Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Bafatbai And Ors. on 9 May, 1995
Equivalent citations: 1996ACJ336
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') and the connected appeals, namely, M.A. No. 37 of 1993 (New India Assurance Co. Ltd. v. Chitrakala Agrawal); M.A. No. 38 of 1993 (New India Assurance Co. Ltd. v. Gyanichand) arise out of the same award dated 28.9.1992 of the Second Additional Motor Accidents Claims Tribunal, Guna (for short, 'the Tribunal'), in connection with the same accident in which three persons lost their lives and their legal representatives filed three separate claim petitions for compensation. The connected appeal, namely, Misc. Appeal No. 51 of 1993 (Gyanichand v. Surendra Singh) is by dependants of deceased Raj Kumar, who died in the same accident, for enhancement of the amount of compensation awarded by the Tribunal.
2. The bare necessary facts for decision of the four appeals are that on 25.1.1987, jeep No. MBN 9531 of which the three deceased were occupants with others met with an accident due to collision with tanker No. MPW 6333 on Agra-Bombay Highway, near Guna. The driver and other occupants of the jeep escaped alive, but Rajendra Kumar, aged 28 years, Bashir Khan, aged 55 years and Raj Kumar, aged 19 years, died in the accident, Three claim cases were filed by the legal representatives of the three deceased and the Tribunal, by the awards under appeal, awarded a total compensation of Rs. 1,50,000/- in favour of the claimants for the death of Rajendra Kumar Agrawal; a sum of Rs. 33,500/-for death of Raj Kumar and a sum of Rs. 97,500/- for the death of Bashir Khan. The amount of compensation was to carry interest at the rate of 18 per cent per annum.
3. In the three connected appeals preferred by insurer of jeep No. MBN 9531, the learned counsel appearing assails the award in all the cases on common grounds discussed herein.
4. The first ground urged is that in two of the cases, in the claim petitions themselves, a plea was taken that the deceased occupied the jeep on payment of fare to the owner and the driver. He, therefore, contended that since the jeep, in question, was being used as a taxi, in breach of the terms of the policy conditions, the insurance company was absolved of its liability. In respect to the above ground, the learned counsel read the provisions of Section 95 of the Act and the contents of the insurance policy on record to point out that risk of passengers in the jeep was not at all covered by the policy. Reliance is placed on Full Bench decision of Karnataka High Court in National Insurance Co. Ltd. v. Dundamma 1992 ACJ 1 (Karnataka), Oriental Fire & General Ins. Co. Ltd. v. Pramila 1989 ACJ 809 (MP) and in Dattu Nathu Kudekar v. National Insurance Co. Ltd. 1991 ACJ 743 (Gujarat).
5. The first ground urged has to be decided against the insurer of the jeep in view of the pronouncement of the Apex Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), which was relied on by a single Bench of this court while resolving conflict of opinions between two other Judges of this court in the case of Bhagwan Das v. National Insurance Co. Ltd. 1991 ACJ 1137 (MP). This court, relying on Skandia's case of the Supreme Court (supra), held that unless it is proved by the insurance company that the insured had committed any breach of the conditions of the policy, the liability of the insurer is not absolved under the conditions of the policy. The learned counsel for the insurer in these appeals has tried to distinguish Skandia's case (supra) and argued that the owner and the driver of the jeep were both ex parte before the Tribunal and in the claim petition, a clear plea was taken by the claimants that the deceased occupants of the jeep had paid fare for their proposed journey and as such, it has to be held that the vehicle was used as a taxi in breach of the terms and conditions of the policy. In our considered opinion, such argument is not available. In the case of Bhagwan Das (supra), the learned Judge of this court has also considered such an eventuality where the owner and driver both are ex parte. It is said that the burden to prove that the breach of policy conditions was committed by the insured is on the insurer and the claimants cannot be made to discharge any such burden of proof.
6. Alternatively, even accepting the case set up in the claim petition that some fare was paid by the deceased occupants to the owner or the driver, merely on that basis, it cannot be held that the privately owned jeep was being used as a taxi. On one single journey, if the owner or driver accepted some money for a lift, the vehicle cannot be held to have been used as a taxi to absolve the insurer from the liability. After reading the contents of the insurance policy, learned counsel for the insurance company could not dispute the fact that under the terms of the policy, the risk of occupants of the jeep is also covered including those of the third party. The first contention, therefore, advanced on behalf of the appellant insurance company for avoiding its liability for the alleged breach of the terms of the policy is rejected.
