FAO No.5494 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5494 of 2009 Date of Decision: 12.01.2010 Oriental Insurance Co. Limited ..Appellant Vs. Smt.Salochna ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Ashwani Talwar & Mr.A.S.Khara, Advocates, for the appellant. --- Vinod K.Sharma,J. (Oral) This order shall dispose of FAO Nos.5494 to 5500 of 2009, titled Oriental Insurance Co. Limited Vs. Smt.Salochna and Ors.; Oriental Insurance Co. Limited Vs. Smt.Bala and Ors.; Oriental Insurance Co. Limited. Vs. Ramesh and Ors.; Oriental Insurance Co. Limited Vs. Karan Singh and Ors.; Oriental Insurance Co. Limited Vs. Geeta Devi and Ors.; Oriental Insurance Co. Limited Vs. Sushila and Ors.; Oriental Insurance Co. Limited Vs. Shanti Devi and Ors., respectively. These FAO No.5494 of 2009 2 appeals have been filed by the appellant, challenging the joint award dated 25.08.2009 passed by the learned Motor Accident Claims Tribunal, Hisar (for short the Tribunal). The Oriental Insurance Company limited, has challenged the award passed by the learned Tribunal, vide which the claim petitions filed by the claimants under section 166 of the Motor Vehicles Act (for short the actr) were allowed. The claimants had claimed compensation, on account of motor vehicular accident which took place on 30.4.2007 in which number of persons died/received injuries. It was alleged by the claimants, that the accident had occurred due to rash and negligent driving of Ramesh Kumar, driver of truck bearing registration No.HR-46-C-2372. Claim was contested. On appreciation of evidence, learned Tribunal recorded a finding, that the accident had occurred due to rash and negligent driving of truck bearing No.HR-46-C-2372, by respondent No.4 which resulted in the death of Ram Niwas, Chiman Lal and injuries to claimants Bala, Ramesh Kumar, Karan Singh, Smt. Geeta Devi, Sushila, Guddi and Rahul. The appellant/Insurance Company denied its liability, on the ground, that respondent No.4 was not holding a valid driving licence and that the truck was being driven in violation of terms and condition of the insurance policy, at the time of the accident. Issue No.13 was taken up with issue No.2 i.e. the compensation payable to the claimants in claim Petition No.47 of 2007. FAO No.5494 of 2009 3 Learned Tribunal recorded the following findings on issues No.2 and 13. “Issue No.2 & 13. Both these issues are inter-connected and hence the same are taken up together for discussion. Salochana etc. Vs. Ramesh etc. (Claim Petition No.47 of 2007. 24. Claimant Smt.Salochna, aged 24 years, while appeared in the witness box as PW/9 stated in her affidavit Ex.PW9/A that deceased Ram Niwas was her husband. He died in a motor vehicle accident about 1½ years back. He was 26 years old. In the copy of PMR Ex.P/12 also the age of deceased Ram Niwas is mentioned as 26 years. There is no other evidence to prove the age of deceased Ram Niwas. Thus, from the evidence available on record it is held that deceased ram Niwas was aged about 26 years at the time of his death. 25. PW/9 Smt. Sulochna further stated that her husband Ram Niwas was working as labourer on brick kiln and was earning Rs.8,000/- per month. They were fully dependent upon the income of her husband. Except the oral assertion, there is no proof regarding the income of the deceased. Petitioner Smt.Sulochna herself has stated that her husband was a labourer. Ordinarily a labourer can earn about Rs.3000/- per month. Accordingly, keeping in view the circumstances, the income of deceased Ram Niwas is assessed at Rs.3000/- per FAO No.5494 of 2009 4 month. 26. The family consisted of deceased himself, his wife, his minor son and father. So, in terms of units the family consisted of seven units. Therefore, the factum of large number of family members would not have allowed deceased Ram Niwas to spend byway of personal expanses more than Rs.850/- per month. So, the monthly dependency of the claimants remains at Rs.2150/- and annually Rs.25800/-. As stated above, the age of the deceased at the time of his death was 26 years. Taking the age of deceased Ram Niwas as 26 years and totality of the facts and circumstances of the case into consideration, it would be quite appropriate if the multiplier of 16 is applied to the annual dependency of Rs.25,800/-. By applying the multiplier of 16 to the annual dependency of Rs.25,800/- the amount of compensation comes to Rs.4,12,000/-. The claimants are thus allowed a sum of Rs.4,12,000/- by way of compensation. 27. Though PW/0 Smt.Sulochna has stated that they spent Rs.30,000/- on transportation and last rites of deceased Ram Niwas, but there is no evidence to authenticate the same. However, expenses on last rites are natural consequences. Accordingly, I award Rs.5000/- to the claimants on account of last rites of the deceased. 28. The total compensation to which the claimants become entitle comes to rs.4,17,000/-. FAO No.5494 of 2009 5 29. Now the question arises as to who is liable to pay the compensation. Learned counsel for insurance company contended that from the evidence of RW/1 Sanjay Kumar, Junior Assistant, registering Authority Una it is clear that the respondent No.1 was not holding any licence on the day of alleged accident and as such the insurance company is not liable to indemnity the insured. However, I think there is no force in the contention of the learned counsel for the Insurance company. A bare look to the testimony of RW/1 Sanjay Kumar show that the entire verification was done in respect of of DL No.8196/08 whereas copy of driving licnece Ex.R/2 placed on record shows that he licence bearing No.8196/01 was originally issued in the year 1990 and not 1992. RW/1 Sanjay Kumar has admitted in cross examination that he can bring the record pertaining to the year 1990 regarding licence No.8196/08 dated 10.09.1990. Thus, the authenticity of driving licence Ex.R/2 cannot be doubted in absence of any cogent evidence. As such, the authorities reported as National Insurance Company Ltd.Vs. Geeta Bhat and others-II (2008) ACC 341 (SC) and Oriental Insurance Company Ltd.Vs. Prithvi Raj 2008 (1) RAJ 416, relied upon by the learned counsel for the insurance company are not applicable to the facts and circumstances of the present case. Accordingly, all the respondents being driver, owner and insurer of offending FAO No.5494 of 2009 6 truck bearing registration No.HR/46-C-2372 are jointly as well as severally held liable to make the payment of aforesaid compensation to the petitioner. This issue is decided in favour of the petitioners and against the respondents.” Learned counsel appearing on behalf of the appellant, challenged the findings of the learned Tribunal, on the ground that though the licence was shown to be validly renewed but original driving licence being fake, would lead to the only conclusion that the driver did not have the valid driving licence. This contention of the learned counsel for the appellant, cannot be accepted in view of the positive findings, recorded by the learned Tribunal that the authenticity of driving licence could not be doubted. Though an attempt was made to prove that original licence was not valid, still the appellant cannot succeed in this appeal in view of the law laid down by Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 Supreme Court Cases 297, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “(vi) 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 qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards 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 FAO No.5494 of 2009 7 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 insured under section 149 (2) of the Act. (vii) xx xx (viii) xx xx (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.” The very fact that driver had got renewed the licence, it can not FAO No.5494 of 2009 8 be said that the necessary steps, were not taken by the owner before employing him as driver, which could entitle the insurance company to deny its liability to indemnify the insurer under the policy. Finding no merit in these appeal, these are ordered to be dismissed. No costs. (Vinod K.Sharma) 12.01.2010 Judge rp