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2002 DIGILAW 115 (RAJ)

National Insurance Co. v. Babu Lal

2002-01-15

H.R.PANWAR

body2002
JUDGMENT 1. 1. This appeal is directed against the judgment and award dated 31st August, 2001 passed by the Motor Accident Claims Tribunal, Parbatsar (in short, referred to hereinafter as 'the Tribunal') whereby the Tribunal has awarded Rs. 2,10,000/- as compensation in favour of claimant-respondents No. 1 to 4 (in short, referred to hereinafter as 'the claimants') against appellant and respondent No. 2. 2. Briefly stated facts which are necessary for the decision of this appeal are that on 9.5.1997 deceased Birma Ram was crushed under the wheel of tractor No. RJS 8717 which was driven rashly and negligently by its driver (respondent No. 5) Dhanna Ram. He sustained severe injuries as he was run over by the said tractor. He succumbed to the injuries. At the relevant time, he was about 30 years of age and used to undertake marble flooring work by which used to earn Rs. 4,500/- per month. The claimants are legal representatives of the deceased Birma Ram. In support of the claim petition, P.W. 1 Smt. Kanvari, mother of the deceased and P.W. 2 Srawan Lal, eye-witness of the occurrence were examined; and, in rebuttal, the appellant examined N.A.W. 1 Inder Raj Singh. On the material available on record and on appreciation of the evidence, the Tribunal reached the conclusion that Birma Ram sustained injuries as he was run over by the tractor No. RJS 8717 which was driven rashly and negligently by its driver Dhanna Ram. While deciding the issue of quantum the Tribunal assessed compensation awardable to the legal representatives of the deceased at Rs. 2,10,000/-. 3. I have heard learned counsel for the appellant and perused the judgment impugned, pleadings of the parties and statements of the witnesses produced by the respective parties. 4. Learned counsel for the appellant contended that the post-mortem of the deceased was not conducted and, therefore, the death of Birma Ram is suspicious. He also contended that the compensation awarded by the Tribunal is too excessive and, therefore, it needs to be reduced. He further contended that the deceased fell down and was run over by the tractor and, therefore, the insurance company is not liable as the deceased was initially occupant of the said tractor. 5. On the pleadings of the appellant insurance company issue No. 4 was framed. In order to prove issue No. 4, N.A.W. 1 finder Raj Singh was examined. 5. On the pleadings of the appellant insurance company issue No. 4 was framed. In order to prove issue No. 4, N.A.W. 1 finder Raj Singh was examined. He stated that the said tractor was validly insured with the appellant insurance company for the period commencing from 11 3.1997 to 10.3.1998. He further stated that there is a condition in the policy of insurance Ex. 1A with regard to driving licence. He has placed on record charge-sheet, Ex. 2. The Tribunal reached the conclusion that the appellant insurer failed to establish breach of condition of the policy by the insured, that too, deliberately and wilfully. There is no evidence with regard to deliberate breach of the policy by the insured including the condition relating to the driving licence; and, accordingly, decided the said issue against the appellant insurance company. 6. I have gone through the statements of the witnesses. The claimants succeeded in establishing by evidence of A.W. 1 Kanvari and A.W. 2 Srawan Lal that on 9.5.1997 the said tractor was being driven rashly and negligently by its driver Dhanna Ram and the deceased Birma Ram was crushed under the wheel of the said tractor and he succumbed to the injuries. This accident was reported to the police and, after investigation, the police found respondent No. 5 Dhanna Ram rash and negligent in driving the said tractor which caused death of Birma Ram and. accordingly, challan was filed before the Addl. Chief Judi. Magistrate, Makrana for offences under Sections 279 and 304A of the Indian Penal Code. A.W. 2 Srawan Lal was also on the said tractor and witnessed the incident. The testimony of these witnesses is uncontroverted on the record and as such relying upon the direct evidence of the witnesses the Tribunal arrived at the finding that Birma Ram was run over by the said tractor which was being driven rashly and negligently by its driver Dhanna Ram. In my considered opinion, the claimants have succeeded in establishing the issue No. 1 by cogent evidence. I find no error in the conclusion arrived at by the Tribunal on this issue of negligency. 7. So far as the quantum of compensation is concerned, at the relevant time the deceased was a young person of about 30 years of age. In my considered opinion, the claimants have succeeded in establishing the issue No. 1 by cogent evidence. I find no error in the conclusion arrived at by the Tribunal on this issue of negligency. 7. So far as the quantum of compensation is concerned, at the relevant time the deceased was a young person of about 30 years of age. Claimant-respondents No. 1 to 3 are the son and daughters of the deceased and respondent No. 4 is his mother. They are the legal representatives of the deceased and were wholly dependent upon him. This fact is established by the testimony of A.W. 1 Kanvari. It is also established that at the relevant time the deceased used to undertake marble flooring work and his monthly income was Rs. 4,500/-. However, the Tribunal has taken his monthly income at Rs. 1,500/- and determined the dependency accordingly. There is no evidence on record contrary to it. The testimony of the claimants' witnesses remained uncontroverted. The Tribunal, therefore, determined the dependency at Rs. 1,000/- per month. There are as many as 4 dependents on the deceased and, therefore, the dependency of Rs. 12,000/- per annum cannot be said to be excessive nor the multiplier of 15 can be said to be on the higher side. On the contrary, it is on the lower side. It is settled law that in appeal the quantum of compensation is interfered only if the compensation awarded is too low or too excessive, as the case may be. Obviously, in the instant case, the compensation awarded by the Tribunal cannot be said to be too excessive. On the contrary, it is on the lower side. So far as the finding on issue No. 4 is concerned, the Tribunal has recorded well-reasoned finding. I have gone through the statements of N.A.W. 1 Inder Raj Singh examined by the appellant. Of course, this witness has said that the tractor was insured for agricultural purposes; but, it is nowhere mentioned in the policy Ex. 1A. This fact has been admitted by the witness that there is no mention in the policy of insurance that the use of the vehicle is confined to agriculture only. Of course, this witness has said that the tractor was insured for agricultural purposes; but, it is nowhere mentioned in the policy Ex. 1A. This fact has been admitted by the witness that there is no mention in the policy of insurance that the use of the vehicle is confined to agriculture only. In Sohan Lal Passi v. Sesh Reddy, 1996 (5) S.C.C. 21 , the Hon'ble Supreme Court held as under : "Expression 'breach' occurring in Section 96(2)(b), corresponding Section 149(2) of the Motor Vehicles Act, 1988, means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful." 8. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Others, (1987) 2 S.C.C. 654 , the Hon'ble Supreme Court held that exclusion clause has to be read down in order that it is not at par with the main purpose of the provision enacted for the protection of the victims of the accident so that promissory is exculpated when he does everything in his power to keep the promise. Thus in the instant case, neither there is a pleading nor there is a proof that the insured wilfully faulted or infringed any of the conditions of the policy. Therefore, in my considered view, the finding arrived at by the learned Tribunal on issue No. 4 also cannot be said to be erroneous. I find no error in the finding of the Tribunal on issue No. 4. 9. In this view of the matter, there is no merit in this appeal and, accordingly, it is dismissed summarily.Appeal dismissed. *******