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Madhya Pradesh High Court · body

2012 DIGILAW 432 (MP)

MOHAN v. RAJIK SHEIKH

2012-04-20

S.K.SETH

body2012
JUDGMENT : S.K. Seth, J. This order shall govern disposal of M.A. No. 859 of 2009 which also arises out of the impugned award dated 20.12.2008 passed by IV M.A.C.T. (Fast Track), Khargone in Claim Case No. 135 of 2007. For the death of Shankarlal, a young boy aged about 18 years, in a road accident, learned Claims Tribunal has awarded a sum of Rs. 1,70,000 as compensation together with interest payable by the respondent Nos. 1 and 2 jointly and severally. However, learned Claims Tribunal directed the insurance company to pay the amount of compensation and recover it from the owner. 2. The claim petition was filed u/s 163-A of the Motor Vehicles Act by the appellants claiming compensation against the owner, driver and the insurance company for the death of their son Shankarlal in an accident on 30.9.2005. According to the claimants, deceased met with an accident on a public road near Gavla School when respondent No. 1 on account of his rash and negligent driving caused the accident in which deceased died on the spot. According to them, the vehicle belonged to respondent No. 2 and was insured with respondent No. 3 on the date of the accident. The claim petition was contested by respondent Nos. 2 and 3. No written statement was filed by respondent No. 1. The respondent No. 2 in his written statement attributed negligence to the deceased and further submitted that compensation, if any, was payable by the insurance company. In the written statement, the insurance company submitted that the risk of the deceased was not covered by the Act policy, therefore, the insurance company was not liable to pay compensation. Learned Claims Tribunal by the impugned award found that respondent No. 1 was responsible for causing the accident on account of his rash and negligent driving of the tractor. It was also found that on the date of the accident, the offending vehicle belonged to the respondent No. 2 and was insured with respondent No. 3. Learned Claims Tribunal assessed the damages taking into account the notional income of the deceased at Rs. 15,000. After deducting the conventional one-third amount, the future loss of dependency was worked out at Rs. 10,000 per annum and applying the multiplier of 16 assessed the future loss of dependency at Rs. 1,60,000. To this, Tribunal added another sum of Rs. Learned Claims Tribunal assessed the damages taking into account the notional income of the deceased at Rs. 15,000. After deducting the conventional one-third amount, the future loss of dependency was worked out at Rs. 10,000 per annum and applying the multiplier of 16 assessed the future loss of dependency at Rs. 1,60,000. To this, Tribunal added another sum of Rs. 10,000 for funeral expenses and loss to estate and thus awarded a total sum of Rs. 1,70,000 with interest at the rate of 6 per cent. The Tribunal held that the insurance company was not liable to pay the amount of compensation on the ground that at the time of the accident, the deceased was employed as a workman of respondent No. 2 and under the Act policy, the risk of workman was not covered. However, Claims Tribunal directed the insurance company to pay the amount and recover it from the owner as has been stated hereinabove. 3. The above appeal has been preferred by the claimants for enhancement and also for holding the insurance company jointly and severally liable to pay the compensation. The other connected appeal has been preferred by the owner for assailing the finding that insurance company was not liable to pay compensation. 4. We have heard respective submissions of the counsel at length. Perused the record. 5. Learned counsel for the appellant and owner of the vehicle contended that deceased was a third party and he was not travelling in the tractor-trolley at the time of the accident. According to them, the deceased was standing on the road at the time of the accident. On the other hand, learned counsel appearing for the insurance company while supporting the impugned award submitted that the insurance policy was issued only for agricultural purposes as per clause 39 of the India Motor Tariff (IMT) and as the tractor was being used for commercial purposes, therefore, the insurance company was not liable to pay compensation. He also contended that the deceased met with an accident arising out of and during the course of employment, therefore, his risk was not covered by the insurance policy. He, therefore, contended that the learned Claims Tribunal rightly exonerated the insurance company from making the payment of compensation. 6. He also contended that the deceased met with an accident arising out of and during the course of employment, therefore, his risk was not covered by the insurance policy. He, therefore, contended that the learned Claims Tribunal rightly exonerated the insurance company from making the payment of compensation. 6. So far as the appeal for enhancement is concerned, we find that in view of the evidence which is available on record, Tribunal has rightly assessed the compensation taking into account the notional income of the deceased at Rs. 15,000. The accident took place in the year 2005 and considering the age of the deceased, it is highly improbable that he was getting Rs. 100 as daily wages. Thus we find that there is no scope for enhancement of compensation, therefore, the appeal preferred by the parents for enhancement has no merit. However, so far as the liability of the insurance company is concerned, in our considered opinion the Claims Tribunal has failed to appreciate the evidence on the proper perspective. It seems that Tribunal has attached undue importance to the F.I.R. and has very lightly brushed aside the statement made on oath by the driver of the vehicle. It is a matter of common experience that the driver of the offending vehicle seldom enters the witness-box to depose how the accident took place. From the evidence of driver, it is clear that the deceased was called in aid as the tractor was stuck up in the slush on the road. From the evidence it is clear that a patch of the road was in repair and because of slush which made the tractor immovable, efforts were made to move the tractor by putting stones. In that process suddenly the tractor moved in the reverse direction, as a result the accident took place and deceased died on the spot. The evidence of driver Rajik Sheikh remained unshaken in this regard and has withstood the cross-examination on this point. He has positively stated that the deceased was on the road and was not employed as a workman on the tractor. In view of this, we are of the opinion that the learned Claims Tribunal has wrongly exonerated the insurance company from its joint and several liability to pay compensation. He has positively stated that the deceased was on the road and was not employed as a workman on the tractor. In view of this, we are of the opinion that the learned Claims Tribunal has wrongly exonerated the insurance company from its joint and several liability to pay compensation. We, therefore, partly allow the appeal of the parents to this extent as well as the appeal preferred by the owner of the tractor and direct that the insurance company is jointly and severally liable to pay compensation along with the owner. In view of the foregoing, the appeal preferred by the parents is partly allowed and the appeal preferred by the owner is fully allowed. However, no order as to costs. Let a copy of this order be retained in the file of M.A. No. 859 of 2009.