JUDGMENT [ENTITY], J.
1. As all these four appeals arise out of the common judgment and order passed by the Motor Accident Claims Tribunal, Satara dated 23rd of August, 1988, they were heard together and are being disposed of by this common judgment.
2. In an accident which took place on 28th of May, 1984 at about 9 a.m , four i.e. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] died and one [ENTITY] was seriously injured. The Standard Car MHY 4121 initially belonging to one Dr. [ENTITY] of Satara, the appellant who was the Manager of the Janata Sahakari Bank Ltd. Satara. On 13th of March 1984 the Insurance policy of this car was transferred in the name of [ENTITY]. All the liabilities thereafter were accepted by the New India Insurance Company pertaining to third part risk. Within 2 1/2 months after its transfer the accident took place. [ENTITY] is the son of [ENTITY]. On the date of accident [ENTITY] and other members of the family had gone out, [ENTITY] who was then a minor took out the car for joy ride. While he was returning to the city he lost control over the car which left the road, crossed the Nala and entered the Warangh of the hotel and dashed against the wall of the hotel. Two out of the five boys who were playing died on the spot and two others died later in the hospital after admission. The only surviving boy was [ENTITY], the applicant No. 1 in [CASE NUMBER]. It is also in admitted fact that at the time of accident [ENTITY] was 8 months old [ENTITY] was about 11 years old, [ENTITY] and [ENTITY] were aged about 14 and 11 years old, [ENTITY] and [ENTITY] were aged about 14 and 11 years respectively and [ENTITY] the boy injured was aged about 12 years. Dependants of the children filed separate claim petitions before the accident claims Tribunal at Satara. The learned member of the Tribunal came to the conclusion that the accident took place because of the rash and negligent driving at [ENTITY]. He also came to the conclusion that [ENTITY] was not holding any valid driving licence at the time of accident and was also incapable of having a valid driving licence. After appreciating all the evidence on record, the learned Member of the Tribunal granted compensation to the dependants of the deceased, but however, held that the Insurance Company was not liable to indemnify the owner in that behalf. As already observed against this finding of the learned Member of the tribunal, Present appeals are filed by the original applicant No. 2, Owner of the car.
3. Since in these appeals it is not disputed that the accident took place because of the rash and negligent driving of [ENTITY], it is not necessary to deal with the evidence in that behalf. To say the least from the evidence it appears that [ENTITY] was not able to control the vehicle as a result the car left the road, crossed the Nala entered the Varandh of the hotel. Hence a conclusion is inavitable that the accident took place because of the rash and negligent driving of the drive [ENTITY], son of the owner of the car [ENTITY].
4. However, it is contended by Shri [ENTITY] learned Counsel appearing for the appellant that the finding recorded by the learned Member of the tribunal that on the date of the accident [ENTITY] was a minor and was incapable of holding a valid driving licence is wholly perverse. He also contended that in fact he was holding a learners licence on the date of accident and the finding recorded by the learned Member of the Tribunal is therefore obviously wrong. It is not possible for us to accept this contention of Shri [ENTITY]. According to the owner of the car [ENTITY], [ENTITY] was born on 29th January, 1966 and if that date is taken as correct date of birth he attained the age of majority on 29th January, 1984 and therefore, was major on the date of accident. On the other hand it is the case of the Insurance Company that [ENTITY] was born on 29th of July, 1966 which means he had not attained the age of majority on the date of accident. In support of its case the Insurance Company examined one [ENTITY], who was entrusted with the investigation about the age of [ENTITY]. [ENTITY] an employee of Narmada Education Academy was also examined. From the record produced by [ENTITY] it is clear that [ENTITY] was admitted to the academy on 7th of June, 1971 and in the admission form Exhibit 78 his date of birth is shown as 29th of July, 1966, though the name of the boy is shown as [ENTITY]. There is no dispute that [ENTITY] is the same person. Exhibit 78 also shows that formarly he was studying in [ENTITY] at Satara and admission was taken at the age of 5 years. Exhibits 77 and 77-A are the school leaving certificates. In all these documents the date of birth is shown a 29th of July, 1966. From the evidence of [ENTITY], who was working in the Sangamner Municipality coupled with the extract of entry in the birth register as well as in the nurshing home, it is quite obvious that [ENTITY] w/o [ENTITY] of Sangamner delivered a boy on 29th of July, 1966. Though a dispute was raised that it could be another Sarada there is no doubt that the entry relates to [ENTITY] and none else. The evidence of [ENTITY] who is running 'Vatsalaya Nurshing Home, corroborates the evidence given by the other witnesses and, therefore, we also agree with the finding recorded by the learned Member of the tribunal that the date of birth of [ENTITY] is 29th of July, 1966. The other documentary evidence on which reliance was placed by the appellant is neither primary evidence nor there is any material to indicate on what basis the birth date was shown as 29th of January, 1966. The learned Member of the Tribunal has rightly commented upon the said document s and had come to the conclusion that the date of birth of [ENTITY] is 29th of July, 1966 and, therefore, he was below 18 years of age on the date of accident.
