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Himachal Pradesh High Court · body

2009 DIGILAW 316 (HP)

NATIONAL INSURANCE COMPANY LTD. v. KANTA DEVI

2009-04-09

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J. :-The insurer of truck No.UP-07-J-4915 has come in appeal against award dated 1.11.2004 passed by learned Motor Accident Claims Tribunal, Una in M.A.C. Petition No.16/2003, awarding Rs.3,94,000/- compensation to respondents No.1 to 4 as per their shares mentioned in the impugned award. The respondents No.1 to 4 were the petitioners, the appellant was respondent No.1 and respondent No.5 in the appeal was respondent No.2 in the claim petition. 2. The facts in brief are that initially respondents No.1 to 4 and one Wattna Ram filed claim petition, claiming Rs.10,00,000/compensation on account of death of Bhagat Ram, aged 37 years who died on the spot on 13.8.2002 in an accident involving truck No.UP-07-J-4915 at Koteshwar road near Batching Plant of Jai Prakash Company in Teehri Garhwal, Uttrakhand within the jurisdiction of police station, Teehri Garhwal. The accident took place due to rash and negligent driving of Satnam truck driver. The deceased was earning Rs.3374/- per month salary. The respondents No.1 to 4 are the widow, daughter, son and mother of deceased Bhagat Ram. The truck was insured with appellant at the time of the accident. 3. The further facts are that M/s. Karam Chand Thapar and Brothers were executing a construction work of Dam at Teehri Garwal. The said company had engaged many private vehicles for executing the work. Bhagat Ram was an employee of M/s. Karam Chand Thapar and Brothers and he was assigned duty of loading and unloading of material from the vehicles. On 13.8.2002 Bhagat Ram got loaded the sand and bajri in the truck at Jogiana site of the company and was going to unload the same at the outlet side of the company and at that time due to rash and negligent driving of the driver of the truck accident took place and Bhagat Ram died. The name of Wattna Ram claimant was deleted from the petition vide order dated 26.8.2004. 4. The petition was contested by appellant by filing reply, in which preliminary objections of maintainability, driver of truck No.UP-07-J-4915 was not holding a valid and effective driving licence at the time of accident and the owner of the truck was having full knowledge of the same, the truck was being driven in violation of insurance policy, the deceased was a gratuitous passenger in the truck and was not an employee of the owner of the truck, were taken. On merits, most of the contents of the petition were denied for want of knowledge and it has been pleaded that insurer is not liable to pay any amount. 5. The owner of the truck had also contested the petition by filing reply and has submitted that Bhagat Ram was employed by M/s. Karam Chand Thapar and Brothers and the vehicle No. UP-07-J-4915 was attached to execute the earth work. Bhagat Ram was accompanying with the vehicle at the time of accident when the vehicle was carrying material. It was denied that driver of the truck was rash or negligent, he was driving the truck in normal speed. The accident took place due to rash and negligent driving of the vehicle which came from the opposite side. The amount claimed in the petition is excessive, in any case insurance company of the truck is liable to pay the compensation. The respondents No.1 to 4 had filed rejoinder to the replies of insurer and owner of the truck. The learned Tribunal had framed the following issues:- 1. Whether the driver of truck No.UP-07-J-4915 was driving the truck on 13.8.02 at 4 p.m. at Koteshwar road near Batching Plant of Jai Parkash Company, Uttranchal resulting in death of Bhagat Ram as alleged? OPP 2. If issue No.1 is proved whether the petitioners are entitled to compensation, if so from whom and how much? OPP. 3. Whether the petition is not legally maintainable? OPR.1 6. Whether the driver of the truck was not holding a valid and effective driving licence at the time of accident and the truck was being driven in violation of the conditions of the insurance policy as alleged? OPR.1. 7. Relief. The issue No.1 was decided in favour of respondents No.1 to 4, issues No.3 and 4 were decided against Insurance company and under issue No.2, learned Tribunal has awarded Rs.3,94,000/-compensation to respondents No.1 to 4 and appellant was directed to pay the award amount, hence this appeal by insurer. 6. I have heard Ms. Sunita Sharma, learned counsel for the appellant, Mr. N.K. Thakur, learned counsel for respondents No.1 to 4 and Mr. Ajay Sharma, learned counsel for respondent No.5 and have also gone through the record. 