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Rajasthan High Court · body

2017 DIGILAW 1777 (RAJ)

Girish Chandra Pandey v. Darshan Singh

2017-08-09

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. 1. This appeal and cross-objections are directed against the judgment and award dated 25.01.2001 passed by the Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs.1,76,200/- as compensation along with interest @ 9% per annum from the date of application i.e. 14.05.1998 and exonerated the Insurance Company. 2. While the claimants have filed the appeal seeking enhancement of compensation, cross-objections have been filed by the owner of the vehicle aggrieved against the exoneration of the Insurance Company. 3. The application for compensation was filed by the parents and sister of one Pramod with the averments that on 14.12.1997, Pramod along with Darshan Singh, Dhanraj and Santosh were travelling on a Tractor, which was being driven rashly and negligently by driver-Darshan Singh and when the Tractor reached near the mines, the same went out of control and turned turtle, Promod came under the Tractor suffered grievous injuries, to which, he succumbed. 4. It was claimed that the deceased was aged 25 years had passed high school and was proficient in typing work, he was working as Supervisor and used to do typing work in the office of the employer, the family was dependent on his income. It was claimed that the deceased used to earn Rs.3,500/- per month and used to contribute Rs.3,000/- per month to the family. Based on the said averments, a compensation of Rs.16,92,000/- along with interest was claimed. 5. Though appearance was given on behalf of the driver and owner of the vehicle, despite seeking several opportunities, the reply was not filed and only the respondent-Insurance Company filed its reply. The respondent-Insurance Company opposed the application, disputing its liability and alleged that the deceased was gratuitous passenger in violation of policy conditions and adopted defences available under the provisions of Motor Vehicles Act, 1988 and prayed for dismissal of the claim qua it. 6. The Tribunal framed four issues. On behalf of the claimants, two witnesses were examined and documentary evidence was produced and on behalf of the Insurance Company, one witness appeared and exhibited the policy. 7. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the Tractor. The Tribunal framed four issues. On behalf of the claimants, two witnesses were examined and documentary evidence was produced and on behalf of the Insurance Company, one witness appeared and exhibited the policy. 7. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the Tractor. While determining the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that the Tractor was being used at the Gypsum Mines, the same was not being used for agricultural purposes and as the Tractor was insured only for agricultural use, the Insurance Company was not liable. It was further held that as the deceased was travelling on the Tractor, which use was contrary to the policy conditions, the Insurance Company was not liable. 8. While deciding the issue pertaining to the quantum of compensation, the Tribunal came to the conclusion that income of Rs.3,500/- per month of the deceased was not proved and, therefore, by taking minimum wages for unskilled workman at Rs.60/- per day i.e. Rs.1,800/- per month adding 25% towards future prospects assessed the same at Rs.2,250/- per month, deducted Rs.6,000/- towards personal expenses and assessed the dependency at Rs.21,000/- per year and applying multiplier of 18, assessed compensation at Rs.3,78,000/-. The Tribunal whereafter went on to deduct 60% of the assessed loss of income observing that as the deceased was unmarried, he would not have contributed the same amount throughout his life and based on such observations, assessed the loss of income at Rs.1,26,200/-, awarded Rs.10,000/- to mother towards loss of love and affection and to father and sister, Rs.5,000/- each under the said head, Rs.5,000/- towards funeral expenses and in all awarded a sum of Rs.1,76,200/- along with interest as noticed hereinbefore. 9. It is submitted by learned counsel for the appellants-claimants that the Tribunal committed grave error in first deducting the amount of Rs.6,000/- from the annual income assessed by the it based on the personal expenses and, thereafter further reducing the same by 60% on account of the deceased being unmarried, which assessment cannot be sustained. It was further submitted that the Tribunal awarded meager sum towards loss of love, affection and care to the parents and sister, which amount also deserves to be enhanced adequately. 