JUDGMENT
Viney Mittal, J.
1. This order shall dispose of three first appeals being F.A.G. No. 576 of 2002, F.A.O. No. 577 of 2002 and F.A.O. No. 578 of 2002, as all the three appeals have arisen out of a common award dated May 29, 2001 passed by the learned Motor Accident Claims Tribunal, (for short ‘the Tribunal’).
2. All the three appeals have been filed by the claimants. In the three appeal, the owner of the offending vehicle has also filed cross-objections against the award wherein the Insurance Company has been absolved of its liability to pay the compensation.
3. The facts which emerge from the record show that an accident had taken place on May 28, 1999 when an oil tanker No. HR-39-6221 hit with a scooter No. HR-04-1318. Kuldeep Singh and Sarminder Singh were riding on the scooter. Because of the aforesaid accident, the aforesaid persons died on account of the injuries suffered by them. At the time of the accident, both the aforesaid deceased persons, namely, Kuldeep Singh and Sarminder Singh were 31 years of age, respectively. They were working as agriculturist and it was also claimed that in addition, they were carrying on dairy farming.
4. Three separate claim petitions were filed before the learned Tribunal. The dependents of Kuldeep Singh deceased namely, his widow Narinder Kaur, minor son Hapreet Singh, minor daughters Manpreet Kaur and his mother Jarnail Kaur filed a claim petition claiming compensation on account of his death. A separate claim petition was field by the dependents of Sarminder Singh by his widow Paramjeet Kaur, two minor daughters Mandeep Kaur and Lakhvir Kaur, minor son Gurdeep Singh and his mother Gurdev Kaur. The third claim petition was filed by Malkiat Singh, who claimed compensation on account of the damage to the scooter.
5. In all the claim petitions, identical pleas were taken by the claimants. It was claimed that driver of the offending oil tanker, namely, Mohinder Singh was rash and negligent in his driving. The said oil tanker was owned by S.K. Pandey and was insured with National Insurance Company. The claimants claimed that Mohinder Singh, because of his rash and negligent driving has caused the accident in question resulting in the death of Kuldeep Singh and Sarminder Singh and damage to the scooter.
6. The learned Tribunal, on the basis of the evidence available on the record found it as a fact that Mohinder Singh, driver of the oil tanker was indeed rash and negligent in his driving and because of the aforesaid fact, the accident in question had occurred. Consequently, the claimants were held entitled to compensation.
7. The learned Tribunal thereafter assessed the quantum of compensation on the basis of evidence led by the claimants. It was noticed that both the deceased Kuldeep Singh and Sarminder Singh were 31 years each and were engaged in agriculture. The plea taken by the claimants that both the aforesaid persons were also engaged in diary business was rejected inasmuch as the evidence led by the claimants was found not sufficient to prove the aforesaid fact. Consequently, it was taken that the monthly income of Kuldeep Singh and Sarminder Singh each was Rs. 2100/-. Their dependency was assessed at Rs. 1400/- each. A multiplier of 17 was applied. The compensation in this manner was assessed at Rs. 2,85,600/-. The claimants were also held entitled to compensation for loss of consortium and funeral charges. The aforesaid compensation was thus assessed at Rs. 2,95,000/- each in the two claim petitions.
8. With regard to the claim made by Malkiat Singh for the damage caused to the scooter, the learned Tribunal came to the conclusion that no evidence had been led to show that any damage had been caused to the scooter. It was further noticed that Registration Certificate of the scooter had not been produced. Consequently, the claim petition filed by Malkiat Singh was rejected, and he was held not entitled to any compensation.
9. The learned Tribunal absolved the Insurance Company of its liability to pay the compensation by noticing the fact that original driving licence produced by Mohinder Singh, driver was for Light Transport Vehicle and the same had been converted later on for Heavy Transport Vehicle. However, since the validity period of the aforesaid driving licence had not been proved, therefore, it was held that Insurance Company was not liable to pay the amount of compensation.
10. The claimants in all the three claim petitions have filed the present three appeals. They have prayed that compensation should be enhanced and also Insurance Company should be held liable to pay the compensation. In cross-objections filed by the owner of the vehicle, it has been prayed that the Insurance Company could not be absolved of its liability to pay the compensation.
11. I have heard the learned Counsel for the parties and with their assistance have also gone through the record of the case.
12. The facts are not in dispute. It has been found as a fact by the learned Tribunal that Mohinder Singh, the driver of the oil tanker was rash and negligent in his driving, and therefore, had caused the accident in question. The said finding is not shown to be erroneous in any manner. Consequently, the claimants are held entitled to compensation on account of the death of Kuldeep Singh as well as Sarminder Singh.
