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2021 DIGILAW 336 (RAJ)

Miss. Devli v. Rajkumar

2021-02-10

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. In CMA No. 2293/13 and 2294/13, the notices have not been issued, however, since they arise out of the same judgment and award, learned counsel for the respondent-Insurance Company Shri Santosh Choudhary is requested to accept notice on behalf of the respondents. 2. All the above mentioned appeals shall stand decided by this common judgment as they arise out of the same accident dated 10.10.2010. 3. With the consent of learned counsel for the parties, the matters are being heard and disposed of finally. 4. The appellant-claimant in CMA No. 2299/13 has preferred an application under Order 41 Rule 27 of CPC for taking on record the additional evidence in this case. The appellant has produced the copies of the FIR, the photographs and the statements of Ganeshi, Smt. Laxmi and Smt. Bhuri recorded under Section 161 of Cr.P.C. 5. By virtue of these documents, it is submitted that the truck in which the deceased and the claimants were travelling was loaded with broom leaves (Khajur leaves) and the photographs clicked by the police at the time of investigation also shows that the truck was loaded with broom leaves (Khajur leaves). 6. Learned counsel for the respondent-Insurance Company, by filing reply to the application preferred under Order 41 Rule 27, C.P.C., has opposed the same and submits that the application has been preferred after a period of five years from the date of filing of the appeal and these documents were not brought before the learned MACT court at the time of adjudication of the claim application. He therefore, submits that the documents sought to be placed on record before this Court, should not be taken into consideration without affording opportunity of cross examination of the said documents or evaluation of the same by the trial court. 7. I have considered the submissions made at the Bar on the application. 8. This Court is prima facie of the view that these are the documents which were collected by the Police during the course of investigation but the same were not placed on record along with the charge-sheet. The claimants after obtaining the certified copies of the same have sought to be placed on record before this Court, therefore, the veracity of the same cannot be doubted. The claimants after obtaining the certified copies of the same have sought to be placed on record before this Court, therefore, the veracity of the same cannot be doubted. As far as the delay in filing the same is concerned, since the claimant belongs to the downtrodden society and of a backward place of the Southern Rajasthan, the delay in filing these documents before this Court is, therefore, condoned. Thus, the application for taking additional evidence on record preferred by the appellant-claimant under Order 41 Rule 27 is allowed. 9. Heard on the main appeals. 10. The present appeals seeking enhancement of compensation filed by the appellant-claimants arise out of the Judgment and Award dated 19.09.2013 passed by Motor Accident Claims Tribunal, Udaipur in MACT Claim Case Nos. 170/2011, 237/2011, 173/2011, 172/2011, 171/2011, 318/2011, 169/2011, 213/2011, 317/2011 whereby, different amounts of compensation have been awarded to the claimants after evaluating the evidence on record. 11. Brief facts of the case are that the appellants-claimants on 10.10.2010 at around 8 o'clock in the morning, after boarding the truck bearing registration No. RJ-27-GA-5447 on a rental basis, proceeded to Ahmedabad. The claimants were carrying broom leaves (Khajur leaves) for selling the same at Ahemdabad. On their way to Ahmedabad, because of the rash and negligent driving of the driver of the truck in which the claimants, were travelling along with broom leaves, overturned. In the said accident three persons, namely, Khema, Bhera @ Bheria and Narain died and Smt. Sunder, Ratan, Smt. Pyari, Jairam, Devli and Magani Ram sustained injuries. 12. In these circumstances, separate claim-petitions were preferred by the claimants before the Tribunal. The Tribunal after framing the issues, adducing the evidence on record and hearing learned counsel for the parties while partly allowing the claim petitions, passed the judgment and award dated 19.09.2013 and awarded different amounts as compensation to the claimants. Vide Judgment and Award dated 19.09.2013, the respondent-Insurance Company was discharged from the liability to pay compensation to the claimants. 13. Learned counsel for the appellants vehemently submitted that the findings of the Tribunal on Issue No. 2 are incorrect. Vide Judgment and Award dated 19.09.2013, the respondent-Insurance Company was discharged from the liability to pay compensation to the claimants. 