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2006 DIGILAW 699 (RAJ)

New India Insurance Company Ltd. v. Mst. Sunder

2006-02-28

MANAK MOHTA

body2006
JUDGMENT 1. - The instant appeal has been preferred against the judgment and 1 award dated 21.4.1995 passed by Judge, Motor Accident Claims Tribunal, Jalore in Claim Case No. 28/1993 whereby the learned Tribunal has awarded compensation of Rs. 96,975/- in favour of claimant-respondents No. 1 to 5 and against non-claimants-respondents No. 6 and 7 and the Insurance 5 Company. 2. The facts of the case in nut-shell, are that on 18.3.1992 Laxman (deceased) along with Mst. Vadan Ben and one Sri Babu Bhai boarded a train from Ahmedabad and came to Raniwara. From Raniwara, they sat in a taxi jeep bearing No. RJ-24/T0035 for visiting Temple of Goddess 'Sunda Mata'. 10 As the jeep was over-crowded and there was no place for sitting inside, the jeep driver-Krishan kumar (respondent No.1) directed deceased Laxman to sit on the top of jeep. As per instruction of the driver of jeep, Laxman was compelled to sit on the top of jeep. As the railway crossing was closed on Raniwara-Malvada road, the jeep driver instead of waiting for the train to pass, turned the loaded jeep in 'kachha' and drove rashly and negligently at high speed passing the jeep beneath the bridge (pulia) near railway crossing, as a result of which Laxman who was sitting on the top of jeep facing towards backside of the jeep was hit by roof of the bridge, sustained head injury and died on the top of the jeep. It was stated in the petition that the police after thorough investigation, filed charge-sheet against the driver of the jeep with regard to this accident. It was stated by the claimants that due to untimely death, they suffered loss of income as well as love and affection. They were dependent on the income of the deceased. The deceased at the time of accident was 30 years of age and he was earning Rs. 3000/- per month. Thus, a sum of Rs. 11,63,000/- was claimed as compensation under different heads. 3. Smt. Sunder widow of deceased Laxman and her minor children through mother, filed a claim petition. At the time of accident the jeep was being driven by Krishan Lal (respondent No.6). The owner of non-claimant No.3- appellant New India Insurance Co. Limited. 4. A joint reply to the claim petition was submitted on behalf of driver and owner of the jeep. The factum of death of Laxman was admitted. At the time of accident the jeep was being driven by Krishan Lal (respondent No.6). The owner of non-claimant No.3- appellant New India Insurance Co. Limited. 4. A joint reply to the claim petition was submitted on behalf of driver and owner of the jeep. The factum of death of Laxman was admitted. However, it was stated that the deceased himself was negligent due to his carelessness, the incident happened, for that, driver of the jeep cannot be made responsible. In reply, it was further admitted that at the time of accident jeep No. 24T-0035 was being driven by Krishan Kumar (non-claimant No.1) and was insured with non-claimant No. 3 (Insurance Company). Lastly, it was prayed the claim petition may be dismissed. 5. A reply to the claim petition was also submitted by Insurance Company wherein it was admitted that the jeep in question was insured with it and the policy was in the name of its owner-Ramnik Lal for the period from 26.2.1991 to 25.2.1992. In reply, it was further stated that claim petition itself is time-barred and no satisfactory explanation has been given for late filing of claim petition. It was also stated that driver of the jeep allowed the deceased to sit on the top of the jeep that was a violation of terms and conditions of the Policy.. Thus, the Insurance Company is not responsible for any compensation. The driver and owner of the jeep are responsible. Ultimately it was prayed that the claim petition may be dismissed. 6. Thus, the Insurance Company is not responsible for any compensation. The driver and owner of the jeep are responsible. Ultimately it was prayed that the claim petition may be dismissed. 6. On the basis of the pleadings of the parties, following six issues were framed by the learned Tribunal : " 1- vk;k fnukad 18-3-92 dks okgu la[;k vkj0ts0 24 Vh&0035 ds pkyd vizkFkhZ la0 1 ds }kjk xQyr o ykijokgh iwoZd okgu pykus ls e`rd y{e.k HkkbZ dh nq?kZVuk esa e`R;q gqbZ\ 2- vk;k izkFkhZx.k e`rd y{e.k HkkbZ ds okjhlku gksus ls nq?kZVuk dks ysdj vizkFkhZx.k ls gtkZuk ds :0 1163000@& ikus ds vf/kdkjh gSa\ 3- vk;k okgu la0 vkj0ts0 24 Vh&0035 dk nq?kZVuk ds fnu vizkFkhZ la0 2 jftLVMZ ekfyd Fkk o mlds fgrkFkZ o fu;kstu esa vizkFkhZ la0 1 oS| ykbZlsUl fy, okgu pyk jgk Fkk\ 4- vk;k okgu pkyd us ikWfylh 'krksZa dk mYya?ku dj okgu pyk;k gS\ ;fn gka] rks bldk D;k izHkko gS\ 5- vk;k izkFkZuk i= e;kn ds ckgj is'k gksus ls izkFkhZx.k dksbZ lgk;rk ds ik= ugha gS\ 6- vuqrks"k\ " 7. From the claimants side, AW-1 Smt. Sunder, AW-2 Baga Ben and AW-3 Babu Bhai were examined and documentary evidence (Exhibit-1 to Exhibit-8) were produced. The non-claimants No.1 and 2 examined NAW-1 Krishan Kumar and NAW-2 Ramesh. No evidence was led on behalf of Insurance Company. 