IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Appeal From Order No. 120 of 2006 Soban Singh Bisht S/o Sri Raghuveer Singh R/o Link Road, District Pithoragarh ..........Appellant. Versus 1- Smt. Rekha Devi W/o Late Sri Kailash Singh Rawat 2- Kharak Singh S/o Sri Joga Singh 3- Smt. Leela Devi W/o Sri Kharak Singh, All R/o Village Seuni, Patti Tharkote, Tehsil and District Pithoragh 4- National Insurance Company Through Divisional Manager, National Insurance Company Ltd. Divisional office Haldwani, District Nainital …. Respondents Sri Sharad Sharma, Advocate, for the appellant Sri J.C. Pande, Advocate, for respondents no. 1 to 3 Sri Manish Dalakoti, holding brief of D.S. Patni, Advocate, for respondent no. 4/insurance company Dated: April 1, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been filed against the judgment and award dated 21.12.2005 passed by Motor Accident Claims Tribunal/District Pithoragarh, in Motor Accident Claim Petition NO. 01/2004, Smt. Rekha Devi & others vs. Soban Singh Bisht. The claimant Smt. Rekha Devi and others preferred a claim petition under Section 166 of Motor Vehicles Act, for grant of compensation on account of death of Kailash Singh in a motor vehicle accident. According to the claimants on the fateful day on 14.12.2003, the deceased was going by Jeep No. U.A. 05/1242. The vehicle was being driven by its driven rashly and negligently, with the result when the vehicle reached near village Dhamaud at Pithoragarh- Tanakpur road, the vehicle met with an accident and deceased came beneath the jeep and sustained fatal injuries on his person. The deceased was admitted in Hospital where he succumbed to his injuries sustained in accident. According to the claimants, the deceased was 24 years of age and was employed in Private Company at Gurgaon, Haryana and used to earn Rs. 3000/- year month as salary. The claimants thus claimed a sum of Rs. 7,00,000/- as compensation. Opposite party no. 1 Shoban Singh Bisht/appellant before this Court, filed written statement and denied that the accident took place due to rash and negligent driving by its driver. The accident occurred all of a sudden. He has stated that the driver had valid driving licence at the time of accident. The vehicle was insured with National Insurance Co. Ltd. and insurance company is liable to pay compensation, if any. The opposite party no. 2-insurance company has filed written statement and stated that claimants did not mention the particulars of papers, photo copy of F.I.R. etc. in the claim petition. The insurance company has alleged that the vehicles was being plied against the terms and conditions of the insurance company and driver had not permit to drive the vehicle on hill routes. The amount of compensation awarded by Tribunal is excessive and owner of vehicle had burden to prove the permit, fitness, pollution control certificate etc. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues, which were discussed in great detail by the Tribunal. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs. 1,82,000/- as compensation, in favour of claimants, along with an interest of 7%per annum from the date of filing the claim petition till the date of payment of compensation. The Tribunal also directed that opposite party no. 2-insurance company shall have a recoverable right to initiate the proceedings for recovery right to initiate the proceedings for recovery of the awarded amount of compensation from the opposite party no. 1- owner of the vehicle. Feeling aggrieved by the aforesaid judgment and award, the appellant who is the owner of the offending vehicle, has filed this appeal before this Court. Heard learned counsel for the parties and perused the record. The only controversy involved in this case is as to whether on account of the reason of absence of the endorsement to drive the vehicle on hill route in driving licence the recoverable rights given to insurance company against the owner of vehicle, the impugned award passed by the Tribunal can be held justified or not? Learned counsel for the appellant has invited my attention towards the judgment of the Division Bench of this Court rendered in the case of The New India Assurance Co. Ltd. vs. Smt. Kala Devi alias Kalawati Devi & others, decided on 31.10.2006, in which it has been held that the driving license of the driver will not be held that the driving license of the driver will not be held invalid merely on the ground of absence of endorsement to drive the vehicle on hill routes under the provisions of Rule 193 of Motor Vehicles Rules. The Division Bench of this Court has also relied 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 breach of policy condition e.g. disqualification of the driver or invalid driving license 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 license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third 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 drive 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 license 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 license 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. The Division Bench of this Court has further relied upon the decision of the Hon’ble Apex Court rendered in the case of Lal Chand vs. Oriental Insurance Co. Ltd., 2006 AIR SCW 4832, in which it has been observed as under: “In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.” In view of the aforesaid decisions of the Hon’ble Apex Court as well as the Division Bench of this Court, I find myself in total agreement with the submission raised by learned counsel for the appellant. In this appeal, learned counsel for claimants/respondents no. 1 to 3 has also filed cross objection and contended that the Tribunal awarded meager amount of compensation and the same should be enhanced by this Court. I have gone through the impugned award. The Tribunal has recorded a finding that the claimants have not filed salary certificate and the salary could not be established, therefore, notional income of Rs. 15,000/- of the deceased was taken for assessment of the compensation. After deducting 1/3rd towards personal expenses, annual dependency was assessed at Rs. 10,000/-. According to the post mortem report and claimants’ version, the deceased was 24 years of age, therefore, the Tribunal has rightly adopted the multiplier of ‘17’ and the amount of compensation therefore comes to Rs. 1,70,000/- The Tribunal also awarded Rs. 2000/- towards funeral expenses and Rs. 10,000/- for loss of love and affection. In this way, total compensation of Rs. 1,82,000/- along with 7% interest per annum was awarded and, in my opinion, the Tribunal has awarded just and appropriate award and the same needs no interference by this Court. Hence, the cross objection filed by claimants for enhancement lacks merit and is liable to be dismissed. In view of above discussion, the appeal is liable to be allowed and cross objection filed by the claimants/respondents no. 1 to 3 is liable to be dismissed. Accordingly, the appeal filed by appellant/owner of vehicle, is allowed. The impugned award passed by the court below is modified to the extent that the liability to pay the amount of compensation rests upon the insurance company and not upon the owner of offending vehicle. The direction issued by the Tribunal by which the recoverable right has been given to the insurance company against the owner of offending vehicle, is set aside and the insurance company is directed to pay the amount of compensation awarded by the Tribunal. It is also directed that any amount deposited by the owner of offending vehicle i.e. appellant at the time of filing the appeal before this court, would be remitted to the Tribunal concerned, so that the appellant may be able to withdraw the same. Cross objection field on behalf of claimants/ respondents no. 1 to 3, is dismissed. (B.C. Kandpal, J.) SP