The onus is on the insurance company to prove the driver's disqualification from holding a license, and deductions from compensation for pecuniary benefits and family pension are not admissible.

JUDGMENT :

V.B. Gupta, J.

1. Present appeal u/s 173 of the Motor Vehicles Act, 1988 (for short as 'Act') has been filed by the appellant-Insurance Company against the award dated 23rd December, 2006 passed by Shri D.K. Sharma, Judge, MACT, Delhi (for short as 'Tribunal').

2. The brief facts of this case are that deceased Shri Jagjit Singh aged about 34 years died in road accident on 8th December, 1996 while driving two wheeler scooter bearing No. DL-4SL-5468. The accident took place as the offending vehicle bearing No. HR-47-3727 was parked on the wrong side with head lights off. The deceased was taken to the hospital where he was declared dead.

3. The offending vehicle is owned by Respondent No. 7 whereas, Respondent No. 6 was the driver of the offending vehicle. This vehicle was insured with the appellant-insurance company.

4. Vide impugned judgment the tribunal passed an award for a sum of Rs. 20,50,000/- in favour of claimants and against appellant and respondent No. 6 and 7.

5. It has been contended by learned Counsel for appellant that the compensation awarded by Tribunal is on very much higher side. It has wrongly taken into consideration that the deceased was receiving Rs. 4,000/- per month as production incentive, ignoring the statement of the PW4 who stated that production incentive is different every month depending upon production.

6. The other contention is that the widow and the children are getting family pension and moreover, the widow has got a job in Maruti Udyog Ltd. where her husband was working, on compassionate grounds.

7. It is also contended that the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident. Despite service, neither the owner nor driver appeared nor they contested the matter on merits before the Tribunal. Notices under Order 12 Rule 8, CPC were sent through registered post at the address of driver and owner but same could not be served.

8. Lastly, the Tribunal considered the future increase in income whereas, the witness examined on behalf of the claimant did not say a single word regarding future increase in income of the deceased.

9. In support of his contention the learned Counsel for appellant has cited the decision of the Apex Court in Oriental Insurance Company Ltd. Vs. Jashuben and Others,

10. On the other hand, it has been contended by the learned Counsel for the owner that the onus, was upon the appellant to prove that the driver was not holding a valid driving licence but the appellant has failed to discharge the onus, which was upon him. Secondly, notice under Order 12 Rule 8 CPC has not been served either on the driver or owner.

11. Learned Counsel for the claimants contended that the Tribunal has rightly taken monthly income of the deceased which has been proved on record. There is no ambiguity or infirmity in the judgment of the Tribunal.

12. Though it is correct that the respondents i.e. owner and the driver, did not contest the claim petition before the Tribunal, but the initial onus is upon the appellant to show that the driver was not having a valid and effective driving licence.

13. Before delving with the contentions of the appellant counsel, it is relevant to reproduce herein the relevant sections of the Act.

14. Section 3 of the Act reads as under;

Necessity for driving licence.:

(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.

(2) The conditions subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.

Section 181 of the Act reads as under;

Driving vehicles in contravention of Se