Madhya Pradesh High Court
Bhan Bai vs Surjit Singh Bhatiya And Ors. on 19 March, 1999
Equivalent citations: II(2000)ACC402, 1999ACJ1290
Author: Dipak Misra
Bench: A.K. Mathur, Dipak Misra
JUDGMENT Dipak Misra, J.
1. As in this batch of appeals propriety of the awards passed by First Motor Accidents Claims Tribunal, Rajnandgaon in various claim cases arising out of the same accident is called in question, they were heard analogously and are hereby disposed of by this common order.
2. In M.A. No. 207 of 1995 the appellant has called in question the legal validity of the award dated 30.11.1994 in Claim Case No. 5 of 1991 (originally registered as Claim Case No. 8 of 1986) whereby the Tribunal while awarding a total sum of Rs. 70,000 (Rupees seventy thousand) has absolved the insurance company, respondent No. 3 herein, from indemnifying the owner and driver.
3. The facts as have been unfolded are that on 3.5.1986 claimant's son Umesh Kumar, a boy aged about 17 years was travelling in a truck bearing registration No. MBR 1334 and as the truck met with an accident he sustained serious injuries for which he was admitted to Manpur Hospital where he breathed his last. It was pleaded in the claim petition that he was a student of class VIII and also getting himself engaged as a daily labourer. It was set forth that the husband of the claimant had deserted her and taken another lady, and, therefore, she was totally dependent on her son. It was stated that he was contributing Rs. 500 per month and, therefore, the claimant was entitled to Rs. 90,000 on that score. A claim of Rs. 10,000 was advanced towards mental pain and suffering.
4. The non-applicant No. 1, the owner of the truck, though filed his written statement contending, inter alia, that the claims put forth by the claimants were exorbitant and in any case as his vehicle was insured with National Insurance Co. Ltd. and the insurer was liable to indemnify, but later on he chose not to contest the claim and was proceeded ex pane. The driver of the vehicle did not file his written statement and was proceeded ex pane. The insurance company filed its written statement resisting the claim of the claimants on the ground that the vehicle in question was a goods vehicle and was not insured for carrying passengers, and therefore, the liability could not be fastened with the insurance company. The further stand of the insurer was that the deceased persons were travelling at their own risk and the owner and the driver have to be held liable.
5. The Tribunal framed three issues and on scrutiny of the oral and documentary evidence arrived at the conclusion that the accident had occurred due to the rash and negligent driving of the truck driver. The Tribunal further held that the vehicle was not meant for taking passengers and when more than 20 persons got into the vehicle it could not be held that they were travelling in the vehicle to look after their goods and hence, the insurance company cannot be held liable to indemnify the owner. As far as the quantum of compensation is concerned the Tribunal came to hold that he would have earned Rs. 2,400 per year, and eventually, throughout life contributed Rs. 70,000 to the claimant mother. Being of this view the Tribunal awarded a sum of Rs. 70,000.
6. In M.A. No. 208 of 1995 claimants-appellants are the parents of deceased, Dharmendra Kumar, who was travelling in the vehicle in question on the fateful day. Due to accident he had suffered serious injuries and died on the spot. He was aged about 8 years and pursuing his studies. Claiming on various heads the claimants put forth a claim of Rs. 72,000 before the Tribunal. The Tribunal framed as many as three issues and considering the factual circumstances came to hold that the legal representatives were entitled to Rs. 35,000 towards compensation.
7. In M.A. No. 209 of 1995 the husband of the appellant No. 1 and father of the appellant Nos. 2, 3 and 4, Bharat Singh, was travelling in the vehicle in question. As he had sustained serious injuries he was taken to Manpur Hospital but he could not survive. It was put forth in the claim petition that the deceased was aged about 48 years and his income was Rs. 600 per month and at the time of accident he was contributing Rs. 450 to his family members. The claimants put forth their claim on various heads at Rs. 1,10,000. The Tribunal on consideration came to hold that the deceased was more than 50 years of age and his monthly income was Rs. 500 and the dependency of the family was Rs. 200. Being of this view the Tribunal awarded a compensation of Rs. 23,000.
8. As far as M.A. No. 210 of 1995 is concerned the claimants were legal heirs of the deceased, Devaluram. Devaluram sustained injuries and as a result of which his life spark got extinguished. He was aged about 45 years at the time of accident. It was set forth in the claim petition that the deceased used to contribute Rs. 450 per month to his family members. On various heads a claim of Rs. 1,82,000 was advanced before the Tribunal. The Tribunal on consideration of facts awarded a sum of Rs. 33,000 in favour of the claimants.
