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2013 DIGILAW 817 (MP)

Laxminarayan Sharma v. Mavita

2013-07-17

G.D.SAXENA

body2013
ORDER 1. This appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred by the owner of vehicle against an award dated 21st December, 2004 in Claim Case No.25/2005 by the Additional Member of the Motor Accident Claims Tribunal, Sabalgarh, District Morena, exonerating the Insurance Company from satisfying the award amount and directed the appellant for payment of compensation to the claimants. 2. The facts of the case, in short, are that on 23rd June, 2003 at about 2:30 p.m., Bhukhan, husband of respondent No.1-claimant was going on foot from village Rijhoni to Kailaras town. In mid-way, near village Torika, the driver (respondent No.6) of the tractor bearing No.MP06/JA-8574, by moving the vehicle rashly and negligently dashed against Bhukhan from his front side and caused to him grave injuries, resulting his death. The FIR of the accident was lodged by Mangilal, resident of village Karori upon which a crime was registered against the driver for commission of offence under section 304A, 279 and 337 of IPC. After investigation, the charge-sheet was filed against the driver of the vehicle involved in accident. The criminal case of the incident was pending. It was not disputed that the offending tractor was owned by the appellant and insured with respondent No.5-Insurance Company. The claimants being dependents/legal representatives of the deceased filed a claim petition under section 166 of Act claiming compensation to the tune of Rs.35,00,000/- with 12% interest on award amount against the respondents. The learned Tribunal after considering the facts and evidence on record, awarded Rs.1,92,000/- as compensation against the owner and driver but exonerated the Insurance Company for indemnifying the award amount on behalf of the owner, the insured, hence, this appeal. 3. The contention of the learned counsel for the appellant is that at the time of accident, the tractor was driven by the the respondent No.6 who was having valid driving licence. The tractor involved in accident owned by the appellant was insured with the Insurance Company. At the relevant time, the tractor was driving for transporting fodder for animals. It is submitted that there is no violation of the terms of insurance policy, hence, the Insurance Company by the provision of law and contract of terms of policy was liable to indemnify and satisfy the award amount passed in favour of the claimants. 4. At the relevant time, the tractor was driving for transporting fodder for animals. It is submitted that there is no violation of the terms of insurance policy, hence, the Insurance Company by the provision of law and contract of terms of policy was liable to indemnify and satisfy the award amount passed in favour of the claimants. 4. On the other hand, the submission put forth by the respondent No.5-Insurance Company is that the tractor-trolley involved in accident was engaged in the marriage party which was in violation of the terms of policy and due to rash and negligent driving, the alleged tractor-trolley turned turtle, as a result, Bhukhan and Deewan Rajak who were travelling in trolley with others were pressed and died while others were injured in such an accident. It is submitted that the documents such as FIR and the stop-map produced by the claimants and proved clearly show that the marriage party was travelling in trolley, which turned turtle. In that view of the matter, learned counsel contends that the learned Tribunal has rightly exonerated the Insurance Company from liability of indemnifying the award on behalf of insured. 5. Heard the learned counsel for the parties. Also perused the evidence on record and the law applicable in the case. 6. Obviously, where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of section 147 of the Act is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner. 7. Owner of the vehicle in terms of the Act also becomes liable under the Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of section 147 of the Act is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner. 7. In view of the submissions made by the learned counsel on either side, now two questions that arise for consideration are : (i) Whether, in case of death of a person as a third party by receiving dash on the spot due to rash and negligent driving of tractor, the Insurance Company is statutorily liable to indemnify the insured for payment of the award amount to the claimants of the deceased; (ii) Whether, in case of death of a person while travelling with company of marriage party in a trolley as a result of rash and negligent driving of the tractor, the Insurance Company cannot be made liable to indemnify the insured for payment of award amount to the claimants of the deceased? 8. Now, turning back to the evidence of the case, Mavita (AW1), wife of deceased deposed that in June 2003, her husband was going on foot and near village Torika, driver Kamlesh by driving tractor rashly and negligently dashed her husband from front side, as a result, her husband died on the spot. The villagers informed that her husband died in road accident. Jagdish (AW2), brother-in-law of the deceased Bhukhan also deposed that in last June, his brother-in-law Bhukhan was going on foot from village Kailaras to Kwari. At that juncture, Kamlesh by driving his tractor rashly from the side of Jaura went towards Torika gate where it turned turtle. Bhukhan was pressed under trolley and died on the spot. The report of the accident was lodged by Mangilal. He stated that Laxminarayan was the owner of the tractor. Similar is the statement of Ramautar (AW3) who stated that while they were returning back, at that juncture, from their behind Kamlesh came by speedily driving the tractor and dashed against the deceased. From his evidence, he appears to be an eye-witness to the incident. 