13. Now the question which arises for determination is to the amount of compensation which is payable to the claimants on account of the death of Kuldeep Singh and Sarminder Singh.
14. The learned Counsel appearing for the claimants in the aforesaid two appeals has argued that the aforesaid two persons were matriculates and besides cultivating the agriculture land were also engaged in dairy farming. On account of the aforesaid fact, the learned Counsel has argued that the income of Rs. 2100/- assessed by the Tribunal with regard to the aforesaid two persons was much on the lower side, and therefore, the compensation was liable to be enhanced.
15. I have duly considered the aforesaid contention of the learned Counsel for the claimants-appellants and have also gone through the evidence Vailable on the record.
16. It is clear that Kuldeep Singh and Sarminder Singh, at the time of their death, were engaged in the cultivation of the land. Kuldeep Singh and Sarminder Singh were cultivating the land of their fathers. Simply because the aforesaid deceased persons were matriculates, would not be relevant fact inasmuch as they were already engaged in the cultivation of the land. It is further clear that the evidence led by the claimants to show that the deceased were engaged in dairy business can also not be accepted. Only Pala Ram has appeared as a witness to prove the fact that he was buying milk from Kuldeep Singh deceased. Similarly Hari Chand has appeared as witness to state that he was buying milk from Sarminder Singh. However, merely on account of the statements of aforesaid two persons, it cannot be taken that Kuldeep Singh and Sarminder Singh were engaged in dairy business. Thus, it has to be held that at the time of the death, both the aforesaid persons were only agriculturist, and cultivating the land of their fathers.
17. The question which now arises for determination is the income of the deceased at the time of their death. The learned Tribunal has assessed the income at Rs. 2100/-. In my considered view, the aforesaid income is on the lower side. Even if, the income of Kuldeep Singh and Sarminder Singh is to be assessed as a daily labourer, still they could be expected to earn Rs. 100/- per day. In this manner, the income of the deceased is liable to be assessed at Rs. 3,000/- per month. The dependency of the aforesaid persons can be assessed at Rs. 2,000/- per month i.e. Rs. 24,000/- per year. The Tribunal has already applied a multiplier of 17. In this manner, the compensation payable in each case on account of the death of the aforesaid two persons would come to Rs. 4,08,000/-each. Rs. 10,000/- is awarded for loss of consortium and funeral expenses. The total compensation, therefore, in each case would come to Rs. 4,18,000/-.
18. As far as the claim made by Maikiat Singh with regard to damage suffered to his scooter is concerned, there is absolutely no evidence on the record to hold that any such damage had been suffered by scooter in the accident. No evidence has been produced to show that any such amount on repair of the scooter was spent by Malkiat Singh. His claim, has thus been rightly rejected by the Tribunal. I do not find any justification to take a different view. It may be noticed that Mohinder Singh has filed an application for additional evidence. By way of additional evidence, Malkiat Singh has sought to produce the Registration Certificate of the scooter. However, in my considered view, neither the aforesaid evidence is relevant nor the same can advance the claim of the appellant in any manner. Consequently, the aforesaid application is rejected.
19. The learned Counsel appearing for the claimants as well as the learned Counsel appearing for the owner have vehemently argued that the Insurance Company could not be absolved of its liability,. The learned Counsel have relied upon the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Limited v. Swaran Singh and Ors. . On the strength of the aforesaid judgment, the learned Counsel have maintained that Insurance Company was liable to pay the amount of compensation.
20. I have duly considered the aforesaid contention of the learned Counsel, in Swaran Singh’s case, the Hon’ble Apex Court has held as follows:
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regrading use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
21. In view of the aforesaid fact, it is apparent that a mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and had failed to exercise reasonable care at the time of employing the driver. No such evidence is forthcoming in the present claim petitions on behalf of the Insurance Company. Therefore, relying upon the law laid down by the Apex Court in Swaran Singh’s case, it has to be held that the Insurance Company is jointly and severally liable to pay the compensation to the claimants.
22. As a result of the aforesaid discussion, F.A.O. No. 5476 of 2002 is dismissed. However, F.A.O. No. 577 of 2002 and F.A.O. No. 578 of 2002 are allowed and it is held that the amount of Rs. 4,18,000/- alongwith interest, as awarded by the Tribunal, shall be payable jointly and severally by the owner, driver and the Insurance Company to the claimants. The cross-objections filed by the owners are disposed of as having been rendered in fructuous.
23. Before parting with this judgment, it is made clear that Insurance Company would be entitled to seek its remedies for recovery against the insured before a regular civil Court, in accordance with law.