IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.84 of 2009 1. SMT. INDU DEVI, WIFE OF PARIKSHAN SAHNI 2. PARIKSHAN SAHNI, SON OF LATE FUDINA SAHNI BOTH RESIDENT OF VILLAGE – PAHSAUL, P.S. – KATRA, DISTRICT – MUZAFFARPUR. (CLAIMANTS NO. 1 AND 2) ………….. APPELLANTS. Versus 1. SMT. SUBHADRA DEVI, DAUGHTER OF SRI RAM SURAT RAI. Resident of village – Garaha, P.S. – Bochahan, District – Muzaffarpur. (Opposite Party No. 1) …………. Respondents. 2. THE DIVISIONAL MANAGER, ORIENTAL INSUSRANCE COMPANY LTD. MOTIJHEEL, MUZAFFARPUR. (OPPOSITE PARTY NO. 2) …………. Respondents. ----------- For the Appellant :- Mr. Ajay Kuamr, Advocate. Mr. Mukesh Prasad Singh, Advocate. For the Respondent No. 1 :- Mr. Y. P. Sinha, Advocate. Mr. Rakesh Ambastha, Advocate. For the Respondent No. 2 :- Mr. Bimlesh Kumar Jha, Advocate. 09/ 30.09.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the judgment and order dated 26th September, 2008 passed by the 5th Additional Motor Vehicle Accident Claims Tribunal, Muzaffarpur in Claim Case No. 127 of 2007 by which entire amount of compensation of Rs.1,64,500/- with interest @ 6% was granted to the claimant, out of which Rs.50,000/- has been earlier paid by the Insurance Company. However, the Tribunal has fixed the liability of entire compensation amount on the owner of the vehicle and has directed that out 2 of Rs.1,64,500/- the owner shall pay Rs.1,14,500 with 6% interest from the date of the institution of the claim to the claimant and further directed to pay Rs.50,000/- to the Insurance Company which has been paid by the Insurance Company as interim compensation. 3. The case of the claimant in the claim petition is that one Ravindra Kumar Sahani died due to the accident while traveling in Bus No. BR06P-1506 from Muzaffarpur to Bakhari Chauk when met with the accident due to rash and negligent driving of the driver of the bus and succumbed to injury. However, the claim of the claimant is that the deceased was twenty years age and was in private service, getting an income or Rs.3,000/- per month. However, claim of Rs. 1,64,500/- and date of the accident has been shown to on 26.05.2007. 4. On the said claim petition the owner and the Insurance Company appeared and filed the written statement and took the plea that the alleged vehicle (School Bus) bearing No. H.M.R.T. bearing engine no. 497 TC 93 HUZ 877427, Chesis No. 386513JU2054562 insured with the opposite party was not involved in the alleged accident and has further stated that the owner of the vehicle should have 3 furnished the papers like route permit etc. as the vehicle was stated to be a School bus and denied further the age of the deceased as 20 years at the time of the accident and even challenge the earning of the deceased as Rs.3,000/- per month. 5. On the basis of the pleadings of the parties six issues were framed which are as follows:- (i) Whether the Claim Case as framed maintainable? (ii) Whether the accident in question took place due to rash and negligent driving of the driver of vehicle no. BRO6P-1506 on 26.05.2007 at Bakhari Chowk Near Bakhari Chowk P.S. Ahiyapur, District – Muzaffarpur? (iii) Whether the deceased Rabindra Kumar Sahani died in this accident which arises Ahiyapur P.S. Case No. 226 of 2007? (iv) Whether the Driver of the vehicle possessed valid driving license at the time of alleged accident? (v) Where the applicants entitled to the 4 Claim propounded, if so what would be the quantum of compensation, from whom? (vi) Whether the claimants entitled to award or awards as prayed for? 6. After going through the oral and documentary evidence the Tribunal held that the accident took place due to rash and negligent driving of the driver of the bus and driver of the bus was not holding the valid and effective driving license and hence issue no. 2 and 3 decided affirmative and further held that since the owner of the bus has neither appeared nor filed driving license and so it cannot be held that the driver was having the valid and effective driving license. While deciding issue no. 5 and 6 held that the claimant has not been able to show the income of the deceased as Rs.3,000/- per month and hence took the income of statutory amount as per Schedule II as Rs.15,000/- per annum and deducted 1/3rd for the expenses considering the income of the deceased as Rs.10,000/- and assessed the quantum taking the multiple of 16 and further granting Rs.2,000/- for funeral and Rs.2,500/- for loss of estate and estimate the total amount of compensation to the tune of Rs.1,64,500/- and further held 5 that so far the liability to pay the compensation, it is clear from the insurance policy that the offending vehicle was insured as School bus for carrying the students but the bus was being plied for carrying passengers and not the students and in that circumstance held that the owner violated the terms and conditions of the insurance policy and hence the Insurance Company is not liable to pay the amount of compensation and fixed the liability on owner to pay the amount of compensation and thereby ordered that since the Insurance Company has already paid Rs.50,000/- and hence the owner was directed to return that amount to the Insurance Company and further rest amount Rs.1,14,500/- with 6% interest to be paid to the claimant by the owner. 7. The claimant is the appellant and the claimant has challenged the impugned order and award on two counts. Firstly assailed the finding of the Tribunal that the Insurance Company is not liable to pay. Hence has contended that the vehicle was meant for School bus or School student and was not meant for carrying the passenger. He has contended that on the pleading of the parties the evidence was led but at the fag end after the evidence was closed a petition was filed on 13.08.2008 that the bus was meant for carrying School 6 students so the deceased Rabindra Kumar Sahani was not entitled to travel in the School bus so it is in contravention of terms of the policy. 