ORDER
P. Sathasivam, J.
1. Claimants in M.A.C.T.O.P.No.2074 of 1996 on the file of the Motor Accidents Claims Tribunal (IV Judge, Court of Small Causes) are the appellants in the above appeal. In respect of death of one G. Krishnamurthy in a motor vehicle accident which took place on 8/9.5.96 at 01.15 hours, wife, minor children and mother of the deceased have prayed for compensation of Rs.7,00,000. Second respondent therein insurance company filed counter statement disputing various averments made in the claim petition.
2. The tribunal, after considering the oral and documentary evidence and after holding that the accident was caused due to the negligence of the rider of the motor cycle has passed an award for Rs.3,22,200 with interest at 12% from the date of petition till the date of deposit. In view of the fact that the rider of the motorcycle was not having licence, the tribunal restricted the award only against the owner of the motorcycle viz. the first respondent herein.
3. Against that award, the claimants have preferred the present appeal seeking the liability on the insurance company as well as claiming higher compensation.
4. Heard learned counsel for the appellants as well as the contesting second respondent.
5. Since the appeal is only by the claimants, it is not necessary for us to consider the facts leading to negligence aspect.
6. Points for consideration in this appeal are:-
(i) Whether the second respondent-insurance company is also liable to pay the award amount?
(ii) Whether Ihe claimants are entitled to higher compensation as claimed?
7. With regard to the first contention, it is seen that the rider of the motorcycle viz., Vinayagamurthy was not having licence to drive the motorcycle, On the part of the Insurance Company, their officer one Daniel has been examined as RW1 and he has produced copy of the letters dated 4.3.99 and 7.3.99 as well as returned cover as Exs.R2 to R4. The insurance Company has also produced and marked a copy of the insurance policy Ex.R5. It is the case of the insurance company that inspite of their best efforts, the rider of the motorcycle did not produce the licence to drive the motorcycle and in such circumstances, according to them, they discharged their burden and they contented that the tribunal is fully justified in passing the award only against the owner of the motorcycle, the first respondent herein. It is also contented that on the basis of the complaint, the Traffic Police, after verification and examination, charge sheeted the rider of the motorcycle viz. Vinayagamurthy under Sec. 304A, IPC, Sec. 184, 134A and 134B, 177 and 158 of the Motor Vehicles Act for rash and negligent driving as well as for failure to produce valid driving licence.
8. It is true that the insurance company had sent notice calling upon the rider of the motorcycle for production of driving licence. However, a perusal of the impugned proceedings show that no steps have been taken to verify the records from the concerned authority viz., Regional Transport Authority to show that the rider of the motorcycle was having a valid licence or not. In the absence of any such effort by taking summons to the concerned authority, we are of the view ihat the Insurance Company failed to discharge their burden on this aspect. In this regard, the learned counsel for the appellants-claimants has relied on several decisions of this Court, other High Courts and Supreme Court.
9. In Narcinvav Kamal v. Alfredo Antonio Doe Martins, 1985 ACJ 397 the Supreme Court has held that the onus was on the Insurance Company to prove that the driver had no driving licence to escape liability. It has also been held that mere non produciion of the licence by the driver does not exonerate
the insurance company and it was held liable to indemnify the award. In Oriental Insurance Co. Ltd. v. Usha, 1996 ACJ 838, the Kerala High Court has held that merely because the driver of the offending vehicle did not possess a valid driving iicence, the Insurance Company cannot disown its liability to pay the amount awarded to the claimants. The same view has been reiterated in the following decisions:-
(i) United India Insurance Co. Ltd. v. Jaimy, 1998 ACJ 1318; (ii) Judgment in C.M.A. Nos.tOl to 124 of 1999 dated 21.1.2000 (P. Sathasivam, J.); (iii) Smt. Sham Kumar v. Kamal Singh, 2000 (1) TAC 129 (MP)-DB); (iv) Oriental Insurance Co. Lid., Regional Office, Madras v. Amudha, 2000 (1) TAC 163 (Mad.); (v) United India Insurance Co. Ltd. v. Balwant Singh, 2000 (2) TAC 116 (P & H)-DB); (vi) National Insurance Co. Ltd. v. Shashi Bala Gupta, 2000 (2) TAC 289 (All) (DB); (vii) National Insurance Company Ltd. Kakinada v. Hapu Seethamma, 2000 (2) TAC 361 (AP); and (viii) National Insurance Co. Ltd. v. N. Devadas, 2000 ACJ 925 (P. Sathasivam, J.)
