@JUDGMENTTAG-ORDER
N. Prusty, J.@mdash25.06.07: This appeal has been filed by the opposite party No. 2/Insurance Company challenging the award-dated 01.09.2004 passed by the learned Member, 2nd Motor Accident Claims Tribunal (S.D.), Berhampur in M.A.C. No. 606 of 2000 (183/99) filed by the claimant/Respondent Nos. 1 to 5, who are the wife and sons and daughter of one Simanchala Pradhan, who died in a road accident caused on 27.03.1999 due to rash an negligent driving of the driver of a Trekker bearing Registration No. OR-07B-1982.
2. The case of the claimants/Respondents is that the deceased, who died in a road accident due to rash and negligent driving of the driver of the offending vehicle, was aged about 44 years at the time of his death and was earning Rs. 2500/- per month as a businessman. They had claimed Rs. 2,50,000/- as compensation along with cost and interest. The Respondent No. 1/owner of the vehicle was set ex-parte and the Appellant/Insurance Company, which was opposite party No. 2 before the Tribunal had filed its written statement denying the allegations made in the claim application.
3. In support of their case, the claimants had examined three witnesses and exhibited certain documents. On the other hand, no witness was examined by the opposite parties in support of their contentions. However the opposite party No. 2/Insurance Company had filed several documents in support of its contentions and those are marked as Exts. A to N, since those documents were public documents.
4. The Tribunal taking into consideration all the facts and materials available on record, both oral and documentary, awarded compensation of Rs. 1,34,000/- applying 13 years multiplier, together with cost of Rs. 500/- and interest at the rate of 9% per annum from 18.04.1997, i.e., the date of filing of the claim application till the date of realization, assessing the contribution of Rs. 10,000/- per annum to the family from the income of Rs. 1250/- per month i.e. Rs. 15,000/- per year after deducting 1/3 of the income towards his personal expenses and directed opposite party No. 2/Insurance Company (Appellant) to pay the amount indemnifying the owner of the vehicle, since the vehicle was insured with it at the time of the accident.
5. The main ground of challenge by the Appellant/Insurance Company in this appeal is that since the driver of the offending vehicle was not having a valid driving licence to drive the trekker and the licence which was seized by the Investigating Officer being a fake one, the tribunal should not have directed Respondent No. 2, Insurance Company to pay the amount awarded along with interest and cost of for violation of the terms and conditions of the policy. The other ground taken in this appeal is also relating to the driving licence. As such the only point to be determined in this case is as to whether the Insurance Company shall be liable to pay the awarded amount along with cost and interest indemnifying the owner of the vehicle even though the policy conditions have been violated by the owner of the vehicle by engaging the driver who is not competent to drive the trekker which is a goods carrying vehicle and the so-called driving licence seized by the police being not a genuine one.
6. Heard Mr. Ray, learned Counsel for the Appellant/Insurance Company and Mr. C.R. Sahu, learned Counsel for the claimants/Respondent Nos. 1 to 5 and Mr. Dash, learned Counsel for Respondent No. 6/owner of the vehicle.
7. Mr. Ray, learned Counsel appearing on behalf of the Appellant/Insurance Company forcefully submitted that the Insurance Company is not liable to pay the Compensation indemnifying the owner of the vehicle, since the driver of the offending vehicle was not having a valid driving licence at the time of the alleged accident, which is in violation of the terms and conditions of the policy. The sine-qua-non for fastening the liability on the insurer is that the driver of the offending vehicle must have a valid and effective driving licence at the time of the accident. In the instant case, the same being absent, the insurer has to be exonerated from its liability and it is the owner of the vehicle who is only liable to satisfy the award, since he himself has violated the terms and conditions of the policy by appointing a driver, who does not possess a valid driving licence. Furthermore, since right to reimburse the awarded amount from the owner of the vehicle has not been given to the insurer, the judgment is vitiated. Learned Counsel further submits that keeping in view the age of the deceased vis-a-vis the claimants, award of Rs. 1,34,000/- applying 13 multiplier is at a much higher side. So also the awarded interest at the rate of 9% per annum is on the higher side, since it was not the prevailing Bank''s rate of interest at the time of accident/filing the claim case. Hence both the amount of compensation as well as the rate of interest awarded are liable to be reduced. These submissions are strongly repudiated by Mr. Sahu, learned Counsel for the Respondent Nos. 1 to 5 and Mr. Dash, learned Counsel for Respondent No. 2.
8. It is submitted by the claimant-Respondents that the Tribunal has correctly awarded the amount of compensation as per the entitlement of the claimants keeping in view the evidence on record with regard to the occurrence, age and income of the deceased and his contribution to the family and finally directed the Insurance Company to pay the amount.
9. I have heared learned Counsel for the parties at length. perused the materials on record. So far as driving licence is concerned, not possessing a valid driving licence amounts to breach of policy condition as has been held by the Supreme Court in a catena of decisions reported in
10. As such in consonance with the ratio of the decisions of the Hon''ble Supreme Court, even if not possessing a valid driving licence by the driver of the vehicle is a breach of the policy condition, the poor claimant should not suffer or such breach of policy condition, if any it is incumbent upon the insurer to pay the compensation first to the claimant and accordingly the Appellant Insurance Company ought to be directed to pay the amount of compensation, with liberty to realize the same from the owner of the offending vehicle, in accordance with law.
11. So far as the quantum of compensation is concerned, taking into consideration the facts and circumstances of the case in the spirit of Lok Adalat, this Court feels that a compensation of Rs. 1,25,000/- (Rupees one lakh twenty five thousand), instead of Rs. 1,34/000/-, would be just and equitable. Apart from the aforesaid amount of Rs. 1,25,000/- the claimant/Respondents are entitled to receive interest at the rate of 9% per annum from 18.04.1997, i.e., the date of filing of the claim application till the date of realization/actual payment as well as Rs. 500/- as cost. Accordingly, it is directed that the Insurance Company shall pay/deposit an amount of Rs. 1,25,000/- towards compensation along with cost and interest, as above, within a period of three months hence. Out of total amount deposited, 30% of such total deposit made shall be disbursed in favour of the claimants and the balance 70% of the amount shall be invested in an unencumberable fixed deposit for a term of six years in the names of the respective claimant-Respondents Nos. 1 to 5 proportionately as would be fixed by the learned Tribunal and no loan of any kind shall be sanctioned/disbursed in their favour by the concerned Bank during the entire period for which the money is kept in fixed deposit.
12. In view of the ratio of the decision of the Apex Court vis-a-vis Section 149(4) of the Motor Vehicles Act, after the entire amount of compensation is deposited along with up-to-date accrued interest and cost before the Tribunal as directed above, the Appellant/Insurance Company shall have right to proceed against the owner of the offending vehicle, for realization/recovery of the entire amount paid/deposited by it in accordance with law, if the driver of the said vehicle was not possessing a valid driving licence to drive a trekker on the date and time the accident was caused as well as shall have liberty to attach the vehicle, if the owner/insured does not participate in the proceeding and comply with the order passed in the proceeding for recovery.
13. After the entire amount is deposited before the Tribunal, as directed above, the Insurance Company shall also be at liberty to withdraw the amount of statutory deposit made by it in this Court along with up-to-date accrued interest, on proper application along with a certificate of such deposit.
14. It is made clear that after the entire amount is deposited in the Tribunal, if any proceeding for recovery is initiated by the Insurance Company, the same shall be considered and disposed of on the basis of the evidence adduced by the respective parties in that proceeding.
With the above modifications of the impugned award, the appeal is disposed of.
Urgent certified copy of this order be granted on proper application.
