IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD MONDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.129 OF 2011 Between: The New India Assurance Company Limited, Rep. by its Branch Manager, Machilipatnam. …Appellant A n d Arshatunnisa and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.129 OF 2011 JUDGMENT: This appeal is directed against the order dated 30.11.2005 in M.V.O.P.No.90 of 2003, on the file of the Motor Accidents Claims Tribunal (VI-Additional District Judge), Machilipatnam (for short ‘the Tribunal), wherein the said claim application filed by respondents 1 to 3 herein seeking compensation was allowed-in-part, awarding Rs.2,50,000/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. Respondents 1 to 3 herein filed claim application seeking compensation of Rs.3 lakhs for the death of the deceased Ismail, who died in a motor vehicle accident that occurred on 22.03.2003. The 1st claimant is the wife and claimants 2 and 3 are the sons of the deceased. According to the claimants, on that day, the deceased was going on his cycle to the house of his daughter and that a lorry bearing No.AP 11 T 4420, driven by its driver in a rash and negligent manner dashed against the deceased from behind, as a result of which the deceased died. A case in Cr.No.13 of 2003 was registered against the driver of the lorry. According to the claimants, the deceased was aged 48 years and was doing cultivation and milk business, earning Rs.5,000/- per month. 4. The 5th respondent-owner of the vehicle filed a counter alleging that the deceased himself was responsible for the accident and the 4th respondent-driver filed a memo adopting the same. The appellant-insurer filed a counter denying their liability to pay the compensation. 5. During enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-6 were marked on behalf of the claimants. R.W.1 was examined and Exs.B-1 and B-2 were marked on behalf of the appellant-insurer. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The said finding is not seriously challenged in this appeal. The Tribunal further held that the claimants are entitled for a total compensation of Rs.2,50,000/. Aggrieved by the same, the insurer filed the present appeal. 7. The main contention of the learned counsel for the appellant is that driver was not having a valid driving licence and, therefore, there has been violation of the terms and conditions of the policy and hence the insurer is not liable to pay the compensation. He would further contend that the Tribunal erred in taking the income of the deceased at Rs.24,000/- per annum without any basis or evidence. 8. As seen from the impugned order, the appellant- insurer in their counter merely pleaded that the claimants have to prove that the driver of the lorry was having valid driving licence and the policy of insurance is in force. There is no specific denial that the driver was not having valid driving licence. However, according to the appellant- insurer, the driver was not having valid driving licence and, therefore, there was breach of conditions of policy. It is for them to establish the same by cogent evidence. 9. In a decision in UNITED INDIA INSURANCE COMPANY LIMITED, GAJUWAKA v. NEKKALLA AMMATHALLI AND OTHERS[1], this Court held as follows: “Whenever the insurer pleads breach of condition of policy on the part of insured, it has to prove the same by cogent and acceptable evidence and the insurer has to summon owner or driver or appropriate authority in licencing organization and examine them to prove that licence relied upon is fake or invalid or ineffective licence. 10. In the present case, the Branch Manager of the appellant-insurer was examined as R.W.1. Though he stated that the driver was not having valid driving licence, the appellant-insurer has not adduced any evidence in support of the same. Obviously, R.W.1 could not have any personal knowledge as to whether the driver was having a valid driving licence or not. Except filing the insurance policy, the appellant has not filed any document from the RTA authorities nor examined anyone from the licencing authority to show that the driver of the lorry was not having valid driving licence. The only circumstance relied upon by the appellant-insurer is that as per the charge sheet Ex.A-5 the driver was not possessing a driving licence at the time of accident. Simply because the driver has not produced the driving licence when called upon, no inference can be drawn that he was not having valid driving licence at all at the time of accident. The contention raised by the appellant-insurer pertaining to the absence of valid driving licence by the driver of the lorry, remains vague and also unsubstantiated. In the absence of any cogent and acceptable evidence in proof of the same, the said plea of the appellant-insurer that there has been breach of conditions of the policy cannot be accepted. There is nothing on record to show that the driver was not having valid driving licence at the time of accident or that the owner of the vehicle consciously allowed the vehicle to be driven by a person having no valid driving licence and thereby violated the terms and conditions of the policy. 11. Coming to the quantum of compensation payable, the evidence on record shows that the deceased was aged 48 years. The Tribunal has taken the income of the deceased at Rs.2,000/- per month, which comes to Rs.24,000/- per annum, and the same is held just and reasonable in view of the fact that even a daily wage earner would get not less than Rs.100/- per day. Deducting one-third thereof towards personh al expenses, the Tribunal estimated the contribution of the deceased to the family at Rs.16,000/- and applying the multiplier ‘15’ arrived at loss of dependency in a sum of Rs.2,50,000/- with interest at 7.5% per annum and the said amount awarded by the Tribunal cannot be considered to be excessive or unreasonable. 12. In the circumstances, it is held that the impugned award is not liable to be interfered with. 13. In the result, the civil miscellaneous appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 05th September, 2011 Lrkm. [1] 2009(5) ALD 371