13. Learned counsel for the appellants vehemently submitted that the findings of the Tribunal on Issue No. 2 are incorrect. He further submitted that the Tribunal has not rightly appreciated the evidence and the statements brought before it by the claimants specifically showing that the subject goods i.e broom leaves (Khajur leaves) were being carried to Ahmedabad for selling the same and the passengers in the truck were in the capacity of the owner of the goods and therefore, the liability to pay the compensation amount, squarely falls on the Insurance Company in view of the provisions of Section 147 of the Motor Vehicles Act. Thus, in view of the evidence and photographs produced, the findings recorded by the Tribunal are erroneous. 14. He further submits that the compensation amount awarded to the claimants-appellants in the present case is far too less and needs to be recomputed in the light of the judgments of Hon'ble the Supreme Court and the Guidelines of RALSA. 15. Per contra, Shri Choudhary, learned counsel for the respondent-Insurance Company vehemently submits that the findings of fact recorded by the Tribunal on Issue No.2 are perfectly just and proper. The Tribunal after evaluation of the evidence on record has come to the conclusion that there is no documentary evidence showing that the broom leaves were being transported to Ahmedabad for sale. He further submits that the Tribunal has appreciated the evidence which was brought before it and has come to the conclusion that Insurance Company is not liable to pay compensation in this case as the claimants were not covered under the terms & condition of insurance policy being gratuitous passengers in the insured vehicle. Learned counsel further submits that the truck was having seating capacity of only two persons and therefore, if thirteen persons boarded the truck, the Insurance Company cannot be held liable as it would breach the policy conditions. He further submits that there was no evidence on record which shows that the passengers of the truck were actually the owners of the broom leaves. He further submits that there was no evidence on record which shows that the passengers of the truck were actually the owners of the broom leaves. Learned counsel further submits that the police after investigation filed the charge-sheet under Section 99 and 192-A of the M.V. Act against the owner-cum-driver of the insured vehicle, which clearly shows that the vehicle was being driven in violation of the policy conditions. 16. It is contended that admittedly, the vehicle involved in the present case was a 'goods vehicle' and therefore, only two persons were liable to be covered under the insurance policy, whereas, 13 persons were traveling in the subject vehicle in the present case. Learned counsel further submits that in the Old Act of 1939, the definition of' goods vehicle' provided in sub-clause (25) of Section 2 was inclusive of the persons traveling in the 'goods vehicle but in the Act of 1988, the definition of 'goods vehicle' was amended to 'goods carriage'. He submits that the intention of the legislature, thus, was clear that the risk of the passengers traveling in the 'goods vehicle' will not be covered as the vehicle is principally used for transporting the goods and therefore, the same is not supposed to carry the passengers. Learned counsel, therefore, submits that the insurance company is not liable to compensate the claimants-appellants in the present case. 17. Learned counsel further submits that it has not been conclusively proved before the Tribunal that the injured/ deceased persons were belonging to the same family and collectively hired the truck for transporting their goods to Ahmedabad at a rental price of Rs. 6,000/-. 18. Learned counsel further submits that even as per the provisions of Section 147 of M.V. Act, the owner of the goods can be one who can sit in the cabin of the truck and whose risk would be covered under the insurance policy, whereas, in the present case, there were 13 passengers sitting in the rare portion of the truck with their broom leaves. Thus, all 13 persons cannot be termed as owners of the goods. 19. Learned counsel further submits that on account of death of Khema, Bhera and Narain, the claimants have already been awarded the amount in excess if, the calculation in light of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Thus, all 13 persons cannot be termed as owners of the goods. 19. Learned counsel further submits that on account of death of Khema, Bhera and Narain, the claimants have already been awarded the amount in excess if, the calculation in light of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in (2017) SC 5157 is done. Therefore, the amount awarded by the Tribunal is not required to be interfered with as the calculation for arriving at the 'just compensation' in this case by the Tribunal appears to be in order. 