8. After hearing of the parties, the learned Tribunal decided issue No.1 in favour of the claimants and held that the accident occurred due to rash and negligent driving of Jeep No. RJ-24T10035 by its driver resulting in causing death of Laxman. Issues No. 3, 4 and 5 were also decided in favour of the claimants. Under issue No.2 with regard to quantum of compensation, the learned Tribunal determined the total compensation of Rs. 1,29,300/- but holding the deceased also for contributory negligence in causing accident upto the extent of 25%. Thus, after deducting the amount upto 25% from the determined amount, awarded compensation of Rs. 96,975/- in favour of the claimants and against the respondents plus interest @ 12% per annum from the date of filing of the claim application. The amount awarded under No Fault Liability made deductible. 9. Being aggrieved by the judgment and, award dated 21.4.95, non-claimant No.3 Insurance Company filed this appeal to set aside and quash the award. 96,975/- in favour of the claimants and against the respondents plus interest @ 12% per annum from the date of filing of the claim application. The amount awarded under No Fault Liability made deductible. 9. Being aggrieved by the judgment and, award dated 21.4.95, non-claimant No.3 Insurance Company filed this appeal to set aside and quash the award. The claimant-respondents also filed cross objection for enhancement of the compensation amount and quashing the finding with regard to contributory negligence on the part of the deceased. 10. I have heard the learned counsel for the parties and carefully gone through the record of the case. 11. During the course of argument, the learned counsel for the appellant submitted that the learned Tribunal without proper consideration gave erroneous finding on the issues and passed the award against the appellant. It was contended that driving of the jeep rashly and negligently by its driver is not proved. Further, as per the statements of AW-2 and AW-3, the deceased sat, on the top of the jeep. Thus, he himself was fully responsible for the mishap. He should have refused to sit on the top of the jeep but the learned Tribunal has not appreciated the evidence in right perspective. It was further contended that the deceased was cent-percent negligent but the learned Tribunal held him contributory negligent upto 25% only that is not sustainable, liable to be set aside. It was urged by the learned counsel that the accident occurred on 18.3.92 and the application has been filed on 15.3.1993. Thus, that was time barred. The grounds stated by the claimants for condoning the delay are not sufficient to condone the delay. The finding on the point of limitation deserves to be rejected. The learned counsel for the appellant also urged that the age and income of the deceased are not proved. On the sole statement of AW-1 Smt. Sunder, the learned Tribunal has assessed the loss of income and awarded exorbitant compensation. It wRs. also contended that multiplier of 20 has been applied, that is against the settled norms and principles. Thus, the finding is liable to be set aside. It was urged that the learned Tribunal has decided the issue against the appellant for want of evidence but the material was already on record that the jeep was over-crowded and the deceased sat on the top of the jeep. Thus, the finding is liable to be set aside. It was urged that the learned Tribunal has decided the issue against the appellant for want of evidence but the material was already on record that the jeep was over-crowded and the deceased sat on the top of the jeep. Thus, the violation of terms of the Policy is proved. In this way, the appellant cannot be made responsible for compensation, the appeal may be allowed. 12. On the other hand, the learned counsel for the respondent- claimants refuted the contentions and submitted that no appeal has been filed by the driver or owner of the jeep and the appellant-Insurance Company has no right to challenge the finding of the learned Tribunal. It was contended that the deceased was neither aware of this fact that jeep was going beneath the bridge nor driver gave any signal before passing, though the driver was having knowledge that the deceased was sitting on the top of the jeep. Thus, the accident occurred solely due to rash and negligent driving of the jeep by the jeep driver. The learned Tribunal itself under issue No. 1 held like this but in the end of the judgment without any specific issue wrongly held that the deceased was guilty upto 25% for causing accident, that is not sustainable. The respondent-claimants have challenged this finding by way of cross-objection in appeal. It was also contended that the age of the deceased is corroborated by post-mortem report (Ex.5), in which the age has been shown as 30 years and with regard to the income, PW-1 Smt. Sunder widow of the deceased has stated that her husband was earning Rs. 3,000/- per month by doing labour. It was submitted that deceased was having a big family and he was the only earning member in the family. The learned Tribunal has determined compensation on lower side, for that, the respondent has prayed for enhancement by way of cross- examination and that the contentions raised by the appellant are not tenable and the same may be rejected. 