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2011 DIGILAW 249 (CHH)

RUPESH KUMAR v. BALRAM SINGH RAJPUT

2011-07-26

N.K.AGARWAL, RAJEEV GUPTA

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ORDER As per Hon'ble Shri N.K. Agarwal, J. :- 1. By this common award, Misc. Appeal Nos. 407, 408, 409, 410, 411, 412, 413 & 4 15 of 2006 are being disposed of as the common facts & issues are involved in all these appeals and are arise out of same accident. 2. Brief facts of the case are : The respondents were driver, owner and insurer of Truck bearing registration No. MP-17-C-2533 on the date of accident i.e. 16.02.05. On that day, about 22-27 persons were traveling in above Truck. The said Truck turned turtle as a result of which Preetam Sahu, Maneesha Bai, Nawal Singh Gond, Kunti Bai, Saraswati Bai, Jai Singh Baiga, Jamuni Bai• and Kailash succumbed to the injuries sustained in the said accident. The claimants in all the appeals are their legal representatives. 3. The Tribunal, on a close scrutiny of the evidence led, material placed and submissions made by the parties, held: accident has occurred due to rash and negligence driving of the driver of offending Truck bearing registration No. MP-17-C-2533; deceased were sitting in the Truck in breach of policy conditions; exonerated the insurance company from its liability to pay compensation to the claimants; assessed and awarded Rs. 4,15,000/- in MAC No. 407/06 (claim case No. 8/05), Rs. 2,66,200/- in MAC No. 408/06 (claim case No. 9/05), Rs. 3,31,000/- in MAC No. 409106 (claim case No. 10/05), Rs. 3,52,600/- in MAC No. 410/06 (claim case No. 11/05), Rs. 3,52,600/- in MAC No. 411/06 (claim case No. 12/05), Rs. 3,14,200/- in MAC No. 412/06 (claim case No. 13/05), Rs. 2,95,000/- in MAC No. 413/06 (claim case No. 14/05) and Rs. 2,56,690/in MAC No. 415/06 (claim case No. 15/05) as compensation in favour of claimants against the owner and driver of offending Truck. 4. Shri Malay Kumar Bhaduri, learned counsel appearing for the appellants vehemently argued that the Tribunal has erred in assessing the monthly income of the deceased; in selecting low multiplier, and in awarding compensation which is shockingly on lower side. It was further contended by Shri Bhaduri that Tribunal went wrong in exonerating the respondent No. 3/Oriental Insurance Company from its liability to pay compensation, inasmuch as, respondent No. 3/insurance company by charging extra premium of Rs 75/-, assumed the risk of gratuitous passengers sitting in the Truck. 5. It was further contended by Shri Bhaduri that Tribunal went wrong in exonerating the respondent No. 3/Oriental Insurance Company from its liability to pay compensation, inasmuch as, respondent No. 3/insurance company by charging extra premium of Rs 75/-, assumed the risk of gratuitous passengers sitting in the Truck. 5. On the other hand, Shri P. Dutta and Shri Ravi Bhagat, learned counsel appearing for respondent No. 3/The Oriental Insurance Company Limited supported the award impugned and submitted that in the facts and circumstances of the case the Tribunal has rightly exonerated and awarded compensation after carefully examining the evidence in each case which is just and proper compensation. 6. We have heard the counsel appearing for the parties, perused the award impugned and records of the Tribunal. 7. We shall first examine sufficiency or otherwise of the amount of compensation awarded by the Tribunal. 8. In MAC No. 407/06, the Tribunal assessed monthly income of the deceased at Rs. 2500/- and claimants' monthly dependency at Rs. 2000/-, taking into consideration the age of the deceased as 25 years, applied multiplier of 17 and awarded Rs. 4,08,000/- on account of loss of dependency and further awarded Rs. 7,000/- on other heads, and thus, awarded total sum of Rs. 4,15,000/- as compensation to the claimants for the death of deceased Preetam Sahu in the said accident. 9. In MAC No. 408/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1200/-, taking into consideration the age of the deceased as 24 years, applied multielier of 13 and awarded Rs. 2,59,200/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs, 2,66,200/- as compensation to the claimants for the death of deceased Maneesha Bai in the said accident. 10. In MAC No. 409/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1800/-, taking into consideration the age of the deceased as 35 years, applied multiplier of 15 and awarded Rs. 3,24,000/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs. 3,31,000/- as compensation to the claimants for the death of deceased Nawal Singh Gond in the said accident. 11. In MAC No. 410/06, the Tribunal assessed monthly income of the deceased at Rs. 3,24,000/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs. 3,31,000/- as compensation to the claimants for the death of deceased Nawal Singh Gond in the said accident. 