9. In all the cases the Tribunal absolved the insurance company and fastened the liability with the owner.
10. Assailing the aforesaid awards it is contended by the learned Counsel for the appellants that the Tribunal ought to have held insurance company liable inasmuch as the deceased persons were travelling in the vehicle to look after their goods and there was evidence available on this score. The learned Counsel placed reliance on the decisions rendered in the cases of Bhag-wan Das v. National Insurance Co. Ltd., 1991 ACJ 1137 (MP) and United India Insurance Co. Ltd. v. Ladhu Devi, AIR 1998 Raj 49. Mr. Agrawal, learned Counsel, has also questioned the quantum in all the cases on the ground that it is grossly low.
The learned Counsel for the insurance company has supported the award passed by the Tribunal on the ground that when 20 persons were travelling in a goods vehicle it cannot be held by any stretch of imagination that the deceased persons were travelling in the vehicle to look after their goods. Learned counsel has placed reliance on the decisions rendered in the cases of Shanker Prasad v. Malti Devi, 1998 ACJ 860 (MP); Ishadey v. Bliarosi, 1998 ACJ 468 (MP); Kallu Maharaj v. Meenabai, 1989 ACJ 770 (MP); Khandu v. Laxminarayan, 1989 ACJ 1028 (MP); Meera Bai v. New India Assurance Co. Ltd., 1995 ACJ 1274 (MP); Narayanlal v. Rukhmanibai, 1979 ACJ 261 (MP); New India Assurance Co. Ltd. v. Ashok Singh, 1990 ACJ 1055 (MP); Shivlal v. Rukmabai, 1987 ACJ 341 (MP); Kalu v. Deep Kanwar, 1997 ACJ 628 (Rajasthan); Paroo v. Likhma Ram, 1998 ACJ 628 (Rajasthan); Divisional Manager, National Insurance Co. Ltd. v. Kalilata Mallik, 1997 ACJ 1024 (Orissa); Oriental Fire & Genl. Ins. Co. Ltd. v. Bondili Sitharam Singh, 1996 ACJ 242 (AP); Oriental Fire & Genl. Ins. Co. Ltd. v. Hirabai Vithal Nikam, 1988 ACJ 494 (Bombay); Amrit Kaur v. Chaman Lal, 1993 ACJ 770 (HP); and New India Assurance Co. Ltd. v. Mohanbhai Ravji-bhai, 1994 ACJ 970 (Gujarat). He has also referred to us to Sukhnandan Ram Sahu v. Oriental Insurance Co. Ltd., 1999 ACJ 750 (MP).
11. To appreciate the rival submissions raised at the Bar we have carefully perused the award. We have also scrutinised the evidence on record. The finding recorded by the Tribunal is that vehicle was used for carrying passengers. It is submitted by Mr. Ruprah that the vehicle, in fact, was converted to a public service vehicle.
12. In this context, Mr. Ruprah has placed heavy reliance on the decision rendered in the case of Shanker Prasad, 1998 ACJ 860 (MP). In the aforesaid case this Court has held as under:
(14) However, in the present case, the Tribunal has recorded a finding that the deceased, after hiring the truck, not only was travelling in the truck along with his cloth bundles, but, the driver arranged by him who was engaged by the appellant to drive the truck, permitted about 12 persons to travel in the truck along with their goods, from whom he charged the fare separately per passenger, besides the fare for carrying goods. It was not a case of lifting one or two persons and that the claim relates to the person who died in accident and the vehicle was being used for the purpose other than for the purpose it was adapted for its use and such passengers were carried in breach of the terms of the policy, 'a fundamental breach' as the passengers could not have been lawfully carried or permitted to travel in the goods vehicle. The Tribunal rightly absolved the insurer from its liability as the appellant permitted the use of the vehicle as a public service vehicle.
In the case of Ishadey v. Bharosi, 1998 ACJ 468 (MP), it was ruled as under:
(12) We have considered this aspect of the matter and we find that the learned Tribunal had recorded a categorical finding that the deceased and the other 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-1. 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. In this context we may profitably refer to the recent decision rendered in the case of Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), wherein a three Judges Bench of the Apex Court on interpretation of Section 95 (1) (b) (i) of the Motor Vehicles Act, 1939 has held that the object of the legislature was to provide specifically for covering risk to passengers of public service vehicles. Their Lordships approved the law laid down by the Full Bench of the Orissa High Court in the case of New India Assurance Co. Ltd. v. Kanchan Bewa, 1994 ACJ 138 (Orissa). We may usefully quote:
(10) For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers were carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions as a vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95 (1) (b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The High Courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at the Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa, 1994 ACJ 138 (Orissa), where Hansa-ria, C.J., speaking for the Full Bench observed as under:
'(18) The aforesaid is not enough to take any view as to whether the goods vehicle can or cannot come within the fold of proviso (ii) with which we are concerned. Our primary reason for differing, with respect, with Rajasthan Full Bench is that allowing goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors to which we shall advert; the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. We have said so because reference to the definition of goods vehicle shows that the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The word 'use' has been defined in Chamber's English Dictionary in its intransitive sense to mean 'to be accustomed; ('to' used chiefly in the past tense)'; 'to be in the habit of so doing'; 'to resort'. Reference to the meaning of this word, as given in Black's Law Dictionary, 5th Edn., would show that even one user may amount to 'use' or it may be that for a thing being said to be 'used', it has to be 'employed habitually'.
