The New India Assurance Company, Through Its Divisional Manager Vs. Kalia Behera and ors. - Court Judgment

A.S. Naidu, J.

1. The New India Assurance Company Ltd. has filed this appeal under Section 173(1) of the Motor Vehicles Act assailing the judgment dated 30th January, 2004 passed by the District Judge-cum-Motor Accident Claims Tribunal, Phulbani in MAC Case No. 26 of 2000.

2. The said MAC Case was registered on the basis of an application filed under Section 166 of the Motor Vehicles Act by the parents of one Deba Behera alias Surendra Behera who died in a motor vehicle accident. The said applicants stated that their above-named son who was working as an Cleaner in a bus named 'Rajarani' bearing registration number OR-12-2344 and in course of his employment on 5.4.2000 while he was travelling in the said bus from Berhampur to Mukhiguda due to rash and negligent driving of the driver of the said bus he was thrown out of the bus. He sustained severe multiple injuries including fractures and head injuries and succumbed to that on the very day of accident. They further stated that the deceased was aged 24 years, he was earning Rs. 2,300.00 per moth inclusive of Rs. 1,800.00 being his salary as Cleaner in the bus, Rs. 30.00 a day towards Batta and Rs. 500.00 per month earned by him as an auto-electric mechanic, and his contribution to the family was Rs. 2000.00 per month. On the basis of such averments, the applicants claimed a compensation of Rs. 3,00,000.00.

3. The owner of the offending bus, Smt. Manjula Das, in her written statement admitted that the deceased was employed by her in the bus. She stated that the deceased was being paid by her a monthly wage of Rs. 27,00.00. She took the plea that the bus having been validly insured, the insurer was liable to pay the compensation, if any.

4. The insurer of the offending bus, the present appellant, in its written statement denied its knowledge about the age, occupation, earning of the deceased as well as the manner in which the accidental death occurred and put the applicants to strict proof thereof. It was further averred by the said insurer that the driver of the offending bus having not possessed a valid driving licence, for such reason it was not liable to pay any compensation to the applicants.

5. On the basis of the pleadings of the parties, the learned Tribunal framed six issues for adjudicating the case. To substantiate their respective cases, the parties did not adduce any oral evidence, but the applicants produced seven documents, while the owner of the offending vehicle produced one document and the appellant-insurance company produced four documents which were duly marked as Exhibits. After perusing the certified copies of the FIR lodged with police with regard to the accident and death, final form submitted by police, post-mortem report, seizure-list prepared by police and Zimanama which were exhibited on behalf of the applicants and a threadbare discussion, the learned Tribunal arrived at the conclusion that the death in question occurred as the deceased was thrown out of the aforesaid bus which was being driven in rash and negligent manner and that the applicants who were the parents of the deceased were entitled to receive compensation. The Tribunal also held that the deceased was 25 years' old on the date of the accidental death earning Rs. 1,800.00 per month as a Cleaner in the bus besides Rs. 500.00 per month as an auto-electric mechanic and assessed his annual income to be Rs. 21,600.00. After deducting there-from the amount supposed to be spent by the deceased for his own maintenance and taking the age of his parents, the Tribunal applied '17' multiplier for calculating the compensation and awarded a compensation of Rs. 2,49,300.00 with interest thereon at the rate of 7% per annum from the date of filing of the MAC Case, i.e. 19.4.2000.

6. With regard to the liability to pay the compensation, on the basis of the documents exhibited in the case on behalf of the applicants as aforesaid, and the ratio of the decision in the case of Manager, Oriental Insurance Company Ltd. v. Hadia Goudo and Ors. reported in 2001 ACJ 482, the Tribunal held that it was not possible for the owner to satisfy herself regarding the genuineness of the driving licence of the driver of the bus, but then the insurer cold not take the plea of exemption of its liability to pay compensation. It also held that though the insurer took the plea that the driving licence, a certified copy of which was marked Ext.A-1, was fake, it failed to establish that the owner of the offending vehicle knowing the said fact had engaged the driver in the bus, and accordingly directed the present appellant-insurance company to deposit the entire amount as per the judgment for payment to the applicants.

7. Learned Counsel appearing for the appellant-insurance company assails the aforesaid judgment of the learned Tribunal mainly on the ground that as the driver of the offending bus did not possess a valid driving licence, the appellant is not liable to pay the compensation. He further contended that the deceased who was a Cleaner in the bus was not covered under the insurance policy as no extra premium had been paid for him and that the calculation of compensation on the basis of the age of the deceased instead of age of the applicants who were the dependents of the deceased was an error apparent on the face of the record.

8. The aforesaid submissions of the learned Counsel for the appellant are strongly repudiated by the learned Counsel for the applicant-respondents. He contended that the appellant-insurance company never adduced any oral evidence to disprove the averments of the applicant-respondents. Not possessing a valid driving licence by the driver of the vehicle in question being a breach of conditions of the insurance policy, the applicant-respondents should not suffer for that He further contended that the copy of the insurance policy itself revealed that the sitting capacity of the offending bus including the driver and cleaner was 67+2 and, as such, the cleaner of the vehicle was covered under that policy. It was also contended by him that the appellant-insurance company having not filed petition under Section 170 of the Motor Vehicles Act before the learned Tribunal it is estopped from challenging the quantum of compensation awarded by the Tribunal and that it is a fit case where the appeal may be dismissed in limine.

