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Madhya Pradesh High Court · body

2008 DIGILAW 526 (MP)

Dheer Singh v. Ravi Kumar

2008-04-03

U.C.MAHESHWARI

body2008
Judgment ( 1. ) THIS appeal is directed by the appellant/claimant under Section 173 of the motor Vehicles Act,1988 (in short the Act) for enhancement of the awarded sum and also for saddling the liability against the respondent No. 2/insurer to indemnify the claim, being aggrieved by the award dated 27. 4. 2000 passed by the IInd m. A. C. T. Mandla in Claim Case No. 58/99, whereby exonerating respondent no. 2/insurer, his claim regarding injuries sustained in the vehicular accident has been awarded against respondent No. 1 and 3 only for the sum of Rs. 33464/-along with interest at the rate of 11% P. A from the date of filing the claim petition. ( 2. ) THE facts giving rise to this appeal in short are that on 11. 6. 98, the appellant along with some other persons was travelling in a vehicle bearing registration no. MP-20-E-9779. The same was driven by respondent No. 3 in a rash and negligent manner, resultantly it met an accident, in which, the appellant sustained grievous injuries in his left leg resulting in permanent disability. ( 3. ) AS per further averments, after sustaining the injuries in the alleged accident, he was taken to the hospital, where his MLC report was prepared. On receiving the information at Police Station Bichhiya, an offence was registered against the respondent No. 3 and after holding the investigation, he was charge-sheeted for the offence under Section 279,337 and 338 of the IPC. The aforesaid vehicle was registered in the name of respondent No. 1 while the same was insured with respondent No. 2. In such premises, the appellant has preferred his claim for the compensation of Rs. 4,10,000/- along with interest on it at the rate of 18% P. A. ( 4. ) IN reply of respondent No. 1, by denying the averments of the claim petition, it is stated that the offending vehicle was duly insured with respondent No. 2 and the same was plied by respondent No. 3 having duly and effective driving license. On holding any liability against him, the same be saddled against respondent no. 2/insurer as the vehicle was duly insured with it and prayed for exonerating him from the liability of the alleged claim. ( 5. ) IN reply of respondent No. 2/insurer, all the averments made in the claim petition are denied. On holding any liability against him, the same be saddled against respondent no. 2/insurer as the vehicle was duly insured with it and prayed for exonerating him from the liability of the alleged claim. ( 5. ) IN reply of respondent No. 2/insurer, all the averments made in the claim petition are denied. In addition, it is stated that the offending vehicle was insured with it for 20 passengers and one driver but the same was plied for carrying the 50 passengers, contrary to the terms and conditions of the insurance police. Besides this, respondent No. 3 did not possess the valid and effective driving license to drive the same. In that way, the terms and conditions of the policy is also violated, therefore, it is not liable to indemnify any claim of the appellant and prayed for dismissal of the same. ( 6. ) THE respondent No. 3 was remained ex-parte before the tribunal. In view of the pleadings of the parties, as many as four issues were framed and evidence was recorded. On appreciation of the same, by holding that the aforesaid offending vehicle was carrying 50 passengers more than its capacity and, in that way, the same was plied in violation of the terms and conditions of the policy and in such background by exonerating the respondent No. 2/insurer, the claim was awarded for the aforesaid sum against respondent No. 1 and 3. Being aggrieved by the awarded sum and exonerating the respondent No. 2, the appellant has come forward to this court with this appeal. ( 7. ) SHRI Sanjay Saini, learned counsel for the appellant argued that looking to the nature of the injuries sustained by the appellant in such accident for which sufficient evidence is available on the record, the sum awarded by the tribunal is apparently on lower side. The same requires further enhancement by a reasonable sum at this stage. The findings exonerating the insurer is assailed by him saying that the vehicle was insured for 20 passengers and one driver, therefore, even on carrying the 50 passengers more than the capacity of such vehicle by respondent no. 1 and 3, the insurer cannot escape to indemnify the liability against the 20 passengers for which the policy was issued. Mere on account of carrying more passengers in the vehicle does not debar the passengers to indemnify their claim from the insurer. 1 and 3, the insurer cannot escape to indemnify the liability against the 20 passengers for which the policy was issued. Mere on account of carrying more passengers in the vehicle does not debar the passengers to indemnify their claim from the insurer. He further said that, in any case, insurer is liable to indemnify the claims of 20 persons arising out of the aforesaid accident in descending order and, if there are more than 20 claimants, then, the sum awarded in respect of 20 persons may be disbursed to all the victims and claimants and the remaining sum may be recovered from the owner and the driver. He also placed his reliance on a decision of the Apex Court and this court and prayed for saddling the liability against the insurer by enhancing the sum awarded by the tribunal by allowing this appeal. ( 8. ) ON the other hand, Shri Rakesh Jain with Shri Jitendra Singh Advocate while responding the aforesaid argument justified the impugned award and said that in view of the available evidence, it is apparent that the vehicle was plied for carrying the 50 passengers while its capacity was for carrying 20 passengers and one driver, for which the same was insured. Accordingly, the same was plied under the violation of the terms and conditions of the insurance policy, therefore, the respondent was not liable to indemnify any claim of the appellant or the other injured persons and in such premises, the tribunal has not committed any error in exonerating the insurer and prayed for dismissal of this appeal. ( 9. ) HAVING heard the counsel after examining the record and perusing the impugned award, I am of the considered view that the tribunal has committed grave error in exonerating the insurer to indemnify the liability of the claim and the sum awarded by it also appears to be on lower side. ( 10. ) IT is undisputed fact on record that the offending vehicle was insured with