Oriental Insurance Co. Ltd. Vs. Manju Gupta Nd Others - Court Judgment

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motor vehicles - payment of insurance - section 149 of motor vehicles act, 1988 - objection to pay insurance amount on basis of absence of valid license for driver rejected on lack of evidence - findings regarding age and income of deceased based on valid records - nothing to prove contrary - assessment of compensation and application of multiplier also challenged - application of multiplier of 17 justified as deceased below 25 years of age - held, assessment in impugned order of tribunal justified as computed in accordance with cogent findings. - - besides that, it is well-settled legal position that the insurance company is required to establish and satisfy the tribunal that the insured was guilty of infringement or violation of the terms and such violation or infringement on the part of the insured was wilful. in the case in hand, the appellant having failed to adduce any evidence to the effect that the vehicle at the time of accident was being driven by a person who was not authorized and had no valid licence to drive the vehicle, did not discharge the onus to prove the aforesaid fact and as such, this plea is not available to the appellant.s. r. alam, j.1. this appeal under section 173 of the motor vehicles act has been filed against the award of the motor accidents claim tribunal, ferozabad, dated 16.12.1998 in claim petition no. 148 of 1993 awarding a compensation of rs. 5,50,893- to the dependants of the deceased who died in a road accident.2. heard learned counsel for the appellant and sri b. r. singh, learned advocate for the opposite parties.3. the short facts of the case is that on the fateful day, i.e., 19.3.1993, the deceased ajay kumar gupta, while on way from shikohabad to sirsaganj on a motor cycle bearing registration no. u. p. 83-1790 and when he reached to bye pass road at 2.30 p.m.. truck no. rrd 3447 coming rashly from opposite direction dashed him resulting his instant death on the spot. one naresh kumar who was also riding on pillion, got seriously injured and while being taken to shikohabad hospital, died in the way. the driver fled away leaving the truck at the accident site. the father of the deceased, namely, purshottam das gupta lodged first information report at police station, shikohabad about the accident.4. the widow and parent of ajay kumar gupta filed claim petition no. 148 of 1993 claiming compensation of rs. 29,12,000. it is not in dispute that at the time of death, the deceased ajay kumar gupta was of 25 years age and was working as an l.i.c. agent in the branch office of shikohabad and was earning rs. 4,000 per month. claimant respondent no. 1 is widow of the deceased and claimant respondent nos. 2 and 3 are parents who were dependent upon the deceased. it has also been proved that the death of deceased was caused on account of road accident on 19.3.1993 due to rash and negligent driving of the truck in question. the truck was covered by the policy of insurance, which was filed before the tribunal and marked as paper no. 37-ga. the learned tribunal having appreciated the evidence on record, awarded a compensation of rs. 5,50,893 with interest at the rate of 12% per annum with effect from 21.8.1993, half of which was payable to the widow, claimant respondent no. 1 and remaining half to the mother of the deceased, claimant respondent no. 2.5. learned counsel for the appellant in support of appeal, urged three points ; viz., (i) that the driver who was driving the vehicle in question at the time of accident was not having valid licence ; (ii) that the income of the deceased has not correctly been assessed and calculated ; and (iii) that the multiplier has wrongly been applied by the tribunal.6. having heard the learned counsel for the appellant and also having perused the award, we do not find any merit in any of the points urged by the learned counsel for the appellant.7. from a perusal of the award, it is apparent that issue no. 3 framed by the tribunal was 'whether at the time of accident the driver was having a valid licence.' the tribunal while discussing issue no. 3, has found that no evidence was led or adduced by the insurer to establish that the driver who was driving the truck was not having a valid licence. the owner of the truck and the driver did not appear in the proceeding before the tribunal and, therefore, the onus was on the appellant insurance company to adduce sufficient evidence which could establish and prove that the driver who was driving the vehicle at the time of accident had no valid licence. the tribunal in his award relying on the authority in 1994 acj 635 and 1995 acj 558, has rightly decided issue no. 3 against the appellant. even before this court,learned counsel for the appellant could not point out as to what evidence was led which has not been considered by the learned tribunal. besides that, it is well-settled legal position that the insurance company is required to establish and satisfy the tribunal that the insured was guilty of infringement or violation of the terms and such violation or infringement on the part of the insured was wilful. reference may be made to a judgment of a three-judge bench of the hon'ble supreme court rendered in the case of sohan lal passi v. p. sesh reddy and others, 1996 (5) scc 21, wherein the apex court relying on its earlier judgment rendered in the case of skandia insurance company ltd. v. kokilaben chandravadan, (1987) 2 scc 654, held that section 96(2)(b)(ii) should not be interpreted in a technical manner. sub-section (2) of section 96 only enables the insurance company to defend itself in respect of liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. it has further been held that unless it is established on materials on record that it was the insured who had wilfully violated the conditions of policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of liability in view of sub-section (1) of section 96 of the act. in the case in hand, the appellant having failed to adduce any evidence to the effect that the vehicle at the time of accident was being driven by a person who was not authorized and had no valid licence to drive the vehicle, did not discharge the onus to prove the aforesaid fact and as such, this plea is not available to the appellant.8. the second limb of theargument that the income of deceased has not correctly been assessed and calculated has also no substance and deserves to be rejected. the learned tribunal has found that the income of deceased was rs. 47,770 per annum.this finding is based on a certificate in form 16a issued under rule 31 (1) (b) of the income-tax rules which is prepared and issued by the employer showing the amount of deduction made at source from the salary of the employee. therefore, the finding about the income is based on evidence on record which discloses the actual income of an employee and the same cannot be disbelieved unless proved contrary by giving cogent evidence.9. the last submission that the multiplier has not correctly been applied by the tribunal, has also no substance. the principle of multiplier depends upon the facts and circumstances of each case. the doctor, who conducted the postmortem of the deceased, has recorded his age as 24 years at the time of death. on the other hand, the insurance company, which is appellant before us, did not lead any evidence, which could show that the appellant was above 25 years of age. the tribunal, therefore, relying on post-mortem report and doctor's opinion, found that the deceased was below 25 years of age. the deceased being below 25 years of age, the tribunal has rightly applied the multiplier of seventeen given in schedule ii of act no. 54 of 1994. the death of the deceased caused on account of accident due to rash and negligent driving of the truck in question which was covered under the policy of insurance, having fully been proved, the appellant cannot escape the liability so far the third parties are concerned, on technical grounds. in our opinion, the findings regarding the age and income of the deceased are based on evidence on record and cannot be said to be perverse. similarly, the amount of compensation awarded by the learned tribunal is also just and proper in the facts and circumstances of the case and in any view of the matter, it cannot be held to be excessive or exorbitant in view of the fact that the deceased was an healthy, energetic young man of below 25 years of age and was earning about rs. 48,000 per annum.10. no other point has been urged by the learned counsel for the appellant.11. having given our anxious consideration to the submissions made by the learned counsel for the parties, we do not find any merit in the appeal and it is accordingly, dismissed but without cost.