Dilip vs Mansharam and Others

N.K. Mody, J.—This Order shall also govern the disposal of M.A. Nos. 428/2009, 429/2009, 430/2009, 433/2009 and 434/2009 as in all the appeals impugned award is dated 29/02/2008 passed by II MACT, Mhow whereby all the claim petitions filed by the appellant were allowed and compensation was awarded, however respondent No. 3/Insurance Company was exonerated on the ground that offending vehicle was being plied in violation of terms of the policy. Short facts of the case are that appellants who are claimants filed the claim petition separately alleging that on 24/01/2006 appellants in all the appeals were going in a truck bearing registration No. MP-09/KC/6734 which was driven by respondent No. 1 rashly and negligently, owned by respondent No. 2 and insured with respondent No. 3. It was alleged that because of negligent driving the offending truck was turtled down with the result appellant in all the appeals sustained injuries. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was also filed by one Mangilal of which claim case No. is 36/2008. The claim petition was contested by the respondent No. 3 on various grounds including on the ground that since the offending vehicle was being used in violation of terms of the policy for carrying passengers therefore respondent No. 3 is not liable for payment of compensation. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned tribunal allowed the claim petition and awarded compensation, however exonerated respondent No. 3. Full particulars of each of the appeals and amount awarded are as under:-

Being aggrieved by inadequacy of the amount awarded and exoneration of respondent No. 3/Insurance Company, present appeals has been filed.

Learned counsel for the appellant argued at length and submits that the impugned award passed by learned tribunal is illegal, incorrect and deserves to be set-aside. It is submitted that looking to the injuries sustained by the appellant amount awarded is inadequate. It is submitted that each of the appellant was hospitalized for number of days and some of the appellant also sustained permanent disability. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the amount be enhanced. So far as exoneration of respondent No. 3 is concerned, learned counsel submits that undisputedly appellant in all the appeals were traveling in the offending vehicle. It is submitted that Mangilal who also sustained injuries was traveling in the offending vehicle and filed claim petition which was numbered as 36/2008 and was allowed and compensation of Rs. 29,900/- was awarded holding that respondent No. 3 liable for payment of compensation. It is submitted that case of Mangilal is identical to the case of appellant in all the appeals. It is submitted that in the facts and circumstances of the case learned tribunal committed error in awarding lesser amount and exonerating the respondent No. 3.

Learned counsel for the respondent No. 2 supports the contention of counsel for the appellant so far as liability of respondent No. 3 is concerned and submits that amount awarded is just and proper. It is submitted that appeal filed by the appellant be dismissed.

Learned counsel for the respondent No. 3 submits that since appellant in all the appeals were traveling in the offending vehicle as gratuitous passenger, therefore, learned tribunal rightly exonerated respondent No. 3 as offending vehicle was insured as goods vehicle. Learned counsel placed reliance on a decision in the matter of Nilesh Kumar Vs. Bapulal and Others, wherein in a goods vehicle gratuitous passengers were travelling and several passengers died when it met with an accident, this Court after taking into consideration Rule 97 of M.P. Motor Vehicles Rules held that the tribunal was justified in exonerating Insurance Company from liability. It is submitted that appeal filed by the appellant has no merits and the same be dismissed.

From perusal of record, it appears that injuries sustained by some of the appellants are grievous in nature. In the facts and circumstances of the case appellant in all the appeals are entitled for enhancement of the amount of which particulars are mentioned as under:-

So far as liability of respondent No. 3/Insurance Company is concerned, undisputedly offending vehicle was insured with respondent No. 3 and risk of 5 labourers were also covered. To avoid the liability respondent No. 3 has examined Manesh Purania who is working as Assistant in the office of respondent No. 3 who has stated that Ex. P/1 is policy which covers the risk of 5 labourers. In the affidavit submitted by respondent No. 3 it is no where stated that respondent No. 3 is not liable for payment of compensation as appellant in all the appeals were traveling as passenger. It is also not stated by the said witness that respondent No. 3 is not liable for payment of compensation as appellant in all the appeals are vegetable vendors and they were travelling as passenger. Law laid down in the matter of Nilesh (Supra) is not applicable in the present case as in that case risk of labourer was not covered under the policy. In the matter of Resham Bai and others Vs. Jabbar and others, wherein in a goods vehicle deceased aged 35 years is owner of vegetable carried for sale was traveling with his wife, this Court held that Insurance Company is liable for payment of compensation. Keeping in view the policy which covers the liability of 5 labourers and the fact that claim petition filed Mangilal was allowed and Insurance Company was held liable for payment of compensation appeal filed by the appellant in all the appeals are allowed and amount awarded is enhanced as stated above and the findings whereby respondent No. 3 was exonerated is set-aside holding that appellant in all the appeals shall be entitled for the amount awarded by the learned tribunal and enhanced by this Court. The amount awarded shall carry interest @ 8% per annum. Since the risk of 5 labourers was covered by respondent No. 3 and total claimants are 7 in number includes Mangilal, therefore, respondent No. 3 shall be at liberty to recover the amount of compensation from owner and driver in two claim cases wherein the amount awarded is lesser. With the aforesaid modifications all the appeals stands disposed of. Copy of the order be placed in the record of all the connected appeals. No order as to cost