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1990 DIGILAW 23 (GAU)

Abdus Shukur Choudhury v. Nagesh Chandra Bhattachajee

1990-02-02

B.L.HANSARIA

body1990
The only bread earner of the family, as Mintu was, met his end in a motor accident which took place on 27. 7. 74. Mintu was then aged about 21 years and was an employee of French Motor Works drawing a monthly salary of Rs. 200/-. A petition was filed by his father claiming a sum of Rs. 70,000/- as compensation. This was on 18. 1. 75. The learned Motor Accident Claims Tribunal however awarded a sura of Rs. 14,000/-only. Of this, Rs. 12,00./- was made payable by the owner of the vehicle and Rs. 2,000/- by the driver. 2. Feeling aggrieved the owner has preferred this appeal. A cross-objection has also been filed by the claimant relating to inadequacy of the compensation- The accident is not denied. The case of the insurer however is that Mintu was travelling in a truck as a gratuitous passenger because of which the insurer was not liable under the policy. Whether in case of gratuitous passenger the insurer is liable or not is a question which was recently examined by a Full Bench of five Judges of this Court in New India Assurance Co. Ltd. vs. Satyanath Hazarika, (1989j 2 GLR 63 (1989 (2) GLJ 1) and it was held that an insurer would he liable to indemnify the insured in respect of compensation awarded against him for the death or bodily injury to gratuitous passenger in all those cases which are pending before the Claims Tribunal or appellate authorities since 25th March, 1977. As this case was pending before the Claims Tribunal by 25th March/77 the case is covered by the decision of the Full Bench. It is contended by Shri Choudhury appearing for the insurer that in the aforesaid Full Bench case this Court was concerned with the gratuitous passenger travelling in a car, whereas the present is a case of such a passenger being carried in a truck. On principle I do not find any reason not to follow the Full Bench decision on this score. 3. In this connection Shri Bhuyan has also drawn my attention to the terms of the policy which has stated that the policy would not cover "use for the conveyance of passengers for hire or reward”, In the present it is even the case of the insurer that the deceased was being carried gratuitously. 3. In this connection Shri Bhuyan has also drawn my attention to the terms of the policy which has stated that the policy would not cover "use for the conveyance of passengers for hire or reward”, In the present it is even the case of the insurer that the deceased was being carried gratuitously. The aforesaid term of the policy therefore does not exclude the case of the present nature. 4. Shri Choudhury has referred to a recent decision of a learned Single Judge of this Court in Hindustan General Insurance Society Ltd. vs. Nilima Mihanta, (1990) 1 GLR(NOC) l3(1989 (1) GLJ 481). It has been observed therein that the aforesaid Full Bench case of this Court did not consider the question as to whether and to what extent the owner of the vehicle would be liable for picking up of passenger on any or for giving lift in prohibition of statutory rules. My attention has not been invited to any statutory rule prohibiting free lift to any person. Indeed, in some cases it may be social obligation to do so as was observed in Albert vs. Motor Insurer's Bureau, 1971 (2) AH England Report 1345, (a decision of House of Lords) to which decision my attention has been invited by Shri Bhuyan. 5. In view of the above, I am satisfied that in the present case the insurer was liable to pay just compensation for the death of Mintu. In so far as the quantum is concerned, it is contended by Shri Sarma appearing for the claimant that a sum of Rs. 14,000/-as awarded was on low side inasmuch as the deceased was aged about 21 years only at the time of his death and was drawing a sum of Rs. 200/- p.m which sum would have increased in course of time. Though this is correct that the father alone came forward claiming compensation and was aged about 69 years at the relevant time because of which he could look forward to live as per the standard age, for about 6 years more, and his loss of income cannot therefore be said to be more than Rs. 14,000/-; but then the deceased was maintaining his two younger brothers and was also paying their educational expenses. 14,000/-; but then the deceased was maintaining his two younger brothers and was also paying their educational expenses. I am therefore of the view that amount of compensation merits enhancement to take care of the loss to the two younger brothers and according to me, a sum of Rs. 20,000/-would be the just compensation in the present case. 6. In the result the appeal and cross objection are allowed by enhancing the compensation to a sum of Rs. 20,000/- which would be paid by the insurance company. 3o far as the rate of interest is concerned, it shall accrue @ 6% from the date of filing of the claim petition till the date of award (13.9.83) where after it shall run (5) 12% till payment. The amount in question shall be paid by the insurer within a period of 2 months from today.