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2013 DIGILAW 937 (MP)

Rekha Seth v. Ramji Choubey

2013-08-08

ANIL SHARMA

body2013
Judgment: Anil Sharma, J. 1. This order shall dispose of M.A. No. 11/2011 and M.A. No. 198/2011 filed against the award dated 18.10.2010 passed in claim case No. 118/2009 by learned 3rd AMACT, Sagar, M.P. for enhancement of award and by the insurance company for its exoneration respectively. The facts of the case are that on 26.06.2009 Satish Kumar Seth died due to an accident caused by vehicle No. MP 20 JA 3137 driven by the respondent-Driver. The deceased was a Head Master in a Government School and was posted at Government Middle School, Bamhori, Raigua, District Sagar. A criminal case was registered at crime No. 247/2009 at police station Patan, Jabalpur against Ramji Choubey. The challan was filed against him in the court of Judicial Magistrate. 2. The claimants are legal heirs and dependents of the deceased and claimed Rs. 90,00,000/- as compensation. 3. The respondents in their reply denied the averments made in the appeal. The insurance company has pleaded that the deceased was a gratuitous passenger in the vehicle, therefore, there is no liability of the insurance company for payment of compensation. It is further pleaded by the insurance company that under the policy no premium covering the risk of gratuitous passenger was paid. 4. Learned Tribunal vide impugned order awarded a compensation of Rs. 25,27,000/-. Being aggrieved by the impugned order Miscellaneous Appeal No. 11/2011 for enhancement of the award impugned on the ground that income of the deceased has not been properly assessed and the multiplier has also not been properly applied. 5. The insurance company has preferred M.A. No. 198/2011 on the ground that learned Tribunal is not justified in awarding the claim against the insurance company on the basis of judgments which have been over ruled by Hon'ble Apex Court by judgment passed in the matter of National Insurance Company Ltd. Vs. Bommithi Subbhayamma and others 2005 ACJ 721. 6. The main questions for consideration in this appeal are that whether the learned Tribunal is justified in calculating the income of the deceased and also in applying proper multiplier for compensation and whether the appellant in M.A. No. 11/2011 is entitled for enhanced compensation. 7. Bommithi Subbhayamma and others 2005 ACJ 721. 6. The main questions for consideration in this appeal are that whether the learned Tribunal is justified in calculating the income of the deceased and also in applying proper multiplier for compensation and whether the appellant in M.A. No. 11/2011 is entitled for enhanced compensation. 7. So far as liability of insurance company is concerned the fact that the accident took place while the deceased was traveling in the cabin of the truck at the time of accident, therefore, he was a gratuitous passenger has not been challenged by the claimants. 8. So far as liability of insurance company for payment of compensation for death of gratuitous passenger is concerned, learned Tribunal has relied upon a judgment of Hon'ble Apex Court in the matter of New India Insurance Company Ltd. Vs. Satpal Singh AIR 2000 SC 235 . The said judgment has been over ruled by a later judgment of Hon'ble Apex Court passed in the matter of National Insurance Company Ltd. Vs. Bommithi Subbhayamma and others 2005 ACJ 721 in which it has been held that the death of gratuitous passenger has occurred in the truck when it met with accident, the High Court is not justified in fixing the liability of insurance company under Section 147(1) of the Motor Vehicles Act. The insurance company is not liable for compensation and the claimant is not liable to recover awarded compensation from the owner of the vehicle, therefore, the impugned award so far as it relates to liability of insurance company to pay the compensation is based on an over ruled judgment Further, the award has been passed after the verdict of Hon'ble Apex Court in the matter of National Insurance Company Ltd. (Supra) which was passed in the year 2005, the Tribunal ought to have been cautious about the judgment at the time of consideration of over ruled judgment. In fact, before the Tribunal, the insurance company has cited not only the judgments cited above but also the latest judgment in the matter of National Insurance Company Ltd. Vs. Premadevi and others 2008 (2) ACCD 714 SC and in the matter of National Insurance Company Ltd. Vs. Rattani and others 2009 (1) ACCD 358 SC but the Tribunal has not considered the judgment cited by the insurance company while passing the impugned award. Premadevi and others 2008 (2) ACCD 714 SC and in the matter of National Insurance Company Ltd. Vs. Rattani and others 2009 (1) ACCD 358 SC but the Tribunal has not considered the judgment cited by the insurance company while passing the impugned award. Therefore, the insurance company is not liable to pay any compensation as the deceased was traveling as a gratuitous passenger at the time of accident. 9. So far as amount of compensation is concerned, learned Tribunal has assessed the income of the deceased on the basis of Exhibit P-19 which contain details of the salary of the deceased for the month of May and June, 2009 according to which the salary of the deceased was Rs. 20114/- and on the basis of PAN card the Tribunal has assessed the age of deceased as 45+ years at the time of the incident as he was born on 01.06.1963 and died on 26.06.2009. After deducting 1/3 of the income according to the judgment passed in Sarla Verma's case, the Tribunal has applied multiplier of 14 while according to schedule under Section 163 of the Motor Vehicles Act for age group above 45 years to 50 years the multiplier 13 has been prescribed. Therefore, the Tribunal is justified in passing the claim award and applied the multiplier properly. 10. Learned counsel for the appellants has submitted that since the vehicle was insured, therefore, the insurance company is liable for payment of amount of compensation and the insurance company can recover the amount from the owner of the vehicle. 11. Learned counsel for the insurance company has submitted that since the risk was not covered for gratuitous passengers under the policy, therefore, the insurance company cannot be held liable for payment of compensation to the claimants and recover the same from the owner of the vehicle. In view of the aforesaid submissions, the appeal filed by the claimants for enhancement of award (M.A. No. 11/2011) is hereby dismissed. Since the insurance company is not liable for paying compensation for the death of gratuitous passenger, therefore, appeal filed by the insurance company (M.A. No. 198/2011) is hereby allowed and the insurance company is exonerated from the payment of compensation. The claimants can recover the amount of compensation from the owner of the vehicle. No order as to costs.