NEW INDIA ASSURANCE CO. LTD Vs. KOILI BAG

JUDGEMENT

(1.) This appeal at the instance of the Insurance Company, is directed against the judgment and award dated 26th September, 2000 passed by the District Judge-cum-First M.A.C.T., Sambalpur urging following grounds. The first ground of attack of the impugned judgment is that the vehicle involved in the accident is a jeep. The deceased was travelling as a gratuitous passenger. Therefore, the Insurance Company is not liable to pay the compensation awarded by the Tribunal and is liable to pay compensation only towards third party and the owner of the vehicle in question is liable to pay the compensation. The second ground of attack of the impugned judgment is that the witnesses were examined namely, officer of the Insurance Company-OPW 2, clerk and the RTO is examined to prove the fact that on the date of accident, the driver who has driven the offending vehicle did not possess valid and effective licence as required in law as his licence was expired on 6th June, 1993 despite there is a legal evidence in this regard. The Tribunal has not accepted the same and recorded the finding in favour of the Insurance Company and not fastened the liability upon the insured-owner of the vehicle as he has not indicated that the driver had a valid and effective licence. In view of Section 149 of the Motor Vehicles Act, 1988 the awarded compensation has to be paid to the claimants by the Insurance Company with the liberty to recover the same from the owner in view of the decision of the Apex Court in the case of Swaran Singh v. National Insurance Company Ltd., 2004 AIR(SC) 1531 Since the recovery right has not been given by the Tribunal, the finding of fact on the contentious issue recorded by the Tribunal is erroneous and liable to be set aside.

(2.) Learned Counsel for the claimants not only sought to justify the award but also requested this Court to enhance the compensation by invoking the power of this Court under Order 41 Rule 33 of the C.P.C. as the Tribunal has not awarded just and reasonable compensation to the claimants even though an appeal or cross-appeal is not filed by the claimants placing strong reliance on the decision of the Apex Court in the case of Delhi Electricity Supply Undertaking v. Basanti Devi, 2000 AIR(SC) 43. He further contended that the Tribunal has not discharged its statutory duty in determining just and reasonable compensation as the deceased was 30 years old and his income is taken to be Rs. 30,000 per annum without applying Second Schedule of the Act even in absence of producing proof of actual income. As per the Second Schedule, the maximum annual income should have been taken as Rs. 40,000. He submits that having regard to the facts of the case, the income should have been taken at least Rs. 36,000 per annum. Deducting 1/3rd there from, the income shall be Rs. 24,000. Having regard to the age, as per judgment of the Apex Court in the case of Sarla Verma and Others v. Delhi Transport Corporation and Another, 2009 AIR(SC) 3104, the multiplier should have been 17 and not 16. Therefore, the claimants have prayed for enhanced compensation by modifying the impugned award, setting aside the finding on the contentious issue in fastening tire liability and giving the right of recovery to the Insurance Company which has not been done by the Tribunal.

(3.) With reference to the aforesaid rival legal contentions, the following points would arise for determination.