fa400.15+.J.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO.400 OF 2015 [ENTITY] s/o [ENTITY], R/o Kotha, P.O. Kosarsur, Tal. Warora, Dist. Chandrapur, Owner of Tractor & Trailer bearing No. MH-34/F191; MH-34/F-467. APPELLANT V E R S U S 1] [ENTITY] s/o [ENTITY] about 69 years, Occ: Nil. 2] [ENTITY] w/o [ENTITY] Aged about 64 years, Occ: Housewife. 3] [ENTITY] (Sister) w/o [ENTITY] (Divorcee), Aged 33 years, Occ: Nil. 4] [ENTITY] d/o [ENTITY] Aged about 20 years, All residents of [ENTITY], Ward No.77, [ENTITY], Nagpur-1. 5] The Branch Manager, United India Insurance Co. Ltd., Abhishek, 2nd Floor, Mul Road, Chandrapur-1 Insurer of the vehicle No.MH-34/F191; MH-34/F-467. RESPONDENTS Uploaded on - 07/07/2017 Downloaded on - 28/08/2017 08:06:14 fa400.15+.J.odt 2 Shri [ENTITY], Advocate for Appellant. Shri [ENTITY], Advocate for Respondent Nos.1 to 4. Shri [ENTITY], Advocate for Respondent No.5. FIRST APPEAL NO.1121 OF 2014 1] [ENTITY] s/o [ENTITY], Aged 79 years, Occ: Nil. 2] [ENTITY] w/o [ENTITY], Aged 70 yrs., Occ: Housewife. 3] [ENTITY] (sister) w/o [ENTITY] (Divorce) aged 39 yrs. Occ: Nil. 4] [ENTITY] d/o [ENTITY], Aged about 35 yrs., Occ: Household. All r/o [ENTITY], Ward No.77, [ENTITY], Nagpur-1. APPELLANTS V E R S U S 1] [ENTITY], Aged major, Occ: Agril., R/o Kotha, P.O. Kasarsur, Tah. Warora, Dist. Chandrapur, Owner of Tractor-Trailer. 2] The Branch Manager, United India Insurance Co. Ltd., Abhishek, 2nd Floor, Mul Road, Chandrapur. Insurer of the vehicle No.MH-34/F-191, MH-34/F-467. RESPONDENTS Uploaded on - 07/07/2017 Downloaded on - 28/08/2017 08:06:14 fa400.15+.J.odt 3 Shri [ENTITY], Advocate for Appellants. Shri [ENTITY], Advocate for Respondent No.1. Shri [ENTITY], Advocate for Respondent No.2. CORAM: DR. ([ENTITY], J. th DATE: 27 JUNE, 2017. ORAL JUDGMENT
1] As both these appeals are arising out of one and same judgment of Motor Accident Claims Tribunal, Nagpur in [CASE NUMBER] decided on 04.08.2014, they are decided by this common judgment and order. By the impugned judgment, the learned Tribunal has partly allowed the claim petition, thereby entitling the claimant to get the total compensation of Rs.1,60,500/- with interest at the rate of 7.5% per annum from the date of petition, till the date of payment. Being aggrieved by the same the original claimants have preferred [CASE NUMBER]; whereas the original respondent No.1, the owner of the offending vehicle, has preferred [CASE NUMBER].
For the sake of convenience the parties are referred to by their original nomenclature.
2] Brief facts of the appeals can be stated as follows :
The petitioner No.1 is the father, petitioner No.2 is the mother and petitioner Nos.3 and 4, are the sisters of deceased [ENTITY], who died in a motor accident on 01.01.1999. As per the case of the petitioners, on that date at about 01:45 hrs. deceased was driving his Maruti Esteem Car No.DD-03 A-0833 from Chandrapur to Nagpur. At Khapri, the deceased and other occupants of the car had a dinner at Dhaba and thereafter they left for Nagpur. When the car reached in front of Vidarbha Bottlers on Chandrapur-Nagpur road in night, it collided with the trolley bearing No.MH-34 F-407 of the tractor bearing No.MH-34 F-191, which was proceeding ahead of the car. It was the contention of the petitioner that the trolley was not having any indicator or parking light nor it was having plough lamp.