9. So far as the submission with regard to driving licence of the driver of the offending bus is concerned, it appears that the driving licence, copy of which was exhibited in the case, was issued in favour of one Zahid Haque and as such the driving licence bearing number 2043 of 1982 stated to have been issued in the name of Parsuram Jena was a fake one, which stood in the name of a different person. Be that as it may, law is well settled that if the insurance company fails to prove that the owner of the offending vehicle had engaged a driver who was possessing a fake driving licence after knowing the same fact, the liability of the insurance company to pay compensation shall not cease, as has been held by the Supreme Court in Hadia Gouda case supra.

10. However, the submission of the learned Counsel for the appellant-insurance company that the deceased being a Cleaner in the bus was not covered under the insurance policy needs to be examined. A Xerox copy of the insurance policy marked Ext. D/1 is available on record. The last but one column of the said policy at the top refers to sitting capacity of the bus which includes the driver and cleaner. In that column it has been mentioned as '67+2'. The net insurance premium paid has been written as Rs. 25,403.00. But then relying on the schedule of premiums, learned Counsel for the appellant-insurance company submits that policy covered only 67 passengers and a driver and no extra premium having been paid for the cleaner, his risk was not covered under the policy. As stated earlier, at the top of the policy it has been specifically mentioned that the sitting capacity of the bus including driver and cleaner was '67+2'. Therefore apart from 67 passengers, two others, i.e., driver and cleaner of the vehicle were covered by the insurance policy.

11. Fact similar to the present case was also before this Court in the case of Gyan Singh Babaji v. Jitendranath Bisoi and Anr. reported in 2000 (2) TAC 318. In the said case, the insurance policy covered only one driver. But then a second driver was also travelling in the vehicle when it met with accident. This Court held that the second driver who was not driving the vehicle but travelling in the said vehicle was to be treated to be a third party and the claimants in that case were entitled to compensation.

12. In an insurance policy, 'third party' means any person other than the insured and insurer. Thus a third party in consonance with the insurance policy is entitled to compensation. Admittedly in the instant case the insurance policy covered third parties. Learned Counsel for the appellant-insurance policy relying upon the decision of he Supreme Court in the case of Rama Shray Singh v. New India Assurance Company : (2003)IIILLJ740SC , submitted that mere mention of the word 'cleaner' in the insurance certificate while indicating the sitting capacity of a vehicle does not mean that the cleaner can be treated as a passenger. But then, the said reported case was one under the W.C. Act and therefore the present case cannot be covered by that decision. Be that as it may, an insurance policy shall cover the risk of persons specified in it. In the instant case, as stated earlier, the number '67+2' mentioned at the top of the insurance policy itself connotes 67 passengers (sitting capacity) besides driver and cleaner. To cover third party risk, an extra premium of Rs. 30.00 had also been paid. Thus scrutinizing from any angle, it must be held that the deceased who was travelling in the offending bus not as a gratuitous passenger sustained injuries and succumbed due to rash and negligent driving of the driver of the said vehicle and he was covered under the policy in view of the discussions made above. Looking at the impugned judgment, this Court finds that the learned Tribunal rightly arrived at the conclusion that the appellant-insurance company was liable to pay the compensation.

13. The only other contention that needs consideration is with regard to multiplier applied for calculating the compensation. The Tribunal assessed the age of the deceased to be 25 years and applied '17' multiplier. But then as the deceased was a bachelor, the age of his parents ought to have been taken for finding the multiplier. The age of the father of the deceased was 45 years and that of this mother was 40. Thus the correct multiplier would have been '15'. That apart, there is also discrepancy with regard to income of the deceased. But then this Court feels that as the accident occurred in the year 2000 and seven years have almost passed in the meanwhile, remanding the case to the Tribunal for re-adjudication after so many years will not be beneficial to either party, inasmuch as the appellant-insurance company may be saddled with more amount and the poor applicant-respondents may be deprived of the compensation amount for quite some time more. In that view of the matter, this Court feels that ends of justice and equity will be better served if a compensation of Rs. 2,00,000.00 with 7% interest thereon from the date of filing of the MAC before the Tribunal is awarded in favour of the applicant-respondents instead of Rs. 2,49,300.00 with 7% interest thereon as awarded by the Tribunal, and this Court orders accordingly.

14. With regard to the submission of the learned Counsel for the appellant-insurance company that the driver of the offending bus having not possessed a valid driving licence the insurance company is not liable to pay any compensation is concerned, as has been held by the Supreme Court in the case of Shimla v. Kamla : [2001]2SCR797 , the same being breach of conditions of the insurance policy, for that the poor appellant-respondents should not suffer. In consonance with the said decision and the provisions of Section 149 of the Motor Vehicles Act, this Court directs the appellant-insurance company to first deposit the entire amount as per this judgment before the Tribunal within six weeks hence and then realize the said amount from the owner of the offending vehicle in consonance with law. After the deposit is made, the Tribunal shall forthwith disburse the same in favour of the applicant-respondents proportionately apportioning the same as per the stipulation made in the impugned judgment.

With the aforesaid observation/direction, the MACA is disposed of.