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1998 DIGILAW 75 (MP)

PUSHPA DEVI v. NARENDRA SINGH BHADORIYA

1998-01-29

A.K.MATHUR, SHACHEENDRA DWIVEDI

body1998
( 1 ) BOTH these appeals arise out of the same incident and are, therefore, disposed of by this common order. ( 2 ) M. A. No. 350 of 1996 has been filed. by the claimants for enhancement of the compensation and M. A. No. 334 of 1996 has been filed by the owner of the truck. ( 3 ) BRIEF facts giving rise to both these appeals are that on 21. 6. 1993, at about 7. 30 a. m. , deceased Aasharam was coming from village Gormi to Porsa in truck No. MPH 6603 along with black gitti. The truck was being driven by driver Parbatsingh Kushwaha rashly and negligently. When the truck reached Bhajpura near the well of Ramcharan, it got overturned and aasharam who was sitting in that truck, was crushed to death. Prakash, another occupant also received injuries. It is alleged that the dead body of Aasharam and injured Prakash were taken out by a military truck. A report of the incident was lodged at Police Station Porsa by Shiv kumar, nephew of Aasharam and offences under sections 279, 337 and 304-A of the indian Penal Code were registered against the accused. This claim petition was filed by Pushpa Devi, widow of the deceased and Shiv Kumar, her adopted son. They claimed compensation of Rs. 4,50,000. ( 4 ) THE claim was contested by Narendra singh Bhadoriya, the owner of the vehicle. It was also contested by respondent No. 3, united India Insurance Co. Ltd. The driver did not appear to contest. Plea of the insurance company was that as per the insurance policy, the appellants are not entitled for compensation on account of the death of the deceased Aasharam who was a gratuitous passenger travelling along with the goods and it is not covered by the policy. Therefore, it denied its liability. ( 5 ) ON the basis of pleadings of the parties, two issues were framed by the tribunal. The Tribunal, after recording necessary evidence, came to the conclusion that the truck was driven rashly and negligently as a result of which it got overturned and caused the death of Aasharam by crushing him under the vehicle. ( 5 ) ON the basis of pleadings of the parties, two issues were framed by the tribunal. The Tribunal, after recording necessary evidence, came to the conclusion that the truck was driven rashly and negligently as a result of which it got overturned and caused the death of Aasharam by crushing him under the vehicle. ( 6 ) THE Tribunal also upheld the plea of the insurance company that it is not liable to pay compensation for the death of the passenger who was travelling in the goods vehicle and the same was not insured for passenger. Hence, the Tribunal totally exonerated the insurance company. ( 7 ) THE Tribunal awarded compensation of Rs. 1,50,000 to both the claimants for the death of Aasharam. 2/3rd of the amount was awarded to the widow of the deceased aasharam, Pushpa Devi and1/3rd wasawarded to Shiv Kumar, the adopted son of Aasharam. In addition to this, a sum of rs. 25,000 was also earlier awarded as no fault liability. Therefore, this amount was reduced from the total compensation of rs. 1,50,000 and only Rs. 1,25,000 was paid to the claimants. ( 8 ) AGGRIEVED by this award of the Tribunal, the present appeal (M. A. No. 350 of 1996) has been preferred by Pushpa devi, the widow and Shiv Kumar, the adopted son of Aasharam. M. A. No. 334 of 1996 has been preferred by the owner of the vehicle. ( 9 ) WE have heard learned counsel for the parties. Learned counsel for appellants pushpa Devi and Shiv Kumar submitted that no amount on account of loss of consortium and loss to the estate has been awarded by the Tribunal. Therefore, they claimed that this amount should also be awarded to them and the total claim should be increased proportionately. It was also argued that the view taken by the Tribunal that the insurance company was not liable to pay the compensation for the death of aasharam because the goods vehicle is not insured for carrying gratuitous passengers is not correct and in support thereof, learned counsel invited our attention to a full Bench decision of this court in case of Harishankar Tiwari v. Jagru, 1987 ACJ 1 (MP ). ( 10 ) WE have gone through the record and heard learned counsel for the parties. After going through the record, we are of the opinion that the amount of Rs. ( 10 ) WE have gone through the record and heard learned counsel for the parties. After going through the record, we are of the opinion that the amount of Rs. 1,50,000, awarded by the Claims Tribunal will take care of the consortium as well as loss to estate. The