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Madhya Pradesh High Court · body

2008 DIGILAW 285 (MP)

Batul Begam v. Suresh Prasad Sahu

2008-02-21

ARUN MISHRA, S.A.NAQVI

body2008
JUDGMENT The appeal has been preferred by the claimants/appellants for enhancement of compensation aggrieved by award dated 27-4-2006 passed by Addl. Motor Accident Claims Tribunal, Rewa in Claim Case No. 9/05. 2. The claimants, widow and children of deceased preferred claim petition on account of death of Chhedi Khan, forest contractor. He was travelling along with timber purchased in the forest auction in the Truck (MP-17A/2299) along with Suresh Prasad, truck turned turtle after crossing Son river, due to that Chhedi Khan sustained injuries and succumbed to the injuries on the spot. Deceased used to do the business of timber as well as running a Bidi factory, his income was claimed to be Rs. 15,000 per month, his age was 50 years, compensation of Rs. 30,50,000 was claimed. 3. The vehicle, was driven by Bhaiyalal, owned by Suresh Prasad Sahu and insured with National Insurance Co. Ltd. 4. The owner in the reply denied the averments made in the claim petition contending that deceased was a labour he was travelling in order to load unload the goods, vehicle was insured, liability, if any, was required to be borne by the insurer. 5. Insurer in the reply denied the liability to make payment of compensation, particulars of policy were required to be furnished for verification, driver was not holding valid and effective, driving licence, deceased was travelling as a gratuitous passenger. 6. The Tribunal as per award dated 27-4-2006 awarded compensation of Rs. 1,26,200 taking the income of deceased at Rs. 15,000 per annum, multiplier of 11 has been applied amount has been awarded along with interest at the rate of 6% per annum from the date of filing of claim petition till realization. Dissatisfied with the same, the appeal has been preferred by the claimants for enhancement of compensation. Insurer, has been exonerated on the ground that deceased was travelling as owner of the goods, claimants could not have claimed compensation from the insurer in the light of decision of Apex Court in New India Insurance Co. Ltd. vs. Asharani, 2003 (2) MPWN 60. 7. Shri Ashok Singh, learned counsel appearing for appellants has submitted that inadequate compensation has been awarded, deceased was earning a sum of Rs. 15,000 per month, there is overwhelming documentary evidence placed on record. Ex. Ltd. vs. Asharani, 2003 (2) MPWN 60. 7. Shri Ashok Singh, learned counsel appearing for appellants has submitted that inadequate compensation has been awarded, deceased was earning a sum of Rs. 15,000 per month, there is overwhelming documentary evidence placed on record. Ex. P/16 to Ex.P/35 evincing that deceased used to purchase and sale timber, beside he was having Bidi factory also, thus, assessment of income at Rs. 15,000 per annum prescribed for non-earning member was inadequate, there was failure to assess the income of deceased, appropriate multiplier has not been applied, insurer has been illegally exonerated, amendment made to section 147 of Motor Vehicles Act on 14-11-1994 has not been taken into consideration, accident took place thereafter, thus, risk of owner was clearly covered under the policy, thus, insurer ought to have been held liable apart from driver and owner. 8. Ms. A. Ruprah, learned counsel appearing for Insurer has supported the award, she has submitted that it appears that business was being done in the name of sons, thus, assessment of income at Rs. 15,000 per annum made by Tribunal is proper, deceased was travelling as a gratuitous passenger, he was not the owner of the goods, consequently there was breach of the policy, thus, no case for interference in the award made by the Tribunal is made out in the appeal. 9. First we come to the question of quantum of compensation to be awarded, on account of death of Chhedi Khan aged 50 years, it was mentioned, in the claim petition that deceased used to sell wood/timber and used to run a Bidi factory also, there are various documents on record indicating the purchase, Ex.P/15 indicates that he was running business of Bidi also in the name and style of Ms/ Chhedi Khan Bidi Works he had deposited an amount of Rs. 450 by Challan in the treasury, beside Ex.P/16 to Ex.P/21 are documents of purchase of wood by Chhedi Khan. There are other documents on record indicating that he used to purchase wood from the forest, though his income was claimed to be Rs. 15,000 per month in the claim petition, much exaggerated statement was made, Mukaddar Khan has stated that the income of deceased was Rs. 18,000-20,000 per month. There are other documents on record indicating that he used to purchase wood from the forest, though his income was claimed to be Rs. 15,000 per month in the claim petition, much exaggerated statement was made, Mukaddar Khan has stated that the income of deceased was Rs. 18,000-20,000 per month. We deem it appropriate in the facts and circumstances of the case considering the aforesaid documents that deceased must have been earning a sum of Rs. 5,000 per month, though it appears that his sons were doing the business of Furniture Mart, but deceased used to purchase and sell the wood as well as was running Bidi factory, thus, annual income comes to Rs. 60,000, after deducting 1/3rd amount towards the self expenditure1 of the deceased which amount he would have spent on himself had he been alive, less of annual dependency comes to Rs. 40,000, multiplier of 13 is applicable, we apply the same, consequently compensation on account of loss of dependency comes to Rs. 40,000 x 13 = Rs. 5,20,000. We further award a sum of Rs. 40,0000 under the customary heads such as loss of estate, loss of expectancy of life and funeral expenses inclusive of a sum of Rs. 10,000 awarded to the widow on account of loss of consortium. Thus, total compensation comes to Rs. 5,20,000 + Rs. 40,000 = Rs. 5,60,000. The compensation enhanced by this Court to carry the interest at the rate of 7% per annum from the date of filing of claim petition till realization. 10. Coming to the question of liability of insurer, deceased was travelling as owner of the goods, has been rightly found by the Tribunal. It is also apparent from Ex.P/35 order passed by DFO that deceased was travelling along with timber at the time of accident, timber was released in favour of his LRs, thus, deceased was clearly owner of timber which he had purchased in the forest auction. The Tribunal has ignored and overlooked the date of accident and the amendment made in section 147 of Motor Vehicles Act, claimant was travelling along with the goods and it was permissible for the claimant to travel along with the goods being owner as per section 147 of the Motor Vehicles, relevant provision is quoted below :- 147. Requirements of policies and limits of liability. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: It is apparent from the aforesaid amended section that risk of the owner travelling in the goods vehicle along with the goods is; clearly covered under the policy. Case of New India Insurance Co. Ltd. vs. Asharani (supra) was based on unamended provision, thus, Tribunal has wrongly relied upon that decision, consequently, the liability is held to be joint and several. 11. It is submitted by Ms. A. Ruprah that finding with respect to liability has not been assailed by the claimants. Even on the basis of finding recorded by the tribunal the insurer cannot escape the liability and in order to do the substantial justice, we have passed the just award, nothing prevents the Court in passing just and proper award, particularly when appeal has been preferred by the claimants and it is the claimants who have to suffer in case insurer is exonerated, particularly when insurer is liable, just award has to be passed. 12. Resultantly, the appeal is allowed to the aforesaid extent. We award total compensation of Rs. 5,60,000 (Rs. Five Lacs Sixty Thousand Only) to the claimants. The compensation enhanced by this Court to carry the interest at the rate of 7% per annum from the date of filing claim petition till realization. Liability is held to be joint and several of owner, driver and insurer to make payment of compensation. We apportion the compensation, 40% to the widow and to remaining children equal proportion. No costs. Appeal allowed.