Therefore, deceased could not have identified the tractor and collided with the trolley of the tractor from its rear side. As a result of the said collusion deceased sustained grievous injuries and succumbed to death. Similarly, other occupants in the car also sustained grievous injuries. Police have however registered an offence vide [CASE NUMBER] under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] against the deceased at Sonegaon Police Station.
3] According to the petitioners the deceased was not at all responsible, at least not alone responsible, for the accident, thought the Police has registered offence against him alone. Hence, they have filed petition for compensation against the respondents before the Tribunal. It was submitted by them that at the time of accident deceased was 26 years and serving as a Mechanic with M/s. Nagpur Auto Deal and getting salary of Rs.5000/- per month. Due to his untimely death, the petitioners had lost their only source of income and, hence they were constrained to approach the Tribunal seeking compensation of Rs.5,00,000/- jointly and severally from respondent No.1 who was the registered owner of the offending tractor and trolley and respondent No.2, with whom the tractor and trolley were insured with.
4] This claim petition came to be resisted by respondent No.1, the owner of the tractor and trolley, vide his written statement Exh.15 contending inter alia that the sole cause of the accident was rash and negligent driving of the deceased. It was stated that deceased had tried to overtake the tractor and trolley. At that time one truck which was coming from opposite direction, dashed the car of the deceased and fled away from the spot. It was contended that the respondent No.1 is thus falsely implicated in this case. According to respondent No.1, the truck which gave dash to the car of the deceased and the owner and insurer of that truck are not joined in the petition. The petitioners had also not joined the owner and insurer of the car, which the deceased was driving. Hence, the petition was not maintainable for non-joinder of necessary parties. It was further contended that the deceased was driving the car under the influence of alcohol, and hence, as the deceased was at fault for the accident, being in the position of a tortfeasor, his legal heirs, the appellants herein cannot be entitled to get any amount of compensation. Hence, the petition needs to be dismissed.
5] Respondent No.2-the Insurance Company of the tractor and trolley, resisted the petition vide written statement at Exh.17 adopting the stand taken by respondent No.1 that deceased was alone responsible for cause of accident, as his car dashed to the truck and trolley, which was proceeding on the proper side of the road and ahead of the car. It was submitted that Police had also registered the offence against the deceased. Therefore, the legal representative of the deceased are not entitled to get compensation. In the alternate, it was submitted by the respondent No.2, that the driver of tractor was not holding valid and effective driving licence. Hence, in view of the breach of the terms and conditions of the policy, the insurance company is not liable to indemnify respondent No.1.
6] As regards the quantum of compensation claimed by the petitioners, it was submitted that as the deceased has himself contributed to the cause of accident, if any liability for payment of compensation is to be fastened on respondent No.1, then it should be proportionate to the negligence. Lastly, it was submitted that the amount claimed by the petitioners towards compensation is exorbitant and unreasonable. Therefore, on this count also, the petition is liable to be dismissed.
7] On these rival pleadings of the parties, the learned Tribunal framed necessary issues at Exh.22. In support of their case, the petitioner No.1, the father of the deceased, namely [ENTITY], examined himself and two more witnesses by name [ENTITY] and [ENTITY], who were travelling in the car at the time of accident, to prove that the cause of the accident was the rash and negligent driving of the tractor and trolley. As against it, respondent No.1, the owner of the tractor and trolley, also entered into the witness box to prove that it was the rash and negligent driving of the deceased himself, which has resulted into the accident. Both the parties then relied upon various documentary evidence like F.I.R. Exh.31, postmortem report Exh.34 and the copy of driving licence of the driver at Exh.45.
8] On appreciation of this oral and documentary evidence produced on record by both the parties, the Tribunal was pleased to hold that both the deceased and the driver of the tractor and trolley were equally responsible for the cause of accident.
