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2012 DIGILAW 892 (MP)

MUNDA TAI v. NEW INDIA ASSURANCE CO. LTD.

2012-09-13

A.K.SHRIVASTAVA

body2012
ORDER : A.K. Shrivastava, J. Feeling aggrieved by the award dated 25.3.2008 passed by learned First Motor Accident Claims Tribunal, Chhindwara in Claim Case No. 31/2007 whereby the application of claimants/appellants has been dismissed, this appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the claimants. In brief the case of appellants as borne out from their application filed u/s 163A of the Motor Vehicles Act, 1988 (in short "the MV Act") is that the appellants are the heirs of deceased Kamlesh Raut, aged 30 years, who had died in the motor accident on 4.2.2002. The first appellant is his widow while appellants 2 and 3 are the minor daughter and son respectively and appellant No. 4 is the mother of the deceased and all of them were dependent upon the income of the deceased. It is the further case of claimants that on 4.2.2002 the deceased by his own Tata Sumo Jeep bearing registration No. MH 31 AG-7953 was coming from Nagpur to his native village Langha Tahsil Pandurna, District Chhindwara to attend the last rites of his grand-mother. On the way, a dog all of a sudden appeared in front of the vehicle and in order to save his life the deceased who was driving the vehicle tried to take an acute turn but all of a sudden iron-end of the steering was broken and it became free as a result of which the vehicle dashed with a tree and turned turtle. The family members of the deceased as well as several other relatives who were in the jeep sustained serious injuries and the deceased on account of injuries sustained to him on his head and other parts of the body succumbed to death. Further the case of claimants is that the vehicle was insured and it was a comprehensive policy and, therefore, the insurer is bound to pay the compensation on account of the death of the deceased. 2. Further the case of claimants is that the vehicle was insured and it was a comprehensive policy and, therefore, the insurer is bound to pay the compensation on account of the death of the deceased. 2. The insurer filed written-statement and pleaded that the deceased was not having valid driving licence at the time of incident and because the accident had occurred on account of the negligence of the deceased who was driving the impugned vehicle rashly and negligently, therefore, the Insurance Company is not liable to pay any compensation and further that the provisions of Second Schedule of Section 163A of the MV Act are not applicable since his income was more than Rs. 40,000. In special plea it has been pleaded that the heirs of the deceased did not inform about the factum of death of the deceased in motor accident. The factum of getting the vehicle insured has also been denied. Further the stand which has been taken in the additional plea is that the deceased was driving the vehicle rashly and negligently for which he himself was liable and therefore, the insurer is not liable to pay any compensation. Thus, it has been prayed that the application be dismissed. 3. The learned Tribunal framed necessary issues and decided all the five claim cases including the present case by passing a common award. The learned Tribunal passed the award in the connected claim cases in which the family members of the deceased were traveling and they sustained injuries, however, by impugned award dismissed the application u/s 163A of the MV Act filed by the claimants for the death of the deceased. 4. In this manner this appeal has been filed by the appellants/claimants. 5. The contention of learned Counsel for the appellants is that the only reason which has been assigned in dismissing the application u/s 163A of the MV Act by the learned Tribunal is that because it is borne out from the testimony of the witnesses that the annual income of the deceased was Rs. 90,000 and as per the Second Schedule of the MV Act the entitlement to pay compensation to the deceased is only upto Rs. 40,000 per annum and, therefore, the appellants are not entitled for any compensation. By placing heavy reliance on the Division Bench decision of this Court in National Insurance Co. Ltd. Vs. 90,000 and as per the Second Schedule of the MV Act the entitlement to pay compensation to the deceased is only upto Rs. 40,000 per annum and, therefore, the appellants are not entitled for any compensation. By placing heavy reliance on the Division Bench decision of this Court in National Insurance Co. Ltd. Vs. Manju and Others, (2008) ACJ 359, it has been contended that although the income of the deceased was Rs. 80,000 per annum but the appellants are claiming their case only upto the extent of Rs. 40,000, which is permissible according to the Second Schedule to Section 163A of the MY Act. Thus, it has been prayed by learned Counsel that accordingly this appeal be allowed and by computing the compensation upto the extent of annual income of Rs. 40,000 necessary compensation be awarded. 