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2008 DIGILAW 206 (CHH)

RAMBATIMADIYA v. BUDANTI @DANTESHARRAO

2008-08-12

RAJEEV GUPTA, S.K.SINHA

body2008
JUDGMENT Shri Sunil Kumar Sinha, J. ;- 1. These appeals have been filed U/S 173 of the Motor Vehicles Act, 1988, against the common award dated 25.01.2006 passed by the III Add1. Motor Accident Claims Tribunal, Jagdalpur, whereby, in all, 8 claim petitions were disposed of by the Tribunal. 2. M.A.Na.395/2006 & 396/2006 have been filed by the claimants far enhancement .of the amount of compensation, whereas M.A.Na.592/2006, 593/ 2006, 594/2006 & 595/2006 have been filed by the owner and driver of the offending vehicle challenging their liability to pay compensation. 3. The facts briefly stated are that an 19.4.2005 at about 10.30 p.m., a vehicle i.e., Tata 709 Truck, bearing Regn.No. C.G-17-ZB-0124 met with an accident in village sargipal resulting in death of four persons namely Samlu, Singlu, Mangdu and Kuldhar, whereas many after persons including Rama, Jairam, Dukaru and Tada received certain injuries. 4. In all, 8 claim petitions were filed in the Claims Tribunal, in which, MAC.C. No.58/2005, 48/2005, 49/2005 & 59/2005 were filed by the dependents .of the deceased persons and M.A.C.C.No.44/2005, 45/2005, 46/ 2005 & 47/2005 were filed on account of personal injuries sustained by the respective claimants namely Dukaru, Toda, Jairam & Rama In all the claim petitions, the claimants pleaded that the deceased persons and the injured persons were traveling in the capacity .of labourers in the offending truck, which met with an accident an account of rash and negligent driving of its driver. 5. The owner and the driver filed their written statements. Along-with plea of denial regarding entitlement of the claimants, they denied their liability and pleaded that the deceased persons and the injured persons were traveling in that vehicle as labaurers, therefore, if any amount of compensation is to be paid that shall be paid by the Insurance Company as the vehicle was insured with them. The Insurance Company also filed in written statement. It took the plea that the deceased and the injured persons were not travelling as labaurers in the vehicle and, in fact, they were the paid passengers, there after, according to the policy conditions, the Insurance Company would not be liable to pay compensation in these cases. 6. The Insurance Company also filed in written statement. It took the plea that the deceased and the injured persons were not travelling as labaurers in the vehicle and, in fact, they were the paid passengers, there after, according to the policy conditions, the Insurance Company would not be liable to pay compensation in these cases. 6. Learned Claims Tribunal framed various issues in the claim cases and after taking evidence .of the parties, recorded a finding that the accident occurred an account of rash and negligent driving of the offending truck by its driver, therefore, the claimants were entitled to receive compensation. However, the Tribunal exonerated the Insurance Company and fastened liability an the owner and the driver an the ground that the deceased persons and the injured persons were not travelling as labourers in the said goods vehicle and even otherwise also the vehicle was being plied in breach of policy conditions as there were mare than 7 persons (driver + 6 others), far which the policy was obtained after paying the premium. 7. In personal injury cases, the Tribunal awarded Rs.3000/- each to injured Dukaru, Tada & Rama and Rs. 1 500/- to injured Jairam, whereas, in Claim Cases Na.58/2005 & 59/2005 (two death cases in which M.A.No.395/2006 & 396/2006 have been filed for enhancement) it awarded Rs. 1,73,700/- in each case to the respective claimants/dependants of deceased Singlu & Samlu. In both the cases, the Tribunal assessed the monthly income of the deceased as Rs. 1300/- and after deducting Rs.500/ - towards personal expenses of the deceased, the monthly dependency of the claimants was assessed as Rs.800/- and the annual dependency as Rs.9600/-. By using multiplier of l7, the Tribunal worked out the loss of dependency in sum of Rs.1,63,200/-. By awarding Rs.10,000/- under other permissible heads, the total amount of compensation was assessed in sum of Rs.1,73,200/- in each claim case separately. The Tribunal further directed that if the above amount of compensation is not deposited within a period of two months from the date of passing of award in these cases, the claimants shall be entitled to receive interest@6%perannumfrom the date of pas sing of the award till the actual payment is made. 8. The Tribunal further directed that if the above amount of compensation is not deposited within a period of two months from the date of passing of award in these cases, the claimants shall be entitled to receive interest@6%perannumfrom the date of pas sing of the award till the actual payment is made. 8. Shri Subhash Yadav, learned counsel for the owner and driver argued that the Claims Tribunal erred in law while recording a finding that the deceased injured persons were not the labourers in the offending vehicle, and were the passengers, and by holding so, exonerating the Insurance Company. He also argued that the finding recorded by the Claims Tribunal that since more than 6 persons were allowed in the goods vehicle by the owner and driver and the vehicle was being plied in breach of policy conditions which allow only 6 persons as the employees in the vehicle, therefore, the Insurance company would not be responsible to pay compensation to the claimants, cannot be sustained. He referred to the Insurance Policy marked as EX.P-2. 