Madhya Pradesh High Court
Pappoo vs Om Prakash And Ors. on 5 May, 1997
Equivalent citations: 1998ACJ1011
Author: Tej Shanker
Bench: Tej Shanker
JUDGMENT Tej Shanker, J.
1. These two appeals have arisen out of an accident that took place on 1.9.1993 between tractor No. MP-06-8155 and trolley No. MP-06-8156 which was being driven rashly and negligently by respondent No. 2 Chhabi Ram and was owned by respondent No. 1 Om Prakash. It was claimed that on the said date during day time near Mishran-ka-pura and Chandanpura, the said tractor and trolley was being driven by respondent No. 2 Chhabi Ram. It turned turtle as a result of which Kallu died on the spot and Babu Ram s/o Sunnu received serious injuries in his leg. An F.I.R. was lodged by Janved and Crime No. 223 of 1993 was registered. At the time of death Kallu was aged 40 years. The longevity of the members of the family was about 70-75 years. He used to earn Rs. 60/- to Rs. 70/- per day, i.e., Rs. 2,000/- or Rs. 1,800/- per month. He spent Rs. 400/- over his personal expenses and the rest was being spent on the family. On account of his death claimant Pappoo, his son, suffered a loss. He claimed a sum of Rs. 5,04,000/- on account of the death, a sum of Rs. 10,000/- on account of loss of company and other expenses, Rs. 25,000 towards mental agony. Thus a total sum of Rs. 5,39,000/- was claimed. This claim petition was registered as No. 36 of 1994. The injured Babu Ram also preferred Claim Petition No. 37 of 1994 and he alleged that on account of the accident he received severe injuries resulting in permanent disability. He was not in a position to carry on his business. He used to earn Rs. 50/- per day, i.e., Rs. 1,500/- per month. On account of his permanent disability he could not earn and was on the verge of starvation. The average life expectancy in the family was 80 years. He, therefore, claimed a sum of Rs. 9,00,000 as compensation. It was alleged that the tractor-trolley was insured.
2. The claim was contested. Respondent No. 1 being the owner admitted that the claimant Pappoo was the only legal heir of Kallu deceased. He admitted that he was the owner and respondent No. 2 was the driver of the vehicle. He denied that the deceased used to earn Rs. 60/- to Rs. 70/- per day and spent only Rs. 400/- p.m. over his expenses. He further claimed that he had to construct a drain over his field and as such he required bricks. He sent respondent No. 2 on 1.9.1993 on his tractor-trolley to bring bricks so that the drain could be constructed. When the tractor was carrying bricks the hook in between the tractor and the trolley was broken. It was specifically denied that the tractor was being driven rashly. In case the Court came to the conclusion that there was any liability it was to be borne by respondent No. 3, the insurance company. The driver has not filed any written statement but the insurance company filed a written statement and seriously contested the claim. It was alleged that the tractor and trolley were insured for agricultural purposes only with respondent No. 3. At the time of accident it was carrying bricks and three persons were sitting in it. It was being used for commercial purposes against the terms contained in the insurance policy. It was being driven in violation of Section 149(2) of the Motor Vehicles Act. There was collusion between the petitioner-claimant and respondent Nos. 1 and 2 in order to harm respondent No. 3. The defence taken by the defendants in both the cases is similar. The Motor Accidents Claims Tribunal after taking evidence adduced before it and hearing the parties awarded a sum of Rs. 25,000/- to the claimant Pappoo and a sum of Rs. 50,000/- to the claimant Babu Ram but directed that the claim was recoverable from respondent Nos. 1 and 2. It exonerated respondent No. 3, i.e., the insurance company. Feeling aggrieved both the claimants have preferred separate appeals which have been registered as M.A. No. 68 of 1996 (Pappoo) and M.A. No. 69 of 1996 (Babu Ram). As they relate to the same case, they have been heard together and are being disposed of by this common order.
