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Madhya Pradesh High Court · body

2008 DIGILAW 1359 (MP)

NATIONAL INSURANCE COMPANY LTD. v. VIDHYABAI

2008-11-21

S.SAMVATSAR

body2008
Judgment S. SAMVATSAR, J. ( 1. ) This appeal is preferred by the Insurance Co. challenging the Award dated 16/3/00, passed by the Member Judge of the Motor Accident Claims Tribunal, Vidisha in Claim Case No.97/98 whereby the Claims Tribunal has awarded a sum of Rs.2,68,000/- towards compensation for the death of deceased Harnam Singh s/o Harprasad, aged around 32 years. ( 2. ) According to the claimants, on 15/2/97, deceased Harnam was travelling in a trolley attached to tractor bearing registration No. MP08-A-6071 alongwith other persons for going to attend a marriage ceremony. The driver of the tractor was driving the said vehicle rashly and negligently due to which Harnam Singh fell down from the tractor and sustained injuries. He died in the incident. Hence, his L.Rs.filed an application for compensation. According to them, the deceased was working in a Casheriya Concrete Product Ltd. and was earning Rs.1936/- per month. The Claims Tribunal assessed the compensation of Rs. 2,68,000/- and awarded compensation accordingly. Hence, this appeal. ( 3. ) The Insurance Co. has filed this appeal against the findings of the Claims Tribunal that the Insurance Co. is jointly and severally liable for payment of compensation alongwith the owner and driver of the vehicle while the claimants have filed cross-objections registered as I.A.No.8517/08 for enhancement compensation. ( 4. ) Shri S.S.Bansal, learned counsel appearing for the Insurance CO. contended that as the deceased was travelling in a tractor, the Insurance Co. is not liable to pay compensation. Learned counsel for the Insurance Co. in support of his arguments has relied upon the judgment of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Vedwati reported in (2007)9 SCC486. In the said judgment the Apex Court has held that the Insurance Co. is not liable for payment of compensation for the death of a passenger travelling in a goods vehicle For this purpose, the Apex court has relied upon its earlier judgment in the case of New India Assurance Co. Ltd. Vs. Asha Rani reported in (2003)2 SCC 223 and other judgments. Another judgment relied upon by the learned counsel for the appellant is in the case of National Insurance Company Ltd. Vs. Ltd. Vs. Asha Rani reported in (2003)2 SCC 223 and other judgments. Another judgment relied upon by the learned counsel for the appellant is in the case of National Insurance Company Ltd. Vs. Prema Devi and others reported in (2008)5 SCC 403 wherein the Apex Court again considered the question about the liability of the Insurance Company to pay compensation in cases of death of or injury to passengers travelling in a goods vehicle. He also relied on the Division Bench decision of this court in the case of Arun Kumar Patel and another Vs. Smt. Terasi Saket and others reported m ILR (2008)MP 282 wherein the Division Bench of this court has held that the Insurance Co. on the death of a person travelling in a tractor-trolley after attending marriage ceremony, is not liable for payment of compensation. There is no dispute about the prepositions laid down by these judgments. ( 5. ) In the present case, the tribunal has held that the Insurance Co. is liable for payment of compensation as the alleged breach of condition of policy was not within the knowledge of the owner. The claims tribunal has found that in the present case the tractor was registered only for agricultural purpose and there is no evidence on record to show that the passengers were carried in the said tractor trolley within the knowledge of the owner and thus the owner of the vehicle has not committed breach of any policy condition. For this preposition the Claims Tribunal has relied upon the decision of the Apex Court in the case of Bhagwandas Vs.National Insurance Company reported in 1991 ACJ 1137 . The Apex Court in the case of Sohan Lal Passi Vs. P.Sesh Reddy reported in ( AIR 1996 SC 2627 ) has considered the meaning of expression "breach" occurring in Section 96(2)(b) and held that breach means infringement or violation of a promise or obligation. As such, the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the tribunal or the court that such violation or infringement on the part of the insurer was willful. As such, the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the tribunal or the court that such violation or infringement on the part of the insurer was willful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability. In the present case it is not disputed that the vehicle was driven by the licensed driver. There is no evidence on record that the passengers who were carried in the tractor- trolley were carried with due knowledge or permission of the owner. ( 6. ) Shri Bansal, learned counsel for the Insurance Co. tried to distinguish the aforesaid judgment by saying that in that case there was no breach of statutory provision of law hence, the aforesaid judgment is distinguishable. This argument is without any basis because the word "agricultural purpose" is not defined in the Motor Vehicles Act. The condition with respect to use of vehicle for agricultural purpose is only in the policy. If the passengers are carried in a tractor or trolley then due to breach of the condition of the policy the Insurance Co. may not escape the liability. In such circumstances, the ratio laid down by the Apex Court in the case of Sohan Lal Passi (supra) is squarely applied in the present case and the tribunal has rightly held that the Insurance Co. is jointly and severally liable for payment of compensation. ( 7. ) So far as quantum is concerned, as per the claimants the deceased was earning Rs. 1936/- per month and the Claims Tribunal has also held that the monthly income of the deceased was Rs 1936. Considering the age of the deceased, i. e. 32 years the income of the deceased can be safely assessed at Rs.2,000/-per month which yearly comes to Rs.24,000/-. Making 1/3rd deductions towards self expenditure of the deceased, loss of annual dependency comes to Rs. 16,000/-. The deceased was aged 32 years hence multiplier of 17 would be applicable. On applying multiplier of 17, the compensation comes to Rs.2,72,000/-. Making 1/3rd deductions towards self expenditure of the deceased, loss of annual dependency comes to Rs. 16,000/-. The deceased was aged 32 years hence multiplier of 17 would be applicable. On applying multiplier of 17, the compensation comes to Rs.2,72,000/-. Apart from this, the claimants are also entitled for compensation on other head such as loss of estate, loss of expectancy of life and funeral etc. Considering this, the total compensation comes to Rs.2,90,000/-.The compensation enhanced by this court to carry the interest at the rate of seven percent per annum from the date of filing of the claim petition till realization. (8) The appeal filed by the Insurance Co. is accordingly dismissed while the cross-objections filed by the respondents are allowed in the manner indicated above. Order accordingly.