuming the fact of same being fitted with duel control system being established;
vii) Tribunal having failed to appreciate that there was absolutely no evidence on record that at the time of the accident in question the vehicle involved in the accident was being used for the purposes of driving school;
viii) Tribunal having miserably missed significance of the evidence of driver of offending vehicle that he is possessing valid licence and particularly in light of matters stated in the insurance policy at Exh.36 and evidence having failed to establish of there being other occupants in the vehicle at the time of the accident;
ix) Tribunal in absence of any cogent evidence on record of the vehicle involved in accident being used for a driving school at the time of the accident having further manifestly erred in coming to conclusion of breach of insurance policy having occurred;
x) Tribunal erred in not coming to conclusion of breach of conditions of policy being not established insurer were not absolved with their joint and several liability with owner;
xi) Tribunal having committed serious error in absolving insurer in paying compensation and saddling same only upon appellant.
13. Contrary to aboves stated submissions learned Counsel for insurer supported judgment passed by Tribunal and prayed for dismissal of appeals preferred by owner and claimants by contending that:
i) Tribunal was fully justified in making deduction of 20 % on count of lump sum amount of compensation being awarded to claimants as receiving lump sum compensation was in nature of receiving accelerated benefit;
ii) though claimants were entitled to seek/receive compensation for loss occurred to them , still themselves being not entitled to have accelerated benefit, the deduction made on the said count cannot be faulted with as hardly any material was placed on record by claimants revealing deduction on such a count being improper;
iii) the insurance cover being accorded for the personal use of offending vehicle and in fact offending vehicle being found fitted with dual control system and the reason behind the same being not explained by appellant and on the contrary the same being admitted by his driver; Tribunal having legitimately drawn the conclusion of the offending vehicle being used for the purposes of a driving school;
iv) the said facets having clearly established offending vehicle being used for the purposes for which the same was not insured; justifies Tribunal coming to the conclusion of breach of terms of insurance policy having occurred absolving insurer of liability to pay compensation in event of arising of an accident and hence the act of Tribunal of absolving insurer of liability to pay compensation is unquestionable;
14. After giving thoughtful consideration to submissions advanced by learned Counsel for the parties and carefully examining record and proceeding, the following points arise for our consideration with our findings thereon as recorded at the end of discussion made for respective point:
i) Whether Tribunal was justified in coming to conclusion of breach of terms and conditions of insurance policy having occurred entitling insurer being absolved from the liability?
ii) Whether Tribunal was justified in making 20% deduction of the amount of compensation assessed on the basis of the dependency of the original claimants in view of the death of deceased occurred.
iii) What order ?
15. Point No. (i) : In true sense entire vigor of the contentions of insurer about the relevant aspect is based upon the vehicle involved in the accident being fitted with dual control system and said facets itself being sufficient to establish of insured vehicle being used for the purposes of driving school and the policy of insurance at Exh.37 not including such a purpose, the breach of same thereby having occurred.
16. Now examining said aspects in light of the record of proceeding, we find difficult to agree with criticism advanced by learned Counsel for claimants as well as for owner of Tribunal having relied upon report of investigator appointed by Insurance Company i.e. report which was placed on record through evidence of witness examined on behalf of Insurer i.e. DW2 Pandurang. We are of such a view as his evidence does not reveal Tribunal having marked said report as an exhibit due to same being proved. Additionally even the judgment given by Tribunal and particularly reasoning regarding relevant aspect recorded in paragraph No. 14 also does not reveal any reliance being placed on the said report by Tribunal. Needless to add hence all criticism levelled of tribunal having placed reliance upon inadmissible evidence for coming to conclusion of vehicle being fitted with duel control system will not deserve any credence.
17. In the same context reasoning recorded by Tribunal in paragraph No. 14 of the judgment reveals of the Tribunal having placed reliance upon the evidence of the witness for owner Shri Ashok Ghanshyam Lohkare, the evidence of witness for insurer Pandurang Santosh Shende and particularly registration particulars of the vehicle obtained by the investigator about the offending vehicle at Exh.37.