3. Learned counsel for the appellants contended that admittedly an accident had taken place and in the accident Kallu, father of the claimant Pappoo died and Babu Ram received injuries. It is also not in dispute that the claimant Pappoo is the sole heir of the deceased Kallu and the claimant Babu Ram became permanently disabled. The learned Counsel urged that appeal has been preferred for enhancement of the awarded sum as well as for holding the insurance company also liable for the sum awarded. He urged that as the vehicle was insured with respondent No. 3 it cannot escape its liability. The sum awarded is also inadequate looking to the facts of the case. The learned Counsel for the insurance company contended that the learned Tribunal rightly exonerated the insurance company because it is established from the record that the tractor was being used against the terms of the policy. It was insured for agricultural purposes only but it was being used at the time of accident for commercial purposes, i.e., for carrying bricks and as such no liability could be fastened on the insurance company. Learned counsel further urged that the insurance policy has not been proved and unless it is proved it cannot be said what were the terms of the policy. Only photo copy has been filed which in no case can be said to be a certified copy under the Insurance Act. In support of this contention he placed reliance upon National Insurance Co. Ltd. v. Vasanthara Amma 1992 ACJ 250 (Kerala) and urged that if the copy of the policy is not duly certified as provided under Section 2(5) of the Insurance Act it cannot be accepted.
4. There is no dispute about the accident. The accident did take place at the time and place alleged by the appellants. The dispute relates to the quantum as well as the liability of the insurance company. So far as the quantum is concerned, I may mention that the learned Court below discussed in great detail while disposing of issue No. 4 relating to this aspect of the matter. It will not be out of place to mention that during the course of arguments the learned Counsel for the appellants laid great stress upon the argument relating to the liability of the insurance company and made a passing reference with respect to the quantum. He had, however, not demonstrated during the course of arguments as to what should be the mode of calculation and what should be the just compensation which could be awarded to both the claimants. Thus, in the absence of any specific contention in this regard it is difficult to find out as to whether the compensation awarded by the Tribunal is inadequate. However, I proceed to deal with this matter as well as the question that has been raised.
5. The claimant Pappoo alleged that the age of the deceased at the time of his death was about 40 years. In his application he stated that he was 24 years of age and his statement was recorded more than a year after the accident. He has not given the age of his father at the time of his death but on oath he stated that his age was 24 years. In the claim petition he alleged that his age was 40 years. The Tribunal while discussing took the age of the deceased at the time of death at about 45 or 50 years. As far as his, earning is concerned Pappoo in his statement stated that his father was doing labour work, Dandhanigiri, Hambaligiri. He used to earn about Rs. 60/- to Rs. 70/- per day and maintained him, his wife and children. He spent a sum of Rs. 10,000/- towards last rites. His grandfather died at the age of 80 years. If his father had not died in the accident he would have survived up to the age of 80 years. Besides this there is no material to corroborate his testimony. After giving plausible reasons the Tribunal has fixed monthly income of the deceased at Rs. 1,000/- and has observed that the petitioner alone was the sole dependent. He, therefore, fixed the dependency at Rs. 500/- per month. It has been observed that the claimant himself is a major person and he has got children as well. Hence it could not be said that he was dependent upon his father. Taking into consideration this aspect I do not think it justifiable to assess the compensation on the basis of multiplier. It has, however, fixed the compensation at Rs. 25,000/-. After giving my anxious consideration I do not think that any illegality was committed by the learned Presiding Officer of the Tribunal, under the circumstances of the case. The compensation, therefore, awarded to the claimant Pappoo is adequate and does not call for any interference.
