IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.424 of 2004 1. Demoy Kishku, wife of Late Tala Hembram. 2. Sunita Hembram. 3. Anita Hembram. 4. Sushila Hembram. Serial No. 2 to 4 are minor daughters of Late Tala Hembram under the guardianship of their mother and natural guardian and next friend claimant no. 1 – Demoy Kishku. All are resident of village Dighi, P.S. – Meharma, District – Godda. (Serial No. 1 to 4 are claimants respectively) ………… Appellants. Versus 1. Basant Mahto, Son of Dwarika Mahto. Resident of village – Ghorichak, P.S. – Meharma, District – Godda. (Opposite Party No. 1) ………… Respondent. 2. Smt. Pushpa Singh, wife of Late Govind Prasad Singh. C/o. Jagdish Prasad Singh, Resident of village – Barahat, P.S. Pirpainti, District – Bhagalpur. (Owner of the Vehicle). (Opposite Party No. 2) ………… Respondent. 3. Branch Manager, Oriental Insurance Company Ltd. At P.O., P.S. – Godda, District – Godda. (Opposite Party No. 3) ……………. Respondent. 4. Branch Manager, The Oriental Insurance Company Ltd. R.B.S.S. Rodad, Katchari Chowk, P.S. – Kotwali, District – Bhagalpur. (Opposite Party No. 4) …………………. Respondent. ----------- For the Appellant :- Mr. Ajay Kumar, Advocate. Mr. Mukesh Prasad Singh, Advocate. For the Respondent No. 1 and 2 :- Mr. Mukul, Advocate. For the Respondent No. 3 and 4 :- Mr. Durgesh Kumar Singh, Advocate. 16/ 04.10.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 27th May, 2003 passed by Sri Mahendra Narayan Singh, Ist Additional District & Sessions Judge, 2 Bhagalpur in Claim Case No. 10 of 2002 by which he has granted compensation to the tune of Rs.1,92,858/- with 6 % interest with advocate fee of Rs.250/- and advocate clerk fee of Rs.50/- exonerating that the owner of the vehicle shall be liable to pay the amount awarded by the Tribunal. 3. The claim petition was preferred regarding the death of the deceased Tala Hembaram by rash and negligent driving of the vehicle bearing no. BR 20 G 3334 for which the First Information Report was lodged and the widow and her three minor children are the claimant. It was asserted in the petition that the deceased was a lorry driver and was earning Rs.3,000/- per month. 4. However, the learned Tribunal held that the witness no. 1 and 2 are the silent on the point of profession as well as on his monthly income and hence assessed the income of the deceased as Rs.15,000/- per year and taking the multiplier of 18 assessed the compensation of amount as Rs.2,70,000/- and then deducting 1/3rd of his income on the expenditure of the deceased for his maintenance as Rs.77,142/- the deceased has died leaving behind his dependents and assessed the amount of compensation Rs.1,92,850/-. It has further been held that the owner of the 3 vehicle did not appear nor filed any reply in the precision nor presented the driving license of the vehicle and hence it is not established that the driver has a valid driving license and hence held that the Insurance Company is not responsible for compensation and hence directed the owner to pay the amount with 6% interest and Advocate fee Rs.250/- and Advocate Clerks fee Rs.50/-. 5. Learned counsel for the appellants has challenged the findings recorded by the Tribunal and has asserted that the Tribunal has gone out of record and has not considered the evidence of P.W. 1 and 2 who has stated in their evidence that the deceased was used to drive Thela and has got monthly income of Rs.3,000/- by driving the said Thela (Lorry). Further that the provision of computing Rs.15,000/- per year as annual income as per Schedule II of the Motor Vehicles Act read with Section 163 (A) (iii) is for assessing the income of a person who is non earning or disable and hence it is not applicable in the case of the deceased Tala Hembaram as deceased was neither disable nor non earning. It has further been contended that the Insurance Company has not established that the driver who was driving the vehicle has no valid license and has further 4 contended that mere failure by the owner to produce the driving license, the insurer cannot be absolved from the burden of proving that driver had no valid license and has contended that for taking the defence of the breach of any terms of the contract or policy between insurance and insured of the insurance policy must be pleaded and proved by the Insurance Company. Since the Insurance Company has not discharged onus on his part, it shall not be deemed to be discharged of his liability and has placed reliance upon decisions reported in (1985) 2 SCC 574 (Narcinva V. Kamat & Anr. Vs. Alfredo Antonio Deo Martins & Ors), 1987 (2) SCC 654 (Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors.), 2004 ACJ 1071 (Padmabati Devi V. Dasarathi Sahu & Anr.), (2009) 10 SCC 648 (National Insurance Company Limited Vs. Khimlibai & Ors.), 2008 ACJ 2184 (Malti Devi & Ors. V. Umesh Rawani & Ors.) and 2008 ACJ 1488 (Laxmi Devi & Ors. V. Mohammad Tabbar & Anr.). 6. Learned counsel for the respondents, however, contended that the appeal filed by the owner against the impugned judgment in M.A. bearing No. 172 of 2007 was dismissed for default. Hence the order of the Tribunal is 5 deemed to have been confirmed by the High Court. Now the claimant cannot be allowed to challenge the impugned order which has been confirmed by the High Court as the appeal filed by owner against same order if the Tribunal is dismissed for default. It has further been contended that if the driving license has not been produced by the owner or driver and it is incumbent on owner and driver to produce the license and non filing of the same an adverse inference requires to be drawn and the Insurance Company cannot be held liable and for this proposition have relied upon a decision reported in 1997 (7) SCC 558 (United India Insurance Co. Ltd. Vs. Gian Chand & Ors.) as well as relied upon decision reported in 2009 (8) SCC 785 (National Insurance Company Ltd. Vs. Parvathneni & Anr. ), 2008 (3) SCC 193 (Premkumari & Ors. Vs. Prahlad Dev & Ors.) and 2006 (2) PLJR 306 (SC) (National Insurance Company Ltd. Vs. Kusum Rai & Ors.). 