6. I have heard Ms. Sunita Sharma, learned counsel for the appellant, Mr. N.K. Thakur, learned counsel for respondents No.1 to 4 and Mr. Ajay Sharma, learned counsel for respondent No.5 and have also gone through the record. On behalf of the appellant, it has been submitted that the deceased was a gratuitous passenger in the goods vehicle and therefore, learned Tribunal has erred in awarding compensation to respondents No.1 to 4. It has also been submitted that insurer had filed application under Section 170 of the Motor Vehicles Act, 1988 which was allowed by the learned Tribunal and therefore, insurer has right to contest the petition on all grounds. Mr. N.K. Thakur, learned counsel for the respondents No.1 to 4 has supported the impugned award. He has submitted that the deceased was sitting in the truck as representative of owner of goods and was not an unauthorized person or gratuitous person at the time of accident, therefore, insurer of the truck is liable to pay compensation as assessed by the learned Tribunal. Mr. Ajay Sharma, learned counsel for respondent No.5 has submitted that owner of the truck has nothing to say in as much as he has accepted the impugned award by not challenging it in appeal, moreover, the learned Tribunal has directed the insurer of the truck to pay the compensation. 7. PW-2 Dilbag Singh has stated that he was employed as driver in the Thapar Company Teehri Garhwal and worked there for 4-5 years. In August, 2002, he was driver on a private tipper at Teehri Garhwal. On 13.8.2002 he was going from market towards the company. In the meantime a tipper bearing No.UP-07-4915 was going ahead of him. The tipper driver was negotiating a curve and all of a sudden it fell down. Bhagat Ram and two other persons were also sitting in the said tipper. All of them died in the accident. The accident might have taken place due to rash and negligent driving of the vehicle or on account of some mechanical defect. The owner of the truck before the learned Tribunal did not dispute the accident as well as death of Bhagat Ram in the accident. There is no reason to disbelieve the testimony of PW-2 Dilbag Singh. The accident might have taken place due to rash and negligent driving of the vehicle or on account of some mechanical defect. The owner of the truck before the learned Tribunal did not dispute the accident as well as death of Bhagat Ram in the accident. There is no reason to disbelieve the testimony of PW-2 Dilbag Singh. The appellant and respondent No.5 have not led evidence to rebut the statement of PW-2 which clearly establishes that accident took place due to rash or negligent driving of the driver of the truck No.UP-07-J-4915. The learned Tribunal has rightly decided issue No.1 in favour of respondents No.1 to 4. 8. As per Ex.PW-1/B, Bhagat Ram was an employee of M/s. Karam Chand Thapar and Brothers and his salary was Rs.3370/- salary in the month of June, 2002. The accident took place in August, 2002. In para-3 of the claim petition, age of deceased Bhagat Ram has been shown 37 years. The insurer in its reply has denied para-3 of the petition for want of knowledge. It means, the insurer has not denied the age of the deceased as pleaded in the petition. PW-1 Kanta Devi wife of deceased Bhagat Ram has given her age 35 years when she appeared as witness before the learned Tribunal. In these circumstances it is reasonable to infer that deceased was 37 years of age at the time of accident and death. The deceased was drawing salary Rs.3370/- per month. The respondents No.1 and 4 were major and respondents No.2 and 3 were minor when the claim petition was filed. The respondents No.1 to 4 were dependent on deceased Bhagat Ram. The income of Bhagat Ram was being shared by respondents as well as by Bhagat Ram himself. On the basis of unit system, per unit share from Rs.3370/- comes to say Rs.422/-, therefore, it can be safely assumed that out of Rs.3370/-, Bhagat Ram was spending on himself Rs.844/- per month. Therefore, dependency of respondents No.1 to 4 comes to Rs.2526/- per month. The learned Tribunal has taken the dependency of respondents No.1 to 4 Rs.2000/- on the lower side. 9. The deceased Bhagat Ram was 37 years of age, the learned Tribunal has applied multiplier of 16 which in my opinion is on the higher side. The Hon’ble Supreme Court in Oriental Insurance Company Ltd. Vs. The learned Tribunal has taken the dependency of respondents No.1 to 4 Rs.2000/- on the lower side. 9. The deceased Bhagat Ram was 37 years of age, the learned Tribunal has applied multiplier of 16 which in my opinion is on the higher side. The Hon’ble Supreme Court in Oriental Insurance Company Ltd. Vs. Jashuban and others 2008 (4) SCC 162 has allowed multiplier of 13 when the age of the deceased was 35 years. Therefore, in my opinion, in the present case, multiplier of 12 is the appropriate multiplier. In this way the amount of compensation comes to Rs. 2526 x 12 x 12 = Rs.3,63,744/-. The learned Tribunal has awarded Rs.10,000/- as conventional amount without indicating various sub heads of conventional amount. In my opinion amount of Rs.10,000/- awarded on account of conventional amount is on the lower side. The respondents No.1 to 4 are entitled to at least Rs.25,000/- on account of loss of consortium, love and affection, care, performance of last rites of deceased etc. Thus total amount of compensation comes to Rs.3,88,744/- as against Rs.3,94,000/- awarded by learned Tribunal. The difference is of Rs.5256/-, therefore, I am not inclined to interfere whatever amount of compensation has been awarded by the learned Tribunal. 