Claimants can seek compensation enhancement without a cross-appeal, supported by substantial proof of income; Insurer's defenses of non-involvement and invalid license were insufficient.

JUDGMENT :

R.M. JOSHI, J.

1. By consent of both sides heard finally at the stage of admission.

2. This Appeal filed by the Insurer takes exception to the judgment and award dated 11^th January 2023 passed in MACP No.707 of 2019 accepting the death claim filed by the Claimants by directing payment of compensation of Rs.25,43,595/- with interest @ 7% from the date of filing of Claim Petition till realization of the amount.

3. It is the case of the Claimants before the Tribunal that on 13^th May 2019 deceased was pillion rider on motor cycle bearing No. MH-15-DD-2558 driven by his friend. When they came to the spot of the accident motor car bearing registration No. MH-01-BT-4452 came from the opposite side in rash and negligent manner and gave dash to the motor-cycle of the deceased. In the said accident both sustained serious injuries. Both died in the said accident.

4. Before Tribunal the owner of the offending vehicle though served with the notice failed to file Written Statement and contest the claim. Insurer filed Written Statement and denied the contention of the Claimant on accident, age, employment and income of the deceased. It is claimed that, the driver of the offending vehicle was not holding valid and effective driving license at the time of occurrence of the accident hence, Insurer is not liable to pay compensation for breach of condition of the policy. The Claimant led evidence to prove the manner in which the accident occurred by relying upon police papers. They also led evidence to prove employment and income of the deceased. Insurer examined the Investigating Officer who conducted investigation in the crime.

5. The learned counsel for Appellant-Insurer submits that, this is case of the non-involvement of the offending vehicle in the accident and hence, Insurer is not liable to make payment of compensation. It is claimed that, there is delay of two days in lodging of FIR which creates doubt about its genuineness. According to him the driver of the offending vehicle was not holding effective and valid license at the relevant time and which amounts to the breach of condition of the Insurance Policy. It is submitted that the Tribunal has accepted, the income of the deceased on higher side and hence the impugned judgment and award deserves interference.

6. The learned counsel for the Respondent-Claimants supported the impugned judgment and award with regard to the joint and several liability of owner as well Insurer to pay the compensation. On the point of the determination of the compensation, however, it is submitted that the Tribunal has erred in not considering the evidence on record which indicates that the last drawn income of the deceased is Rs.18,892/- and after deducting the Professional Tax of Rs.200/- his income for the purpose of computation of the compensation ought to have been taken @ Rs.18,692/-. It is his submission that even without filing Appeal or Cross-objection it is open for the Claimant to seek enhancement of the compensation. He relied on the judgment of the Hon’ble Supreme Court in case of Pappu Deo Yadav vs. Naresh Kumar , AIR 2020 SC 4424 .

7. Though it is now sought to be argued on behalf of the Appellant that this is case of the non-involvement of the offending vehicle in the accident, no specific plea in this regard has been taken in the Written Statement. In the Written Statement challenge is raised to the liability on the ground of offending vehicle having no valid and effective license so also doubt is sought to be created with regard to the genuineness of the FIR since it is filed after two days of the accident.

8. It is pertinent to note that, the Claimants are required to prove factum of the accident so also negligence on the part of the driver of offe