Liability of insurance under Motor Vehicles Act remains unless breach of policy terms is proven; quantum of compensation must reflect proper assessment of income and dependents.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned counsel for the parties.

1. Insurance Company is in appeal against the impugned judgment of Award passed by learned District Judge I-cum- MACT.I, Simdega in M.A.C.C. No.30 of 2010 whereby and whereunder compensation for the death of one Jhalo Devi [wife and mother of the claimants] has been awarded under Section 166 of the M.V. Act.

2. The facts of the case are not in dispute that said Jhalo Devi died in a motor vehicle accident involving a pick-up van bearing Registration No.WB-29A 1623 which was under the insurance cover of the appellant-Insurance Company.

3. The instant Misc. Appeal has been preferred mainly on the ground that there has been breach of terms and conditions of the Insurance policy as the permit of the vehicle was not produced and further the driving licence was adduced into evidence on behalf of the Insurance Company for driving non-commercial vehicle whereas the offending vehicle was the commercial vehicle.

4. It is argued by the learned counsel for the appellant- Insurance Company that the onus was upon the owner of the offending vehicle to have adduced into evidence that the said vehicle was plying on a valid and effective permit and the driver had valid and effective driving licence at the time of accident. It is argued that perusal of Ext.4 will show that Jahangir was not having valid driving licence for driving the commercial vehicle.

5. On quantum of the compensation amount, it is argued that a total sum of Rs.2,30,000/- has been awarded under the Conventional Head which is not in consonance with the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680 and further rate of interest has also been awarded @9% per annum which is also not as per the settled law.

6. The notices were earlier issued upon the owner and claimant(s), but none ppeared despite valid service. Accordingly, the instant Misc. Appeal is being heard ex-parte.

7. So far the issue of driving licence is concerned, from Ext.4, it is apparent that driver was having a valid driving licence at the time of accident. Law is settled that until and unless, there is some material evidence to show that the owner of the vehicle had colluded by permitting the driver in driving the vehicle without having any driving licence, he cannot be saddled with liability to pay the compensation amount as it will not amount to breach of terms and conditions of the Insurance policy.

8. So far non-production of permit is concerned, in the written statement, it has not been pleaded that the vehicle was being driven without having any valid permit and there is denial of averment made in Para-14 and 16 of the claim application. Consequently, no issue was framed with regard to breach of the terms and conditions of the policy for non-production of the permit.

9. In this view of the matter, this plea cannot be raised at this stage. Accordingly, I do not find that there is material infirmity in the impugned order with regard to liability of the Insurance Company.

10. However, there is merit in the argument advanced on behalf of the appellant-Insurance Company that the amount awarded under the conventional head is excessive and not as per the ratio laid down in the case of Pranay Sethi (supra).

11. In view of the fact that since the quantum of compensation has been challenged in the instant Misc. Appeal, it will be incumbent on the part of this Court to revisit the quantum and award a fair and just compensation to the claimant(s).

12. Accordingly, final compensation taking