Mansoor Ahmad Mir, J.
1. An award dated 29.05.2002 passed by Motor Accidents Claims Tribunal, Jammu, gave birth to both these appeals titled above. Motor Accidents Claims Tribunal, Jammu vide impugned award allowed Claim Petition Nos. 102 & 103 of 1997 titled 'Risu Devi and Ors. v. Surinder Kumar Arora' & 'Munna Ram and Ors. v. Surinder Kumar Arora' respectively. Feeling aggrieved, appellant-Insurer filed above titled appeals and questioned saddling the liability and the quantum. Brief facts:
2. Claim Petitioners are the victims of a vehicular accident, which appears to have been caused by respondent Nos. 2 & 4, drivers, while driving offending vehicles; bus bearing registration No. 0382/DLIP and Videocoach bearing registration No. 7967/DLIP rashly and negligently. In the process, both the vehicles hit the scooter bearing registration No. JK02B-6750 as a result of which Balbir Singh and Ganesh Dass sustained injuries and succumbed to the injuries.
3. Claimants in claim petition No. 102, respondent Nos. 1 to 5 in CIMA No. 162/2005; claimants in claim petition No. 103, respondent Nos. 1 to 4 in CIMA No. 208/2002, filed both the claim petitions and claimed compensation on the ground that drivers of the offending vehicles have driven the vehicles rashly and negligently, and have caused the death of their bread earners and have lost the source of dependency. Respondents contested the claim petitions and following issues came to be framed:
1. Whether on 24.03.1997 because of the rash and negligent driving by the respondents No. 2 and 4 of buses No. DLIP-7967 and DLIP-0382 Ganesh Dass and Balbir Kumar received serious injuries and died on the same? - OPP
2. If Issue No. 1 is proved in affirmative to how much amount of compensation the petitioners are entitled to and from whom? - OPP
3. Whether respondents No. 3, 5 and 6 are not liable to any liability and if so on what ground? - OPR
4. Relief. O.P. Parties
The claimants examined witnesses in support of their cases/claims. Appellant examined only one witness namely Bala Ram Singh.
Brief resume of the evidence:
4. All the witnesses of the claimants, respondent Nos. 1 to 5, have deposed that Balbir Singh and Ganesh Dass lost their lives because of vehicular accident, which was caused by respondent Nos. 2 & 4 in both claim petitions (respondent Nos. 6 & 7 in CIMA No. 208/2002 and respondent Nos. 6 & 8 in CIMA No. 162/2005). Deceased- Ganesh Dass, 23 years old, was a grosser and was earning Rs. 100/150 per day and was only earning hand. The claimants have lost their source of dependency. Balbir Singh, 25 years old, was a sweeper in a gas cylinder factory and was earning Rs. 3,000/- per month and he was also earning Rs. 2000-3000 per month from other factories while performing the job of sweeper and was paying Rs. 4,000/- per month to the claimants.
5. The evidence of the claimants has remained unrebuttted. But insurer-appellant has led evidence to the extent that insured, the owner of the vehicle No. DLIP -7967, Surinder Kumar Arora, has paid the premium of the insurance policy by cheque which bounced and it cancelled the policy. It has also produced copy of the said letter of cancellation. The only witness examined by it is Bala Ram Singh, has given details about the insurance policy of the offending vehicle DLIP-7967 and depositing of the cheque in the bank for collection and its bouncing for want of insufficient funds. He has not said whether insurer/appellant had intimated the owner/insured and registering authority about cancellation of the policy and whether they had received the intimation.
Issue No. 1.
6. There is ample evidence on record that drivers of the offending vehicles have driven the offending vehicles rashly and negligently on 24.03.2007 and caused accident by hitting a scooter at Balol Bridge, Bari Brahmana and deceased namely Balbir Singh and Ganesh Dass, who were traveling on scooter, sustained injuries and succumbed to the injuries. Thus, claimants have proved Issue No. 1. The findings returned by the Tribunal need no interference.
7. Issue Nos. 2 & 3 being interdependent, so I deem it proper to discuss and decide in one go. The claimants have proved the Age and Income of Balbir Singh and Ganesh Dass as 25 & 23 years, Rs. 3000-4000/- and Rs. 100/150 per day respectively. Respondents have not led any evidence in rebuttal. The Tribunal has discussed minutely the income of the deceased and after deducting 1/3rd has rightly assessed the loss of dependency to the tune of Rs. 2524/- and Rs. 2334/- in both cases and also proper, appropriate and just multipliers 12 & 13 respectively came to be applied. Thus, assessment made by the Tribunal needs no interference.
8. It is worthwhile to record herein that respondent Nos. 7, 8 & 9 have satisfied the award so far it relates to them and have not questioned the same. Thus, the impugned award has attained finality so far as it relates to liability of respondent Nos. 7, 8 & 9. Insurer with whom the vehicle was insured has questioned the impugned award to the extent of saddling it with liability on two grounds; (i) quantum of compensation; and (ii) liability. It is beaten law of the land that insurer cannot challenge the quantum of compensation in view of the mandate of Section 149 of Motor Vehicles Act. However, it can defend the claim petition on other grounds provided permission is sought and granted in terms of mandate of Section 170 of the Motor Vehicles Act, but no such permission was sought. Thus, it cannot challenge the quantum of compensation.
9. In order to avoid liability, insurer has to prove and plead that the cheque was bounced and insured was intimated. There is nothing on the file, in order to prove that the owner and Regional Transport Officer/authority was informed/intimated about the bouncing of cheque and cancellation of policy. The Hon'ble Apex Court in a case titled as 'Deddappa and Ors. v. Branch Manager, National Insurance Co. Ltd.' : AIR2008SC767 , held that if the contract of insurance is cancelled, all the concerned ought to be intimated. It is apt to reproduce para 24 of the said judgment herein:
24. We are not oblivious of the distinction between the statutory liability of the insurance company vis-'-vis a third party in the context of Sections 147 and 149 of the Act and its liabilities in other cases. But the same liabilities arising under a contract of insurance would have to be met if the contract is valid. If the contract of insurance has been cancelled and all concerned have been intimated thereabout, we are of the opinion, the insurance company would not be liable to satisfy the claim.
10. The Hon'ble High Court of Madhya Pradesh in a case 'National Insurance Co. Ltd. v. Pawan Kumar and Ors.' also held that insurer has to plead and prove that communication regarding dishonour of cheque and cancellation of policy was given to the policy holder. It is apt to reproduce para 4 of the said judgment herein:
4. For establishing the fact of intimation, which admittedly was sent by registered post, the insurance company should have filed the best evidence, i.e., the receipt of sending the postal letter by registered post and the acknowledgement due. Since the material for establishing the fact of sending of intimation to the policyholder is not on record, the finding of the learned Claims Tribunal cannot be said to be have suffered from any error.
11. Reasoning given and the finding returned is not in any way illegal and erroneous.
12. Keeping in view the above discussion, I am of the considered view that the Tribunal has rightly saddled the insurer with liability. Thus, Issue Nos. 2 & 3 came to be rightly decided.
13. I have gone through the impugned award. The claimants have lost their bread earners and source of dependency. The amount awarded in both the claim petition is not excessive or exorbitant in any way. Viewed thus, both appeals merit to be dismissed and, accordingly, dismissed and impugned award upheld.
Copy of the judgment be placed on both the files. Send down the record alongwith copy of this judgment to the Tribunal.