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2007 DIGILAW 385 (MP)

Krishna Prasad Chaturvedi v. Kamla Chaturvedi

2007-03-30

SANJAY YADAV, SUBHASH SAMVATSAR

body2007
JUDGMENT Samvatsar, J. -- 1. This appeal is filed by the claimants challenging the award dated 18.1.2002 passed by Fifth Additional Member Judge, Motor Accident Claims Tribunal, Gwalior in Claim Case No. 85/2000 whereby the Claims Tribunal has dismissed the claim application filed by the claimants who are father, mother, sons and daughter of deceased Laxmikant Chaturvedi. 2. Brief facts of the case are that deceased Laxmikant Chaturvedi was travelling in Truck No. MP 09 KA 9833 on 7.6.2000 which was owned by respondent No. 1 Shrimati Kamla Chaturvedi, who is also the wife of the deceased. The said truck was insured with respondent No. 2 Insurance Company. The truck was driven by Virendra Shrivstava, as a driver who is not joined as a party in the claim petition. 3. At the time of the accident, it was raining heavily and, therefore, the driver applied brakes to stop the vehicle near Shyam Hotel. Due to this, the truck skidded and turned turtle which has resulted into injuries to the deceased who succumbed to the injuries. 4. After the death of the deceased, present appellants filed an application claiming compensation under section 163-A read with 166 of the Motor Vehicles Act. This claim petition is dismissed by the Claims Tribunal on the ground that the driver of the vehicle was not negligent while driving the vehicle. Claims Tribunal also found that FIR is not filed by the claimant in support of their allegations. No criminal case was registered against the driver. The claim petition suffers from non-joinder of necessary party. Deceased is the husband of the owner of the truck i.e. respondent No. 1 and the claim petition is filed in collusion with respondent No. 1. It is also held that claimants No. 4 and 5 were minor and natural guardian of the minors is not joined as a party, hence, the claim petition is not maintainable. Said award is under challenge in this appeal. 5. First question is about the negligence of the driver of the vehicle. Claimants in their claim petition have alleged that the deceased Laxmikant was travelling in the truck. Due to heavy rains, the driver applied brakes to stop the vehicle near Shyam Hotel, but the truck skidded and turned turtle due to which injuries had occurred to the deceased. 6. First question is about the negligence of the driver of the vehicle. Claimants in their claim petition have alleged that the deceased Laxmikant was travelling in the truck. Due to heavy rains, the driver applied brakes to stop the vehicle near Shyam Hotel, but the truck skidded and turned turtle due to which injuries had occurred to the deceased. 6. In support of the contention, their contention the claimants have not filed copy of the FIR or any document to show that a criminal case is registered against the driver. Driver is not joined as a party in the claim petition. Vipin Kumar Chaturvedi, AW 1 is the son of the deceased. He is not an eye witness to the accident. Virendra Shrivastava, AW 2 was driving the truck at the time of the accident. He says that on 7.6.2000 it was raining heavily, hence, he applied brakes due to which the truck skidded and turned turtle and the deceased sustained injuries in the said accident. 7. There is no evidence in rebuttal. Though Virendra Shrivastava, AW 2 says that he was not negligent in driving vehicle, still from the fact that the truck skidded and turned turtle due to the brakes applied by him itself shows that the driver was negligent and due to his negligence the accident has occurred. 8. In such circumstances, the finding arrived at by the Claims Tribunal that the claimants have failed to prove that the accident has taken place due to rash and negligent driving of the driver Virendra Shrivastava is not proved cannot be sustained and is hereby set aside. 9. Now the next question is about the quantum of compensation. Deceased was working on the post of Assistant Teacher in Government Middle School No. 1, Morar Gwalior, and according to the claimants he was earning Rs. 8,000/- per month. Vipin Kumar Chaturvedi, AW 2 has stated that his father was getting salary of Rs. 8,236/- per month. Ex. P-3 is the salary certificate dated 15.1.2001 issued by the Government middle School, Morar Gwalior which shows that the deceased was getting Rs. 8,236/- per month. There is no evidence to disbelieve this salary certificate which is issued by the Principal of the said school. Hence, we hold that the deceased was getting Rs. 8,236/- per month, i.e. Rs. 98,832/- p.a.. Thus, the dependency will come to Rs. 65,888/- p.a. rounded to Rs. 8,236/- per month. There is no evidence to disbelieve this salary certificate which is issued by the Principal of the said school. Hence, we hold that the deceased was getting Rs. 8,236/- per month, i.e. Rs. 98,832/- p.a.. Thus, the dependency will come to Rs. 65,888/- p.a. rounded to Rs. 66,000/-. The deceased was around 40 years of age at the time of accident, hence, multiplier of 15 will be applicable in this case, and the compensation will come to Rs. 9,90,000/-. Apart from this amount, the claimants will also be entitled to a sum of Rs. 10,000/- towards loss of estate, love and affection, funeral expenses etc. Hence, the total compensation is worked out at Rs. 10,00,000/- (Rs. ten lacs). 