Miscellaneous Appeal No. 51 of 2003 **** Against the judgment, dated 10th September, 2002, passed by Additional District Judge, I, Bhagalpur, in Claim Case No. 105 of 2001 **** 1. The Branch Manager, National Insurance Company, Monger 2. The Divisional Manger, Divisional Office, National Insurance Company, Bhagalpur Both are represented through the National Insurance Company, Sone Bhawan, Birchandra Patel Path, Patna .. Appellants Versus 1. Meena Devi, w/o late Binoy Kr. Sharma 2. Saurabh Kumar, s/o late Binoy Kr. Sharma 3. Komal Kumari, d/o late Binoy Kr. Sharma 4. Mona Kumari, d/o Binoy Kr. Sharma Respondents 2 to 4 are minors, represented though their mother All are residents of village Manjghai, P.O. Manjghai, P.S. Sangrampur, Monger, presently residing in village Choti Bhab Nathpur, P.O. Makandpur, P.S. Akbar Nagar, Bhagalpur 5. Akhilesh Kr. Sin s/o Sri Mahohar Prasad. Singh, village Ganeli, Tarapur, Monger 6. Akhilwsh Kr. Singh, s/o Manohar Prasad. Singh, village Ganaui, Tarapur, Monger 7. Branch Manager, Union Bank of India, Tarapur, district Munger .. Respondents **** For the appellants .. Mr. S.S. Pandey, Adv. For respondents 1 to 4 .. M/S Vivekanand Vivek & D.K. Poddar Advs. For respondents 5 & 6 .. M/S Pankat Kr. Sinha & K.K. Jha, Advs. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. 2 2. This Miscellaneous Appeal is directed against the order, dated 10th September, 2002, passed in Claim Case No. 105 of 2001 by Additional District & Session’s Judge, I, Bhagalpur, by which a claim of Rs.2,57,200/- for the loss of state with Rs.5,00/- for funeral and Rs.2,000/- for loss of consortium have been granted with interest of 9 per cent on the said amount prior to March, 2001, and, thereafter, an interest of 7(1/2) per cent with cost of Rs.250/- as Advocate’s fees and Rs.50/- Advocate’s Clerk fees. 3. The case of the claimant is that on 13.05.2001 while the claimant was going to Tarapur from his village by tempo bearing registration no. BR-10A-7111 and when he reached at Matkoraji Pasi Tola the tempo, the tempo has turned turtle and deceased died on the spot due to rash and negligent driving of the tempo driver. Further, case is that the deceased was a private tutor and was earning Rs.1,500/- per month by tuition and also earning Rs.2,500/- per month through cultivation, he earning altogether Rs.3,500/- per month from tuition and cultivation. The vehicle was ensured with the National Insurance Company Limited. 4. The insurance company filed written statement though accepted that the said vehicle was ensured and asserted that the claimants is bound to prove the accident injury and the accident was caused due to rash and negligent driving and asserted that the claimant, owner and driver are not party and be granted leave to take all defence as provided under Section 170 of the Motor Vehicles Act, 1988,. 5. After filing of the written statements issue framed, the parties led the evidence. 3 6. Four witnesses examined on behalf of the claimants. P.W. 1 is Meena Devi, the wife of the deceased of Binoy Kumar Sharma, P.W. 2 is Jeevan Sharma, P.W. 3 is Umesh Sharma, and P.W. 4 is Jagdish Sharma. The documentary evidence proved which is Exhibit 1, the formal first information report, Exhibit 2, the post mortem report, Exhibit 3, the insurance policy. One witness examined on behalf of the insurance company, who is Sridhar Chaubey, the investigating officer, who claims that he was appointed as investigator by the insurance company. 7. However, the Tribunal framed five issues, which are as follows : (i) Whether the claimants’ application is maintainable ? (ii) Whether there is valid cause of action ? (iii) Whether the deceased, Binoy Kumar Sharma, died out of the rash and negligent driving of the driver of the tempo, bearing registration no. BR 10A 7111 ? (iv) Whether the claimants are entitled for the compensation from the insurance company ? and (v) Whether the claimants are entitled for any relief ? 8. While deciding issue no. (iii) the Tribunal held that the occurrence took place due to rash and negligent driving of the tempo driver, bearing registration no. BR 10A 7111 and while deciding issue no. (iv) the Tribunal held that the claimants are entitled for Rs.2,57,200/- and further Rs.500/- for funeral, Rs.2,000/- for loss of state and Rs.5,000/- for consortium with 9 per cent interest per annum up to 2001 and, thereafter, 7(1/2) per cent interest per annum till the 4 date of realization. While deciding issues no. (i) and (ii) held that there is cause of action and granted the relief, as mentioned above. 9. The learned counsel for the appellants, however, challenged the impugned order on the ground that the vehicle, i.e., the tempo does not come under the definition of motor vehicle as per Section 2(28) of the Motor Vehicles Act, 1988. The learned counsel for the appellants, further, contended that the driver had got no valid driving licence for driving the vehicle. He has, further, contended that the permit was not given for plying the tempo. The registration book of the vehicle has not been produced and further Exhibits ‘A’ and ‘B’, the investigation report and the Block Development Officer’s certificate, were not considered and have challenged the quantum on the ground that the multiplier applied is not reasonable and, further, contended that for computing the quantum the Tribunal considered Schedule II, which is meant for Section 163A of the Motor Vehicles Act, 1988, whereas the claim petition is under Section 166 of the Motor Vehicles Act, 1988. 10. The learned counsel for the claimants, however, contended that the appellants, insurance company did not take permission under Section 170 of the Motor Vehicles Act, 1988, hence, may not be allowed to raise the point regarding the quantum and, further, in the written statement the appellants have neither raised the issue about the driving licence, permit, registration book and consideration of the Exhibits is of no consequence and, hence, there is no merit in the submission on behalf of the appellants. 