Madhya Pradesh High Court
Jitendra And Ors. vs Bhai Ram And Ors. on 14 December, 2005
Equivalent citations: 2006ACJ1217
Author: Arun Mishra
Bench: Arun Mishra, M. Namjoshi
JUDGMENT Arun Mishra, J.
1. This appeal has been preferred by the claimants aggrieved by an award dated 26.10.1999 passed by First Addl. Motor Accidents Claims Tribunal, Khandwa in Claim Case No. 2 of 1999.
2. As per the claimants, on 19.11.1998, deceased Ramchandra was travelling along with his agriculture produce, soyabean, in tractor-trolley from village Saiyyedpur to Bhikangaon Krishi Upaj Mandi, on the way, the said tractor turned turtle as it was driven in a rash and negligent manner by Bhai Ram. The tractor was owned by Pannalal, whereas the trolley was owned by Dashrath. The tractor and trolley were insured with Oriental Insurance Co. Ltd. Owing to injuries sustained in the accident by Ramchandra, he died. He was initially treated at Khandwa, from where he was shifted to Gokuldas Hospital, Indore where he died next day.
3. The claim petition was filed claiming compensation of Rs. 27,70,000. It was claimed that the deceased was earning a sum of Rs. 15,000 per month from agriculture. He was the main earning member of the family. Father of the claimant was aged 90 years. Deceased would have lived up to 90 years.
4. The respondent Nos. 1 to 3, in their reply, contended that the trolley was registered in the name of respondent No. 3, but it was not used with his consent at the time of accident. The tractor and trolley both were insured with Oriental Insurance Co. Ltd. The insurance was effective as on the date of the accident. Negligence on the part of the driver was denied. Compensation has been exaggerated.
5. The insurer, Oriental Insurance Co. Ltd., in the written statement contended that the tractor and trolley were not insured and as such insurer is not liable. Other facts were also denied. Risk of the passenger in trolley was not covered in the policy. Tractor driver was not having valid and effective driving licence. Tractor was used for commercial purpose. It was plied for hire or reward at the time of accident.
6. Learned Claims Tribunal has found that the accident was caused owing to rash and negligent driving of Bhai Ram, owing to which tractor turned turtle. Deceased Ramchandra sustained injuries and died owing to the injuries. Compensation of Rs. 1,47,600 along with interest at the rate of 12 per cent per annum from the date of filing of the claim petition has been awarded. The insurer has been exonerated from making payment of amount of compensation as it has not been found established that the tractor and trolley were insured.
The liability has been saddled on respondent Nos. 1 to 3 jointly and severally to make the payment of compensation.
7. Dissatisfied with the award, this appeal has been preferred by the claimants.
8. Mr. Anil Lala, the learned Counsel appearing on behalf of the claimants, has submitted that the learned Claims Tribunal has assessed the income of the deceased on lower side. Income has been taken on notional figure, which is prescribed for non-earning member. The deceased was earning amount by way of agriculture. Family owned 10 acres of agriculture land. Thus, the compensation awarded is inadequate. Appropriate multiplier has not been applied. Age of the deceased was 40 years at the time of the accident. Multiplier of 12 has been applied, whereas multiplier of 16 is applicable at the age of 40 years as per Second Schedule to the Motor Vehicles Act, 1988. He has further submitted that Exh. D1 and Exh. D2 were the admitted documents. Tractor and trolley both were insured, still the insurer has been exonerated. As the factum of insurance has been proved, apart from respondent Nos. 1 to 3, insurer ought to have been saddled with the liability to make payment of compensation. There is nothing on record to suggest that the tractor-trolley was used for commercial gain for hire or reward at the time of accident. Thus, the award be suitably modified.
9. Mr. Rakesh Jain, the learned Counsel appearing with Mr. Devesh Jain and Ms. Nupur Jain on behalf of the insurer, respondent No. 4, has submitted that factum of insurance has not been established. The tractor was owned by respondent No. 2 whereas the trolley was owned by respondent No. 3. Number of trolley is not clear. On Exh. D2 registration number of tractor was different, even otherwise vehicle was not used for agriculture purpose. Cover note of the tractor, Exh. D1, is not relatable to the tractor in question. Hence, the insurer has been rightly exonerated from making the payment of compensation. Just compensation has been awarded. No case for interference is made out.