18. Though it is true that respondent No. 2 has not examined investigator and in view of same report of investigation made by her being inadmissible in evidence, and hence same being rightly not admitted by the Tribunal in the evidence; still merely because of same registration particulars of offending vehicle furnished by RTO authorities and collected by her would not deserve the exclusion, as evidence of Pandurang Shende reveals that Insurance Company had appointed Advocate Monica Arland as an investigator and she had made inquiry and obtained particulars of registration of offending vehicle from RTO authorities. During his evidence the said particulars of registration at Exh.37 produced by him was rightly admitted in evidence by Tribunal on the count of same being public document. Now considering said document at Exh.37 in light of said evidence of DW2 Pandurang, which has remained to be challenged on behalf of the claimants and owner regarding said aspect and so also evidence of said witness not containing any material/circumstance therein for not accepting his said claim, there would be hardly any worthy reason for not taking into consideration matters revealed from the said document. The same is apparent in view of said document being admissible on the count of being public document.
19. Now considering said facets in light of provisions of Section 160 of Motor Vehicles Act which amongst others cast a duty upon a registering authority to furnish, amongst other to insurer relevant information in prescribed form, as required by the said provision, it is difficult to accept that admission of said document was improper. Needless to add that considering true import of and/or purpose behind making the provision as contained in Section 160, no error can be said to have been committed by Tribunal by admitting said document on the count of being public document. Now reference to said document and particularly the endorsement made at the foot towards left side in terms reveals that offending vehicle was fitted with dual control system as per the order dated 29.11.1997.
20. It is true that said document thus establishes of such a dual control being fitted to vehicle in the year 1997. It is also true that accident in question had occurred in the year 2002. However, considering the provisions of Section 52 of the Motor Vehicles Act which does not permit to effect any alteration in a motor vehicle as prescribed therein and further requires that in event of making any such alteration reporting the same within 14 days to the authority and getting the said alteration recorded in the registration certificate, would definitely lead to the conclusion of offending vehicle being fitted with dual control system even on the date of an accident.
21. Apart from aforesaid, considering admission given by witness of owner namely Ashok Ghanshyam Lohkare during the cross-examination that in the year 1997 owner had given an application to RTO by the end of November, 1997 considered in proper perspective would definitely lead to the conclusion of offending vehicle being fitted with dual control system. It is true that the same witness had denied that accordingly (i.e. as per application) the vehicle was treated as a vehicle having due control system. However, said aspect of his evidence will be required to be discarded on the count of being incredible in view of the entries in the registration certificate of the vehicle showing the position being otherwise. Needless to add that matters from the said entry as revealed from Exh.37 is bound to have prevailing effect upon contrary evidence of said witness. Furthermore said witness has also not been further by the cross-examined by the concerned parties upon relevant aspect for bringing any other circumstance on record for coming to otherwise conclusion.
22. Though it is true that on basis of aforesaid evidence the Tribunal was right in coming to conclusion of the offending vehicle being fitted with dual control system, still there appears substance in further criticism made by the learned Counsel for the owner and the claimants of the said facets by ipso facto being not sufficient to come to the conclusion of offending vehicle being used for a driving school.
23. We find substance in said criticism advanced as careful perusal of entire evidence adduced before Tribunal, beyond said established facets of vehicle being fitted with dual control, does not reveal any further evidence being adduced/surfaced on record regarding in fact offending vehicle was being used for a driving school either before or at the time of the accident.
24. We are of such a considered opinion as evidence of claimant or her witness is totally silent upon relevant aspect. Though such a claim has been staked by witness for insurer, the said claim is apparently based upon derivative evidence, as same reveals of same being based upon the matters gathered by him from the report of investigator. Now even giving all concessions for the said aspect, even the said matters gathered by him also do not reveal any knowledge/information about such user being personally gathered/ascertained/verified by investigator and having reported relevant aspects leading her to come to such conclusion to said witness or the Company. Needless to add even the matter gathered by the investigator appears to have been confined to the matters recorded in the registration certificate. Thus hardly there is any substantive evidence on record regarding facets of the offending vehicle being used or being found to have been used for a driving school.
