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Madhya Pradesh High Court · body

2016 DIGILAW 551 (MP)

Shafiq Khan v. Munnalal

2016-07-13

J.K.MAHESHWARI

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JUDGMENT : J.K. Maheshwari, J. All these appeals are arising out of same accident, but against different awards passed in Claim Case No. 26/2007 on 20th August, 2008 and in Claim Case No. 24/2007 on 13th January, 2009. MA No. 335/2009 has been filed by the Insurance Company challenging the award passed in Claim Case No. 24/2007; MA No. 1376/2008 has been filed by the Insurance Company assailing the award passed in Claim Case No. 26/2007, while MA No. 1220/2008 has been filed by the claimant seeking enhancement. 2. It is not disputed that the accident took place on 11th September, 2007 when the deceased Ashok and Shahid were sitting on the rooftop of the cabin of the truck bearing registration No. M.P. 38-G-4768. It is said that when the truck reached near the village Visloni the driver driving the Truck rashly and negligently dashed it against an electric pole and due to electrocution Ashok and Shahid died. In the case of Shahid claimants are mother and father while in the case of Ashok, the claimants are wife, mother, father, brother and sister. Accordingly, by filing claim case under Section 166 of the Motor Vehicles Act compensation were sought. 3. The Insurance Company has filed the written statement denying all the averments inter-alia contending that the death of deceased was not due to rash and negligent driving of the truck, but it was due to electrocution. It is said that claims have been filed asking exaggerated amount and the driver of the truck was not having valid driving license. It is contended that there was violation of the terms and conditions of the insurance policy, however, the Company is not liable to pay compensation. The owner and driver have also contested the claim denying the claim supporting the plea as taken by the Insurance Company in its written statement. 4. The Claims Tribunal while deciding the claim by passing separate awards has held that the Insurance Company has failed to bring on record any evidence regarding violation of the terms and conditions of the policy. It has also been held that both the deceased were sitting as labourers on the rooftop of the truck, however come within the purview of third party. Considering the earning of the deceased Shahid the Tribunal awarded loss of dependency as Rs. 2,88,000/ - and in conventional head Rs. 12,000/-, making total compensation Rs. 3,00,000/-. It has also been held that both the deceased were sitting as labourers on the rooftop of the truck, however come within the purview of third party. Considering the earning of the deceased Shahid the Tribunal awarded loss of dependency as Rs. 2,88,000/ - and in conventional head Rs. 12,000/-, making total compensation Rs. 3,00,000/-. While in the case of Ashok the Tribunal awarded Rs. 2,88,000/- in loss of dependency and in conventional head Rs. 57,000/- making the total compensation Rs. 3,45,000/-. However, claimants in the case of Shahid have filed appeal for enhancement of the award amount whereas it is not brought in the notice of this Court that any appeal has been filed by the claimants in the case of Ashok. 5. The Insurance Company has filed two appeals against both the awards i.e. MA No. 1376/2008 and MA No. 335/2009 inter-alia on the ground that the findings as recorded by the Tribunal that the Company has failed to prove the terms and conditions of the driving license without affording due opportunity rejecting the application to call for the RTO and to add pleadings in that regard is not just and proper and hence the matter may be remanded back. In support of the contentions, learned Counsel for the Insurance Company has placed reliance on several judgments viz. Jagdish Prasad Gupla & Anr. v. Vimlesh Singh & Ors, MACD 2009 (2) (M.P.) 299, based upon the judgment of Apex Court rendered in the case of National Insurance Co. Ltd. v. Chholleti Bharatamma & Ors., MACD 2008 (SC) 42 : 2008 (2) T.A.C. 374 and Bhuribai and another v. Shyam Sunder and others, 2007 ACJ 384 , urging that hardly it may be a case of contributory negligence. More so, if the deceased were sitting on the rooftop of the cabin, then it would be the violation of terms and conditions of the Insurance Policy. However, the Insurance Company would not be liable to pay the compensation, hence, it may be exonerated from the liability. It is also urged that the death has not taken place due to the accident, but it has taken place due to electrocution. Therefore, the Insurance Company is not liable to pay the compensation. 6. On the other hand, Shri S.S. Rajput, learned Counsel appearing on behalf of claimants/L.Rs. It is also urged that the death has not taken place due to the accident, but it has taken place due to electrocution. Therefore, the Insurance Company is not liable to pay the compensation. 6. On the other hand, Shri S.S. Rajput, learned Counsel appearing on behalf of claimants/L.Rs. of Shahid contends that the earning as accepted by the Tribunal is on lower side as also the compensation awarded towards conventional head is contrary to the judgment rendered in the case of Rajesh and others v. Rajbir Singh and others, 2013 ACJ 1403 : 2013 (3) T.A.C. 679. Therefore, enhancement may be directed. 7. After hearing learned Counsel appearing for both the parties and on perusal of the findings recorded by the Tribunal and the facts of the case it is not disputed that both the deceased persons were sitting on the rooftop of the truck. As per the statement of witness of the Insurance Company DW-2 it is the admitted that the deceased were labourers and such labourers would come within the purview of third party. It is also undisputed that both the deceased died due to electrocution when the truck dashed in the electric pole. In the said fact if the provisions of Section 123 (2) of the Motor Vehicles Act is seen, then it would be clear that travelling on the rooftop or bonnet of the vehicle is prohibited. In case the passengers travel on the rooftop, and the accident caused, however the claimant would also be held negligent as has been held in the case of Bhuribai (supra). Therefore, the compensation would be awarded applying the principles of contributory negligence. 