13. The learned counsel for the respondent-claimants in support of cross-objection submitted that AW-1 Smt. Sunder widow of the deceased has stated the facts with regard to the income of the deceased and there is no rebuttal from other side but the learned Tribunal without any basis, assessed the monthly income of the deceased Rs. 13. The learned counsel for the respondent-claimants in support of cross-objection submitted that AW-1 Smt. Sunder widow of the deceased has stated the facts with regard to the income of the deceased and there is no rebuttal from other side but the learned Tribunal without any basis, assessed the monthly income of the deceased Rs. 800/- per month and again after deducting ⅓rd towards his personal expenses assessed the yearly loss to the claimants Rs. 6400/- which is required to be modified amount of compensation be enhanced reasonably. The learned counsel for the claimant-respondents further submitted that the learned Tribunal under issue No.1 held that accident occurred due to rash and negligent driving of the jeep driver but contrary to that further held that the deceased was also responsible upto to the extent of 25% for causing accident. This is contrary finding and is not tenable. Further, the deceased sat on the top of the jeep as per the instruction of the driver. Thus, the deceased cannot be made responsible for contributory negligence. On these submissions it was prayed that the finding with regard to contributory negligence may be set aside and quashed and the income,of the deceased may be reassessed on the basis of the material on record, reasonable compensation may be awarded and cross-objection may be allowed. The appeal of the appellant may be dismissed. 14. I have considered the rival contentions of the learned counsel for the parties and perused the findings and conclusion on each issue. 15. It is revealed from the record that during trial, AW-2 Smt. Baga Ben has stated that alongwith herself, the deceased Laxman and one more person Bhaghi boarded the concerned jeep. At that time, the jeep was over crowded. As per direction of the jeep driver, Laxman sat on the top of the jeep. The jeep driver did not wait at the railway crossing and passed the jeep driving rashly and negligently at a high speed beneath the bridge and due to that Laxman was hit and died in accident. He has further stated that the driver of the jeep stopped the jeep at distance. AW-3 Babu Bhai stated that there was no space inside the jeep. The driver of the jeep directed Laxman to sit on the top of the jeep. He has further stated that he has seen the occurrence. He has further stated that the driver of the jeep stopped the jeep at distance. AW-3 Babu Bhai stated that there was no space inside the jeep. The driver of the jeep directed Laxman to sit on the top of the jeep. He has further stated that he has seen the occurrence. The jeep driver was driving the jeep rashly and negligently beneath the Railway Bridge, Laxman was hit by bridge jeep, driver stopped the jeep at a good distance. He has stated that accident occurred due to rash and negligent driving of the jeep. NAW-1 Krishan Kumar and NAW-2 Ramesh have stated that Laxman suffered head injury while he was stepping down from the jeep. NAW- 1 Krishan Kumar driver of the jeep admitted in his statement that there was blood inside the jeep. He has not explained how the blood was found inside the jeep. NAW-2 Ramesh has stated that he lodged report to the police Ex.A/1 also but from the perusal of the material, it is revealed that the police inspected the site, prepared the site-plan Ex.2, after investigation, the police found the report Ex.A/1 was not true and found the jeep driver guilty of causing accident and filed the charge-sheet against the driver of the jeep in the court. The statements of NAW-1 and NAW-2 did not inspire confidence. On the above discussion, the conclusion of the learned Tribunal on issue No.1 is correct and not suffering from any infirmity. The contentions of the learned counsel for the appellant are having no force. I have also considered the contentions of the respondents in the same reference with regard to contributory