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Rajasthan High Court · body

2013 DIGILAW 712 (RAJ)

Subhash Chand v. Bassi

2013-04-08

ALOK SHARMA

body2013
JUDGMENT 1. - These civil misc. appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter 'the Act of 1988') have been filed against the award dated 21.06.2003, passed by the MACT, Alwar holding that the claimants-respondents Nos.1 to 6 were entitled to compensation of Rs. 2,42,400/- in the aggregate together with interest @ 9% p.a. effective the date of filing of the claim petition, on account of death of one Liyakat in an accident occasioned by the rash and negligent driving of tractor No. RJ-02/1-R-1880, till the date of payment. 2. The facts of the case are that one Liyakat was engaged as a labourer for loading or unloading cement on a daily wage of Rs. 2,00/- per day. Liyakat appears to have been on 07.06.2000 i.e. the date of the accident, engaged for the loading and unloading of cement being ferried from village Burja to Baroda Mav through Tractor No. RJ-02/1-R-1880 driven by Chhotey Lal and owned by Subhash Chand. After unloading the cement at village Baroda Mav, when the tractor trolly by which the delivery was made was returning to Burja, the accident in issue resulted from rash and negligent driving of Chhotey Lal. Injuries from the said accident to Liyakat then 18 years of age, resulted in his death. In the context of the aforesaid facts, the claimants impleaded the owner of the offending tractor, Subhash Chand, and Chhotey Lal the driver of the offending tractor as also the Insurance Company with which vehicle in issue was insured. On notice of the claim petition being served on the Insurance Company, in reply the Insurance Company took a defence of avoidance of the insurance policy on the ground that even though the tractor in issue was indeed insured with it under the Kishan Package Policy, yet it was being used for commercial purposes contrary to the terms of the insurance policy wherein it could only be used for agricultural purpose. It was further stated that aside of the tractor being used for an unauthorized purpose, detailed here in above, its use as a transport vehicle attaching a trolly therewith was also a palpable breach of the condition of the policy as the attachment of the trolly changed the very nature of the vehicle insured. It was further stated that aside of the tractor being used for an unauthorized purpose, detailed here in above, its use as a transport vehicle attaching a trolly therewith was also a palpable breach of the condition of the policy as the attachment of the trolly changed the very nature of the vehicle insured. Another defence set up by the Insurance Company was that the driver of the tractor in issue at the time relevant to the accident did not have the valid driving licence entitling it to avoid the insurance policy and liability thereunder. 3. The case of the insured, Subhash Chand was that no accident at all took place on 07.06.2000 and consequently, it was submitted that the claim petition being founded upon false facts deserved to be dismissed. 4. On the pleadings of the parties, the learned Tribunal framed five issues. Having considered the pleadings of the claimants as also the non-claimants and the evidence laid before it, the Tribunal proceeded to hold that the tractor No. RJ-02/1-R-1880 was indeed engaged in commercial activities in spite of it being insured under Kishan Package Policy limiting its use only for agricultural purposes. It was also held that the policy in issue covering the risk qua the tractor was limited to the driver thereof holding a valid licence and that there was no premium charged or paid for covering the risk for any other person using the tractor or any person, travelling gratuitously or in any other capacity in the trolly attached to the tractor. The learned Tribunal however held that even though the Insurance Company was not liable to indemnify the owner of the insured vehicle in terms of the policy owing to established breach, yet in the facts of the case it pay the compensation awarded by it to the claimants while being free to recover the said amount from the owner of the insured vehicle. On the issue of compensation to the claimants for the death of Liyakat in the accident dated 07.06.2000, the learned Tribunal from the evidence before it came to the conclusion that Liyakat was earing about Rs. 1,800/- per month from working as a labourer engaged in loading and unloading cement. Deducting ⅓ of the aforesaid proved income of Liyakat on account of his personal expenses, the learned Tribunal computed the dependency of the claimants on the deceased as Rs. 1,800/- per month from working as a labourer engaged in loading and unloading cement. Deducting ⅓ of the aforesaid proved income of Liyakat on account of his personal expenses, the learned Tribunal computed the dependency of the claimants on the deceased as Rs. 1,200/- per month aggregating to Rs. 14,400/- p.a. With the multiplicand thus having been arrived at, taking into consideration the age of Liyakat, the deceased as 18 years old, the learned Tribunal proceeded to apply a multiplier of 16 and arrived at a sum of Rs. 2,30,400/- payable as compensation to the claimants. Adding thereto a sum of Rs. 12,000/- on account of non-pecuniary damages, an award for a sum of Rs. 2,42,400/- with interest was passed in favour of the claimants. 5. Against this award dated 21.06.2003, passed by the learned Tribunal, appeal No. 2192/2003 has been filed by the owner of the insured vehicle impugning the exoneration of the Insurance Company from its liability as the insurer of the offending vehicle and appeal No. 2291/2003 filed by the claimants seeking enhancement of the compensation award. 6. Heard. Perused the appeal and impugned award dated 21.06.2003 and considered. 