7. On the rival contention of the parties the question for consideration that (i) whether the appeal filed by the appellant is maintainable in view of the fact that the appeal filed by the owner has been dismissed. (ii) Whether the finding recorded by the Tribunal regarding the quantum of 6 compensation is correct and legal or required to be reconsidered (iii) Whether the compensation requires to be enhanced and (iv) Whether the insurer is liable to pay the amount of the compensation. 8. However, from perusal of the records it appears that after the impugned order and award dated 27.05.2003 and 05.08.2004 respectively, an appeal against the impugned order and award filed on 08.10.2004 by the appellants, who are the claimants. However, another appeal by the owner of the vehicle Pushpa Singh had also been filed on 15.05.2007 and the appeal preferred by Pushpa Singh was dismissed on the point of limitation as sufficient ground has not been established for condoning the delay. However, dismissal of said miscellaneous appeal preferred by the owner cannot be a ground to dismiss the appeal preferred by the complainant who has preferred the appeal in time much earlier than the appeal filed by the owner. Hence there is no question of either the review or res judicata as the said appeal was dismissed even without a notice to the appellant and appeal not decided on merit after hearing the appellant and hence no merit in submission that appeal by appellant is not maintainable. Hence, the appeal 7 of the appellant is maintainable. 9. However, A.W. 1 and 2 have stated in their evidence that the deceased was Thela driver and was earning Rs.3,000/- per month and there is no cross- examination on this point as well as there is evidence and pleading that the victim was a Tela driver and was earning Rs.3,000/- per month and hence the finding recorded by the learned lower court that A.W. 1 and 2 are silent on the point of profession and income of deceased is against the record. However, Section 163A and Schedule II of the Motor Vehicles Act confers to complete the income of Rs.15,000/- per year in case the deceased was not an earning member or disable and not for the person who are working and there are clear evidence for his profession and income. There is evidence to the effect that the deceased was a lorry driver and was earning Rs.3,000/- per month and there is no challenge to that evidence as no cross examination on the point by either party hence finding recorded by the Tribunal that witnesses are silent on profession and earning are beyond record is not sustainable and is set aside. However, the income of the deceased has been assessed as Rs.15,000/- per annum on the basis of the 2nd Schedule of 8 the Motor Vehicles Act. However, Rs.15,000/- per annum as per 2nd Schedule can only be a person who is non earning or disable of advanced age and this view is supported in decision reported in 2008 ACJ 2184 (Malti Devi & Ors. V. Umesh Rawani & Ors.) while interpreting Sub-section 3 of Section 163-A as well as Clause 6(A) of the 2nd Schedule of the Motor Vehicles Act, 1988 specifically held that in case of death or permanent disablement of non earning person Rs.15,000/- per year as income of a person but the notional income shall be taken only when the deceased or injured was non earning person and not a earning person and the court shall come to a finding regarding earning of the deceased on the basis of the evidence as to what was the earning of the deceased for determining the compensation. Further in decision reported in 2009 (10) SCC 648 at paragraph 11 (National Insurance Company Limited Vs. Khimlibai & Ors.) it has also been observed that it is not disputed that the deceased was working as carpenter in 1997 and he could have comfortably earned Rs.100/- per day and this has also been admitted by the P.W. 3 with whom the deceased was employed that he was being paid Rs.100/- per day and hence, his income taken to be 9 Rs.3000/- per month. Further reliance has been placed on decision reported in 2008 ACJ 1488 (Laxmi Devi & Ors. Vs. Mohammad Tabbar & Anr.) in which the Tribunal took the notional income as Rs.15,000/- per year but taking into consideration the fact that the deceased was unskilled labourer and it was assumed that at the time of unskilled labourer could have earned Rs.100/- per day for the death in the year 2004 and assessed the income of Rs.3,000/- per month and hence the dependency was assessed Rs.2,000/- per month for compensation and the finding of notional income in case of working person is set aside. 10. Hence taking into consideration the facts and circumstances of the case at hand there is evidence that deceased was a Thela driver and was earning Rs.3,000/- per month and there is no challenge of the evidence and the order of the Tribunal assessing the income of deceased @ Rs.15,000/- per annum is set aside and I find and hold that in view of the evidence on record the monthly income of deceased can well be assessed and held to be Rs.3,000/- per month. 