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Madhya Pradesh High Court · body

2008 DIGILAW 1373 (MP)

United India Insurance Co. Ltd v. Anandi Devi

2008-11-25

S.K.GANGELE

body2008
Judgment S.K.Gangele, J. ( 1. ) Appellant insurance company has filed this appeal against the award dated 28.7.2007 passed in Claim Case No. 73 of 2003 by First Additional Motor Accidents Claims Tribunal, Morena. ( 2. ) On 30.4.2001, the deceased Vishram along with other persons had been working at village Bilauwa on a thresher machine. The thresher machine was attached with a tractor bearing registration No. RJ 34-R 0514. The deceased Vishram was doing the work of threshing wheat. It is said that at one point of time the tractor was stopped and suddenly it was restarted and thereby the thresher also stopped and restarted. At that moment right leg of Vishram was crushed in the thresher machine and he received serious injuries in his right leg. He was immediately got admitted in District Hospital, Morena and subsequently at J.A. Hospital, Gwalior where he died on 7.5.2001. A report of the accident was lodged at the police station and an offence was also registered against the driver of the offending vehicle. Subsequently, the claimants-respondents filed a claim application before Claims Tribunal claiming a total compensation of Rs. 21,00,000. The Claims Tribunal has held that the accident occurred due to rash and negligent driving of the tractor by the driver. The tractor was being used at the relevant time for agricultural purpose and it was insured by the appellant insurance company. The owner, driver and insurance company are liable for payment of compensation. After assessing dependency income of the deceased, the Claims Tribunal awarded a total compensation of Rs. 4,84,500 with interest at the rate of 6 per cent per annum. ( 3. ) Appellant insurance company took permission under section 170 of the Motor Vehicles Act on 13.10.2003 to challenge the question of quantum and liability. ( 4. ) Learned counsel for the insurance company has submitted that the insurance company is not liable for the payment of compensation and the Claims Tribunal has assessed the dependency too much and awarded an unjust compensation. In support of his contentions learned counsel relied upon the following judgments: (1) Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. K.I. Bindu, 2006 ACJ 423 (SC); and (2) An unreported judgment of Division Bench of this court in Parvati v. Manjit Singh, M.A. No. 334 of 2001; decided on 10.8.2006 at Gwalior Bench. ( 5. In support of his contentions learned counsel relied upon the following judgments: (1) Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. K.I. Bindu, 2006 ACJ 423 (SC); and (2) An unreported judgment of Division Bench of this court in Parvati v. Manjit Singh, M.A. No. 334 of 2001; decided on 10.8.2006 at Gwalior Bench. ( 5. ) Contrary to this, learned counsel for respondents-claimants has submitted that a just and proper compensation has been awarded by the Tribunal looking to the age of the deceased and number of dependency. The tractor was insured by appellant insurance company and it was being used at the relevant time for agricultural purpose, hence the insurance company is liable for payment of compensation. In support of his contentions learned counsel relied upon the following judgments: (1) State of Haryana v. Jasbir Kaur, 2003 ACJ 1800 (SC); (2) Damodar v. Rajendrasingh, 2005 ACJ 474 (MP); (3) New India Assurance Co. Ltd. v. Kalpana, 2007 ACJ 825 (SC); (4) Mamta v. Ganesh, II (2007) ACC 379; (5) Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. Rajalakshmi, 2008 ACJ 1503 (Madras); and (6) Oriental Insurance Co. Ltd. v. Savthanji Khodaji Thakor, 2008 ACJ 2486 (Gujarat), ( 6. ) With regard to liability of the appellant insurance company, it is an admitted fact that the tractor was insured for agricultural purpose by the appellant insurance company. The tractor was being used for threshing process at the time when the accident occurred. The deceased Vishram had been working on the thresher machine which was attached to the tractor and due to sudden stoppage and restart of tractor and thresher leg of the deceased crushed in the thresher machine and he received serious injuries and subsequently he died in the hospital. In similar circumstances, a Division Bench of Gujarat High Court in Oriental Insurance Co. Ltd. v. Savthanji Khodaji Thakor, 2008 ACJ 2486 (Gujarat), has held as under: "(6) The accident in question took place when not only the thresher was attached to the tractor, but when the thresher was being moved with the help of the tractor. In similar circumstances, a Division Bench of Gujarat High Court in Oriental Insurance Co. Ltd. v. Savthanji Khodaji Thakor, 2008 ACJ 2486 (Gujarat), has held as under: "(6) The accident in question took place when