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2010 DIGILAW 858 (CAL)

New India Assurance Company Ltd v. Shibani Mondal

2010-07-23

BHASKAR BHATTACHARYA, PRABHAT KUMAR DEY

body2010
Judgment :- Bhaskar Bhattacharya, J.: This appeal is at the instance of the Insurance Company and is directed against an award dated 18th December, 2009 passed by the Motor Accident Claims Tribunal, Hooghly, in M.A.C. Case No.351 of 2008 thereby disposing of a proceeding under Section 166 of the Motor Vehicles Act by awarding a total sum of Rs.2,63,500/- with a direction upon the Insurance Company to pay the said amount within two months from the date of award with further stipulation that in default of such payment, the amount should carry interest at the rate of 9% per annum from the date of filing of the application till actual payment. The Insurance Company was, however, permitted to realise the said amount from the owner of the vehicle after making payment. The claimants, on the other hand, has preferred the cross-objection for enhancement of the amount awarded and also for passing direction for payment of interest on the awarded sum irrespective of the fact whether the Insurance Company failed to deposit the amount within the time stipulated in the award. Both the matters were taken up together. According to the claim-application, the victim was aged 40 years at the time of death and had the business of selling fish. It is stated in the claim application that for the purpose of carrying big containers in order to bring fishes from the market, the victim hired the goods’ vehicle and on the way to the market, met with an accident, as a result, he died. According to the claimants, due to rash and negligent driving on the part of the driver of the offending vehicle, the same capsized resulting in the death of the victim. The claimants alleged that the victim used to earn Rs. 3,000/- a month from the business of selling fishes. The owner of the vehicle did not contest the proceeding. However, the Insurance Company after taking leave under Section 170 of the Act contested the said proceeding by filing written statement, although no evidence was adduced of its own. In the written statement, the Insurance Company denied the allegations made in the claim-application. In addition to that, it was contended that the offending vehicle being a goods’ vehicle was illegally carrying passengers violating the express “terms and conditions of the policy in question” and as such, the Insurance Company had no liability to pay any compensation. In the written statement, the Insurance Company denied the allegations made in the claim-application. In addition to that, it was contended that the offending vehicle being a goods’ vehicle was illegally carrying passengers violating the express “terms and conditions of the policy in question” and as such, the Insurance Company had no liability to pay any compensation. According to the Insurance Company, the victim was a gratuitous passenger in the goods’ vehicle. At the time of hearing of the proceeding, the widow of the victim gave evidence in support of the claim-application and specifically asserted that her husband and others hired the said truck for the purpose of carrying big containers (Hanri) for bringing fishes and he was travelling in the vehicle as the owner of the goods. The PW-2 was an eyewitness and he was travelling in the same truck and he was also travelling for the purpose of purchasing fishes with his own containers. He corroborated the statements of the widow of the victim. The learned Tribunal below on consideration of the evidence on record held that due to rash and negligent driving on the part of the driver of the said truck the accident occurred. The learned Tribunal further found that the offending truck was loaded with sand and when the same reached in front of the Water Treatment Plant near Iswar Gupta Setu, the same capsized, as a result, the victim and two others had fallen under the sand and consequently, the victim died. The learned Tribunal further found that the truck was not meant for carrying passenger particularly when the same was carrying sand at the relevant point of time and it appeared from the tenor of language of the claim petition and F.I.R. that the victim and two others were travelling in the same truck for purchasing fish and they were also carrying containers along with them in the said truck. The learned Tribunal further recorded that it was not the claim of the petitioners that the victim and two other were carrying fishes in the containers and therefore, according to the learned Tribunal below, the victim must be held to be the gratuitous passenger of the said truck. The learned Tribunal further recorded that it was not the claim of the petitioners that the victim and two other were carrying fishes in the containers and therefore, according to the learned Tribunal below, the victim must be held to be the gratuitous passenger of the said truck. However, the learned Tribunal below was of the opinion, that in the facts and circumstances of the case, it is the duty of the Insurance Company to first make payment to the claimants and then, recover