5. However, it is contended by Shri [ENTITY] that assuming that [ENTITY] was a minor still it has come on record that he was holding a learners licence on the date of accident. Exhibit 83 shows that [ENTITY] had applied on 6th of March 1984 for a learners licence and had deposited Rs. 6/- under receipt No. 826326/6237/78 and it bears signature of [ENTITY]. The serial number given in 14754. The said licence was valid upto 5th of June,1984. Exhibit 82 is the permanent driving licence of [ENTITY] dated 6th June, 1984 obviously after the date of accident. However, we agree with the learned Member of the Tribunal that there are suspicious circumstances indicating that the evidence in that behalf is not trustworthy. [ENTITY], as clerk from the RTO office, Pune who is incharge of licence department has stated that the alleged receipt is not available. [ENTITY] also from the same office and working in the same department has stated that to obtain a permanent licence first the person has to obtain a learner's licence. From the evidence it appears that as per the cash book the learners licence was issued in the name of one [ENTITY]. Thus there is obvious discrepancy in the entry in the cash book which showed that the receipt was issued in the name of one [ENTITY] though the learners licence is issued in the name of [ENTITY]. He also stated that there is no entry in the name of [ENTITY] on 6th of March, 1984. It is no doubt true that certain documents are not available on record since they are destroyed. Obviously therefore the so called learner's licence is shrouded with suspicion. The learned Member has also rightly observed that [ENTITY] is a resident of Satara and he had no business to go to Pune for obtaining a learners licence. Therefore we agree with the finding recorded by the learned Member of the Tribunal that [ENTITY] was not having even a learners licence on the date of accident.
6. In this context a reference could usefully be made to [SECTION] of the [ACT] which in clearest terms lays down that no person under the age of eighteen years shall drive a motor vehicle in any public place. A contention was raised before us by Shri [ENTITY] that [SECTION] of the Rules of the [ACT] or the form prescribed for applying for learners licence, no where laid down any restriction as to the age though it is necessary to mention in the application the age of the applicant and also produce proof of age It is not possible for us to accept this contention of Shri [ENTITY]. [SECTION] and [SECTION] will have to be read together and if so read it is quite obvious that a person under the age of 18 years will not be entitled to get a learners licence qua a motor vehicle even under [SECTION] of the Rules. Hence we have no hesitation in agreeing with the finding recorded by the learned Member of the Tribunal that [ENTITY] was not having a valid driving licence on the date of accident.
7. It was then contended by Shri [ENTITY] that if the Insurance company wants to avoid its liability under [SECTION] of the [ACT], burden is upon the Insurance Company to prove that the owner had committed the breach of a condition incorporated in the policy of the insurance. In support of this contention he has placed strong reliance upon the decision of the Supreme Court in [PRECEDENT], and particularly on the following observations in para 14 of the said judgment :
" It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise."