11. Now the next question for consideration about the multiplier, however, it has been held that the deceased 10 was 35 years old and the claimants are the widow and the children of the deceased and hence the age of the complainant are not greater than the complainant and hence the age of the deceased requires to be taken into consideration and the multiplier of 18 has rightly been applied. 12. However, the question for consideration about the deduction of the expenses of the deceased. However, there are four persons in the family, however, the Schedule II of the Motor Vehicles Act provides deduction of Rs.1/3rd and the learned lower court has also deducted 1/3rd of the income as to have been spent on the deceased. 13. Leaned counsel for the appellant, however, submitted that since the family of the deceased having four members and taking the deceased as five members and as well as it is prayed that the deduction requires to be only 1/4th. In view of the decision of Sarala Verma Cases where it has been held that 2009 (6) SCC 121 (Sarla Verma (SMT) & Ors. Vs. Delhi Transport Corporation & Anr.) if the number of dependents is 2 to 3 then the deduction requires to be 1/3rd and where the members of the dependent family 4 to 6 then 1/4th, and if the number of 11 dependents family exceeds six then 1/5th. However, taking into consideration the fact the dependents are four in number, however, having regard to the fact that one is the mother and the rest are children. Hence, taking into consideration the three of the dependents are the children and hence the deduction of 1/3rd will meet the ends of justice and hence, deducting 1/3rd from the total income @ Rs.3,000/- per month then the income shall be Rs.2,000 x 12 x 18 then the total income assessed to be 4,32,000/-. The loss of consortium Rs.5,000/-, Rs.2,000/- for funeral expenses being added the total compensation comes to Rs.4,39,000/- with 6% interest on the said amount from the date of the petition to the date of realization of the amount. 14. However, learned counsel for the appellant has contended that merely because the owner has not appeared or filed the driving license this fact itself cannot fasten the liability of the owner and the Insurance Company cannot be absolved of his liability and any violation of the term of the license is required to be pleaded and proved by the Insurance Company. However, admitted position that the Insurance Company also did not bring on record any material to suggest driver of the vehicle who was driving 12 the vehicle had no valid license and has not brought on evidence and hence the contention between the parties unless the Insurance Company proves that the driver had no valid license. The liability cannot be fixed on the owner where as the contention of the Insurance Company that if the license has not been produced by the Insurance Company then adverse interference is to be drawn. However, the point in issue is not res integra. In decision reported in 1985 (2) SCC 574/754 (Narcinva V. Kamat & Anr. Vs. Alfredo Antonio Doe Martins & Ors.) an accident took place, the vehicle was insured and before the Tribunal it was contended that according to the term of the contract of Insurance the vehicle can be driven either by the driver under the employment of the insured or with the permission of the insured by one who holds a valid license and the issues framed that whether the driver who was driving the vehicle was holding an effective driving license and the Tribunal held as the driver did not produce the driving license so it must be held that the driver did not have a valid driving license and hence concluded that in the absence of valid driving license there was a breach of contract and the Insurance Company was absolved from the liability. An 13 appeal preferred before the High Court of Bombay, a Division Bench of the High Court agreeing with the finding of the Tribunal dismissed the appeal and the matter came up before the Supreme Court and the Supreme Court held in paragraph 12 (i) ….”that it is contended on behalf of the Insurance Company that the second appellant did not have a valid driving license. It is the Insurance Company which complain that there has been a breach of one of the important terms of the contract of insurance as evidenced by the policy of insurance and that the second appellant who was shown to be driving the vehicle at the relevant time, did not have valid driving license to drive the pick up van” and further in paragraph 14 of the judgment it has been held that “….the burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by a mere question in cross examination. The second appellant was under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out its liability under the contract of insurance. Further the RTA which issues the driving license keeps a record of the licenses issued and renewed by it. The 14 Insurance Company could have got the evidence produced to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the Insurance Company” 15. Hence, the Hon’ble Supreme Court held that onus to prove the violation of terms of license or that driver has no valid license is on the Insurance Company and not on the owner and since owner cannot be held liable if the driving license not brought or proved. Once the Insurance Company fail to prove that there is violation or breach of condition under the contract of insurance remained intact and is liable to pay the compensation and hence the Supreme Court ordered to make full payment with interest of the compensation amount and hence from this decision it is incumbent on the Insurance Company to plead and prove the breach of the policy and it is not proved he cannot wriggle out its liability. 