9] As regards the quantum of compensation, the learned Tribunal was pleased to hold that, in absence of any evidence to prove the income of the deceased from salary, his notional income was required to be considered at Rs.3000/- per month. The Tribunal then applied the multiplier of '17' and held the petitioner entitled to get the total amount of compensation to the tune of Rs.3,06,000/-. The learned Tribunal further awarded Rs.5000/- towards funeral expenses and Rs.10,000/- towards the loss of estate. Accordingly, the total compensation to which the petitioners were held entitled was considered to be Rs.3,25,000/-. The Tribunal apportioned the same equally and held that the petitioners were entitled only to the extent of Rs.1,60,500/- towards compensation.
10] As regards the liability of the Insurance Company, the learned Tribunal found that the driver of the tractor and trolley was having learner's licence and that too of L.M.V. car. Therefore, there was breach of the terms and conditions of the insurance policy. Accordingly, the insurance company of the tractor and trolley was exonerated from the liability. The liability to pay the amount of compensation of Rs.1,60,500/- was fastened on the respondent No.1, the owner of tractor trolley alone.
11] This judgment of the Tribunal is challenged, both by the petitioners/claimants and also by the respondent No.1 the owner of the tractor and trolley. The main grievance raised by learned counsel for the petitioners is that the evidence on record clearly goes to prove that the tractor and trolley was proceeding on the road at a night time and without any tale lamp or the reflector. In such a situation, according to learned counsel for petitioners the driver of the tractor and trolley alone was responsible for the accident that has occurred. According to learned counsel for the petitioners, merely because the Police has registered the case against the deceased, the Tribunal has held the deceased equally responsible for the cause of accident; hence the said finding of the Tribunal needs to be set aside. Further it is submitted that relying on some noting made in the postmortem report that the contents of stomach were having odour of alcohol, the Tribunal has held that the deceased was under the influence of alcohol at the time of accident. However, while arriving at this finding the Tribunal has ignored the oral evidence of two witnesses examined by the petitioners. They were the occupants of the car at the time of accident and they have categorically deposed that the deceased has not taken any drink at the Dhaba. 12] Further it is submitted by the learned counsel for the petitioners that the quantum of compensation awarded by the Tribunal is not just and reasonable. The Tribunal has not awarded any amount towards the future prospects of the deceased, by ignoring the decision of the Apex Court in the case of [ENTITY] v. National Insurance Co. Ltd. reported in (2012) 6 SCC 421. It is also urged that the amount awarded by the Tribunal towards the loss of consortium, loss of love and affection and the funeral expenses is also meagre and not in tune with the recent decision of the Apex Court in the case of [PRECEDENT]. Thus, according to the learned counsel for the petitioners, the interference is warranted in the impugned judgment and order of the Tribunal on all the scores. 13] Learned counsel for the respondent No.1 has also challenged the judgment of the Tribunal on the count that the Tribunal has failed to appreciate the evidence on record properly, as regards the cause of accident. It is submitted that though there was no fault on the part of driver of the tractor and trolley, the Tribunal has held respondent No.1 liable to pay the amount of compensation. It is submitted that if the car driven by the deceased has given dash to the tractor and trolley from behind, then in no way the driver of the tractor and trolley can be held liable for the accident, which has occurred. It is submitted that there is also evidence to show that the deceased was under the influence of alcohol and Tribunal has rightly considered the same.
Therefore, respondent No.1 cannot be held liable to pay compensation to the petitioners, who are legal heirs of the deceased who is proved to be the tortfeasor as Police had registered the offence against him.
