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2019 DIGILAW 3118 (PNJ)

Kanta And Others v. Manoj Kumar And Another

2019-11-22

H.S.MADAAN

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JUDGMENT H.S. Madaan, J. - Smt.Kanta aged 29 years - widow, Baby Sapna, aged about 11 years - minor daughter and Master Avtar Singh - minor son of Surinder Chand - deceased had brought a claim petition under Section 163-A of the Motor Vehicles Act, 1988 against the respondents i.e. Manoj Kumar - owner and ICICI Lombard General Insurance Company, Chandigarh - insurer of Tata 407 bearing registration No.HR-37-A-6996, claiming compensation to the tune of Rs.20 lakhs along with interest. 2. As per the version of the claimants, on 1.9.2009, Surinder Chand deceased had gone with a truck, which was loaded with glass material to Ludhiana; when he and some other persons were unloading that glass material from the truck in the area of Dolhewala Chowk, Police Station Division No.6, Ludhiana, they lost grip, as a result of which the glass material fell on the deceased causing multiple injuries to him including on head; he was removed to hospital, where he succumbed to those injuries on 3.9.2009 at 1:30 a.m. 3. According to the claimants, at the time of his death, the deceased was aged about 34 years and was working as a driver with respondent No.1 - Manoj Kumar, earning Rs.3,200/- per month and they were dependent upon earnings of the deceased. 4. On getting notice, both the respondents appeared and filed separate written statements opposing the claim petition. 5. In the written statement filed by respondent No.1, he had raised various preliminary objections including one with regard to maintainability of the claim petition contending that deceased did not meet with any accident and the claimants were not entitled to any compensation; as a matter of fact death of Surinder Chand had been caused when he himself lost grip of rope while unloading glass material from the truck. The answering respondent had handed over his vehicle to M/s Hardev Transport Company, which had deputed Surinder Chand as a driver thereof. On merits, though the allegations in the claim petition were not specifically denied but it was stated that the contents be proved by strict proof. 6. The answering respondent had handed over his vehicle to M/s Hardev Transport Company, which had deputed Surinder Chand as a driver thereof. On merits, though the allegations in the claim petition were not specifically denied but it was stated that the contents be proved by strict proof. 6. In the written statement filed on behalf of respondent No.2 - insurance company, it denied the material assertions in the claim petition contending that the accident does not come within the purview of Motor Accidents Claims Tribunal; that respondent No.1 did not have route permit to ply vehicle on the road and the driver of the vehicle was not holding a valid and effective driving licence; that the vehicle was not insured and the claim petition was not maintainable. In the end, such respondent prayed for dismissal of the claim petition. 7. On the pleadings of the parties, following issues were framed: 1. Whether the deceased Surinder Chand died in road side accident which took place on 2.9.2009 near Dholewala Chowk, Police Station Division No.6, Ludhiana because of rash & negligent driving of respondent No.1 while driving vehicle bearing registration No.HR-37-A-6996? OPP. 2. If issue No.1 is proved in affirmative, to what amount of compensation the claimants are entitled and from whom? OPP. 3. Relief. 8. Issues were however recast on 18.10.2011 as under: 1. Whether the deceased Surinder Chand died in road side accident which took place on 1.9.2009 near Dholewala Chowk, Police Station Division No.6, Ludhiana because of rash and negligent driving of respondent No.1 while driving vehicle bearing registration No.HR-37-A-6996? OPP. 2. If issue No.1 is proved in affirmative, to what amount of compensation the claimants are entitled and from whom? OPP. 3. Whether at the relevant time, vehicle no.HR-37-A-6996 being driven in violation of terms and conditions of insurance policy as it was not having route permit? OPR. 4. Whether the instant petition is not maintainable in view of the provision of Workmen Compensation Act? OPR. 5. Relief. 9. Both the parties led evidence in support of their respective claims. 10. To prove their case, Smt.Kanta - claimant No.1 had got her statement recorded as PW1 besides tendering certain documents. 11. On the other hand, respondent No.1 himself had got his statement recorded as RW1 besides examining Sh.Pritpal Singh, Proprietor of Hardev Transport, Chandigarh as RW2. 12. Relief. 9. Both the parties led evidence in support of their respective claims. 