THE HIGH COURT OF TRIPURA AGARTALA MAC APPL. No.79 of [SECTION]15 1. Smt. [ENTITY], wife of Sri [ENTITY], 2. Sri [ENTITY], son of late Sanaiya Reang both are residents of Vill. Sanaiya Reang Para, Kamalpur, P.S. Kamalpur, District - Dhalai Tripura Appellants -Versus- 1. Sri [ENTITY], son of [ENTITY], resident of Choto Surma, P.S. Kamalpur, District - Dhalai Tripura (Owner of Max Vehicle No.TR-04-A-1686) 2. The [ENTITY] (Insurer of Max Vehicle No.TR-04-A-1686) Respondents
BEFORE THE HON'BLE MR.JUSTICE S. TALAPATRA For the Appellants : Mr. [ENTITY], Advocate For the respondents : Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Date of hearing : 09.12 .[SECTION]16 Date of delivery of Judgment: 19.01.[SECTION]17 and order Yes No Whether it is fit for reporting:
JUDGMENT & ORDER This is an appeal under [SECTION] of the [ACT] from the judgment and award dated 19.09.[SECTION]15 delivered in TS(MAC) No.125 of [SECTION]14 by the Motor Accident Claims Tribunal, West Tripura, Agartala.
[02] The appellants instituted the claim under [SECTION] of the [ACT] as their son namely [ENTITY] died in a road traffic accident which occurred on 25.01.[SECTION]14 on the Kamalpur-Sanaiya road for rash and negligent driving of one Maxx vehicle bearing No.TR-04-A- 1686. When their son [ENTITY], who was aged about 13 years was returning home on foot, walking along the left side of the road, the said accident took place. The victim was immediately taken to BSM Hospital, Kamalpur and he was immediately admitted there but on the following day i.e. 26.01.[SECTION]14, he expired in the early morning. Kamalpur PS Case No.11 of [SECTION]14 was registered under [SECTION] and [SECTION] of the [ACT] from the said accident and in these regards, there is no dispute.
[03] On recording evidence, the tribunal awarded a sum of Rs.3,25,000/- with interest at 9% per annum from the date of filing of the claim petition i.e. 11.04.[SECTION]14 till realization, whereas the claim of the appellants was Rs.[SECTION],80,000 as compensation for the damage that they suffered for death of their son. The tribunal has further directed that 60% of the share of the claimant No.1 shall be kept in a fixed deposit in her name for a period of 10 years and the remainder shall be paid to her. The tribunal further restricted loan or withdrawal from the fixed deposit. [04] Being aggrieved by the said judgment, the appellants have preferred this appeal for enhancing the award on the broad ground that the tribunal has committed serious illegality by omitting various pecuniary and non-pecuniary damages that the appellants have suffered. [05] Mr. [ENTITY], learned counsel appearing for the appellants has submitted that the tribunal has gravely erred by omitting to award compensation for loss of love and affection and loss of future income. Mr. [ENTITY], learned counsel has further submitted that the tribunal ought to have directed the insurance company, the [ENTITY] as the insurer of the Maxx vehicle without directing the owner of the Maxx vehicle to pay the said award. The appellants have also contended that the interest that has been directed to be paid is much less than the interest as usually paid along with the award arising from the road traffic accident. The victim according to the appellants was a brilliant student and besides his studies he used to earn Rs.6,000/- per month from his poultry business. Thus, the assessment of the compensation on the income of the victim on the notional income of Rs.15,000/- has rendered the award unjust and unreasonable. In this context, a decision of the apex court in [PRECEDENT] and another vs. Lala and Ors. reported in [SECTION]13 ACJ 2594 has been relied on. In that case, a boy of 10 years who was assisting his father in the agricultural works died in a motor accident. For his death, the claim was instituted and the dispute reached to the apex court for final adjudication. The apex court has observed as under:
"Further, the deceased boy, had he been alive, would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old at the time of accident, by applying the legal principles laid down in the case of Sarla Verma vs. Delhi Transport Corp., [SECTION]09 ACJ 1298 (SC), the multiplier of 15 can be applied to the multiplicand. Thus Rs.30,000 X 15 = Rs.4,50,000 and Rs.50,000/- under conventional heads for loss of love and affection, funeral expenses, last rites and held in [PRECEDENT] which is referred to in [PRECEDENT]'s case (supra) and the said amount under the conventional heads is awarded even in relation for the death of children between 10 and 15 years old.
In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants. The said amount will carry interest at the rate of 9 per cent per annum by applying the law laid down in the case of Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, [SECTION]12 ACJ 48 (SC), for the reason that the insurance company has been contesting the claim of the appellants from 1992-[SECTION]13 without settling their legitimate claim for nearly about [SECTION] years, if the insurance company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9 per cent interest on the compensation awarded in favour of the appellants is legally justified."