10. It was further submitted that the Tribunal awarded meager sum towards loss of love, affection and care to the parents and sister, which amount also deserves to be enhanced adequately. 10. Learned counsel for the owner submitted that though reply to the application for compensation was not filed, along with the cross-objections, an application under Order XLI, Rule 27 CPC has been filed, wherein the owner has produced documents, which clearly establish that the Tractor in question was not insured for agricultural purposes, the same was purchased by taking loan from the Bank for use at the mines, the Insurance Company had charged Rs.30/- as premium covering risk of two passengers and, therefore, the findings of the Tribunal and consequential exoneration of the Insurance Company deserves to be set aside. 11. Submissions were made supporting the application under Order XLI, Rule 27 CPC, inter alia, indicating that the Insurance Company has in fact filed an incorrect policy indicating agricultural use of the Tractor in the policy, which fact is negated from the copy issued to the owner, which is being filed along with the application and for the purpose of just decision of the case, the documents are necessary. 12. Various submissions were made based on the India Motor Tariff applied as on 01.04.1990 and it was sought to be contended that the Insurance Company had charged Rs.30/- covering risk of two passengers and that in view thereof it cannot seek its exoneration from the liability and, therefore, finding in this regard deserves to be quashed and set aside. 13. Reliance has been placed on New India Assurance Co. Ltd. V. Ansuya & Ors., 1989 ACJ 400; Purshottam & Ors. v. Dev Chand & Ors., 1997 ACJ 167; Krishni & Ors. v. Amar Nath & Ors., 1997 ACJ 401; Kartik Ram & Anr. v. Chandra Gopal & Ors., 1998 ACJ 1118 ; New India Assurance Co. Ltd. v. Ram Kishore & Ors., 1999 ACJ 231 ; United India Insurance Co. Ltd., Jaipur v. Roshan son of Late Shri Arjun & Anr.,2010 RAR 44 (Raj.); Babi (Smt.) & Ors. v. Laxman & Ors., 2013 2 WLN(Raj) 585; National Insurance Co. v. Meera,2010 RAR 350 (Raj.); National Insurance Co. Ltd. V. Laxmi & Ors.,2004 RAR 519 (Raj.) and Mata Ram v. National Insurance Co. Ltd. & Ors., 2017 AIR(SC) 1734. 14. Regarding the prayer for enhancement made by the appellant. v. Laxman & Ors., 2013 2 WLN(Raj) 585; National Insurance Co. v. Meera,2010 RAR 350 (Raj.); National Insurance Co. Ltd. V. Laxmi & Ors.,2004 RAR 519 (Raj.) and Mata Ram v. National Insurance Co. Ltd. & Ors., 2017 AIR(SC) 1734. 14. Regarding the prayer for enhancement made by the appellant. It was submitted that the Tribunal has awarded adequate compensation and the same does not call for any interference. 15. Learned counsel appearing for the Insurance Company opposed the submissions made by learned counsel for the owner. It was submitted that the Tribunal was justified in exonerating the Insurance Company, inasmuch as, the Tractor though was insured for agricultural use only, the same was being used for non-agricultural purposes as the same admittedly was being used at the mines. Further submissions were made that admittedly, the deceased was travelling on the Tractor and the Insurance Company did not cover the risk of any passenger other than the driver of the Tractor and, therefore, the Tribunal was justified in exonerating the Insurance Company. The submissions made on behalf of the owner as regards payment of premium for passengers on Tractor were vehemently opposed. It was submitted that the premium paid by the insured pertains to the Tractor as well as the Trolley and the claim made regarding any payment towards passengers on the Tractor is baseless and, therefore, the finding in this regard recorded by the Tribunal deserves to be upheld. 