1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 137 OF 1995 The Manager, ) United India Insurance Co. Ltd., Satara. ).. Appellant (Org. Opponent No.3.) Versus 1. Indumati Yashwant Chikane, ) 2. Pramod yashwant Chikane, ) 3. Jitendra yashwant Chikane, ) 4. Mangal yashwant Chikane, ) 5. Ramchandra Tukaram More. ).. Respondents ­­ Shri M.S. Sawant i/by KMC Legal Venture for the Appellant. ­­ CORAM : A.S.OKA, J. DATE : 8TH FEBRUARY, 2010 ORAL JUDGMENT: . Heard learned counsel appearing for the Appellant. The challenge in this First Appeal is to a judgment and award dated 6th April, 1994 passed by the Learned Member of the Motor Accident Claims Tribunal, Satara, in a Claim Petition filed by the 1st to 4th Respondent. The 1st to 4th 2 Respondents are the original Claimants who filed the Claim Petition under Section 110­A of the Motor Vehicles Act, 1939. A claim for compensation was made on account of demise of one Yeshwant Anandrao Chikane in a motor accident. The vehicle involved in the accident is a Matador owned by the 5th Respondent herein which was allegedly insured on the relevant date with the Appellant. The 1st Respondent is the widow of the deceased and the 2nd to 4 th Respondents are the children of the deceased. The claim petition was contested by the Appellant. By the judgment and award dated 6th April, 1994, the Claim Petition was allowed and the compensation of Rs.. 1 lakh along with future interest thereon at the rate of 12% per annum was granted by the Tribunal. 2. The learned counsel appearing for the Appellant submitted that the Appellant produced a Cover Note which showed that the vehicle was insured only for a period of one month from 10th March, 1987. He submitted that the Appellant has examined an Investigator appointed by the Appellant who stated that the vehicle was insured only for a period of one month. He submitted that as against this, neither the owner nor the Claimants adduced any evidence by producing the policy of insurance to show that on the date of the accident, there was a valid insurance. Thirdly, he submitted that a specific case of the Appellant was that the driver of the tempo was not holding a valid driving license and no attempt has been made either by the owner or by the driver to place the original driving license on record. He submitted that even by going by averments made in 3 the Claim Petition, the Claimant was travelling as a gratuitous passenger and therefore, the Appellant was not liable to pay compensation. Lastly, he submitted that the compensation awarded is exorbitant and the Tribunal has not recorded any reason as to how the dependency can be taken at Rs. 850/­ to Rs.900/­ per month. 3. I have carefully considered the submissions. As far as the first submission is concerned, it must be stated here that what was produced by the Appellant was the Cover Note No.416560 for establishing that the insurance was valid from 10th March, 1987 to 9th March, 1988. To prove the cover note, the Appellant has not examined any officer. As against this, the certificate of Regional Transport Officer at Exhibit 34 shows that the vehicle was validly insured with the Appellant from 10th March, 1987 to 9th March, 1988. The number of certificate of insurance mentioned therein is 416560. Apart from the fact that the Appellant has not examined any of its officers, no attempt is made by the Appellant to produce a true copy of Policy No. 416560 . What is produced is a Cover Note bearing the said number which is again not proved by examining any officer of the Appellant. Moreover, the Tribunal has observed that there is an overwriting on the said Cover Note in the month of expiry. Similarly, the year is also not clear in the column of the date of expiry of insurance. In the face of RTO certificate at Exhibit­34, the Appellant ought to have produced certificate of insurance bearing No.416560. However, the same has not been done. Even for proving the alleged cover note, the concerned officer has not been 4 examined. 4. It is true that in the Written Statement, a contention has been raised by the Appellant that the deceased was travelling in a goods vehicle. The learned counsel appearing for the Appellant submitted that there is an averment to that effect in the Claim Petition. Perusal of the Claim Petition filed by the 1st to 4th Respondents shows that at the relevant time, the deceased was travelling by a Matador. The Claimants have not admitted that the Matador was a goods vehicle at the relevant time. My attention was invited to the evidence of the Claimants recorded in the companion application. Perusal of the cross­examination of one of the Claimants made by the Advocate shows that even a suggestion was not made that the vehicle involved in the accident was a goods vehicle. Therefore, there is no material placed on record in support of the contention of the Appellant that the vehicle was a goods vehicle. No attempt was made by the Appellant to produce evidence to show that at the relevant time, the vehicle was a goods vehicle. 5. As far as failure to produce driving licence is concerned, there is nothing on record to show that any notice to produce a licence was given by the Appellant to the insured. As held by the Apex Court in the case of National Insurance Company Co. Ltd. v. Swaran Singh & Ors., [2004(3) SCC 297], the burden of proof was on the Appellant to prove the breach of terms and conditions of the policy of the insurance. No attempt was made to lead 5 evidence in that behalf. There is one more hurdle for dealing with the said contention that there was a breach committed by the insured of the terms and conditions of the policy. The said contention cannot be upheld unless the insured is heard in this Appeal as the finding of the Tribunal on this aspect is in favour of the insured. The office remark shows that the appeal stands dismissed as against the insured ­Respondent No.5 by an order dated 2nd December, 2008. Apart from this, there is no merit in the submission made as regards the breach of the terms and conditions of the policy. 6. As far as the quantum is concerned, according to the case of the Claimants, the deceased was employed as a Typist with Kurla Transport Agencies and was drawing the salary of Rs.1,200/­ per month. A reliance is placed on the Certificate at Exhibit­25. The said certificate Exhibit­25 has been marked as exhibit without any objection by the Appellant in the deposition of Gitabai Yashwant Chikane ( the first Respondent). The learned Member of the Tribunal while accepting the said document has recorded that the certificate is exhibited without there being any objection by the Appellant. The case of the widow is that apart from the income by way of salary, the deceased was doing private typing work and was earning Rs.500/­ per month. The dependency taken by the learned Member of the Tribunal is Rs.850/­ to 900/­ per month and multiplier of 10 years has been applied. Considering the fact that the age of the deceased was 50 years at the time of accident, in view of the decision of the Apex Court in the case of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr., [ (2009)6 6 SCC 121 ], the correct multiplier would have been 13 years. The compensation awarded accordingly will be Rs.1,09,000/­. Therefore, it is not possible to find fault with the compensation awarded of Rs.1 lakh by the learned Member of the Tribunal. 7. There is no merit in the Appeal and the same is dismissed with no order as to costs. (A.S.OKA, J)