[06] Mr. [ENTITY], learned counsel has also pointed out that the principle as laid in [PRECEDENT] (supra) has been accepted in [PRECEDENT] [Judgment and order dated 03.06.[SECTION]16 in MAC App. No.96 of [SECTION]13] by this court. Mr. [ENTITY], learned counsel has relied on decisions of the apex court in Jawahar Singh vs. Bala Jain and others reported in [SECTION]11 ACJ 1677, S. Iyyapan vs. United India Insurance Company Limited and another reported in ([SECTION]13) 7 SCC 62 and the decision of this court in [PRECEDENT] [Judgment and order dated 10.11.[SECTION]16 delivered in MAC App. No.08 of [SECTION]16] to contend that even if the breach of the policy conditions such as driving of the vehicle by a person who did not have valid driving licence at the relevant time would not exonerate the liability of the insurer in paying the award first and later on to recover the equal amount from the owner of the vehicle. [07] From the other side, Mr. [ENTITY], learned counsel appearing for the respondent No.2 has submitted that in the case in hand, the vehicle was being driven by a person who had no valid driving licence at the time of the accident as would be evident from the final police report filed by the police in connection with Kamalpur PS Case No.11 of [SECTION]15 under [SECTION]), [SECTION] of the [ACT] where it has been observed as under:
"From the statement of Complainant, statement of available witnesses examined by me, PM examination report, MVI report and other facts and circumstantial evidences a prima facie charge U/[SECTION]) [ACT] and 134/187 [ACT] has been established against the actual driver namely [ENTITY] (25) S/O-Sri [ENTITY] of Sanaya Reang Para PS-KMP (As showing absconder) and [SECTION] [ACT] has been well established against the owner of the vehicle namely [ENTITY] S/O- Sri [ENTITY] of Chotosurma PS-KMP for giving false information regarding the accident as well as the particulars of actual driver who was driving the vehicle at the time of accident.
Under the above facts and circumstances, I do hereby submit Charge Sheet vide Kamalpur PS C/S No. 96/[SECTION]14 Dated 31/10/[SECTION]14 U/S-279/304(ii) [ACT] and 134/187 [ACT] has been established against the actual driver namely [ENTITY] (25) S/O-Sri [ENTITY] of Sanaya Reang Para PS- KMP (As showing absconder) and [SECTION] [ACT] has been well established against the owner of the vehicle namely [ENTITY] S/O- Sri [ENTITY] of Chotosurma PS-KMP for giving false information regarding the accident as well as the particulars of actual driver who was driving the vehicle at the time of accident and thus oblige."
It transpires that without any discussion the tribunal has directed the owner of the vehicle, the respondent No.1 herein, to pay the awarded sum.
[08] Mr. [ENTITY], learned counsel appearing for the respondent No.1 has submitted that the direction of payment on the owner of the vehicle is grossly untenable as the admitted position is that the vehicle is insured by the respondent No.2 and in this regard there is no controversy as would be evident from the certificate of the insurance cum policy schedule (Exbt.D). From the scrutiny of Exbt.D, it would be further apparent that the vehicle was under valid insurance coverage from 30.08.[SECTION]13 to midnight of 29.08.[SECTION]14. As the accident had taken place on 25.01.[SECTION]14, the said vehicle was certainly within the valid coverage of the said policy. From the police report though it appears that at the relevant time the vehicle was being driven by one [ENTITY] but in the written statement the respondent No.1 even did not disclose the name of the driver. In the para-5 of the written statement it has been merely stated that it is further denied and disputed by the OP No.01 that the accident occurred due to rash and negligent driving of the offending vehicle bearing No.TR-04-A-1686 by its driver. However, in the para-3 of the said written statement it has been stated that the owner has submitted all the documents like Registration Certificate, Insurance Certificate, Driving Licence etc. From the driving licence as submitted by the owner, it appears that the said vehicle which met the accident was being driven by one [ENTITY] of Chota Surma, Kamalpur, Dhalai, Tripura.
[09] The respondent No.2 represented by Mr. [ENTITY], learned counsel has contended that there is no infirmity in the direction for payment on the respondent No.1, the owner of the offending vehicle, inasmuch as the person who was driving the vehicle has not been disclosed by the owner of the vehicle. Even he did not disclose the name of the driver in the written objection. The owner has produced the driving licence of one [ENTITY] but according to the police the owner had given the false information regarding the actual driver who drove the vehicle at the time of accident.
[10] The police report is no doubt projects a prima facie opinion of the Investigating Officer (IO) and subject to proof by the witnesses based on whose statement such report is filed. There cannot be any amount of doubt that in the police report one [ENTITY] has been shown as the driver of the said vehicle. But it is not known to the tribunal whether the said [ENTITY] had any valid driving licence or not. But [ENTITY] surrendered before the police and got arrested as the driver of the vehicle. There is no amount of dispute that [ENTITY] had the valid driving licence at the time of accident. The tribunal did not direct any inquiry whether [ENTITY] had actually drove the vehicle at the time of accident. Except the claimant, namely [ENTITY], father of the victim, the tribunal did not examine any other witness. Even the respondent No.2 did not make any attempt to make out a case that the person who has been driving the vehicle did not have the valid driving licence. From the police report, it only appears that one [ENTITY] was driving the vehicle at the time of accident. As stated earlier, the police report is the prima facie opinion of the IO and it cannot be used as a primary evidence to come to a definite conclusion about the fact narrated therein. If it creates any parallel fact, it would be the duty of the proponent to establish that fact by adequate evidence. Neither the insurance company nor any other person has adduced any evidence in this regard. The owner of the vehicle simply has produced a driving licence which has been accepted by the tribunal but for the reason best known to the tribunal as no analogy of reasons have been provided in the impugned judgment and award why the liability of payment has been shifted to the respondent No.1. As such, that direction suffers from serious infirmity. There is no evidence that [ENTITY] had no driving licence. It has been established by the respondent No.1 that the driver as disclosed had the valid driving licence at the relevant point of time, as the driving licence was issued on 02.08.[SECTION]07 to expire on 01.08.[SECTION]27.
