Gajulavarthi Sugunamma and Others vs Vallabhaneni Koteswararao and Another

B.K. Somasekhara, J.—These two appeals arise out of the award of the Motor Vehicle Accidents Claims Tribunal, Guntur, in M.V.O.P. No. 319 of 1989 dated 9-8-90. CMA No. 113 of 1991 is filed by the claimants, whereas CMA No. 80 of 1991 is filed by respondent No. 2 Insurer, in the proceedings before the Tribunal. The claimants being wife and children of the deceased Yesurathnam, filed claim petition u/s 110-A of the Motor Vehicles Act, 1939 (for short ''the Act''), for recovery of compensation of Rs. 87,500/- from respondent No. 1 owner of tractor-cum-trailer and respondent No. 2 Insurer of the vehicle alleging that the accident occurred due to rash and negligent driving of the vehicle by the driver, which resulted in the fatal injuries to the deceased. The accident occurred on 5-5-1988, whereas the deceased died on 10-5-88. The respondent No. 1 owner of the vehicle remained ex-parte, whereas the respondent No. 2 contested the claim. The Tribunal having held an enquiry into the controversies, came to the conclusion that the accident occurred due to the negligence of the driver of the vehicle involved in the accident, that it was insured with respondent No. 2 at the relevant time, that the claimants are entitled to recover Rs. 30,000/- by way of compensation, and that the respondents are liable to pay the sum to the claimants. The claimant Nos. 1 and 2 died during the pendency of their appeal, and now only claimant No. 3 daughter of the deceased alone is prosecuting the appeal.

It is the grievance of the claimants that the amount of compensation awarded by the Tribunal is inadequate. According to them, the deceased being an agricultural labourer, was getting Rs. 30/- per diem and was able to contribute it to the family, including himself. But the Tribunal fixed the income at Rs. 450/- per mensem and deducting Rs. 100/-towards personal expexiw took Rs. 350/- towards contribution to the family. The Tribunal by taking 4.27 as the multiplier was not justified having due regard to the age of the deceased at 55 years. It is contended on behalf of the appellants by the learned advocate Mr. N. Subba Rao, that in this case even taking the income of the deceased at Rs. 20/- to Rs. 25/- per diem, the multiplicand ought to have been more, and the multiplier should be atleast 10, and that the Tribunal has failed to add reasonable sum towards loss of expectation of life of the deceased and also the incidental expenses for funeral etc., and therefore, the amount of compensation so awarded requires to be enhanced to make it just compensation. The learned Counsel for respondent No. 1, Mr. N.S. Bhaskara Rao contented that when the evidence on record was within the limits of conjectures and surmises, the Tribunal was justified in taking such amount and multiplier into consideration, and the amount so awarded was just and reasonable and requires no interference by this Court in the appeal.