8. However a rejoinder was filed by the claimant that there is no mention in the registration register or any other document that the bus was meant for the student. It has been challenged the plea of insurance that the bus was meant for School student and contended that though the policy was not adduced in evidence as it was filed even after the closing of the evidence of the forged certificate, however, the lower court considered the document but the lower court illegally held that the offending vehicle was insured as school bus for carrying the school student and the bus was not meant for passenger whereas there is no such mention in the policy rather what is mentioned in a policy is a name of the model of the bus as HRT (School Bus) whereas policy has expressly mentioned that it is meant for exceeding 18 passenger but not exceeding 36 passenger. It has further been contended that no contract or term of the contract has been placed along with the policy neither route permit for the said vehicle was considered though filed by the claimant in reply to the petition field by the Insurance 7 Company and has further contended that if the Insurance Company takes the plea that there is violation of term and condition of the policy then it is incumbent on him to plead and prove the terms of the violation of the condition. However, there is neither any pleading nor any proof and even the policy was not considered about its term and only on submission on conjecture and surmises held that the policy is for School student and there is violation. 9. Learned counsel for the appellant has further challenged the quantum of compensation on the ground that the victim was aged 20 years and has shown to be earning Rs.3,000/- per month. However, the Insurance Company rejected the oral evidence of the witnesses about the income on the ground that the claimant has not proved any documentary evidence about the earning and hence has taken the statutory income of Rs.15,000/- per month as given in Schedule II of the Motor Vehicles Act, 1989. However, according to the Motor Vehicles Act when the age of the victim and the amount of earning are shown then fixing the quantum of statutory income is neither legal nor permissible. 10. Learned counsel for the Insurance Company has also raised an issue that though the objection has been raised 8 in the written statement that the vehicle was not covered in the accident which was under the policy and there is nothing to connecting evidence that the registration number for the vehicle which was insured with the insurer as the registration number has not been mentioned in the policy and further whether the insurance policy is with regard to the vehicle bearing registration no. B.R. 06P-1506. 11. Learned counsel for the Insurance Company further submitted that the policy was for carrying student and the copy of the policy has been filed by the Insurance Company which mentions School bus and it can well be inferred that the vehicle was meant for school thus and there is violation of the terms of the policy. However, contended that the case be remanded before the Tribunal for consideration and further contended that if the statutory income is not proper then the income of the victim can be assessed on the basis of the minimum wages applicable as existing on the date of the occurrence and hence on the respective submission of the parties the question for consideration is who is liable for the compensation for the accident and further whether the next question for consideration what is the quantum of compensation. 9 12. Learned counsel for the Insurance Company, however, contended that since the permit was for carrying the student and hence the Insurance Company is not liable to pay compensation as the deceased was not a student but a passenger whereas the Insurance Company has denied the suggestion and submitted that the policy has not been proved in evidence. However, the Insurance Company has filed the copy of the policy which has been relied upon. However, going into the policy, from the record, as filed by the Insurance Company it mentions that the policy type as package as Zone “C” passenger carrying cover vehicle for four wheeler and further mentions that the vehicle is new School Bus H.M.R.T. It further mentions that it is for exceeding 18 passengers but not exceeding 36 passengers and the policy covers use of the vehicle only for carriage of the passengers in accordance with the permit issued within the meaning of Motor Vehicles Act and hence from the bare perusal of the policy itself it mentions, which has been relied upon by the insurance, does not mention that the policy is meant for school bus carrying the students but mentions about the passenger and mentions that the carriage of passenger in accordance with the permit used within the 10 meaning of Motor Vehicle Act. However, no evidence has been adduced or pleading about violation of policy condition. 13. However, learned counsel for the claimant has also field the list of document which includes the permit but again the same has not been marked in exhibit or brought in evidence though it mentions that the permit was for Bakhari Chauk to Muzaffarpur via Hathora Khanpur that the vehicle no. BR06P-1506. However, the Insurance Company has not filed any document to suggest that the vehicle has no permit or the vehicle being driven without the permit and it is well settled that if the Insurance Company takes a plea about the violation of the condition of the policy then it is incumbent on him to prove that violation. However, the Insurance Company has not brought on record to suggest the violation of the policy and hence the finding recorded by the Tribunal about the violation of terms and conditions of insurance policy is not sustainable. There is nothing in the policy filed by the Insurance Company even to suggest that the vehicle was meant for School student or family or there was any term and condition that the vehicle was meant only for the school students rather, to the contrary, the policy mentions 11 about the passengers and hence the finding recorded by the Tribunal that the Insurance Company is not liable to pay on the ground that there is violation of term and condition of the Insurance Policy is not sustainable and is hereby set aside and since there is no evidence on record to suggest that there was violation in the terms and conditions of the policy as nothing brought in evidence nor there is any pleading about the violation of the term and condition and hence I find and hold that the Insurance Company is liable to pay the compensation for the death of the deceased. 