7. On the question of negligence, it is contended by the learned counsel for the appellant company that in one of the connected cases, the negligence on the part of the driver of the jeep was alleged only by amending the claim petition. Initially, a case in the petition basically was on the ground that the negligence was on the part of the driver of the tanker. In this respect, he further submitted that only one person was examined as an eyewitness, namely, Vinod Kumar Jain. He is brother of deceased Raj Kumar. It is argued that he was a highly interested witness and his presence on the spot as occupant of the jeep is highly doubtful. There is nothing on record to prove that he had also sustained injuries in the accident. We have gone through the pleadings of the parties in the connected claim petitions. In both the claim petitions, right from the beginning, the case pleaded was attributing negligence both to the drivers of the jeep and the tanker. Merely because in one of the cases the plea was based by way of amendment attributing negligence to the driver of the jeep, it cannot be said that the plea was an afterthought. We have gone through the testimony of Vinod Kumar Jain, P.W. 2, who was examined as the eyewitness to the accident. We find that no effective cross-examination of that witness was made on behalf of the insurance company. No questions were put to him as to whether he suffered injuries in the accident or escaped unhurt. In the absence of any effective cross-examination of Vinod Kumar Jain, P.W. 2, it cannot be said that the Tribunal erred in relying on his testimony or the version of the accident regarding negligence on the part of the jeep driver. The above witness has merely stated that just before collision of the two vehicles, the jeep driver jumped out of the vehicle. It was clear that he made no efforts to control the vehicle to avoid the collision. He was rightly held to be negligent and responsible for the accident. The version of the above witness, in fact, is that the collision took place only because the driver jumped out of the jeep and left the driving wheel.
8. We shall now take up for consideration casewise the contentions advanced on behalf of the appellant insurance company on the question of quantum of compensation awarded in each case of death. We shall also consider the contention of the claimants for enhancement of quantum of compensation in the case of death of Raj Kumar.
9. On the question of quantum, it has been pointed out to us on behalf of the insurance company that policy conditions expressly reserve a right to the insurer to raise pleas both of negligence and quantum for and on behalf of the insured. We have, therefore, allowed the counsel for the insurance company to raise the question of quantum as well.
M.A. 37 of 1993
10. In support of the claim for death of Rajendra Kumar Agrawal, aged 28 years, the only witness on the point examined is his widow Chitrakala. She states that the deceased was employed in Deepak Stores on a salary of Rs. 600/- p.m. It is also stated that he was separately doing a petty business of running a control shop and was getting an additional income of Rs. 250/-p.m. Learned Tribunal, in the absence of evidence of the alleged shopkeeper, his employer, or any other independent witness, held that the claimants failed to prove any definite, ready and regular income of the deceased. Taking into consideration the age, status and the number of dependants, the Tribunal estimated his average income at Rs. 1,000/- p.m. and Rs. 600/- as dependency. Taking the multiplier of 16, a sum of Rs. 1,15,000/- was calculated as the compensation payable, to which were added Rs. 30,000/- for loss of consortium to the widow and Rs. 4,800/-for loss of estate. Thus, in all a lump sum of Rs. 1,50,000/- is awarded. On behalf of the insurance company, the learned counsel contends that the multiplier of 16 taken is on the higher side. It is also urged that in the absence of proof of any definite income, the Tribunal ought not to have accepted the average income at Rs. 1,000. Award of a sum of Rs. 30,000/- for loss of consortium is also challenged as being high and excessive. Attention of the court is invited to the latest amendment to the Motor Vehicles Act, 1988, in which the Schedule provides the multipliers depending upon the ages and monthly income. It is stated that for the age of 28 years, the multiplier indicated is 15 (Sic. 18). For loss of consortium, compensation provided is Rs. 5,000/- each and loss of estate Rs. 2,500/-. We have duly considered the submissions made for the insurance company in this case. No doubt, in the Schedule in the 1988 Act, the multiplier indicated is 15 (Sic. 18). This case arose out of an accident prior to the amendment. The Tribunal has cited two decisions, namely, State of Madhya Pradesh v. Asha Devi 1988 ACJ 846 (MP) and Malti Vishwakarma v. Sundar Transport Company 1988 MPLJ 213, for adopting the multiplier of 16. We, therefore, find no justification to interfere with the multiplier of 16 taken by the Tribunal. Similarly, keeping into consideration status of the deceased, the size of his family and his age, the average earning capacity of the deceased at Rs. 1,000/- per month cannot be said to be high. It may be mentioned that some consideration ought to have been given to prospects of his better future by passage of time. The quantum of loss of consortium and estate does not correspond with the Schedule introduced in the latest amendment of the 1988 Act, but since no consideration has been given for granting enhanced compensation for possibility of higher income and better prospects by advancement of age and experience, we do not think that a lump sum award of Rs. 1,50,000/- for a young man of 28 years belonging to a business community is so high as to deserve interference by us. The appeal, therefore, fails.