14] Learned counsel for respondent No.1 has also challenged the finding of the Tribunal of exonerating the insurance company from its liability. In this respect, it is submitted by learned counsel for the petitioners and respondent No.1 that even assuming that the driver of the tractor and trolley was not having valid and effective licence, in that case also the insurance company has to first discharge its liability towards the third party and then can recover the said amount from the owner of the vehicle, namely respondent No.1. However, insurance company cannot be absolved of its liability, altogether. To substantiate this submission, the reliance is placed on the land mark decision of the Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh and others reported in 2004 ACJ 1. 15] As regards respondent No.2-Insurance Company, learned counsel appearing for it has supported the judgment and order of the Tribunal, by pointing out that in case of breach of terms of policy, the insurance company cannot be held liable to pay the amount of compensation. Herein the copy of the driving licence is produced on record by the petitioners, which clearly goes to show that it was a learner's driving licence and secondly the said driving licence was only for driving of L.M.V. and not for the goods carrier. Thus, according to the learned counsel for the respondent No.2, no interference is warranted in the impugned judgment of the Tribunal on that point. However, so far as the involvement and liability of the driver of the tractor and trolley in the said accident, it is submitted that the Tribunal has not properly appreciated the oral and documentary evidence on record, which was clearly proving that the sole cause of accident was the rash and negligent driving of the deceased as his car dashed to the tractor and trolley from behind, coupled with the fact that as per the postmortem report, the deceased was found under the influence of alcohol.
16] In the light of these rival submissions advanced before me by learned counsels, the first and foremost issue raised for determination is, whether the cause of accident was rash and negligent driving of the deceased alone or to some extent, may be to the extent of 50%, as held by the Tribunal, the driver of the tractor and trolley was also responsible?
17] It is an undisputed position that on the intervening night between 31.12.1998 and 01.01.1999 the deceased was driving his Maroti car from Chandrapur to Nagpur along with some occupants in the car, including P.W.2-[ENTITY] and P.W.3-[ENTITY]. It is deposed by these two witnesses that they took dinner at Khapri Dhaba and after dinner, they left for Nagpur. At about 01:45 hrs., when the car came in front of Vidarbha Bottlers on Wardha-Nagpur road, at that time tractor No.MH-34 F-191 attached with trolley No.MH-34 F-467 and owned by respondent No.1 was proceeding ahead of the car. According to their evidence, as the coupling with which the trolley was attached to the tractor suddenly broke, the trolley got disconnected from the tractor and therefore, car collided with the trolley. It is deposed by them that deceased could not identify the trolley immediately as it was not having any tale lamp or indicator. Hence, the deceased could not control the speed of the car as a result the car dashed on the trolley which resulted into the death of the deceased.
18] However, it has to be observed that this case put up by the two witnesses that the coupling of the trolley got suddenly broken and hence, the trolley was disconnected from the tractor, therefore, the car dashed on the trolley does not find place, in the F.I.R. lodged immediately after the accident or even, in any other material produced on record. The copy of F.I.R. Exh.31 and copy of spot panchnama Exh.35 clearly go to show that the tractor and trolley were proceeding ahead on the road and from behind, the car driven by the deceased came in fast speed and gave dash to the said tractor and trolley. Neither the F.I.R. nor contents of spot panchnama in any way support the evidence of these two witnesses that the coupling of the trolley was suddenly broken or found separated from the tractor. If it was a case, needless to state that the Police would not have filed the F.I.R. and charge-sheet against the car driver alone, holding him responsible for the accident. The contents of the F.I.R. reveal that the car was driven by the deceased in a rash and negligent manner and it gave dash from behind to the tractor and trolley which was proceeding ahead. The spot panchnama also prove that the damage was caused to the front portion of the car like bonnet and the rare portion of the trolley. Therefore, the evidence of these witnesses that the cause of accident was equally on the part of the driver of the tractor and trolley cannot be accepted.
19] Similarly, the contention raised by the respondent No.1 that the accident took place because the deceased tried to overtake the tractor and trolley, and at that time one truck, which was coming from opposite direction gave dash to the car and fled away from the spot of accident also, cannot be accepted. The spot panchnama and the F.I.R. which is lodged by the Police after the necessary inquiry, does not make reference to truck coming from opposite direction and giving dash to the car of the deceased. The spot panchnama Exh.35 conversely goes to show that the car was found entangled below the trolley. The damage was also found caused to the trolley on account of the dash. Not only that, some tyre marks of the car were also found at the spot. Therefore, the spot panchnama rules out the case put up by the respondent No.1 that the tractor and trolley were falsely implicated in the accident.