11. In MAC No. 410/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1600/-, taking into consideration the age of the deceased as 24 years, applied multiplier of 18 and awarded Rs. 3,45,600/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs. 3,52,600/- as compensation to the claimants for the death of deceased Kunti Bai in the said accident. 12. In MAC No. 411/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1800/-, taking into consideration the age of the deceased as 28 years, applied multiplier of 16 and awarded Rs. 3,45,600/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs. 3,52,600/- as compensation to the claimants for the death of deceased Saraswati Bai in the said accident. 13. In MAC NO.412/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1600/-, taking into consideration the age of the deceased as 30 years, applied multiplier of 16 and awarded Rs. 3,07,200/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Rs. 3,14,200/- as compensation to the claimants for the death of deceased Jai Singh Baiga in the said accident. 14. In MAC No. 413/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1600/-, taking into consideration the age of the deceased as 35 years, applied multiplier of 15 and awarded Rs. 2,88,000/- on account of loss of dependency and further awarded Rs. 7000/- on other heads, and thus, awarded total sum of Its. 2,95,000/- as compensation to the claimants for the death of deceased Jamuni Bai in the said accident, and 15. In MAC No. 415/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 7000/- on other heads, and thus, awarded total sum of Its. 2,95,000/- as compensation to the claimants for the death of deceased Jamuni Bai in the said accident, and 15. In MAC No. 415/06, the Tribunal assessed monthly income of the deceased at Rs. 2400/- and claimants' monthly dependency at Rs. 1600/-, taking into consideration the age of the deceased as 18 years, applied multiplier of 13 and awarded Rs. 2,49,600/- on account of loss of dependency and further awarded Rs. 7,000/- on other heads, and thus, awarded total sum of Rs. 2,56,600/- as compensation to the claimants for the death of deceased Kailash in the said accident. 16. We have gone carefully through the entire evidence adduced in all the cases. The Tribunal after considering the evidence in its proper perspective has rightly assessed the income of deceased. Further, in the light of dictum of Supreme Court in case of Sarla Verma (Smt.) & others Vs. Delhi Transport Corporation & another1, claimants' dependency assessed and multiplier selected by the Tribunal cannot be found fault with. The Tribunal has also not committed any error in awarding compensation on other heads and in awarding interest on the amount of compensation @ 6 percent per annum from the date of filing of claim petition till its actual payment. Considering above aspects of the matter, we do not find any infirmity in the amount awarded by the Tribunal in all the claim cases. 17. The claimants pleaded in all the cases that the deceased were sitting in the Truck as fare paying passenger. Statements of Jagat, Bahadur and Rajesh Kumar recorded in the claim cases would also reveal all 22-27 persons were sitting in the Truck as fare paying passenger, that too in the Dala of the Truck. Therefore, it is not much in dispute that deceased persons were sitting in the Truck as fare paying passengers. 18. It is settled law that provisions of the MV Act do not enjoin any statutory liability on the owner of the vehicle to get his .vehicle insured for any passenger traveling in a goods carriage vehicle and the insurer would have no liability there for. 18. It is settled law that provisions of the MV Act do not enjoin any statutory liability on the owner of the vehicle to get his .vehicle insured for any passenger traveling in a goods carriage vehicle and the insurer would have no liability there for. However, an owner of a vehicle intends to cover him self from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. A contract of insurance which is not statutory in nature should• be construed like any other contract. 19. We have noticed the terms of the contract of insurance. The policy issued in the case is package policy which covers the risk of third party, owner, non fare paying passengers and employee/Driver, and for that purpose a total premium of Rs. 3905/- has been charged. The deceased were, indisputably, fare paying passengers. The contract of insurance did not cover the risk of fare paying passengers. 20. In the absence of any contract covering the risk of fare paying passengers, the insurance company cannot be held liable for payment of compensation to the claimants for the death of passengers sitting and traveling in the goods carriage vehicle as fare paying passengers, and the second question raised by Shri Bhaduri regarding liability of insurance company is also devoid of merit. 21. For the reasons mentioned hereinabove, all the appeals being devoid of merit are liable to be and are hereby dismissed. 22. However, in the facts and circumstances of the cases, there shall be no order as to costs. Appeals Dismissed.