MANJIT KAUR Vs. H.S.ATWAL

JUDGEMENT

(1.) The appeals are for enhancement of compensation sought at the instance of the legal representatives of the deceased-persons, who were travelling on a scooter. The subject matter of appeal in FAO No.654 of 1989 is at the instance of the wife and three children of a male aged 47 years (said to be 42 years at the time of trial), who was an Assistant Registrar in Punjabi University, Patiala. FAO No.655 of 1989 is with reference to death of a male aged 60 years, who was his father and travelling as a pillion rider in the scooter. The accident had taken place by collision of scooter with jeep originally belonged to the 1 st respondent. On the date of accident on 21.03.1987, it was brought out on evidence that the vehicle had been transferred to the 2 nd respondent but the insurance company had not been informed about the date of transfer and the policy of insurance which the 1 st respondent had taken, had not stood transferred by any notice.

(2.) At the trial, the claimant, who is the appellant in FAO No.654 of 1989 sought to contend that her husband was 42 years of age and he was earning ' 3272/- per month. The Tribunal rejected the contention regarding the age by pointing out that even when the official record from the Punjabi University was brought to prove the income of the deceased, nothing was elicited about the age. The Tribunal, therefore, rejected the contention and took the age of her husband as 47 years of age, as stated in the petition and proceeded to assess the compensation that he was 47 years. For the income of ' 3272/- per month, the Tribunal assessed the contribution to the family at ' 1,000/- per month and applied a multiplier of 18, brought out a further deduction for a lump sum payment of 20% and afforded to the claimants a compensation of ' 1,73,000/-. In this case, the issue of negligence of the driver of the jeep was taken as established and the arguments of the respective counsel was only with reference to the quantum and the liability with reference to the exclusion of the claim against the insurer.

(3.) The cross appeal has been filed by the 1st respondent contending, inter alia, that the liability could not have been cast on the 1 st respondent for alleged violation of terms of policy that the driver did not have valid driving lience failing to apply a fundamental precept that the burden of proof of violation of terms of policy was always on the insurer and the insurer did not produce appropriate evidence to discredit the value of the driving licence. It was his further contention that the report of the local commissioner could not have been taken as evidence for it was not accepted as evidence but was merely assigned a mark in view of the fact that the person, who gave the report was not examined nor was an appropriate opportunity given to the owner to cross-examine the commissioner on the report, which he had filed. Learned counsel appearing for the 1 st respondent would also contend that even if the vehicle had been transferred, the liability must still be taken as fully established, for even under Section 103-A of the Motor Vehicles Act of 1939, a liability to a third party was never excluded against the insurer.