Madhya Pradesh High Court
Sham Kunwar And Ors. vs Kamal Singh And Anr. on 10 May, 1999
Equivalent citations: 2001ACJ981
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT Shambhoo Singh, J.
1. The claimants have filed this appeal against the award dated 25.3.98 passed by II Member, Motor Accidents Claims Tribunal, Mandsaur in Claim Case No. 199 of 1997 whereby they were awarded compensation of Rs. 1,81,000.
2. The claimants' case is that on 16.12.95 the deceased Tanwarsingh, husband of the appellant No. 1 and father of appellant Nos. 2 to 4, was going on his motor cycle on Mhow-Neemuch Road. Near starch factory, the respondent No. 1 came from opposite direction driving his tractor No. MP-14-B-9439 with trolley No. MP-14-G-3878 insured with respondent No. 2, in rash and negligent manner and dashed against the motor cycle, as a result of which Tanwarsingh died on the spot. The appellants claimed compensation of Rs. 15,75,000. The respondents resisted the claim. Respondent No. 2, insurance company, inter alia, pleaded that the respondent No. 1 had no valid driving licence for driving the tractor and as such the owner committed breach of the terms and conditions of the policy, therefore, it was not liable to pay compensation. The Tribunal after appreciation of evidence held that the accident occurred due to rash and negligent driving of the offending vehicle by respondent No. 1 and awarded compensation of Rs. 1,81,000. However, it exonerated the insurance company from payment of compensation on the ground that respondent No. 1 had no valid driving licence and as such he committed breach of the terms and conditions of the policy. The appellants are challenging this finding and also praying for enhancement of the compensation amount. Respondent No. 1 has also filed cross-objection.
3. Mr. Samwatsar, learned counsel for the appellants, submitted that the Tribunal committed error in drawing adverse inference, that the driver had no valid licence on the ground that he did not produce the same in spite of the direction of the Tribunal and exonerating the insurance company from paying compensation.
4. The insurance company pleaded that the owner of the offending vehicle committed breach of the condition of the policy that the driver of the vehicle had no valid licence at the time of accident, therefore, it was not liable to pay compensation. As the insurance company is claiming exoneration on the ground of breach of the condition of the policy, the burden is squarely on it to prove that breach has been committed by the insured and if breach was not proved by leading evidence, the insurance company would fail. In this case, the insurance company did not examine any witness nor produced any document which could prove that the driver had no valid licence. It is true that on the application of insurance company, the Tribunal directed the respondent driver to produce his licence and he failed to do so. But in spite of non-production of licence by the driver, the Tribunal could not draw adverse inference against him that he had no valid licence. Their Lordships of the Supreme Court in case of Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), observed under similar circumstances that the respondent driver was under no obligation to furnish evidence as to enable the insurance company to wriggle out of its liability under the contract of insurance. The onus is always on the insurance company to prove that the driver had no valid driving licence to escape liability of payment of compensation. The Tribunal wrongly shifted the burden on the respondents. No officer or clerk from the concerned R.T.O.'s office was examined nor any letter was filed to establish that the driver had no valid licence. If for argument's sake, it is assumed that the R.T.O. informed the insurance company that without licence number, it could not be certified whether the driver had valid licence or not and the driver did not produce the licence, even then on the basis of non-production of licence, it cannot be inferred that the driver had no valid licence. The burden which was on the insurance company can never be shifted on the owner. Mere non-production of licence by the driver does not exonerate the insurance company. The R.T.O. keeps record of licences issued by it. The insurance company could summon the officer concerned with the relevant record. This court in case of Lalchand v. Kanta 1992 ACJ 469 (MP), under similar circumstances, did not exonerate the insurance company from its liability of paying compensation on the ground that the driver did not produce his driving licence. We, therefore, hold that the insurance company failed to prove the breach of the condition of the insurance policy, hence, it was liable to indemnify the insured. The learned Tribunal committed error in exonerating it.
5. Now we come to the adequacy of compensation amount. Though Bhavar-singh, CW 1, the father of the deceased and Shripalsingh, CW 2, the owner of Vrandavan Hotel, stated that the deceased was working as cook in this hotel and Shripal was paying him Rs. 100 per day, the learned Tribunal after considering the evidence and other facts and circumstances of the case, assessed the earnings of the deceased at Rs. 50 per day observing that it was not believable that in a small place like this, the hotel owner would pay Rs. 100 per day to a cook and we find no reason to disagree with the Tribunal. The Tribunal after deducting Rs. 6,000 for living expenses of the deceased, rightly calculated the dependency at Rs. 12,000 per year. But it committed error in selecting multiplier of 13 holding that the deceased was of the age of 40 years as mentioned in the postmortem report. If we accept the age of Bhavarsingh to be 50 years, as he stated and was not challenged in cross-examination and that of his son Tanwarsingh at 40 years, then inference would be that the deceased took birth when his father Bhavarsingh was aged about 10 years. Normally, a boy of 9 years could not impregnate his wife who could have been below 9 years. Therefore, the statement of Bhavarsingh that the age of the deceased was 28 years, appears to be reliable and we accept it, and in view of it, we select multiplier of 16. On multiplying it with the multiplicand, the amount would come to Rs. 12,000 x 16 = Rs. 1,92,000. On addition of Rs. 25,000, as awarded by the Tribunal for loss of consortium, love and affection, the amount of compensation would come to Rs. 2,17,000.
6. In the result, the appeal is allowed, the impugned award is modified and it is directed that the respondents shall pay Rs. 2,17,000 severally and jointly to the appellants with interest at the rate of 12 per cent per annum (after adjusting the amount already deposited) from the date of filing of claim application, within three months from the date of receipt of copy of this judgment. This amount shall be disbursed in equal share. Rs. 35,000 out of the share of the widow, appellant No. 1 for 6 years with accrued interest and the entire amount of the share of minors along with accrued interest be kept in fixed deposit for the period till they become major in a nationalised bank in interest paying scheme. No order as to costs.