10. The learned counsel for the appellant has submitted that deceased was unauthorized passenger in the truck. RW-1 Masta Singh Negi, Special Power of Attorney of Madan Singh Negi has stated that Madan Singh was the owner of vehicle No.UP-07-J-4915 and Satnam Dua was engaged by him as driver on the said truck. He was holding driving licence, copy of which is Ex.RW-1/A. The said vehicle was attached with Karam Chand Thapar and Brothers for transportation and to this effect Ex.RW-1/C is the deployment certificate of the company. Bhagat Ram was working in the said company and was used to load and unload the vehicles. The vehicle in question used to carry sand and bajri from one out let to another outlet. Bhagat Ram used to accompany the loaded truck. The RC of the vehicle is Ex.RW-1/D and Insurance Policy is Ex.RW-1/E . On behalf of the Insurance Company RW-1 was not cross-examined regarding the licence nor he was cross-examined that Bhagat Ram was not employed with Karam Chand Thapar and Company for loading and unloading the truck. The insurer did not lead any evidence. The RC of the vehicle is Ex.RW-1/D and Insurance Policy is Ex.RW-1/E . On behalf of the Insurance Company RW-1 was not cross-examined regarding the licence nor he was cross-examined that Bhagat Ram was not employed with Karam Chand Thapar and Company for loading and unloading the truck. The insurer did not lead any evidence. The issue of driving licence was on insurance company who has led no evidence. On the contrary driving licence Ex.RW-1/A has been placed on record which is for heavy goods vehicle and was also endorsed for hill roads. Therefore, appellant has failed to establish that Satnam driver of the truck was not holding valid and effective driving licence at the time of the accident 11. It has been established on record that Bhagat Ram at the time of accident was working with M/s. Karam Chand Thapar and Brothers who was the owner of the goods which the truck was carrying at the time of accident and Bhagat Ram was sitting in the truck as representative of the owner of the goods. The relevant part of Section 147 of the Motor Vehicles Act 1988 after amendment carried on 14.11.1994 is as follows:- 147. “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) x x 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 authorized 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; Sub-clause (i) of clause (b) of sub-section (i) covers liability of insurer which may be incurred by him in respect of death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle. In policy Ex.R-4 the insurer has charged separate Rs.75/- for legal liability to authorized non-fare paying passengers. In policy Ex.R-4 the insurer has charged separate Rs.75/- for legal liability to authorized non-fare paying passengers. In IMT 14 of Commercial Vehicles Insurance Policy B annexed with Ex.R-4, it has been provided that in consideration of the payment of additional premium the insurer will indemnify the insured against his legal liability in respect of death of or bodily injury to any person not being an employee of the insured not carried for hire or reward provided that the person is (i) the Charter of ( sic or) Representative of the Charter of the truck, (ii) any person directly connected with the journey in one form or another being carried in or upon or entering or mounting or alightin from the Motor Vehicle described in the Schedule of the Policy. Thus it is clear from Ex.R-4 that owner of the goods or his authorized representative carried in the vehicle is covered by Policy read with section 147 of the Act. It has not been proved on record that Bhagat Ram was unauthorized or gratuitous passenger in the truck at the time of the accident. He was rather sitting in the truck as representative of the owner of the goods, therefore, the insurance company is liable to pay the compensation and no fault can be found with the award of the learned Tribunal putting liability on the insurer to pay compensation. 12. The learned counsel for the appellant has failed to make out any case for interference. The learned Tribunal has rightly appreciated the material on record and therefore, appeal is liable to be dismissed 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordinglydismissed with no order as to costs.