14. The next question for consideration is whether the victim was earning Rs.3,000/- per month and in this regard A.W. 1, the mother of the deceased, has stated that her son was 20 years and was unmarried and used to work in Machhali Gaddi and was earning Rs.3,000/- per month and from his income the expenses of the house were maintained. A.W. 2 is the father and has also stated that the victim used to earn Rs.3000/- per month. However, in cross-examination of these witnesses have stated that there is no documentary evidence. However, the Tribunal only on the ground that no documentary evidence has been produced regarding the income and hence discarded the evidence of the witnesses. 12 However, there is nothing in the cross-examination to disbelieve except that the parents have stated that they are unable to produce any documentary evidence. However, the Tribunal on this basis believed the evidence of the witnesses on the income and took the statutory amount as per Clause VI A of the Second Schedule of the Motor Vehicles Act, 1989 to take the income of the deceased as Rs.15,000/- per annum. However, Clause VI A of the IInd Schedule has specifically been made applicable to person who is non earning person and hence is not applicable to person who is earning and there is evidence of A.W. 1 and 2 that he uses to work in Macchali Gaddi and was earning Rs.3,000/- per month and hence the finding recorded by the Tribunal about the earning of the victim for deciding the quantum as monthly income as statutory amount of Rs.15,000/- per annum is not sustainable and is hereby set aside. However, the claimant A.W. 1 and 2 have stated the income of the deceased as Rs.3,000/- per month and there is nothing in the evidence and the cross-examination to disbelieve the evidence of these witnesses about the income of the deceased. However, the learned counsel for the respondent Insurance Company has contended that there is no cogent 13 and reasonable evidence about the income. However, the suggestion of the Insurance Company that case of cogent and reliable evidence of earning the income of the victim may be considered on the basis of the Minimum Wages Act and it has been stated that the minimum wage at the time of accident is Rs.89/- per day and hence taking Rs.89 per day it can well be inferred to calculate the quantum @ Rs 89/- per day and taking into consideration the 26 day in a month Rs.2314/- and computing the yearly income @ Rs.27,768/- and since the victim was unmarried and hence Sarla Verma Case reported in 2009 (6) SCC 121 50 shall be considered for the extent on the deceased is earning about figure Rs.13,750/- and now taking the multiplier as the age of the mother is 42 years and hence the multiplier of 15 is applicable and hence Rs.2,06,250/- is computed as the quantum of compensation in favour of the claimants and the claimant may be entitled this amount with interest @ 6% per annum and this amount the claimant is entitled to receive this amount and the Insurance Company is liable to pay the amount. However, Rs.50,000/- has already been paid by the Insurance Company and hence the rest of the amount and Rs.4500/- be added as Rs.2,000/- for funeral and Rs.2,500/- 14 for the loss of estate and hence the claimant is liable to compensation to the tune of Rs.2,10,750 and the Insurance Company is liable to pay the said amount with interest @ 6% per annum from the date of the order of the petition to the date of receipt of the amount. 15. The next question for consideration that whether the vehicle was insured. However, the policy mentions the chesis number though has not mentioned registration number and though has not adduced any evidence but the learned counsel for the claimant submits that he has filed the registration number which mentions the registration and he has filed the certificate of the registration. Learned counsel for the appellant submits that the registration of the vehicle with the claim petition mentions the registration number as well as the chesis number, however, the same has not been marked exhibited. However, he brought the evidence petition dated 27.02.2008 in which, the Insurance Company has, under Section 170 of the Motor Vehicles Act, asserted that School bus HMRT bearing registration number and engine number with specific mention of engine number and chesis number which belonged to one Subhadra Devi has not appeared and hence regarding the averment made in the said 15 petition, it is submitted that the Insurance Company himself has admitted in this petition that the said engine number of the vehicle bear the registration number and hence there is no merit in the submission that the vehicle was not insured and hence the judgment and award of the Tribunal is set aside and the appeal is allowed with above direction that the Insurance Company is liable to pay to the extent of Rs.2,10,750/- with 6 % interest to be paid within two months by the Insurance Company. Out of the Rs.2,10,750/- the claimant has already been paid Rs.50,000/- and hence the rest of the amount Rs.1,60,750/- to be paid shall be payable by the Insurance Company with 6% interest. 16. Hence, the miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.)