Madhya Pradesh High Court
Ishadey And Ors. vs Bharosi And Ors. on 7 November, 1996
Equivalent citations: I(1997)ACC525, 1998ACJ468
JUDGMENT A.S. Tripathi, J.
1. These four appeals arise out of the judgment and award dated 1.5.1992 passed by the Motor Accidents Claims Tribunal, 1st Additional District Judge, Shivpuri, whereby the Tribunal has awarded the compensation of Rs. 48,600 to the heirs of the deceased Bansi. Rate of interest allowed was 10 per cent per annum. For three other persons, who are injured in the accident, the Tribunal had allowed Rs. 15,000/- to each of the injured appellants in the three connected appeals, viz., M.A. Nos. 237, 238 and 242 of 1992. The rate of interest allowed was 10 per cent per annum.
2. All the four appeals are connected together and they are being disposed of by this common judgment. Misc. Appeal No. 226 of 1992 shall be the leading case.
3. An accident had taken place on 7.7.1985 with truck No. MPW 8476 driven by respondent No. 1 Bharosi. The truck turned turtle and Bansi died on the spot. Three other appellants Chironji, Prabhu and Brijmohan were injured.
4. The Tribunal after framing necessary issues and recording evidence, held that the truck was being driven rashly and negligently on account of which the accident had taken place. This finding of the Tribunal is based on evidence and there is nothing to differ from the same.
5. The legal heirs of the deceased Bansi and three injured persons have filed these appeals for enhancement of the award.
6. So far as the compensation awarded to the heirs of the deceased is concerned, the Tribunal had found that the deceased Bansi was a labourer and was earning Rs. 35/- per day. The dependency of the seven dependants was calculated to be only Rs. 300/- per month. The earnings of a labourer to be Rs. 35/- per day was not disputed and the same was accepted by the Tribunal in view of the evidence on record. Thus the monthly income was calculated to be Rs. 1,000/-. The dependency of the seven dependants was fixed by the Tribunal to be Rs. 300/-. That is on the lower side. We are of the opinion that minimum dependency which can be accepted on record would be Rs. 400/- p.m. Thus the annual dependency comes to Rs. 4,800/-.
7. The deceased was below 30 years of age. As such the multiplier of 16 is to be applied. The Tribunal had applied the multiplier of 15 which is on the lower side. The deceased was aged below 30 years. And therefore, we find that the multiplier of 16 would be just and proper in this case. In this way, the amount of compensation comes to Rs. 76,800/- which is just and proper compensation for the death.
8. Over and above, Rs. 5,000/- is allowed as consortium to the widow. In this way, the total amount of compensation comes to Rs. 81,800/- to be allowed to the appellants in M.A. No. 226 of 1992, who are the heirs of the deceased Bansi.
9. So far as three injured persons are concerned, their injury was taken into consideration and the medical expenses and loss of work had also been taken into consideration by the Tribunal. In view of the evidence on record, the Tribunal had correctly awarded Rs. 15,000/- to each of the injured persons. After assessing the evidence on record and considering the facts and circumstances of the case, we do not find any reason to differ from the Tribunal on the point of compensation awarded to the injured persons.
10. On the point of interest, Tribunal had allowed only 10 per cent per annum on the amount of compensation awarded. Considering the facts and circumstances of the case, we are of the opinion that in the normal course, the interest should have been allowed at the rate of 12 per cent per annum from the date of application. We hold accordingly.
11. Learned counsel for the appellants/claimants argued that Tribunal had absolved the insurance company, respondent No. 3 from any liability for payment of compensation in this case. The appellants' counsel stressed that liability fixed upon respondent Nos. 1 and 2 be also extended to the insurance company and the insurance company be equally held to be liable for payment of the said compensation.
12. We have considered this aspect of the matter and we find that the Tribunal had recorded a categorical finding that the deceased and the injured persons were going on the truck as labourers to a particular place. They were given lift by the driver of the truck. They had boarded the truck on getting simple lift by the driver. The insurance policy Exh. D/1 simply covers the risk of the driver, cleaner and a third party. The persons who had boarded the truck as free passengers to go to a particular place could not be said to be a third party involved in the accident. They had themselves boarded the truck free of cost and in such a situation, it could not be said that when the truck had turned turtle the insurance company was liable to pay any compensation to the dependants of the deceased and to the injured persons as the risk of such persons is not covered in the insurance policy itself Exh. D/l. The terms of the policy have also been proved on record by D.K. Phakka, DW 1, and the policy on record, which does not cover the risk of such persons.
