HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2838 of 2003 Date: 18-3-2010 Between The Oriental Insurance Company Limited, Rep. By its Branch Manager, Having its office at Nethaji Road, Balaji Colony, Tirupati ... Appellant/Respondent No.2 and 1. E.Sampoornamma and 4 others ... Respondents/Petitioners 6. K.Srinivasulu ... Respondent/Respondent No.1 HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2838 of 2003 Judgment: This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 07-01-2003 in M.V.O.P.No.290 of 2001 on the file of the Chairman, Motor Accident Claims Triubunal cum III Additional District Judge, Tirupati (for short, ‘the tribunal’). 2. The Oriental Insurance Company Limited, represented by its Branch Manager filed this appeal aggrieved by the judgment of the tribunal in awarding compensation of Rs.1,99,500/- to the respondents. 3. For the sake of convenience, the parties herein are referred to as they are arrayed in the tribunal. 4. The relevant facts leading to this appeal are as follows: The petitioners who are the legal representatives of one E.Kannaiah Achary (hereinafter referred to as ‘the deceased’), who died in a motor vehicle accident, filed a petition under Section under Section 163A of the Motor Vehicles Act, 1988 (for short, ‘the Act’) before the tribunal claiming a compensation of Rs.2,50,000/- on account of the death of deceased. According to the petitioners, on 11- 6-2001 at about 7 p.m., the deceased was proceeding by walk to purchase medicines in a medical shop near T.M.R. Kalyana Mandapam on Korlagunta bye-pass road, Tirupati and when he was crossing the road from west to east, at that time an auto bearing No.AP02T-838 proceeding to R.T.C. Bus Station from Korlagunta Junction, came at high speed being driven by its driver in a rash and negligent manner and dashed against the deceased, as a result of which he suffered injuries all over the body and while undergoing treatment in S.V.R.R. Hospital, Tirupati he succumbed to the injuries on 29-6-2001. 5. It is the case of the petitioners that the accident took place due to the negligence of the driver of the auto and by the date of accident the deceased was working as a mason and earning Rs.100/- to Rs.150/- per day. The petitioners who are the wife, son and 3 daughters of the deceased are therefore entitled to compensation of Rs.2,50,000/-. 6. The 1st respondent, owner of the auto, remained ex parte. 7. The 2nd respondent-Insurance Company filed its counter denying the age, occupation, income and relationship of the deceased with the petitioners. It also denied the manner of accident and further contended that the driver of the auto was driving at a normal speed and cautiously and that the deceased himself without noticing the vehicles on either side of the road, blindly crossed the road and in that process the accident took place. There was no chance of driving the auto at high speed as the place of accident is a busy locality. Therefore, the Insurance Company contended that the accident took place only on account of the negligence of the deceased. While admitting the auto involved in the accident was insured with it, the Insurance Company contended that the driver of the auto was not having a valid driving licence as on the date of accident and the driving licence was expired by 03-3-2000 itself. Therefore, the Insurance Company is not liable to pay any compensation. 8. On the basis of the above pleadings, the tribunal has framed the following issues: 1. Whether the pleaded accident occurred resulting in the death of the deceased and if so, was it due to the fault of the driver of the auto bearing No.AP02T-838 ? 2. Whether the auto in question belongs to the 1st respondent and stood insured with the 2nd respondent/Insurance Company by the date of the accident and if so, whether policy covers the risk of the deceased ? 3. Whether the petitioners are the legal representatives of the deceased and entitled to compensation and if so, to what amount ? 4. To what relief ? 9. On behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A-1 to A-8 were marked. No oral evidence was adduced on behalf of the respondents but Exs.B-1 and B-2 were marked. 10. The tribunal assessed the income of the deceased at Rs.75/- per day i.e., Rs.2,250/- per month and Rs.27,000/- per year and by applying the multiplier ‘10’ and after deducting 1/3rd towards the personal expenses of the deceased, awarded a total compensation of Rs.1,99,500/-. 11. The learned standing counsel for the appellant-Oriental Insurance Company Limited submitted that the insured had violated the terms of the policy as he entrusted the auto to a person who was not having a valid driving licence as on the date of accident. Therefore, the Insurance Company is not liable to pay any compensation. It is also further contended that the multiplier ‘10’ applied by the tribunal for a person aged 55 years is not correct. The income assessed by the tribunal is also not correct. Therefore, the Insurance Company is not liable to pay any compensation. 