Madhya Pradesh High Court
Mahila Budha Devi vs Dinesh Singh on 4 April, 2019
1 MA-976-2008
The High Court Of Madhya Pradesh
MA-976-2008
(MAHILA BUDHA DEVI Vs DINESH SINGH)
Gwalior, Dated : 04-04-2019
Shri Dharmendra Rishishwar, learned counsel for the appellants.
Shri K.S.Rochlani, learned counsel for respondent No.3/Insurance
Company.
This Misc. Appeal has been filed by the claimants alleging that learned Motor Accident Claims Tribunal has committed an error in awarding a very meagre sum of compensation to the tune of Rs.1,99,000/- in favour of the claimants computing notional income of the deceased at Rs.1,500/- per month.
It is submitted by the learned counsel for the appellants that Claims Tribunal has deducted 1/3rd of the amount towards self expenses and has treated 2/3rd as the dependency, whereas the fact of the matter is that there are 7 dependents of the deceased, and therefore, deduction from the total income could have been to the tune of 1/5th of the income of the deceased and not 1/3rd. It is also submitted that a meagre sum of Rs.7,000/- has been awarded under the head of last rites (Rs.2,000/-) and loss of consortium and love and affection (Rs.5,000/-).
It is submitted that at the time of accident which admittedly took place on 29.11.2004 minimum wages for an unskilled labourer were Rs.2,200/-, and therefore, notional income has been wrongly computed at Rs.1,500/- per month.
Thus, if notional income of Rs.2,200/- per month is taken into consideration, then deduction towards self expenses will be Rs.440/-, and therefore, dependency will be Rs.1,760/- monthly. When this dependency is taken into consideration, then looking to the fact that deceased at the time of accident was 35 years of age, therefore, multiplier of 16 will be applicable, and therefore, on applying the multiplier of 16 claimants shall be entitled to a sum of Rs.3,37,920/-. Over and above this amount, they will be entitled to 2 MA-976-2008 future prospects at the rate of 40% which comes out to Rs.1,35,168/- and over and above this, claimants are entitled to a sum of Rs.70,000/- under miscellaneous heads of last rites, loss of consortium etc. as has been been decided by Hon'ble Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi as reported in 2017(16) SCC 680, therefore, total compensation will come out to Rs.5,43,088/-. Other terms and conditions of the award shall remain as it is.
Learned counsel for the Insurance Company submits that he has filed cross-objections under Order 41 Rule 22 of CPC on 6.10.18 and has taken a plea of breach of policy as deceased was carried as a fare paying passenger in the offending vehicle which was insured with the Insurance Company, and therefore, Insurance Company is not liable to compensate the claimants.
Learned counsel for the Insurance Company submits that Insurance Company has led evidence of its Manager namely Anil Kumar Gupta who was posted as Branch Manager, Branch No.3, Jayendraganj, Gwalior, to point out that policy Ex.D/1 was valid from 6.11.2004 to 5.11.2005 and it was issued for transport of goods. As per the terms and conditions of the policy, no passenger was permitted to travel in the said truck and if any passenger travels in the truck, then risk of such passenger was not covered by such policy. Reading such evidence of the Branch Manager, learned counsel for the Insurance Company submits that Insurance Company be exonerated from satisfying the claim.
Learned counsel for the Insurance Company has placed reliance on the judgment of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Rattani and others as reported in 2009 ACJ 925 wherein a truck carrying 30-40 persons turned turtle and some passengers sustained injuries and two of them succumbed to their injuries and it was contended that deceased and injured were travelling in the truck as members of marriage party, however, there was no mention in the FIR that dowry articles were loaded in the vehicle, it was held that when victims of the accident were 3 MA-976-2008 travelling in the truck as gratuitous passengers, then Insurance Company is exempted from its liability. Similarly, reliance has been placed on the judgment of M.P. High Court in the case of Dilkhush and others Vs. Bherulal and others as reported in 2006 ACJ 2341 wherein in case of a labourer travelling on tractor trolly, it was held that taking into consideration the law laid down in the judgment of Asha Rani the liability to pay enhanced compensation will be that of respondents No.1 and 2 and not of the Insurance Company.