13. Learned counsel for the appellants placed reliance on the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandra-vadan 1987 ACJ 411 (SC), in which it was held that person driving the vehicle insured even without licence and dies in the accident, the insurance company could be held liable to pay the compensation. That is not the case before us.
14. Another case of National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat), was relied on in which the court had held that for death of or bodily injury to the passenger carried for hire or reward on an insured vehicle, the liability of the insurer has to be held. Again in this case, the deceased and three injured were not taken on hire or for any reward. Therefore, this case does not apply to the facts of the present case.
15. Learned counsel for the appellants further argued that the insurance company had not taken the specific averment in the defence on this point. We find that the insurance company in its written statement has specifically stated that the insurance company is not liable for the accident to pay any compensation. That was enough pleading on this point. Therefore the case of Sabira Begum v. Raipur Transport Co. 1986 ACJ 713 (MP), has no application.
16. Another case of Divisional Manager, Oriental Insurance Co. Ltd. v. Jasoda Mohanta 1997 ACJ 284 (Orissa), was relied on by the counsel for the appellants. In this case the statutory liability of the insurance company has been held also for the compensation in respect of any person carried on goods vehicle. That was not a case for consideration before us and this case also does not help the appellants, who were gratuitous passengers.
17. Lastly, the learned Counsel for the appellants filed a copy of judgment by a Division Bench of this Court in Somti Bai v. Mishri Lal Chhoudhary 1995 ACJ 1233 (MP). In that case, the Division Bench had held that when the labourers are hired by the truck owner for a particular purpose and in the transit, if they met with an accident, then they will be deemed to have been covered under the insurance cover and the insurance company in that case is to be held liable. But in the present case, we find that the deceased and the injured persons were not hired on the truck, rather they were given lift by the driver of the truck and they were gratuitous passengers. Thus, this case has no application to the facts of the present case.
18. On the other hand, learned Counsel for the respondent insurance company, Mr. K.K. Lahoti relied on the case of Meera Bai v. New India Assurance Co. Ltd. 1995 ACJ 1274 (MP). In this case, a Division Bench of this Court has held that when the deceased or injured persons are gratuitous passengers, the insurance company is exempted from any liability. The case in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC), was again on the same point that for gratuitous passenger the insurance company cannot be held liable.
19. Similar view has been expressed in the case of National Insurance Co. Ltd. v. Babu 1994 (1) TAC 144.
20. Case before us is that of gratuitous passengers which has been categorically held by the Tribunal in para 30 of the judgment, based on evidence that the deceased and injured persons were travelling on the truck as gratuitous passengers given lift by the driver of the truck. In such a situation, as held above, the cases relied by learned Counsel for the appellants-claimants have no application. On the other hand, a Division Bench of this Court has specifically held that in case of gratuitous passenger, there is no liability of the insurance company to pay the compensation.
21. In the policy also the risk is covered only in respect of the driver, cleaner and for third party. Gratuitous passenger could not be said to be included in the definition of the third party, and in such a situation, the Tribunal had rightly held that there is no liability of the insurance company in this case. The liability was fastened only on the driver and owner of the truck and the same is fully justified on record.
22. We, therefore, allow the M.A. No. 226 of 1992 to the extent that the compensation to the dependants of the deceased Bansi would be Rs. 81,800/- and the rate claimant to that extent is rejected, of interest would be 12 per cent per annum from the date of the application.
23. So far as other M.A. Nos. 237, 238 and 242 of 1992 are concerned in respect of the injured persons, the only modification made is that the rate of interest would be 12 per cent per annum from the date of the application. No order for enhancement of the compensation is called for in these appeals and the prayer made by appellant-claimant to the extent is rejected.
24. All the four appeals, as aforesaid, are disposed of in the manner as indicated above.
25. Let a copy of this judgment be placed on the records of M.A. Nos. 237, 238 and 242 of 1992, which shall govern the disposal of those appeals as well.