the amount from the owner of the vehicle. Ultimately, the learned Tribunal below found that the income of the victim should be treated to be Rs.2,000/- a month and by applying the multiplier of 16 and after deducting one-third by application of the Second Schedule of the Motor Vehicles Act, the Tribunal arrived at the figure of Rs.2,63,5000/-. Mr. Das, the learned advocate appearing on behalf of the appellant/Insurance Company, has attacked the award from various angles. First, Mr. Das contends that the learned Tribunal below having found that the victim was a gratuitous passenger, should not have directed his client to first pay the amount and then, recover the amount from the owner of the vehicle. Secondly, Mr. Das contends that merely because the victim was found to be travelling in the goods’ vehicle with some containers, such containers cannot be treated to be the “goods” owned by the victim. According to Mr. Das, even if a goods’ vehicle is hired by a businessman for purchasing materials, if those materials were not there in the vehicle at the time of accident, he cannot get the benefit of insurance in terms of Section 147 of the Act. In other words, Mr. Das contends that if fishes were there in the containers, it could be said that the owner had hired the vehicle for carrying his goods. According to Mr. Das, even if a businessman hires a goods’ vehicle and travels in it with empty containers for the purpose of purchasing goods, he cannot get the benefit of Section 147 of the Act unless those goods proposed to be purchased are inside the containers. In support of such contention, Mr. Das relies upon the following decisions of the Supreme Court: 1. New India Assurance Co. Ltd. vs. Vedwati & Ors. reported in 2007 ACJ 1043 ; 2 National Insurance Co. Ltd. vs. Rattani & Ors. In support of such contention, Mr. Das relies upon the following decisions of the Supreme Court: 1. New India Assurance Co. Ltd. vs. Vedwati & Ors. reported in 2007 ACJ 1043 ; 2 National Insurance Co. Ltd. vs. Rattani & Ors. reported in 2009 ACJ 925 ; 3. Oriental Insurance Company Ltd. vs. Brij Mohan & Ors. reported in 2007 (3) T.A.C. 20 (S.C.); 4. National Insurance Company Ltd. vs. Prema Devi & Ors. reported in 2008 AIR SCW 2023; 5. National Insurance Company Ltd. vs. Kaushalaya Devi & Ors. reported in (2008) 8 SCC 246 ; 6. National Insurance Co. Ltd. vs. Baljit Kaur & Ors. reported in 2004 ACJ 428; 7. National Insurance Co. Ltd. vs. Cholleti Bharatamma & Ors. reported in (2008) 1 SCC 423 . Mr. Banik, the learned advocate appearing on behalf of the claimants/respondents/cross-objectors, on the other hand, has opposed the aforesaid contentions of Mr. Das and has contended that in this case, the fact that the victim hired the goods’ vehicle for carrying empty containers has not been disputed by the owner of the vehicle and no suggestion was given to his client that the vehicle was not hired for the above purpose. In such circumstances, according to Mr. Banik, once the victim had hired the goods’ vehicle for carrying containers with the ultimate object of purchasing fishes, those containers should be treated to be “goods” being carried in a goods’ vehicle and the owner of the containers should be treated to be the owner accompanying the goods. In support of his cross-objection, Mr. Banik submits that the leaned Tribunal below erred in law in treating the income of the victim to be just Rs.2,000/- a month when it is proved that he is a businessman dealing with fishes and hired a lorry for the purpose of bringing fishes with big containers. Mr. Banik, therefore, prays for assessing the compensation by treating the income of the victim to be Rs.3,000/- a month. Mr. Banik also prays for grant of interest at the rate of 8% per annum from the date of filing of the application. Mr. Das, the learned advocate appearing on behalf of the appellant, however, points out that the Tribunal below wrongly applied the multiplier of 16 although the victim was 40 years of age and according to him, the appropriate multiplier should be 15. Mr. Mr. Das, the learned advocate appearing on behalf of the appellant, however, points out that the Tribunal below wrongly applied the multiplier of 16 although the victim was 40 years of age and according to him, the appropriate multiplier should be 15. Mr. Das submits that there is no justification of treating the income of the victim to be Rs.3,000/-a month when sufficient material has not been placed in support of the claim. Mr. Das, therefore, prays for setting aside the cross-objection filed by the claimants. Therefore, the first question that falls for determination in this appeal is whether the victim could be said to be a gratuitous passenger as found by the learned Tribunal below. A gratuitous passenger is one who travels without making payment to the owner of the vehicle for such travelling. In the case before us, it is the specific case of the claimants that the victim and his friends hired the goods’ vehicle for carrying their big containers in order to bring fish. The owner of the vehicle has not disputed such fact by filing written statement and, at the same time, no suggestion to the contrary