The main legal point established in the judgment is that the insurance company is liable to indemnify the claimants unless it can be proved that the insured was aware of the fake license and still permitted the driver to drive the vehicle.

JUDGMENT :

1. Heard Sri Anand Kumar Sinha, learned counsel for the appellant-National Insurance Company, Sri S. Shekhar, learned counsel for respondent nos.1 & 2 and Ms. Nirja Singh, learned counsel for the respondent no.3.

2. This appeal under Section 173 of Motor Vehicle Act has been filed by the National Insurance Company/opposite party no.2/appellant challenging the judgment and order dated 28.09.2009 passed by Additional District Judge/Special Judge (SC/ST)/M.A.C.T., Ghaziabad by which a sum of Rs.12,70,406/- alongwith 6 % interest has been awarded as compensation on account of death of deceased against the appellant.

3. Facts in brief are that an application u/s 166 & 140 M.V. Act was filed by the claimant/respondent no.1 & 2 seeking compensation to the tune of Rs.42,66,000/- alongwith 18% interest alleging that on 09.03.2005 deceased Vikas Arora S/o claimant was returning to his home from his office by motorcycle and when he reached near Mohan Nagar police outpost, Ghaziabad at 7:00 P.M. a truck bearing no. AS 01 F 4749 driven by its driver rashly and negligently dashed him from behind causing injuries to him as a result he died on the same day in the hospital. F.I.R. in this regard was lodged by the brother of deceased on the same day at police station concerned against unknown driver of the said truck bearing no. AS 01 F 4749 as Case Crime No.189 of 2005, under Section 279, 304A I.P.C.

4. Deceased was aged about 26 years and was earning Rs.9500/- from Kamdhenu Inspat Ltd. and Rs.3000/- from accountancy in Agarwarl Timber and Bans Company. Truck owner as well as insurance company contested the proceedings by filing written statement and denying the allegations made by the claimant/respondent nos.1 & 2.

5. Learned tribunal on the basis of pleadings and after appreciating the evidence brought on record by the parties, both oral and documentary determined that incident took place due to rash and negligent driving of the driver of offending vehicle. It recorded finding on the basis of oral testimony of eye-witness PW2 Kamal Arora who proved the manner and mode of accident. It was stated by him that he was waiting for his brother at the police outpost Mohan Nagar and accident took place in his presence on 09.03.2005 at about 7:00 P.M. A truck bearing no.AS 01 F 4749 was coming from the opposite direction and driver of the truck was driving it rashly and negligently which dashed the motorcycle of deceased from behind in which deceased got injuries and was taken to the hospital where he died. He informed to the police station and lodged F.I.R. PW-1 Kewal Krishna Arora is father of deceased who had not seen the incident. The testimony of PW-2 was found to be unshakable in cross-examination. F.I.R. was lodged by PW-2 who had seen the incident and this was also taken into account by the learned tribunal.

6. On the question of quantum, learned tribunal found that deceased who was working as accountant in Kamdhenu Ispat Ltd. from where he was earning Rs.9500/-per month as salary and was also working in Agarwal Timber and Bans Company from where he earned Rs.26,500/-per year. In this regard statements of PW-3 Sushil Bhardawaj, Assistant Regional Manager, Sales & PW-4 Puneet Agarwal care taker of his father's business were recorded and relied on. Deceased filed I.T.R. in assessment year 2004-05 in which he showed his income as Rs.1,05,700/- on the basis of which his income was assumed to be Rs.1,05,700/- out of which 1/3 of the annual income was deducted as personal expenses of deceased and after applying multiplier of 18 on the age of the deceased determined the compensation to the tune of Rs.12,68,406/- and further awarded a sum of Rs.2000/-for funeral expenses. In this way, a total sum of Rs.12,70,406 was determined as compensation payable to the claimant/respondent nos.1 & 2.

7. Learned tribunal found that at the time of accident driver of the truck causing accident, had no valid driving license, even though liability was fastened agai