Punjab-Haryana High Court
Bansi Lal And Anr. vs Sohan Singh And Ors. on 30 January, 1987
Equivalent citations: II(1987)ACC499
JUDGMENT D.V. Sehgal, J.
1. This judgment will dispose of F.A.O. Nos. 519 and 558 of 1982 as both of them are directed against the award dated May 10, 1982, of the learned Motor Accidents Claims Tribunal, Hoshiarpur (for short "the Tribunal").
2. Surinder Kumar, aged about 26/27 years, was serving as a cook in the Punjab Police. On April 21, 1981, he was travelling in truck No. PNH 7191 driven by Sohan Singh, respondent No. 1, and owned by Shri Munshi Ram, contractor, respondent No. 2. It was insured with Oriental Fire and General Insurance Co. Ltd., respondent No. 3. The truck was going from Garhshanker to village Samundra. It met with an accident in the revenue limits of village Samundra at about 10.45 p.m. It struck against a sheesham tree on its right side. Surinder Kumar received serious injuries in this accident and died as a result thereof, Smt. Usha Rani, widow of the deceased, and his two minor daughters, namely, Miss Sonia, aged 4 years, and Miss Seema, aged 10 months, filed claim application before the Tribunal which was registered as Claim Case No. 7 of May 8, 1981. They claimed compensation to the tune of Rs. 1,50,000 on account of the death of Surinder Kumar, stating that the accident took place due to rash and negligent driving of the vehicle by respondent No. 1. Another Claim Application No. 8 of May 13, 1981, was filed by Bansi Lal and Smt. Krishna, father and mother of Surinder Kumar before the Tribunal, claiming compensation of Rs, 80,000. Both the claim applications where opposed by the respondents. It was pleaded by respondent No. 1 that the deceased boarded the truck of his own accord and without his permission ; that he was driving the truck at a very moderate speed with all care and caution and that the accident took place for reasons beyond his control. Respondent No. 2 also raised similar pleas in his defence. The insurance company, respondent No. 3, besides denying the fact that the accident was the result of rash and negligent driving of the vehicle by respondent No. 1, further stated that the vehicle was a goods carrier. Surinder Kumar, the deceased, was not authorised to be carried in the truck. The policy of insurance of the truck did not cover the liability in respect of the death of Surinder Kumar. It was further pleaded that the truck was being driven by a person not holding a valid driving licence. Thus, respondent No. 3, denied its liability. The learned Tribunal consolidated both the claim applications and on the basis of the pleadings of the parties framed the following issues :
1. Whether the death of Surinder Kumar occurred in the accident due to the rashness or negligence or both of Sohan Singh, respondent ? OPA.
2. If issue No. 1 is proved, to what amount of compensation the claimants in both the claim applications are entitled and from which of the respondents ? OPA.
3. Whether at the time of the accident, the truck involved in the accident was not being driven by an authorised person holding a valid licence and if so, what is its effect ? OPR No. 3.
4. Whether there has been any breach of the condition of the insurance policy and if so, what is its effect? OPR No. 3.
5. Relief.
3. Issue No. 1 was decided in favour of the appellants. It was held that the accident took place due to the rashness and negligence of Sohan Singh, driver, respondent No. 1, which resulted in the death of Surinder Kumar. Issue No. 3 was decided against respondent No. 3. Issues Nos. 2 and 4 were decided together. It was held that the owner of the vehicle, respondent No. 2, and the insurance company, respondent No. 3, were not liable for payment of any compensation. Respondent No. 1 was, however, held liable. The quantum of compensation payable by him to Smt. Usha Rani, widow and two minor daughters of the deceased, namely, Miss Sonia and Miss Seema, who are the appellants in F.A.O. No. 558 of 1982, was determined at Rs. 30,000, Rs. 10,000 and Rs. 12,000 respectively. Respondent No. 1 was also held liable for payment of compensation amounting to Rs. 7,000 and Rs. 10,000 respectively to Bansi Lal and Smt. Krishna, father and mother of the deceased who are the appellants in FAO No. 519 of 1982. Interest at the rate of 6 per cent per annum from the date of filing of the application was also awarded.
4. I have heard learned counsel for the parties. The findings on issues Nos. 1 and 3 as returned by the learned Tribunal were not seriously assailed before me. Even otherwise, on reappraisal of the evidence, I find that the accident had resulted because of rash and negligent driving of the truck by respondent No. 1 which caused the death of Surinder Kumar. The fact that respondent No. 1 held a valid licence was riot questioned by learned counsel for respondent No. 3. Hence, the finding of the learned Tribunal on both these issues is affirmed.