was given by the P.Ws. on that question. Therefore, we find that it is established from the evidence on record that the victim and his friends hired the goods vehicle for the purpose of carrying their containers in order to bring fish. Therefore, in such circumstances, there is no scope of describing the victim as a gratuitous passenger. Although we are quite conscious that the said goods’ vehicle also contained huge amount of sand, and such sand was not owned by the victim or his friends, we are of the view that for such reason the case of the claimants will not be weakened in anyway. A goods’ vehicle may be hired by many persons at the same time for carrying different goods. In the case before us, in the absence of any evidence to the contrary, we are satisfied that the victim at least hired the vehicle for carrying his big containers in order to bring fish although the said vehicle also carried sands owned by some other person. The next question will be whether, in such circumstances, the victim should be said to be the owner of the goods, which is being carried in the goods’ vehicle. The next question will be whether, in such circumstances, the victim should be said to be the owner of the goods, which is being carried in the goods’ vehicle. In our view, once it is established that the victim carried containers and for that purpose he hired the vehicle, the containers should be treated to be the goods for the purpose of Section 147 of the Act. It is not necessary that simply because the victim was doing business of selling fishes, so long the containers do not contain fishes, those cannot be said to be goods. Therefore, a vehicle can be hide even for the purpose of carrying container though actually inside the container other goods will be carried at the time of returning back from the market. All that is necessary is that the vehicle must be hired for carrying those containers and such fact has been proved in this case. We, therefore, find that in this case it has been established that the victim was really travelling by hiring the goods’ vehicle for carrying containers although the selfsame vehicle was hired by the other persons also for carrying their containers and some other, for carrying sand. Therefore, the learned Tribunal below had no justification to describe the victim as a gratuitous passenger and the decisions relied upon by the Tribunal regarding liability of the Insurance Company to make payment and then recover the same from the owner are inapplicable to the facts of the present case. We hold that in the facts of the present case it has been established from the materials on record that the victim was entitled to get benefit of Section 147(1) (b) of the Act as the owner of the goods travelling in the goods’ vehicle hired by him for that purpose. We now propose to deal with the decisions cited by Mr. Das. In the case of New India Assurance Co. Ltd vs. Vedwati and other (supra), the deceased along with others were returning from his village in a tractor after delivering some goods there and due to rash and negligent driving on the part of the driver of the tractor, the same overturned resulting in the death of the victim. Das. In the case of New India Assurance Co. Ltd vs. Vedwati and other (supra), the deceased along with others were returning from his village in a tractor after delivering some goods there and due to rash and negligent driving on the part of the driver of the tractor, the same overturned resulting in the death of the victim. In such a case, the Supreme Court held that the insurance company had no liability to pay the compensation for a passenger when the tractor was not meant for carrying passengers. In the case before us, the vehicle was a good’s vehicle and it has been established that the victim for carrying their empty container hired the vehicle and was travelling with his goods viz. the empty containers. Thus, the principles laid down in the case of Vedwati (supra), which was a case of travelling in a tractor without any goods whatsoever cannot have any application to a case where the owner of the goods while travelling in good’s vehicle with his goods met with an accident. In the case of National Insurance Co. Ltd. vs. Rattani (supra), the accident took place when the deceased along with others were travelling as members of a marriage party in a goods’ vehicle as “barat’. The Supreme Court accepted the finding of the Tribunal that in FIR there was no mention that dowry articles or furniture etc. were loaded in the vehicle. In such a situation, the Apex Court held that the Insurer had no liability and it was further held that even if it was assumed for the sake of argument that the goods offered by the bride party as a gift were carried in the vehicle, it could not be held that the deceased and theirs would become representatives of the owner of the goods. Thus, the said decision is not at all attracted to a case of hire of good’s vehicle for carrying containers when the owner of the container himself was a passenger of the vehicle who died. In the case of Oriental Insurance Company Ltd vs. Brij Mohan and others (supra), the first respondent, Brij Mohan, was