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2007 DIGILAW 250 (MP)

New India Assurance Co. Ltd. v. Saroj Tripathi

2007-03-01

ABHAY GOHIL, RAJENDRA MENON

body2007
Judgment ( 1. ) THIS judgment shall govern the disposal of all the connected three appeals, M. A. Nos. 138, 140 and 194 of 2000 and cross-objections filed in M. A. No. 140 of 2000 by the claimants, as all the appeals arise out of the common award passed by Sixth Additional Motor Accidents claims Tribunal, Gwalior in Claim case Nos. 48 and 58 of 1992. ( 2. ) THE claimants as well as insurance company both have filed aforesaid appeals under section 173 of the Motor Vehicles act. ( 3. ) THE brief facts of the case are that on 5/1/1992 deceased Rajendra Kumar Tripathi and deceased Kamal Kumar Jain had gone to Shivpuri and were coming back in the evening at 5. 30 p. m. in a jeep No. MP 07-B 0630. The said jeep was being driven by Chandra Vikram Singh Chauhan, the respondent No. 2. At about 7. 30 p. m. near village Virawali on A. B. Road one truck was coming from opposite side, near culvert, it dashed the jeep. As a result of this accident the jeep fell down in the culvert which was 15 ft deep. The truck driver ran away from the spot along with truck and all the passengers those who were travelling in the jeep fell down. Thereafter the driver and travellers of another jeep No. UTM 5044 which was coming from Shivpuri, on seeing the accident, stopped the jeep and helped all the injured passengers, took them out from the culvert and shifted them to Gwalior and they were admitted in J. A. Group of Hospitals in Neurosurgical Ward. Looking to the serious condition of Rajendra Kumar tripathi on 6/1/1992 he was shifted to Jai Prakash Narain Hospital, new Delhi for further treatment where on 8/1/1992 he succumbed to the injuries. The matter was reported to police station and crime was registered. There is no dispute that Chandra Vikram Singh Chauhan was the driver of the said jeep and Dinesh gupta was the owner of the jeep and that the said jeep was insured with New India assurance Co. Ltd. , Agra. The claimants those who are widow, sons and daughters of Rajendra Kumar Tripathi filed Claim case No. 48 of 1992. There is no dispute that Chandra Vikram Singh Chauhan was the driver of the said jeep and Dinesh gupta was the owner of the jeep and that the said jeep was insured with New India assurance Co. Ltd. , Agra. The claimants those who are widow, sons and daughters of Rajendra Kumar Tripathi filed Claim case No. 48 of 1992. Malti Jain, widow, son and daughters including parents of kamal Kumar Jain filed the claim petition before the Sixth Additional Motor Accidents claims Tribunal, Gwalior, which was registered as Claim Case No. 58 of 1992. After considering evidence Tribunal recorded finding in both the cases and passed the common award on 23. 12. 1999. It is held by the Tribunal that the accident took place because of rash and negligent driving of the jeep as well as the truck and held that it is a case of composite negligence. Since the truck driver ran away from the spot, therefore, the particulars of truck driver, owner and its insurance company were not available. Tribunal found that both the deceased Rajendra Kumar tripathi as well as Kamal Kumar Jain died on account of the injuries sustained in the accident and also found that the respondents are jointly and severally liable for the payment of compensation. It was also held that the claim petition was not liable to be dismissed as the owner and insurance company of the truck were not added as parties and granted compensation of Rs. 2,95,000 in Claim Case No. 48 of 1992 and a sum of Rs. 3,91,000 in Claim Case No. 58 of 1992. Against which the claimants Claim case No. 48 of 1992 have filed M. A. No. 194 of 2000 for enhancement of compensation and New India Assurance Co. Ltd. has filed two appeals M. A. No. 138 of 2000 against the award in Claim Case No. 48 of 1992 and M. A. No. 140 of 2000 against the award in Claim Case No. 58 of 1992 and in both the appeals insurance company has challenged the finding of composite negligence. Claimants in M. A. No. 140 of 2000 have also filed cross-objections under Order 41, rule 22 of Civil procedure Code and claimed enhancement of compensation. ( 4. ) WE have heard all the three aforesaid appeals together as well as the cross-objections. Mr. Claimants in M. A. No. 140 of 2000 have also filed cross-objections under Order 41, rule 22 of Civil procedure Code and claimed enhancement of compensation. ( 4. ) WE have heard all the three aforesaid appeals together as well as the cross-objections. Mr. B. N. Malhotra, the learned counsel appearing for respondent insurance company submitted that the finding of contributory (sic composite) negligence is not legal. In this case the accident took place because of rash and negligent driving of the truck driver who hit and ran away. Since the owner of the jeep was carrying passengers, therefore, the liability of the passengers is not covered under the policy and the insurance company is not liable for the payment of compensation. More so, the Tribunal has not awarded any liberty to the insurance company in recovering the amount awarded by the Tribunal to the extent of 50 per cent from the owner of the jeep and 50 per cent from the owner of the truck. The Tribunal has found that it is a case of composite negligence. The driver of the truck as well as driver of jeep both were equally liable for the accident. He has submitted that though drivers of both the vehicles were held liable for the accident but considering the question of composite negligence, as the amount is recoverable from either of the insurance company, the tribunal has passed the award against the insurance company of the jeep. ( 5. ) MR. B. D. Verma, the learned counsel appearing for the claimants in M. A. Nos. 194 and 138 of 2000 submitted that it is a case of composite negligence and the liability of the insurance company has rightly been determined. His submission is that the question that both the deceased were travelling in a jeep as passengers was neither pleaded nor proved by the insurance company. 