, (D i ..,...-,-<• T T-'r, -^- •"•• IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT fNon-ApDlicant No.31 RESPONDENTS ('Claimantst Misc. Appeal (C) No. V 155 /2010 The Oriental Insurance Co. Ltd., Through its Branch Manager, Branch Office-Korba, Distt. Korba (C.G.). ^?. ^: ^...,' 011 ^BII^ '?':1. Versus D.S.Mohankar, aged about 55 years,S/o Late Sukhram; 2. ^^ ^ ^; ^^ ^-^^^ c.^"::^^ ...'3>SO'Xr- ' .-..:•J-^^C- fNon-ADDlicant No.11 fNon-ADplicant No.2} ^ Smt. Shobha Mohankar, aged about 50 years, W/o D.S.Mohankar, Note: Respondents No. 1 and 2 are residents of Qr.No. A-1/46, ^Sinchai Co'lony", Darri, Post- Jamnipali, Tahsil Kathghora, Distt. Korba (C.G.). Ramkumar Shhwas, S/o Madhavram, aged about 40 years, Driver, r/o Saragbundiya, Urga, Korba (C.G.). Rajesh Kumar Rathore, S/o Shyamlal, Vehicle Owner, r/o Bighani, Champa (C.G.). 3. 4. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988. HIGH COURT OF CHHATTESGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI <& . HON'BLE MR.PRASHANT KUMAR MISHRA. JJ. Appellant Respondents M.A. [c1 No. 1193/2010 The Oriental Insurance Co. Ltd. Vs b.S. Mohankar <& 4 others Present: Mr. Ratan Pusty, Advocate for tt None for respondent Nos. 1 <& 2 f]hough served. eappellant. Mr. Roshan Verma, Advocate for respondent Nos.3 & 4. / ORDER (Oral) (^Oth January. 2011) I.M. Quddusi. J; 1. Chaltenge in the instant appeal, filed by the appellant Insurance Company, is to the award dated 20.7.2010 passed by the learned Additional Motor Accident Claims Tribunal, Katghora, Korba (CG) in C\am Case No.366/2007 partly allowing the claim petition filed by the ciaimants and fastening liability on the appellant-Insurance Company to pay compensation to the claimants. 2. Facts of the cose, in nutohell, are that on 27.8.07 at about 18.30 hrs Aakash Mohan (since deceased) was returning to his house on his bicycle. When he reached near barri market, a Hywa vehicle bearing registration number WB37-A-3251, coming from the back side and being driven in rash <& negligent manner by respondent No.3 herein, dashed his bicycle as a resutt he sustained grievous injuries on the various parts of his body. He was taken to NTPC Hospital where he died durin9 treatment. The claimants/respondent Nos.l & 2, who are parents of the deceased, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') ctaiming compensation for the death of their son in the sum of Rs.42,18,000/-- from the driver, owner and insurer of the offending vehicle. 3. The owner ahd driver of the offending vehicle appeared before the Tribunal and filed their written statement denying the claim of the claimants. 4. The insurance company resisted the claim by filing awritten statement before the Tribunal. It was the case of the insurance company that on the date of accident driver of the offending vehicle was not having valid and effective driving licence to drive the vehicle and as such the vehicle was plied in breach of the terms of the insurance policy. It was their further case that it was due to the negligence on the part of the deceased that the accident occurred. 5. Learned Tribunal, after taking note of the evidence available on record, held that the claimants' son died in the accident caused by the offending vehicle due to negtigent driving of its driver and thus the ctaimants are entitled for compensation. Therefore, the Tribunal fixed Rs.3,48,500/- as the amount of compensation. Interest at the rate of 6% per annum was awarded from the date 6f the claim. The Tribunal has further directed that in case the amount of compensation is not paid within stipulated time, then 9% p.a. interest sholl be payableon the amount of compensation. 6. Learned counsel for the appellant-Insurance Company has submitted that the driver of the offending vehicle was not having valid and effective driving licence on the date of accident and thus the vehicte was plied inbreach of the terms of the insurance policy. He has further submitted that the Tribunal has wrongly rejected the application of the appellant-Insurance Company filed under Section 170 of the Act, 1988 as the driver and the owner of offending vehicle had not contested the claim seriously and even no challenge has been made regarding income of the deceased and as such, it appears that there was collusion between the claimants and the driver <& the owner of the offending vehicle. 7. On the other hand, learned counsel for the respondents has supported the impugned award. 8. We have heard learned counsel for the parties and perused the records of the Tribunal as also the impugned award. 9. As far as the first argument of learned counsel for the appetlant is concerned, we have perused the records of the Tribunal and found that in the driving licence produced by the driver dote of expiry was mentionedas 29.8.2008. In the certificate dated 30.7.2008 issued by the Licencing ./ Br / •^ hiuuui—"Pn Authority also the dateof expiry of driving licence has been mentioned as 29.8.2008. Licence to drive Heavy Goods Vehicte was made effective from 1.9.1992, whereas the Light Motor Vehicle licence was granted to the driver on 7.10.1990 and the same was to be expired on 5.7.2009. Certified dated 30.7.2008 issued by the office of the RTO, Bilaspur is reproduced herein below:- THE REGIONAL TRANSPORT OFFICE, BILASPUR (CG) bated:30/7/08 Ram Kumar Shriwas, Saragbundiya, Korba Subject: Particulars of &.L. No.: OTH/1090/94 oid No.R/685/BLp/ 9012878/92/F BhagaLpur Particulars of O.L. No. OTH/1090/94 as per our office records is as under:- 1. l^lame of b.L. Holder 2. Father's Name 3. Address 4. Professional / Pnvate 5. Class of Vehicle 6. bate of Issue 7. bate of Expiry of &.L. 8. Badge No. ByLA. Bilaspur Other Out of Socks Ram Kumar Madho Ram Vill. Saragbundiya, Oist. Korba LMV, HGVw.e.f. 01.9.92 10.7.1990 28.8.2008 Date of issue (sealof R.T.O. Bilaspur) (Licencing