Babasaheb and Ors. Vs. Shahid Khan Ibrahim Khan and Ors. - (High Court of Bombay) (08 Aug 2023)

It is the duty of the insured/owner of vehicle to establish that he took reasonable care to engage the driver having valid authorization

MANU/MH/3099/2023

Motor Vehicles

The Appellants/original claimants impugn the judgment and award passed by the Motor Accident Claims Tribunal. The Tribunal passed an award for Rs. 1,50,000 in favour of the claimants directing Respondent no.1 / owner of the truck to pay the compensation and the claim petition came to be dismissed against Respondent no.2/insurer by accepting the defence of breach of condition of the policy.

It is evident that there is no dispute of the accidental death of son of the claimants. There is no dispute that, the deceased was a victim of the accident attributable to fault of the truck driver, owned by respondent no.1 and insured with respondent no.2. The Tribunal accepted the defence of the insurer on the point of breach of policy for the reason that, the driver was charged for driving the vehicle without holding the valid driving licence.

The Supreme Court in the matter of Pappuu and Others Vs Vinod Kumar Lamba and Another has observed that, it is the duty of the insured/owner of vehicle to plead and establish that he took reasonable care to engage the driver having valid authorization. If there is failure of owner/ insured to discharge his primary obligation, the onus to prove the fact that the driver had no licence/authorization would not shift on the insurer.

Pertinently, Section 134(c) of the Motor Vehicles Act, 1988 also mandates owner of the vehicle to supply such information to the insurer. In the present case, there is nothing on record to counter the contents of charge-sheet that establish the fact that the driver had no valid authorization at the time of accident. In that view of the matter, the findings recorded by the Tribunal that there was a breach of conditions of the policy by insured, cannot be disturbed.

The Supreme Court of India in the case of National Insurance Co. Ltd. v. Swaran Singh held that although the insurer succeeds to prove its defence in terms of Section 149 (2) of the Act, its liability to satisfy the award passed in favour of "Third Party" being the insurer of the vehicle would continue to exist. The insurer in such case entitles to recover the compensation from the insured, who committed default in his obligation to appoint the authorized driver. Therefore, the Tribunal ought to have directed the insurer to satisfy the award at first instance and then recover the compensation amount from the insured/owner of the vehicle. There was no reason to outright dismiss the claim against the insurer. Therefore, the finding of the Tribunal to that extent needs to be modified.

With regard to the quantum of compensation, the claimant has pleaded that the deceased was earning Rs. 3000 per month at the time of accident. The Tribunal accepted the contentions of claimants and worked out the compensation based on the notional income. However, while applying multiplier method, the Tribunal committed an error of adopting the multiplier of '17' instead of '18'. Further, nothing is added towards future prospects. The claimants would also be entitled for addition of compensation towards loss of consortium, funeral expenses and loss of estate.

The judgment and award passed by the Tribunal is modified. The Respondent Nos. 1 and 2 shall jointly and severally pay the compensation of Rs. 5,23,600 to the claimants along with interest @ 6% per annum from the date of filing of the claim petition. Appeal partly allowed.

Tags : AWARD COMPENSATION LEGALITY