RADHABAI Vs. RADHESHYAM

JUDGEMENT

(1.) M.A. No. 2330 of 2008 has been filed by the claimants seeking enhancement of compensation amount awarded by the Tribunal and M.A. No. 2372 of 2008 has been filed by the owner of the vehicle, challenging the exoneration of the insurance company by the Claims Tribunal. These appeals have been filed against the award dated 30.4.2008 passed by the Member Judge, Motor Accidents Claims Tribunal, Shajapur, in Claim Case No. 17 of 2008.

(2.) BRIEF facts of the case are that on 11.2.2007 at 2.45 p.m. in the afternoon deceased respondent was going with his friend Ramchandra, who was driving Trax Tempo bearing registration No. MP 39-D 0406, for washing the vehicle Tempo Trax. When the vehicle reached at gram Mithaanpur near Goddess Dayalu Temple at A.B. Road, the driver of Tempo Trax deceased Ramchandra, driving rashly and negligently lost control of the vehicle and fell into the well 150 ft away from the road. Due to the aforesaid accident both Rajaram and Ramchandra died on the spot. Respondent No. 1 is the owner of offending Tempo Trax bearing registration No. MP 39-D 0406 and respondent No. 2 is the insurance company from whom this vehicle was insured on the date of accident. The appellants are the wife, father, mother, minor sisters and brother. The appellant No. 2, father of the deceased, is suffering from serious ailment of head. He is very weak and cannot do any work due to his physical weakness. The Tribunal assessed the monthly income of the deceased at Rs. 1,500 and calculated the loss of income at Rs. 18,000 per annum. He found that the age of the deceased at the time of accident was 21 years and applied the multiplier of 17 and calculated the sum of (Rs. 18,000 x 17) = Rs. 3,06,000 as loss of income. After deducting '/3rd (Rs. 1,02,000) towards personal and living expenses of-the deceased, assessed the sum of Rs. 2,04,000 as loss of dependency of the appellants and on other conventional heads the Tribunal awarded Rs. 9,500. Thus, Claims Tribunal awarded a sum of Rs. 2,13,500 along with interest at the rate of 6 per cent per annum from the date of application and exonerated the insurance company on the ground that at the time of accident Ramchandra the driver of Tempo Trax bearing No. MP 39-D 0406 was not having a valid driving licence to drive the vehicle.

(3.) A perusal of the written statement filed by the owner of the offending vehicle before the Claims Tribunal indicates that the driver Ramchandra was having a valid licence to drive the vehicle. As per reply of insurance company the driver Ramchandra, son of Khushilal was not having any valid licence and driving licence was in the name of Ramchandra, son of Bansilal. Photocopy of the licence which has been relied upon by the Tribunal has not been proved by any of the party and it does not form the part of the record of the case containing exhibited documents. No attempt was made by the insurance company before M.A.C.T. to prove that driver of Tempo Trax was not having valid licence or he was driving the vehicle in violation of the policy conditions. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulder of the insurance company. Further the R.T.O. which issues the driving licence copy, the record of the licence issued by it have not been examined before Claims Tribunal. The insurance company could not have got the evidence produced to substantiate his allegation. As per the reply it is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidenced by the policy of insurance. If a breach of term of a contract permits a party to the contract to not perform the contract the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. Not an iota of evidence has been led by the insurance company to show that the driver Ramchandra did not have a valid driving licence to drive the vehicle. Photocopy of the licence which has been relied by the Tribunal has not been proved by any of the parties and it does not form the part of the record of the case containing exhibited documents.