10. It is clear from the above decisions that the burden is on the insurance company and it was failed to take proper and necessary steps to verify whether the offender has valid licence or not. In other words, the responsibility is on the insurance company to discharge its burden and prove that the driver of the vehicle in question was not having valid driving licence not only before the accident, but also at the time of the accident or he was debarred from holding a valid driving licence. In the light of the above legal position and in the absence of positive steps being taken by the insurance company, we are unable to accept the conclusion arrived by the Tribunal exonerating the Insurance company from its liability. We hold that the second respondent – insurance company is liable to pay the award amount and the contrary view taken by the Tribunal is liable to be set aside.
11. Coming to the quantum of compensation determined by the Tribunal, the mother of the deceased has been examined as PW1. She deposed that her son the deceased Krishnamurthy was doing painting contract at the time of the accident and was earning Rs.7500 per month. No doubt, except her oral evidence, the claimants have not produced any documentary evidence with regard to the income of the deceased. In the absence of any such evidence, the Tribunal, after holding that even a cooly would earn Rs.2500 per month, and after deducting a sum of Rs.800 per month towards his personal expenses fixed the multicand of Rs.1600 per month.
12. Though the learned counsel for the appellants has prayed for higher compensation under the head of pecuniary loss, in the absence of any acceptable evidence, we are unable to accept his contention and we are in agreement with the conclusion arrived by the Court below in holding that the deceased would contribute Rs.1600 per month to his family but for the accident.
13. Regarding the age of the deceased, the post mortem certificate which has been marked as Ex.Pl shows that the deceased was 29 years old. Here again, except Ex.P. 1 no other document has been filed to prove (he age of the deceased. Legal Heirship Certificate Ex.P.2 shows that the first claimant-wife of the deceased is aged 22 years at the time of (he accident. Taking note of the above aspects, the tribunal applied multiplier 16 to arrive the pecuniary loss to the family. As per second schedule to the Motor Vehicles Act, the deceased being 29 years old at the time of the accident, proper multiplier is 18. Accordingly, we fix a sum of Rs.3,45,600 towards the pecuniary loss (Rs.1600 x 12 x 18). Ex.P.2 legal heirship certificate shows that the first claimant was aged 22 years at the time of the accident. Taking note of the above aspect, we grant a sum of Rs.15,000 towards loss of consortium to the first claimant. Considering the age of the minor claimants 3 years and 6 years respectively, we grant a sum of Rs.IO,000 each towards loss of love and affection. We also grant another sum of Rs.5000 in favour of the 4th claimant-mother of the deceased. The Tribunal has granted Rs.5000 towards funeral expenses which we hereby confirm. Altogether, the compensation payable to the claimants is arrived at Rs.3,90,000.
14. The tribunal awarded interest at 12% per annum. In view of the decision of the Supreme Court in Smt. Kaushnuma Begum v. The New India Assurance Company Ltd. 2001 (1) Supreme 5, we, reduce, the rate of interest to 9% per annum.
15. Out of the award amount, the fourth claimant-mother of the deceased is given Rs.50,000. Minor claimants 2 and 3 each are entitled to a sum of Rs.1,00,000 and the balance of Rs. 1,40,600 is payable to the first claimant widow of the deceased. The share of the minors shall be invested in Indian Bank, High Court Extension Counter till they attain majority. The first claimant G. Nagendra Devi-mother and guardian of minor claimants 2 and 3 is permitted to withdraw the accrued interest once in six months directly from the bank.
16. Net result, the appeal is allowed in part to the extent mentioned above . No costs.