Authority) R.T.O. Bilaspur (CG) lO.Signature of the Licensing Authority present on the certificate has been verified by the witness of the Insurance Company namely Shri Umesh Tripathi (NAW-3), an emptoyeeof RTO, Bilaspur, who has statedin his cross- examination that thesaid certificate, which is marked as Ex.D-8, was issued from his office and the same bears signature of Mr. bhruw and he is saying so as he is acquairited with his signature. bate of expiry mentioned in that certificate is 29.8.2008 though it should have been 29.8.2006. In the driving licence produced by the driver also, the same date has been mentioned and therefore, it cannot besaid there would not have been any bonafide belief by the driver and the owner of the offending vehicle that driving licence was expiring on 29.8.2008. This witness has further stated that no intimation was sent to the driver by the office that his driving licence was expiring in the year 2006 and not in 2008. 11. In the matter of National Insurance Company Vs. Swarn Singh <& others reported in (2004) 3 SCC 297 the Hon'ble Apex Court held as under:- "Where the driver's licence is found to be fake; 92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer ' must prove that the owner was guilty of the willfut breach of the condjtions of the insurance policy or the contract of insurance. In Lehru's case the matter has beenconsidered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish willful breach on the part of the insured and not for the purpose of its disentittement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later." But, in the case in hand, the licence was not fake and was a genuine driving licence and the date of expiry mentioned therein as well as in the certificate issued by the Licensing Authority was proved by the said witness Umesh Tripathi (NAW-3), who was working as AsSistant Grade-III in the office of R.T.O., Bilpspur. 12.In view of the above, if the date of expiry was wrongly mentioned by the office of the RTO concerned, it was the responsibility of the office concerned to rectify the same and for that reason the driver and the owner of the vehicle cannot be put to suffer by shifting liability from the insurer to them. Accordingly, we do not find any force in the first argumentof learned counsel for the appellant. 13. As far as the second argument advanced by learned counsel for the appellant regarding wrongly rejection of the application moved by the appellant under ^- Section 170 of the Act, 1988 is concerned, we have perused the records of the Tribunal and found that no challen9e or cross-examination was made on behalf of the owner or the driver of the offending vehicle on the question of •^- income of the deceased and in such circumstances, we are of the opinion that the Tribunat should have allowed the apptication filed Section 170 of the Act, 1988 as ultimately it is the insurer who has to pay the amount of compensation. Thus, we are of the opinion that the question of quantum be considered by this Court. 14. As regards the quantum of compensation, the Tribunal has rightly assessed the annual dependency at Rs.18,000/- byassessing earning of deceased at Rs.3,000/- per month and after deducting personal expenses to the extent of 50%, as the deceased was bachelor. However, looking to the age of the parerits of the deceased i.e. 52 <& 48 years respectively, average age of which would come to 50 years, the multiplier of 17 applied by the Tribunal is not correct and the Tribunal should have applied the multiplier of 13, as per decision of the Hon'ble Supreme Court in the matter of Sarla Verma (Smt.) and others -vs- Delhi Transport Corporation and another reported in (2009) 6 SCC 121. Therefore. if we apply multiplier of 13 to the annual loss of income, the total loss of dependency would come to Rs.2,34,00/- (18000x13). 15. Besides above, the amount awarded by the Tribunal under other admissible ;! ' '• heads are also not in accordance with the amount mentioned in the Second Schedule provided under Section 163-A of the Act. Therefore, we award an amount of Rs.5,000/- each to the claimants towards loss of love & affection, considering the age of the deceased Rs.10,000/- is awarded towards loss of estate, Rs.5,000/- towards funeral expenses. 16. Further, we feel that the penal interest imposed by the Tribunal @ 9% is not proper and the same deserves to be set aside in view of the law laid down by the Hon'ble Supreme Court in the matter of National Insurance Company Ltd. Vs. Keshav Bahadur and others reported in (2004) 2 SCC 370 wherein the Hon'ble Supreme Court has held that direction in the award for retrospective enhahcement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. 17. Accordingly, we are of view that the claimants are entitled for the compensation of Rs.2,59,000/- in all along with simple interest ©6% p.a. ...^ ;A"^ ^<"i i. ^^ J "'^E^' from the date of filing of application till the amount of compensation is actually made. 18. In the result, the appeal is allowed in part, the impugned award is modify to the extent that now the ctaimants shall be entitled for Rs.2,59,000/- as compensation in place of Rs.3,48,500/-. They shalt also be entitted for simple interest @ 6% p.a. on the awarded amount from the date of filing of application till actual payment is made. The direction of the Tribunal regarding payment of interest @ 9% in case the amount of compensation is not paid within the stipulated period, is hereby set aside. Rests of the conditions imposed by the Tribunal shall remain intact. However/whatever amount has been deposited by the appellant-Insurance Company shall be adjusted towards the amount of compensation as fixed by this Court. 19. The appeah^ajiowed to the extent indicated above. No order as to costs. Sd/- i T...-. sd//- LM.Quddusi | prashant Kumar Mishra Judge S Judge ^Lo^-f.