16. Reliance was placed on New India Insurance Co. Ltd. v. Sri. Y. Bhemmanna & Ors.: MFA No.779/2009 (MV), decided on 12.06.2012; Susheela Bai & Ors. v. Basavaraj & Anr.: Civil Appeal No.4773/2009, decided on 24.07.2009; Oriental Insurance Co. Ltd. v. Brij Mohan & Ors., 2007 AIR(SC) 1971; New India Insurance Co. Ltd. v. Smt. Vedwati & Ors., 2007 AIR(SC) 1334; New India Assurance Co. Ltd. v. Smt. Manwati & Ors.,2004 RAR 384 (Raj.); United India Insurance Co. Ltd. v. Smt. Kaushlya Bai & Ors.,2008 RAR 169 (Raj.) and National Insurance Co. Ltd. V. Saju P. Paul & Anr., 2013 2 SCC 41 . I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. Ltd. v. Smt. Manwati & Ors.,2004 RAR 384 (Raj.); United India Insurance Co. Ltd. v. Smt. Kaushlya Bai & Ors.,2008 RAR 169 (Raj.) and National Insurance Co. Ltd. V. Saju P. Paul & Anr., 2013 2 SCC 41 . I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. So far as the quantum of compensation is concerned, there is substance in the submissions made by learned counsel for the appellants-claimants, inasmuch as, the Tribunal has committed obvious mistake in first deducting Rs.6,000/- from the annual income toward personal expenses and, thereafter further deducting 60% of the said amount on account of the fact that the deceased was unmarried. The assessment of compensation has to be made based on the principles laid down in Sarla Verma v. Delhi Transport Corporation, 2009 6 SCC 121 , wherein it has been laid down that for an unmarried person, 50% income only is required to be deducted towards personal expenses and, therefore, the twice over deduction made by the Tribunal cannot be sustained. 18. So far as the income assessed by the Tribunal is concerned, in the circumstances of the case, the same appears to be justified and does not call for any interference. 19. In view of the above, the loss of income deserves to be assessed at Rs.27,000 - 13,500 (50% personal expenses) = Rs.13,500 X 18 = Rs.2,43,000/-. 20. So far as the amount towards loss of love, affection and care is concerned, the award of Rs.10,000/- to the mother and Rs.5,000/- each to father and sister appears to be on the lower side and the same, therefore deserves to be enhanced to Rs.25,000/- each in case of the parents i.e. Rs. 50,000/- and Rs.10,000/- in case of sister. The award of Rs.5,000/- towards funeral expenses appears to be justified in the circumstances of the case. 21. Consequently, the claimants would be entitled to a total sum of Rs.3,08,000/- instead of Rs.1,76,200/- as awarded by the Tribunal. 22. 50,000/- and Rs.10,000/- in case of sister. The award of Rs.5,000/- towards funeral expenses appears to be justified in the circumstances of the case. 21. Consequently, the claimants would be entitled to a total sum of Rs.3,08,000/- instead of Rs.1,76,200/- as awarded by the Tribunal. 22. Coming to the issue of liability of the Insurance Company, in view of the fact that the owner by way of filing the present application under Order XLI, Rule 27 CPC and cross-objections, was seeking to dispute the Insurance Policy produced by the respondent-Insurance Company before the Tribunal, the application filed by the owner under Order XLI, Rule 27 CPC is allowed. The documents are taken on record. 23. The specific case of the claimants has been that the deceased was travelling on the Tractor and the Tractor was being used at the Gypsum Mines of the owner of the Tractor and the accident occurred near the mines when it turned turtle and Pramod died. Even in the application under Order XLI, Rule 27 CPC filed by the owner, the case sought to be made out is that the vehicle in fact was purchased for commercial purpose and that the claim pertaining to the damage to the Tractor was settled by the Insurance Company. The Tractor admittedly has been registered as RJ-07-R-7896 and even as per counsel for the owner, the 'R' series is being used for vehicles (Tractors) registered for agricultural purposes. 24. The policy produced by the Insurance Company before the Tribunal and marked as Ex.-NA-1 shows the premium charged as under:- A : OWN DAMAGE B : LIABILITY Basic Premium On IEV 1% Basic Trailor on IEV .75% Less 25% Fl & Eq. Less 5% S.D. Rs. 150/- Basic Premium Trailor Dr. L.L. to Paid Dr. Rs. 120/- 2,770 30/- 15/0- 20/- 173/- 165/- 3,113/- 750/- 2,363/- 5% S.C. TOTAL(B) Rs. 120/- 126/- Comprehensive premium (A+B) Rs. 120/- 2,237/- TOTAL Rs. 2237/- Net Premium (rounded off) Rs. 2,522/- Learned counsel for the owner emphasized that the indication of Rs.30/- against Trailer towards act liability is wrongly indicated and the said amount in fact pertains to the premium charged towards two passengers on the Tractor. Reliance was placed on the India Motor Tariffs pertaining to 'Extra Benefits' and Sub-Clause (a) of Clause relating to "compensation to persons employed in connection with operation and/or maintenance and/or unloading of motor vehicles". 25. Reliance was placed on the India Motor Tariffs pertaining to 'Extra Benefits' and Sub-Clause (a) of Clause relating to "compensation to persons employed in connection with operation and/or maintenance and/or unloading of motor vehicles". 