25. Apart from the aforesaid even carefully considering the evidence of the witness for owner who was driving the said vehicle at the time of accident, the same does not reveal any admission being elicited from him during cross examination of offending vehicle being used for the purposes of driving school at any point of time. On the contrary there appears to be a categorical denial on part of the said witness of same being used for such purpose. It is true that said witness has admitted of husband of respondent No. 1 running a driving school. However, himself having denied of the offending vehicle being used for the said school, it is difficult to accept that his evidence can be of any use for drawing such a conclusion.
26. Apart from the aforesaid in order to avoid occurring of miscarriage of justice, the careful perusal of entire record made by us also does not reveal any direct evidence leading to conclusion of offending vehicle at the time of an accident being used for the purposes of driving school or any circumstance leading such inference being brought on record. Such conclusion is apparent after taking into consideration unchallenged circumstances revealed from evidence of said driver Ashok i.e. he was driving vehicle at the time of accident and he is holding a valid driving licence. It is further significant to note that hardly any evidence has surfaced on the record to the effect of there being any other persons travelling by the said vehicle at the time of accident.
27. Now considering significance of said circumstance it can be safely said that same totally rules out any possibility of the offending vehicle being used for purposes of driving school when accident had occurred. The same is obvious as a driver holding a valid licence cannot be said to have then using the same for learning driving or teaching driving to anybody else. Thus even accepting that said vehicle was fitted with dual control system, still there being absence of evidence of same either prior and particularly at the time of accident being used for a driving school makes it difficult to accept such conclusion drawn by Tribunal being proper.
28. In aforesaid state of evidence we had put a query to the learned Counsel for the insurer to point out a provision because of which such a conclusion can be drawn only on the basis of the vehicle being fitted with dual control system. But the learned Counsel was not able to point out any such provision for supporting proposition canvassed by him.
29. We are afraid that any such conclusion can be said to be emerging as canvassed due to no provision giving rise to such presumption or otherwise warranting such an inference being not pointed by the learned Counsel for insurer and as discussed earlier even the evidence has failed to establish of the offending vehicle at the time of accident in fact was being used for the purposes of driving school.
30. In the same context no credence can be given to the grievance made by the learned Counsel for insurer on the count of owner having failed to give explanation regarding fitting of dual control system to offending vehicle, as in spite of registration particulars at Exh. 37 revealing such alteration being caused as per order dated 29.11.1997 and the witness of the owner having admitted of owner having given an application to RTO by the end of November, 1997, insurer had failed to adduce any cogent evidence regarding the purpose for which owner had got dual control system fitted to the vehicle. In the same context we also feel it necessary to record of there being failure on the part of insurance company to establish the relevant facets by leading the evidence about ancillary facets contended in the additional written statement belatedly filed in the proceedings.
31. In the same context we also do not find any substance in grievance made of owner having suppressed said facets from the insurance company, after taking into account the fact of insurance policy being accorded on 18.06.2002 and the same being for the period from 19.6.2002 to 18.6.2002 (as revealed from Cover Note (Exh.36) and vehicle being fitted with duel control system in the year 1997 and insurance company being required/expected to inspect the vehicle prior to insuring the same. Thus, in light of last aspects from aforesaid, it makes us difficult to accept of insurer being unaware of relevant facets and/or at least same being suppressed by the owner.
32. On the aforesaid backdrop now reverting to insurance policy or in true sense the Insurance Cover Note produced at Exh.36 and same inter alia revealing that liability of paid driver was covered under the same, the evidence Ashok Lohkare i.e. he was driver owner, he was having valid driving licence and in absence of any evidence of offending vehicle at the time of accident being used for driving school makes it extremely difficult for us to accept that the Tribunal had rightly come to conclusion of the breach of the terms of insurance policy having occurred. We are constrained to observe the same as while interpreting breach of terms and conditions of an insurance policy, the same would be required to be determined considering the alleged act giving rise to liability to pay the compensation for which the owner had obtained the insurance cover.