6. On the other hand, Mr. Dinesh Koushal, learned Counsel for the respondent-insurer has submitted that since the deceased himself was driving the vehicle rashly and negligently and while driving so he lost his control and the vehicle was dashed to a tree as a result of which it became turtle in which deceased had died and, therefore, in view of the decision of Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , it has been submitted that the appellants who are the heirs of the deceased are not at all entitled to any compensation from the insurer. Learned Counsel has also placed reliance on a Full Bench decision of this Court Smt. Sunita Lokhande and Others Vs. The New India Assurance Company Limited and Others, (2008) ACJ 921. 7. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed. 8. On the basis of the pleadings of the parties the learned Claims' Tribunal framed the Issue No. 1 as to whether there was a mechanical break down because of a sudden appearance: of a dog before the impugned vehicle as a result of which the impugned vehicle became turtle and the accident had occurred. 8. On the basis of the pleadings of the parties the learned Claims' Tribunal framed the Issue No. 1 as to whether there was a mechanical break down because of a sudden appearance: of a dog before the impugned vehicle as a result of which the impugned vehicle became turtle and the accident had occurred. While deciding this issue it has been categorically held by the learned Tribunal on the basis of the evidence of the family members and the relatives of the deceased who were traveling in the impugned vehicle that the deceased was driving the vehicle in his control and not in excessive speed but all of a sudden one dog appeared in front of the vehicle and in order to save his life when the deceased took an acute turn by rotating the steering, all of a sudden the iron-end of the steering was broken and the steering became free as a result of which the vehicle dashed with a tree and became turtle. There is no material to disbelieve the statement of the witnesses in this regard. According tome, the learned Tribunal rightly decided the issue in favour of the claimants. Thus, lam of the view that the deceased never drove the impugned vehicle rashly and negligently and accident has not occurred on account of his fault. 9. The question would now arise as to whether still the insurer is liable to pay compensation or not. There is no dispute to the proposition laid down by the Apex Court in Ningamma (supra), wherein it has been held that if the owner of the vehicle himself was driving the vehicle and in the incident he had died, his legal representatives are not entitled to claim compensation u/s 163A of the MV Act but in the present case the facts are little different because on bare perusal of the insurance policy Ex. F-25 it is gathered that it is a comprehensive policy and inter alia separate premium of Rs. 8,296 was paid by the owner (deceased) for his own damage and, therefore, the aforesaid decision is not applicable. The Full Bench decision of this Court Sunita Lokhande (supra), relied by learned Counsel for the respondent is not against the appellant rather it supports the case of the appellant. 8,296 was paid by the owner (deceased) for his own damage and, therefore, the aforesaid decision is not applicable. The Full Bench decision of this Court Sunita Lokhande (supra), relied by learned Counsel for the respondent is not against the appellant rather it supports the case of the appellant. In this decision the Chief Justice A.K. Patnaik (as His Lordship then was) in para 9 has specifically held while answering the question (b) that the heirs of the deceased-owner cannot put a claim for death or injury of the deceased in a motor accident unless additional premium in respect of the personal injury has been taken by the Insurance Company by way of special insurance contract from the owner of the vehicle. Since in the present case the policy Ex. P-25 is comprehensive and inclusive and inter alia premium of own damage of the owner was also obtained by the Insurance Company, they are liable to pay the compensation. 