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Madhya Pradesh High Court · body

2009 DIGILAW 969 (MP)

National Insurance Co. Ltd v. Sukhiya Bai

2009-08-12

S.K.GANGELE

body2009
Judgment S.K. Gangele, J. ( 1. ) This appeal has been filed by the appellant insurance company under section 173 of Motor Vehicles Act, 1988 against an award dated 25.8.2004, passed by the learned First Additional Member, Motor Accidents Claims Tribunal, Guna in Claim Case No. 4 of 2003 questioning the liability of the insurance company to indemnify the insured. The claimants-respondent Nos. 1 to 6 have filed cross-objection for enhancement of compensation. ( 2. ) On 16.10.2003 deceased Kashiram had been travelling in a tractor attached with trolley bearing registration No. MP 08-H 0107. Near Shanker Temple, the tractor turned turtle due to rash and negligent driving of the driver of the tractor. In the aforesaid accident deceased died. Report of the accident was lodged at the Police Station, Dharnawada, an offence vide Crime No. 246 of 2003 under sections 279, 337 and 304-A of Indian Penal Code was registered against the driver of the offending vehicle. ( 3. ) Learned Claims Tribunal has held that accident occurred when the deceased was travelling in a tractor attached with the trolley. Tractor was insured by the appellant insurance company for agricultural purpose. The Tribunal awarded a compensation of Rs. 2,00,000 and held that the insurance company is liable to indemnify the insured. Admittedly, from the facts of the case it is clear that the deceased died when he was travelling in tractor attached with the trolley and the tractor was insured for agricultural purpose. ( 4. ) The Honble Supreme Court in the case of United India Insurance Co. Ltd. v. Serjerao, 2008 ACJ 254 (SC), with regard to liability of the persons travelling in a trolley has held as under: "(8) So far as the question of liability regarding labourers travelling in trolleys is concerned, the matter was considered by this court in Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC) and it was held that the insurance company has no liability. In view of the aforesaid two decisions of this court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this court in Yallwwas case, 2007 ACJ 1934 (SC) and Brij Mohans case (supra)." ( 5. ) Honble Supreme Court further held in the case of New India Assurance Co. ) Honble Supreme Court further held in the case of New India Assurance Co. Ltd. v. Vedwati, 2007 ACJ 1043 (SC), with regard to liability of payment of compensation of the insurance company for the passengers travelling in the goods vehicle as under: "(11) Third party risks in the background of vehicles which are subject- matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to section 147 of the Act (sic) is to be (sic) with section 96 (sic 95) of the old Act. Proviso to section 147 of the Act reads as follows: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicles, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. (12) It is of significance that proviso appended to section 95 of the old Act contained clause (ii) which does not find place in the Act. The same reads as follows: (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or (13) The difference in the language of goods vehicle as appear in the old Act and goods carriage in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit the goods vehicle from carrying any passenger. A bare reading of the provisions makes it clear that the legislative intent was to prohibit the goods vehicle from carrying any passenger. This is clear from the expression in addition to passengers as contained in definition of goods vehicle in the old Act. The position becomes further clear because the expression used is goods carriage is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of the Act mandates the compulsory coverage against death of or bodily injury to any passenger of public service vehicle. The proviso makes it further clear that compulsory coverage in respect of conductors and drivers of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short W.C. Act). There is no reference to any passenger in the goods carriage. (14) The inevitable conclusion, there- fore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor." ( 6. ) A Division Bench of this court in the case of Arun Kumar Patel v. Terasi Saket, ILR (2008) MP 282, with regard to liability of the payment of compensation to the persons travelling in trolley attached with a tractor as baratis held as under: "(10) Coming to the submission based on rule 97 of M.P. Motor Vehicles Rules, that has been considered by a Full Bench of this court in Bhav Singh v. Savirani, 2008 ACJ 1043 (MP), in which the Full Bench has opined that rule 97 is not with respect to section 147 of the Motor Vehicles Act. Rule 97 has been framed with respect to permit conditions not to cover the risk under section 147 which is contained in a different Chapter of Motor Vehicles Act. Rule 97 has been framed with respect to permit conditions not to cover the risk under section 147 which is contained in a different Chapter of Motor Vehicles Act. Full Bench of this court has held thus: (12) Regarding the Division Bench judgment in Sarvanlals case, 2005 ACJ 1401 (MP), we find that the Division Bench has relied on not only the judgment of Full Bench in Jugal Kishores case, 2004 ACJ 297 (MP), but also the clause (vii) of rule 97 of M.P. Motor Vehicles Rules, 1994 (for short the Rules of 1994) made by the State of M.P. So far as the judgment of the Full Bench in Jugal Kishores case (supra) is concerned, we have already clarified the position of law. Regarding clause (7) of rule 97 of the Rules of 1994, we find that the Rules of 1994 have been made by the State of M.P. under section 96 of the Act and in particular subsection (2) (xxxi) which provides that without prejudice to the generality