33. In the present case right to recover compensation being germane to act of driver of owner , driving the offending vehicle causing the death of Kanhaiyalal and there being total failure on the part of insurer to establish that while committing said act vehicle being used for the purposes for which the policy was not issued i.e. using the vehicle for driving school and on the contrary the evidence having indicated otherwise i.e. the driver was having valid licence, the vehicle being not used for driving school and thus his act being well covered within the terms and conditions of insurance policy, submission of breach thereof having occurred can never be accepted. Hence, for all above narrated reasons, we answer point No. (i) in negative. Point No. (ii):
34. After taking into consideration reasoning given by Tribunal in paragraph No. 10 of his judgment for making 20 % deduction from the amount of loss in dependency caused to the claimants assessed, we find considerable force in the submission advanced by the learned Counsel for the claimants as the said reasoning does not transcend beyond two aspects i.e. such a deduction being made by Tribunal on the count of same being accelerated payment and such a deduction being required to be made on count of decision in a case of Sakharibai Hasanali referred by the Tribunal in the said paragraph i.e. referred earlier hereinabove.
35. In the context of submission of payment of lump sum compensation to claimants being in the nature of receiving accelerated benefit, it will be necessary to say that even assuming the said aspect and carefully considering the evidence, we do not find any facets having either brought or surfaced on a record not entitling the claimants the payment in lump sum even accepting the same being in the nature of accelerated benefit. Apart from the same the bare perusal of the operative order passed by Tribunal also militates against claimants receiving lump sum payment due to Tribunal having ordered of depositing in Nationalized Bank sizable percentage of an amount to which respective claimants were found to be entitled from the compensation awarded i.e. 90 % of the share of claimant No. 1 entire of claimant Nos. 2 and 3 and 60 % of the share of claimants No. 4 and 5. On the said backdrop, we are unable to persuade ourself to find any rationality, propriety in deduction of 20 % made by Tribunal while assessing and awarding the compensation.
36. Apart from aforesaid we also find all substance in submission advanced by counsel for appellant of ordering such a deduction being in contrary to law pronounced by Hon'ble Court. In same context though we are not in an agreement with submission of learned Counsel for claimants that decision of Apex Court in case of Gyanchand referred by him reveals such a position due to perusal of the said decision not revealing any direct dilation upon relevant aspect being made by the Hon'ble Apex Court and in said case making of such a deduction being not upheld by Hon'ble High Court and the said finding being not disturbed by the Hon'ble Apex Court; still reference to decision in a case of National Insurance Company Ltd. v. Mrs. Swarnalata Das and Ors. reported in : AIR 1993 S.C. Page 1259 fully supports relevant proposition canvassed learned Counsel for the claimants.
37. The same is obvious as said decision in terms reveals of Hon'ble Apex Court having observed of appropriate method of assessment of compensation, being method of capitalization of net income, choosing a multiplier appropriate to the age of deceased or age of dependents whichever multiplier being lower. The further observation also reveals that other method of aggregating total expected income for remainder of life expectancy with appropriate deduction towards uncertainty of life and for lump sum payment being not appropriate or scientific method. Similarly the deduction on count of lump sum payment of compensation are also found disapproved by Hon'ble Apex Court particularly for reasons given in paragraph No. 7 of the decision in a case of Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation reported in : AIR 1992 SC page 1261.