10. To prove their case, Smt.Kanta - claimant No.1 had got her statement recorded as PW1 besides tendering certain documents. 11. On the other hand, respondent No.1 himself had got his statement recorded as RW1 besides examining Sh.Pritpal Singh, Proprietor of Hardev Transport, Chandigarh as RW2. 12. Issue No.1 was again recast as under: "Whether the accident dated 2.9.2009 resulting in death of Surinder Chand occurred out of use of motor vehicle bearing registration No.HR-37-A-6996?" 13. After hearing learned counsel for the parties, the claim petition was dismissed by Motor Accidents Claims Tribunal, Chandigarh (hereinafter referred to as the Tribunal) vide Award dated 12.4.2013, which left the claimants aggrieved and they have filed an appeal before this Court, notice of which was issued to the respondents and respondent No.2 - insurance company has put in appearance through counsel. However, respondent No.1 had not appeared despite service. 14. I have heard learned counsel for the parties besides going through the record. 15. The main reason for dismissal of the claim petition by the Tribunal was that Surinder Chand deceased had died when glass material fell upon him, while he was unloading it from the stationary truck; the truck was not in use and the deceased was not inside the vehicle, therefore the case of the claimants was not covered by the provisions of Section 163-A of the Motor Vehicles Act. 16. However, such finding recorded by the Tribunal is not tenable. Learned counsel for the appellants has referred to various judgments on this point, first being Pradeep Sharma Versus Rajkumar Singh and another, (2011) 27 RCR(Civil) 548 by a Division Bench of Chhattisgarh High Court wherein in para No.8, it was observed as under: 8. In view of the above, the Tribunal has to adjudicate the claim for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicle. Thus, the above quoted provisions would show that the owner of the motor vehicle or the authorised insurer shall be liable to pay compensation in case of death or bodily injury/permanent disablement due to accident arising out of use of motor vehicle, as provided in Second Schedule, to the legal heirs or the victim, as the case may be. Thus, the above quoted provisions would show that the owner of the motor vehicle or the authorised insurer shall be liable to pay compensation in case of death or bodily injury/permanent disablement due to accident arising out of use of motor vehicle, as provided in Second Schedule, to the legal heirs or the victim, as the case may be. Therefore in both the sections i.e. Sections 165 and 163-A, the claimant can claim compensation if the death or bodily injury/permanent disablement has been caused due to accident arising out of use of motor vehicle and hence, for entertaining the claim petitions, it is irrelevant whether the motor vehicle was in running condition or was stationary. 17. Another judgment referred to by learned counsel for the appellants was Mangilal Versus M.P.S.R.T.C., Bhopal, (1988) ACJ 460 by a Division Bench (Indore Bench of Madhya Pradesh High Court) where while dealing with a claim petition with regard to death of a person, who had fell down while climbing up the ladder attached to the bus when bus was stationary at that time, it was observed that compensation was payable to the claimant. 18. One more judgment pressed into service by learned counsel for the claimants happened to be Kalim Khan & others Versus Fimidabee & Others, (2018) 3 RCR(Civil) 457 by the Apex Court wherein while dealing with a case when a tractor had been engaged by the owner for digging well with blasting machine, a battery was installed on the vehicle and power was drawn therefrom for explosive purpose, a stone had come flying and hit head of deceased causing death. It was observed that expression use of vehicle under certain circumstances can be attracted when vehicle is stationary. It was held that it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. 19. Learned counsel for the appellants had further relied upon citation Oriental Insurance Co. Ltd. Versus Smt.Mariamma and Ors.,2008 4 ACJ 2603 by a Division Bench of Karnataka High Court, which related to a case when a cleaner was employed on a truck carrying goods; the truck was stopped to enable its inmates to take food; the cleaner was about to cross the road when he was hit by a bus and sustained fatal injuries. In the claim petition filed by his legal heirs under Motor Vehicles Act where the insurance company had raised a plea that deceased was not an inmate of the truck and truck was stationary and the deceased was covered within the clause 'being carried in the vehicle; that contention was rejected and it was observed that accident was deemed to be in the course of and out of employment of the deceased and insurance company was liable. 