12. In support of his contention about the liability of the Insurance Company for not holding a valid driving licence by the date of accident, the learned standing counsel for the Insurance Company relied on a judgment of the Hon’ble Supreme Court in NATIONAL INSURANCE COMPANY LIMITED vs. VIDHYADHAR MAHARIWALA[1]. In the said case, the driver was not holding a valid driving licence as on the date of accident. The driving licence was valid before the date of accident and subsequently renewed after such date. The Hon’ble Supreme Court held that the Insurance Company would have no liability in case of this nature. 13. On the other hand, the learned counsel for the respondents- petitioners submitted that the Insurance Company is liable to satisfy the decree at the first instance. It cannot avoid payment of compensation only by saying that at relevant point of time, the auto was driven by a person who was not having a valid driving licence. Therefore, the Insurance Company should satisfy the decree at the first instance and then recover the amount paid to third parties on behalf of the insured. 14. The learned counsel for the petitioners placed reliance on the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh[2]. The Hon’ble Supreme Court held as under: “The breach of policy condition e.g., disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149 of the Act have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” 15. Admittedly, in the instant case the driver of the auto was having driving licence prior to the accident and he was a qualified driver. But his licence was not renewed by the date of accident. Therefore, he was not holding fake or invalid driving licence at the time of accident. 16. The Hon’ble Supreme Court in Swaran Singh’s case (2 supra) further observed as under: “The liability is of the insurance company to satisfy the decree passed in favour of third party at the first instance and to recover the awarded amount from the owner or driver thereof the Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of Cl.(1) and sub-section (2) of S.149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Ss.165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be.” 17. The point for consideration is, whether there are any valid grounds to interfere with the judgment and decree passed by the tribunal ? 18. Point:- Admittedly, the Insurance Company filed Ex.B-1 Certificate dated 13-12-2001 issued by the Transport Department, which indicates that the driver of the auto was having valid driving licence up to 03-3-2000 to drive Light Motor Vehicles. Further, admittedly the accident took place in this case on 11-6-2001. Therefore, by the date of accident, the driving licence was not renewed and the driver of the auto was not having a valid driving licence as on the date of accident though he was having a valid driving licence prior to the date of accident. 19. The tribunal discussed this issue at paragraphs 14 and 15 of the judgment and observed that the Insurance Company has not produced any material to show that the concerned driver was disqualified from holding licence subsequent to the end of renewal period of 03-3-2000. Therefore, though the licence was not renewed by the date of accident, still the driving capacity of the driver cannot be denied. Relying on the proposition of law laid down by the Hon’ble Supreme Court in United India Insurance Co. Ltd. vs. Gian Chand and others (1997) 7 SCC 558, the tribunal awarded compensation on the ground that the driver of the auto was holding driving licence prior to the accident and he cannot be equated with a person not having licence at all and for mere non-renewal the Insurance Company cannot repudiate its liability. 20. In this case the tribunal awarded compensation by following the judgment of the Hon’ble Supreme Court in United India Insurance Co. Ltd. vs. Gian Chand and others (supra). As the driver of the auto involved in the accident was not disqualified, he was qualified for driving a Light Motor Vehicle and therefore, the Insurance Company cannot repudiate its liability, as was rightly held by the tribunal. The deceased being a mason by the date of accident would be able to earn more than Rs.100/- per day but the tribunal has assessed the daily income of the deceased at Rs.75/- only and the tribunal rightly applied the multiplier ‘10’ by considering the age of the deceased at the time of accident. 21. For the foregoing, I find no valid grounds to interfere with the judgment and decree passed by the tribunal. 22. In the result, the civil miscellaneous appeal is dismissed and the judgment and decree passed by the tribunal are confirmed. ______________________ V.SURI APPA RAO, J. 18th March, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2838 of 2003 18th March, 2010. [1] (2008) 12 SCC 701 [2] AIR 2004 SUPREME COURT 1531