38. Even careful perusal of a decision of Gauhati High Court in a case of Sakharibai Hasanali relied by Tribunal also not showing any specific reasoning given by said High Court on count of lump sum payment being made in a said case and so also the decision given by Tribunal. Apart from the same even evidence in the present case not revealing any fact situation in particular warranting the Tribunal to proceed on the said basis being established, in spite of explicit law pronounced by the Apex Court being as stated in the preceding paragraph, we have no hesitation in concluding of the Tribunal being wholly unjustified in making deduction of 20 % on the relevant count. Needless to say that deduction made by the Tribunal on the relevant count cannot be upheld and the error occurred due to making such a deduction will be required to be rectified by setting aside the deductions unnecessary effected. In the premises, we answer point No. (ii) in negative. Point No. (iii):
39. In consonance with conclusion arrived for point No. (ii) after setting aside unwarranted deduction of 20 % made by Tribunal from the loss of dependency assessed , claimants will be required to be held entitled to compensation of Rs. 8,19,200/- as assessed by Tribunal prior to making such deduction on the said count. None of the parties before us having made a grievance about basis on which the same was assessed and since we also do not find any other fault in the manner of assessment of the compensation made by Tribunal warranting interference on our part and by adding the other amount of compensation to which the Tribunal had held claimants to be entitled and recited by us in earlier part of judgment, we hold of the claimants being found entitled to a compensation of Rs. 8,44,200/- . In view of the same, we set aside the relevant part of the judgment accordingly by allowing relevant part of appeal made by the claimants.
40. Not reverting to other aspect involved in these appeals and in view of the conclusion arrived by us on point No. (i) of the respondent No. 2 having not established breach of terms of the conditions of the insurance policy having occurred, we are unable to uphold the judgment of absolving respondent No. 2 of liability to pay compensation to claimants in view of liability of respondent No. 2 due to contract of an insurance entered by them with respondent No. 1. Hence we allow appeal preferred by owner in said respect.
41. Before parting with the judgment, we fell it necessary to record that learned Counsel owner/appellant in First Appeal No. 91 of 2004 amongst other contentions, has urged that even in event of ourself upholding finding of Tribunal of breach of insurance policy having occurred, still the same being not a fundamental breach, insurance company should not be absolved of its liability. In the same context learned Counsel for claimants has also urged that in such a eventuality the insurance company should not be absolved of entire liability and at least an order should be passed in a nature of directing them to pay the compensation assessed to the claimants with a right to recover the same thereafter from owner of the offending vehicle.
42. For canvassing the aforesaid proposition, the counsel for the owner/appellant has also placed reliance in the decisions in a case of i) Oriental Insurance Co. Ltd. v. Ashok Ramvilasji Vyas and Ors. reported in 2004 (4) ALL M.R. 100, ii) New India Assurance Co. Ltd. Hyderabad v. S.V. Balakrishna and Ors. Reported in 1997 (2) T.A.C. 197 (A.P.), (iii) New India Assurance Co. Ltd. v. Madhusudan Raut and Anr. reported in : I (1994) ACC 33, (iv) United India Insurance Co. Ltd. v. Manik Rao and Ors. reported in : 2003 ACJ 770.
43. Since we have come to the conclusion of breach of the insurance policy having not occurred , we feel it wholly unnecessary to embark upon making any discussion upon the said aspect canvassed or about the decision relied in said context.
44. Thus we allow both the appeals and modify Award passed by Tribunal by allowing the claim for compensation made by claimants to the tune of Rs. 8,44,200/- inclusive of interim compensation and/or compensation so far received by them (with an interest at the rate of 6% per annum upon the said amount from the date of original claim petition) jointly and severally against owner and insurer. The owner and the insurer to take necessary steps for satisfying the said claim by making deposit of requisite amount in Tribunal within three months from today. During pendency of these appeals amount deposited towards compensation/for satisfying Award challenged and lying in this Court be transferred to Tribunal at the earliest and in any event within six weeks from today. The Tribunal to make apportionment of total compensation amongst the claimants on the same basis upon which the same was made by Tribunal. The Tribunal shall pass appropriate order for investment and disbursement of the compensation by following the guidelines laid down by the Apex Court in the case of General Manager, Kerala State Road Transport Corporation v. Susamma Thomas reported in (1994) 2 Supreme Court Cases 176. Thus, we dispose of aforesaid appeals in above terms with no order as to costs.