20] The manner in which the accident had taken place is more than sufficiently proved on record to the extent that the car driven by the deceased came from behind in a fast speed and then dashed to the tractor and trolley which were proceeding ahead of the road. Therefore, normally, if any vehicle gives dash from behind, then the vehicle which is proceeding ahead and the driver of the said vehicle are not held responsible for the accident, provided that the said vehicle is running on proper side of the road and is found to be driven in the moderate speed. Herein however, the learned counsel for the petitioners has relied upon [SECTION] of the [ACT] which provides as follows:
227. Driving of tractors on roads.
(1) No tractor, when fitted for being driven on a public road, shall be driven on such road at a speed exceeding ten kilometers per hour and no such tractor shall take sharp turns on such road :
Provided that, if such tractor be a crowler tractor, it shall not be driven on an asphalt road between 9 a.m. to 9 p.m. (2) Every such tractor, when driven on a metalled road, shall be driven as far as possible on the side strips of such road."
The main emphasis of learned counsel for the petitioners is on [SECTION], which provides that every such tractor driven on a metalled road shall be driven as far as possible on the side strips of such road. Herein it is submitted that the tractor was not found to be on the side strip of such road, but the spot panchnama shows that it was very much on the metalled tar road, and therefore, some fault definitely lies on the part of the driver of the tractor and trolley. Further the evidence of witnesses who were travelling in the car, that the tractor and trolley were without the tale lamp or the indicator has remained unshattered, even after their cross-examination. Though respondent No.1 has examined himself to prove that tale lamp was on, he has put up a completely different version that car was not dashed to his trolley from behind and the said version is falsified by spot panchnama which clearly proves the damage caused to rear portion of the trolley. Hence, to some extent the liability of driver of tractor and trolley cannot be denied.
21] At the same time, it is also necessary to consider the evidence on record which prove that the driver of the tractor and trolley was not having a valid driving licence. The copy of his driving licence which is produced at Exh.45 shows that it was a learner's licence and that too only for L.M.V. car. Having regard to these facts, the liability of the driver of the tractor and trolley, in the cause of the accident, has to be considered. The real question is to which extent, he can also be held liable for contributory negligence? The learned Tribunal has considered it as a case of 50% 50% negligence. However, in my considered opinion, having regard to the factual position which is proved on the record, it cannot be to the extent of 50%, especially because the dash was given by the car from behind and it was not a head on collusion. When any person is driving a car on the highway, the driver has to anticipate the movement of all sorts of vehicles on the road. The driver of the car cannot be expected to say that as tractor was moving at slow speed, he could not control the speed of his car and hence the accident took place. The tractor and trolley, as per [SECTION] of the [ACT], quoted above, is expected by the law itself, to drive it in slow speed and therefore, the deceased should have driven the car in moderate speed and be in control of it. However, the fact that at the spot of accident the skid marks of the car were found, clearly goes to show that though the deceased tried to control the speed of the car, he could not to do so. Hence, two inevitable inferences are that the car was in fast speed and therefore, deceased could not control the speed and if it was not in fast speed, then he has lost the control of the car, being under the inference of alcohol. This inference needs to be drawn, having regard to the postmortem report, the copy of which is produced on record at Exh.44. In para 21 of the postmortem report it is observed that the contents of the stomach were having alcohol odour. Though two occupants in the car who are examined by the petitioners, namely [ENTITY] and [ENTITY], have stated that at Dhaba they had alone taken the drink and the deceased has not, it becomes difficult to accept their testimony. Considering that it was a night of the 31st December and the presence of alcoholical odour in the stomach contents makes it sufficient to infer that the deceased has consumed some alcohol at Dhaba, especially when the witnesses are admitting that they had the drinks at Dhaba.
22] As regards the authority relied upon by the learned counsel for the petitioners, that of [PRECEDENT]), in that case except for the opinion of some witnesses that the deceased was riding the bicycle in a zigzag manner and smelt of liquor, there was no other evidence showing that the deceased was under the influence of alcohol. Hence, it was held that unless the blood samples were obtained and sent for analysis, there cannot be conclusive proof of alleged intoxication. Here there is medical and forensic evidence produced in the form of the opinion, expressed by the Doctor who has conducted the postmortem, categorically stating that the stomach contents were having odour of alcohol.
