Orissa High Court
The New India Assurance Co. Ltd. vs Smt. Banita Meher And Two Ors. on 2 May, 2007
Equivalent citations: 2007(II)OLR35
Author: N. Prusty
Bench: N. Prusty
ORDER N. Prusty, J.
1. This appeal has been filed by the opposite party No. 2/Insurance Company challenging the award-dated 07.01.2003 passed by the learned District Judge-cum-MACT. (I), Bolangir in MJC No. 35 of 1998, which was filed under Section 166 of the M.V. Act.
2. The case of the claimant/respondent Nos. 1 and 2, who are father and mother of deceased Mahadev Meher, in the Court below is that the deceased was traveling in the offending vehicle as owner of the goods. The deceased was carrying on business of vegetables. On the date of accident he was taking brinjals to Berhampur in the offending Mini Truck bearing Registration No. OR-03-7617 on payment of Rs. 5000/- to the owner of the vehicle towards hire charges. Due to rash and negligence of the driver, the vehicle met with an accident and the deceased Mahadev Meher succumbed to the injuries at the spot. The deceased was unmarried and was earning about Rs. 4,000/- to Rs. 5,000/- per month. The vehicle was validly insured with the New India Assurance Co. having Policy No. 3155010001822 covering the date of accident. The petitioners have claimed a compensation of Rs. 3,00,000/-. In support of their contention of the petitioners examined two witnesses and exhibited certain documents. No witnesses was examined on behalf of the opposite parties nor any document was filed and exhibited in support of their stand in their pleadings. As such the policy of Insurance has also not been filed or put before the learned Tribunal. After assessment of the materials available on record as well as evidence adduced on behalf of the petitioners, the Tribunal arrived at a conclusion that the contribution of the deceased towards his family at 75% of his Income is to the tune of Rs. 1500/- per months, i.e. after deduction of 25% of the income towards is personal expenses. By applying multiplier 10, the learned Tribunal has finally came to a conclusion that the loss of income of the petitioners at Rs. 1,80,000/-, funeral expenses of the deceased at Rs. 10,000/- and Rs. 10,000/- towards loss of love and affection etc. As such the learned Tribunal has awarded Rs. 2,00,000/- in total in favour of the petitioners along with interest @ 9% per annum from the date of filing of the Misc. Case, i.e. 17.02.98 till the date of payment.
3. The appellant-Insurance Company has challenged the award mainly on the grounds that since the deceased is a passenger in a goods vehicle, the insurer has no liability to indemnify the owner of the vehicle and pay the compensation to the claimants; the income of the deceased as has been assessed by the Tribunal at Rs. 1500/- per month is on the higher side; the Tribunal has wrongly deducted 1/4th of the total income towards personal expenses of the deceased instead of 1/3rd; award of Rs. 10,000/- towards funeral expenses and Rs. 10,000/- towards loss of love and affection are on the higher side; interest of 9% has been awarded by the Tribunal is also on the higher side and as such the appellant-Insurance Company has challenged the quantum of the award passed by the learned Tribunal.
4. Heard Dr. A. K. Rath, learned Counsel for the appellant-Insurance Company, Mr. S.K. Joshi, learned Counsel for the claimant-respondents 1 and 2 and Mr. A. K. Mohapatra, learned Counsel for the respondent No. 3/owner of the vehicle.
5. Considering the submissions made by learned Counsel for the respective parties and after going through the records of the case as well as the award passed by the learned Tribunal, as it appears, learned Tribunal has assessed the contribution of the. deceased to the family at Rs. 1500/- per month only, even though as per evidence of P.W.2 the deceased was earning Rs. 4000/- to Rs. 5000/- per month from vegetable business. As such the income of the deceased has been assessed at a lower side. So far as quantum of award is concerned keeping in view the age of the claimants, the Tribunal ought to have applied multiplier 13 as provided in the statute. However even though the Tribunal has only applied multiplier 10 while determining the compensation amount and since no appeal/cross objection has been filed by the claimant-respondents, I am not inclined to interfere with the same. So far as funeral expenses of Rs. 10,000/- is concerned, learned Counsel for the appellant submits that the same is on the higher side and that cannot exceed more than Rs. 5000/-, as per the decisions in this regard.