6. As far as claimant Babu Ram is concerned, it is admitted that he received serious injuries and his leg was amputated causing permanent disability to him. He stated that he used to do labour work earning Rs. 50/- to Rs. 60/- per day. On account of amputation of his leg he could not do work. He spent about Rs. 10,000/- or Rs. 15,000/- on his treatment. While assessing the compensation to the claimant Babu Ram the learned Presiding Officer of the Tribunal assessed his income also at Rs. 1,000/- per month on the same basis as assessment was made with respect to the income of the deceased Kallu. Babu Ram in his statement stated that he used to earn Rs. 50/- to Rs. 60/- per day. Thus, he himself was not sure as to what he was earning. The mere statement of the witness cannot be regarded as gospel truth. It has also to be taken into consideration as to how many days in a month he could get employment. Under these circumstances I do not think that in assessing the income of claimant Babu Ram any illegality has been committed in the absence of any convincing evidence about his income. After considering the fact of permanent disability the Court fixed Rs. 50,000/-. It, however, appears that the learned Court has completely ignored the expenses made by the claimant towards his treatment because that aspect does not appear to have been touched. In his statement Babu Ram stated that he spent a sum of Rs. 10,000/- or Rs. 15,000/- towards his treatment and amputation of his leg. There is a certificate on record Exh. P-3 which shows that right leg was amputated from upper 1/3rd thigh on 8.11.1993. Dr. A.K. Saxena, PW 6, stated that on 1.9.1993 he was posted at District Hospital, Bhind and had treated Babu Ram. On 8.11.1993 he had amputated his right leg and issued the certificate Exh. P-3. Taking into consideration this aspect I think that the claim of the claimant on account of treatment, etc. of Rs. 10,000/- cannot be said to be exorbitant. I, therefore, think he is entitled to this amount towards expenses made on medical treatment. I, therefore, enhance the compensation awarded to Babu Ram to Rs. 50,000/- plus Rs. 10,000/-, i.e., Rs. 60,000/- in all.
7. The next important question is about fixation of liability of the insurance company. There is no dispute that the vehicle was insured. The claim of the learned Counsel for the insurance company is that the vehicle was insured for agricultural purposes and it was being used for commercial purposes and was carrying bricks. It has, therefore, to be seen as to what were the terms of the insurance policy and whether there was any violation of the terms. In order to find out the terms of the insurance policy it is necessary that the document in this regard must be seen. The contention of the learned Counsel for the claimants is that the copy of the insurance policy filed on record Exh. D-l cannot be taken into consideration in view of the fact that it is not true copy as provided under Section 2(5) of the Insurance Act. He placed reliance upon National Insurance Co. Ltd. v. Vasanthara Amma 1992 ACJ 250 (Kerala). In that case copy of the policy produced before the Tribunal was not certified copy as per Section 2(5) of the Insurance Act and it was held that as the copy was not duly certified it could not be accepted. Section 2(5) of the Insurance Act defines 'certified' as "certified in relation to any copy or translation of a document required to be furnished by or on behalf of an insurer or a provident society as defined in Part III means certified by a principal officer of such insurer or provident society to be a true copy or a correct translation, as the case may be." The document Exh. D-1 does not appear to be a certified copy within this definition. It simply bears the seal of the insurance company but there are no signatures. However, this can hardly help the learned Counsel for the claimant/appellant for the simple reason that the claimant himself had filed a cover note which is his own document. The cover note shows that the insurance was for agricultural use only. It is significant to mention at this place that the owner of the vehicle Om Prakash specifically stated in his application that his tractor and trolley were insured for agricultural purposes only. Thus, in spite of the fact that copy filed by the insurance company is not certified copy reliance can safely be placed on the document filed by claimant himself, i.e., the cover note and on the unequivocal admission of the owner of the vehicle. I am, therefore, of the view that it is established that the vehicle was insured for agricultural purpose use only.