deceased was holding a small shop of blacksmith and his income has been assessed at Rs. 10,000 and'multiplier of 15 has been applied which is fairly on the higher side looking to the present situation that the deceased was said to be between 50 and 56 years of age. Though it is alleged that the age of the deceased was more than 70 years, but looking to the evidence, the learned Tribunal has assessed the age at 50 years and has applied the multiplier of 15. Therefore, we are of the opinion that no amount for loss of consortium or estate is required to be awarded as the compensation awarded is reasonably fair in the present case. ( 11 ) NOW coming to the question of liability of the insurance company, learned counsel referred to Harishankar Tiwari v. Jagru, 1987 ACJ 1 (MP), where the same issue was involved and their Lordships answered this question against the insurance company and took the view that if a gratuitous passenger is travelling with his goods in the goods vehicle, then proviso (ii) to clause (b) of section 95 (1) is attracted and a passenger carried for reward or by reason of or in pursuance of a contract of employment is entitled to be compensated by the insurance company. In the present case, as per the statement of pushpa Devi, PW 1, the deceased was coming with the truck of black gittis for construction of their house. As such, he was travelling as an owner of his goods. Identical facts were involved in the Full bench decision referred to above. Therefore, the view taken by the Claims tribunal exonerating the insurance company does not appear to be correct and it appears that the decision of the Full Bench in Harishankar Tiwari''s case, 1987 ACJ 1 (MP), was not brought to the notice of the Tribunal. Identical facts were involved in the Full bench decision referred to above. Therefore, the view taken by the Claims tribunal exonerating the insurance company does not appear to be correct and it appears that the decision of the Full Bench in Harishankar Tiwari''s case, 1987 ACJ 1 (MP), was not brought to the notice of the Tribunal. In this view of the matter, we are of the opinion that the view taken by the Claims Tribunal to the extent of exonerating the insurance company cannot be sustained and we set aside the finding of the Tribunal to this extent and hold that the insurance company is liable coextensively with the owner to the extent provided under the Act. ( 12 ) LEARNED counsel for the owner of the vehicle as well as for the insurance company submitted that neither the owner nor the insurance company can be held liable for the death of Aasharam as he was a gratuitous passenger travelling in the goods vehicle and, therefore, no compensation can be awarded. Suffice it to say that the Full Bench in the aforesaid decision has held that if the owner of the goods is travelling with his goods, then he cannot be said to be a gratuitous passenger and is entitled to be compensated. Therefore, the argument of the learned counsel that the deceased was a gratuitous passenger and no compensation can be awarded either by the owner of the vehicle or the insurance company is without any merit and the same is rejected. ( 13 ) LEARNED counsel next submitted that the age of the deceased was 70 years and the Tribunal has found his age as 50 years. This too is not correct. After reviewing the evidence, we are of the opinion that the assessment made by the Tribunal that the deceased cannot be more than 50 years of age appears to be justified. ( 14 ) THE learned counsel next submitted that there is no evidence to show that shiv Kumar, at any time, was adopted by deceased Aasharam, as no adoption deed has been produced by the claimants. Suffice it to say that Pushpa Devi, widow of the deceased Aasharam, has come in the witness-box and admitted that Shiv Kumar is her adopted son. This is enough to accept the factum of adoption. Suffice it to say that Pushpa Devi, widow of the deceased Aasharam, has come in the witness-box and admitted that Shiv Kumar is her adopted son. This is enough to accept the factum of adoption. There is no ground to disbelieve the evidence of Pushpa devi, widow of Aasharam. In this view of the matter, this contention of the learned counsel for the appellants is also not sustainable. 15. As a result of the above discussion, appeal of the appellants Pushpa Devi and shiv Kumar (M. A. No. 350 of 1996) is allowed to the extent only that the insurance company is equally liable to compensate the claimants for the death of deceased Aasharam. However, the appeal filed by the owner Narendra Singh Bhadoriya (M. A. No. 334 of 1996) has no merit and the same is dismissed. Orders accordingly. .