7. First, addressing the challenge in appeal No. 2192/2003, laid by the owner of the insured vehicle, I am of the considered view that the Kishan Package Policy in respect of Tractor No. RJ-02/1-R-1880 exhibited before the learned Tribunal and proved by D.N. Meena (NAW-2) quite clearly established that the said policy only covered aside of "own damage" the risk of the driver of the insured tractor - and only when he in law was duly authorised to drive the said tractor under a valid licence and the tractor was being used for agricultural purpose. From the facts on record and the evidence before the Tribunal, it clearly transpired that the use of the tractor on 07.06.2000 with a trolly attached for transportation of cement was a palpable commercial user of the insured vehicle entitling the Insurance Company to avoid its liability for any injury occasioned to the passenger thereon during the use of the tractor. I find no substance in the submission of the counsel for the appellant that from the evidence on record, it could not be held that the insured tractor was being used for commercial purpose. I find no substance in the submission of the counsel for the appellant that from the evidence on record, it could not be held that the insured tractor was being used for commercial purpose. The submission that merely because an accident occurred when the tractor-trolly was on the way back after unloading the cement would not tantamount the use of the tractor for commercial purpose is wholly unsustainable. The tractor having been utilised attaching a trolly thereto unauthorizedly for delivery of cement to a third party was quite obviously used only for non-agricultural purpose and the mere fact that the accident occurred after the delivery of cement is of no avail to the appellant. On the facts on record, a fundamental breach of the policy of the Insurance Company was thus established. The learned Tribunal has thus committed no illegality in absolving the Insurance Company of liability for the death of Liyakat resulting from the accident of 07.06.2000 and authorising it to make recovery from the owner of the insured tractor subsequent to payment of the compensation awarded to the claimants. With the fundamental breach by the owner of the insured vehicle having thus been established entailing for the Insurance Company's right to recover from the owner of the offending vehicle, the amounts paid in compliance with the award dated 21.06.2003, there is no occasion to address other connected issues agitated by the appellant-insured that the Tribunal erred in holding that the driver of the tractor did not have a valid driving licence or that attaching a trolly to an insured tractor did not constitute a breach of the Kishan Package Police. The appeal of the appellant-insured Subhash Chand has no force and is liable to be dismissed. 8. As far as appeal No. 2291/2003, laid by the claimants, is concerned, I am of the considered view that from the evidence on record, the compensation awarded to the claimants is just and fair with reference to Section 168 of the Act of 1988. Liyakat a young boy of 18 years of age was unfortunately both uneducated and unskilled and without any evidence of probative worth to prove his income. The Tribunal therefore proceeded rightly to assume an income of Rs. 1800 p.m. and then proceeded to deduct ⅓ of proved income on account of personal expanses. Liyakat a young boy of 18 years of age was unfortunately both uneducated and unskilled and without any evidence of probative worth to prove his income. The Tribunal therefore proceeded rightly to assume an income of Rs. 1800 p.m. and then proceeded to deduct ⅓ of proved income on account of personal expanses. The deduction with regard to expenses of a young man engaged in physical labour with the necessity of consuming more calories (food) appears to be justifiable and the observations of the Hon'ble Supreme Court in the case of Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 with regard to lesser deductions for those earning meager wages and with a large family may thus not attract to the facts of the present case. Further in the overall facts of the case with the multiplier of 16 having been applied with reference to the age of the deceased instead with reference of the claimant mother, in my considered view even a larger deduction (of ⅓rd as of 1/4th) stands equalised by adoption of a higher multiplier than would otherwise have been permissible in terms of the judgments of the Hon'ble Supreme Court. An award of Rs. 2,42,400/- with interest 9% thereon by the Tribunal in respect of the unfortunate death of an uneducated and unskilled boy of 18 years of age, with dependency for the claimants at Rs. 1,200/- p.m., appears broadly to be a just and fair. Consequently, I am also not inclined to enhance the amount of compensation under the head of "loss of love and affection" for the claimant having lost her son. It would be in place to state that all the guidelines for the determination of award in motor accident cases have been formulated for arriving at a just compensation for the injury suffered and/or death occasioned in a motor accident. Where broadly the Court takes a view, as has been taken in the instance case, that the compensation in the aggregate appears to be within a reasonable range, there need be no attempt to mathematically redetermine the compensation in appeal. I would therefore in the overall facts and circumstances of the case maintain the compensation as arrived at by the Tribunal in SBCMA No. 2291/2003. 9. I would therefore in the overall facts and circumstances of the case maintain the compensation as arrived at by the Tribunal in SBCMA No. 2291/2003. 9. Consequently, I find no force in both the appeals, one at the instance of the owner of the insured vehicle and the other at the instance of the claimants and dismiss them accordingly. SBCMA No. 2192/2003 and SBCMA No. 2291/2003 stand dismissed. 10. Stay application also stands dismissed.Appeal dismissed. *******