IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 277 of 2005 United India Insurance Company Ltd. Through Divisional Manager Divisional Office, Nainital Road Haldwani, District Nainital ….Appellant Vs. 1. Smt. Sita Devi W/o Late Sri Mohan Singh Bhandari 2. Km. Suchitra D/o Late Sri Mohan Singh Bhandari 3. Rajesh D/o Late Sri Mohan Singh Bhandari 4. Kumari Varsha D/o Late Sri Mohan Singh Bhandari Respondents No. 1 to 4 R/o Village Aleru Patti Jua, District Tehri Garhwal Respondents No. 2 to 4 minors through Their mother & Legal guardian respondent No. 1 5. Kuwar Singh Adhikari S/o Late Sri Narayan Singh R/o Village Aleru, Patti Jua District Tehri Garhwal 6. Rajendra Singh S/o Sri Satye Singh R/o Village Sunar Gaon Patti Jua District Tehri Garhwal ….Respondents Sri D.S. Patni, learned counsel for the appellant Sri Arun Mohan Saklani, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 173 of Motor Vehicle Act, 1988 has been filed by the appellant/United India Insurance Company Ltd. against the judgment and order dated 20.04.2005 passed by the Motor Accident Claim Tribunal/District Judge, Tehri Garhwal in M.A.C.P. No. 11 of 2004, Smt. Sita Devi & others Vs Kuwar Singh Adhikari & others whereby the Tribunal awarded a sum of Rs. 1,72,000/- as compensation to the claimants and against the Insurance Company. 2. Brief facts of the case are that on 16.03.2004, Sri Mohan Singh Bhandari was traveling in Vehicle No. UPP/9886 which was being driven by its driver in a very rash and negligent manner. Due to negligence of the driver, the said vehicle met with an accident and the deceased – Mohan Singh Bhandari sustained serious injuries and thereafter, he has died due to these injuries. At the time of the accident he was aged about 38 yeas and running a business of shop and hotel at the time of accident and used to earn Rs. 8,000/- per month. Therefore, the claimants filed claim petition before the Tribunal concerned for Rs. 16,44,000/- as compensation. 3. Sri Kuwar Singh Adhikari (owner of the vehicle) and Sri Rajendra Singh (driver of the vehicle) contested the claim petition by filing their separate written statements. The owner of the vehicle has submitted that the vehicle was insured with the United India Insurance Company and produced relevant documents. It has further submitted that the accident occurred due to technical failure. The driver of the vehicle also filed the written statement on the aforesaid facts. 4. The United India Insurance Company also contested the claim petition by filing its written statement stating therein that the driver of the vehicle in question was not having the valid driving licence. It has further pleaded that on the date of accident, the owner of the vehicle has not possessed the valid permit, fitness certificate etc. It has further alleged that the claim petition was not maintainable and liable to be dismissed. 5. On the basis of the pleading of the parties, the Tribunal has framed following issues:- 1. Whether this accident took place on 16.03.2004 at about 03:00 P.M. near Village Aleru Patti Juwa, within the jurisdiction of police outpost Dobata, Tehri by rash and negligent driving of Taxi No. UPP/9886, by its driver, resulting into the death of Sri Mohan Singh Bhandari as alleged? 2. Whether the driverof the ill-fated vehicle did not possess a valid driving licence on the date of the accident as alleged in para No. 5 of the W.S. of O.P. No. 3? If so, its effect? 3. To what amount of compensation, if any are the claimants entitled and from which of the opposite parties? 6. The Tribunal after hearing learned counsel for the parties and perusing the entire material led by the parties, decreed the claim petition to the tune of Rs. 1,72,000/- as compensation in favour of the claimants and against the Insurance Company vide judgment and award dated 20.04.2005. 7. Feeling aggrieved by the aforesaid judgment and order, the Insurance Company preferred this appeal before this Court. 8. Heard Sri D.S. Patni, learned counsel for the appellant, Sri Arun Mohan Saklani, learned counsel for the respondents and perused the record. 9. Sri D.S. Patni, learned counsel for the appellant/Insurance Company has submitted before the Court that the driver of the vehicle has no valid driving licence as there is no endorsement in the driving licence regarding authority to driver the vehicle in hill areas. In order to support his contention, he has placed before me Rule 193 of the Motor Vehicle Act which reads as under:- “193 Endorsement of certain licences for hill roads- No person shall drive a public service vehicle or a good vehicle on a hill road unless his licence to drive such public service vehicle or goods vehicle has been endorsed by a registering authority with a permission to drive upon hill roads situated within the jurisdiction of such registering authority or in the case of a public service vehicle hired by tourists, by the registering authority of the State with which reciprocal arrangements on the point have been agreed upon. 10. On the other hand, Sri Arun Mohan Saklani, learned counsel for the respondent has submitted before the Court that aforesaid endorsement is only applicable for the public service vehicles and further their being no such provision under the Motor Vehicles Act, therefore, Rule 193 cannot be held to be applicable. 11. The Division Bench of this Court rendered in the case of The India Assurance Co. Ltd. Vs Smt. Kala Devi @ Kalawati Devi & others, decided on 30.10.2006, in which it has been held that the driving licence of the driver will not be held invalid merely on the ground of absence under the provisions of Rule 193 of Motor Vehicles Rules. 12. The Division Bench of this Court has also ralied upon the decision of the Hon’ble Apex Court rendered in the case of National Insurance Co. Ltd. Vs Swaran Singh, 2004 AIR SCW 663, in which it has been observed as under:- “(iii) The branch 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, has 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 insured or the their parties. To avoid its liability towards the 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 a duly licensed driver or one who was not disqualified to driver at the relevant time. (iv) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his disqualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.” 13. In view of the aforesaid decision of the Hon’ble Apex Court as well as decision of the Division Bench of this Court, I do not find any force in the submission raised by learned counsel for the appellant/Insurance Company. The copy of the licence of the driver, which is paper No. 20ga of the paper book reveals that it was valid for Motorcycle as well as Light Motor Vehicles (Transport). After hearing learned counsel for the parties as well as in the light of the above Rule, I find that if there was no endorsement authorization to drive the vehicles in hills, the licence cannot be held invalid. At the time of the accident the vehicle in question was insured with the United India Insurance Company, therefore, the Tribunal rightly imposed the liability of compensation upon the Insurance Company. 14. So far as the amount of compensation is concerned, the claimant did not adduce any evidence which may show the actual monthly income of the deceased. Therefore, the notional income of Rs. 15,000/- of the deceases was taken for assessment of the compensation. After deducting 1/3rd towards personal expenses, annual dependency of the claimants comes of Rs. 10,000/-. At the time of the death, the deceased was 38 years of age and the Tribunal has rightly adopted the multiplier of 15 and thus the amount of compensation comes to Rs. 1,50,000/-. The Tribunal has further awarded a sum of Rs. 5,000/- each claimants towards love and affection of Rs. 2,000/- towards funeral expenses. Thus, in total the amount of compensation comes to Rs. 1,72,000/-. I do not find any ground to interfere in the impugned judgment and award. The amount awarded by the Tribunal in favour of the claimants appears to be perfectly justified. No other point has been pressed by the appellant. 15. In view of the above discussion, the appeal lacks merit and is liable to be dismissed. 16. Accordingly, the appeal is dismissed. No order as to costs. 17. The statutory amount, if any, deposited before this Court by the appellant at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 01.04.2008 ASWAL