Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 844 of 2006 National Insurance Co. through Divisional Manager, Divisional Office Canal Road, Tikonia, Haldwani District Nainital. ……Appellant Versus 1. Smt. Yashoda Devi W/o Sri Khushal Singh R/o Village Kanasili Post-Unchadhungi, Tehsil Ukhi Math District Rudraprayag. .……….Respondent/claimant. 2. Sri Abbal Singh Panwar S/o Sri Bhurey Singh Panwar R/o Village Ufalta, Post-Srinagar District Pauri Garhwal. …….Respondent. Shri Prabhat Pande, Advocate, for the appellant. Shri Yogesh Pacholia, Advocate, for the claimant/respondent No.1. Shri H.S. Rawal, Advocate, holding brief of Shri Rajendra Kotiyal, counsel for respondent No. 2. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 173 of Motor Vehicle Act, 1988, is directed against the award dated 18.09.2006, passed by Motor Accident Claims Tribunal/District Judge, Rudraprayag, in MAC case No. 22 of 2006, whereby said Tribunal has awarded Rs. 7,94,032/- as compensation to be paid to the claimants/respondents, and directed the appellant-National Insurance Company to pay said amount with 6% interest thereon. 2 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case are that Abbal Singh (deceased) was traveling in a vehicle registration No. UP-07C/8867, owned by respondent-Abbal Singh Panwar on 23.09.2005, on his way from Chandrapuri to Karnsili. At about 11:45 a.m., when the vehicle reached near Chorakandara, due to rash and negligent driving on the part of the driver, the vehicle met with an accident. Abbal Singh along with ten others died in the accident. Abbal Singh was in Government service as a Sepoy in the Indian Army, and he used to get salary of Rs. 5,787/- per month. Claimant No. 1-Yashoda Devi, is widow of the deceased. The First Information Report of the accident was got lodged with Patwari Circle Chandrapuri, Tehsil Ukhimath. The claimants claimed Rs. 12,40,000/-, as amount of compensation in the claim petition against the owner of the vehicle and National Insurance Company with whom the vehicle was insured at the time of the accident. 4. The owner of the vehicle, filed his written statement, before the Tribunal. He admitted that the accident took place and deceased died in said accident but he denied that the vehicle was being driven rashly and negligently by the driver. He pleaded that accident took place due to technical failure in the vehicle. Owner of the vehicle further 3 pleaded that the vehicle was insured with National Insurance Company and as such, said company is liable to pay amount of compensation, if any. It is also pleaded by him that in fact vehicle had already been transferred to one Narendra Singh, but on papers vehicle was yet to be transferred. (It is pertinent to mention here that the driver of the vehicle also died in the accident). 5. National Insurance Company (present appellant), who was respondent before the Tribunal, contested claim petition and filed its written statement. Though it is not denied by the Company that the accident had taken place but it is stated that the driver of the vehicle was not having valid driving licence, as such, the entire liability to pay compensation, if any, is with the owner of the vehicle, and not of the Insurance Company. It is further stated that the burden lies on the claimants to prove if the deceased was traveling in the vehicle in question. It is also pleaded that the income of the deceased, alleged by the claimants requires to be proved, as the same appears to be doubtful. 6. On the basis of the pleadings of the parties, following issues were framed by the Tribunal:- 1. Whether due to rash and negligent driving on the part of the driver of the vehicle, registration No. U.P. 07C/8867, it met with an accident 4 near Chora Gadhera on Baswara Kandara Road, at 11:45 a.m. on 23.09.2005, and whether Abbal Singh died in said accident? 2. Whether on the date of accident, vehicle was being driven with the valid papers and was the driver in possession of the valid driving licence? 3. Whether the vehicle, registration No. UP 07 C/8867, was insured with National Insurance Company, if so, its affect? 4. To what amount of compensation, if any, the claimant is entitled? 