not only the thresher was attached to the tractor, but when the thresher was being moved with the help of the tractor. Since, the right hand of the claimant was crushed in the thresher and the claimant had to be rushed to the hospital where the claimants right upper arm was required to be amputated at the level of upper third of forearm, and when the claimant had given the history of vehicular accident (tractor with thresher) when he was admitted to the hospital for treatment. It cannot be said that the claimant has come before the Tribunal with an afterthought. In the facts and circumstances of the case, the Tribunal has also rightly negatived the case of the tractor driver that the claimant was under the influence of alcohol." ( 7. ) Looking to the aforesaid evidence, in my opinion, the tractor was being used for agricultural purpose and the deceased died when he had been working on the thresher machine which was being operated with the help of a tractor for agricultural purpose. The deceased was third party in the accident. In such circumstances, the liability of the appellant insurance company has been covered with regard to payment of compensation. ( 8. ) With regard to quantum of compensation, the Claims Tribunal fixed the age of the deceased Vishram to be 42 years and applied a multiplier of 15 as per Second Schedule to the Motor Vehicles Act. Counsel on both sides have no dispute with regard to application of multiplier of 15 and submits that is proper multiplier. ( 9. ) As per evidence on record, deceased Vishram had been working on the thresher machine and he had some agricultural income also. Looking to the aforesaid fact of the case, in my opinion, the Claims Tribunal has rightly considered the income of the deceased at Rs. 3,000 per month. With regard to dependency, the dependants are three children, wife, father and mother. Father and mother are aged about 70 and 68 years respectively. Looking to the aforesaid fact of the case, in my opinion, the Claims Tribunal has rightly considered the income of the deceased at Rs. 3,000 per month. With regard to dependency, the dependants are three children, wife, father and mother. Father and mother are aged about 70 and 68 years respectively. A Division Bench of this court in an unreported judgment of Division Bench of this court in Parvati v. Manjit Singh, M.A. No. 334 of 2001; decided on 10.8.2006 has held as under: "We have considered this question. As per the principles laid down in the Schedule appended to section 163-A of the Motor Vehicles Act, 1988, 1/3rd amount should be deducted towards personal expenses of the deceased. The Schedule may be in the form of guidelines, but if the principles of the Schedule are being applied in general in computing the compensation, then it has to be considered even when the size of the family is big. It cannot be denied that a working person will not spend 1/3rd amount of his income towards his personal expenses when he is going out of the home to work. Therefore, we consider and hold that as per the settled position of law, deceased was spending 1/3rd of his income towards his personal expenses." ( 10. ) Hence, the dependency comes to 2/3rd, which is Rs. 24,000 per annum. After applying the multiplier of 15, the total loss of dependency comes to Rs. 3,60,000. In my opinion, the respondents are further entitled to a sum of Rs. 20,000 on other heads of expenses looking to the fact that deceased was admitted in the hospital for near about 8 days. Hence, the claimants-respondents are entitled to get a total compensation of Rs. 3,80,000. Claims Tribunal has awarded interest at the rate of 6 per cent per annum, however, in my opinion, looking to the interest rate it would be just and proper to award interest at the rate of 8 per cent per annum. ( 11. ) Consequently, the appeal is partly allowed. The cross-objections filed by the claimants-respondents are hereby rejected. Respondents will be entitled to get a total amount of compensation of Rs. 3,80,000, which shall carry interest at the rate of 8 per cent per annum from the date of filing of the claim application before the Claims Tribunal till realization. ( 11. ) Consequently, the appeal is partly allowed. The cross-objections filed by the claimants-respondents are hereby rejected. Respondents will be entitled to get a total amount of compensation of Rs. 3,80,000, which shall carry interest at the rate of 8 per cent per annum from the date of filing of the claim application before the Claims Tribunal till realization. If any amount has already been paid by insurance company that shall be adjusted in the amount of total compensation awarded by this court. The counsel fee of Rs. 7,500 awarded by the Claims Tribunal is hereby waived. The impugned award of the Claims Tribunal is hereby modified to the extent stated hereinabove. Appeal partly allowed.