10. First question for consideration is about quantum of compensation: We find on record the khasra entries from khasra Exhs. P1 to P3. It is clear that the family owns approximately 10 acres of land and the deceased was involved in agriculture operation. Soyabean crop was cultivated in the relevant year. Though there is statement of claimants' witness Devki Bai, CW 1, that approximately Rs. 1,75,000 was the earnings, out of that Rs. 75,000 was expenditure. Thus, the income was Rs. 1,00,000 per annum. Similar is the statement of Jagdish, CW 2 and Premlal, CW 3. Premlal has stated that the land was irrigated from well, canal and tubewell. Deceased used to cultivate onion, wheat, arbi, adrakh and soyabean. Rs. 1,00,000 was the savings per annum. But the fact remains that there were other family members and the land was in the name of father of the deceased, has also been admitted by the claimants' witness Devki Bai. What was the precise share of the deceased in the land has not come on the record. Thus, we assess the income of the deceased, in the facts and circumstances of the case, at Rs. 36,000 per annum. 1/3rd amount is deducted as provided in the Second Schedule to Motor Vehicles Act, 1988, towards the self expenditure of the deceased which he would have spent on himself had he been alive, thus, annual loss of dependency comes to Rs. 24,000. The age of the deceased was 40 years at the time of accident. Multiplier of 16 is applicable at the age of 40 years. We apply the said multiplier, as widow and children are claimants. Thus, the compensation on account of loss of dependency comes to Rs. 24,000 x 16 = Rs. 3,84,000.
In addition, the claimants are entitled for funeral expenses Rs. 2,000, for loss to estate Rs. 2,500 and for loss of expectancy of life Rs. 5,000. Widow is also entitled for a sum of Rs. 5,000 on account of loss of consortium. Thus, total compensation comes to Rs. 3,84,000 + Rs. 2,000 + Rs. 2,500 + Rs. 5,000 + Rs. 5,000 = Rs. 3,98,500 (Rs. three lakh, ninety-eight thousand five hundred only). Enhanced compensation to carry interest at the rate of 6 per cent per annum from the date of filing of claim petition in Claims Tribunal till realisation.
11. Coming to the question of liability of the insurer: We find that the tractor was owned by Pannalal. Cover note, Exh. D1 is on record, which has been issued in favour of Pannalal, son of Changalal, of village Golajoshi is with respect to tractor. Thus, it is clear that the same relates to tractor owned by Pannalal, son of Changalal. It is not the case that two tractors were owned by Pannalal. Merely non-mention of registration number is of no consequence. Engine number and chassis number along with make of tractor is mentioned in cover note. In our opinion, in view of the fact that the pleading in the written statement of defendant Nos. 1 to 3 that the vehicle was insured, it was for the insurer to displace the burden arising out of the admitted document, Exh. Dl. No evidence has been adduced to show that the cover note, Exh. D1, relates to any other tractor than the one which was involved in the accident, no evidence has been adduced by the insurer. Thus, merely on the basis of non-proving the engine and chassis number of the tractor in question, which has been mentioned in the cover note, no dent is caused as insurer has not adduced any evidence in rebuttal to show that different tractor was involved in accident. Exh. Dl is relating to tractor of Pannalal. It covers the risk on the date of accident, has not been disputed.
12. Coming to the question of insurance of trolley: the trolley was owned by Dashrath. Exh. D2 is the policy issued in favour of Dashrath Patel with respect to tractor-trolley. Registration number of the tractor has been mentioned in the policy, not that of the trolley. Thus, we find that the trolley was also insured as stated by witnesses. Merely non-mention of trolley number in Exh. D2 is of no consequence. Dashrath, respondent No. 3, has admitted in the written statement that the trolley was involved in the accident, but it was not to his knowledge. No evidence has been adduced by the insurer to show that the policy did not cover the trolley in question. Thus, in the circumstances, we find that the tractor and trolley involved in the accident were insured with Oriental Insurance Co. Ltd., though they were owned by different persons, tractor was owned by Pannalal whereas the trolley was owned by Dashrath. Exh. D1 is the cover note with respect to tractor and Exh. D2 is policy schedule with respect to the trolley.
13. Coming to the question whether the tractor and trolley were used for commercial purpose, it has come in the evidence that admittedly the vehicle was carrying agriculture produce at the time of accident. There is absolutely no evidence on record to show that the vehicle was used for hire or reward. It was carrying agriculture produce of the agriculturist, not of the businessman. In the absence of evidence that the tractor was hired or used for reward, we find that it cannot be said that it was used for the commercial purpose at the time of accident. It is not uncommon to agriculturist to carry the agriculture produce to Krishi Upaj Mandi. Section 147(1)(b)(i) covers the risk 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. Ramchandra was carrying soyabean in the trolley, is apparent. Thus, he was the owner of the goods which he was carrying. As the tractor and trolley were not used for different purpose than agriculture one for which it was insured it was not used for hire or reward. We find that the insurer cannot escape the liability to make indemnification. Consequently, the liability of the respondents is held to be joint and several to make the payment of compensation which has been determined in this appeal.
14. Resultantly, the appeal is allowed to the aforesaid extent. Compensation of Rs. 3,98,500 is awarded along with interest at the rate of 6 per cent per annum from the date of filing of the claim petition till realisation. Liability of respondents is held to be joint and several to make the payment of compensation. No costs.