IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.290 of 2010 United India Insurance Company Limited through the Divisional Manager, Division No.- I, Time of India Building, Laxmi Apartment, Frazer Road, Patna, Appeal and Appellant through the Deputy Manager and Constituted Attorney, Regional Office, United India Insurance Company Limited, 3rd Floor, Chanakya Commercial Complex, R’ Block, Patna. -------- Opposite Party No. 3 / Appellant Versus 1. Chandmuni Devi @ Ful Kumari Devi @ Falemi Devi, Wife of Chhote Prasad. 2. Chhote Prasad, Son of Dawarika Gope. Both resident of Village Nadaul, P.S. Masaurhi, District –Patna… ………... Claimants/Respondents. 3. Sri Pramod Prasad, Son of Aruni Prasad @ Anuri Prasad, Resident of Village-Kolha Chak, P.O. – Hazarat Sah, P.S. – Dhanarua, District – Patna. (Owner of the Bus) ……. Opposite Party No. 1/Respondents. 4. Jitendra Kumar, Son of Bhagwan Sao, Resident of Village Fatehpur, P.S. – Didarganj, Patna. (Driver of vehicle) ……… Opposite Party -2/Respondent. ---------------------------------- 5 02/12/2011 The present appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as the ‘M.V. Act’) has been preferred against the judgment dated 08.12.2009 and award dated 22.12.2009 passed by Sri Vijai Prakash Mishra, learned Additional District & Sessions Judge III, Patna, in Claim Case No. 470 of 2008. By the impugned judgment and award the learned court below has directed the insurer/appellant to pay compensation amount of Rs. 1,84,500/- along with interest at the rate of 06% Per Annum (P.A.) from the date of filing of the claim petition to the claimants. While allowing the claim petition the learned court below granted liberty to the insurer to recover the compensation amount from the owner of the vehicle, who was arrayed as Opposite Party No. 1 in the claim petition. Short fact of the case is that on 04.07.2008 at about 4.00 2 P.M. while minor daughter of the claimants/Respondent No. 1 & 2 was returning on foot from school situated at Nadaul and when she reached near her house at Gaya Patna Main Road, a white bus bearing Registration No. BR-1AP-4251 came rashly and negligently from Patna side and dashed her resulting in instantaneous death of the daughter of respondent no. 1 & 2 namely Rinki Kumari alias Priyanka Kumari. As per the case of the claimants the deceased at the time of accident was aged about ten years and she was a student of Class III. After the accident on the basis of fard-beyan of Jagdish Prasad, uncle of the deceased, an F.I.R. vide Masaurhi P.S. Case No. 239 of 2008 was registered on 04.07.2008 i.e. on the same date for the offence under Sections 279/304(A) of the Indian Penal code against the driver of ‘Prabhanjan Bus’ having Registration No. BR-1AP-4251. Subsequently, Respondent No. 1 & 2 filed application under Section 166 of the M.V. Act in the court of District Judge -cum-Motor Vehicle Accident Claim Tribunal, Patna, which was registered as Claim Case No. 470 of 2008. In the said case before the court below the insurer/appellant appeared and filed written statement. After hearing the parties, the learned court below by the impugned judgment and award allowed the claim petition and directed to pay compensation as indicated above. Aggrieved with the judgment and award the insurer/appellant has approached this court by filing the present appeal. Sri Durgesh Kumar Singh, learned counsel for the appellant 3 at the very outset has argued that the learned court below has allowed the claim case by delivering a cryptic judgment without dealing with the issues. It was submitted that though the learned court below had framed four issues, the court below without addressing the issues or dealing with the same has allowed the claim petition. It was submitted that the insurer had taken specific plea that the offending vehicle at the time of accident was not being driven by the driver having valid driving licence nor the offending bus was having requisite road permit. According to learned counsel for the appellant, the insurer / appellant before the court below had brought on record a copy of road permit of the offending bus but the learned court below has not even whispered anything regarding the defence taken by the insurer/appellant. After going through the impugned judgment, the court is of the opinion that the court below was required to at least deal with some evidence while deciding the case. It is true that the learned court below has not elaborately discussed the evidence and as such this court has examined the materials brought on record of the case. This court has also examined ‘Lower Court Records’. After going through the materials on record one thing which emerges is that the appellant except filing written statement and bringing Exhibit-‘A’ purported to be copy of road permit of the offending bus, has not brought any evidence to prove breach of Terms And conditions (T&C) of insurance policy. It