He has also placed reliance yet another decision of the Supreme Court, in [PRECEDENT], . On the other hand it is contended by Shri [ENTITY] learned Counsel appearing for the Insurance Company that there is a basic presumption that the driver is driving the vehicle with the knowledge and consent of and for benefit of the owner. In support of this contention he has placed strong reliance upon the decision of the Supreme Court in [PRECEDENT]. In our view apart from the presumption that the driver was driving the vehicle with the knowledge and consent of the owner, which presumption is rebuttable in this case, the Insurance Company has discharged the burden of proving the said fact. [ENTITY], the driver of the car has stated in his deposition that on the date of accident, only his cousin brother [ENTITY] was present in the house and he took the keys of the car from the house and went towards Bogda with [ENTITY]. From this it was sought to be argued by Shri [ENTITY] that [ENTITY] took the vehicle in the absence of the owner [ENTITY] and without his knowledge and consent. He has also placed reliance upon Exhibit 64, statement of [ENTITY] recorded by the police in the behalf. It is not possible for us to accept this contention of Shri [ENTITY]. But for making a vague statement, it is no where stated by [ENTITY] that he was not allowed to drive the vehicle by his father. His very conduct in taking the keys of the car from the house and going with his cousin brother clearly indicate that it was with the permission of his father. If Exhibit No. 64 statement of [ENTITY] recorded by the police could be relied upon, then the statement made by [ENTITY] before the police could also be used to appreciate his evidence. In his statement before the police [ENTITY] has stated that he was always taking the car for driving with the permission of his father and accordingly he has gone on that day also. [ENTITY]'s previous statement was put to him when he was in the witness box. On the other hand [ENTITY] has not entered the witness box. Therefore on the basis of the evidence on record it is established by the Insurance Company that [ENTITY] was driving the car with the permission of his father [ENTITY]. Hence the question of liability of the Insurance Company will have to be determined on the basis of this finding i.e. [ENTITY] was a minor on the date of accident, that he was not holding any valid licence to drive the car and that he was driving the car with the permission of his father-owner of the vehicle. In view of the aforesaid findings we agree with the view taken by the learned Member of the Tribunal that the Insurance Company is not liable to indemnify the owner of the car for the compensation.
8. However, we find some substance in the contention of Shri [ENTITY] that so far as the compensation payable under [SECTION] of the Act, is concerned, the Insurance Company will be liable. To say the least this position is conceded by Shri [ENTITY]. This concession of Shri [ENTITY] is based on the decisions of the Supreme Court in [PRECEDENT]., and [ENTITY] v. Miss Filomena F Lobo and others. In [ENTITY]'s case the Supreme Court has observed "while it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of [SECTION] and [SECTION] of the Act, referred to above". Therefore we hold that the Insurance Company will be liable to indemnify the owner so far as the compensation payable under [SECTION] of the [ACT] is concerned. Similar view seems to have been taken by the Rajasthan High Court in [PRECEDENT]., and [PRECEDENT].
9. So far as the quantum of compensation is concerned, it is contended by Shri [ENTITY] that the boy involved in [CASE NUMBER] i.e [ENTITY] was only 8 months old at the time of accident. The learned Member of the Tribunal has allowed compensation of Rs. 20,000/- for the death of [ENTITY] Under [SECTION] of the Act Rs. 15,000 is payable under no fault liability. The learned Member awarded this compensation after taking into consideration the fact that the claimants would have been required to spend for education of the child and by the time he would have started earning the claimants would have been more than 40 and 50 years of age. Shri [ENTITY] learned Counsel appearing for the claimants has placed strong reliance upon the decision of the Madhya Pradesh High Court in [PRECEDENT] and particularly para 8 thereof, which reads as under :
"Learned Counsel for the claimant respondents has cited two cases involving death of young boys aged 7 years and 9 years respectively, namely, [PRECEDENT] and [PRECEDENT], Rajasthan High Court In the first of these two cases, the amount of compensation assessed by the High Court in appeal was Rs. 50,000 and in the second it was assessed as Rs. 48,000/-. It is inevitable that in assessing compensation, element of estimate and to some extent conjecture enters into the computation of compensation, but comparable cases do provide satisfactory guidance in judging whether the Tribunal's award as to quantum of compensation is arbitrary or unreasonable. The amount of compensation of Rs. 50,000 as assessed by the learned Tribunal cannot be regarded as excessive or unreasonable in the circumstances."