16. In decision reported in 1987 (2) SCC 654 (Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors.) the question for consideration was whether the insurer is entitled to claim immunity from a decree obtained by the dependent of the victim of the fetal accident on the ground 15 that the Insurance policy provided a condition excluded by a named person or persons or by any person who is not duly licensed or by a person who has been disqualified for holding or obtaining a driving license during the period of disqualification. While answering the question the Supreme Court has taken into consideration the principle or the divine intention of the legislature that why the legislature has insisted a person using motor vehicle in public place to insure the vehicle against 3rd party risk by enacting Section 94 as then of the Motor Vehicles Act and answered that it was certainly not to promote the business of insurers but taking into consideration the ugly situation that the persons aggrieved by motor accident or the claimant when get an award or a compensation, be granted, that compensation awarded would be recoverable from the person held liable who may not have the resources and further interpreted Section 96 (2) (b) (ii) which is in pari materia with Section 149 (2)(b)(ii) to hold that Section 96 (2)(b) and held immunity to the Insurance Company if the breach is committed of the condition of license but the insurance will have to establish that the insured is guilty of an infringement or violation of a contract that a person who 16 has valid driving license was in-charged of the vehicle and it is only when the insured himself places vehicle the in- charge of a person who does not hold a driving license that can be said that he is guilty of the breach of the condition as the vehicle was to be driven by a licensed driver and the Supreme Court has held in this circumstance that it must be established by the Insurance Company that the breach was on the part of the insured and it was the insured who was guilty of violating the contract or infringement of the contract and hence held the liability on the insurer to get out of the contract or to get immunity from the insurance policy, he has to prove that the vehicle was being driven by a person who had no driving license and he cannot take the benefit that the owner has not establish or the driver has not produced the license till it is decided that the driver has a valid license or not. 17. Further in case reported in 2004 ACJ 1071 (Padmabati Devi Vr. Dasarathi Sahu & Anr.) in an accident by motor vehicle the contention of the Insurance Company that the driver had licence to drive light motor vehicle define in Section 2(21) of the Motor Vehicles Act as weight of vehicle not exceeding 7500 Kg. but offending vehicle 17 was trekker and it was for the Insurance Company so show that the gross vehicle laden weight on trekker was more than 7500 Kg. unless it is proved that offending trekker was not a light motor vehicle, the driving license cannot be held to be invalid and relying upon decision reported in 1987 (2) SCC 654 (Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors.) the grievance of the claimant is that the Insurance Company be held liable to pay compensation has been allowed. 18. Taking into consideration these decisions, it is well settled that it is for the Insurance Company to establish the breach and prove by an evidence that the violation and if the Insurance Company does not prove the breach he is not entitled to claim in immunity from its liability to pay. 19. However, learned counsel for the Insurance Company that has placed strong reliance upon decision reported in 1997 (7) SCC 558 (United India Insurance Co. Ltd. Vs. Gian Chand & Ors.) if the insured or the driver not produced the license then the Insurance Company shall be liable and then at adverse inference shall be drawn. 20. However, the fact and circumstance of the case that the contention of the claimant in case reported in 1997 18 (7) SCC 558 (United India Insurance Co. Ltd. Vs. Gian Chand & Ors.) that the vehicle was driven by driver respondent no. 1 in rash and negligent manner by which the accident took place. The defence of the owner (respondent no. 9) of the vehicle was that he handed over the vehicle to respondent no. 1 and respondent no. 1 submitted before the Tribunal by filing a written statement and even entering in witness box that he had no license to drive the vehicle and respondent no. 1 not entered into witness box and hence in such circumstance the Insurance Company held to be exonerated by the exclusion clause in the insurance policy which did not permit the injured to hand over the vehicle for the purpose of driving of unlicensed driver and hence the Insurance Company was get exonerated from liability to meet the claim of the third party who might have suffered on account of accident by vehicle caused by unlicensed driver. However, in this case it is established by the pleadings and the evidence that the driver had no valid license so held but it was not a case that the license was not proved by the Insurance Company and hence held that in decision reported in 1997 (7) SCC 558 (United India Insurance Co. Ltd. Vs. Gian Chand & Ors.) is not 19 applicable and was distinguished when consider. 21. However, the learned counsel for the respondents relied upon decision reported in 1997 (7) SCC 558 and 1996 (5) SCC 21 are with regard to the fact where it was proved that the vehicle was given by the insured to a person who had no valid license