engaged in digging earth from a place and the earth so dug was loaded on a trolley attached to the tractor. In the case of Oriental Insurance Company Ltd vs. Brij Mohan and others (supra), the first respondent, Brij Mohan, was engaged in digging earth from a place and the earth so dug was loaded on a trolley attached to the tractor. The respondents and others were returning to the brick-kiln and the respondent No.1 sat on the earth loaded on the trolley when the accident occurred resulting in his injury. In such a case, the Apex Court in paragraph 10 of the judgment held that the respondent No.1 being neither the owner nor being driver but being a mere passenger travelling on a trolley attached to the tractor was not liable to be compensated by the Insurance Company. However, having regard to the fact that he was poor labourer, the Apex Court in exercise of its power under Article 142 of the Constitution of India directed the Insurance Company to pay the amount and then to realize the same from the owner. In our opinion, the principles laid down in the said decision cannot have any application to a case where the owner of the goods died while travelling in the goods’ vehicle with the goods hired for the purpose of carrying the goods. In the case of National Insurance Company vs. Prema Devi and others (supra), the injured was indisputably travelling in the good’s vehicle not as the owner of the goods or the representative of the owner but was a gratuitous passenger (See Paragraph 3 of the Judgment) and thus, the said decision cannot have any application to the facts of the present case. In the case of National Insurance Company vs. Kaushalaya Devi and others (supra), as it appears from paragraph 14 of the judgment, the deceased had been travelling in the truck for the purpose of collecting the empty boxes. He was a vegetable seller and he was not travelling as the owner of the goods viz. vegetable and in such circumstances, the Supreme Court held that the Insurance Company had no liability. Mr. Das placed strong reliance upon the said decision and contended that here also, the subject-matter of the business viz. fishes were not being carried. We find that in the above case, the victim was not carrying any empty container but was travelling for the purpose of “collecting empty containers”. Mr. Das placed strong reliance upon the said decision and contended that here also, the subject-matter of the business viz. fishes were not being carried. We find that in the above case, the victim was not carrying any empty container but was travelling for the purpose of “collecting empty containers”. Thus, at the time of accident, the victim was empty-handed and was going as a mere passenger for collecting empty containers. In the case before us, the victim himself was carrying the container and the vehicle was hired for carrying container. Thus, the said decision cannot have any application to the facts of the present case. We are unable to accept the extreme contention of Mr. Das that a fish seller cannot get the benefit of Insurance if he hires a vehicle for carrying his container by which he intended to bring fish and that fish must be carried in the vehicle. All that is necessary was that the goods’ vehicle must be hired for carrying any type of goods and at the time of accident, the said goods must be in the vehicle along with the owner or his representatives. Thus, it is preposterous to suggest that a businessman even after hiring a goods’ vehicle for carrying the containers for purchasing fishes and travelling with the containers will not get the benefit of Section 147 of the Act. In the case of National Insurance Company vs. Baljit Kaur and others (supra), it was held that if in a good’s vehicle some passengers are taken whether for hire or reward or otherwise without any goods such person would not get the benefit of third party insurance. In the case before us, undisputedly, the victim hired the vehicle not for simply travelling as a passenger but for carrying his container. In the case of National Insurance Company Ltd. vs. Cholleti Bharatamma and others (supra), several claim applications involving the question of liability of the Insurer to pay compensation in respect of the death or injury of the passengers of a goods’ vehicle were decided. Of those cases, only the SLP (C) nos. 7288-90 of 2003 dealt with accident which occurred after the amendment of the relevant provisions of law and applicable to the case in hand. In those cases, the accident occurred on May 1, 1997. Of those cases, only the SLP (C) nos. 7288-90 of 2003 dealt with accident which occurred after the amendment of the relevant provisions of law and applicable to the case in hand. In those cases, the accident occurred on May 1, 1997. The Tribunal allowed the application with the following findings: "...The lorry was overturned and caused the instantaneous death of four passengers. He received small injuries. He also deposed that the accident took place due to the negligence of the driver of the said lorry. On perusing his evidence I am satisfied that he is a truthful witness. He was traveling in the crime vehicle along with deceased along