20. I have considered the submissions made at the Bar and have gone through the judgment dated 19.09.2013 and the relevant record of the case. 21. The finding of the Tribunal on issue No. 2 that the vehicle which met with the accident was carrying broom leaves does not appear to be incorrect as during the course of investigation, the police clicked certain photographs, in which, the subject truck was found loaded with broom leaves (Khajur Leaves). Although, the same were not part of the charge-sheet, which was produced before the Tribunal, however, the certified copies obtained by the claimants which is placed before this Court cannot be disbelieved. Besides that, the statements of Ganesh, Smt. Laxmi and Smt. Bhuri recorded under Section 161 of Cr.P.C as well as the statements of witnesses recorded by the Tribunal while adjudicating the claim applications, clearly show that the claimants were actually the owners of broom leaves (khajur leaves) and they were going to Ahmedabad for selling the same collectively. In light of the evidence adduced, it cannot be said that on the date of the accident, the truck insured with the respondent-Insurance Company was not carrying any broom leaves. The evidence which has come on record also shows that the claimants were the residents of a very backward area of the State of Rajasthan. It is of common knowledge that people of this area are very poor, and it is quite possible that claimants, after collecting the leaves and making the bundles of the same, were going to Ahmedabad for selling the same to earn their livelihood. It has also come on record that the persons who boarded the truck belonged to the same family. It has also come on record that the persons who boarded the truck belonged to the same family. The possibility cannot be ruled out that these persons collected broom leaves(khajur leaves) and after hiring the truck in common, were travelling in the same along with the leaves collected. Therefore, it cannot be said that they were not the owners of the leaves. This Court takes into account the geographical condition of the area to which the claimants belong and the place where the accident occurred. It is worth noticing here that for the inhabitants of the area to which the claimants belong, the main source of livelihood is agriculture and the produce thereof. 22. In view of the re-evaluation of evidence, photographs and the statements, this Court is of the view that the entire family who boarded the truck along with their collected produce of broom leaves(khajur leaves) were going to Ahmedabad in the truck for selling the same to earn their livelihood. Thus, the persons who suffered injuries and died in the accident were actually the owners of the goods in the light of Section 147 of the MV Act. It is true that there cannot be multiple owners of the transport goods but in the present case, when the family members have collected the broom leaves and after making the bundles of the same, jointly rented a truck for selling the same at Ahmedabad and therefore, they are owners of the goods being transported. It cannot be segregated that there was only one owner and other persons who boarded the truck were not the owners in the present case. Thus, the finding recorded by the Tribunal on Issue No. 2 is not correct and the same is set aside. 23. Leaned counsel for the respondent has placed reliance upon the judgments of the Hon'ble Supreme Court in the cases of N.I.C. V/s Cholleti Bharatamma & Ors. reported in 2008 R.A.R. 141(SC), Smt. Asu Devi & Ors. V/s Prabhu Dan & Ors. reported in 2017(2) R.A.R. 581 (Raj.), National Insurance Company Ltd. V/s Jitendra Kumar & Anr. reported in 2013 R.A.R. 279(Raj.), National Insurance Co. Ltd. V/s Rattani & Ors. reported in 2009 R.A.R. 252(SC), Sanjeev Kumar Samrat V/s National Insurance Company Ltd. & Ors. reported in 2013 R.A.R. 108(SC), Smt. Kesar Bai V/s Saleem Mohammad & Anr. reported in 2017(2) R.A.R. 581 (Raj.), National Insurance Company Ltd. V/s Jitendra Kumar & Anr. reported in 2013 R.A.R. 279(Raj.), National Insurance Co. Ltd. V/s Rattani & Ors. reported in 2009 R.A.R. 252(SC), Sanjeev Kumar Samrat V/s National Insurance Company Ltd. & Ors. reported in 2013 R.A.R. 108(SC), Smt. Kesar Bai V/s Saleem Mohammad & Anr. reported in 2012 R.A.R. 374(Raj.), National Insurance Company Ltd. V/s Prabhu reported in 2010 R.A.R. 107 (Raj.), National Insurance Company Ltd. V/s Prema Devi & Ors. Reported in 2008 R.A.R. 123 (SC). 24. The judgments relied upon by the learned counsel for the respondent - Insurance Company are not applicable in the facts and circumstances of the present case as it has been held that the deceased and the injured persons traveling in the truck were actual owners of the goods, which was being transported in the said truck. 