of the foregoing power, rules under section 96 may be made with respect to the carriage of persons other than the driver in goods carriages. Section 96 is placed in Chapter V of the Act which relates to Control of Transport Vehicles. Sub-section (1) of section 96 of the Act states that the State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. Hence, rule 97 of the Rules of 1994 has been made by the State Government to give effect to the provisions of Chapter V of the Act, which, as we have seen, relates to Control of Transport Vehicles. These rules obviously cannot have a bearing in interpreting the provisions of Chapter XI of the Act including sections 145 and 147 of the Act. As we have indicated above, the liability of the insurer to indemnify the insured in respect of death or bodily injury suffered by a passenger or an employee would be covered by the provisions of section 147 of the Act or the terms and conditions of insurance policy. Thus, the decision of the Division Bench in Sarvanlals case (supra) in so far as it relies on rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passenger does not lay down the correct law." ( 7. Thus, the decision of the Division Bench in Sarvanlals case (supra) in so far as it relies on rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passenger does not lay down the correct law." ( 7. ) It is clear from the principle of law laid down by the Honble Apex Court and the Division Bench of this court that the insurance company is not liable to indemnify the insured, while (sic the deceased was) travelling as a passenger in the trolley attached with the tractor. Hence, in my opinion, the award passed by the Claims Tribunal is contrary to law. It is hereby held that the insurance company is not liable to indemnify the insured. ( 8. ) With regard to cross-objection filed by claimants for enhancement of compensation, ordinarily cross-objection against co-respondents is not maintainable. However, Division Bench of this court in New India Assurance Co. Ltd. v. Guddi, 2003 ACJ 1526 (MP), has held that court has power to grant just and proper compensation even though appeal is not filed. The relevant findings of the Division Bench are as under: "(10) ...On perusal of section 173 of the Act, it provides that any person aggrieved by the award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. It further provides that no appeal by a person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it Rs. 25,000 or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court. (11) Question whether appeal is maintainable or not is to be determined in the light of the provisions of the rules framed under the Act. The Madhya Pradesh Motor Vehicles Rules, 1994 (hereinafter, referred to as the Rules) have been framed in exercise of the powers conferred by sections 28, 38, 65, 95, 96, 107, 111, 138, 159, 176, 211 and 213 of the Act, having been previously published as required by sub-section (1) of section 212 of the Act. Form of appeal is provided under rule 242 of the Rules. Rule 242 is reproduced below: 242. Form of appeal is provided under rule 242 of the Rules. Rule 242 is reproduced below: 242. Form of appeal and contents of memorandum.-(1) Every appeal against the award of the Claims Tribunal shall be preferred in duplicate in the form of memorandum signed by the appellant or an advocate or attorney of the High Court duly authorised in that behalf by applicant and shall be presented within ninety days from the date of the award to the Registrar of the High Court or to such officer authorised by him in this behalf. The memorandum shall be accompanied by a certified copy of the award. (2) The memorandum in sub-rule (1) shall set forth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative; and such ground shall be numbered consecutively. (3) Save as provided in sub-rules (1) and (2) the provisions of Order 21 and Order 41 of the First Schedule of the Code of Civil Procedure, 1908 (V of 1908) shall mutatis mutandis apply to appeals preferred to the High Court under section 173. Thus, from bare perusal of sub-rule (3), it is apparent that the provisions of Orders 21 and 41 of the First Schedule of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to appeals preferred to the High Court under section 173 of the Act. Thus, it is amply clear that in an appeal under section 173 of the Act, provisions of Order 41 of the Code shall apply. (12) Counsel for appellant then submitted that notification is not under section 173 of the Act, therefore, cross-objection is not maintainable. (13) From bare reading of rule 242 of the Rules, it is clear that the provisions of Order 41 of the Code shall mutatis mutandis apply to the appeals preferred to the High Court under section 173 of the Act. On plain reading of rule 242, it is clear that the provisions of Order 41 of the Code will be applicable in appeals filed against the award of the Claims Tribunal under section 173 of the Act. Since, the statute has conferred power and applicability of Order 41 of the Code, the provisions of cross-objection shall also apply. On plain reading of rule 242, it is clear that the provisions of Order 41 of the Code will be applicable in appeals filed against the award of the Claims Tribunal under section 173 of the Act. Since, the statute has conferred power and applicability of Order 41 of the Code, the provisions of cross-objection shall also apply. Contention of the learned counsel for appellant that since the insurance company has come up in appeal against a limited question, hence, appeal cannot be reopened under the garb of cross-objection on the questions which have not been challenged by the appellant is misconceived. Cross-objection is nothing but a form of appeal and this right has accrued to the party after it has received the notice of appeal. The party gets right to file cross-objection within thirty