In our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in these appeals.
10. In [CASE NUMBER], the deceased [ENTITY] was aged about 11 years and was taking education. He was the only male child of the claimants. There is no other male member in the family. The applicants are the mother and the sister of the child. The history shows that even the father of [ENTITY] was murdered after the strike of Mill Workers in 1983. [ENTITY] alone was maintaining the family and was getting Rs. 300 per month as pension from the Mill. Deceased [ENTITY] had taken admission in the Vthe Standard in King George High School Dadar for Marathi medium. In all Tribunal has granted Rs. 40,000 as compensation to the claimants for the death of [ENTITY]. Having regard to the fact that [ENTITY] was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insurance Company.
11. It was then contended by Shri [ENTITY] that so far as [CASE NUMBER] is concerned, the boys [ENTITY] and [ENTITY] were aged about 14 and 11 years respectively. He has not disputed the grant of compensation to the tune of Rs. 35,000 for each child. However, according to him additional compensation of Rs. 16,000 granted to the claimants towards the amount spent for the treatment of applicants (i.e claimants) is wholly illegal as it is not based on any principles. It is also contended by him that for the pain and/or sufferings of the applicants nothing could be paid under the provisions of the [ACT]. In support of this contention he has placed strong reliance upon a decision reported in [PRECEDENT] and a decision of the Supreme Court in [PRECEDENT]., wherein the Supreme Court observed that "award of compensation under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained". Similar view seems to have been taken by the Full Bench of the Andhra Pradesh High Court in [PRECEDENT]. No other view has been brought to out notice by Shri [ENTITY] learned Counsel for the claimants nor he was able to justify the award of Rs. 16,000 under this head on any principles. Therefore, it will have to be held that the amount of compensation on the said head is wholly unsustainable. Hence that part of the finding and order passed by the Tribunal will have to be set aside and it will have to be held that the claimants in this case will be entitled to get compensation of Rs. 70,000 and not Rs. 86,000, as awarded by the Tribunal. It is needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under [SECTION] of the Act since the said claim involves death of two children.
12. It was then contended by Shri [ENTITY] that so far as [CASE NUMBER] is concerned it is quite obvious from the evidence on record that [ENTITY] the boy injured has suffered permanent disability because of the accident. From the evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri [ENTITY]. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of [ENTITY]. Rs. 7,500/- will be payable by the Insurance Company under [SECTION] of the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in [PRECEDENT]., the same is hereby confirmed.
13. In the result therefore appeals are partly allowed. It is declared that the Insurance Company will be liable to pay compensation under [SECTION] of the Act for the deaths and permanent disability, to the tune of Rs. 67,500 in all the four cases and to that extent the order passed by the tribunal shall stand modified. The compensation of Rs. 86,000 granted by the Tribunal in [CASE NUMBER] is set aside and it is held that the total compensation payable in the said claim will be 70,000/-. In the circumstances of the case there will be no order as to costs in these appeals.
14. The Insurance Company as well as the appellants are directed to deposit the compensation awarded and payable in the trial Court. The Insurance Company to deposit the amount within a period of one month and the appellant [ENTITY] to deposit the amount within a period of 3 months. Unfortunately in these cases inspite of the decision of this Court M/s. [PRECEDENT], the tribunal has not passed any consequential orders about the disbursement and investment of the amount. The tribunal shall pass necessary consequential orders in tune with the guidelines laid down by this Court in the aforesaid decision obviously after hearing the parties concerned.
15. Before parting with this judgment we would like to observe that in these cases the Tribunal had not passed any orders under [SECTION] of the Act within a reasonable time after the claimants instituted their claims. It appears that the attention of the tribunal was not drawn towards [SECTION] of the [ACT] which provides for a procedure dealing with the claims under [SECTION] of the Act. If these claims are not determined and awarded within the time prescribed by the rules, then the very purpose of the enactment will be frustrated. We hope that the Tribunals will decide the claims under [SECTION] of the Act as per the procedure prescribed by [SECTION] of the Rules.
At this stage Shri [ENTITY] prays for leave to appeal to Supreme Court. Leave refused.