Rajasthan High Court - Jodhpur
United India Insurance Company Ltd vs Salma & Ors on 26 July, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.315/1998
United India Insurance Co. Ltd.
Vs
Salma & Ors.
Date of Judgment :: 26.07.2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. G. Vaishnava, for the appellant.
Mr. M.S. Soni for Mr. Rajesh Panwar, for the respondents.
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BY THE COURT:
This appeal is directed against the judgment and award dated 30.05.1997 passed by the Motor Accident Claims Tribunal, Sojat ('the Tribunal') whereby the application for compensation filed by respondent claimants No.1 to 5 has been accepted and a compensation of Rs.4,05,000/- has been awarded along with interest @ 15% per annum from the date of application i.e. 13.04.1994.
The application was filed by the claimants seeking compensation to the tune of Rs. 19,61,000/- for death of one Kalu Shah son of Akbar Shah with the averments that the deceased was travelling in Bus No. RJT 9174 on its roof top alongwith his goods from Sojat to Bilara; when the vehicle was about half a kilometre from Village Atabara, on account of work going on the road, the bus was taken from bye-pass and was being driven in rash and negligent manner by bus driver 2 Mahendra Singh, which resulted in deceased coming in contact with live electric wire and died on account of electrocution. It was claimed that the deceased was aged 30 years and used to bring goods from Delhi & Ahmedabad and sell the same and used to earn Rs.80/- per day. Based on the said averments, compensation as noticed hereinbefore was claimed.
The application was resisted by the respondents driver, owner and insurer of the vehicle.
The Tribunal framed four issues. On behalf of the applicants AW/1- Salma, AW/2- Ashraf were examined and on behalf of behalf of respondents NAW/1- Omprakash Singh and NAW/2- Laxman Nath were examined.
After hearing the parties, the Tribunal came to the conclusion that the deceased was a fare paying passenger who paid fare and was sitting on the roof top of the bus and on account of the bus being driven rashly and negligently by the driver, the deceased came in contact with live electric wire, which resulted in his death. While determining the compensation the Tribunal came to the conclusion that the deceased used to earn Rs.3,000/- per month, the dependency was assessed at Rs.2,000/- per month and after applying a multiplier of 16 and deducting Rs.84,000/- towards lump sum compensation Rs.3,00,000/- were awarded towards loss of income, Rs.25,000/- towards loss of consortium was awarded to the wife and Rs.80,000/- was awarded to the four children @ of Rs.20,000/- per child for loss of love & affection. In all, a sum of Rs.4,05,000/- was awarded.
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While determining the issue pertaining to liability of the Insurance Company, the Tribunal relying on judgment in the case of Inja Venkatrao v. Sundara Barik & Anr. : 1991 ACJ 581 came to the conclusion that despite the fact that deceased was travelling on roof top of the bus, he was a passenger and the Insurance Company was liable for making payment of the amount of compensation.
It is submitted by learned counsel for the appellant that looking to the nature of the accident, wherein the passenger was travelling on roof top, the principle of volanti non fit injuria would apply as the passenger himself bargained for such eventuality by riding on the roof top; the tortfeasor if any in the present case was the State Electricity Board or the Public Works Department on whose account the passenger died. Further grounds have been raised questioning the validity of the amount of compensation awarded by the Tribunal and interest as awarded on the amount of compensation.
Learned counsel for the respondents duly supported the judgment and award impugned and submitted that in fact the award is on the lower side and unnecessary deductions have been made by the Tribunal. It is submitted that the Insurance Company is not entitled to raise dispute about the issue of negligence and amount of compensation in view of provisions of Section 149(2) of the Motor Vehicles Act, 1988 ('the Act').
Reliance was placed on Josphine James v. United India Insurance Co. Ltd & Anr. : 2014 RAR 218 (SC).
I have considered the submissions made by learned 4 counsel for the parties and have perused the material available on record.
So far as the right of appellant - Insurance Company in questioning the validity of the award, insofar as, the issue of negligence and the quantum of compensation is concerned, as admittedly from the record it is not revealed that the appellant - Insurance Company had sought permission from the Tribunal under Section 170 of the Act, the Insurance Company is therefore, not entitled to question the validity of issues pertaining to negligence and quantum of compensation. So far as the liability of the Insurance Company on account of the fact that the deceased was travelling on roof top of the bus is concerned, in cross-examination the NAW/1- Laxman Nath - bus conductor, specifically admitted that he had collected fare from the passengers who are travelling on the roof top of the bus, the deceased was carrying goods, which were lying on the bus top and that tickets were not issued to the passengers and only money was charged from them.
From the said statement of the bus conductor, it is apparent that the deceased was permitted by the conductor to travel on the roof top and, therefore, it cannot be denied that the deceased was a passenger in the said bus and, therefore, in those circumstances the appellant - Insurance Company cannot shirk from its liability as held by Orissa High Court in the case of Inja Venkatrao (supra).
So far as the grant of rate of interest @ 15% per annum is concerned, the same from every angle is excessive, therefore, 5 the said rate of interest is reduced from 15% per annum to 9% per annum.
In view of the above discussion, the appeal is partly allowed. While the award passed by the Tribunal qua the compensation is upheld, the rate of interest is reduced from 15% to 9%, which shall be payable w.e.f. the date of application i.e. 13.04.1994 till the date of actual payment.
The award impugned was stayed by this Court during the pendency of the appeal. Now the amount of compensation with interest shall be paid by the appellant - Insurance company to the respondents - claimants in terms of the award within a period of six weeks from the date of judgment. However, instead of putting the amount in fixed deposit, on account of passage of time the same shall be paid to the claimants in their saving bank accounts.
(ARUN BHANSALI), J.
Sumit-5