Dismissed

The Oriental Insurance Co. Ltd. Deoria v. Smt Kusmi and Others

Allahabad HC9 Sept 2022FAFO/148/1996

Case brief

AI extract

What is this about?

This first appeal challenged an accident compensation award of Rs. 2,43,600. The Appellant Insurance Company argued that liability did not attach as the driver lacked a valid licence and the multiplier was too high. The Court dismissed the appeal, upholding the Tribunal's finding due to the insurer's failure to prove invalidity of the licence and holding that the compensation, while computed with

What did the court decide?

The first appeal was dismissed with no order as to costs.

The Oriental Insurance Co. Ltd. Deoria Vs Smt Kusmi… — Motor Accident Claims | Allahabad HC (2022)

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Court No. - 38

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Case :- FIRST APPEAL FROM ORDER No. - 148 of 1996

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Appellant :- The Oriental Insurance Co. Ltd. Deoria Respondent :- Smt Kusmi And Others Counsel for Appellant :- S.K. Srivastava,Amresh Sinha Counsel for Respondent :- Varishtha Tewari

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Hon'ble Saral Srivastava,J.

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Heard learned counsel for the appellant and Sri Varishtha Tewari, learned counsel for the respondents.

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The appellant-insurance company has preferred the present appeal challenging the award dated 30.11.1995 passed by the Motor Accident Claims Tribunal/Special Judge, Deoria (hereinafter referred to as 'Tribunal') whereby Tribunal has awarded Rs.2,43,600/- along with 12% interest as compensation to the claimants/respondents for the death of one Hari Ram in an accident with Truck No.D.L.I.G-0399 (hereinafter referred to as 'offending vehicle').

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Challenging the aforesaid award, learned counsel for the appellant has contended that the Tribunal has erred in fastening the liability upon the insurance company to pay compensation as the driver of the offending vehicle was not holding a valid holding driving licence. It is contended that the finding of the Tribunal that insurance company did not produce any record from the Road Transport Office to demonstrate that the driver was not holding valid driving licence is without application of mind inasmuch as it was the duty of the owner of the offending vehicle to file driving licence of the driver to prove that the offending vehicle was driven by a person holding a valid driving licence, and once onus is discharged by the owner, the burden shall shift upon the insurance company to prove its case. Thus, it is contended that the insurance company cannot be made liable to pay any compensation. It is further submitted that the compensation awarded by the Tribunal is excessive inasmuch as deceased was aged about 30 years at the time of accident, and therefore, the Tribunal ought to have applied the multiplier of 17 instead of 22 and as such, the compensation is excessive and not sustainable in law.

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Per contra, learned counsel for the respondents submits that the issue as to whether the driver of the offending vehicle was holding a valid driving licence and there was breach of terms and conditions of insurance policy is a matter between owner and insurance company, the claimants/respondents are entitled

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to compensation even if there was breach of insurance policy. He further submits that even otherwise the law is settled that onus was upon the insurance company to prove that the offending vehicle was being driven by a person not holding valid driving licence which the insurance company utterly failed to do and as such, the finding of the Tribunal on the issue of driving licence is correct and based upon proper appreciation of evidence on record. He further submits that considering the settled position of law, the Tribunal ought to have applied the multiplier of 17 instead of 22, but the fact remains that claimants/respondents are entitled to just and fair compensation. It is further submitted that in the instant case, no amount towards future prospect has been awarded by the Tribunal, and had the future prospect awarded by the Tribunal, the compensation would almost have been the same and as such, this Court may not interfere with quantification of compensation on the ground of application of wrong multiplier in computing the compensation.

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I have considered the rival submissions of the parties and perused the record.

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It is manifest from the record that no driving licence was produced by the owner of the offending vehicle, however, as the plea of breach of insurance policy had been set up by the insurance company, therefore, onus was upon the insurance company to prove that the driver of the offending vehicle was not holding a valid driving licence. The insurance company did not file any evidence on record to demonstrate that the driver of the offending vehicle was not holding a valid driving licence nor there is anything on record which can manifest that any effort was made by the insurance company to procure the driving licence of the driver of the offending vehicle.

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In such view of the fact, the finding of the Tribunal on the issue of driving licence is in accordance with law and does not require any interference by this Court.

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So far as the quantification of compensation is concerned, it is true that the Tribunal ought to have applied the multiplier of 17 in computing the compensation instead of 22 considering the age of the deceased, but the law is well settled that the courts are duty bound to award just and fair compensation. In the instant case, claimants/respondents are also entitled to future prospect which has not been awarded to them by the Tribunal. Had the Tribunal awarded future prospect to the claimants/respondents, and after awarding future prospect if the compensation is computed by applying the multiplier of 17, the amount of compensation would have been the same as has been

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arrived at without awarding any amount towards future prospect and by applying multiplier of 22.

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In such view of the fact, this Court is not inclined to interfere with the quantification of compensation.

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Thus, for the reasons given above, the appeal lacks merit and is accordingly, dismissed with no order as to costs.

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Order Date :- 9.9.2022 Sattyarth

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Digitally signed by SATTYARTH ANAND Date: 2022.09.17 11:30:31 IST Reason: Location: High Court of Judicature at Allahabad

The Oriental Insurance Co. Ltd. Deoria v. Smt Kusmi and Others

Case brief

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The Oriental Insurance Co. Ltd. Deoria v. Smt Kusmi and Others

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