23] So far as the reliance placed by the learned counsel for the petitioners on [SECTION] of the [ACT], needless to state that the section invites criminal liability for driving vehicle in a rash and negligent manner under the influence of alcohol and therefore, there may be the necessity of getting the conclusive proof of the presence of alcohol in blood samples. In the instant case, for imposing civil liability, the oral evidence which is produced on record and the postmortem report is sufficient to holding that the deceased was under the influence of alcohol at the time of accident.
24] Therefore, having regard to this entire evidence on record, it has to be held that the liability of the contributory negligence on the part of the deceased in the accident that has occurred, is definitely far more, and it is to the extent of 75%. Whereas the contributory negligence of the driver of the tractor and trolley is proved to the extent of 25% only, considering that it was driven on the tar road and the driver was not having valid and effective driving licence. 25] Now coming to the quantum of compensation, the petitioners have claimed the compensation of Rs.5,00,000/- on the count that the deceased was 26 years of age and earning salary of Rs.5000/- per month from his service in M/s. Nagpur Auto Deal. However, as rightly held by Tribunal, no documentary or oral evidence of the Manager of the M/s. Nagpur Auto Deal is produced on record to show that the deceased was working as employee with M/s. Nagpur Auto Deal and drawing a salary of Rs.5000/- per month. His salary certificate is also not produced on record. Therefore, the Tribunal has rightly considered the notional income of Rs.3000/- per month and applied the multiplier of '17'. The Tribunal has however, not granted additional amount towards the future prospects of the deceased and in this respect the Tribunal has committed an error in not relying on the judgment of [ENTITY] v. National Insurance Co. Ltd. referred (supra) though cited before it on the count that it is a two bench judgment. Whereas the judgment in [ENTITY] (Smt.) and others v. [ENTITY] and another reported in AIR 2009 SC 3104 was the decision of Full Bench. However, in the case of [ENTITY], this very Judgment of [ENTITY] was clarified and also made applicable to the persons who are self- employed or engaged on fixed wages. This judgment in [ENTITY] is further clarified in the recent decision of [PRECEDENT], holding that "the principle regarding addition to be made to actual income of the deceased, existing at the time of his death towards future prospect in the case of salaried persons, as laid down in [ENTITY], is made applicable in the judgment of [ENTITY] to the persons self-employed and engaged on fixed wages." However, it was clarified that the increase in the case of those groups, namely self-employed and engaged on fixed wages, cannot be always 30%. It must have a reference to the age of the deceased. In other words, in the case of self-employed persons or persons with fixed wages, where the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased, while computing future prospects. In the instant case therefore, having regard to the fact that the income of the deceased from his salary is considered as notional to be Rs.3000/- per month and having regard to his age of 26 years, there has to be an addition of 50% to the said income, towards his future prospects. 26] Having regard to the fact that deceased was unmarried at the time of accident, according to the learned counsel for the petitioners only 1/3rd of the said amount is required to be deducted towards his personal and living expenses, whereas according to learned counsel for respondent No.1, 50% of the said amount is required to be considered towards his personal and living expenses, as he was unmarried. In this respect, one can again take recourse to the judgment of the Apex Court in the case of [ENTITY] (Smt.) and others vs. [ENTITY], wherein it was held that, "if the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally 50% is to be deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent . In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor 50% as the contribution to the family".
27] Herein in the case, deceased is survived by his parents and two sisters. Hence having regard to the law laid down by the Apex Court in the case of [ENTITY] (Smt.) and others vs. [ENTITY] and another, it has to be held that 50% of the income of the deceased is required to be deducted towards his personal and living expenses and 50% towards his contribution to the family.