6. Considering the submissions of the respective parties in this regard, I am of the considered view that Rs. 7000/- in this regard shall meet the ends of justice, keeping in view the present market condition.
7. So far as loss of love and affection is concerned, the assessed amount of Rs. 10,000/- on this head can never be said to be on the higher side, rather it is on the lower side. As such in my considered view, the Tribunal ought to have awarded Rs. 1,80,000/- for loss of income, Rs. 7000/- towards funeral expenses, Rs. 10,000/- towards loss of love and affection, i.e. in total Rs. 1,97,000/- instead of Rs. 2,00,000/-. So far as the interest part on the awarded amount is concerned, keeping in view the facts and circumstances of the case as well as prevailing Bank rate and interest in 2003, when the cause of action arose, interest @ 7.5% per annum shall be just and proper and this reduction in interest part of the award shall not be treated as a precedence.
8. Dr. Rath, learned Counsel for the appellant submits that the main contention of the appellant/Insurance Company is with regard to its liability for payment of the amount awarded indemnifying the owner of the vehicle. The deceased was traveling in a Mini Truck which is the goods carrying vehicle, as a passenger, and passengers are not allowed to travel in the same, even if they are the owners of the goods. As such this is in complete violation of the policy condition and hence the Insurance Company is not at all liable to pay anything to the claimants indemnifying the owner of the vehicle.
9. As it appears the Insurance Company has neither proved the Insurance Policy nor produced it before the learned Tribunal which could have thrown some light as to whether the owner of the goods are covered under that policy or not. As such even if the contention of Dr. Rath is accepted, it will be only a case of violation of terms and conditions of the policy by the owner of the vehicle, since he allowed the deceased to travel in the goods carrying vehicle as the owner of the goods, which were being carried in that vehicle for a particular consideration.
10. I have heard learned Counsel for the parties at length. Perused the materials on record. It has been held by the Apex Court in catena of decisions that the poor claimants should not suffer for such breach of policy condition, if any, and the appellant-Insurance Company ought to be directed to pay the compensation with liberty to realize the same from the owner of the offending vehicle in accordance with law, in case the policy conditions are violated by him in any manner.
11. Considering the submissions made by learned Counsel for both the parties and after going through the contents of the impugned order in detail, it is directed that the appellant-Insurance Company shall pay the compensation of Rs. 1,97,000/- along with interest @ 7.5% per annum from the date of filing of the Misc. Case, i.e. 17.02.1998 till the date of deposit, which shall be made within a period of eight weeks hence.
12. Out of the total amount deposited, 30% of such total deposit made, shall be disbursed in favour of the claimants and the balance 70% of the amount shall be invested in an unencumberable fixed deposit for a term of six years in the names of the respective claimant-respondents, i.e., respondents 1 and 2 proportionately as would be fixed by the learned Tribunal and no loan of any kind shall be sanctioned/disbursed in their favour by the concerned Bank during the entire period for which the money is kept in the fixed deposit.
13. In view of the ratio of the decision of the Apex Court vis-a-vis Section 149(4) of the Motor Vehicles Act, it is further directed that the Insurance Company after payment of the amount of compensation shall have the right to realize the same from the owner of the offending vehicle for violation of the policy conditions and is also at liberty to move the Court for attachment of the vehicle, if the owner does not participate in the proceeding and comply with the order passed in the proceeding for recovery for the amount paid by the Insurance Company towards satisfaction of the award.
14. After the entire amount is deposited along with up-to-date accrued interest before the Tribunal as directed above, the appellant/Insurance Company shall be at liberty to withdraw the amount of the statutory deposit made by it in this Court along with up-to-date accrued interest on proper application and as stated above opportunity is also given to the appellant/Insurance Company to proceed against the owner of the vehicle for realization of the entire amount deposited by it, in accordance with law, for violation of the terms and conditions of the policy, if any.
15. It is made clear that after the amount is deposited in the Tribunal, if any proceeding for recovery is initiated against the owner of the vehicle by the Insurance Company, the same shall be considered on its own merit on the basis of the evidence adduced in that proceeding.
16. The MACA is accordingly disposed of with the above modification.
17. Urgent certified copy of this order be granted on proper application.