20. Learned counsel for the insurance company could not convince me that the case is not covered by Section 163-A of the Motor Vehicle Act. The inference drawn by the Tribunal is obviously erroneous and wrong. It is to be taken that deceased had died in the road accident, which had taken place out of use of motor vehicle i.e. truck bearing No.HR-37A-6996. The finding of the Tribunal on issue No.1 is hereby reversed. 21. The Tribunal has not given any finding on issue No.2 stating that in view of the finding on issue No.1, the said issue had become redundant. Though the Tribunal was required to give issue-wise findings and not to treat issue as redundant, nevertheless, I find that as per version of the claimants, the deceased was aged about 34 years working as a driver with respondent No.1, earning Rs.3,200/- per month. Respondent No.1 in the written statement filed has almost admitted those facts. Nevertheless, claimant - Kanta appearing as PW1 had deposed in that regard. Ex.P1 driving licence of deceased goes to show that he was a driver. Therefore, in view of second schedule under Section 163-A of the Motor Vehicles Act, 1/3rd of the amount is to be deducted towards personal and living expenses of the deceased. In that way, the monthly dependency of the claimants comes out to Rs.2,134/- (3200 - 1066) and annual to be Rs.25,608 (2134 x 12). The multiplier of 17 is required to be applied. Doing that the compensation comes out to Rs.4,35,336/-(25,608 x 17). 22. As per the second schedule, the claimants were entitled to Rs.2,000/- as funeral expenses, widow to get Rs.5,000/- on account of loss of consortium and Rs.2,500/- under the head loss of estate. 23. Doing that, the compensation payable comes out to Rs.4,44,836/-( 4,35,336 + 2000 + 5000 + 2500). 24. 22. As per the second schedule, the claimants were entitled to Rs.2,000/- as funeral expenses, widow to get Rs.5,000/- on account of loss of consortium and Rs.2,500/- under the head loss of estate. 23. Doing that, the compensation payable comes out to Rs.4,44,836/-( 4,35,336 + 2000 + 5000 + 2500). 24. The claimants have placed on record documents Ex.P5 to Ex.P7, which were medicine bills with regard to the amount spent by the claimants on purchase of medicines. In terms of the schedule medical expenses incurred before death supported by bills/vouchers not exceeding Rs.15,000/- can be awarded. Therefore, an amount of Rs.5,000/- was awarded to the claimants on that account. 25. Thus, total compensation comes out to Rs.4,49,836/- ( 4,44,836 + 5,000). 26. Now coming to the liability to pay compensation amount. Respondent No.1 is owner of the truck in question, which was statedly insured with respondent No.2 - insurance company. But as per version of the respondents, the cheque issued towards payment of premium had been dishonoured with the result the insurance policy had been cancelled. 27. It may be mentioned here that insurance company had simply tendered documents and no official therefrom came to depose on oath in that regard giving the precise dates as to when the cover note had been issued, when the cheque was received, when the policy was issued, when the intimation was received from the bank with regard to dishonouring of cheque, when was the insured intimated in that regard and when the policy was cancelled. The claimants are third parties. Under the circumstances it is observed that respondent No.2 insurance company would pay the compensation amount of Rs.4,49,836/- along with interest @ 7.5% per annum from the date of filing of the claim petition till actual realization to the claimants. However, the insurance company would be entitled to recover the same from respondent No.1 by way of filing an execution application before the Tribunal. 28. The amount of compensation shall be apportioned as follows: 1. Petitioner No.1 - Smt. Kanta - 50% 2. Petitioners No.2 and 3 - Sapna and Avtar Singh(minors) - 25% each 29. It is directed that the shares of minor petitioners/claimants shall be kept deposited in the form of fixed deposit with some nationalized bank for the period till they attained majority. 30. Thus, issue No.2 is decided in favour of the claimants and against the respondents. 31. Petitioners No.2 and 3 - Sapna and Avtar Singh(minors) - 25% each 29. It is directed that the shares of minor petitioners/claimants shall be kept deposited in the form of fixed deposit with some nationalized bank for the period till they attained majority. 30. Thus, issue No.2 is decided in favour of the claimants and against the respondents. 31. Issue No.3 was decided by the Tribunal against the respondents. Such verdict does not call for any interference. Issue No.4 was decided against respondent No.2, which also does not call for any interference. 32. Accordingly, the appeal stands allowed.