28] The petitioners then also become entitled to the compensation on other additional heads, like to the loss of consortium, loss of love and affection and the funeral expenses. The Tribunal has awarded the amount of Rs.10,000/- towards loss of estate and the amount of Rs.5000/- towards funeral expenses. Learned counsel for the petitioners has therefore, placed reliance on the recent decision of the Apex Court in the case of [PRECEDENT] (supra), wherein it was held that the amount of compensation towards loss of consortium which is fixed in the range of Rs.5000/- to Rs.10,000/-, in the case of [ENTITY] (Smt.) and others v. [ENTITY] and another needs to be revisited and accordingly, it was held that it would be just and reasonable that the courts award at least Rs.1,00,000/- for loss of consortium and Rs.1,00,000/- for loss of care and guidance for minor children. In the instant case, though the deceased was bachelor however, as his parents and sister have lost his love and affection, the amount of Rs.50,000/- needs to be awarded towards to the loss of estate, love and affection and Rs.25,000/- towards the funeral expenses.
29] Thus, the total compensation amount to which the petitioners become entitled can be assessed as follows:
Sr. No. Heads Calculation 1. Salary Rs.3000 per month
2. 50% of above (i) to be added as future (Rs.3000 + Rs.1500)= prospects. Rs.4500 per month
3. 1/2 of deducted as personal expenses of Rs.4500 - 2250 = the deceased. 2250 p.m.
4. Compensation after multiplier of 17 is Rs.2250 x 12 x 17 = applied. Rs.4,59,000/-
5. Loss of love, affection and estate Rs.50,000/-
6. Funeral expenses Rs.25,000/-
Total compensation awarded Rs.5,34,000/- 30] Considering that the contributory negligence on
the part of the deceased is held to be 75%, petitioners will become entitled to get the amount of Rs.1,33,500/- only as compensation.
31] Now, the next question for consideration is from whom the petitioners can recover this amount? The Tribunal has exonerated the insurance company totally on the count that the deceased was not having the valid and effective licence at the time of accident. The copy of the driving licence of the driver of tractor and trolley is produced on record at Exh.45 and it supports the stand of insurance company that he was not holding valid and effective licence for driving tractor as it was a learner's licence and that too for the light motor vehicle only and not for goods vehicle, like the tractor and trolley. Hence, apparently there was breach of the insurance policy.
32] However, the further question for consideration is whether on that count the insurance company can be totally exonerated from its liability to compensate the third party like the petitioners? The law in this respect is no more res integra as it is fairly settled by the judgment of the Apex Court in the case of [PRECEDENT]. The very question raised for consideration in the said case was, as to whether the insurance company is liable to satisfy the award if the vehicle was driven by a person holding a learner's licence at the time of accident, and it was held that "a person holding a learner's licence would thus also come within the purview of duly licenced as such a licence is also granted in terms of provisions of [ACT] and Rules framed there under. Hence, even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of [SECTION] of the [ACT]. Hence, the insurance company has to satisfy the claim of the third party and then to recover the awarded amount from the owner or driver of the vehicle."
33] In this judgment it was further held that, "even if it is proved that the driver is possessing licence for one type of vehicle, but found driving another type of vehicle, insurer will not be allowed to avoid its liability, merely on technical breach of conditions concerning driving licence. However, in each case the facts needs to be considered as to whether the driver, not having the requisite type of licence, was the main or contributory cause of accident. It was held that for minor breaces of licence conditions, which are not the direct cause of the accident, the insurance company cannot be exempted from its liability.
34] In the instant case, therefore, the insurance company i.e. respondent No.2 cannot be exonerated from the liability to compensate the petitioners at the first instance. The insurance company however, can recover the said amount from respondent No.1, the owner of the vehicle. 35] In the result therefore, both the appeals are partly allowed, with no order as to costs. The impugned judgment and award of the Tribunal is modified as follows:
The petitioners are held entitled to get the total amount of compensation to the tune of Rs.1,33,500/- inclusive of the amount of no fault liability.
36] The respondent Nos.1 and 2 shall pay jointly and severally the amount of Rs.1,33,500/- (inclusive of no fault liability) to the petitioners with interest at the rate of 7.5% per annum from the date of petition till the realization of the said amount.
37] The amount of compensation be paid to the petitioners in proportion as per the award passed by the Tribunal.
38] The respondent No.2 is at liberty to recover from the respondent the amount of compensation, if paid to the petitioners.
Appeal is disposed of in above terms.
JUDGE [ENTITY]