Court established negligence on part of truck driver; fair compensation adjusted based on income evidence while insurance breaches were unproven.

ORAL JUDGMENT:

1. The learned counsel for the parties agree that a common Judgment and Order can dispose of both these appeals. Both these appeals challenge the Judgment and Award dated 31.03.2018 made by the Motor Accident Claims Tribunal, North Goa (Tribunal), disposing of Claim Petition No.83/2015. First Appeal No.83/2018 is instituted by the claimants claiming additional compensation. First Appeal No.12/2022 is instituted by the insurance company objecting to the award of any compensation. Hence, it is only appropriate to consider and dispose of both these appeals by a common Judgment and Order.

2. Mr U. R. Timble, the learned counsel for the insurance company, pointed out that in the written statement filed by the insurance company and by filing a separate application, leave was applied under Section 170(b) of the Motor Vehicles Act (M.V. Act). Such leave was applied because neither the owner nor the truck driver involved in the accident bothered to appear or defend the proceedings. He submits that the Tribunal made no orders on these applications but proceeded to make the impugned award. Mr Timble, relying on National Insurance Co. Ltd. vs. Smt. Jairani and others – First Appeal No.397/2008, decided by the Division Bench of the Allahabad High Court on 07.01.2009, submits that the award is rendered nullity in such a case. He placed on record this decision which is reported in ILR (Allahabad Series) at page 87.

3. Mr Timble, without prejudice, submits that since the insurance company was factually allowed by the Tribunal to raise all defences, including the defences other than those stipulated under Section 149(2) of the M.V. Act and was also allowed to cross-examine the witnesses or lead defence evidence, the appellant-insurance company would have no objection if the application under Section 170(b) of the M.V. Act which remained to be formally allowed, is allowed by this Court and the insurance company is permitted to urge all grounds, including the ground that the quantum of compensation is excessive and does not represent just compensation.

4. Mr. Timble submits that RW2, a private investigator (advocate) has clearly deposed that the license attached by the police authorities from the driver of the insured truck, was never issued by the RTO authorities in the name of such driver. Mr. Timble referred to the paper book's documents at pages 136 to 138. Based on this, Mr. Timble submitted that a licensed driver did not drive the insured truck, which amounts to a breach of the terms and conditions of the insurance policy. Mr. Timble submitted that the insurance company should have been exonerated from the liability.

5. Mr. Timble submitted that there is evidence about the driver bring under the influence of alcohol. He submits that even this amounts to an offence under the M.V. Act and a breach of the terms and conditions subject to which the insurance policy was issued. He submits that this is another reason why the insurance company should have been exonerated of the liability to pay any compensation amount.

6. Mr. Timble submits that the evidence bears out that there were two pillion riders i.e. the deceased, his wife and his minor son. He submits that this amounts to a breach of the traffic rules, and therefore, a case of contributory negligence is made out. Further, he presents that the Tribunal did not adequately consider this aspect; therefore, the compensation amount, or at least the apportionment, should be varied.

7. Finally, Mr. Timble submitted that the only income tax returns on record pertain to 2010-11, in which the returned income w