10. Next question is about the effect of non-joinder of necessary party. The Claims Tribunal has held that due to non-joinder of the driver of the vehicle, the claim petition is not maintainable. Now this question is settled by various judgments of this Court wherein it is held that the driver is not a necessary party. Therefore, we hold that the Claims Tribunal has committed an error in dismissing the claim petition on the ground of non-joinder of party. 11. The last question which is to be decided is whether the Insurance Company is liable to pay the compensation. 12. It is an admitted position that the deceased was travelling in a goods vehicle. Contention of the learned counsel for the appellants is that in spite of the fact that the deceased was travelling in a goods vehicle, the Insurance Company is liable. According to him, Rule 97 of the Madhya Pradesh Motor Vehicles Rules, 1994 permits carrying of six persons in addition to the driver in any goods carriage other than light transport vehicle. Rule 97 provides that no person shall be carried in a goods carriage other than a bona fide employee or the owner or the hirer and except in accordance with this rule. Thus, as per the said rule, a bona fide employee, owner or the hirer of the vehicle are permitted to travel in the goods carriage. Deceased was neither employee, nor owner nor hirer of the carriage. He was travelling in the vehicle only as a gratuitous passenger as the truck was owned by his wife. In such circumstances, he is not covered by Rule 97 of the aforesaid Rules. 13. Deceased was neither employee, nor owner nor hirer of the carriage. He was travelling in the vehicle only as a gratuitous passenger as the truck was owned by his wife. In such circumstances, he is not covered by Rule 97 of the aforesaid Rules. 13. It was contended by the counsel for the appellants claimants that the Insurance Company has covered the risk of the deceased by taking extra premium and, therefore, the Insurance Company is liable to indemnify the owner for compensation payable to the claimants. 14. Copy of the policy is at page No. 33 of the record of the Claims Tribunal. As per the said policy, the Insurance Company has charged Rs. 2,779/- as a basic premium, Rs. 100/- towards NFPP, Rs. 90/- towards risk of 2+1+3=6 i.e. six persons and Rs. 75/- towards third party risk. Six persons for which Rs. 90/- were charged are the persons who are covered by Rule 97 of the Rules indicated above, that means, two drivers, one cleaner, employee, owner and hirer of the truck gratuitous passenger is not covered by the said premium. 15. Counsel for the appellants claimants in support of his argument, has relied upon Single Bench judgment of this Court in the case of Devital and another v. Sidhanath through L.Rs. Ramakant [ 2004 ACJ 1515 ]. In that case, learned Single Judge of this Court has held that if extra premium is charged by the Insurance Company, then the Insurance Company is liable for payment of compensation. It is also held that it is always open to the Insurance Company to cover extra risk which is not provided by the Act by charging extra premium. Hence, the contention of the learned counsel for the appellants claimants is that the Insurance Company is liable for payment of compensation. 16. On the other hand, learned counsel for the respondent Insurance Company has relied upon a judgment of the apex Court in the case of National Insurance Co. Ltd. v. Ajit Kumar and others [2003 (3) TAC 273 (SC)], wherein the apex Court has held that there is difference between the goods vehicle appearing in the old Act of 1939 and goods carriage as appearing in 1988 Act. Carrying passengers in a goods carriage is not contemplated in the Act of 1988. Ltd. v. Ajit Kumar and others [2003 (3) TAC 273 (SC)], wherein the apex Court has held that there is difference between the goods vehicle appearing in the old Act of 1939 and goods carriage as appearing in 1988 Act. Carrying passengers in a goods carriage is not contemplated in the Act of 1988. Provisions of Act of 1988 do not enjoin any statutory liability on owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the Insurance Company would have no liability therefor. In the aforesaid judgment, the apex Court has considered its earlier judgment in the case of New India Assurance Co. Ltd. v. Satpal Singh [2000 (1) SCC 273] to reach the conclusion that in a goods carriage carrying passenger is not permissible. 17. Another judgment relied upon by the learned counsel for the respondent Insurance Company is in the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma and others [ (2005) 12 SCC 243 ] wherein the apex Court has held that if gratituous passengers are carried in a goods vehicle then the Insurance Company is not liable to indemnify the owner. For this purpose, the apex Court has relied on its earlier judgments in the case of National Insurance Co. v. Baljit Kaur [2004 (2) BLJ 179 = (2004) 2 SCC 1 ] and New India Assurance Co. v. Asha Rani [2003 (II) MPWN 60 = (2003) 2 SCC 223 ]. 18. Now it is well settled by the apex Court that carrying of passengers in goods carriage is not permissible and if they are carried then the Insurance Company is not liable. In view of this, we hold that in the present case, the Insurance Company is not liable for payment for compensation and it is only respondent No. 1 owner of the vehicle who can be held liable for the same. 19. Hence, we allow this appeal in part and award compensation to the claimants to the tune of Rs. 10,00,000/- (Rs. ten lacs) against respondent No. 1 only. Claimants shall also be entitled to interest at the rate of six percent per annum from the date of filing of the claim petition till realisation.