25. As far as contention of the learned counsel for the respondent - Insurance Company that the truck was a 'goods vehicle' and therefore, the risk of only two persons can be covered under the insurance policy, whereas 13 persons were traveling in the subject truck, is also of no help to the Insurance Company in view of the fact that as per the provisions of Section 147 of the M.V. Act, any person who is traveling in the vehicle in the capacity of owner of the goods, his risk will be covered under the insurance policy and therefore, the Insurance Company will be liable to pay the compensation as the persons traveling in the subject truck were owners of the broom leaves and belonged to the same family. 26. For brevity, Section 147 of the M.V. Act is reproduced as under :- "147 Requirements of policies and limits of liability. 26. For brevity, Section 147 of the M.V. Act is reproduced as under :- "147 Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;" 27. So far as the argument of the learned counsel for the respondent - Insurance Company that the police after investigation filed charge-sheet under Sections 99 and 192 of the M.V. Act against the driver of the subject vehicle is also noted to be rejected in view of the fact that the court of competent criminal jurisdiction vide Order dated 03.02.2016 has only taken cognizance of offences under Sections 279, 337, 338 & 304-A of I.P.C. in the present case. 28. A bare reading of the same goes to show that the Insurance Company cannot escape its liability of paying the compensation if it is proved before the courts that the passengers were travelling in the capacity of the owners of the goods. Thus, the argument of the learned counsel for the Insurance Company that the Insurance Company cannot be fastened with the liability to pay compensation in the present case is devoid of any force and the same is rejected. 29. As far as the enhancement of the claim amount is concerned, this court finds that in claim petitions of deceased- Khema, Bhera and Narain, the Tribunal has correctly taken into consideration the factors for computation of the award, however, an additional amount of Rs. 10,000/- each in the claim petitions of the deceased Khema (Civil Misc. Appeal No.2292/2013-MAC Case No.169/2011), Bhera @ Bheriya (Civil Misc. Appeal No-2293/2013-MAC Case No.213/2011), Narain (Civil Misc. Appeal No-2291/2020-MAC Case No.318/2011) will serve the ends of justice and will constitute the 'just compensation' in the present cases. 30. As far as the civil misc. 10,000/- each in the claim petitions of the deceased Khema (Civil Misc. Appeal No.2292/2013-MAC Case No.169/2011), Bhera @ Bheriya (Civil Misc. Appeal No-2293/2013-MAC Case No.213/2011), Narain (Civil Misc. Appeal No-2291/2020-MAC Case No.318/2011) will serve the ends of justice and will constitute the 'just compensation' in the present cases. 30. As far as the civil misc. appeal nos.2299/2013(MAC Case No.170/2011), 2290/2013(MAC Case No.171/2011), 2289/2013(MAC Case No.172/2011), 2288/2013(MAC Case No.173/2011), 2287/2013(MAC Case No.237/2011), 2294/2013(MAC Case No.317/2011) for the injuries sustained by Smt. Devli, Jairam, Smt. Pyari, Ratan, Smt. Sundar and Magani Ram are concerned, as per the RALSA Guidelines, the amount which is required to be enhanced will be Rs.72,350/-, Rs.48,000/-, Rs.1,28,150/-, Rs.69,350/-, Rs. 2,55,100/- and Rs. 68,750/-respectively. The same is produced here in the tabular form with the details of injuries sustained by them :- Name of Injured Income (Per Month) Permanent Disability Nature of Injury Tribunal awarded As per RALSA Guidelines Net Enhanced Amt. Ms. Devli -- 10% Fracture in frontal bone 61,000/- 72,350/- 11,350/- Jai Ram 3,000/- 5% Lower ribs fractured 47,000/- 48,000/- 1,000/- Smt. Pyari 3,000/- 13% Right hand (Humerous) fractured 79,500/- 1,28,150/- 48,650/- Ratan 10% Right hand clevical bone fractured 47,500/- 69,350/- 21,850/- Smt. Sunder 3,000/- 30% Both legs (femur & pelvis bone) fractured 1,53,500/- 2,55,100/- 1,01,600/ Magni Ram 10% Dislocation of left clevical bone of shoulder 35,000/- 68,750/- 33,750/- 31. The enhanced amount of compensation shall carry the interest @ 6% in the light of the judgment of Hon'ble the Supreme Court in the case of Sri Anthony @ Anthony Swami vs. The Managing Director K.S.R.T.C. reported in 2020 ACJ 1592 . 32. Thus, the present appeals are partly allowed with a direction to the respondent-Insurance Company to pay the compensation as ordered by Tribunal along with the enhanced amount within a period of six weeks from today. The compensation amount shall carry the interest @6% per annum till the same is paid.