B.P. Das, J.
1. Heard Mr. A.K. Mohanty, the learned Counsel for the appellant and Mr. P.N. Misra, learned Counsel for the respondents.
2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (in short 'the Act') at the instance of the insurer challenging the award dated 12.8.2002 passed by the 3rd Motor Accident Claims Tribunal, Puri, in M.A.C.T. Misc. Case No. 48/144 of 2000/1999.
3. The respondent Nos. 1 to 3, who are the legal heirs of the deceased Baishnab Charan Das, filed an application under Section 166 of the Act stating that the said Baishnab Charan Das was working as special messenger in the Head Office of Puri Gramya Bank at Pipili and on 14.9.1998, after his office duty at about 5.15 p.m. while he was waiting at the bus stop near his office for a Puri bound bus, a bus bearing registration No. OSP 5689 came from Bhubaneswar side and stopped at the aforesaid stop in order to pick up passengers. While the deceased being the last passenger was about to board the bus and had placed one foot on the doorstep of the bus, the driver of the bus without taking sufficient care and without ensuring whether the door of the bus had been closed and all the passengers got into the bus and without blowing horn, unexpectedly drove the vehicle forward at a high speed and in a rash and negligent manner as a result of which there was a jerk and the deceased, who was in the process of getting into the bus, was thrown out of the bus and sustained severe brain injury as well as multiple injuries on several parts of the body. The deceased was immediately shifted to Pipili P.H.C. and then to the District Headquarters Hospital, Puri and ultimately he was shifted to the S.C.B. Medical College Hospital, Cuttack, where he breathed his last on 28.9.1998. The claimant-respondent Nos. 1 to 3 who are the widow, son and mother of the deceased respectively, filed the application before the Claims Tribunal claiming compensation to the tune of Rs. 10,00,000/- for the untimely death of the deceased at the age of 39 years due to the aforesaid motor vehicular accident.
4. The Tribunal considering the future job prospects of the deceased assessed the average monthly salary at Rs. 6,000/- and after deducting one-third there from for personal expenses, determined the monthly contribution of the deceased to his family at Rs. 4,000/-. As the deceased was 39 years of age at the time of death, the Tribunal applied multiplier of 12 and assessed the loss of dependency of the claimants at Rs. 5,76,000/-. Over and above the aforesaid amount, a sum of Rs. 8,000 was awarded towards the expenses incurred for the treatment of the deceased; another Rs. 8,000/- towards loss of consortium to the widow, loss of love and affection to the son and loss of care to the old mother; and a further sum of Rs. 8,000/- towards the expenses for the obsequies of the deceased. The Claims Tribunal thus awarded a total sum of Rs. 6,00,000/- as compensation and directed that the same shall carry interest at the rate of 9 per cent per annum from the date of the claim application. The Claims Tribunal ultimately fastened the liability of payment of the aforesaid compensation amount on the owner of the offending vehicle and directed the same to be indemnified by the insurer.
5. The validity of the driving licence of the driver of the offending vehicle is not under challenge in this appeal. The appellant, however, challenges the validity of the insurance policy saying that as the owner of the offending vehicle, i.e., the respondent No. 4, had not paid the full premium amount towards the insurance of the vehicle, the Tribunal should have held that the insurance policy was not valid and there was no contract between the insurer and insured for which the insurer was not liable to indemnify the awarded amount.
6. On perusing the written statement so filed by the insurer before the Tribunal, I find that the policy of insurance was issued to the insured and the same was valid from 30.6.1998 to 29.6.1999 thus covering the date of the accident, i.e., 14.9.1998. But due to non-payment of balance premium of Rs. 5,335/-, the insurer pleaded that no liability could be fastened on it.
7. There can be no dispute that the insurance policy was a valid one as the same was not cancelled at any point of time due to non-payment of balance premium. Even if the policy would have been cancelled subsequently for nonpayment of balance premium, that would not have exonerated the insurer from indemnifying the third party liability. The question raised by the insurer is no more res Integra in view of the decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Rula : [2000]2SCR148 , wherein it was observed thus:
(9) Thus, any contract of insurance under Chapter 11 of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such a contract-As pointed out by this Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC), the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not the concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer.
(10) It was in the background of the above statutory provisions that the provisions of Section 64-VB, upon which reliance has been placed by learned Counsel for the appellant, were considered by this Court in Oriental Insurance Co. Ltd. v. Inderjit Kaur : (1998)1SCC371 , in which it was laid down as under:We have, therefore, this position. Despite the bar created by Section 64-VB of the Insurance Act, the appellant, an authorised insurer, issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act, the appellant became liable to indemnify third party in respect of the liability which that policy covered and to satisfy the awards of compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that the cheque issued in payment of the premium thereon had not been honoured.
8. In view of the above position of law enunciated by the Hon'ble Supreme Court, the objection of the learned Counsel for the appellant on the ground of invalidity of the insurance policy for non-payment of balance premium fails.
9. The next point raised by the insurer is that while assessing the entitlements of the claimants, the Tribunal has taken average income of the deceased at Rs. 6,000/- per month and after deducting one-third there from towards personal expenses, fixed the contribution of the deceased to the family at Rs. 4,000/-, which, according to the insurer, is on a higher side.
10. Fact remains that the employer of the deceased, i.e., Puri Gramya Bank, by letter dated 1.6.1999, Exh. 2, furnished the 'necessary information' to the widow of the deceased indicating therein that the gross salary drawn by the deceased at the time of his death was Rs. 3,825.33. As to the gross pay of the deceased at the time of his superannuation, had he completed his service tenure, the bank stated the same could not be ascertained. But the bask pay of the deceased at the prevailing salary structure was Rs. 1,520 + D.A. + H.R.A. From the impugned award, I find that the Tribunal has not done any illegality in taking the future prospects of the deceased into consideration. But the amount of Rs. 2,175/-, which has been added to the gross monthly salary of the deceased towards future prospects, in my considered opinion, is on a higher side for which I reduce the same to Rs. 500/-. The monthly average salary of the deceased, therefore, works out to Rs. 4,325/-, i.e., Rs. 3,825 + Rs. 500. After deducting one-third there from towards the personal expenses, i.e., Rs. 1,441/-, the monthly dependency comes to Rs. 2,884/- and yearly it will come to Rs. 34,608/-. Applying the multiplier of 16, which is the appropriate multiplier as per Second Schedule to Section 163-A of the Act, the total compensation is quantified at Rs. 5,53,728/-. Over and above the aforesaid amount, a sum of Rs. 7,500/- each is awarded towards loss of consortium and loss of love and affection and Rs. 2,000/- towards funeral expenses. Thus, the total compensation comes to Rs. 5,70,728/-. The compensation as awarded by the Tribunal, i.e., Rs. 6,00,000/-, is thus reduced to Rs. 5,70,728/-, which shall carry interest at the rate of 9 per cent per annum from the date of claim petition till realisation, as directed by the Tribunal.
11. The misc. appeal is accordingly allowed in part and the award passed by the Tribunal in M.A.C.T. Misc. Case No. 48/144 of 2000/1999 is modified by reducing the awarded amount from Rs. 6,00,000/- to Rs. 5,70,728/-. The appellant insurer is directed to deposit the aforesaid awarded amount of Rs. 5,70,728/-along with the interest as directed above before the Tribunal within a period of 6 weeks hence. After such deposit, the Tribunal shall disburse the said amount amongst the claimants in terms of the direction given by it on proportionate reduction of entitlement of each claimant. There shall be no order as to costs.