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Madhya Pradesh High Court · body

2007 DIGILAW 1206 (MP)

KAPSI YADAV v. PRADEEP ALIAS BABLU

2007-11-21

ARUN MISHRA, S.A.NAQVI

body2007
Judgment ( 1. ) THE appeal has been filed by the claimants being aggrieved by impugned award exonerating the insurer awarding sum of Rs. 1,36,334/-saddling the liability upon the financier/state Bank of Indore, apart from driver and owner of the vehicle. The claimants have come in the appeal for enhancement of compensation whereas the State Bank of Indore has preferred cross-objection in respect of saddling the liability upon it as per award passed by the Tribunal. ( 2. ) THE claimants submitted that deceased Ramkaran was travelling in the tractor trolley, driven by respondent No. 1 Pradeep @ Bablu, owned by respondent No. 2 Santosh Kumar Tiwari, insured with respondent No. 4 the new India Assurance Co. Ltd. and financed by respondent No. 3 State Bank of indore. The tractor was driven in rash and negligent manner due to that ramkaran (aged about 35 years) fell down from the tractor trolley and sustained injuries and succumbed to them. Compensation of Rs. 7,00,000/-was claimed. ( 3. ) THE owner and driver of the tractor trolley denied the factum of the accident, deceased boarded the tractor trolley while he in was badly drunken condition and was trying to jump from the trolley again and again. Ultimately, he jumped from the trolley and sustained injuries and succumbed to them. Deceased was not booking agent for sending the bus for religious travels. The claimants were not dependent on the earning of the deceased. The insurer contended that vehicle was not insured on the date of accident. The State Bank of Indore did not file any reply, it remained ex parte. ( 4. ) THE Tribunal has found that accident was caused due to rash and negligent driving by Pradeep due to that Ramkaran fell down, sustained injuries and died. Vehicle was not insured on the date of accident. Liability has been fastened to make the payment of compensation upon the driver, owner and state Bank of Indore. Consequently, the appeal has been preferred. ( 5. ) SHRI Alok Hoonka, learned Counsel appearing on behalf of the appellants has submitted that inadequate compensation has been awarded. Deceased used to earn Rs. 20,000/- per month and he was booking agent for the purpose of religious tours, thus, the compensation awarded by the Tribunal is inadequate it be enhanced. ( 6. ) SHRI Adilusmani appearing on behalf of the respondent Nos. Deceased used to earn Rs. 20,000/- per month and he was booking agent for the purpose of religious tours, thus, the compensation awarded by the Tribunal is inadequate it be enhanced. ( 6. ) SHRI Adilusmani appearing on behalf of the respondent Nos. 1 and 2 the driver and owner has submitted that deceased was himself negligent so no case for enhancement of compensation is made out in this appeal. ( 7. ) SHRI Praveen Chaturvedi appearing on behalf of the State Bank of indore contended that in view of the definition of the owner as per Section 2 (30) of the Motor Vehicles Act, 1988, Financier could not be saddled with the liability. Vehicle was in possession and control of the owner Santosh Kumar tiwari, thus, State Bank of Indore be exonerated. ( 8. ) SHRI Nitin Gupta appearing on behalf of the insurer has submitted that vehicle was not insured on the date of accident. The insurer has been rightly exonerated. ( 9. ) THE question for consideration in the appeal is about quantum of compensation to be awarded due to death of Ramkaran (aged about 35 years) the evidence discloses that deceased was booking agent and used to earn rs. 20,000/- per month but no document in that regard has been furnished, in the cross-examination it was suggested that the deceased used to work as cleaner in the bus. It would be proper to assess the income of the deceased in the facts and circumstances at Rs. 3000/- per month, annual income comes to Rs. 36,000/ -. After making l/3rd deduction towards self expenditure, which amount deceased would have spent on himself had he been alive, the annual loss of dependency comes to Rs. 24,000/- multiplier of 17 is applicable, considering the age of the deceased years. Consequently, the compensation on account of loss of dependency comes to Rs. 24,000/- x 17 = 4,08,000/ -. Apart from that, we award a sum of Rs. 40,000/- under the customary heads such as loss of estate, loss of expectancy of life and funeral expenses inclusive of a sum of Rs. 10,000/-awarded to the widow of the deceased on account of loss of consortium. Thus, the total compensation comes to Rs. 4,48,000/-(Rupees Four lacs forty eight thousand only ). 40,000/- under the customary heads such as loss of estate, loss of expectancy of life and funeral expenses inclusive of a sum of Rs. 10,000/-awarded to the widow of the deceased on account of loss of consortium. Thus, the total compensation comes to Rs. 4,48,000/-(Rupees Four lacs forty eight thousand only ). The compensation enhanced by this Court shall carry interest at the rate of 7% per annum from the date of filing of claim petition till realization. ( 10. ) COMING to the question of cross-objection preferred by the State bank of Indore, it admitted that the vehicle was financed by the State Bank of indore, as such the liability could not be fastened upon the Financier. In view of the provision contended under Section 2 (30) of the Motor Vehicle Act "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase, agreement, or an agreement of lease or an agreement of hypothecation, the owner is the person in possession of the vehicle under the agreement. The person in possession under the agreement was Santosh Kumar Tiwari. He was controlling the vehicle and was in possession thus in view of the provision the Financier Company could not be said to be liable to make the payment of compensation. Thus, we set aside the finding as to fastening of the liability upon State Bank of Indore. ( 11. ) VEHICLE was not insured that finding has not been assailed. We affirm the finding the Tribunal that insurer was not liable to make the payment of compensation. ( 12. ) RESULTANTLY, we allow the appeal. The compensation of rs. 4,48,000/- (Rupees Four lacs forty eight thousand only) is awarded. The compensation enhanced by this Court shall carry interest at the rate of 1% per annum from the date of filing of claim petition till realization. ( 13. ) THE State Bank of Indore is not liable to make the payment of compensation and not the insurer. The respondent Nos. 1 and 2, i. e. , driver and owner of the vehicle are jointly and severally liable to make the payment of compensation. No order as to costs.