respondent No. 2 for 20 passengers and one driver. In such circumstances, the respondent No. 2 cannot escape from the liability to indemnify the claim of 20 passengers as it covered the risk of such number of passengers by taking its premium. Mere on account of carrying more passengers in a vehicle in comparison of its capacity, the insurer cannot be exonerated. In such circumstances, the respondent No. 2 cannot escape from the liability to indemnify the claim of 20 passengers as it covered the risk of such number of passengers by taking its premium. Mere on account of carrying more passengers in a vehicle in comparison of its capacity, the insurer cannot be exonerated. By the aforesaid policy, 20 passengers were insured, for which the premium was charged and the risk of such passengers were duly covered by the insurer under the provision of section 147 of the Act. In such circumstances, the insurer has no right to say that it is not liable to indemnify the claim upto 20 passengers. If the vehicle was overloaded and more than 20 passengers got injured, even then, the insurer is liable to indemnify the claim of 20 passengers in a descending order from higher side to the lower side. If there are more than 20 victims then such sum awarded in 20 cases shall be dealt with in accordance with the directions of the Apex Court. ( 11. ) THE aforesaid question was answered by the Apex Court in the matter of national Insurance Co. Ltd. Vs. Anjana Shyam and others-2008 (1) MPLJ-1 in which it was held as under : "22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded in the extent of the number of passengers covered by the insurance policy. " "23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the Insurance Company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. " "23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the Insurance Company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the Insurance Company to deposit the lump sum. Thus, the liability of the Insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the Insurance Company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the Insurance Company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately. " ( 12. ) IN the above mentioned case, the insurance policy was issued for 42 passengers while the concerning vehicle was carrying 90 passengers. Out of them 26 died and 63 got injured and, on consideration, the insurer was held liable to indemnify the claim upto 42 passengers in descending order from higher side to lower side and the total amount was directed to be deposited with the tribunal and some directions regarding its disbursement was given and the remaining sum was directed to be recovered from the owner and the driver of the vehicle. Such principle is directly applicable in the present case. Such principle is directly applicable in the present case. Therefore, the liability to indemnify the claim is saddled against the respondent No. 2/insurer in accordance with the directions of the Apex Court given in the above-mentioned case. In such premises the findings of the tribunal in this regard are hereby set aside and the liability of the claim of 20 persons who died or sustained the injury in the alleged accident is saddled jointly and severally against all the respondents. Till this extent, the impugned award is modified. ( 13. ) COMING to the question regarding enhancement of the compensation. As per available evidence, the appellant sustained the fracture of dorsal bone in left leg. Inspite its treatment, he suffered 11% permanent disability in his leg, for which the certificate (Ex. P/2) is also proved on record. The same was issued by Dr. K. K. Srivastava (A. W. 2 ). As per the deposition of doctor, due to aforesaid fracture in the leg, the appellant has sustained permanent stiffness in the leg. He also proved the concerned register (Ex. D/1), in which the record of the certificate is maintained by the district Medical Board. Although, this witness has been cross-examined at length, I have not found any circumstance, destroying the version stated by him in-chief. ( 14. ) IN the deposition of Dheer Singh (AW-1), he categorically stated regarding the alleged accident, sustaining the aforesaid injuries and also stated regarding his income Rs. 1800/-per month. His age was 25 years on the date of the incident. ( 15. ) IN view of the aforesaid Medical certificate and the deposition of the doctor, the tribunal has not committed any error in holding 11% permanent disability in his leg, hence such finding is hereby affirmed. ( 16. ) COMING to determining the quantum of compensation, I deem fit to assess the same by adopting the guideline given under the schedule enacted under Section 163-A of the Act. As per deposition of the appellant, he was earning Rs. 1800/-per month. Accordingly, he was earning Rs. 21600/-per annum and its 11% comes to Rs. 2376/-and the same is held to be the pecuniary loss because of the aforesaid injuries. In the age group of 25, as per schedule, the multiplier of 18 is applicable. On applying the same, the total compensation comes to Rs. 2376x18=42768/ -. The same is awarded. Accordingly, he was earning Rs. 21600/-per annum and its 11% comes to Rs. 2376/-and the same is held to be the pecuniary loss because of the aforesaid injuries. In the age group of 25, as per schedule, the multiplier of 18 is applicable. On applying the same, the total compensation comes to Rs. 2376x18=42768/ -. The same is awarded. Besides this, he also deserves Rs. 10,000/-on the head of treatment as awarded by the tribunal and I deem fit to award Rs. 5000/-on account of his loss of income during the course of treatment, special diet, attendant expenses and also on such relevant heads. Accordingly, such sum comes to rs. 57768/ -. The same is round-up to Rs. 57800/ -. ( 17. ) IN view of the aforesaid, by allowing this appeal in part, the liability to indemnify the claim is saddled subject to direction given by the Apex court in the case Anjana Shyam (supra) against all the respondents including the insurer and, the sum awarded by the tribunal is enhanced from Rs. 33464/-to Rs. 57800/ -. The enhanced sum shall carry the interest at the rate of 6% per annum from the date of filing the claim petition. The same is to be paid within three months from the date of this order. Besides the above, the respondents shall also pay Rs. 1500/-to the appellant the cost of this appeal. The tribunal is directed to deal the matter in accordance with the directions of the Apex Court given in the aforesaid cited case. ( 18. ) THE appeal is allowed in part as indicated above.