5. Learned counsel for the appellants assailed the decision of the learned Tribunal to the effect that respondents Nos. 2 and 3, that is, the owner and the insurer of the vehicle, were not liable for payment of compensation. As regards the liability of the owner, respondent No. 2, I find that the decision of the learned Tribunal cannot be sustained. It based its decision on a Division Bench judgment of this court in Jiwan Dass Roshan Lal v. Karnail Singh [1980] ACJ 445, which has since been overruled by a Full Bench of this court in Pirthi Singh v. Shri Binda Ram [1986] 2 PLR 162 ; [1987] 62 Comp Cas 150 (P & H) [FB]. It has been held therein that the determining factor so far as the liability of the owner is concerned is whether the act was committed by the driver in the course of his employment or not. If the driver was acting in the course of his employment, then the owner would be liable even though he acted against the express instructions of the owner or in violation of the rules framed under the statute. The owner of the truck cannot be absolved of his vicarious liability simply because the driver, his employee, carried the deceased passenger in the truck in contravention of the provision of Rule 4.60 of the Punjab Motor Vehicles Rules, 1940. Besides, the view taken by the learned Tribunal that since the truck was returning from Garhshanker after unloading the goods, it was not being driven by respondent No. I in the course of his employment as a driver with respondent No. 2, is erroneous. The truck was deployed to transport the goods. After unloading the goods, when it was being driven to village Samundra on the return journey by the driver, the plying of the truck by him was definitely in the course of his employment with respondent No. 2. I, therefore, reverse the decision of the learned Tribunal on this aspect and hold that respondent No. 2 is liable for payment of compensation on account of the death of Surinder Kumar.
6. As regards the liability of the insurance company, respondent No. 3, I am of the view that the decision of the learned Tribunal is unassailable. The proviso to Section 95(1)(b) of the Motor Vehicles Act, 1939, inter alia, provides that a policy shall not be required except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of, or bodily injury to, persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, A Full Bench of this court in Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur [1967] 37 Comp Cas 577 (P& H) [FB] ; [1967] ACJ 158, has elaborately discussed this provision in the statute and has held that in the case of death of, or bodily injury to, a passenger in a goods carrier, as in the present case, the insurance company is not liable. Learned counsel for respondent No. 3 also brought to my notice the specific provision contained in the policy of insurance, exhibit R-1, which is in conformity with the above provisions of the statute. I have, therefore, no hesitation in upholding the decision of the learned Tribunal that respondent No. 3 is not liable for payment of compensation on account of the death of Surinder Kumar.
7. Now, coming to the quantum of compensation, learned counsel for the appellants contended that what has been awarded was grossly inadequate. The deceased was employed as a cook in the Punjab Police drawing a salary of Rs. 350 per month. Shrimati Usha, while in the witness box, has stated that he used to have his meals in Police Station, Talwara, and was handing over the entire salary to her for household expenses. I am of the view that his personal expenses in this situation would not be more than Rs. 50 per month. Thus, he would have been paying Rs. 300 per month for maintaining his mother, widow (wife) and the two minor children. The deceased was 26/27 years of age. It has been so stated on oath by his father, Bansi Lal, and his widow, Shrimati Usha Rani. These statements have not been questioned in cross-examination. His mother, Shrimati Krishna, was 45 years of age while the widow was 23 years of age. The minor children were four years and 10 months of age. He was a Government servant and would have continued in the employment for a period of nearly 32 years had his life not been cut short by the accident. I, therefore, find it appropriate that the multiplier of 20 should be applied. I find support for this view from Miss Ballu Gaur v. Mrs. R.P. Randhawa [1985] 2 PLR 135, Rajinder Singh Jasbir Singh v. Urmil [1986] 1 PLR 647, and Smt. Sushila v. Delhi Union Territory through Chief Secretary, Delhi [1987] 1 PLR 58. Dependency of mother, widow and the children of the deceased being Rs. 300 per month, the amount of compensation per annum comes to Rs. 3,600. On applying the multiplier of 20, it works out to Rs. 72,000. In my view, Bansi Lal, father of the deceased, is not entitled to any amount out of the compensation. However, the amount of compensation, as determined above, shall be shared equally by Shrimati Krishna, Smt. Usha, Miss Sonia and Miss Seema, mother, widow and the daughters respectively of the deceased, Surinder Kumar.
8. I, therefore, allow these appeals, modify the award of the learned Tribunal and enhance the amount of compensation payable to the appellants in FAO No. 558 of 1982 to Rs. 54,000 and the amount payable to Shrimati Krishna, appellant No. 2, in FAO No. 519 of 1982 to Rs. 18,000. Bansi Lal, appellant No. 1, shall, however, not get any amount of compensation. The appellants who have been held so entitled to payment of compensation shall also get interest on the amount of compensation at the rate of 12 per cent. per annum from the date of their respective claim applications. They shall also get costs of these appeals which are assessed at Rs. 500. Respondents Nos. 1 and 2 are held jointly and severally liable for payment of the amount of compensation and interest thereon. Respondent No. 3, however, is held not liable to payment of any amount of compensation. So, the appeals against it are dismissed with no order as to costs.