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2006 DIGILAW 927 (MP)

Laxmandas v. Raju Thakur

2006-07-29

A.K.GOHIL, SUBHASH SAMVATSAR

body2006
JUDGMENT Gohil, J. -- 1. This is the claimants appeal under section 173 of Motor Vehicles Act, 1988 against the award dated 5.2.2000 passed by IV Motor Accident Claims Tribunal in Claim Case No. 55/99. In this appeal claimants have prayed for enhancement of compensation as well as setting aside the finding of exoneration of the Insurance Company from its liability on the ground that the driver was not having valid driving licence. 2. Brief facts of the case are that the deceased Lakhandas aged about 20 years is educated upto 10th Class and he was engaged as agricultural labour. On 29.3.1999, he was working on the tractor of respondent No.2 Veersingh and was going for agricultural work. He was sitting at the side of the driver of the tractor No. MP 04- LA -1807. A crusher was also attached with the tractor. One Raju Thakur was driving the said tractor. It is stated that the driver of the tractor was driving the tractor rashly and negligently and because of that he fell down from the tractor. He sustained injuries and ultimately died. Report of the incident was lodged to the police station and thereafter claimants those who are the parents father and mother of the deceased have filed petition for compensation. Tribunal found that the accident took place because of the rash and negligent driving of the driver of the tractor and because of that negligence the deceased died. The claimants are entitled for compensation. It was disputed on behalf of the Insurance Company that the Insurance Company is not liable on two grounds: firstly that as per the Act liability only driver was allowed to drive the tractor and for the other person there is no liability of the Insurance Company of the tractor, and secondly the driver was having only learning licence and he was not having licence to drive the tractor. Tribunal on placing reliance on the Single Bench decision in the case of National Insurance Co. v. Rainiki Bai [ 1998 (I) MPJR 79 ] found that under the Act liability on the principle of Workmen Compensation Act, the Insurance Company is liable but held that since the driver was not having driving licence, exonerated the Insurance Company from its liability and held the owner and driver liable for payment of compensation. v. Rainiki Bai [ 1998 (I) MPJR 79 ] found that under the Act liability on the principle of Workmen Compensation Act, the Insurance Company is liable but held that since the driver was not having driving licence, exonerated the Insurance Company from its liability and held the owner and driver liable for payment of compensation. Tribunal also assessed the total income of the deceased as Rs.1,200/- per month and assessed the dependency as Rs.300/- per month and applied the multiplier of 16 and awarded compensation of Rs.64,600/-, against which the claimants have filed this appeal. 3. We have heard the learned counsel for the appellant and perused the evidence on record. Shri Praveen Newaskar, learned counsel for the appellant submitted that in view of the decision in the case of National Insurance Company v. Swarna Singh [ 2005 (1) JLJ 85 = (2004) 3 SCC 297 ] the Insurance Company can pay the amount to the claimant and recover the same from the owner of the vehicle and submitted that the Tribunal has not properly assessed the compensation. As per schedule prescribed under section 163A of the Motor Vehicles Act the notional income has been fixed as Rs.15,000/- per annum. Applying that principle if the income of the deceased is considered as Rs.15,000/- per annum, the dependency would come to Rs.10,000/- per annum and on the age of the mother, which is around 50 years, the multiplier of 11 would be applicable and in that case the claimant would be entitled for more compensation. 4. In reply Shri R.V. Sharma, Advocate appearing for the Insurance Company supported the award and submitted that the Tribunal has rightly exonerated the Insurance Company from its liability and further submitted that under Order 41 Rule 22 and 33 CPC the Insurance Company without filing the cross objection can challenge the finding. His submission is that as per the policy only one driver was permitted on the tractor and no other passenger or labour was permitted to travel. Therefore, on this ground also Insurance Company is not liable and Tribunal has rightly exonerated the Insurance Company. 5. His submission is that as per the policy only one driver was permitted on the tractor and no other passenger or labour was permitted to travel. Therefore, on this ground also Insurance Company is not liable and Tribunal has rightly exonerated the Insurance Company. 5. Shri Anand Bharadwaj, learned counsel appearing for the driver has submitted that on the basis of the principle applied in the case of Swarnsingh (supra) the amount should be paid by the Insurance Company first and thereafter the Insurance Company may recover it from the owner of the vehicle and driver is not liable for the amount. 6. After hearing the learned counsel for the parties we have considered the rival contentions submitted by the parties. There is no dispute that as per the policy the premium was only paid for driver of the tractor and even no labour was allowed to travel on tractor and the Insurance Company is not liable for liability of the labour also and in the decision of this High Court in the case of National Insurance Company v. Jagdish and others [2004 (I) TAC 165 (M.P.)] it has been held that the tractor driven in violation of condition of policy though the Insurance Company is not liable but can indemnify and recover the amount from the owner of the vehicle. 7. Admittedly, in this case the vehicle was insured for, agricultural purposes and tractor was driven in violation of the conditions of policy. It has come in the evidence that the deceased was traveling on the tractor may be for agricultural purposes but his liability is not covered under the policy. Therefore, the Insurance Company cannot be held to be liable to pay compensation as the risk is not covered under the policy. When the premium was paid to cover the risk of the driver only, the risk of other passengers or any of the labourer/worker traveling on the tractor cannot be held to be covered under the policy and the Insurance Company cannot be held to be liable. Even if the driver was having learning licence and was not having regular licence as per the decision of Swarna Singh (supra) and in case of breach of policy as per Jagdish (supra), it is the Insurance Company, who is liable to pay the amount of compensation and thereafter to recover the same from the owner of the vehicle. 8. Even if the driver was having learning licence and was not having regular licence as per the decision of Swarna Singh (supra) and in case of breach of policy as per Jagdish (supra), it is the Insurance Company, who is liable to pay the amount of compensation and thereafter to recover the same from the owner of the vehicle. 8. So far as the amount of compensation is concerned, it is true that the Tribunal has not properly assessed the amount of compensation. Tribunal has considered the provisions of Schedule II prescribed under section 163A of the Motor Vehicles Act, but even then assessed the income of the deceased as Rs.1,200/- per month, whereas the same should be Rs.15,000/- per annum. Only 1/3 amount towards the personal expenses can be deducted. Therefore, the amount of dependency would come to Rs.10,000/- per year. There cannot be further deduction on this hypothetical consideration that in future he would be married and would have children. Therefore, we assess the dependency of the claimants as Rs.10,000/- per annum. There is no dispute about the age of the mother, which is 50 on which the multiplier of 11 would be applicable. We apply the multiplier of 11 and assess the amount of compensation as Rs. 10,000/- x 11 = Rs. 1,10,000/-. On this amount further sum of Rs.15,000/- is added towards various heads such as loss of consortium, loss of love and affection, loss of estate, funeral expenses etc. Thus the claimants are entitled for compensation of Rs. 1,25,000/-. The enhanced amount shall carry interest @ 6% per annum from the date of filing of this appeal. As has been held above, it is directed that Insurance Company shall pay the amount to the claimants and thereafter shall have the liberty to recover the same from the owner of the vehicle. 9. Cnsequently this appeal is allowed and the amount of compensation is enhanced from Rs. 64,600/- to Rs.1,25,000/- (Rupees one lac twenty five thousand). Counsel fee Rs.500/- if certified.