Court affirmed the reassessment of income for compensation and upheld 'pay and recovery' principle when the driver lacked a valid license, clarifying policy liability issues.

JUDGMENT :

S. G. PANDIT, J

The above two appeals are directed against the judgment and award dated 24.08.2022 in MVC No.218/2016 passed by the II Addl. Senior Civil Judge and Additional MACT., Hubballi. Claimants are in appeal not being satisfied with the quantum of compensation and the insurer is in appeal questioning the pay and recovery ordered by the Tribunal and also questioning the quantum of compensation.

2. Heard learned counsel Sri.G.N.Raichur for appellant-insurer and learned counsel Sri.Anjaneya M. for respondent Nos.1 to 4 for claimants and perused the entire appeal papers including the trial Court records.

3. Claimants are wife and minor children of the deceased Sakarappa Kuri who died in a motor accident that took place on 29.05.2014 involving motorcycle bearing No.KA-25/EL-9850 and Tata Magic vehicle bearing No.KA- 26/A-1230. The claimants filed the present claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental death of Sakarappa Kuri, the husband of the 1^st claimant. It is stated that the deceased was working as Police Constable, drawing salary of Rs.25,000/- per month and was also earning Rs.5,000/- from agriculture and was aged 42 years as on the date of accident.

4. On issuance of notice, respondent-insurer appeared and filed their statement of objection denying the claim petition averments. Insurer also contented that driver of the offending vehicle had no valid and effective driving license and that there is violation of policy conditions.

5. In support of their claim, claimant No.1 examined herself as PW1 apart from marking Exs.P.1 to P.9. The 2^nd respondent was examined as RW1 and Exs.R.1 to R.4 were marked.

6. The Tribunal considering the material on record awarded total compensation of Rs.39,24,796/- with interest at the rate of 6% per annum. While awarding the above compensation, the income of the deceased was assessed at Rs.25,337/-. It added 30% towards future prospects and deducted ¼ towards personal expenses of the deceased. It applied multiplier of 14.

7. Learned counsel Sri.Anjaneya for claimants would submit that the income assessed by the Tribunal is on the lower side and further submits that the Tribunal committed an error in deducting income tax while determining the income of the deceased. He submits that the income of the deceased was within the income tax slab prescribed for the financial year 2014-2015. Thus, he prays for proper assessment of the income of the deceased in terms of Exhibit P9-salary certificate.

8. Learned counsel would also submit that the claimants would be entitled for escalation on compensation awarded on the conventional heads.

9. Per contra, learned counsel Sri.G.N.Raichur for insurer would submit that as the driver of the offending vehicle had no valid driving license, which is a fundamental breach and as there is violation of conditions of policy, the Tribunal ought to have saddled the liability on the owner and it ought not to have ordered for pay and recovery. Learned counsel would also submit that while assessing the income, the Tribunal has not deducted professional tax from the salary of the deceased. Thus, he would also pray for re- determining the income of the deceased and for passing appropriate judgment.

10. Having heard the learned counsel for the parties and on perusal of the entire appeal papers, the following points would arise for consideration:-

1) Whether the income of the deceased assessed by the Tribunal needs reassessment?

2) Whether the Tribunal is justified in ordering pay and recovery?

11. The answer to both the points would be in the affirmative for the following reasons:-

The accident that occurred on 29.05.2014 involving motorcycle bearing No.KA-25/EL-9850 and Tata Magic vehicle No.KA-26/A-1230 and the accidental death of Sakarappa Kuri, the husband of 1^st claimant is not in dispute in the present appeal.

12. The claimants are in appeal praying for enhancement of compensation, whereas the insurer is in ap