IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.396 of 2004 1. JAGESHWAR PRASAD SINGH 2. FUDO DEVI, --APPELLANTS Versus 1. M/S TARA LINKERS CARRIER PVT.LTD. 2. THE ORIENTAL INSURANCE COMPANY LTD. --RESPONDENTS For the Appellants : M/s Ajay Kumar & Mukesh Prasad For Respondent no.2 : Mr. Rana Randhir Singh 15 19.07.2010 Heard learned counsel for the appellants and respondent no.2. None appeared to represent respondent no.1, the owner of the vehicle, inspite of notices. With the consent of the learned counsels this appeal is hereby being disposed of at this stage. The appeal has been preferred against judgment dated 17th May, 2004 passed by 7th Additional District Judge –cum- Motor Accident Claim Tribunal, Bhagalpur, in Claim Case no. 90 of 1997 awarding the claimants, that is, parents of deceased a sum of Rs.82,000/- as compensation against death of deceased Anant Kumar @ Anand Kumar who lost his life in a road accident on 23rd 2 August, 1997. Involvement of the vehicle in question in the accident and its coverage under insurance are not in dispute. The only point, for determination in this appeal, as contended, is that whether the insurer can be exonerated from making payment of the amount awarding with a right to recovery from the owner and secondly whether the assessment income of the deceased on the principle of notional income is correct or the applicants are for enhanced amount as per the plea that the deceased was earning Rs.2,500/- per month. It is undisputed that owner never appeared before the Court below nor entered appearance in this appeal. The only ground, as taken by the court below exonerating the insurance company from payment of liability is that since the owner or driver did not appear and furnished license of the person on the driving seat on the particular day or any other documents. The Claim Tribunal arrived at the conclusion that since owner did not produce particular document inspite of notice adverse inference may be drawn against him owner is liable to make payment but 3 insurer is exonerated from such liability. Learned counsel for the appellant vehemently contended that since vehicle in question was insured any pre-terms and conditions of the policy is the question to be determined in between insurer and insured but the claimants the sufferers are to pay the amount as death compensation of the deceased and insurer cannot be exonerated from making such payment as provided under Sub-sections (4 and (5) of Section 149 of the Motor Vehicles Act, the insurer may realize the amount from the owner. Reliance has been placed by learned counsel upon the decisions of the Apex Court in the case of Narcinva V Kamat and Another V. Alfredo Antonio Doe Martins and Others; 1985 (2) Supreme Court Cases 574, wherein it has been held that by mere failure to produce driving licence the insurer cannot be absolved from the burden of payment. Almost similar view has been taken by Madras High court in a case of G. Nagendra Devi and Others V. Y. Mosses and Others, 2003 ACJ 221, the learned counsel appearing for the Insurance Company submitted that steps were taken to produce driving licence but neither the owner appeared to 4 produce the same so court below has rightly drawn adverse inference against the owner and exonerated the Insurance Company from the liability. But in face of the decision aforementioned, coupled with the provisions as contemplated in Section 149 of the Motor Vehicles Act, relevant provisions reads as such: “149. Duty of Insurance to satisfy judgments and Awards against persons insured in respect of third party risk: xxx xxx xxx (4) Where a certificate of insurance has been issued under sub-section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby reference to any conditions other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of Section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.” 5 I find that only because of non-production of driving licence by the owner who avoided appearance before Tribunal or even before this Court the insurer cannot be exonerated from making payment of the Award on the grounds it has right to recover from the owner with interest even by initiating execution proceeding wherein the question of validity of driving licence have raised by the owner by producing original one may be decided but here in face of valid insurance the insurer is bound to make payment. It is undisputed that before the Claim Tribunal there was no documentary evidence on the point of income of the deceased though it is stated in the claim application that he was earning Rs.2,500/- per month at Haryana. Only three witnesses on behalf of the claimant have been examined before the court below out of whom two have supported the assertions in the claim petition as appear more so at the same time one of the claimants, that is, father of the deceased has said that monthly income of his son was Rs.2,000/-. In absence of any document Claim Tribunal has adopted principle of notional income. The learned 6 counsel for the appellants by placing reliance upon a decision of the Apex Court in the case of National Insurance Company Limited V. Khimlibai and Others, (2009) 10 Supreme Court Cases 648; submitted that even in absence of any documentary evidence in face of assertion that deceased was working and earning person, the Tribunal is not of the opinion that he was not capable to earn. A reasonable amount may be assessed as his per day income from monthly income. In the case before the Apex Court position was almost the same. Accident was also of the year 1997. On the basis of statement of one of the witnesses the deceased was earning Rs.100/- per day. The Apex Court accepted that and fixed the Award on the basis of income of the deceased as Rs.100/- per day. Almost similar is the view taken by this Court in the case of Asha Devi V. Renu Shukla, (2009) 3 P.L.J.R. 23. The learned counsel, representing the Insurance, submitted that in absence of any circumstantial evidence there should be no enhancement. On going through the decisions aforementioned and further taking into consideration the submissions made by the learned counsel for the appellants that he is satisfied 7 even if income of the deceased is considered as Rs.2,500/- per month instead of fixing Rs.3,000/- on basis of assumed income of Rs.100/- per day. At least two witnesses examined on behalf of the Claimants. One of whom D.W.1, Subodh Sah, appearing as an eye-witness to the occurrence and is co-worker in the factory with the deceased, has said that the income of the deceased was Rs.2,500/- per month. I feel no hesitation in accepting that the income of the deceased was Rs.2,500/- per month instead of Rs.1,500/- which comes to Rs.30,000/- per annum instead of Rs.15,000/- as calculated by the Claim Tribunal. There is no doubt as regards to multiplier of 8 applicable in this case. After deducting 1/3rd from annual income and on multiplying 8 comes to Rs.1,50,000/- added plus Rs.2,000/- as awarded by the scheme as funeral expenses etc. total comes to Rs.1,52,000/-. The insurer respondent no.2 is liable to pay the amount of Award to the appellants-claimants with its right to recover from the owner if permissible under the facts and circumstances, stated above. With the above modification in the impugned 8 order, this appeal stands disposed of. (Akhilesh Chandra, J.) AAhmad/