9. Laxminarayan (NAW1), owner of the vehicle involved in accident deposed that on the day of accident his tractor-trolley was engaged in carrying the wheat grain chaff of Pholwati of Kailaras. In mid-way, his tractor turned turtle. From his evidence, he appears to be an eye-witness to the incident. 9. Laxminarayan (NAW1), owner of the vehicle involved in accident deposed that on the day of accident his tractor-trolley was engaged in carrying the wheat grain chaff of Pholwati of Kailaras. In mid-way, his tractor turned turtle. Banti and Bhukhan who were passing nearby trolley came into contact and died. The witness denied that at the time of accident, the marriage party was travelling in his trolley attached with tractor. 10. The defence of the Insurance Company-respondent No.5 is that the vehicle, at the time of accident, was going against the terms of policy and due to rash and negligent driving on the part of the driver, it turned turtle and the persons travelling in the trolley died, so in these circumstances, no liability can be fastened on the Insurance Company to indemnity the insured. 11. There is nothing on record to show that at time of accident the vehicle was being plied in violation of the terms of the policy and that the trolley attached with a tractor was carrying the marriage-party which included the deceased. In view of the above, the Insurance Company has been unable to prove its defence and failed to establish by placing some cogent material that the deceased Bhukhan was not a pedestrian but was travelling with marriage party-against the terms of the policy and died due to rash and negligent driving on the part of the driver of the offending vehicle. That being so, the Insurance Company-respondent No.5 is under legal and contractual liability to indemnify the insured for payment of the award amount to the claimants of the deceased. There is further statutory liability envisaged in section 147 of the Act upon the Insurance Company to indemnify the insured for payment of compensation to the claimants/heirs of deceased. In that view of the matter, the findings of the learned Tribunal in exonerating the Insurance Company-respondent No.5 are not sustainable in law ana deserve to be set aside. 12. There is further statutory liability envisaged in section 147 of the Act upon the Insurance Company to indemnify the insured for payment of compensation to the claimants/heirs of deceased. In that view of the matter, the findings of the learned Tribunal in exonerating the Insurance Company-respondent No.5 are not sustainable in law ana deserve to be set aside. 12. As regards cross-objection filed by the claimants for enhancement of the compensation amount, admittedly, as per the evidence brought on record, at the time of accident, the deceased was aged 25 years and by doing mechanical work, he used to earn some money but for want of documentary evidence, the income of the deceased has not been properly assessed by the learned Tribunal. It is settled law that where the legal representatives of the deceased victim do not have documentary evidence of the income of the deceased, the Claims Tribunal should take judicial note of the increase in minimum wages due to inflation and rise in the price index and compute accordingly the income of the deceased by taking the average of the minimum wages and its double. See Kanwar Devi v. Bansal Roadways [2008 ACJ 2182], and National Insurance Company Limited v. Renu Devi [(2008)III ACC 134]. In that view of the matter and the peculiar facts that the family was being maintained by the deceased for computing the compensation, his annual income is taken as Rs.26,400/- (Rs. Twenty six thousand four hundred only). After making deduction towards personal and living expenses @ 1/3rd, the contribution to the family comes to Rs.17,600/-. As the deceased was aged 25 years, on the basis of the law laid down in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, reported in (2009)6 SCC 121 , after applying the multiplier of 17, the amount will come to Rs.2,99,200/-. Besides, this amount, the claimants are also entitled to Rs.5,000/- on account of funeral and ritual expenses, Rs.10,000/- towards loss of consortium and Rs.20,000/- for loss of estate. In this manner, the claimants are entitled to receive Rs.3,27,200/- (Rs. Three lacs twenty seven thousand and two hundred only) instead of the amount of Rs.1,92,000/-, awarded by the Claims Tribunal along with interest @ 7% on the enhanced amount from the date of filing of claim petition till realisation of the same. 13. In this manner, the claimants are entitled to receive Rs.3,27,200/- (Rs. Three lacs twenty seven thousand and two hundred only) instead of the amount of Rs.1,92,000/-, awarded by the Claims Tribunal along with interest @ 7% on the enhanced amount from the date of filing of claim petition till realisation of the same. 13. Consequently, by allowing the appeal fileld by the owner, the award under appeal is set aside to the extent of the liability of payment by the owner-appellant. Simultaneously by allowing the cross-objections in the manner aforesaid, the impugned award is modified to such extent indicated above. The Insurance Company-respondent No.5 being held liable for indemnifying the liability of payment of the awarded amount to the claimants of the deceased is hereby directed to make payment of the compensation as directed above to the claimants of the deceased within a period of three months from this order.