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Madhya Pradesh High Court · body

2015 DIGILAW 945 (MP)

Radhabai v. Suresh Kumar

2015-09-07

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. The appellants have preferred the present appeal against the award dated 8.3.1999 passed by the Additional Motor Accident Claims Tribunal Sohagpur in Claim Case No. 23/1996, whereby the claim application of the appellants/claimants under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred as 'the Act') was dismissed and it was directed that a sum of Rs. 57,000/- be returned by the appellants to the Insurance Company, which was paid under Section 140 of the Motor Vehicle Act. 2. Facts of the case in short are that on 13.11.1996 the respondent no. 1 took a tractor bearing registration no. MP 05 F 7201 to plough the field of one Kamlesh brother-in-law of the respondent no. 2 Jeevan Singh, who was owner of the tractor. The respondent no. 1 was taking that tractor from the village Jinoura to the field of Kamlesh. At about 6:00 p.m., the respondent no. 1 parked the tractor and went to drink some water. The deceased Kallu aged 15 years came and sat on the driving seat of the tractor, thereafter the tractor which was stationed on the slop was started and fell down into the Kubja river. Due to that accident, the deceased Kallu sustained the injuries on his head and right hand and ultimately, he died. The appellants have preferred a claim application under Section 166 of the Act for compensation of Rs. 3,60,000/-. 3. The respondent nos. 1 & 2 in their written statements denied the negligence of the respondent no. 1 and it was pleaded that the deceased himself died due to his own negligence. His legal representatives were not entitled to get any compensation. In alternate, it was pleaded that the tractor was insured with the respondent no. 3 i.e. Insurance Company and therefore, the respondent no. 3 was responsible for payment of the compensation, if any. 4. The respondent no. 3 has also filed a written statement with the similar pleadings. But, it was pleaded that risk of the deceased Kallu was not covered under the policy condition and tractor was driven in violation of policy condition. Hence, the Insurance Company was not liable to pay any compensation. It was also pleaded that the respondent no. 1 did not have any valid and effective driving licence of the tractor at the time of incident. Hence, the Insurance Company was not liable to pay any compensation. It was also pleaded that the respondent no. 1 did not have any valid and effective driving licence of the tractor at the time of incident. The claim application was filed by the appellants with connivance of the respondent nos. 1 & 2 therefore, it was prayed that the claim application be dismissed. 5. The Tribunal under Section 140 of the Act granted the compensation of no fault liability and a sum of Rs. 57,000/- along with the interest was paid by the respondent no. 3 during the pendency of the claim application. 6. The Tribunal has framed as many as seven issues relating to negligence, liability of Insurance Company, violation of policy condition, computation of compensation amount and result. After recording the evidence of the parties, the Tribunal has dismissed the application under Section 166 of the Act and also directed that payment of compensation made by the Insurance Company under Section 140 of the Act be returned with interest. 7. I have heard the learned counsel for the parties. 8. In the present appeal, various points are to be decided, which are considered by the Tribunal by making of issues. First of all, if part of the negligence is considered then, according to the evidence of Kamlesh (PW-1) and Pohap Singh (PW-4), who have examined as eyewitnesses, the respondent no.1 parked the tractor on a slop and went to drink some water. Suddenly, the deceased Kallu was found on the driving seat and tractor was started, which fell down into the river thereafter. Both the witnesses have accepted that key of the tractor was not removed by the respondent no.1 while he went to drink the water. Also these witnesses have stated that it was for the respondent no. 1 to place some support so that the tractor would not have slipped on the slop. It is true that the tractor was started by the deceased Kallu @ Arvind therefore, it fell down into the river after running for some distance but, the Tribunal has ignored the contributory negligence of the respondent no. 1 that he did not park the tractor properly and he left the key of the tractor in its ignition lock. It is true that the tractor was started by the deceased Kallu @ Arvind therefore, it fell down into the river after running for some distance but, the Tribunal has ignored the contributory negligence of the respondent no. 1 that he did not park the tractor properly and he left the key of the tractor in its ignition lock. If the respondent no.1 would have parked the tractor in a proper manner either he would have placed some support below the wheel of the tractor or he would have applied the handbrake then, the deceased Kallu could not have started the tractor. Also, if he would not have left the key of the tractor in its slot, the tractor could not have started and therefore, it could not have fallen into the river. Hence, it cannot be said that the incident took place due to sole negligence of the deceased Kallu @ Arvind. The respondent no. 1 was also found negligent by which, the accident was caused. The Tribunal has committed an error in finding that the accident was caused due to the sole negligence of the deceased Kallu @ Arvind. After considering the negligence of the respondent no. 1 and the deceased Kallu, it is a case in which the respondent no. 1 may be found liable for 25% of his negligence in causing the accident. 