with his goods as per his evidence..." Although the High Court dismissed the appeal of the Insurance Company by following the decision of the Supreme Court in the case of Satpal Singh (2000 ACJ 1), on appeal before the Supreme Court, the said court set aside the order of the High Court by recording the following observations: “In view of the nature of evidence available before us, we have no other option but to set aside the judgment. These appeals are, therefore, allowed accordingly. There shall be no order as to costs in each case.” It is, therefore, apparent that the Supreme Court set aside the finding of fact recorded by the Courts below. No ratio was decided in the said appeal, which could be of any help to Mr. Das. Mr. Das, however, by relying upon the statement in paragraph 19 of the judgment argued that the owner of the goods means only the person who travels in the cabin of the vehicle and not the other persons travelling in the good’s vehicle. It appears that the Supreme Court in those cases was dealing with a case from Andhra Pradesh and the Motor Vehicles Rules of that State specifically prohibit carrying of more than a limited number as passenger of a goods’ vehicle as would appear from paragraph 23 of the judgment which is quoted below: “As the permitted seating capacity of the lorry is only 3 including the driver and cleaner and as only one non-fare paying passenger as owner of goods can travel in the cabin and as the deceased has admittedly traveled in the cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Rules. I am of the view that R-2 cannot be fastened with the liability to pay compensation along with R-1 to all the injured and legal representatives of deceased. At best it is liable to pay compensation jointly and severally along with R-1 only in respect of one non-fare paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened with liability. Further all the petitioners and deceased cannot be deemed to have travelled as owners of the paddy as the paddy is said to be in bags and orally kept in loose in the lorry and it is enough if any one of them have travelled in the lorry on behalf of all, as owner of the lorry. Rule 277(3) of A.P. Motor Vehicles Rules, clearly shows that no person shall be carried in the goods vehicle except as provided in the Rule under the statute and as the only person, who are permitted to carry in goods vehicles are the owner of hirer or bona fide employee of owner of hirer and total number of such persons, who could be carried in goods vehicles is not more than seven including the driver. As per Rule 252(2) person shall be carried in the cab of the vehicle beyond the seating capacity as per clause (2). No person shall be carried on the load or otherwise. Rule 4 empowers the R.T.A. to allow large number of persons to be carried. As the seating capacity of the lorry is only 3 as per Ex.B1 and B3 and as the risk of only owner of goods is covered by Ex.B2 policy, whereas about 40 to 42 persons travelled in the lorry by sitting on the load, which is not permitted and as there is no material to show that R.T.A. permitted carriage of more than seating capacity but on the other hand the permit is cancelled. I am in agreement with the contention of the learned counsel for the respondent that it cannot be fastened with the liability for compensation.” In the Rules framed by the Government of West Bengal, there is no such restriction and no law could be produced by the parties indicating any bar of hiring a goods’ vehicle at a time by more than one person nor is there any restriction of number of persons who can jointly hire a goods’ vehicle for carrying their separate goods. Thus, there is no bar of several owners of different goods travelling in a goods’ vehicle at a time and getting benefit of insurance as owner of the goods carried with the goods in the vehicle. The said decision, therefore, does not help Mr. Das in anyway. The decisions cited by Mr. Das, thus, are of no avail to his client. The next question will be what should be the amount of compensation. The widow of the victim stated in her evidence that her husband used to earn sometime Rs.50/- a day, sometime Rs.100/- a day and sometime more than Rs.100/- a day. In the claim-application, according to the claimants, the victim used to earn Rs.3,000/- a month. As pointed out by the Supreme Court in the case of Smt. Laxmi Devi vs. Md. Tabbar reported in AIR 2008 SC 1858 , now-a-days, even an unskilled labourer earns Rs.100/- a day and the average income of the victim in the facts of the present case must be around Rs.80/- a day. We, therefore, propose to reassess the amount by treating the income of the victim to be Rs.2,400/- a month, however, with multiplier of 15 as the victim was 40 years old by application of the second schedule of the Act. Thus, the amount comes to Rs. 1600 x 12 x 15 = Rs.3,60,000/-. The claimants are also entitled to get interest at the rate of 8% per annum from the date of filing of the application till actual payment. We, thus, dismiss the appeal and allow the cross-objection. The awarded amount is modified to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs. I agree.