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2006 DIGILAW 993 (MP)

National Insurance Co. Ltd. v. Kamla Bai

2006-08-21

DIPAK MISRA, R.S.JHA

body2006
ORDER Jha, -- 1. The insurer National Insurance Company Ltd. being aggrieved by the award dated 27.2.1998 passed by the Motor Accident Claims Tribunal, Mandla in MVC No. 8/93 has filed this appeal u/s 173 of the Motor Vehicles Act, 1988. 2. The only ground on which the appellant assails the award is that the deceased at the time of accident was travelling in a truck as a passenger and was therefore not covered by the policy as the truck was insured as a goods carrying vehicle and therefore, the policy issued by the insure appellant did not cover the risk or liability in respect of a fare paying passenger in such a truck. It is also submitted on behalf of the appellant that there is cogent and definite evidence on record to indicate that the deceased had paid fare for boarding the truck and therefore, the finding recorded by the Tribunal to the contrary is perverse and deserves to be set aside. 3. The claimants/respondents No.1 to 4 have filed a cross-objection claiming enhancement of compensation on the ground that the dependency determined by the Tribunal is contrary to law. 4. A perusal of the evidence of CW-2, Babulal Sahu who was travelling in the truck, it is apparent that all persons travelling in the truck had paid fare, while CW-3, Prabhu Dayal who was driving the vehicle has stated that no fare was charged from the deceased Puranlal but he has clearly admitted and clarified that passengers were being carried in the truck although it was a goods carrying vehicle. In the circumstances, we are of the considered opinion that passengers with or without fare were being carried in the truck which is a goods carrying vehicle and therefore there was a breach of the insurance policy. 5. In the circumstances, we are of the considered opinion that passengers with or without fare were being carried in the truck which is a goods carrying vehicle and therefore there was a breach of the insurance policy. 5. The apex Court in the case of New India Assurance Company Limited v. Asha Rani and others [2003 (1) BLJ 1 = (2003) 2 SCC 223 ] and National Insurance Company Limited v. Swaroop and others [ (2005) 11 SCC 419 ] has held that the liability of the Insurance Company does not extend to gratuitous passengers carried in goods vehicle in the circumstances we are of the considered opinion that the impugned award as far as it holds the insurer/appellant liable to indemnify the owner for the death of the deceased who was being carried in a goods vehicle and was neither the driver the conductor or a labourer, deserves to be and is hereby set aside. 6. The next issue which remains to be decided is the cross-objection filed by the claimants/respondents. From a perusal of paragraph 19 of the award, it is apparent that the Tribunal has determined the monthly income of the deceased as Rs. 2,000/- and has deducted 50% therefrom while determining his monthly contribution towards his family. In our considered opinion, deducting of 50% without any special reasons is not justified. The appropriate deductions towards the amount that the deceased would have spent upon himself is 1/3". Thus the yearly contribution of the deceased towards the family would come to Rs. 16,000/-. The Tribunal has determined the age of the deceased as 35 years and therefore the multiplier applicable to the case would be 17. Thus, the compensation under this head comes to Rs. 16,000x 17= Rs. 2,72,000/-. The Tribunal has awarded a sum of Rs. 15,000/- towards loss of consortium, loss of estate and funeral expenses which is justified and does not deserve to be interfered with. Thus, the total compensation would come to Rs. 2,87,000/-. The claimants would be entitled to interest @ 6% from the date of application on this amount. 7. In the facts and circumstances of the case, the cross-objection filed by the claimants is allowed to the extent indicated above and the appeal filed by the insurer is also allowed. Thus, the total compensation would come to Rs. 2,87,000/-. The claimants would be entitled to interest @ 6% from the date of application on this amount. 7. In the facts and circumstances of the case, the cross-objection filed by the claimants is allowed to the extent indicated above and the appeal filed by the insurer is also allowed. However, in view of the decision of the apex Court in the case of National Insurance Company Ltd. v. Kusum Rai and others [2006 (II) MPWN 129 = 2006 AIR SCW 1649] the National Insurance Company appellant shall pay the compensation to the claimants and shall thereafter be entitled to recover the same from the respondent No.5, the owner of the vehicle. The compensation along with interest shall be deposited before the Claims Tribunal within a period of three months from today. There shall be no order as to costs.