9. Shri P.K. Tulsyan, learned counsel for the appellants/claimants in M.A.No. 395/2006 & 396/2006, which have been filed for enhancement of amount of compensation, argued that in these cases, the Tribunal has grossly erred in assessing the income of the deceased persons and awarding low compensations to the claimants. He submitted that the Tribunal ought to have accepted Rs. 3000/as the monthly income of the deceased person(s) and would have assessed the amount of compensation on such income. 10. On the other hand, S.K. Agrawal, Senior Counsel for the Insurance Company opposed these arguments and supported the common award passed by the Claims Tribunal. He argued that in all 12 persons were traveling on the goods vehicle and the vehicle was being plied in breach of policy conditions, therefore, the Insurance Company has rightly been exonerated in these cases. About the quantum, he argued that a reasonable amount has been assessed by the Claims Tribunal. 11. So far as the finding that the injured claimants and the deceased persons were traveling as passengers in the offending vehicle is concerned, we do not find it to be based on material available on record. The Tribunal has recorded this finding vide Paras 23 & 24 of the impugned award by relying on the contents of First Information Report, Ex.P. 1 and Dehati Nalishi EX.P.2. The Tribunal has recorded this finding vide Paras 23 & 24 of the impugned award by relying on the contents of First Information Report, Ex.P. 1 and Dehati Nalishi EX.P.2. It has also referred to the contents of the Claim Form, Ex.D-2, filed by the owner before the Insurance Company, and the contents of report of the Investigator of the Insurance Company filed as Ex.D- 5. The Tribunal has taken into account that all these documents only contain that 12 persons were traveling in the vehicle who sustained injuries and the owner of the vehicle had not deposed in his evidence before the Tribunal that how much amount he was paying to the deceased or the injured claimants, therefore, it was not established that the deceased/injured claimants were engaged as labourers in the vehicle. If we look into the First Information Report, Ex.P-l, it would appear that the same was lodged by one Paiko, s/o Mahangu who slated therein that on 18.4.2005 he along-with one Lachhinder, s/o Sunder, had gone to purchase floor stones (granite tiles) from the mines and had taken the deceased and injured persons with them in the offending vehicle to the mines and after loading the stones in the vehicle, when they were returning back to their village, the vehicle met with an accident as it turned turtle on account of rash and negligent driving of its driver, due to which, the persons present in the vehicle sustained injuries. Neither the Dehati Nalishi Ex.P.2 nor the EI.R. EX.P.1 contains any such fact which may show that the injured and deceased persons were not travelling in the vehicle in the capacity of labourers. Even the other documents relied on by the Tribunal do not disclose that the victims were not travelling as labourers in the offending vehicle. Rather the contents of Dehati Nalishi would show that they were taken by Paiko to purchase floor tiles from the mines for which the offending vehicle was hired by him and after purchasing the floor tiles, they loaded the same in the offending vehicle which clearly shows that the injured and the deceased persons were engaged as labourers in that trip and the tiles purchased by the owner from the stone mines were loaded by them in that vehicle. It appears that the word like "labourers" has not been used in this document, therefore, the Tribunal fell in error by recording a finding that they were not the labourers on the vehicle. In this regard, if we look into the evidence of Rambati Madiya (A.W.7) and Mutali @Matali Madiya (A. W.8), wife of the deceased person, it would appear that they had clearly deposed that on the fateful day the deceased persons were travelling in the vehicle in the capacity of " hammals (labourers) and were engaged for loading and unloading the stones. This is supported by the evidence of the owner (N.A. W.3), who also deposed that the deceased and the injured persons were working as labourers in the vehicle. Hence, the finding of the Tribunal that the deceased and injured persons were travelling as passengers in the vehicle cannot be sustained being perverse on the face of material available on record. Therefore, this finding of the Tribunal is set aside and it is held that the deceased and the injured persons were travelling as labourers in the offending vehicle, which met with an accident on the fateful day. 12. Admittedly, the offending vehicle was registered and insured as a goods carrying commercial vehicle and the policy of insurance was valid on the date of accident. As per the contents of the policy, EX.D- 2 & D- 2/C, the requisite premium was paid for 8 employees including the driver and cleaner of the vehicle. In this regard, the Insurance Company has also examined Mr. A. Kujur, the concerned Branch Manager (N.A. W. 1). He has clearly deposed in his Examination-in-Chief that apart from the driver and cleaner, extra-premium was charged for the Coolies. It is, therefore, clear that the risk of six persons, other than the driver and cleaner who were traveling as labourers, was also covered under the Insurance policy and in case of the accident, the Insurance Company would be liable to pay compensation to them. As we have already held that the injured and the deceased persons were traveling as labourers in the offending vehicle, therefore, in these cases, the Insurance Company would be liable to pay compensation to the claimants and the finding of the Claims Tribunal that the compensation shall be paid by the owner and driver, cannot be sustained. This finding of the Tribunal is set aside. 