8. Having come to the conclusion that the vehicle was insured for agricultural purposes only, it has to be seen whether it was being used for that very purpose or for commercial purposes as claimed. There is nothing in the claim petition to show as to whether the vehicle was being used for agricultural purposes or commercial purposes. The owner Om Prakash in his written statement alleged in additional pleas that he had to construct a drain in his field to irrigate his field properly and he required bricks. Consequently, he had sent the tractor and trolley to bring the bricks so that be can construct the drain. In his statement on oath Om Prakash also stated that the tractor and trolley had gone to bring bricks from the brick-field as a drain was being constructed for his tubewell by Ashok Karigar. One trolley brick had come earlier and when the other trolley was being carried accident took place. He also stated that Babu Ram and deceased Kallu were doing labour work at his trolley. In his cross-examination he deposed that Kallu and Babu Ram did not do labour work at this trolley but on the date of incident he had sent them to the brick-field of Kamta. He specifically deposed that he did not come on the tractor and deceased and Babu Ram might be doing labour work. Earlier when he had taken bricks there might be other labour. The other witness in this connection is Chhabi Ram, DW 3, the driver, who deposed that Om Prakash had given him the tractor as he had no permanent driver. The bricks were to be taken from the brick kiln to the tubewell. At the diversion of Udiyakheda one person, now deceased and another met him who were not known to him. They asked him to give lift on the tractor and he refused. He proceeded to take the tractor to Om Prakash's tubewell. Om Prakash, owner of the tractor was also on the tractor. He was also present on the tractor when bricks were brought. This is in contradiction of the statement of Om Prakash himself who had mentioned, as stated above, that he was knocked down by the tractor. He further stated that one trolley brick had been left at the tubewell and the second trip was being taken when the accident took place. Both the times Om Prakash had gone to the brick kiln on his scooter. Thus, both these witnesses have specifically stated that the bricks were being taken to the tubewell of the owner Om Prakash. Om Prakash has stated that it was required for the construction of the drain. There is no material on the record to the contrary. In this view of the matter, it has to be taken that the bricks were being taken for the construction of the drain which was to be used for agricultural purposes. The learned Presiding Officer of the Tribunal discussed the matter in issue No. 3 and pointed out that it has not been established that the injured as well as the deceased were travelling in the tractor as labour for unloading the trolley. I have already shown above that the owner Om Prakash in his statement in his examination-in-chief stated that at the time of the accident Babu Ram and deceased Kallu were doing labour at his trolley but in his cross-examination he contradicted himself and deposed that Babu Ram and Kallu were not doing labour work at his trolley. On the date of occurrence he had taken them from the kiln of Kamta. He further deposed that deceased and Babu Ram might be doing labour work. Chhabi Ram, DW 3, contradicted him in this regard. Thus, it cannot be accepted that both these persons were working as labourers of the owner and they were employed in connection with agricultural work. Rather, it appears from the statement of Chhabi Ram, driver, that these persons were standing at the diversion of Udiyakheda and they wanted a lift till Bhind. He refused. After about 1 1/2 km. near Chandanpura culvert the hook of the trolley broke and the trolley detached. When he got down he saw both the persons who wanted to sit in the tractor injured. It, therefore, completely negatives the case of the claimants that the deceased and Babu Ram were employed as labour by the owner in connection with the agriculture work. In this view of the matter the findings of the learned Presiding Officer of the Tribunal that it was not proved that both the persons, the injured and the deceased, were travelling as labour appears to be correct. Once it is found that both the persons were not travelling in the tractor as labourers of the owner in connection with the agricultural work the insurance company cannot be fastened with the liability even if the bricks were being taken for agriculture work. I, therefore, confirm the finding of learned Presiding Officer of the Tribunal that the insurance company, respondent No. 3, is not liable.
9. In view of what has been said above the appeal of Pappoo (M.A. No. 68 of 1996) is dismissed whereas the appeal of Babu Ram (M.A. No. 69 of 1996) is allowed to this extent that the compensation awarded by the Tribunal is enhanced to Rs. 60,000/-. Rest of the order impugned is confirmed. Costs of the appeals shall remain easy. Let a copy of this order be placed with the record of M.A. No. 69 of 1996.