Judgment:
Mansoor Ahmad Mir, J.
1. These appeals are directed against the judgment/award dated 24th of March, 2007 passed by Motor Accident Claims Tribunal, Srinagar, whereby and whereunder a batch of claim petitions-Claim petition Nos. 75, 76 and 77 came to be decided, hereinafter short impugned award.
2. Insurer-appellant feeling aggrieved preferred these appeals on the grounds taken in the memo of appeal.
3. The brief facts of the case, the womb of which has given rise to these appeals are that Ishpal Singh-driver has driven the petrol tanker No. 7701/JKE-offending vehicle rashly and negligently at Rambagh near Khaliq Crossing and hit a Taxi bearing registration No. 4757/JKT and in the process taxi turned turtle. Mst. Fareeda, her newly born child and Mst. Shah who were traveling in the said vehicle/taxi sustained injuries and succumbed to injuries and taxi was also badly damaged. FIR No. 50/1999 came to be registered in P/S Shergri under Section 289, 304(A), 427 of RPC. The victims of the vehicular accident tiled claim petitions for grant of compensation on the ground that they have been deprived of their source of livelihood, dependency, help and source of hope in the old age and the said claim petitions came to be diarized as Claim petition Nos. 75/1999, 76/1999, 77/1999. The owner of the taxi, Nissar Ahmad Sheikh, also filed a claim petition for grant of compensation on the grounds that the vehicle-taxi was completely damaged.
4. Non-applicants and the appellant resisted the claim petition. Following issues came to be framed in Claim Petition Nos. 75, 76 and 77 of 1999:
1) Whether on 12.3.1999 the respondent No. 1 Ishpal Singh was driving the vehicle petrol tanker bearing Reg. No. 7701/JKE rashly and negligently as a result of which at Solina Bazar near Petrol Pump hit taxi No. 4757 JKT in which the deceased Mst. Fareeda along with her newly born baby and Mst. Shaha loss their lives? OPP
2) In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP
3) Whether the claim petition is not maintainable due to non joinder of essential party? OPR4
4) Whether the driver of the offending vehicle was not holding driving license and as such insurance company can not be saddled with the liability? OPR4
5) Relief.
5. Mushtaq Ahmad Shah and Nissar Ahmad Sheikh besides themselves examined, Mohammad Saleem Khan, Dr. Nazir Ahmad Qanoongo, Aijaz Ahmad Baba, Morifat Nissar and also produced copies of site plan, FIR, challan and seizure memo.
6. Non-applicants 1 to 3 examined only one witness, namely, Ghulam Nabi Sheikh and non-applicant No. 4-insurer-appellant also examined one witness, namely, Vijay Sharma, Licensing Clerk RTO Jammu.
Brief Resume of Evidence of the Claimants;
7. All the witnesses have deposed that the driver of the offending vehicle- tanker has driven the vehicle rashly and negligently, and hit the taxi in which Mst. Fareeda, her newly born child and Mst. Shaha were traveling sustained injuries and succumbed to injuries, at Solina Bazar near Khaliq Crossing. The taxi turned turtle. The said accident was outcome of rash and negligent driving of driver-Ishpal Singh. The said evidence has remained un-rebutted.
Brief Resume of the Evidence of non-applicant No. 4- Appellant.
8. Witnesses have deposed that driver, Ishpal Singh, was having licence to drive heavy goods vehicle and the licence was also bearing the endorsement/authorization to drive Hazardous Goods Vehicle but that endorsement was valid for a period of one year from 28th of December, 1997 to 27th of December, 1998 and no endorsement of renewal was made 30.12.2001 and came to be made from 30th of December, 2001 to 29th December, 2002. The insurer has not led any evidence in order to indicate that the driver was dis-qualified for driving Hazardous Goods Vehicle on any count during the said period. The factum of insurance is admitted.
Issuewise finding;
9. There is ample evidence on record of the Tribunal that driver-Ishpal Singh has driven the offending vehicle-tanker rashly and negligently and caused the vehicular accident. Three persons-Fareeda, her minor child and Mst. Shaha lost their lives. In the given circumstances of the case, I am of the considered view that finding returned by the Tribunal needs no interference.
Issue No. 2;
10. The finding is to be returned separately in all the appeals for the reasons that it is to be held whether the proper and appropriate-just compensation came to be granted in favour of the claimants vide the impugned award.
CIMA No. 127/2007-Claim Petition No. 75/99;
11. Admittedly, deceased Mst. Shaha 55 years of age being house wife was rendering services to her family. By guess work it can be held and said that the claimants/victims of vehicular accident have now to engage labourer/attendant for watch and ward, maintenance and cleaning of the household goods at the rate of Rs. 4500/per month. Thus claimants have suffered a loss to the tune of Rs. 4500/-per month. The claimants have not only lost services of their mother but have also lost love and affection which cannot be compensated in terms of money.
