Madhya Pradesh High Court
Ramayan Prasad Yadav vs Ashish Kumar Shukla Judgement Given By: ... on 24 September, 2013
M.A. No.248/2010
24/9/2013
Shri A.D. Mishra, Adv. for the appellant.
None for respondent nos.1 and 2.
Shri T.S. Lamba, Adv. for the respondent no.3. Case is listed for final hearing at motion stage. Arguments heard.
The appellant has filed this appeal under Section 173 of the Motor Vehicles Act against the award dated 23.6.2009 passed in Motor Accident Claim Case No.77/08 by learned MACT, Rewa (M.P.) for enhancement of compensation.
The respondent no.3 Insurance Company has also filed cross objections under Order 41 Rule 22 of the Code of Civil Procedure challenging the pay and recover order passed in the award against the Insurance Company on the ground that deceased was travelling on the Tractor and no premium for passenger has been taken by the Insurance Company. Further, the tractor was driven by the driver without driving licence, therefore, there was breach of policy conditions.
So far as award amount is concerned, as the deceased Rajkumari Yadav @ Pinku @ Gudiya was aged 19 years at the time of incident and Tribunal has assessed her income as Rs.15,000/- per year being a labourer and deducted an amount of 1/3rd of income for her own expenses and the dependency of the claim has been fixed at Rs.10,000 per year by using the multiplier of 16. The compensation of Rs.1,60,000/- has been awarded for dependency and Rs.5000/- for funeral expenses and Rs.5000/- for consortium which is according to Second Schedule under Section 163-A of the Motor Vehicles Act. The deceased was a married lady. Claimant is her husband who himself is a labourer, therefore, claimant was not actually dependant upon the income of the deceased. The deceased was having no children. The amount awarded by the learned Tribunal is proper looking to the fact that appellant/claimant is himself an earning man. Therefore, the amount awarded by the learned Tribunal is proper and needs no interference.
So far as cross objections are concerned, learned counsel for the respondent no.3 submitted that the Tribunal has passed an order of pay and recover only on the ground that the vehicle involved in the accident was insured with the respondent no.3 overlooking to the fact that no premium was charged for any passenger or person travelling on the Tractor. The learned Tribunal has exonerated the Insurance Company from its liability to pay the compensation by deciding issue no.3(a) and (b) in favour of the Insurance Company.
So far as order of pay and recover is concerned, learned counsel for the appellant has cited judgment of Division Bench of this Court passed in the matter of Raj Bai and others vs. New India Assurance Co. Ltd. and others 2008 ACJ 2017 in which it has been held that in case of death of passenger travelling in a truck when the vehicle turned turtle due to its rash and negligent driving. The Tribunal exempted insurance company from liability and in appeal by claimants against exoneration of insurance company and/or requesting for pay and recover order and to insurance company as it would be difficult for them to recover the amount from the owner. It has been further held that the insurance company can be directed to pay the amount and then to recover from the insured.
Learned counsel for the appellant has also cited another judgment passed in the matter of United India Insurance Co. Ltd. vs. Kamodi Bai and others 2007 ACJ 2031 in which under similar circumstances it has been held that there was a case of no insurance at all and not a mere breach of policy and therefore Insurance Company cannot be directed to make payment to the claimants and then to recover the same from the owner/drive.
Learned counsel for the respondent no.3 has also cited judgment of Hon'ble Apex Court passed in the matter of United India Insurance Co. Ltd. vs. Serjerao and others 2008 ACJ 254 which although relates to payment of amount under no fault liability but it has been laid down by the Hon'le Apex Court that the case of Insurance company is that it had no liability in respect of persons travelling in the trolley.
Learned counsel for the appellant on the other hand cited judgment of Hon'ble Uttarakhand High Court passed in the matter of Firu Ram & Anr. vs. New India Insurance Co. Ltd. & Ors. AIR 2008 (NOC) 1195 (UTR.) in which it has been held that where the vehicle in question was duly insured with insurance company, the right of third party cannot be defeated on the ground that driver was not having valid driving license.
In the present case, no premium was taken by the insurance company for the passenger travelling on the Tractor and looking to the judgment of this High Court, the contrary judgment of other High Court cannot be followed. Therefore, the judgment cited by learned counsel for the appellant is not applicable in the present case. Therefore, looking to the judgments cited by learned counsel for respondent no.3, the pay and recover order passed by the learned Tribunal is not sustainable.
Therefore, the appeal filed by the appellant is dismissed as there is no need of enhancement of amount of compensation. The cross objections filed by respondent no.3 Insurance Company are allowed. Insurance company is exonerated from liability to pay and recover the amount of compensation. The amount deposited by insurance company, if any, in the Tribunal be refunded to the insurance company.
No order as to costs.
(A.K. Sharma) Judge PK