13. This finding of the Tribunal is set aside. 13. As far as the effect of breach of policy by carrying more than 8 persons on the vehicle is concerned, Shri Subhash Yadav, Advocate, referred to the decision of the Apex Court rendered in the matter of National Insurance Company Limited Vs. A'1iana Shyam and others. In the said case, a passenger vehicle was overloaded and the number of dead and injured has exceeded the number of passengers insured. The awards were passed for more than the insured passengers and the Insurance Company was made liable for payment of amounts covered by all the awards. The Insurance Company took an objection before the Supreme Court that its liability was confined only to the extent of number of passengers insured by it and should not be extended to cover the persons not covered by the Insurance Policy. The Apex Court held that "In such a situation, the insurance taken for the number of permitted passengers can alone determine the liability of the Insurance Company in respect of those passengers. It held that in terms of Section 149 of the Motor Vehicles Act, the duty of the Insurer is only to satisfy the judgment and awards against the persons insured in respect of the third party risk that is to the extent the third party risk is coverable and is covered." 14. Therefore, the law is that in such cases where the vehicle was over loaded, the liability of the Insurance Company would be to the extent of number of persons for whom the risk was covered under the agreement and nothing more, but for that kind of breach of policy, the Insurance Company cannot be exonerated from payment of amount of compensation. Hence the finding of the Tribunal that on account of carrying more than permitted persons on the vehicle, the Insurance Company would not be liable to pay compensation even to the persons covered under the Insurance Policy, cannot be sustained and the same is also set aside. 15. Now, we shall consider the cases for enhancement. In M.A.No.395/ 2006 & 396/2006, the claimants had pleaded that the deceased persons were earning Rs.1 00/- per day and Rs.3000/- per month, but the Tribunal assessed their income as Rs.50/ - per day, that too for 26 days in a month, and determined that each deceased person was earning Rs.1300/- per month. In M.A.No.395/ 2006 & 396/2006, the claimants had pleaded that the deceased persons were earning Rs.1 00/- per day and Rs.3000/- per month, but the Tribunal assessed their income as Rs.50/ - per day, that too for 26 days in a month, and determined that each deceased person was earning Rs.1300/- per month. This does not appear to be reasonable. When the evidence led by the parties was not clinching on the point of income, the Tribunal ought to have taken recourse to the notional income prescribed in the second schedule U/S 163-A of the Act. This notional income was prescribed in the year 1994. The accident in which the deceased persons lost their lives took place in the year 2005. If the increase in the price of essential commodities and the cost of living between the years 1994 and 2005 is taken into consideration, the notional income of Rs. 15,000/- prescribed in the year 1994 would come to Rs.30,000/- in the year 2005. We, therefore, propose to re-compute the compensation taking the income of the deceased persons at Rs30,000/- per annum. By deducting 1/3 of Rs.30,000/- towards the personal expenses of each of the deceased, the claimants' dependency is assessed at Rs.20,000/- per annum. 16. Considering that the ages of the deceased Singlu and Samlu were in between 25 and 28 years and that the claimants are widow, children and parents of the deceased, we are of the opinion that the multiplier of 5 would be appropriate in both the cases. By multiplying the annual dependency of Rs.20,000/- with the multiplier of 15, the dependency is worked out to Rs. 3 lakhs in each case. Further by adding a sum of Rs.15,000/- under other permissible heads, the claimants of each case (M.A.No.395/2006 & 396/2006) would be entitled to receive a total sum of Rs.3,15,000/- as the amount of compensation on account of death of deceased Singlu and Samlu. 17. The Tribunal has awarded a sum of Rs. 1,73,200/-, therefore, the claimants would get Rs. 1,41,800/- more in each case. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeals as also the fact that the Insurance Company alone is not to be blamed for the delay in disposal of the matter, we quantity the amount of interest payable on the enhanced amount of compensation of Rs.1,41,800/- at Rs.13,200/-. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeals as also the fact that the Insurance Company alone is not to be blamed for the delay in disposal of the matter, we quantity the amount of interest payable on the enhanced amount of compensation of Rs.1,41,800/- at Rs.13,200/-. Therefore, the compensation of Rs. 1,73,200/- awarded by the Claims Tribunal in above two cases is enhanced by Rs. 1,55,000/- in each case. 18. In the result, the appeals are allowet1 in the following terms: (i) The Insurance Company shall be liable to pay the amounts of compensation awarded in M.A.C.C. Nos.48/2005, 49/2005, 58/ 2005 & 59/2005. (ii) The amounts of compensation awarded in M.A.C.C. No.58/2005 & 59/2005, which are the subject matters of M.A.No.395/2006 & 396/2006, are enhanced by Rs. 1,55,000/- in each case. (iii) The respondent Insurance Company is granted 3 months' time to deposit the enhanced amount of compensation, failing which, they shall be liable to pay interest @ 6% per annum on the enhanced. amount for the period commencing after completion on months' time till its realization. (iv) There shall be no order as to costs. Appeals Allowed.