Insurance policy requires valid vehicle permit; absence constitutes breach, affecting liability and compensation calculations.

ORDER :

(Gautam Kumar Choudhary, J.)

Insurance Company is in appeal against the judgment and award of compensation under Sections 140 and 166 of the Motor Vehicle Act in Title (M.V.) Suit No.21/2007 by which the liability has been fixed on the Insurance Company.

2. As per the case of the claimant on 12.03.2005 at 2:45 p.m, the death of Raja Ram Bhuia, who was returning home after duty from Basantimata Colliery, was dashed by a truck bearing registration no. JH 10D 8984, as a result, he was entrapped in electric wire of a pole by the side of road, resulting in his instantaneous death.

3. Learned Tribunal has recorded a finding that the accidental death was due to rash and negligent driving by the said truck. Further, there was valid and effective driving license. As the permit was not produced by either side therefore, the Tribunal held that there was no breach of Insurance Policy since no evidence was brought on record by the Insurance Company regarding breach of it.

4. The judgment and award of compensation has been assailed mainly on the ground that it was incumbent on the part of the owner of the vehicle i.e. respondent no.5 to produce the permit and failure on his part to produce the document, an adverse inference also liable to be drawn that the vehicle had no valid permit at the time of accident. As a matter of fact, the owner of the vehicle did not even appear to contest the claim. It is further argued that as per the post-mortem examination report, the death was due to Asphyxia by strangulation which is tell tale sign of a homicidal death, but it has been given a colour of accidental death.

5. This appeal is proceeding ex-parte against owner of vehicle and the counsel on behalf of claimant has appeared and defended the judgment of award and compensation.

6. It is submitted by learned counsel, Ms. Manjusri Patra that award of compensation under head of conventional head is not as per law laid down by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 . Further, the deceased was aged 32 years and no loss under the head of future prospect has been given.

7. Having considered the submissions advanced on behalf of both sides and the materials on record, I find merit in the argument advanced on behalf of Insurance Company that there was onus of leading evidence regarding vehicle being plied on valid permit on the owner of the vehicle. The owner of vehicle did not appear and so the said document has not been brought on record and not proved. Therefore, there was breach of policy of insurance, for plying the vehicle without a valid and effective permit.

8. So far, the argument regarding homicidal death of the deceased is concerned, from the FIR (Exhibit 1), it is evident that the case was lodged on the very same day of the accident, wherein it has been stated that the accident had taken place in which the deceased was hit by the offending truck. Further, after investigation, charge-sheet (Exhibit 2) was also filed under Sections 279/304A of the IPC against the driver of the offending truck. The direct eye witness to the accident (C.W. 2) has been examined, who has attributed accident to the rash and negligent driving by the driver of the truck. Under the circumstance, I do not find any infirmity in the finding of rash and negligent driving by the driver of the truck.

9. There is merit in the argument advanced on behalf of claimants that the compensation amount has not been computed as per the ratio laid down by the Hon’ble Supreme Court in the case of Sarla Verma & Others Versus Delhi Transport Corporation & Another, (2009) 6 SCC 121 and further followed in Pranay Sethi case (supra), no compensation has been awarded under the head of future prospect and also under the conventional head only Rs.9500/- has been awarded. Taking the age of deceased at the time of accident to be 32 years and annual income of Rs.8100/- and 1/4th deduction under living expenses of the dece