[11] It is true that if it is established that vehicle was being driven by a person without having a valid driving licence it would come within the breach as described under [SECTION] of the [ACT]. Law is determinative in nature. The apex court in [ENTITY] vs. [ENTITY] reported in ([SECTION]04) 3 SCC 297, [ENTITY] vs. [PRECEDENT] reported in ([SECTION]06) 4 SCC 250 and Oriental Insurance Co. Ltd. vs. Nanjappan reported in ([SECTION]04) 13 SCC 2[SECTION] held that the insurer was liable to indemnify the award even if the driver does not have any valid driving licence in certain circumstances. In [ENTITY] (supra) it has been held as under:
"45. Thus, a person whose licence is ordinarily renewed in terms of the [ACT] and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to [SECTION]in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.
46. [SECTION] of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry."
[12] In [PRECEDENT] (supra) it has been held as follows:
"14. This Court in [ENTITY] ([SECTION]04) 3 SCC 297) clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a- vis the driver being not possessed of a valid licence was considered in [ENTITY] stating: (SCC pp. 336-37, para 89) "89. [SECTION] of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. [SECTION] of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub- section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in [SECTION] of the Act defines various categories of vehicles which are covered in broad types mentioned in [SECTION]. They are `goods carriage', `heavy goods vehicle', `heavy passenger motor vehicle', `invalid carriage', `light motor vehicle', `maxi-cab', `medium goods vehicle', `medium passenger motor vehicle', `motor-cab', `motorcycle', `omnibus', `private service vehicle', `semi-trailer', `tourist vehicle', `tractor', `trailer' and `transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for `motorcycle without gear', [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for `light motor vehicle' is found to be driving a `maxi- cab', `motor-cab' or `omnibus' for which he has no licence. 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 the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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."
[13] It is unequivocally held by the apex court that if on facts it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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. [14] The respondent No.2 did not take any stand how the accident occurred or whether the driver had the valid driving licence. As such, the benefit must go in favour of the victim qua the owner. It is, therefore, held that the respondent No.2 shall be held liable to pay the award whatever would be re-determined by this court having due regard to the submissions made by the learned counsel appearing for the appellants as well as to the records of evidence. It is true that there is no proof of income except an oral statement that the victim used to earn Rs.6,000/- per month. Thus, the tribunal has safely adopted a sum of Rs.15,000/- as the notional income as provided in the second schedule of the [ACT] following a decision of this court in Puja Sarkar and another vs. Oriental Insurance Co. Ltd. reported in [SECTION]13 (1) TLR 793. This decision however is substantially incompatible to the decision as rendered in [PRECEDENT] (supra). In [PRECEDENT] (supra) Supreme Court has stated calculated income of a minor boy aged 10 years at Rs.30,000/- per annum. But in [PRECEDENT] (supra) it has been established that the said boy was coming from a well established family and he was studying in a premium school. His academic performance was brilliant showing a bright future prospect. After taking all these factors into consideration the said notional income has been assessed.
[15] Having regard to the circumstances of this case, particularly the academic career of the victim as established by the claimants and his involvement in generating income for the family, the notional income may be calculated at Rs.[SECTION],000/- instead of Rs.15,000/- as adopted by the tribunal. With this multiplicand, the multiplier of 16 be applied based on assumed the age of the mother at 35 years. 30% of the amount be added as the cost of the future prospect. Since the father who is an able bodied person cannot be held dependant, 50% from the said amount [Rs.4,99,[SECTION]0/-] has to be deducted. Thus, the amount comes to Rs.2,49,600/-. For loss of love and affection, a sum of Rs.1,00,000/- be added, which shall be equally divided between the claimants. For cost of treatment, transportation of the injured and funeral expenses, another sum of Rs.50,000/- is given. Thus, the total compensation comes to Rs.3,99,600/-. The award shall carry interest @ 9% from the date of filing of the claim petition i.e. 11.04.[SECTION]14 till the payment is made. The respondent No.2, the [ENTITY] shall pay the amount within a period of one month from today. The appellant No.1 shall be entitled to the entire amount by deducting Rs.50,000/- which shall separately be paid to the appellant No.2.
In the result, the appeal is allowed to the extent as indicated above. Draw the award accordingly.
JUDGE MB