12. It appears that Tribunal has assessed the loss of services to the tune of Rs. 3000/- per month which in my opinion is very meager and on lower side. However, claimants-respondents 1 to 3 have not challenged the award. Thus, in the given circumstances, I am of the considered view that the loss of source of income came to be rightly assessed by the Tribunal.
13. Admittedly the age of the deceased was 55 years at the relevant point of time. Keeping in view the schedule appended to the Motor Vehicles Act, multiplier 8 came to be rightly applied.
CIMA No. 129-Claim Petition No. 76/1999;
14. As per the postmortem report and other evidence on record, Mst. Fareeda was 35 years of age at the time of accident and the Tribunal has rightly taken her age as 35 years. She has left behind her husband, two minor daughters and mother. Husband, namely, Mushtaq Ahmad Shah has lost matrimonial life. The daughters have lost their mother. Money is not the substitute either for matrimonial life or for love and affection of mother. I am of the considered view that tribunal has fallen in error while assessing loss of income, loss of source of service and loss of services to the tune of Rs. 3000/-. However, the claimants have not assailed the impugned award. Thus, I deem it proper to maintain the finding. The multiplier 16 rightly came to be applied.
CIMA No. 130/2007-Claim Petition No. 77/1999:
15. The victim was a newly born baby thereby the respondents-claimants Mushtaq Ahmad Shah has lost her daughter while as Mutahida Jan and Huma have lost their sister. The Tribunal while relying on a judgment of the Apex Court in case titled Manjoo Devi v. Musafir Paswan reported as 2005 ACJ 99, awarded Rs. 2,25,000/- in favour of father. The Tribunal has not discussed the other aspect of the case. Keeping in view the recent judgments of the Apex Court, the amount awarded is very meager. By guess work, it can be held that after 18 years, the deceased would have become earning hand and would have been earning at least Rs. 4500/- per month even if taken as labourer and would have contributed to her father and two sisters. The multiplier applicable was 18 and the loss of dependency could have been Rs. 3000/- per month. But claimants have not challenged the impugned award. Thus, in the given circumstances, it is hereby held that Rs. 2,25,000/- came to be rightly awarded.
The question is whether the Tribunal has rightly saddled the insurer with the liability
16. The amount of compensation awarded in favour of the claimants of Claim Petition Nos. 75, 76 and 77 is just and appropriate and needs no interference as held hereinabove. The factum of insurance is also not in dispute but the dispute is about the saddling of liability. The insurer-appellant has taken a ground that driver was not having effective and valid driving licence at the relevant point of time-12th of March, 1999 the date of accident.
17. Admittedly, the driver was competent to drive heavy goods vehicle including the Hazardous Goods Vehicle but he had not obtained the renewal endorsement after 27th of December, 1998 till 31st of December, 2001, but the insurer has failed to prove that driver was dis-qualified to drive the offending vehicle. There is not an iota of evidence suggesting the fact that driver was not competent to drive the Hazardous Goods Vehicle from 27th of December, 1998 till 2001.
18. There are catena of judgments that when the driver is having driving licence for a particular period of vehicle and could not renew it for so many reasons and thereafter got it renewed after the date of accident, that cannot be made basis for holding that driver was not having effective/valid driving case titled licence at the relevant time.
19. The apex court in a leading case titled National Insurance Co. v. Swaran Singh : AIR2004SC1531 held that if driver is competent to drive one type of vehicle and was driving another type of vehicle at the time of accident, the insurer has to prove by leading evidence before the court that, it was the main or contributory cause of accident. It is profitable to reproduce a portion of para 84 of the said judgment, so far it is relevant for the present, hereunder:
In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
20. In Swaran Singh's case (supra), the apex court has laid down test when and how insurer can avoid liability. It is profitable to reproduce para 105 (iii)(iv) and (vi) herein:
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards insured, me insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(vi) Even where 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 insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insured under Section 149(2) of the Act.
21. As discussed above, there is nothing on the file to show that the insurer has pleaded and proved before the Tribunal that the insured was guilty of negligence and has committed any willful breach.
22. Division Bench of this Court has also held, in case titled National Insurance Company Limited v. Mohammad Sidiq Kuchay and Ors. 2008 (1) JKJ HC 422 : LPA No. 180/2002 that insurer has to be saddled with the liability in the given circumstances.
23. Thus the insurer-appellant has failed to prove that driver was not having valid and effective driving licence and the insurer has failed to prove that owner has committed breach in terms of Section 149 in order to avoid liability. As such, the finding returned by the Tribunal needs no interference.
24. In the given circumstances, I am of the considered view that Tribunal has rightly saddled the insurer with the liability.
In view of the above discussion, I am of the considered view that Tribunal has not committed any error and accordingly the impugned award is upheld and appeals are dismissed.
Registry to send down the record along with a copy of this judgment.