194 and 138 of 2000 submitted that it is a case of composite negligence and the liability of the insurance company has rightly been determined. His submission is that the question that both the deceased were travelling in a jeep as passengers was neither pleaded nor proved by the insurance company. No objection has also been taken by the insurance company in the written statement as well as in the memo of appeal that the passengers those who were travelling in the jeep are not third party and are not entitled for claim and has submitted though the claim is justified but the tribunal has not applied the proper multiplier which should be 13 instead of 12, as the age of deceased Rajendra Kumar Tripathi is determined as 48 years and between the age group of 45 and 50 the multiplier of 13 is applicable. He further submitted that the Tribunal has also not awarded any compensation in the head of loss of love and affection, in the head of loss to estate and in the head of taking the injured to delhi for treatment, where he remained hospitalised for three days. The same is argued by Mr. Mahesh Haswani in M. A. No. 140 of 2000 on the appeal as well as on the cross-objections. His submission in that the proper multiplier has not been applied and the amount in the head of loss of love and affection and loss to estate has not been awarded. ( 6. ) AFTER hearing the learned counsel for the parties, we have perused the evidence after perusal of the evidence of the claimants it is clear that the Tribunal has not committed any illegality in holding that it is case of composite negligence. Manish bajpayee, AW 2, was examined who has stated that the accident took place because of rash and negligent driving by the driver of the jeep and the driver of the jeep could not control the vehicle as both the vehicles came together on the culvert and the driver of the jeep could not control the vehicle and as a result he broke the pulia (small bridge)and fell down the culvert. Manish bajpayee was also travelling in the jeep, he is the eyewitness. Though the F. I. R. was lodged by the owner of the jeep Dinesh gupta but he has not been produced in the witness-box. Manish bajpayee was also travelling in the jeep, he is the eyewitness. Though the F. I. R. was lodged by the owner of the jeep Dinesh gupta but he has not been produced in the witness-box. Therefore, from the evidence on record it appears that the findings of the tribunal is justified and no interference is warranted therein. It is a case of composite negligence of both the drivers of the vehicles and in such a case the compensation can be recovered from either of the parties and from any one of them as has been held by the Full Bench in the case of Sushila bhadoriya v. Madhya Pradesh State Road trans. Corpn. , 2005 ACJ 831 (MP ). Therefore, on the basis of evidence there is no scope for reversing the finding. Thus, the appeals filed by the insurance company challenging the finding does not have any merit and the same are dismissed with liberty to the insurance company to recover the amount from the owner of the truck if they so desire and the owner of the truck is available. ( 7. ) SO far as enhancement of compensation in m. A. No. 194 of 2000 and on the cross-objections of M. A. No. 140 of 2000 is concerned, it is true that in Claim Case no. 48 of 1992 the age of Rajendra Kumar tripathi was 48 which was between 45 and 50 years and on that group of age as per the guidelines provided in the Second schedule multiplier of 13 is applicable. The Tribunal has applied multiplier of 12, therefore, we apply the multiplier of 13 and in that case the amount of compensation would increase by Rs. 24,000. The Tribunal has awarded compensation for the loss of consortium as Rs. 5,000, for funeral expenses Rs. 2,000 but has not awarded any compensation in the head of loss of love and affection and loss to estate. We award the amount of Rs. 11,000 in both the heads and enhance the compensation to the tune of Rs. 35,000. Same is the position in cross-objections filed on behalf of Malti jain, wife of deceased Kamal Kumar Jain. The Tribunal has applied multiplier of 16. The age of the deceased Kamal Kumar Jain was determined as 35 years and between the age group of 30-35 multiplier of 17 is applicable. Therefore, amount of dependency of rs. 35,000. Same is the position in cross-objections filed on behalf of Malti jain, wife of deceased Kamal Kumar Jain. The Tribunal has applied multiplier of 16. The age of the deceased Kamal Kumar Jain was determined as 35 years and between the age group of 30-35 multiplier of 17 is applicable. Therefore, amount of dependency of rs. 24,000 is further enhanced. The learned Tribunal has not awarded any compensation under the heads of love and affection and loss to estate. We award a sum of Rs. 11,000 in these heads and total amount of compensation is enhanced by rs. 35,000. The enhanced amount in both the cases shall carry interest at the rate of 8 per cent per annum from the date of filing of appeal. The amount be deposited in the name of widow in a nationalised bank for a period of five years. The claimants shall be entitled for monthly interest thereon. ( 8. ) THUS, M. A. Nos. 138 and 140 of 2000 filed by the insurance company are dismissed and M. A. No. 194 of 2000 is allowed as indicated above and the cross-objections filed by claimants in M. A. No. 140 of 2000 are also allowed as indicated above. Counsels fee Rs. 500 in M. A. No. 194 of 2000. Orders accordingly.