negligence of the deceased. The learned Tribunal while concluding issue No.1 held that the accident occurred solely due to rash and negligent driving of the jeep by respondent No.6 but at the time of conclusion of the judgment held that the deceased was also guilty for causing accident upto 25%. In my opinion, this finding is contrary to the finding on issue No.1 and that is not tenable. AW-2 Smt. Baga Ben and AW-3 Babu Bai have stated that on the advice of the jeep driver Laxman sat on the top of the jeep as there was no space inside the jeep for sitting. In my opinion, this finding is contrary to the finding on issue No.1 and that is not tenable. AW-2 Smt. Baga Ben and AW-3 Babu Bai have stated that on the advice of the jeep driver Laxman sat on the top of the jeep as there was no space inside the jeep for sitting. NAW-1 Krishan Kumar has simply denied but he has not stated that Laxman sat on the top of the jeep at his own will. Thus, the finding of the learned Tribunal that the deceased himself was negligent upto 25% deserves to be set aside. The contentions of the respondent-claimants are accepted. I have considered the contentions with regard to the limitation. The claimants are widow and minor children and are residents of a distant place. Looking to all the factors, the learned Tribunal has rightly condone the delay. The contentions are having no force, Likewise, considering the contention that the jeep was over-crowded and the driver of the jeep allowed the deceased to sit on the top of the jeep, thus, committed violation but that ground can not discharge the liability of the Insurance Company to make payment. 16. I have also considered the contentions of both the parties with regard to quantum of compensation. AW-1 Smt. Sunder widow of the deceased has stated in her statement that her husband was earning Rs. 3000/- per month and out of that earning, Rs. 2500/- he used to give her for running the family. AW-1 Smt. Sunder further stated that the deceased was the only earning member in the family and in the family there are minor children. They all were dependent on the income of the deceased. Thus, the deceased was running a big family. It was stated by AW-1 that her husband was earning through preparation of iron items. The learned Tribunal estimated his income as Rs. 800/- per month, that is on the lower side. It requires re-consideration. There is no rebuttal from other side. Looking to the job in which he was stated to be engaged to prepare iron box, buckets, items from iron-sheet etc., his monthly income can be assessed Rs. 1200/- per month. Out of that, after deducting ⅓rd towards personal expenses (Rs. 900x12) =10,800/- yearly, he would have paid to the claimants and due to untimely death, they suffered loss of income. 1200/- per month. Out of that, after deducting ⅓rd towards personal expenses (Rs. 900x12) =10,800/- yearly, he would have paid to the claimants and due to untimely death, they suffered loss of income. The learned Tribunal has .applied the multiplier of 20, in my opinion, that is on higher side. Looking to the age, the multiplier of 16 is reasonable. Thus, the compensation comes (Rs. 10,800x16) Rs. 1,72,800 and further the learned Tribunal awarded Rs. 1300 for jeep fair for carrying the dead-body to home district be maintained and the learned Tribunal has not awarded any amount for loss of consortium and love and affection. Looking to the facts that the claimants are widow and minor children of the deceased, they have suffered mental pain and agony, a total of Rs. 10,000/- is awarded in this respect. In this way, total compensation comes to Rs. 1,84,100/- (1,72,800+1300+10,000). Thus, the compensation is enhanced by Rs. 54,800/-. Further the claimants will be entitled to recover interest @ 7.5% per annum on the enhanced amount from the date of filing of the claim petition. The deduction of 25% on account of contributory negligence is set aside. The claimant-respondents will get total compensation amount from non-claimants. 17. In the result, the appeal of the appellant is dismissed and cross-objection is partly allowed. The impugned judgment and Award is modified and amount of compensation is enhanced to Rs. 1,84,100/-, thus enhanced by Rs. 54,800/-. Further the claimants will get interest @ 7.5% per annum on this amount from the date of filing of the claim petition in favour of the claimant-respondents and against the non-claimants i.e. driver, owner and appellant-Insurance Company. They are held jointly and severally responsible. They are further directed to pay or deposit amount after deducting the amounts paid or deposited by them earlier within two months. from the date of the judgment failing which the claimants will be entitled to recover the same. Rest of the judgment and Award is confirmed. Costs made easy.Insurance appeal dismissed - Award modified as above. *******