National Insurance Co. Ltd. v. Sarswatibai — 1991 DIGILAW 101 (MP)

JUDGMENT S.K. Dubey, J. 1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, the 'Act') by the appellant/insurer/National Insurance Company (for short, 'Insurance Company') against an award dated 9th January, 1990, passed by the Motor Accidents Claims Tribunal, Gwalior (for short, the 'Tribunal') in claim Case No. 13/1987, whereby on an application under Section 110-A of the Motor Vehicles Act, 1939 (for short, the 'Old Act') compensation of Rs. 32, 000/- has been awarded to claimants/respondents No. 1 to 6 for the death of Ramesh Sen arising out of and use of a motor vehicle-truck No. UTR 5105. Respondent No. 1 is the widow of deceased Ramesh Sen; respondent No. 2 is the mother of the deceased and respondents No. 3 to 6 are the sons and daughters of the deceased. 2. The Tribunal on evidence found that the accident occurred on 19.1.1987, when Ramesh Sen was going on the side of a road, he was struck by truck No. UTR 5105 on his back, as a consequence of which he fell down and received multiple injuries including two fractures in both legs. The deceased was taken to hospital, where he died on the next day. The claimants averred that the deceased was earning Rs. 25/- per day by doing the job of barber. The owner and driver of the vehicle, respondents No. 7 and 8, and the appellant took the defence that the deceased was travelling as a gratuitous passenger in the truck (No. UTR 5105); on the fateful day a truck No. CPG 4595 was going ahead which got suddenly stopped by applying the brakes; therefore, the truck No. UTR 5105, which was following truck CPG 4595, dashed against the rear portion of the truck going ahead and because of this collision the deceased received injuries. Thus, the appellant/Insurance Company took the defence under Section 96 (2)(i)(a) that as the deceased was travelling in the truck as a gratuitous passenger, the Insurance Company was not liable to pay any compensation or to indemnify the owner/insured. 3. Thus, the appellant/Insurance Company took the defence under Section 96 (2)(i)(a) that as the deceased was travelling in the truck as a gratuitous passenger, the Insurance Company was not liable to pay any compensation or to indemnify the owner/insured. 3. The Tribunal after recording of evidence held that the deceased was not travelling in the truck as a gratuitous passenger; he was dashed on his back when he was on the road; the first information report of the accident, though produced in the case, was neither legally proved nor was lodged by any eye-witness; neither the appellant/Insurance Company, nor the owner or the driver of the vehicle UTR 5105 examined any witness to prove their defence even after availing of a number of opportunities. Therefore, the Tribunal held that the accident occurred due to the rash and negligent act of the driver of the truck. On quantum of compensation, the Tribunal held that the income of the deceased was at the rate of Rs. 10/- per day. As the deceased was a young man of 30 years of age, after applying the multiplier of 16 years and deducting the deceased's own expenses at the rate of Rs. 100/- per month, the Tribunal awarded compensation of Rs. 38, 400/- but gave a deduction of lump sum of Rs. 6, 400/-. Thus, the compensation payable was awarded at Rs. 32, 000/- with 12% interest per annum from the date of the application till realisation. It is this award which has been challenged in appeal by the Insurance Company. 4. The claimants have also filed cross-objections under Order 41, Rule 22, CPC, for enhancement of the award of compensation. Today, before hearing of the appeal on merits, an application under Order 6, Rule 17, CPC, was filed by the claimants, wherein the claimants limited their claim to Rs. 50, 000/-. The application was allowed and theclaimants amended their cross-objections accordingly. 5. ShriB.N.Malhotra, Counsel for the appellant; Shri B.B. Shuklaand Shri R.D. Goyal, Counsel for the claimants, and Ku. Pratibha Tiwari, Counsel for respondents No. 7 and 8, were heard. Record perused. 6. 50, 000/-. The application was allowed and theclaimants amended their cross-objections accordingly. 5. ShriB.N.Malhotra, Counsel for the appellant; Shri B.B. Shuklaand Shri R.D. Goyal, Counsel for the claimants, and Ku. Pratibha Tiwari, Counsel for respondents No. 7 and 8, were heard. Record perused. 6. Coming to the appeal of the Insurance Company, the contention of the Counsel for the appellant is that a look to the first information report and the record of the criminal case shows that the deceased was travelling in the truck as a gratuitous passenger and it is the defence of the owner and driver of the truck also, but the Tribunal illegally and contrary to the first information report and the defence raised by the appellant, the owner and the driver of the vehicle, held that the deceased was not travelling in the truck as a gratuitous passenger. It was also contended that the appellant made all efforts and applied for issuance of summons from time to time to the eye-witness and other witnesses of the criminal case, but they did not appear and the summons were not served because their addresses were not complete; though, in the last, the Court issued summons at the risk of the appellant/Insurance Company, the summons could not be served; in the circumstances, no reasonable opportunity was afforded to the appellant to produce evidence to prove its defence. It was also contended that the owner/insured and the driver of the truck colluded with the claimants, as they did not appear in the witness-box; therefore, the case deserves to be remitted to the Tribunal for affording an opportunity to the appellant to produce evidence. 