M.A. 36 of 1993
11. The age of deceased Bashir Khan has been found to be 55 years on the date of the accident. The evidence of claimants is the plea that the deceased was engaged in the business of selling bidis. His average income is assessed at Rs. 1,000/-p.m. Multiplier of 10 is taken. Calculating the amount of expenses on self, the dependency is arrived at Rs. 700/- p.m. and on this basis a sum of Rs. 84,000/- is awarded as general damages. To this is added a sum of Rs. 10,000/- by way of loss of consortium to the widow and Rs. 3,500/- by way of loss to the estate. In all, compensation of Rs. 97,500/- has been determined. The argument advanced on behalf of the insurance company on quantum is the same as was advanced in the other case and for the reasons already discussed above, the quantum awarded is not liable to be interfered with. This appeal is also dismissed.
M.A. No. 38 of 1993 and M.A. No. 51 of 1993 (for enhancement of compensation)
12. The age of Raj Kumar who was unmarried is found to be 19 years. The evidence of the claimants is that he was engaged in the business of selling of flour. His income is assessed at Rs. 500/- p.m. and the dependency at Rs. 100/- p.m. Adopting the multiplier of 10 in the case of claim by his father and 15 in the case of mother, the general damages are calculated at Rs. 12,000/- and Rs. 18,000/-respectively. In addition to the above, a sum of Rs. 3,500/- was awarded as funeral expenses. Thus, in all a lump sum award of Rs. 33,500/- was made. The learned counsel appearing for the claimants in this case contends that the quantum of compensation awarded is too low. Admittedly, in all the cases apart from paying a sum of Rs. 15,000/- being the minimum compensation for 'no fault' liability, further payment under the award could be made to the claimants because there is a condition in favour of the insurance company that the remaining amount, as directed under the award, shall be made on their furnishing security. The counsel appearing on behalf of the claimants contended that because of the above condition, the claimants have not been able to get any amount of the award over and above Rs. 15,000/- in each case under 'no fault' liability as was available at the relevant time under Motor Vehicles Act, 1939. The minimum compensation now in case of death under the Act of 1988 is Rs. 50,000/-. The claimants, therefore, in the case of death of Raj Kumar, have to be paid at least Rs. 50,000 as compensation and general damages. The deceased was a young boy of 19 years of age. He had education up to B.Com., Part I. Even giving due consideration that he would have married, at the age of 25 or 26, and had his own family to maintain, it cannot be assumed that he would not have contributed anything to parents to maintain them in their advanced age. In the course of time, he could have also earned more by business or other occupation. The award of Rs. 50,000/- would, therefore, be a fair award in a case where the compensation is being determined on the fault found on the part of driver. Funeral expenses of Rs. 3,500/- are not such as to justify interference. The total compensation which will be awarded in this case is, thus, Rs. 53,500/-. The appeal filed by the insurance company is dismissed and the other one filed by the claimants is allowed. The amount of compensation is enhanced from Rs. 33,500/- to Rs. 53,500/-.
13. The last submission urged in all cases is that the rate of 18 per cent interest awarded on the amount of compensation is on the higher side. Major part of the compensation has not yet been paid because of the conditional stay obtained by the insurance company. The amount of interest, therefore, is reduced from 18 per cent to 12 per cent per annum to be paid from the date of claim to the date of payment, on the unpaid part of the compensation amount.
14. In the result, all appeals except one for enhancement of compensation, are dismissed subject to reduction of the rate of interest as above.