- (1.) HEARD Sri Prabhat Pande, counsel for the appellant. This is an appeal filed by the Insurer.
(2.) BY the present A. O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 18-5-2007 passed by the Motor Accident Claims Tribunal/ District Judge, Uttarkashi in Motor Ac cident Claim Case No. 41 of 2006 Raj Kumar Arora and Ors. Vs. National Insur ance Co. Ltd. , whereby the claimant has been awarded a sum of Rs. 1,52,000/-towards compensation. Briefly stated, a claim petition was filed by the claimant/respondents being Motor Accident Claim Case No. 41 of 2006 Raj Kumar Arora and Ors. Vs. National Insurance Co. Ltd. claiming a sum of Rs. 9,95,000/- towards compen sation. According to the claimants, on 21-8-2005 at about 7. 00, Smt. Asha Arora (hereinafter referred to as the de ceased) was going to Dhontari from Main Market Uttarkashi by Private Car No. U. A. 07j/8326, as soon as she reached near Kutti Bench due to rash and negligent driving of the said car, it became disbalanced and caused acci dent. In this accident, the deceased re ceived fatal injuries and died, when she was taken to the hospital. At the time of accident, the deceased was 50 years of age and was earning a sum of Rs. 5,000/- from the business of clothes by the name and style of Asha Clothe Em porium. She is survived by her three chil dren Raj Kumar Arora, Km. Divya Arora (minor) and Km. Kirti Arora (minor ).
(3.) INSURER has contested the claim by filing a written statement stating therein that the deceased was herself the owner of the Car in question, therefore, the INSURER is not liable to indemnify the award. It has further been stated that the accident took place due to own negli gence of the deceased. It has further been stated that the INSURER is liable to pay compensation only to the 3rd party and not to the owner of the Car in ques tion. It has further been stated that at the time of accident, the driver of the Car in question was (not) holding valid driving licence and Car in question was being driven unauthorisedly. It has fur ther been stated that at the time of ac cident, the Vehicle in question was not carrying valid papers and the car in ques tion was being driven in violation of the terms and conditions of the policy and the permit. Further it has been started that the income and age of the deceased has wrongly been mentioned. On the pleadings of the parties, the claims tribunal has framed follow ing issues : 8. On behalf of the claimants, Raj Kumar Arora has been examined as P. W. I. Towards the documentary evi dence, claimants have filed per list 4 Ga First Information Report Paper No. 7 Ga, copy of the Insurance Cover Note Paper No. 6ga/l to 6ga/2, copy of the Registration Certificate Paper No. 7 Ga, Copy of the Panchayatnama Paper No. 8ga/l to 8ga/2, copy of the Post Mortem Report Paper No. 9ga/l to 9ga/ 2, copy of the Final Report Paper No. 10 Ga, copy of the Graduation Certifi cate Paper No. 11 Ga and per list 26 Ga copy of the driving licence Paper No. 27 Ga. 9. While deciding the Issue as to whether on 21-8-2005 at about 7. 00 p. m. when Smt. Asha Arora was going to Dhauntari from Main Bazar, Uttarkashi by Maruti Car No. U. A. 7/-J-8326, due to rash and negligent driving of the driver of the said Maruti Car an accident took place near Kutti Bend, in which Smt. Asha Arora received griev ous injuries and died in the Hospital, claims tribunal has relied upon the state ment of P. W. 1 - Raj Kumar Arora, who has narrated to entire story and copy of the First Information Report. After rely ing upon the aforesaid documents, the claims tribunal has recorded a finding that due to rash and negligent driving of the driver of the said Car, accident took place in which the deceased received grievous injuries and died in the District Hospital, Uttarkashi during treatment. 10. While deciding the issue as to whether the Car in question was validly insured with the National Insurance Company and further the driver of Car in question was not holding valid driv ing licence, claims tribunal has relied upon the Photostat copy of the driving licence Paper No. 27 Ga/1, which shows that the same was valid and effective at the time of accident and was renewed upon 29-9-2006. Further the claims tri bunal has relied upon the Insurance Cover Note Paper No. 6ga/1-to 6ga/2, which shows that the same was valid for the period from 8-2-2005 to/-2-2006 and the accident took place on 21-8- 2005. Relying upon the aforesaid docu ments, the claims tribunal has recorded a finding that at the time of accident the vehicle in question was validly insured and the driver of the vehicle in question was holding a valid driving licence and at the time of accident, Smt. Asha Arora was not driving the car herself. This issue has been decided in favour of the claimant and against the Insurer. 11. While deciding the issue with re gard to quantum, the claims tribunal has assessed the income of the deceased as Rs. 15,000/- per annum. Thereafter l/3rd of the personal expenses has been deducted from the said amount and then, the annual dependency has been worked out to Rs. 10. 000/ -. The claims tribunal has assessed the age of the de ceased as 50 years after relying upon the Post Mortem Report and according to the age of the deceased, multiplier of 13 has been selected. Multiplying the annual dependency with 13, the amount of compensation has been worked out to Rs. 1,30,000/ -. Apart from that the claims tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 20,000/- for love and affection and for physical and mental agony. Thus, the claims tribunal has awarded a total sum of Rs. 1,52,000/- towards compensation along with interest @ 6% per annum to be payable by the appellant. 12. Counsel for the appellant has submitted that the appellant is not liable to pay any compensation as per contract in the shape of Insurance Policy and can never be held liable to pay any amount as the Insured herself has died in the accident. 13. Counsel for the appellant has referred Oriental Insurance Co. Ltd. Vs. Jhumma Saha and others 2007 (2) T. A. C. 12 (S. C.); Dhanraj Vs. New In dia Assurance Co. Ltd. and another III (2004) ACC 300 (SC), Oriental Insur ance Co. Ltd. Vs. Naresh Kumar Agarwal and another III (2007) ACC 769 and United India Insurance Co. Ltd. Vs. Odeti Mallu Bai and others I (1996) ACC 502 (DB ). In all the above said cases, the owner himself was driving the vehi cle in question and died in the accident while he was driving the vehicle in ques tion. 14. In the case of Dhanraj us. New India Assurance Co. Ltd. and another III (2004) ACC 300 (SC), Apex Court has observed as under : "6. Thus, an insurance policy cov ered the liability incurred by the in sured in respect of or bodily injury to any person (including an owner of the goods or his authorized repre sentative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.;