10. The matter is to be examined from this angle also that specifically in para 4 of the application u/s 163A of the MV Act it has been pleaded by the claimants/ appellants that the owner (deceased) took the comprehensive insurance policy No. 31/01/16217 which was effective from 28.9.2000 to 27.9.2002, therefore, the insurer is liable to pay the compensation. In para 4 of the written statement a very evasive and vague denial has been made in regard to the comprehensive insurance policy taken by the owner (deceased). In this para only this much has been pleaded by the Insurance Company that neither within 8 days nor within a month or even till date information in regard to the accident of the impugned Vehicle was given by the legal representatives of the deceased. In this para it has also been pleaded by denying the fact' that the deceased was using the impugned vehicle for his business. It has also been pleaded that the deceased was not having the valid licence. But, in regard to the comprehensive policy obtained by the owner (deceased), the written statement is totally silent. In this para it has also been pleaded by denying the fact' that the deceased was using the impugned vehicle for his business. It has also been pleaded that the deceased was not having the valid licence. But, in regard to the comprehensive policy obtained by the owner (deceased), the written statement is totally silent. According to me, when specific pleading of the claimants in the claim application (para 4) is there in regard to comprehensive insurance policy obtained by the owner (deceased) a specific reply in the written statement was contemplated but deliberately the Insurance Company tried to avoid to give a specific reply in this regard and the written statement is totally silent on this aspect of the matter. Thus, I am of the view that not denying these facts in the written statement amounts to admission of the facts pleaded in the application by the appellants/claimants. 11. Not only this, after the closure of the evidence of the claimants on 29.1.2008 the Claims Tribunal fixed 14th February, 2008 for recording the evidence of the Insurance Company. However, on the said date the witnesses of the Insurance Company were not present and an adjournment was sought. The learned Tribunal fixed 25th February, 2008 but on this date too an adjournment was sought by the insurer to examine the witnesses which was allowed by learned Tribunal and fixed the date 10.3.2008 and on this date, instead of examining the witnesses the Counsel for the Insurance Company himself stated that he does not want to examine any witness and closed the evidence. The purpose of quoting these three dates is that no witness has been examined on behalf of the Insurance Company in order to prove that the policy was not comprehensive including the owner's (deceased) risk. Thus, I am of the view that since there was a special contract between the Insurance Company and the owner (deceased) and accordingly the deceased inter alia paid extra premium for damages of his own, the respondent/Insurance Company is liable to pay compensation to the claimants/appellants. 12. The question now hinges as to what should be the adequate compensation. It is borne out from the record that the deceased was earning annual income of Rs. 90,000 but since learned Counsel for the claimants/ appellants has confined his argument upto the extent of income of the deceased Rs. 12. The question now hinges as to what should be the adequate compensation. It is borne out from the record that the deceased was earning annual income of Rs. 90,000 but since learned Counsel for the claimants/ appellants has confined his argument upto the extent of income of the deceased Rs. 40,000 per annum in view of the Division Bench decision of this Court Manju (supra), the appellants are entitled to the compensation. By fixing the annual income of the deceased to be Rs. 40,000 and after deducting 1/3rd amount towards the self-expenditure of the deceased, the dependency would come to Rs. 26,666.66. Since it is borne out that at the time of the incident the age of the deceased was 30 years as this age has also been mentioned in the post-mortem report and there is no evidence in rebuttal, it is hereby held that the age of the deceased at the time of incident was not exceeding 30 years and was 30 years, therefore, a multiplier of 18 should be applied. Thus, the dependency (Rs. 26,666.66 x 18) would come to Rs. 4,80,000. Apart from this amount, the claimants/appellants shall also be entitled for Rs. 20,000 in all other heads and, thus, a total compensation of Rs. 5,00,000 is awarded along with interest (c) 6% per annum from the date of filing of the claim application, which is 11.10.2002. However, it is made clear that in case the amount is not deposited by the Insurance Company within a period of four weeks from today, the amount of compensation shall carry interest @ 9% per annum. Resultantly, this appeal succeeds and is allowed. The impugned award rejecting the claim application is set aside. The appellants are also entitled to cost of this appeal. Counsel fee Rs. 2,000 if pre-certified.