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2017 DIGILAW 1340 (JHR)

Divisional Manager v. Mini Devi

2017-08-02

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. – Both miscellaneous appeals arise out of the common judgment/award dated 06.03.2013 passed by Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi, in Compensation Case no.210 of 2005, whereby the compensation of Rs. 2,03,400/- with interest @ 6% per annum payable from 26.02.2010 till the date of realization less the amount of Rs. 50,000/- paid, under Section 140 of the M.V. Act, 1988 has been granted. The respondents/claimants for enhancement of the awarded compensation. 2. Learned counsel for the appellant - The New India Assurance Company Limited has argued that it is admitted case that the deceased-Janak Singh was travelling on the roof of the Bus bearing Registration no. BR-15P-0151. That the Bus came in contact with a hanging electric wire and due to the electric shock Janak Singh died. It is argued by the learned counsel that in the given facts, it is evident that there is violation of the terms and conditions of the Insurance Policy as the deceased was travelling on the roof of the Bus. That he died on account of electric shock due to his own negligence. The owner of the Bus has committed breach of the terms and conditions of the policy by carrying passengers on the roof of the Bus, hence, the owner of the Bus is liable to pay the compensation and the Insurer should be exonerated from the liability to pay the compensation. It is urged that compensation has been awarded by assessing the income of the deceased at Rs. 2,000/- per month but no document has been filed in support of the income of the deceased. On the above grounds, it is submitted that the impugned award be set aside and the appellant-The New India Assurance Company Limited be exonerated from the liability to pay compensation. 3. Mr. Ashutosh Anand, learned counsel for the respondent/claimant has submitted that a Full-Bench of this court in a decision rendered in the case of Giriraj Prasad Agrawal and Ors. v. Parwati Devi and Ors. and Kali Paharin and Ors. reported in 2005 (2) JCR 523 (Jhr) in similar facts and circumstances has held that the Insurance Company can only be exonerated of the liability to pay compensation when there is violation of terms and conditions as enumerated under Section 149(2) of the Motor Vehicle Act. v. Parwati Devi and Ors. and Kali Paharin and Ors. reported in 2005 (2) JCR 523 (Jhr) in similar facts and circumstances has held that the Insurance Company can only be exonerated of the liability to pay compensation when there is violation of terms and conditions as enumerated under Section 149(2) of the Motor Vehicle Act. In the aforesaid case the deceased was travelling as a passenger of the Bus atop the roof of the Bus and the Full Bench dismissed the plea of the Insurance Company that there is violation of terms and conditions of the policy and held that the Insurer was liable to pay the compensation. It is submitted that the compensation has been awarded by assessing the income of the deceased at Rs. 2,000/- per month whereas the witnesses have stated that the deceased was a labourer and was earning Rs. 3,000/- per month, hence, the Tribunal has committed an error by assessing the income of the deceased at Rs. 2,000/- per month instead of Rs. 3,000/- per month. That the Tribunal has committed an error in awarding a meager amount towards future expenses, loss of estate and damages with respect to love and affection. 4. Heard. In view of the decision rendered by the Full-Bench of this Court in the case of Giriraj Prasad Agrawal and Ors. (Supra), it is well settled that the Insurer can be exonerated of the liability to pay compensation only when there is violation of terms and conditions as enumerated under Section 149(2) of the Motor Vehicle Act. In terms of Section 147, the contractual obligation to compensate an injured or deceased on account of motor accident lies on the insurer as section 147 mandates coverage of third party risk. On perusal of judgment/award of the court below, it is evident that no material evidence has been adduced by the Insurer to make out a case that there was violation of the terms and conditions as enumerated under Section 149(2) of the M.V. Act, by the owner of the vehicle. The Tribunal has erred in assessing the income of the deceased at Rs. 2,000/- per month, hence, considering the fact that the deceased was a daily labourer it will be just and proper to assess the income of the deceased at Rs. 3,000/- per month. On assessment of the income of the deceased at Rs. The Tribunal has erred in assessing the income of the deceased at Rs. 2,000/- per month, hence, considering the fact that the deceased was a daily labourer it will be just and proper to assess the income of the deceased at Rs. 3,000/- per month. On assessment of the income of the deceased at Rs. 3,000/- per month, the annual income is computed @ Rs. 12X3000 = Rs. 36,000/-. Admittedly, the deceased was a bachelor accordingly, 50% of the income is deducted towards personal expenses, therefore, the annual loss of dependency is assessed at Rs. 18,000/-. The multiplier applicable is 18, considering the fact that the deceased was aged 18 years. Therefore, the total loss of dependency is assessed at Rs. 18,000X18 = Rs. 3,24,000/-. The Tribunal has granted a meager amount towards funeral expenses, loss of estate and has not awarded any amount under the head of non-pecuniary damages for the loss of love and affection. It will be just and proper to award a lump sum amount of Rs. 1,75,000/- towards funeral expenses, loss of estate and loss of love and affection. Accordingly, the awarded compensation is enhanced and the appellant - The New India Assurance Company Limited is directed to pay the compensation amount of Rs. 3,24,000+Rs.1,75,000= Rs. 4,99,000/- less the amount of Rs. 1,60,000/- paid in compliance of the order of this Court and under Section 140 of the Act. The appellant - The New India Assurance Company Limited shall pay an interest of 7% per annum on the outstanding amount in terms of the order of the court below in the Lok Adalat scheduled to be held on 12.08.2017. 5. Registry shall return the statutory amount of Rs. 25,000/- to the appellant/The New India Assurance Co. Ltd. 6. Let a copy of this order be handed over to the both the counsels for needful. 7. With the aforesaid modification of the impugned judgment, M.A.no. 273 of 2013 is allowed to the extent as indicated above and M.A. no. 168 of 2013 stands dismissed.