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2008 DIGILAW 338 (MP)

United India Insurance Co. Ltd v. Chhaniya

2008-02-28

P.K.JAISWAL

body2008
Judgment P.K.Jaiswal, J. ( 1. ) Both these miscellaneous appeals are arising out of common award dated 21.8.2006 passed by Motor Accidents Claims Tribunal, Sheopurkalan in Case No. 11 of 2006, whereby learned Tribunal awarded a sum of Rs. 2,71,800 as compensation to the respondent Nos, 1 to 5 and exonerated the insurance company and directed the insurance company to pay the amount of award and recover the same from the owner of the vehicle, i.e., respondent No. 7. ( 2. ) Other findings pertaining to the involvement of the vehicle and date of accident and policy of the insurance company is not under challenge. ( 3. ) It is submitted by the learned counsel for the appellant that on 5.2.2006, deceased Siyaram was going towards village Dhodhar from village Raji Ka Dera, Bagdiya and was sitting on the mudguard of the tractor bearing registration No. MP 06-JA 1998. The tractor was driven by the respondent No. 6 very rashly and negligently and due to the aforesaid reason the vehicle overturned on the side of the road and Siyaram died on the spot. As per insurance policy, Exh. P10, the tractor is registered for agricultural purpose whereas at the time of accident tractor was found being used other than for agricultural purpose and, therefore, the insurance company is not liable to indemnify the insured. In support of the said contention, he drew my attention to paras 12 to 14 of the award and submitted that learned Tribunal after appreciating the oral and documentary evidence has held that as per statement of Dara Singh, AW 2, the deceased was travelling and was sitting on the mudguard of the tractor and, therefore, in view of the law laid down by the Apex Court in the case of National Insurance Co. Ltd. v. Botnmithi Subbhayamma, 2005 ACJ 721 (SC), the insurance company is not liable to indemnify the insured and Tribunal committed error in directing the insurance company to pay the amount of compensation and recover the same from the owner of the vehicle. The learned counsel for the appellant submits that this finding is contrary to the law laid down by the Apex Court as well as by this court. The learned counsel for the appellant submits that this finding is contrary to the law laid down by the Apex Court as well as by this court. He further submitted that once it is found that vehicle was driven contrary to the terms and conditions of the policy then insurance company is not liable to pay the amount of compensation and direction made by the learned Tribunal in para 22 of the impugned award is contrary to the decision of the Apex Court. ( 4. ) The Division Bench of this court in the case of Raj Bai v. New India Assurance Co. Ltd., 2008 ACJ 2017 (MP), has held that if the deceased was travelling in the tractor as a gratuitous passenger and the vehicle was insured as a goods vehicle and not for carrying passengers and no premium was paid for carrying passengers, the insurance company is not liable to indemnify the insured. ( 5. ) In the case of New India Assurance Co. Ltd. v. Gangadhar, 2008 (1) TAC 705 (MP), similar view has been taken by this court. ( 6. ) As per evidence of Dara Singh, AW 2 and as per F.I.R., Exh. P1, lodged by Bhanwarlal, the deceased was travelling in the tractor and, therefore, in view of law laid down by the Apex Court in the case of National Insurance Co. Ltd. v. Baljit Kaur, 2004 ACJ 428 (SC), the appellant insurance company is not liable to pay the amount of compensation and, therefore, the impugned order is partly modified to the extent that there is no liability on behalf of the insurance company because the deceased was travelling contrary to the terms and conditions of the insurance policy and, therefore, the appeal filed by the appellant is allowed to the extent as indicated hereinabove. ( 7. ) In M.A. No. 1173 of 2006, there is a delay of one day. Mr. Jitendra Sharma, learned counsel for the appellant submits that today he has filed an application for condonation of delay. ( 8. ) As per office report, no such application was filed and he gave a wrong information before this court about filing an application for condonation of delay on 28.2.2008. ( 9. Mr. Jitendra Sharma, learned counsel for the appellant submits that today he has filed an application for condonation of delay. ( 8. ) As per office report, no such application was filed and he gave a wrong information before this court about filing an application for condonation of delay on 28.2.2008. ( 9. ) On perusal of the record, I found that mandatory provisions of section 173 of the Motor Vehicles Act, 1988 has not been complied with and, therefore, appeal filed by the appellant is not maintainable. ( 10. ) In this appeal, the appellant is partly aggrieved by the award by which insurance company has been exonerated by the Tribunal and the appellant is also challenging the quantum of compensation awarded to the claimants. The learned counsel for the appellant submits that Tribunal committed an error in holding that the income of the deceased from kirana shop is Rs. 60 per day. No evidence of any witness has been recorded. ( 11. ) On perusal of the findings recorded by the Tribunal, I am of the considered view that Chhaniya, AW 2, in her statement very categorically stated that her husband deceased Siyaram was having kirana shop and his income was Rs. 3,000 per month. The Claims Tribunal considering the fact that shop is at village Vardha Khurd and, therefore, held that income of the deceased was Rs. 60 per day, i.e., Rs. 1,800 per month. Thus, the said finding arrived at by the Claims Tribunal is based on appreciation of oral and documentary evidence, therefore, it cannot be said that the Claims Tribunal committed any error in assessing the annual dependency of the appellant. At the time of the death, deceased was 25 years of age and in post-mortem report, Exh. P6, the age of the deceased is mentioned as 25 years and, therefore, multiplier of 17 was applied by the Claims Tribunal which is just and proper. The respondent Nos. 2, 3 and 4 are widow and daughters of the deceased and, therefore, the amount of Rs. 32,000 on other heads like funeral expenses, loss of consortium and loss of love and affection is just and proper. No interference in the quantum of compensation is warranted. The appeal filed by the appellant has no merit and is accordingly dismissed. ( 12. 32,000 on other heads like funeral expenses, loss of consortium and loss of love and affection is just and proper. No interference in the quantum of compensation is warranted. The appeal filed by the appellant has no merit and is accordingly dismissed. ( 12. ) In the result, appeal filed by the insurance company is allowed and appeal filed by the owner is dismissed. No costs. Orders accordingly.