days from the date of receipt of notice. As such, it is open for the claimants to file cross-objection and claimants cannot be stopped from challenging the quantum of compensation by way of cross-objection. In the said facts of the case, we are of the considered opinion that the learned single Judge has not committed any error in entertaining the cross-objection and passing the award. In the said facts of the case, we hold that the law laid down in the case of Vaidya- nath Singh, 1997 ACJ 428 (MP), correct law and the cross-objection under Order 41, rule 22 of the Code is maintainable in an appeal under section 173 of the Act. (14) It is contended by the appellant insurance company in the connected L.P.A. No. 16 of 1998 that no cross-objection is filed by claimants. It is, therefore, urged that in the absence of cross-objection, compensation could not be enhanced. (15) In the case of Choudhary Sahu v. State of Bihar, AIR 1982 SC 98 , it is held that while exercising powers under Order 41, rule 33 of the Code, court can grant relief depending upon the exigency of the circumstances and the situation in a particular case in order to render justice. It is further held that even in the absence of cross-objection/appeal, in the interest of justice, equity and conscience, if aggrieved party is able to satisfy, then it is open for the court to grant proper relief in favour of the aggrieved person. It is further held that even in the absence of cross-objection/appeal, in the interest of justice, equity and conscience, if aggrieved party is able to satisfy, then it is open for the court to grant proper relief in favour of the aggrieved person. Appellate court is competent to enhance quantum of compensation awarded by the Claims Tribunal even in the absence of cross-objection. In the said facts of the case, since appellate court has enhanced the compensation in the interest of justice, equity and conscience, and the claimants were permitted to canvass the correctness of the order for which they have not chosen to challenge by way of appeal or cross-objection, the court can exercise its power under Order 41, rule 33 of the Code and grant equitable relief. Since the powers have been exercised under the aforesaid provision, no interference is warranted with the order passed by learned single Judge." ( 9. ) Wife of the claimant in her evidence stated that her husband died when he was going in a trolley attached with tractor. She further stated that her husband had been earning near about Rs. 10,000 per month. She further stated that she has 17 to 18 bighas of land. Mother of the deceased also stated that her son had been earning Rs. 10,000 per month. From the facts of the case and the evidence on record, it is clear that the deceased was an agriculturist, hence his income could be fixed at Rs. 2,500 per month, i.e., (Rs. 2,500 x 12) = Rs. 30,000 per annum. Claimants are mother, wife and four children of the deceased. As per the law laid by the Honble Apex Court in the matter of Sarla Verma v. Delhi Trans. Corpn., 2009 ACJ 1298 (SC), with regard to deduction in the event of dependants has held as under : "In Fakeerappa v. Karnataka Cement Pipe Factory, 2004 ACJ 699 (SC), while considering the appropriateness of 50 per cent deduction towards personal and living expenses of the deceased made by the High Court, this court observed: What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon the circumstances of each case. The deceased undisputedly was a bachelor. It would depend upon the circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction. In view of the special features of the case, this court, however, restricted the deduction towards personal and living expenses to one-third of the income. (14) Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandras case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (V3rd) where the number of dependent family members is 2 to 3; one-fourth (74th) where the number of dependent family members is 4 to 6; and one-fifth (1/5th) where the number of the dependent family members exceed six." ( 10. ) With regard to dependants, the dependency of the claimants would be fixed at 3/4th. Then annual loss of income to the claimants on account of death of deceased comes to Rs. 22,500. The Tribunal applied the multiplier of 17 after considering the age of the deceased as 35 years, is proper. After applying the aforesaid multiplier total loss of income comes to (Rs. 22,500 x 17) = Rs. 3,82,500. Because accident is of 2003, hence it would be just and proper to award Rs. 15,000 on other heads. Hence appellants are entitled to (Rs. 3,82,500 + Rs. 15,000) = Rs. 3,97,500. The Tribunal has already awarded a compensation of Rs. 2,00,000, hence the appellants will get enhanced compensation of (Rs. 3,97,500 - Rs. 2,00,000) = Rs. 1,97,500 (rupees one lakh ninety-seven thousand five hundred). The amount shall carry interest at the rate of 8 per cent per annum from the date of filing of the claim application up to realization. 50 per cent of the enhanced amount be deposited in equal proportion in the name of daughters for a period of seven years. Rest of the terms and conditions of the award will be same as per the award of the Tribunal. ( 11. 50 per cent of the enhanced amount be deposited in equal proportion in the name of daughters for a period of seven years. Rest of the terms and conditions of the award will be same as per the award of the Tribunal. ( 11. ) Consequently, appeal filed by the insurance company is hereby allowed. The appellant insurance company is exonerated from its liability to indemnify the insured. If any amount has been paid by the insurance company to the claimants, it is at liberty to recover the same from the owner of the tractor and for the cross-objection filed by the claimants-respondent Nos. 1 to 6 is allowed to extent indicated above. No order as to costs. Appeal allowed.