5 11. Hence, on the rival submissions of the parties question for consideration whether the vehicle comes under the definition of the Motor Vehicles Act, 1988, and, further, if the driving licence, permit, registration book have not been brought then who will suffer for not bringing the documents and whether the non-consideration of Exhibits filed by the Advocates finding recorded by the Tribunal, further, whether appellants is permitted to raise the question of quantum under Section 17(c) of the Motor Vehicles Act, 1988. 12. However, case of the deceased that he was driving travelling in the tempo and the tempo met with an accident. The insurance company, i.e., the appellants, though admits that the vehicle was insured, however, submit that the vehicle was not a motor vehicle. However, it is strange that the insurance admits that vehicle was insured, but, taken plea that it was not a motor vehicle. The insurance policy suggests that it was a tempo and it’s registration number is BR- 10A-7111. However, at the argument the learned counsel, further, raised the plea that vehicle which was issued had applied for registration, but, not deemed that it was not insured rather admitted that the vehicle which was insured met with an accident and no objection raised before Tribunal that the vehicle met with accident was not the vehicle which met with accident. Hence, admittedly, the vehicle was tempo under Section 2(28) of the Motor Vehicles Act, 1988, defines a vehicle propelled with power and vehicle insured was motorcycle propelled with power well comes under definition of motor vehicles and, hence, there is no merit in submission that the vehicle which met with the accident was not a motor vehicle. 6 13. The next question which was raised is that the driving licence was not there. However, in the written statement filed on behalf of the insurance company there is no objection raised that the said vehicle which met with the accident was not being driven by a person who has no valid driving licence. There is no objection raised in the written statement that the said vehicle has no road permit, the vehicle has got no registration number and, further, no evidence has been laid by the insurance company that the person who was driving was having no valid driving licence. However, nothing has been pointed out by the learned counsel for the appellant that what the material which was not recorded which could have affected the decision of the Tribunal, but, only vague submission that material was considered. 14. The learned counsel for the appellant could not show that any prejudice has been caused to him for non-consideration of the any reports or document which has been brought in evidence by the insurance company. From the perusal of the report it is apparent that it is not helping the appellants, but, it is helping the respondents as the report suggests that the driver of the said tempo has got a valid licence of light motor vehicle. However, nothing has been brought that whatever licence he was having, he was eligible to drive the tempo even the income of the deceased has been found to be as per the local enquiry, as per Exhibit ‘A’, is Rs.3,000/- per month and even the report of the District Transport Office mentions that the driver was having a valid licence and, hence, what ever alleged to have been not considered is against the appellants and in favour of the respondents and there is 7 nothing on the record to suggest that the driver was not having a valid licence and, further, in a catena of decisions it is well settled that it is the insurance company which has to plead and prove if he claims that benefit of violation of the policy condition as it is for the insurance company who has to plead and prove the violation to get the benefit or to get out of the policy to pay the compensation to the third party. 15. However, third point raised for computing the quantum is multiplier system has not been properly assessed and has asserted that the Court has taken multiplier of sixteen whereas the unit system taken has not been property assessed and sixteen may not be the proper multiplier. However, even if testing the said submission the age of the deceased has been assessed as forty years and the claimants are the wife and the children of the deceased. However, even testing the multiplier as per the second schedule for the age of group of a claimant as 35 to 40 years the sixteen as multiplier is just and proper. However, the grievance of the claimants is that when assessing the claim under Section 166 of the Motor Vehicle Act, 1988, a multiplier system in second schedule under Section 163 of the Motor Vehicle Act, 1988, may not be taken into consideration. The second schedule is universal application for computing the just and proper computation and, hence, I do not find any merit in applying the multiplier by taking into consideration the second schedule for assessing the just and proper compensation and, hence, there is no merit in the submission. 16. So far the objection raised by the respondents that since the insurance company has not taken permission under Section 170 of the Motor Vehicles Act, 1988, hence, not liable to raise the 8 question of quantum and be limited to objection with regard to Section 149(2) of the Motor Vehicles Act, 1988, is concerned it is well settled that insurance company is not liable to raise the quantum when permission not granted under Section 170 of the Motor Vehicles Act, 1988. However, even on merit, as discussed above, on quantum the claimant not succeed and even, since, permission not taken under Section 170 of the Motor Vehicles Act, 1988, the appellants can not succeed. 17. Hence, having regard to the facts and circumstances, I do not find any merit in this Miscellaneous Appeal and, hence, it is dismissed. 18. Rupees twenty five thousand, deposited in the High Court be sent down to the Tribunal for realizing the amount of the claim to the claimants and rest of the amount must be paid within two months by the appellant. (Gopal Prasad, J. ) The Patna High Court, The 09th day of September, 2010, N.A.F.R./Cp:3/S.A.