(19) Being concerned with a beneficial legislation like the one at hand, we would have normally preferred liberal interpretation, but the question is whether, without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. This would perhaps robe the third proviso dealing with coverage of contractual liability lame.
xxx xxx xxx (22) Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.
(23) There is another aspect of the matter which had led us to differ from the Full Bench decision of Rajasthan High Court. The same is what finds place in Sub-section (2) of Section 95. That Sub-section specifies the limits of liability and Clause (a) deals with goods vehicle; and insofar as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, Clause (a) would have provided a limit of liability regarding such persons also.' (11) Though the conclusion was arrived at after taking into consideration the Orissa Motor Vehicles Rules, in our opinion, the said view is correct, even otherwise also. In view of what we have said, the contrary view expressed by other High Courts has to be regarded as incorrect.
In view of the aforesaid pronouncement of law we need not to address ourselves to the fundamental breach as argued by Mr. Ruprah but conclude and hold that the learned Tribunal has rightly absolved the insurance company as it cannot be held liable to indemnify the owner in respect of the risk of a passenger in a goods vehicle.
14. The next contention raised by the learned Counsel for the appellant relates to determination of quantum. The deceased in M.A, No. 207 of 1995 was 15 to 16 years old and he was earning Rs. 200 per month. The Tribunal has adopted the method by taking note of the fact that the deceased would have contributed Rs. 50,000 during his lifetime to his mother. We do not approve the method adopted by the Tribunal. The Tribunal has also erroneously fixed the heads. Appreciating the evidence on record we are of the considered view that the deceased's income would have increased and he would have contributed Rs. 6,000 per year for the sustenance of his mother. At the time of the death of the deceased the claimant-appellant was 45 years of age, and therefore, the multiplier of 13 would be applicable. Hence, on this score the claimant would be entitled to Rs. 6,000 x 13 = Rs. 78,000. To this Rs. 2,000 is added towards the funeral expenses. Thus, the total compensation amount comes to Rs. 80,000.
15. In M.A. No. 208 of 1995 the deceased Dharmendra Kumar was a young boy of 8 years. It was deposed by the father of the deceased that he would have given higher education to the child and he would have eventually got a respectable job. The Tribunal has taken note of the fact that in any event, the deceased would have helped the family in the future and accordingly passed an award for a sum of Rs. 35,000. Considering the fact situation of the age of the child and the future prospects, we are inclined to enhance the award by a sum of Rs. 15,000. Accordingly, we hold that the claimants would be entitled to get Rs. 50,000 towards compensation.
16. In M.A. No. 209 of 1995 the deceased was a daily labourer. Learned Tribunal has determined the age of the deceased to be 55 years and fixed monthly contribution for the family at Rs. 200. In our considered view the determination of monthly contribution at Rs. 200 is fallacious. We are inclined to enhance the monthly contribution to Rs. 600. As the deceased was more than 55 years of age the multiplier of 5 would be appropriate. Accordingly, he would have contributed Rs. 600 x 12 x 5 = Rs. 36,000. To this consortium of Rs. 10,000 would be added as one of the claimants is the wife of the deceased. The claimants would also be entitled to a sum of Rs. 2,000 towards funeral expenses. Thus, they would be entitled to Rs. 50,000 in entirety.
17. In M.A. No. 210 of 1995 the deceased was a daily labourer. Learned Tribunal has determined the age of the deceased to be of 45 years and fixed the monthly earning at Rs. 200. On a perusal of the evidence on the record and taking into consideration the rise in daily wages, we are inclined to enhance the monthly contribution to Rs. 600. As the deceased was 45 years of age the multiplier of 13 would be appropriate. Hence the claimants would be entitled to Rs. 600 x 12 x 13 = Rs. 93,600. The wife would also be entitled to consortium of Rs. 10,000. The claimants are also entitled to receive Rs. 2,000 towards funeral expenses. Thus, in toto, they would be entitled to Rs. 1,05,600. We may hasten to add that the awarded sum in all the appeals including interest at the rate of 12 per cent per annum from the date of application, be deposited by the owner and the driver before the Tribunal within four months from today.
18. Resultantly, all the appeals are allowed in part and the awards are modified to the extent indicated above. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.