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Madhya Pradesh High Court · body

2005 DIGILAW 298 (MP)

New India Assurance Co. v. Ashok Kumar Dandotia

2005-02-24

A.K.GOHIL, S.S.JHA

body2005
JUDGMENT This appeal is filed by the Insurance Company praying therein that the Insurance Company is not liable to pay the compensation. Insurance Company has also challenged the quantum of compensation contending that the compensation is on higher side. On the contrary, respondents 3 to 7 claimants have filed cross-objection for enhancement of compensation. Counsel for the respondents contended that the Insurance Company is jointly and severally liable with the owner and driver of the vehicle to pay the compensation. Counsel for the Insurance Company submitted that deceased Ramsanehee was a gratuitous passenger in the truck which is a transport carrier, therefore, the Insurance Company is not liable to indemnify the insured. He placed reliance on the Apex Court decision in the case of National Insurance Co. Ltd. v. V. Chinnamma, reported in III (2004) ACC 1 (SC). It is submitted that since the deceased was travelling in a truck, therefore, Insurance Company is not liable to pay the compensation as the Motor Vehicles Act do not permit carrying passenger in a goods carrier. Counsel for the claimants has submitted that as per terms of the insurance policy the Insurance Company is liable to indemnify the insured. Counsel for the claimants invited attention of the Court to the insurance policy wherein additional premium of Rs. 45/- has been paid by the owner for labours who are involved in loading and unloading of the goods. Premium has been paid for covering IMT 17 which relates to legal liability of the Insurance Company to the persons employed in connection with operation and/or maintaining and/or loading and unloading in a motor vehicle. In the evidence, it is mentioned that the deceased was engaged on the vehicle for loading and unloading. As such, Insurance Company is liable to indemnify the owner and driver of the vehicle. Counsel for the Insurance Company has submitted that the owner has filed his written statement and in the written statement he has denied that the deceased was working as a labour for loading and unloading. Claimants witnesses Vimla (AW1) has categorically stated that the deceased was engaged in loading and unloading of goods from the truck. There is no effective cross examination on this point. On the contrary, owner of the vehicle has not entered the witness box to prove his contention. Claimants witnesses Vimla (AW1) has categorically stated that the deceased was engaged in loading and unloading of goods from the truck. There is no effective cross examination on this point. On the contrary, owner of the vehicle has not entered the witness box to prove his contention. Therefore, we hold that the Claims Tribunal has not committed any error in holding that the deceased was involved in loading and unloading goods in a goods carriage. In the circumstances, he cannot be termed as gratuitous passenger and the Insurance Company as per condition of the policy is liable to indemnify the owner and driver of the vehicle. Contention of the Insurance Company is not accepted that the Insurance Company is not liable to indemnify the owner and driver of the vehicle. As regards quantum of compensation is concerned, it is contended by the counsel for the Insurance Company that the income of the deceased has been calculated on higher side and compensation of Rs. 3,50,000/- is on the higher side. Deceased was 35 years of age and his income is determined at Rs. 2,225/- per month and instead of determining the dependency of the claimants at 1/3rd of the income of the deceased, the Claims Tribunal has determined the dependency at Rs. 20,028/- per year. Counsel for the appellant-Insurance Company submitted that the dependency is on the higher side. He submitted that the dependency could not have been more than Rs. 14,000/- per annum. On the other hand, counsel for the claimants submitted that the claimant has categorically deposed that income of the deceased was Rs.200-250/- per day and considering that evidence, compensation is on lower side. It is further contended by the counsel for the claimants that the Claims Tribunal has not appreciated the evidence in right perspective and he prayed for enhancement of compensation. We have perused the pleadings and evidence on record. Smt. Vimla (AW 1) has deposed that the deceased was earning Rs. 200-250/- per day from labour. In her cross-examination she has stated that for unloading one truck, Rs. 150/- were paid and her husband used to unload two trucks per day and Rs. 250/- were paid to him. She admitted that her husband alongwith four other labours used to unload the truck and the amount was distributed equally among all the labours. In her cross-examination she has stated that for unloading one truck, Rs. 150/- were paid and her husband used to unload two trucks per day and Rs. 250/- were paid to him. She admitted that her husband alongwith four other labours used to unload the truck and the amount was distributed equally among all the labours. It is also admitted that two trucks were unloaded in a day and from unloading two trucks and amount of Rs. 300/- received were distributed amongst four persons. Thus, income of her husband comes to Rs. 75/- per day. Considering the facts of the case, Claims Tribunal has considered the income of the deceased at Rs.75/- per day and determined the compensation. Even assuming that the income of the deceased was more than Rs. 75/- per day and treating it to be Rs. 100/- per day, then also amount of compensation of Rs. 3,50,000/awarded by the Claims Tribunal is just and proper because a labour does not get work every day and he gets work at least for 25 days in a month on an average basis. Therefore, even if monthly income of the deceased is taken at Rs. 2,500/- i.e. Rs. 30,000/- per annum, then also after deducting 1/3 amount which could have been spent by the deceased upon himself, dependency of the claimants comes to Rs. 20,000/- per annum and on applying the multiplier of 16, amount comes to Rs. 3,20,000/-. Hence, determination of compensation at Rs. 3,50,000/- by the Claims Tribunal is just and proper and no interference 1s warranted with the quantum of compensation. When award was passed by the Tribunal, it has awarded the interest as per Bank rate on the date of award. Therefore, no interference is warranted or the rate of interest. In the result, appeal as well as cross-objection are dismissed without any order as to costs.