S.R. Waghmare, J.
1. These are two appeals arising out of the same accident and award dated 21.7.1999 passed by the First Additional Motor Accidents Claims Tribunal, Katni in Claim Case No. 271 of 1996.
2. M.A. No. 1861 of 1999 has been filed by the non-applicant National Insurance Co. Ltd. challenging the award on the ground that the liability has been wrongly fastened on the insurance company since the driver of the alleged vehicle causing the accident did not possess a valid licence at the time of the accident and due to breach in terms and conditions of the insurance policy the company cannot be held liable to pay the compensation.
3. M.A. No. 2007 of 1997 has been filed by the claimants assailing the award mainly on the grounds that the compensation awarded is too low and needs to be enhanced since the Tribunal has erred in assessing monthly income of the deceased and, therefore, drawn wrong conclusion regarding the dependency thereto and the awarded amount need to be modified since the correct multiplier has also not been adopted by the Tribunal.
4. The brief facts of the case are that on 22.2.1995 at about 9.30 p.m. the deceased Nemchand Dumar was walking with the barat procession towards school, Piproda at Sihora, on the way suddenly truck bearing registration No. MP 21-7059 being rashly and negligently driven by Mangal Singh, non-applicant No. 1, dashed against the applicant as a result of which he received grievous injuries and died on the spot. The matter was reported to Police Thana, Tikuri and crime registered at No. 56 of 1995.
5. Applicants-claimants are the widow and minor children of the deceased. They filed a claim for Rs. 2,50,000 stating that the deceased was a safai karmachari in the Sihora Municipal Corporation, aged 35 years and earning Rs. 1,992 per month and that all the claimants were dependent on him.
6. Non-applicant Nos. 1 and 2 denied the claim, denying the accident, age, pay and death of the deceased, claiming the liability and stating that the non-applicant No. 3 was the insurer of the alleged truck was responsible for payment of the compensation.
7. The non-applicant No. 3 resisted the claim stating that since the driver of the truck did not have a valid licence there was infraction of the condition of policy and the company was not liable to pay the compensation awarded.
8. Having considered the material on record and evidence the Tribunal came to a conclusion that the accident was caused by rash and negligent driving of the driver of the alleged truck and computing the loss of income, dependency and other various expenses granted a total compensation of Rs. 2,29,000 to be paid jointly and severally by the non-applicants.
9. Considering M.A. No. 1861 of 1999 filed by the insurance company first, it is claimed that the appellant insurance company, should have been exonerated on the ground that despite the insurance the driver of the alleged truck did not possess a valid licence at the time of the accident and the non-applicant examined the Manager, I.S. Hindul, N.A.W. No. 3, who has deposed that on investigation it was found that the non-applicant, driver Mangal Singh, had a valid licence from 13.2.1993 to 12.2.1995 and then from 27.5.1997 to 26.5.2000, when it was renewed and hence at the time of the alleged accident, i.e., 22.2.1995 the non-applicant driver did not have a valid licence and hence the company was not liable to pay the compensation and has been erroneously saddled by learned Tribunal.
10. On perusing the award and the material on record Exh. P1 is the licence which has not been objected to by the non-applicant No. 3, the report of the R.T.O., Exhs. P3 and P4, it is apparent that on the alleged date of accident the driver did not possess a valid licence in terms of the provisions of Motor Vehicles Act, 1988. The Tribunal relying on Oriental Insurance Co. Ltd. v. Indira Rani , held that though the driver of the vehicle did not possess a valid licence it cannot be said that on the said date the driver did not hold any licence at all. That the driver was not incapable of holding a licence or that the licence which was renewed intimated that the driver could be held to be having an invalid licence at the time of the alleged accident hence the liability cannot be shrugged off by the insurance company. However, much water has flown below the bridge since then. The recent view of the Apex Court in the matter of holding an invalid licence, temporary licence and no licence at all has been considered on the anvil of judgment in National Insurance Co. Ltd. v. Swaran Singh : AIR2004SC1531 and National Insurance Co. Ltd. v. Baljit Kaur : AIR2004SC1340 and it has been consistently the view of the Apex Court that so far as the third party risks are concerned the insurer shall pay to claimants (third party) first even if not liable to pay compensation awarded under the policy and recover from the insured-owner. In the recent case of Pramod Kumar Agrawal v. Mushtari Begum : AIR2004SC4360 , in para 12 the Apex Court had also granted directions as to how the insurance company shall first pay and recover from the insurer.
11. In view of the above the appeal of the insurance company M.A. No. 1861 of 1999 must fail. However, the insurer shall pay the enhanced amount in the terms of Pramod Kumar Agrawal's case, : AIR2004SC4360 .
12. In the appeal filed by the claimants M.A. No. 2007 of 1999 the main assail to the award is that the sum awarded is quite meagre and the deduction of Rs. 396 or Rs. 400 for 6 days of unpaid leave for each month and deduction of 1/3rd from the salary to calculate dependency at Rs. 1,192 per month and the annual dependency at Rs. 14,000 by deducting Rs. 304 which is illegal. The multiplier adopted is also incorrect since the deceased was 32 years of age. On perusing the record and scrutinising the award we find that Claims Tribunal has erred in computing the dependency deducting 1/3rd from the accepted salary of the deceased as a safai karamachari to be Rs. 1,992. The deductions made by the Tribunal are uncalled for and hence the resultant loss is caused to the claimants who are quite a few in number and in order to grant just and fair compensation the award needs to be enhanced on this ground as well. The computed dependency thus deducting 1/3rd of the salary of Rs. 1,992 shall amount to Rs. 1,328. The annual dependency would be Rs. 15,936. The multiplier that is to be adopted according to Second Schedule to Motor Vehicles Act, 1988 for a person of 32 years is 17. Thus, the amount would be Rs. 2,70,912 and Rs. 5,000 for loss of consortium to widow, Rs. 2,500 for loss to the estate, Rs. 2,000 towards funeral expenses rounding off to Rs. 10,000; total amount of compensation would come to Rs. 2,80,912 which is to be paid by the non-applicants to the claimants within two months from the date of this order with interest at the rate of 6 per cent per annum on the enhanced amount. Thus, the award of the Tribunal is modified to this extent and the enhanced amount of compensation to be paid to the appellant within the time stipulated above. In case of default the rate of interest be enhanced to 9 per cent.
13. M.A. No. 2007 of 1999 is partly allowed. No order as to costs.