9. So far as the computation of compensation is concerned, it is admitted that the deceased Kallu @ Arvind was unmarried boy. The various claimants have applied for compensation, who did not come within the purview of legal representative of the deceased, whereas only mother of the deceased Kallu was entitled to get the compensation. The deceased Kallu was 16 years old boy at the time of incident and he was doing as worker in the fields, but no documents of any education of the deceased Kallu was submitted therefore, it is apparent that Kamlesh (PW-1), Radha Bai (PW-2), Prembai (PW-3) etc. would have shown the income of the deceased at higher side. If the deceased had some land on his name then, the land would be very well available to his legal representative and they can get the land cultivated. Actual income of the deceased Kallu could be assessed as income of an unskilled labour on the basis of Collector Rate. would have shown the income of the deceased at higher side. If the deceased had some land on his name then, the land would be very well available to his legal representative and they can get the land cultivated. Actual income of the deceased Kallu could be assessed as income of an unskilled labour on the basis of Collector Rate. The incident took place in the year 1998 and on those days, the Collector Rate could not be more than Rs. 50/- per day and therefore, the income of the deceased was at the most Rs. 1200/- to Rs. 1300/- per month after giving up four weekly off. At that time, mother of the deceased was dependent upon him and if it is presumed that he was only bread earner of the family still his expenditure should be deducted while considering the dependency of the claim. It is also clear from the record that if marriage of the deceased would have taken place after sometime and he was required to spend large money for his own, his wife and children and also for his mother and his earnings would have spent lesser towards his mother. Hence, the actual dependency of mother at the time of death of the deceased Kallu be computed accordingly and therefore, if that amount is calculated then, monthly dependency of the mother would come to be sum of Rs. 600/- per month i.e. Rs. 7200/- per annum. According to Sarla Verma's case (2009 MPLJ, 270), the multiplier of 18 may be given in such case and therefore, the compensation amount would be a sum of Rs. 1,29,600/-. The funeral expenses of the claimants may be computed @ Rs. 4,000/-. Similar amount may be given in head of loss of estate and therefore, the total compensation appears to be Rs. 1,37,600/-. 10. Since a contributory negligence of the respondent no. 1 is found to be 25% therefore, he was liable to pay 25% of the compensation as computed above, which comes to be sum of Rs. 34,400/-. Since the compensation is lesser than the compensation of no fault liability therefore, the appellants cannot be granted lesser than that compensation and therefore, the compensation of the appellants should be computed equivalent to the compensation of no fault liability. 11. 34,400/-. Since the compensation is lesser than the compensation of no fault liability therefore, the appellants cannot be granted lesser than that compensation and therefore, the compensation of the appellants should be computed equivalent to the compensation of no fault liability. 11. So far as the responsibility of the Insurance Company is concerned, it was for the Insurance Company to prove that the respondent no. 1 did have any valid licence or the tractor was driven for the purpose, which was contrary to the policy condition. The tractor was taken to plough the field of Kamlesh (PW-1) at village Jinoura and therefore, it cannot be said that it was being used for a different purposes other than agricultural purposes. Hence, the Insurance Company could not prove that it was absolved from the liability. When the negligence of the driver/respondent no.1 was found upto some extent then, licence etc. everything is to be considered of the respondent no.1. If, without his knowledge the deceased Kallu @ Arvind had tried to sit on the driving seat then, it cannot be said that the tractor was given by the respondent no.1 to the deceased Kallu for driving and hence, at the time of incident, if the deceased Kallu was driving the tractor, it cannot be said that it was driven by someone, who did not have any licence at the time of incident and therefore, the Insurance Company is not responsible. The accident took place when, the tractor was in possession of the respondent no.1 and he was driving the vehicle. Without his knowledge, the deceased tried to start the tractor and an accident was caused. Hence, the Insurance Company is not absolved from its liability and the entire payment of compensation is to be made by the Insurance Company. 12. When the claim is awarded against the person, who committed tort then, he is responsible for payment of compensation. On the same time, owner of the vehicle and employer of the respondent no. 1 was also responsible for payment of compensation due to his vicarious liability. At present, the respondent no. 2 has expired and his legal representatives have been brought on the record then, the legal representatives of the respondent no. 2 shall be responsible for payment of compensation upto the extent that they obtained some property from the respondent no. 2 in succession. At present, the respondent no. 2 has expired and his legal representatives have been brought on the record then, the legal representatives of the respondent no. 2 shall be responsible for payment of compensation upto the extent that they obtained some property from the respondent no. 2 in succession. However, they shall not be responsible to pay the compensation from their personal earnings. The Insurance Company is also responsible and therefore, all the respondents are responsible for payment of compensation jointly and severally. 13. When the compensation is granted under Section 140 of the Act then, it is to be paid by the owner and Insurance Company of the vehicle, which was involved in the accident therefore, if no fault is found of anyone, still that compensation cannot be taken back from the claimants. The Tribunal has committed a grave error in passing the award that amount of no fault liability be returned with interest. Such award cannot be sustained. 14. On the basis of aforesaid discussion, appeal filed by the appellants is acceptable and therefore, it is partly accepted. The appellants were entitled to get a sum as a compensation equivalent to compensation of no fault liability. The Tribunal has dismissed the application under Section 140 of the Motor Vehicle Act filed by the appellants but in M.A. NO. 973/1997, the Single Bench of this Court vide order dated 23.2.1998 granted that amount of no fault liability with the interest @ Rs. 12% per annum and therefore, the Insurance Company had deposited a sum of Rs. 57,000/- before the Tribunal on 24.3.1998. However, the Tribunal has directed in the final award to return that amount. If that amount is not recovered from the appellants by the Insurance Company then, a sum of Rs. 57,000/- paid by the Insurance Company shall be considered as full and final payment of the compensation. But, if that amount is recovered then, the appellants shall get that amount of Rs. 57,000/- along with the interest @ Rs.12% per annum from the date when, the amount was recovered from the appellants till the realization. However, appeal filed by the appellants is allowed with cost and therefore, the appellants are entitled to get the cost of appeal and claim case before Tribunal from the respondents. 15. Copy of the order be sent to the claims Tribunal along with its record for information and compliance.