8. As far as the point regarding violation of terms and conditions of the policy as the deceased were sitting on the rooftop of the truck is concerned, the judgment rendered in the case of Chholleti Bharatamma (supra) would not be applicable in the present case. In the said case, the persons were sitting on a lorry after paying the fare. However, the said judgment was set aside by the Apex Court exonerating the Insurance Company from the liability. In the present case, as discussed above, the witness of the Insurance Company admitted that both the deceased were labourers covered within the purview of third party. In the said case, the persons were sitting on a lorry after paying the fare. However, the said judgment was set aside by the Apex Court exonerating the Insurance Company from the liability. In the present case, as discussed above, the witness of the Insurance Company admitted that both the deceased were labourers covered within the purview of third party. In addition to the aforesaid, learned Counsel appearing for the Insurance Company is not in a position to show any violation of the terms and conditions of the policy, thereby the Insurance Company would not be liable to pay the compensation and may be exonerated, it is to make clear here that the judgment of learned Single Bench in the case of Jagdish (supra) is based on the judgment of Chholleti Bharatamma (supra) without explaining the facts. However, the said judgment is distinguishable from the present case as discussed above. In addition to the aforesaid, learned Single Bench has not considered the Division Bench Judgment rendered in the case of Bhuribai (supra) holding the claimant negligent. In view of the aforesaid, the findings recorded by the Tribunal with respect to liability of the Insurance Company is upheld holding that claimant and driver of the offending vehicle both were negligent. 9. As far as arguments regarding rejection of the application seeking amendment and to call the RTO for proving the documents of license is concerned, it is to observe here that the plea as taken by the Insurance Company in the amendment application is inconsistent with the plea taken in the written statement which is based on the investigation report of Insurance Company. However, the said application has rightly been rejected by the Tribunal. So far as refusing to call RTO is concerned, it is to observe that if the documents filed by the Insurance Company are required to be proved by them then immediate steps may be taken, but, even after granting opportunity when the evidence were not brought and the said application was filed which was rejected by the Tribunal. The reasons, as assigned by the Tribunal while rejecting the application, are in accordance to law. Therefore, also, the plea taken by the Insurance Company regarding affording opportunity of hearing by the Tribunal to prove the license, tally the documents is turned down. 10. The reasons, as assigned by the Tribunal while rejecting the application, are in accordance to law. Therefore, also, the plea taken by the Insurance Company regarding affording opportunity of hearing by the Tribunal to prove the license, tally the documents is turned down. 10. In view of the foregoing discussion the compensation is to be calculated on the basis of contributory negligence in the context of judgment rendered in the case of Bhuribai (supra) as well as Rajesh(supra) to grant just and fair compensation. 11. On perusal of the findings given in M.A. No. 1376/2008 as well as MA No. 1220/2008 it seen that the earning of the deceased as accepted by the Tribunal as Rs. 2,000/- is on lower side. However, looking to the evidence given regarding earning of the deceased, it may be accepted Rs. 100/- per day, which comes to Rs. 3,000/- per month. On deduction of ½ being bachelor, loss of dependency comes to Rs. 18,000/- per annum. If multiplier of 18 is applied looking to the age of the deceased then loss of dependency would come to Rs. 3,24,000/-. On account of finding of contributory negligence, if ½ is deducted then it would come to Rs. 1,62,000/-. However, as per the judgment rendered in case of Rajesh (supra) if Rs. 1,00,000/- is added then the total sum of compensation Rs. 2,62,000/- payable to the claimants in terms of the award. As far as MA No. 335/2009 is concerned, if the earning of the deceased is accepted Rs. 100/- per day then it would come to Rs. 3,000/- per month and Rs. 36,000/ - annually. Claimant being wife if ?rd is deducted then loss of dependence would come to Rs. 24,000/- and if multiplier of 18 is applied looking to the age of the deceased, the loss of dependency would come to Rs. 4,08,000/-. In view of the finding of the Tribunal if ½ is deducted then loss of dependency would come to Rs. 2,04,000/-. However, on adding Rs. 1,50,000/- in view of the decision rendered in the case of Rajesh (supra) the total compensation would come to Rs. 3,54,000/-. As the claimant has not come forward to seek enhancement of award amount, the amount of Rs. 3,45,000/- awarded by the Tribunal is hereby maintained. 12. 2,04,000/-. However, on adding Rs. 1,50,000/- in view of the decision rendered in the case of Rajesh (supra) the total compensation would come to Rs. 3,54,000/-. As the claimant has not come forward to seek enhancement of award amount, the amount of Rs. 3,45,000/- awarded by the Tribunal is hereby maintained. 12. Accordingly, the MA No. 335/2009 and MA No. 1376/2008 filed by the Insurance Company are hereby disposed of accordingly and MA No. 1220/2008 seeking enhancement filed by one of the claimants stands dismissed. In the facts, no order as to cost.