The main legal point established is that the insurance company is liable to satisfy the claim of the aggrieved third party and thereafter recover the same from the insured, even in cases of breach of terms and conditions of the insurance policy.

JUDGMENT

Gaurang Kanth, J. The present appeal has been preferred by the Appellant under Section 173 of the Motor Vehicles Act, 1988 ("the Act") against the Award dated 06.04.2013 passed in case no. 504/2011 by the Court of learned Presiding Officer, Motor Accident Claims Tribunal, (West), Delhi ("impugned Award").

2. By way of the impugned Award dated 06.04.2013 the learned Claims Tribunal awarded a compensation of Rs.12,57,198/- with interest @ 7.5% per annum from the date of filing of the claim petition till the issuance of notice under order XXI Rule 1 CPC and directed the Insurance Company to deposit the entire awarded amount within a period of one month. Learned Claims Tribunal further granted recovery rights in favour of the Appellant as Respondent No.6 did not have a valid license at the time of the accident.

3. On 03.05.2011 at about 05:00 am, the deceased Sh. Rambhaj @ Kanu Prasad was coming from Azadpur Mandi in TSR goods tempo bearing no. DL IL N 0163 driven by Mr. Santosh Kumar/Respondent No. 6. The offending vehicle hit the divider of the road and it overturned. Due to the impact of the accident, the deceased fell down, came under the offending vehicle and died. An FIR was registered against Respondent No.6 for causing death due to rash and negligent driving.

4. The deceased was a fruit seller aged 32 years at the time of his death. He was survived by his widow, 2 minor children (one daughter and one son), his mother and a major brother. The learned Claims Tribunal has awarded compensation of Rs.12,57,198/- under the following heads:

5. Being aggrieved by the impugned award, the Appellant preferred the present Appeal.

SUBMISSIONS OF THE APPELLANT

6. Mr. Ravi Sabharwal learned counsel for the Appellant/Insurance Company contended that the learned Claims Tribunal failed to appreciate that negligence is sine qua non in order to bring the case within the purview of the Section 166 of the Act. He further submitted that in the present case the negligence of the driver of the offending vehicle has not been proved as no evidence in this regard has been led by the claimants. In order to prove negligence, petitioners were required to examine the eyewitness which they failed to produce. He further submitted that mere production of documents during the trial would not substitute the testimony of an eyewitness. As such non production of an eye witness in order to prove negligence is a blatant error and accordingly, the Appellant shall be exonerated from the liability of making payment of compensation to the claimants.

7. Learned counsel further contended that the driver of the offending vehicle was not having a valid driving license at the time of the accident and hence the Appellant was not responsible for indemnifying the Claimants.

8. Learned counsel fairly concedes that in terms of dicta of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs Pranay Sethi & Ors. reported as (2017) 16 SCC 680, compensation under the head `Future Prospects' is to be paid by adding 40% of the assessed income of the claimant instead of 30% as awarded by the learned Claims Tribunal. Learned counsel further contended that in terms of dicta of Pranay Sethi (Supra), compensation under the head `Love and Affection' has to be deducted.

SUBMISSIONS OF THE RESPONDENTS

9. Mr. Anurag Singh learned counsel appearing on behalf of the Respondents contended that the negligence of the driver of the offending vehicle has been proved on record by production of records pertaining to the criminal case registered against the driver. Learned counsel further placed reliance on the judgment passed by the Hon'ble Supreme Court in the case of Pushpabai Parshottam Udeshi & others vs M/s Ranjit Ginning & Pressing Co. Pvt. Ltd. & Another reported as AIR 1977 S