25. Learned counsel for the Insurance Company refuted the submissions and submitted that the premium of Rs.30/- was for 'act only policy' towards the Trailer and for extra benefits relied on by the owner, endorsement No.17 was necessary in the policy, which is not indicated, which necessarily means that no such premium was charged. 26. The premium for Agricultural and Forestry Vehicles have been indicated in the Tariff under Class "D" - Miscellaneous and Special Types of Vehicles as under:- "AGRICULTURAL AND FORESTRY VEHICLES The terms "Agricultural and Forestry Vehicles" means any type of tractor or traction engine or self-propelled agricultural implement used solely for agricultural or forestry work including the haulage of agricultural produce or articles required for agriculture and harvester combines of different models. A. Agricultural Tractors designed primarily OWN DAMAGE ACT As Pedestrian controlled tractors and not exceeding 6 H.P. (including attachments Rs.50+1.00% Rs.36/- supplied by the makers for use with this on IEV type of tractor. B. Vehicle not rate-able under A. (Excluding Rs.150+1.00% Rs.120/- Vehicles owned by Timber Merchants on IEV And Hauliers used for tree-haulage Which must be rated as Goods Carrying Vehicles. Endorsement No.36 must be used. For Rates for Comprehensive Cover of Trailers as well as for "Act Only" Cover For towing of more than two Trailers At a time refer to Sheet of the C.V. Tariff. While any piece of agricultural machinery is connected by any means whatsoever for operational purposes to vehicle described in schedule to the Policy it is deemed to be a Trailer attached thereto." Further the Tariff relating to Trailers in so far as relevant reads as under:- "CLASS B - TRAILERS i.e. any truck, cart, carriage or other vehicle without means of self-propulsion including agricultural implements drawn or hauled by any self-propelled vehicle. Policies may be extended or a separate policy issued to cover trailers at the following rates: The premium must be calculated at the rate applicable to the highest rated class of vehicle that will tow the trailers at any time. Policies may be extended or a separate policy issued to cover trailers at the following rates: The premium must be calculated at the rate applicable to the highest rated class of vehicle that will tow the trailers at any time. OWN DAMAGE When towed by a vehicle Rated under: Agricultural/Others Forestry--Towing of one Trailer 20 + 0.75% IEV Rs.150 + 0.90% IEV (irrespective of number of trailers insured)".--LIABILITY PREMIUM FOR ACT COVER Per trailer Per trailer Agricultural/Forestry Others--Towing of one Trailer only30 75 (irrespective of number (+10% of "A" premium of trailers insured)" applicable to towing vehicle)....- Note: 1.Rates prescribed for Trailers under Miscellaneous and Special Types of Vehicles - Class "D" are in respect of Trailers attached to special types of vehicles and such trailers shall not fall under this classification." The extra benefit provision relied on by the learned counsel for the owner in so far as relevant reads as under:- "EXTRA BENEFITS (Not applicable to Motor Trade Risks except where otherwise specified) NOTES: 1. Premium for these benefits must be in the order shown in the Premium Computation Table. 2. These benefits may not be insured separately but only in conjunction with a Motor Policy. 1. Compensation to persons Employed in connection with the Operation and/or Maintenance and/or Unloading of Motor Vehicles. (a) Legal liability under the Workmen's Compensation Act (or any other identical legislation), Fatal Accidents Act and at Common Law may be granted by charging an (Endorsement No.17 must be used.)" 27. A look at the policy produced by the owner along with application under Order XLI, Rule 27 CPC indicates the IMT endorsement as 19, 22, 23, 24 and 55. 28. As noticed hereinbefore in the schedule of premium indicated in the policy, towards own damage of the Tractor, a sum of Rs.150/- and 1% IEV has been charged and towards 'liability', a sum of Rs.120/- has been charged, on the said aspect, there is no dispute. 28. As noticed hereinbefore in the schedule of premium indicated in the policy, towards own damage of the Tractor, a sum of Rs.150/- and 1% IEV has been charged and towards 'liability', a sum of Rs.120/- has been charged, on the said aspect, there is no dispute. For Trailer, a sum of Rs.20/- towards own damage and .75% IEV has been charged and in the liability column, though in the policy exhibited before the Tribunal, the same indicates Trailer and after writing Dr., the same has been scored-off, in the copy issued to the owner, which has been filed along with the application under Order XLI, Rule 27 CPC, the same has been left blank, regarding which, the learned counsel for the Insurance Company indicates that both the documents are hand prepared and, therefore absence of a particular endorsement in a copy, cannot be relied on. 29. A look at the Tariff as quoted hereinbefore pertaining to Trailer supports the submissions made by learned counsel for the Insurance Company that the premium of Rs.30/- pertains to the coverage of 'liability' towards Trailer. 