Point of Law: Age is between 26-30 years, then multiplier of 17 should be applied.

JUDGMENT :

1. These two appeals are arising out of the same judgment and award rendered by the learned Judge, Motor Accident Claims Tribunal (First), Jodhpur (hereinafter referred to, ‘the Tribunal’) on 25.01.2003 in Civil Misc. Claim No.66/2000, while dealing with a the particular accident which occurred on 01.07.1999, wherein the Tribunal partly allowed the claim petition and awarded Rs.3,44,000/- as compensation to the appellants/claimants.

2. The CMA No.354/2003 is filed by Insurance Company praying to set aside the judgment and award dated 25.01.2003 or in alternative, fastening of complete liability on respondent Nos.7 and 8.

3. The CMA No.631/2003 is preferred by Smt. Pani Devi & Ors. seeking enhancement of compensation as well as interest to be awarded thereupon.

4. The first CMA No.354/2003 has been filed by the Insurance Company on the ground that the driver (respondent No.7) of the truck bearing No.RJ-22-G-0796 to which deceased-Govind Ram met with an accident on 01.07.1999 was not possessing valid driving license thus, there was breach of the policy conditions. It has been prayed that appeal against judgment and award dated 25.01.2003 may be accepted and the judgment and award dated 25.01.2003 may be set aside.

5. The second CMA No.631/2003 has been filed by the appellants stating inter alia that the deceased was working in ‘chuna bhatti’ and apart from aforesaid work, he was also involved in agricultural activities. The appellants have stated that the deceased was earning Rs.6,000/- per month but the learned Tribunal erroneously assessed his income at Rs.2,000/- per month though, the respondents neither produced any evidence for rebutting the income of the deceased nor cross examined the appellants on the point of the monthly income. The appellants by way of filing present appeal have prayed that the impugned judgment and award dated 25.01.2003 may be modified and the compensation may be enhanced suitably by following the law laid down by Hon’ble the Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) AIR (SC) 5157.

6. Heard learned counsel for the parties and perused the material available on record.

7. Indisputably, deceased-Govind Ram on 01.07.1999 met with an accident with a truck bearing No.RJ-22-G-0796, which was driven by one Shri Moola Ram. Deceased-Govind Ram in the aforesaid accident sustained severe injuries and died on 12.08.1999 while taking treatment in a hospital.

8. It is the case of the respondent-Insurance Company (CMA No.354/2003) that in the absence of a valid license with the driver, there was fundamental breach of the terms and conditions of the insurance policy in question and hence, the claim made by appellants/claimants was not payable. The learned Tribunal in its judgment and award dated 25.01.2003 has decided issue No.2 framed in this regard against the respondents-Insurance Company. Learned Tribunal in its judgment and award dated 25.01.2003 has recorded a finding of fact that the onus of proving the fact that the driver was not having a valid license for driving the vehicle at the time of accident was upon Insurance Company, which failed to discharge the same. The learned Tribunal has further held that the objection with regard to wilful breach of the conditions of the policy could not be establish by the Insurance Company before it.

9. In the considered opinion of this Court, when insurer takes the defense that the license of the driver at the time of accident was invalid, the onus is then upon the Insurance Company to prove the same by producing relevant documents and evidence. The Insurer only with a view to avoid its liability cannot be permitted to raise such a defense. The Tribunal has rightly held that the Insurance Company had failed to prove/establish wilful breach of the conditions of the insurance policy.

10. In vi