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2012 DIGILAW 504 (RAJ)

Jagram v. Kishanlal Saini

2012-02-22

MAHESH BHAGWATI

body2012
BHAGWATI, J.—Challenge in this appeal is to the judgment and award dated 25th January, 2001 whereby the Motor Accident Claims Tribunal, Kishangarhbas, decreed an amount of Rs. 1,00,000/- in favour of the appellants-claimants and against the respondents No.1 & 2, jointly and severally. The Tribunal absolved respondent No.3-United India Insurance Co. from its liability and thus, dismissed the claim against the same. 2. The grievance of the appellant is that the Tribunal wrongly absolved the Insurance Co. from its liability whereas the owner of the vehicle had paid premium of Rs.1,051/- in cash to the Insurance Co. and rest of the amount was paid through cheque, albeit, the same was dishonoured by the Bank for want of sufficient funds. Learned counsel for the appellant further canvassed that the accident, in the instant case, took place on 15th June, 1995 at about 7.15 PM, whereas the Insurance policy was cancelled by the Insurance Co. on 16th June, 1995 i.e. one day after the accident. Since the Insurance policy was in existence on the date of accident, the Insurance Co. was liable to pay the amount of compensation. He has cited the judgment of the Apex Court delivered in the case of Oriental Insurance Co. Ltd. vs. Inderjit Kaur and ors. reported in 1998 ACJ 123, in support thereof. 3. The second thrust of the argument put-forth by the learned counsel for the appellant is that the Tribunal awarded only an amount of Rs.1,00,000/- as compensation in favour of the appellants, which is abysmally low, whereas the Apex Court and this Court also, in plethora of cases, have awarded an amount of Rs.2,00,000/- in those claim cases wherein the age of the children at the time of accidental death was more than five years, but not more than ten years. In support of this argument, he has relied upon the judgment of this Court delivered in the case of Lal Chand @ Pradeep Kumar vs. Bhanwar Singh & Ors.(S.B.C.M.A. No.815/2011). 4. E-converso, the learned counsel for respondent No.3-Insurance Co. took me through the judgment of New India Assurance Co. Ltd. vs. Smt. Shakuntla Bai & Ors. reported in 2011 R.A.R. 168 (Raj.) and canvassed that this very Court relying upon the judgment of New India Assurance Co. Ltd. vs. Asha Rani & Ors. 4. E-converso, the learned counsel for respondent No.3-Insurance Co. took me through the judgment of New India Assurance Co. Ltd. vs. Smt. Shakuntla Bai & Ors. reported in 2011 R.A.R. 168 (Raj.) and canvassed that this very Court relying upon the judgment of New India Assurance Co. Ltd. vs. Asha Rani & Ors. 2003(1), ACJ page 1 held that if the goods vehicle was being used for carrying passengers, then the insurer was not liable to pay the amount of compensation to the claimants. Learned counsel further defended the impugned award and stated the same to be just and proper and contended that it did not warrant any intervention. 5. Mr. Jinesh Jain, appearing for repsondent No.1-Kishanlal Saini who happened to be the driver of the offending vehicle, contended that he was simply driving the vehicle very carefully and cautiously. However, the vehicle met with an accident for which the owner of the vehicle is liable to pay the amount of compensation to the claimants. 6. None has appeared despite service of notice for respondent No.2-Smt. Sumitra Devi who was the owner of the vehicle. 7. Having reflected over the submissions made at the bar and carefully scanned the relevant material including the impugned award on record, it is noticed that on 15th June, 1995 at 7.15 PM the appellants along with their son boarded one Metador bearing registration No.RJ-02-2760, from Bus stand Kishangarhbas. It is alleged that the driver of the Metador was driving the vehicle at a very fast speed. No sooner did the vehicle reach near Bambora, the Metador, on account of being driven rashly and negligently, jumped into a pit and capsized, resulting into the injuries on the persons of the passengers and death of one Ms. Rona-daughter of the appellants-claimants. Undeniably and undisputedly, the Metador was insured for carrying goods and not for carrying passengers. This fact has been put-forth by the learned counsel for respondent No.3, but at the same time it has not been rebutted by the learned counsel for the appellants. 8. In view of above, a very short and crucial question springing for consideration in the instant appeal is as to whether in the given facts and circumstances of the case, the liability can be fastened upon the Insurance Co. to pay the amount of compensation to the appellants-claimants? 9. 8. In view of above, a very short and crucial question springing for consideration in the instant appeal is as to whether in the given facts and circumstances of the case, the liability can be fastened upon the Insurance Co. to pay the amount of compensation to the appellants-claimants? 9. In the case of New India Assurance Company Limited vs. Asha Rani & Ors. (supra), the Apex Court observed that the case of Satpal reported in 2000 ACJ 1 (SC) was not correctly decided and held that the insurer would not be liable for paying compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representatives died or suffered any bodily injury. 10. Para 26 of the said judgment is reproduced as under: “26. In view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.” 11. Thus, in the case of carrying gratuitous passengers, the Apex Court in the case of New India Assurance Company Limited vs. Asha Rani & Ors. (supra) categorically held that if the goods vehicle was carrying passengers in it, the Insurance Co. would not be liable to make the payment of compensation to the dependents of the deceased as also to the insured passengers. This Court in the case of Smt. Shakuntala Bai & Ors. (Supra) also similarly held that in case the passengers are being carried in a goods vehicle, the liability could not be fastened upon the Insurance Co. to pay the amount of compensation to the dependents of the deceased or to the insured passengers. Thus, the Tribunal is found to have rightly absolved the respondent No.3-Insurance Co. from its liability. The impugned award to this extent is found to be just and apposite and warrants no intervention. 12. to pay the amount of compensation to the dependents of the deceased or to the insured passengers. Thus, the Tribunal is found to have rightly absolved the respondent No.3-Insurance Co. from its liability. The impugned award to this extent is found to be just and apposite and warrants no intervention. 12. So far as the question of quantum of compensation is concerned, this Court decided the bunch of appeals and held in S.B.C.M.A No.815/2011 (supra) that in claim cases wherein the age of the children at the time of accidental death was more than five years but not more than 10 years, the dependents were entitled to get an amount of Rs.2,00,000/- as compensation. This Court adjudicated so many appeals wherein an amount of Rs.1,00,000/-, 1,50,000/- or Rs.1,80,000/- was awarded by the Tribunal and they were enhanced to Rs.2,00,000/-. 13. Following the ratio of the said judgment, I also feel inclined to enhance the amount of compensation from Rs.1,00,000/- to Rs.2,00,000/-, as the age of the deceased Ms. Rona was eight years at the time of her death in the said accident. 14. For the reasons stated above, the appeal stands partly allowed. The amount of compensation granted to the appellants-claimants is enhanced from Rs.1,00,000/- to Rs.2,00,000/-. The appellants are held entitled to get interest @ 6% per annum on the enhanced amount from the date of filing of the application, till the said amount is actually realized. Rest of the terms under the award shall remain unchanged. 15. The impugned award stands modified as indicated hereinabvoe and the appeal stands disposed of accordingly.