30. The reliance placed on the note under the Tariff pertaining to Trailer has no substance as it only excludes the Trailers which have been specifically indicated in Tariff pertaining to Class "D" Vehicles and does not cover the present case. 31. The submissions made by learned counsel for the owner that Rs.30/- premium was charged towards extra benefits, apparently has no substance, inasmuch as, the Tariff regarding extra benefits as quoted hereinbefore specifically stipulates that endorsement No.17 must be used in case the additional premium of Rs.15/- per capita is charged for legal liability for persons employed in connection with the operation and/or maintenance and/or unloading of motor vehicles, which admittedly has not been used in the present case. 32. 32. Further as already noticed hereinbefore, the deceased was travelling on the Tractor and even if the argument of the learned counsel for the owner is to be accepted, there is no question of the deceased employed in connection with the operation and/or maintenance and/or unloading from the Tractor, inasmuch as, it was claimed that the deceased was working as Supervisor/Munshi/Chowkidar at the mines and has nothing to do with the operation, maintenance and unloading from the vehicle, wherein in case of a Tractor alone, unloading even otherwise is not possible, as admittedly at the relevant time, the Trolley was not attached. 33. The various submissions made with regard to the interpretation put to the Tariff, endorsement therein and requirements in this regard, loose significance in view of what has been discussed hereinbefore. 34. In view thereof, the case sought to be made out by the owner that a sum of Rs.30/- was paid towards two persons travelling on the Tractor cannot be accepted and is therefore rejected. 35. So far as the reliance placed by learned counsel for the owner towards judgments in the case of Meera and Babi is concerned, in the said cases, the Thrasher was attached with the Tractor and the accident occurred from the said Thrasher, which aspect has no relation to the case in hand. 36. The reliance placed on the Division Bench judgment in case of Laxmi also is misplaced as in the said case the observations made pertains to contradictions in the Clause of the policy, which is not the aspect in the present case. 37. In case of Mataram , it was found as a fact that the Insurance Company had charged premium from the insured for three persons excluding driver, as already indicated above, the submission in this regard by the learned counsel for the owner has no substance. 38. The judgments in the case of Ansuya , Krishni , Kartik Ram and Ram Kishore , essentially relates to Tractors attached with Trolleys and terms and conditions in the Insurance Policy, which has no application to the facts of the present case. 39. Hon'ble Supreme Court in the case of Brij Mohan laid down that for passengers carried on a Tractor/Trolley, the Insurance Company would not be liable for payment of compensation as the said liability is not covered. 40. 39. Hon'ble Supreme Court in the case of Brij Mohan laid down that for passengers carried on a Tractor/Trolley, the Insurance Company would not be liable for payment of compensation as the said liability is not covered. 40. In view thereof, the finding recorded by the Tribunal on the issue pertaining to the liability of the Insurance Company does not call for any interference. 41. In view of the above discussion, while the appeal filed by the appellants-claimants is partly allowed, the cross-objections filed by the owner are rejected. The claimants would be entitled to a total compensation of Rs.3,08,000/- instead of 1,76,200/- as awarded by the Tribunal. On the enhanced amount of compensation, the claimants would be entitled to interest @ of 7% per annum from the application i.e. 14.05.1998. 42. The owner and driver would be jointly and severally liable to make payment of amount of compensation to the claimants. 43. The amount of enhanced compensation along with interest be paid in the Saving Bank Accounts of the appellant No. 1 and 2 equally.