In the case of New India Assurance Co. Ltd. v. Asha Rani and others as reported in 2003 ACJ 1, it has been held that if owner of goods or his authorized representative being carried in a goods vehicle when that vehicle met with accident prior to amendment of 1994, then it was held that Insurance Company was not liable. But in the present case accident admittedly took place on 29.11.04, therefore, ratio in the case of Asha Rani will not be applicable as the accident took place after the amendment of 1994 and thus, it cannot be said that when there is evidence on record that deceased was travelling as owner of the goods, then also he was not authorized to travel in the truck resulting in exoneration of the Insurance Company Learned counsel for the claimants submits that it is apparent from the order-sheets of this misc. appeal that on 24.4.2010 Shri K.S.Rochlani had made his appearance in this misc. appeal. Thereafter, on 24.6.2015 Shri B.N.Malhotra appeared and sought time due to non-availability of arguing counsel for consideration of application for condonation of delay. On 16.9.15 Shri Rochlani again sought time to file response to application for condonation of delay and again by way of last opportunity time was granted. On 3.5.2016 instead of granting time, application for condonation of delay was allowed and appeal was admitted. Therefore, an application filed in the form of cross-objection under Order 41 Rule 22 of CPC was barred by limitation as such application should have been filed within one month from 4 MA-976-2008 the date of service on Insurance Company or its pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow. It is submitted that even if the limitation is computed from the date of admission of appeal i.e. 3.5.16, then such cross-objections as were filed on 6.10.18 are clearly barred by limitation.
Shri Rochlani submits that he was not supplied copy of appeal memo, and therefore, once copy of appeal memo was supplied to him as per the order dated 5.9.18, cross-objections filed on 6.10.18 cannot be said to be barred by limitation.
This appeal was admitted on 3.5.16 in presence of counsel for the parties. No objection was raised on that day as to the non-availability of memo of appeal. There appears to be no effort made by learned counsel for the Insurance Company to obtain copy of such appeal memo and merely a direction to the counsel for the appellant to provide one set of copy of appeal memo on 5.9.2018 will not be a starting point for limitation as has been submitted by learned counsel for the Insurance Company.
Even otherwise, Shri Anil Gupta, Branch Manager of the Insurance Company, who was examined as DW-1, has admitted in para 3 of his cross- examination that as per the terms and conditions of the policy owner of the goods or an agent of owner of such goods was entitled to sit in the truck. He has not been examined/reexamined by learned counsel for the Insurance Company to solicit any explanation. Respondents No.1 and 2 i.e. owner and driver of the offending vehicle have examined driver of the vehicle as defence witness and such driver namely Rajkumar has clearly deposed that only owner of the goods was sitting in his truck and he had loaded onion for a consideration of Rs.200/- as fare for transport of such onion and deceased was sitting in the offending vehicle as owner of such goods which were being transported in the truck. In view of such evidence and also on appreciation of chronology of events, this Court is of the opinion that when respondent/Insurance Company did not file any application asking for copy 5 MA-976-2008 of appeal memo on the date of admission of the appeal when appeal was admitted in presence of the opposite counsel, then a direction to provide copy of appeal memo in 2018 will not revive the limitation for filing the cross- objections, and therefore, the explanation given by learned counsel for the Insurance Company as regards to late filing of the cross-objections before this Court is not satisfactory and also in absence of there being any application for condonation of delay, this Court is of the opinion that both on merits as well as on limitation, cross-objections are not sustainable.
In fact, Section 147 of the Motor Vehicles (Amendment) Act, 1994 terms owner of the goods or his authorized representative being carried in the vehicle. Anil Gupta (DW-1) has admitted liability of the Insurance Company for owner of the goods or an agent of owner of such goods and this has not been rebutted by the Insurance Company, therefore, there is no proper cross- examination that deceased was not owner of the goods in the insured vehicle, therefore, all the three judgments are distinguishable on facts and circumstances of the case and in fact this aspect has not been taken into consideration in the case of Dilkhush (supra) where accident had taken place on 16.12.1999 after amendment in the Motor Vehicles Act.
In view of the aforesaid, cross-objections are rejected. Appeal is allowed to the extent mentioned above.
(VIVEK AGARWAL) JUDGE ms/-
MADHU SOODAN PRASAD 2019.04.08 17:38:56 -07'00'