7. After recording the evidence and hearing the parties, the Tribunal held that the vehicle UP 07C/8867, owned by respondent-Abbal Singh Panwar, was being driven rashly and negligently by its driver, and consequently on 23.09.2005, at 11:45 p.m., the vehicle met with an accident in which Abbal Singh, who was traveling in the vehicle suffered injuries and died. The Tribunal further found that the vehicle was being driven by the driver with valid driving licence, which is valid for the period 01.11.2004 to 31.10.2024. The Tribunal further found that the income of the deceased was Rs. 5,787/- per month, which is clearly proved from the salary certificate (8-C). The Tribunal further found that the deceased was aged between 21 years, as is apparent from the copy of the family register (Aged about 24 years as per the post mortem examination report). Therefore, 5 applying multiplier of 17, the Tribunal assessed the pecuniary loss, suffered by the claimants at Rs. 5787 X 12 X 17= 11,80,548/-. After deducting 1/3rd of the income i.e. Rs. 3,93,516/-, amount which the deceased would have spent on himself, the Tribunal awarded Rs. 7, 87,032/-, as pecuniary loss with Rs. 2,000/- towards consortium, and Rs. 5,000/- towards funeral expenses, total Rs. 7,94,032/-, holding that the same are recoverable from the National Insurance Company with whom the vehicle was insured. Aggrieved by said award dated 18.09.2006, this appeal is filed by the Insurance Company on the ground that the driving licence of the driver, who was driving the vehicle was not valid licence and the Insurance Company is not liable to make the payment of amount of compensation. It is further pleaded that the vehicle as per the terms of the policy for insurance, was required to be plied within certain limits as the insurer sought deduction of Rs. 2,086.46 as the insurance premium but the vehicle was plied beyond the limits, where it met an accident. As such, the National Insurance Company is not liable to make the payment on the amount of compensation. 8. Shri Prabhat Pande, learned counsel for the appellant drew attention of this Court to the record of the Tribunal, wherein the driving licence (paper No. 25-C), is filed by the owner of the vehicle. Said driving licence shows that driver Abbal Singh Negi, 6 son of Khushal Singh, was given driving licence, which was valid from 01.11.2004 to 31.10.2024, to drive the light motor vehicle except the transport vehicle. It is argued on behalf of the appellant- National Insurance Company that said document itself shows that the driver was not authorized to drive transport vehicle. As such, the vehicle in question, which was being plied for transporting passengers on hire, could not have been driven by the aforesaid driver. That being so, it cannot be said that the vehicle was being driven by the driver with a valid licence. After perusal of the record, I agree with the learned counsel for the appellant that the driving licence, filed by the owner of the vehicle, does show that it was not meant for transport vehicle, as such, it cannot be said to be a valid licence. Apart from this, learned counsel for the appellant pointed out that the premium paid by the insurer was for plying the vehicle within limited area, but the accident had taken place beyond said limit. Section 147 (5) of Motor Vehicles Act, 1988, makes the insurance company liable only if the terms of the policy are not violated. 9. In the above circumstances, after going through the record of the Tribunal, this Court finds that though the Tribunal has committed no error of law in holding that the deceased was traveling in the vehicle registration No. UP 07C/8867, and died 7 in the accident, which took place on 23.09.2005, at 11:45 a.m. and that the deceased was earning Rs. 5,787/- per month and the claimants are entitled to Rs. 7,94,032/- as compensation but said amount is payable by the owner of the vehicle not by the National Insurance Company, for the reason that the driver was not holding the valid licence to drive the vehicle and also that the vehicle was being driven against the terms of the policy. Therefore, appeal deserves to be allowed to the extent that the National Insurance Company has no liability to make the payment of amount of compensation, which is payable by the owner of the vehicle. Accordingly, the appeal is allowed with the modification in the award, passed by the Tribunal that the amount of compensation shall be paid to the claimants by respondent-Abbal Singh Panwar, owner of the vehicle, and not by the appellant-National Insurance Company. (Prafulla C. Pant, J.) Dt:16.11.2009 Sweta 8 9 10 11 12 13