c.^-^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) N0. / / 2009 <APPELLANT : INSURER/RESPONDENT N0. 2 .......^x :^'.:^^ ' ^M^-^' ^.c' /^iciCI Lombard General Insurance Co. Ltd., ICICI Towers, Bandra Kurla Complex, Bandra (East) Mumbai, Through it's Legal Manager, 3 Floor, Lal Ganga Shopping Complex, G.E. Road, Raipur, Chhattisgarh VERSUS RESPONDENTS CLAIMANTS lB^f&/^^^7 A/Z)./ 1. Smt. Anusuiya Patel, wife of Shri Dileshwar Patel, aged about 41 years 2. Chandan Singh Patel, son of Shri Dileshwar Patel, aged about 19 years 1: Shri Dileshwar, son of Shri Hariram Patel, aged about 40 years, [VEHICLE OWNER] All residents of Juhwani, Tehsil Kharsiya, District Raigarh, presently residing at Latesara, Tehsil Dabhra, District Janjgir - Champa, Chhattisgarh MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT1988 L— ^^::i^t?'l;lj^^t;'^l|X^^jfi% ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.C. No. 1469/2009 APPELLANT RESPONDENTS ICICI Lombard General Insurance Co. Ltd. Versus Smt. Anusuiya Patel and others ORDER For consideration 10-2010 Sd/- N.K. Agrawal Judge Hon'ble Shri I.M. Ouddusi. J. Judge J G^^r^je^ Sd/- I.M.Quddusi Judge Postfor^ 10-2010 ~Sd/- N.K. Agrawal Judge HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.C. No. 1469/2009 APPELLANT ICICI Lombard General Insurance Co. Ltd. Versus RESPONDENTS Smt. Anusuiya Patel and others. DB:- HON'BLB SHRI I.M. OUDDUSI & HON/BLE SHRI N.K. AGARWAL, JJ PRESENT:- Shri Amrito Das, Advocate, for the appellant. Shri J.A. Lohani, Advocate, for the respondents No. 1 and 2. ORDER (^y-10-2010) Per N.K. Agarwal, J. This appeal has been filed by the appellant/Insurance Company against the award dated 19-8-2009 passed by the Additional Motor Accident Claims Tribunal, Sakti, Distt. Janjgir Champa in Claim Case No. 1/2007. Facts of the case in brief are that on 21-11-2006 at about 10.00 a.m. the deceased was driving a tractor and trolley bearing registration No. CG-13-A/8174 and CG-13- A/8175 and was going from Junvani to Chandrapur. Between Nawagaon and Basantpur, the said tractor and trolley turned turtle and Lekhram Patel died due to the injuries sustained in the accident. Mother and brother of the deceased preferred a claim petition claiming Rs. 8,54,000/- as compensation for the death ofthe deceased. Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed, awarded Rs. 4,46,000/- to the claimants as against the Insurance Cpmpany. It is not in dispute that the deceased i.e. son ofthe owner of the vehicle, was driving the said vehicle in the capacity 8. of owner-cum-driver and not as paid driver, and the driver /^ as well as owner-cum-driver was covered under the policy by taking extra premium therefor. The appellant/Insurance Company assailed the finding of the Tribunal on the grounds : i., The deceased was not having valid and effective driving licence at the time of accident; ii. The tractor and trolley was insured for agricultural purposes whereas the said vehicle was used for commercial purposes; and iii. The deceased was unmarried son of the claimant as well as respondent No. 1 and as such compensation awarded is shockingly on higher side. Shri Amrito Das, learned counsel for the appellant vehemently argued that neither the claimant nor the respondent No. 3 i.e. owner of the vehicle had filed a copy of licence authorizing the deceased to drive the tractor. This fact presupposes that the deceased was not having any valid and effective driving licence and this fact has been ignored by learned Tribunal while passing the award. We have perused the record of the Tribunal and the evidence available on record. It has been mentioned in para 8 and 12 of the statement of A.W. 1 Anusuiya Bai that the deceased was having valid and effective driving licence at the time of accident. N.A.W. 1 Dileshwar Prasad also deposed that the deceased was having valid and effective driving licence. It was further stated that the original driving licenceof the deceased was burnt with the dead body and copy of the same was given to the Investigating Officer. Appellant's witness Prashant Sharma admitted that the police has not registered any case against the deceased as well as the owner of the vehicle regarding dnving of the tractor without licence. It 'st mj '•%, %^^y 10. 11. is also admitted that although the Insurance Company investigated into the matter by appointing an investigator but report of the same was not filed and no document was filed showing the deceased was not having valid and effective driving licence at the time of accident. It is trite law that it is for the Insurance Company to prove its defence regarding invalidity of licence in which the appellant/ Insurance Company has utterly failed and in our opinion, the above ground raised by the appellant/ Insurance Company is sans merit. The other ground that the tractor and trolley was being used for commercial purposes is also devoid of any substance. Evidence only shows that at the time of accident, the said tractor was being used to transport fertilizer. Even there is no suggestion put forth by the appellant/ Insurance Company that the said fertilizer was to be transported for any commercial purpose. Fertilizer is used in the field and therefore, transporting of fertilizer cannot be said to be use of vehicle for other purposes than agricultural purpose. However, looking to the assessment of amount of compensation, we feel, the amount awarded is not properly calculated. Indisputably, the deceased was unmarried son of the claimant No. 1 as well as respondent No. 3 i.e. owner of the tractor. The owner of the tractor is not non-earning person and the claimants are not totally dependent upon the deceased. In such circumstances, in our opinion, appropriate multiplier to be applied is 10 and not 18. Therefore, we propose to recompute the amount of coinpensation. By taking into consideration the income of the deceased as Rs. 3,000/- per month and by deducting 1/3rd of it towards personal expenses, the loss of dependency would be Rs. 24,000/- per annum as held by the Tribunal. By applying multiplier of 10, total amount of compensation y. towards loss of dependency would be Rs. 2,40,000/-. By adding in it Rs. 4,500/- towards other heads (Rs. 2,500/- for loss of estate and Rs. 2,000/- for funeral expenses as provided in Second Schedule appended to Section 163 of the Motor Vehicles Act, 1988), total amount of compensation worked out to be Rs. 2,44,500/-. 12. For the foregoing, we allow this appeal in part. The claimants are entitled to Rs. 2,44,500/- instead of Rs. 4,46,OOO/- as awarded by the Tribunal. The claimants are further entitled for interest at the flat rate of 6% per annum frora the date of application till its recovery. Out of the amount of award, Rs. 1,75,000/- shall be invested in fbced deposit in any nationalized bank for a period of 5 years. Remaining amount shall be paid to the appellants by account payee cheque. Sd/- LM.Quddusi Judge ~Sd/- N.K. Agrawal Judge f""~.'':Ji