Case: Mrs. Kiran S. Gawande &amp; Others Vs. Premlata Wd/O Kanhaiyalal Pali &amp; Others

1. The aforesaid appeals are preferred respectively by respondent no.1owner of offending vehicle involved in the accident (hereinafter referred as Owner) andrepresentatives of one deceased Kanhaiyalal Palivictim of accident (hereinafter referred as Claimants) in Claim Petition No. 802 of 2002 of Motor Accident Claims Tribunal at Nagpur taking exception to judgment and order dated 4th November, 2003 passed by said Tribunal in said claim, partly allowing claim for compensation made by claimants to the tune of Rs. 6,80,200/along with an interest at the rate of 6 % from the date of their petition out of their original claim for Rs. 10,50,000/only against the owner and dismissing their claim against respondent no.2 Insurance Company in said claim petition (hereinafter referred as Insurer).The owner has preferred the appeal with a prayer for setting aside above referred judgment and order ordering her to pay compensation to claimants with further alternative prayer that in the event of said owner being found liable to pay compensation, then ordering the same to be recovered from the Insurer.gal representatives of deceased Kanhaiyalal Pali i.e. wife , children and parents have preferred the appeal with a prayer of setting aside above referred judgment and saddling the liability fastened on owner upon Insurer of the offending vehicle and so also setting aside deduction made by Tribunal while assessing lump sum compensation to be paid and ordering restoration of original amount of Rs.8,19,000/calculated by the Tribunal for the loss of the dependency caused to them.4. The facts in brief, as disclosed from records, leading to filing of claim for compensation and above referred appeals can be described asdeceased Kanhaiyalal Pali, an employee of Western Coalfields Limited as a labourer in Kandri on 6.8.2002 proceeding towards Kamptee onbearing registration No.with one Mahesh Pali on pillion seat at about 4.45 p.m. while being in front of Fouji Dhaba on National Highway No. 7 was forcibly dashed and knocked down due to the rash and negligent driving of Maruti Car bearing No.In support of the claim preferred, wife of deceased has given oral evidence at Exh.26 in addition to documentary evidence produced by her. Additionally she has examined CW2 Thekekutta Gangadhar Rajeev for proving salary certificate of the deceased at Exh.29.Respondent no.2 Insurance Company has examined one Pandurang Santosh Shende regarding policy issued by them at Exh.36 being for private car and same being not for using insured vehicle for a driving school and breach of terms of said policy having occurred in view of owner having converted and used said vehicle for such a purpose.Original respondent no.1owner of the offending vehicle has examined CW2 Ashok Ghanshyam Lohakare, driver of offending vehicle at the time of accident, regarding the manner in which accident had occurred and vehicle being used for personal purposes of the owner and himself holding a valid licence etc.After assessing evidence adduced, Tribunal came to conclusion of accident having occurred due to negligence of driver of vehicle and hence claimants being entitled to recover compensation for the death of Kanhaiyalal occurred in accident.In process of assessment of compensation, relying upon monthly salary of the deceased as revealed from the salary certificate Exh.29 being Rs. 5850/and deducing an amount of Rs. 175/for payments made towards professional tax, Tribunal assessed monthly income of the deceased being Rs. 5675/and hence his annual income being Rs.68,100/and thereafter deducting 1/3rd of the deductions for the personal expenses of deceased came to conclusion of annual loss of dependency being Rs.Tribunal having regard to deceased being within the age group of 25 to 30 years, determined multiplier to be applied being 18 and thus assessed net loss in dependency caused being Rs.Tribunal deducted 20 % from same on count of same being accelerated payment and thus assessed compensation for loss of dependency being Rs.The Tribunal added an amount of Rs.10,000/for wife on count of the loss of consortium and an amount of Rs.10,000/on count of depriving of love and affection for children and parents of the deceased and an amount of Rs.5000/Tribunal came to conclusion that evidence on record had established that owner of the vehicle was using same for purposes of driving school and thereby breach of terms of policy issued by Insurer had occurred as the Policy was issued for using insured vehicle as a private car. Tribunal thus came to the conclusion of the Insurer being not liable to pay compensation and hence passed judgment and award against the owner for the sum of Rs.6,80,200/with interest against respondent no.1.

Reasoning:
15. Point No.(i) : In true sense entire vigor of the contentions of insurer about the relevant aspect is based upon the vehicle involved in the accident being fitted with dual control system and said facets itself being sufficient to establish of insured vehicle being used for the purposes of driving school and the policy of insurance at Exh.37 not including such a purpose, the breach of same thereby having occurred.Now examining said aspects in light of the record of proceeding, we find difficult to agree with criticism advanced by learned counsel for claimants as well as for owner of Tribunal having relied upon report of investigator appointed by Insurance Company i.e. report which was placed on record through evidence of witness examined on behalf of Insurer i.e. DW2 Pandurang. We are of such a view as his evidence does not reveal Tribunal having marked said report as an exhibit due to same being proved. Additionally even the judgment given by Tribunal and particularly reasoning regarding relevant aspect recorded in paragraph No.14 also does not reveal any reliance being placed on the said report by Tribunal. Needless to add hence all criticism levelled of tribunal having placed reliance upon inadmissible evidence for coming to conclusion of vehicle being fitted with duel control system will not deserve any credence.We are of such a considered opinion as evidence of claimant or her witness is totally silent upon relevant aspect. Though such a claim has been staked by witness for insurer, the said claim is apparently based upon derivative evidence, as same reveals of same being based upon the matters gathered by him from the report of investigator. Now even giving all concessions for the said aspect, even the said matters gathered by him also do not reveal any knowledge/information about such user being personally gathered/ascertained/verified by investigator and having reported relevant aspects leading her to come to such conclusion to said witness or the Company. Needless to add even the matter gathered by the investigator appears to have been confined to the matters recorded in the registration certificate. Thus hardly there is any substantive evidence on record regarding facets of the offending vehicle being used or being found to have been used for a driving school.In the present case right to recover compensation being germane to act of driver of owner , driving the offending vehicle causing the death of Kanhaiyalal and there being total failure on the part of insurer to establish that while committing said act vehicle being used for the purposes for which the policy was not issued i.e. using the vehicle for driving school and on the contrary the evidence having indicated otherwise i.e. the driver was having valid licence, the vehicle being not used for driving school and thus his act being well covered within the terms and conditions of insurance policy, submission of breach thereof having occurred can never be accepted. Hence, for all above narrated reasons, we answer point no.(i) infrom the same even evidence in the present case not revealing any fact situation in particular warranting the Tribunal to proceed on the said basis being established, in spite of explicit law pronounced by the Apex Court being as stated in the preceding paragraph, we have no hesitation in concluding of the Tribunal being wholly unjustified in making deduction of 20 % on the relevant count. Needless to say that deduction made by the Tribunal on the relevant count cannot be upheld and the error occurred due to making such a deduction will be required to be rectified by setting aside the deductions unnecessary effected. In the premises, we answer point no. (ii) in negative.Not reverting to other aspect involved in these appeals and in view of the conclusion arrived by us on point no. (i) of the respondent no. 2 having not established breach of terms of the conditions of the insurance policy having occurred, we are unable to uphold the judgment of absolving respondent no.2 of liability to pay compensation to claimants in view of liability of respondent no.2 due to contract of an insurance entered by them with respondent no.1.Since we have come to the conclusion of breach of the insurance policy having not occurred, we feel it wholly unnecessary to embark upon making any discussion upon the said aspect canvassed or about the decision relied in said context.