Madhya Pradesh High Court
Sundarbai And Anr. vs Laxminarayan And Ors. on 14 September, 2005
Equivalent citations: II(2006)ACC99, 2007ACJ255, 2006 A I H C 102, (2007) 2 TAC 896, (2006) 2 RECCIVR 105, (2006) 2 ACC 99, (2007) 1 ACJ 255
Author: N.K. Mody
Bench: N.K. Mody
JUDGMENT N.K. Mody, J.
1. Being aggrieved by the inadequacy of the amount awarded vide award dated 20.12.2000 passed by the Second Motor Accidents Claims Tribunal, Neemuch in Claim Case No. 52 of 1999, whereby the claim petition filed by the appellants has been dismissed, the present appeal has been filed.
2. Short facts of the case are that on 4.2.1998 deceased Premchand was returning from Mandsaur after attending the rally by bus No. MP 14-A 4877. This bus was owned by respondent No. 1, driven by respondent No. 2 and insured with respondent No. 4. Premchand was sitting on the roof of the bus and because of electric current, he died. The claim petition was filed by the appellants who are wife and father of deceased.
3. The claim petition was opposed by the respondents. Respondent Nos. 1 to 3 submitted the written statements, wherein it was alleged that offending vehicle was insured with respondent No. 4. It is alleged that bus was being driven by respondent No. 2. It is not known in what circumstances Premchand has died. It is also alleged that for the death of Premchand respondent Nos. 1 to 3 are not responsible. It was prayed that the claim petition be dismissed. Insurance company, respondent No. 4, submitted the written statement separately, wherein it was alleged that deceased Premchand was allowed to travel on the roof of the bus, against the traffic rules, therefore, insurance company is not liable. It was prayed that the claim petition be dismissed.
4. On the basis of the pleadings of the parties, learned Tribunal framed the issues, recorded the evidence and dismissed the claim petition.
5. Being aggrieved by the award passed by learned Tribunal, the appellants have preferred the appeal. It is submitted that from the written statement filed by the respondent No. 4, it is evident that the case of respondent No. 4 was that the deceased Premchand was allowed to travel on the roof of the bus in contravention of traffic rules. It is submitted that respondent No. 2 has stated that passengers who were travelling in the bus were returning from the rally and were having the flags along with iron rod. It is submitted that respondent No. 2 was cross-examined on behalf of respondent No. 4 and in para 9 of the cross-examination, it has been suggested that Premchand was allowed to sit by the respondent No. 2 on the roof of the bus. It is submitted that from this fact itself it is proved that the deceased Premchand was allowed to travel on the roof of the bus by respondent No. 2. Hence, claim petition could not have been dismissed by learned Tribunal and insurance company, respondent No. 4 herein, is equally liable for the payment of compensation. For this learned Counsel placed reliance on a decision in the matter of New India Assurance Co. Ltd. v. Punjab Government , wherein on account of death of passenger who was travelling on the roof of the bus and was directed by the conductor as the bus was overcrowded, High Court held that insurance company was liable for payment of compensation holding that there is no breach of a specified condition of the policy.
6. Further reliance was placed by the learned Counsel for the appellant on a decision in the matter of Inja Venkatrao v. Sundara Barik , wherein in a case of death of a person who was travelling on the roof of the bus, insurance company was held liable for payment of compensation holding that person travelling as passenger on the roof of the bus comes within the meaning of passenger in the bus. Further reliance was placed in the matter of Oriental Insurance Co. Ltd. v. Shibhu Bai, , wherein the Division Bench of Allahabad High Court has held that:
Where the driver stopped his bus just below the electric wire and allowed a passenger to go on the roof of the bus for loading some bundles of vegetables and finding of the Tribunal is that accident took place during use of bus and due to negligence of driver, therefore, insurance company was held liable.
7. Mr. Dandwate, learned Counsel for respondent No. 4 submits that deceased was himself negligent in the present case, therefore, there is no liability of respondent No. 4 for payment of compensation, even if it is assumed that deceased was a passenger.
8. After taking into consideration all the evidence on record, it appears that the Tribunal committed error in dismissing the claim petition. In the present case when the accident took place, deceased was on the roof of the bus, either it was in motion or it was standing. Since, the bus was overcrowded by the passengers or by persons attending rally, therefore, it was expected from the driver to be over cautious. If somebody was on the roof of the bus then driver was required to be careful about electric wires. Therefore, learned Tribunal committed an error in rejecting the claim petition.
9. So far as quantum is concerned, the deceased was aged 30 years and was a labourer. Even if the notional income is taken into consideration, which comes to Rs. 15,000 per year then the dependency comes to Rs. 10,000 per annum and after applying multiplier of 17 as per Second Schedule to the Motor Vehicles Act, 1988 the amount of dependency will come to Rs. 1,70,000. Apart from this appellants are entitled towards funeral expenses, loss of love and affection and loss of consortium, which comes to Rs. 1,85,000. This amount shall carry interest at the rate of 6 per cent per annum from the date of filing of the application.
With the aforesaid modifications, the appeal stands disposed of.
No order as to costs.