7. After giving my careful consideration to the contentions and submissions made by the appellant. I am of the opinion that both contentions have no merit for the reason that the findings arrived by the Tribunal are based on appreciation of the evidence adduced by the parties. The claimants examined Vidyaram as AW.3 who has specifically stated on oath that the deceased was going on the road, when he was dashed by the truck on his back and, as a consequence of that, he fell down and received multiple injuries. The claimants examined Vidyaram as AW.3 who has specifically stated on oath that the deceased was going on the road, when he was dashed by the truck on his back and, as a consequence of that, he fell down and received multiple injuries. Besides this, the nature of injuries on the body of the deceased, which is evident from the post-mortem report, is such, that it seems to be improbable that a person sitting in the truck will receive such multiple fractures and injuries on various parts of the body when the truck collides with the truck, which was stopped suddenly according to the appellant, owner and the driver. It has also not come in evidence that because of this collision not only Ramesh Sen, the deceased, but the driver, owner and Ors. also received injuries. In such circumstances, the defence raised by the Insurance Company, the owner and the driver seems to be a defence which was not probable. Thus, the plan of defence which was not proved and does not seem to be probable in the facts and circumstances of the case, was only taken just to avoid the liability of payment of compensation because of the rash and negligent act of the driver. 8. As regards the contention about reasonable opportunity to the appellant to produce evidence, as the witnesses were not served, suffice it to say that a number of opportunities were given to the appellant/Insurance Company, but the appellant every time, though applied for issuance of summons, did not furnish correct addresses of the witnesses and, ultimately, the Tribunal gave 3 opportunities to summon witnesses at the risk of the appellant, and when the witnesses did not appear and summons were not served, the right was closed on 11.22.1989; still the Tribunal granted another opportunity to produce the witnesses on 18.12.1989, and on that date the appellant produced one witness, who was examined; thereafter the right of the appellant to produce evidence was closed. Therefore, it cannot be said that the Tribunal committed any illegality and did not allow any reasonable opportunity to the appellant to adduce evidence by summoning or by producing the witnesses before the Tribunal. 9. Coming to the question of quantum, the cross-objections filed by the claimants limiting their claim to Rs. 50, 000/-, in my opinion, deserves to be allowed to the extent as indicated hereinbelow. 9. Coming to the question of quantum, the cross-objections filed by the claimants limiting their claim to Rs. 50, 000/-, in my opinion, deserves to be allowed to the extent as indicated hereinbelow. True, the Tribunal on evidence has arrived at the finding that the deceased's earning was Rs. 10/- per day, but the Tribunal erred in deducting as amount of Rs. 100/- per month as the deceased's own expenses, which, in the facts of the case, was not possible, as the deceased was having a large family, consisting of his wife, four minor children and mother, who depended on his meagre earning. In the circumstances, deduction of Rs. 100/- per month in the head of deceased's own expenses was not proper and, hence, that deserves to be reduced from Rs. 100/- to Rs. 50/- per month. Thus, the monthly dependency of the claimants comes to Rs. 250/-, which when multiplied by 12, comes to Rs. 3000/- per year. As the deceased was at the threshold of his career in his thirties, as held by this Court in case of State of MP. v. Ashadevi 1989 JLJ 541 , the multiplier of 16, which has been applied by the Tribunal also, seems to be justified. Thus, the compensation comes to Rs. 48, 000/- (Rs. 3, 000 x 16 = Rs. 48, 000). The deduction given by the Tribunal of Rs. 6, 400/- as lump sum was not correct, as when the multiplier is fixed and the compensation is arrived at, it take care of all the heads. In the circumstances, the cross-objections are allowed and the award of the Tribunal is modified, and the compensation is enhanced from Rs. 32, 000/- to Rs. 48, 000/- with interest at the rate of 12% per annum from the date of the application till payment. The appellant/Insurance Company is entitled to adjustment of the amount of compensation and also the amount of interest, if already paid or deposited as per the award of the Tribunal. The appellant/Insurance Company shall deposit the amount of compensation as modified by this Court with accrued interest within a period of six weeks from today, failing which the amount awarded shall carry interest at the rate of 15% per annum from the date of the application till payment of deposit. 10. In the result, the appeal fails and is dismissed with costs. Counsel's fee Rs. 10. In the result, the appeal fails and is dismissed with costs. Counsel's fee Rs. 500/- if already certified, which shall be payable to the claimants only. The Tribunal, while disbursing the amount, shall take care to safeguard interest of the minors and, as the compensation has been enhanced, the amount of deposit in the names of the minors shall also be enhanced. 11. Shri Malhotra prays for a certified copy of the judgment Office is directed to deliver him a certified copy on payment of the prescribed charges within 3 days. 12. The record of the case with a copy of this judgment be sent to the Tribunal immediately.