NEW INDIA ASSURANCE COMPANY LTD Vs. MUNNI

LAWS(ALL)-2012-5-118

HIGH COURT OF ALLAHABAD

Decided on May 29,2012

NEW INDIA ASSURANCE COMPANY LTD,GANGA PRASAD SEWA SANSTHAN Appellant

VERSUS

STATE OF UTTAR PRADESH,MUNNI Respondents

JUDGEMENT

- (1.) Supplementary affidavit filed today is taken on record. Heard learned counsel for the appellant. This is an appeal by the Insurance Company. The appellant is insurer of Motorcycle, bearing registration No. U.P. 27M-9577. On 29.9.2010, when Sri Shyam Veer Singh was driving the aforesaid Motorcycle he dashed with another Motorcycle causing injuries to Sukhendra Pal Singh, who died on the spot. The accident is not disputed. Learned counsel for the appellant submitted that the Motorcycle, bearing registration No. U.P. 27M-9577 was driven by Sri Shyam Veer Singh, had a learning licence, which was effective on the date of accident. As per Rule 3 of the Central Motor Vehicles Rules, 1989, if the vehicle is being driven by the learner having learning licence one instructor must sit on the back seat possessing the valid licence. There is nothing on record to show that the person who was sitting alongwith Sri Shyam Veer Singh, was possessing the valid licence. He further submitted that the deceased was 20 years old unmarried and, therefore, deduction should be 1/2 inasmuch as the claimants are the parents only, in view of the decision of the Apex Court in the case of Smt. Saria Verma and others v. Delhi Transport Corporation and another, 2009 2 TAC 677.
(2.) We have considered the rival submissions. So far as the contention of learned counsel for the appellant that there was a breach of policy inasmuch as the person sitting behind Sri Shyam Veer Singh did not possess the driving licence is concerned, we do not find any substance in the argument. No such plea has been taken before the Tribunal. It is a settled principle of law that the burden lies upon the Insurance Company to establish that there was a breach of policy and the person concerned did not possess the valid driving licence. Such a plea, which is being taken for the first time before this Court, cannot be entertained inasmuch as there is no foundation of such plea in existence. So far as the second plea of the appellant is concerned, there is sub-stance. The Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another has held that in case where the deceased was unmarried and the claimants are parents, the deduction should be 50% for personal and living expenses. The deduction of 1/ 3rd by the Tribunal, appears to be unjustified. Since the issue involved is squarely covered by the decision of the Apex Court, referred hereinabove, we propose to modify the order without issuing notice to the respondents with the liberty to the respondents that in case if they are aggrieved by such modification, it will be open to them to move the recalling application. If the deduction is taken as 50%, the amount of compensation comes to Rs. 2,02,500/-. The order of the Tribunal is accordingly modified to this extent only. In the result, the appeal is allowed in part. The Registry is directed to remit the statutory amount to the concerned Tribunal within four weeks.;

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