is admitted position that the offending bus was duly insured by the appellant at the time of accident. It is settled 4 principle of law that in a case if the insurer takes a plea of breach of Terms & Conditions (T&C) of the insurance policy by the insured, onus lies on the insurer to establish breach of Terms & Conditions (T&C) of the insurance policy. In the present case the insurer/appellant has not brought any cogent evidence to prove the case of breach by the owner of the offending vehicle. The claimants had got exhibited certified copy of F.I.R. as Exhibit-1, certified copy of the charge sheet as Exhibit-2, photo copy of the post-mortem examination report of the deceased daughter of Respondent No. 1 & 2 as Exhibit -3 and photo copy of the insurance policy of the offending bus which was marked as Exhibit-4. Besides bringing required documents the claimants examined altogether three witnesses. Out of the three witnesses two witnesses have claimed to be the eye witnesses to the accident. Informant of Masaurhi P.S. Case No. 239 of 2008 has been examined as Claimant Witness No. 3. On perusal of Exhibit -1 i.e. F.I.R. of Masaurhi P.S. Case No. 239 of 2008, it is evident that a white bus in name and style of ‘Prabhanjan Bus’ having Registration No. BR-1AP-4251 was being driven rashly and negligently by the driver and due to that the bus ran over the daughter of Respondent No. 1 & 2. The witnesses i.e. Claimant Witness No. 2 & 3 have categorically stated that it was a case of rash and negligent driving and the deceased was not at fault. Police after investigation submitted charge sheet against the driver of the offending bus on 30.11.2008. Copy of charge sheet has been marked as Exhibit -2. After the death an autopsy was conducted on the dead body of the 5 deceased and report i.e. post-mortem report is on record which was marked as Exhibit-3. On perusal of the record it further appears that the claimants had filed certain documents along with list of documents. The documents which have been brought on record are photo copy of F.I.R., photo copy of insurance policy of the offending bus, photo copy of owner book, photo copy of pollution control certificate, document to show payment of road tax, photo copy of permit, photo copy of accidental report prepared by Motor Vehicle Inspector and photo copy of driving licence of Jitendra Kumar-driver of the offending bus. On perusal of those documents the court is satisfied that there was no reason to reject the claim case. So far as amount of compensation is concerned, the learned court below has taken into account the age of mother of the deceased/Respondent No. 1, who was examined as Claimant Witness No. 1, and in her statement on oath she had disclosed her age as 30 years and same fact was reiterated in her cross-examination. Even during cross-examination of claimants witnesses on behalf of the insurer/appellant no suggestion was given as to whether the offending bus was having road permit or not or the driver of the offending bus was driving the vehicle without any valid driving licence. Nothing could be extracted on behalf of the insurer from any of the witnesses to create doubt on the claimants case. Since the deceased was aged about ten years, the learned court below has rightly taken into account the age of mother of the deceased /claimant/Respondent No. 1 who was 30 years old for multiplier. 6 Similarly, the court below has rightly taken into account the notional income that was described as Rs. 15,000/- as per Schedule 2 of the M.V. Act. After excluding 1/3rd from the said amount as personal expenditure the learned court below has rightly considered the income as Rs. 10,000/- and multiplier as 18 which comes to Rs. 1,80,000/. The court below has further directed to pay funeral expenses and loss of estate to the tune of Rs. 4,500/- and total amount of compensation thereafter comes to Rs. 1,84,500/-. The insurer has rightly been directed to pay the aforesaid compensation amount along with interest at the rate of 06% Per Annum (P.A.) from the date of filing of the claim petition i.e. 01.12.2008 which is evident from the Lower Court Records. I do not find any merit in the Appeal. Accordingly, the Appeal stands dismissed. The insurer/appellant is hereby directed to pay total compensation amount of Rs. 1,84,500/- along with interest at the rate of 06% Per Annum (P.A.) from the date of filing of the claim case i.e. 01.12.2008 till the date of payment. The entire compensation amount along with interest as indicated above must be paid to the Respondent No. 1 & 2 /claimants within a period of two months from the date of receipt/production of a copy of this order. The appeal stands dismissed without any cost. In view of dismissal of the Appeal the statutory amount deposited at the time of filing of the Appeal is directed to be remitted back to the court below for its payment to the claimants. Praful ( Rakesh Kumar, J.)