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2009 DIGILAW 943 (HP)

NEW INDIA ASSURANCE COMPANY LTD. v. LATA DEVI

2009-10-30

V.K.AHUJA

body2009
JUDGMENT V.K. Ahuja, J.-This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act, 1988, hereinafter referred to as ‘the Act’, against the award of the Motor Accident Claims Tribunal, Mandi, dated 18.7.2005, vide which the petition filed by the claimants/respondents No.1 and 2 under Section 166 of the Act was allowed and they were granted compensation to the extent of Rs.2.98 lacs, alongwith interest, which was payable by the appellant. 2. Briefly stated the facts of the case are that present respondents No.1 and 2 filed a claim petition as claimants under Section 166 of the Motor Vehicles Act in which present respondents No.3 and 4 were impleaded as owners of the vehicle and respondent No.5 was impleaded as the driver of the vehicle, while the present appellant was impleaded in the said petition being the insurer of the vehicle. It was alleged that the deceased boarded the bus No.HP-33-7211 on 10.6.2002 at Upper Bhambla and respondent No.5 i.e. the driver of the bus asked the deceased to sit on the roof of the bus while the bus was being driven in a rash or negligent manner by the said respondent No.5/its driver. The deceased fell down from the bus and was taken to hospital where he was declared dead. It was alleged that the accident took place due to the rash or negligent driving of the driver of the bus. The petitioners alleged that the deceased was studying in 10+1 class and was a brilliant student and as such a sum of Rs.8.20 lacs was claimed as compensation on the account of the death of the deceased by the petitioners, who are the parents of the deceased. 3. In reply by respondent No.3 Ashwani Kumar, he pleaded that he had sold the vehicle to respondent No.4 Prithi Chand, vide agreement, dated 15.1.2000, but the RC could not be transferred and as such he is not liable to pay the compensation. In reply by respondent No.4 Prithi Chand, he denied that the accident took place due to rash or negligent driving of the driver and also pleaded that he is not liable since the vehicle is duly insured with the Insurance Company. 4. In reply by respondent No.4 Prithi Chand, he denied that the accident took place due to rash or negligent driving of the driver and also pleaded that he is not liable since the vehicle is duly insured with the Insurance Company. 4. In reply by the original respondent No.3/Insurance company, it was only alleged in preliminary objection that in case it was found that the petition was being prosecuted in collusion, as owner failed to contest the same, in that event necessary permission under Section 170 of the Act was sought. It was also pleaded that the driver was not having a valid and effective driving license and the vehicle was being plied without route permit, registration and the plea was also taken that the compensation cannot be given since the deceased on his own had climbed the stairs from the rear side of the running bus. 5. The learned Tribunal framed the following issues: 1. Whether Surjit Singh died as a result of accident caused bybus HP-33-7211 which was being driven in rash and negligent manner by its driver? OPP 2. Whether at the relevant time, the bus in question was being driven in violation of the terms and conditions of the insurance policy and without a valid and effective driving lecence. If so, to what effect? OPR-4. 3. If the above issues are proved, to what amount and from whom the petitioners are entitled to receive? OPP 4. Relief. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. During the course of arguments, the submissions made by the learned counsel for the appellant were that the application under Section 170 of the Act was rejected. It was also submitted that since the vehicle had been transferred to original respondent NO.2 by the owner/ respondent No.1 Ashwani Kumar, the Insurance Company is not liable. It was also submitted that since the deceased himself had gone to the roof of the bus, therefore, the Insurance Company is not liable since there was violation of the terms and conditions of the Insurance Policy. 8. On the other hand, the learned counsel for respondent No.3 submitted that since the vehicle hadbeen sold to respondent No.4, he was liable to pay the compensation in case the Insurance Company was held not liable to pay the amount. 9. 8. On the other hand, the learned counsel for respondent No.3 submitted that since the vehicle hadbeen sold to respondent No.4, he was liable to pay the compensation in case the Insurance Company was held not liable to pay the amount. 9. On appraisal of the record of the case, it is clear that all the submissions made by the learned counsel for the parties are without any substance and these are liable to be rejected. 10. In regard to the plea that the vehicle had been transferred to respondent No.4 by respondent No.3, the original owner, there is no evidence on record to prove this fact since the agreement in question has not been proved by the respondents and, therefore, the registered owner i.e. respondent No.3 can be said to be liable in case the Insurance Company is held not liable to pay the amount in question. Neither the original owner nor the transferee has stepped into the witness box nor the agreement in question has been proved on record. In regard to the plea that the driver had permitted the deceased to sit on the roof of the bus or the deceased himself had gone without the knowledge of the driver of the bus, there is no evidence on record to substantiate this plea since no evidence has been led in this regard. No specific plea was taken by the appellant in his reply that since there was a violation of the terms and conditions of the policy as the driver had allowed the deceased to sit on the roof of the bus, therefore, the Insurance Company is not liable. Neither this plea was specifically taken nor was the same stands substantiated by any evidence led by the appellant to prove as to which particular condition was violated. On the contrary, a perusal of the decision of this Court in National Insurance Co.Ltd. versus Pushpa Devi and others, Latest HLJ 2004 (HP) 1280 shows that it was held in that case that even if the deceased was being carried on the roof of the bus at the time of the accident, this, by itself, cannot absolve the Insurance Company of its liability to pay the award amount because no such defence is available to the Insurance Company under Section 149(2) of the Motor Vehicles Act, 1988. Therefore, the contention put forth by the learned counsel for the appellant is repelled being devoid of any force. 11. In regard to the plea that the application under Section 170 of the Act was rejected by the Court, the record shows that no such application was filed and only a plea was taken in the reply, in the alternative, that in case there is proof of any collusion, they should be permitted to contest the petition and this cannot be treated as an application filed under Section 170 of the Act and they are not entitled to challenge the quantum of compensation granted by the Court on this score. The fact that the vehicle was insured with the appellant has not been denied and copy of the insurance policy was also tendered in evidence as Ext.R-1, which has not been disputed by the appellant to be incorrect. 12. Coming to the question of quantum, the age of the deceased was proved to be 16-1/2 years and the learned Tribunal has considered the income at Rs.80/- per day, as in case of a labourer, and accordingly the monthly income was assessed at Rs.2400/- and after deducting the 1/3rd, the compensation was granted applying the multiplier of 15. Keeping in view the schedule under Section 163-A, in case the age is less than 20, the multiplier of 16 was held to be most appropriate. A perusal of the latest decision of the Apex Court in United India Insurance Company Limited versus Bindu and others, (2009) 3 Supreme Court Cases 705, shows that it was held by their Lordships that the multiplier of 18 should be applied for persons in the age group of 21 to 25 years and accordingly the multiplier of 15 applied by the learned Tribunal, keeping in view the age and the above decision of the Apex Court as well as the provisions of Section 163-A of the Act, cannot be said to be excessive and the amount of compensation awarded by the learned Tribunal does not call for any interference by this Court. 13. In view of the above discussion, the appeal filed by the appellant is dismissed, alongwith costs payable to respondents No.1 and 2/claimants, which is assessed at Rs.3,000/-. The appeal is dismissed accordingly.