Mr. K. Subba Rao, the learned advocate for the Insurer contended that although there is clear stipulation in the Insurance Policy, Ex.B-1, that the vehicle was insured to cover the risk only when the vehicle was used for agricultural purposes, and in spite of clear evidence that the deceased was not an employee of the owner of the vehicle and contradicted from the clear allegations made in the claim petition in column No. 5 and also in the body of the petition, the Tribunal without considering the question of liability as it could have been done, fastened the liability on the Insurer. The learned Counsel for the claimants and respondent No. 1 contended that there is no specific-plea in the written statement filed by the Insurer about the particular ground on which liability is absolved, and secondly that the evidence bears out the relationship of the deceased and the owner of the vehicle as master and servant, and the accident having been occurred in the course of the employment, the Insurer cannot avoid the liability by virtue of the terms and conditions of the Insurance Policy, Ex.B-1, and the Tribunal could (sic) the Insurer in paying compensation. Having due regard to the nature of the controversies and contentions as stated above in the two appeals, this Court proposes to take up the appeal of the claimants in the first instance to test whether the quantum of compensation awarded by the Tribunal is just, adequate or inadequate. The Tribunal has taken the age of the deceased at 55 years at the time of the accident and death of the deceased, and that finding is not challenged. Ex. A-1, copy of the post-mortem report also confirmed such an age of the deceased. The Tribunal has also found that the deceased was an agricultural labourer and fixed his daily income at Rs. 15/-. There has been the testimony of P.W.1, wife of the deceased and P.W.2, another labourer who was travelling in the vehicle and who was an eye-witness to the accident, that the deceased was getting Rs. 30/- per diem by way of wages. Without assigning sufficient reasons, the Tribunal reduced it to Rs. 15/-per diem. It is true that such testimony is not supported by documentary evidence nor it is possible to accept it in a case like this. But at the same time, the consistency in the testimony should also be conducive to the realities in the matter. Exaggerations and overstatements by persons interested in the claim, and the rural people who are not used to the technicalities and the consequences of their statements cannot be over-emphasized. Therefore, leaving margin for such exaggeration or interested statements and taking judicial notice of the minimum wages of the, labourers and agricultural labourers etc., which cannot be less than Rs. 20/-per diem, the Tribunal could have taken at least Rs. 20/- per diem and Rs. 600/- per mensem towards the income of the deceased in the absence of definite material, but based on oral testimony. Deducting one-third out of that amount, the deceased was capable of contributing at least Rs. 4,000/-per diem (sic. Rs. 400/- per mensem) to the family. Thus Rs. 4,800/- being the multiplicand in this case and with the age of the deceased as 55 years, the multiplier ought to have been 9 as per the law settled in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, . The loss of dependency in this case ought to have been Rs. 43,200/-. Having due regard to the relationship of the deceased and the claimants, Rs. 10,000/- are awarded towards loss of expectation of life. Now that only the daughter of the deceased is surviving, no amount towards loss of consortium is being added. By adding Rs. 3,000/- towards incidental expenses like funeral, transportation of dead body, and other unaccountable expenses, and Rs. 5,000/- towards pain and suffering of the deceased as he died on 10-5-1988 i.e. after five days of the accident, the total amount of compensation in this case ought to have been Rs. 61,200/-. The award thus requires to be modified by enhancing the compensation. That disposes of the appeal of the claimants C.M.A. No. 113 of 1991.

As submitted by the learned Counsel for the respondent No. 2 Insurer Mr. K. Subba Rao the Tribunal has not adverted to the question of liability and the reasons for fixing the liability on the Insurer in the judgment. But still in para 8 of the judgment, the Tribunal stated that respondent Nos. 1 and 2 are jointly and severally liable to pay the compensation. In the written statement, the respondent No. 2 pleaded want of liability on the ground that the deceased was unauthorised passenger in the vehicle involved in the accident and the policy did not cover that risk, and secondly the liability on the part of the Insurer, if any, is governed by the provisions of the Motor Vehicles Act. It is pointed out from Ex.B-1, copy of the. insurance policy, that the limitations as to the use of the vehicle were prescribed for agricultural purpose. It is further pointed out by the learned Counsel that neither Ex.B-1, copy of the policy, nor the terms thereunder were in dispute as it was not challenged firstly by the claimants and secondly by the owner of the vehicle, when he did not contest the claim at all by remaining ex parte, and therefore, the Tribunal was bound to act through the contents of Ex.B-1, particularly, the limitations to use for agricultural purpose, and with this evidence, the Tribunal was bound to examine the question of liability on that ground as per the amended Section 110(b) (1) (sic. 110-B) of the Act. The learned Counsel further pointed out that from the facts and circumstances of the case the deceased was not travelling in the vehicle as an employee of the owner of the vehicle, but as a non-fare paying passenger employed under somebody else, and therefore; the terms of the policy did not cover the risk of such a person to indemnify the owner by the Insurer to pay compensation. The learned advocates for the claimants and respondent No. 1 have contended that in the first place there is no specific or categorical plea by respondent No. 2 Insurer that liability is absolved due to misuse of the vehicle for the purpose other than it was stipulated under the terms of the policy, and secondly, none on behalf of the Insurer entered the witness box to explain the meaning of agricultural purpose being the limit of use of vehicle mentioned in the policy, and therefore, there is no question of reopening the issue of liability on the part of the insurer to pay the compensation.

In regard to want of liability on the part of the insurer, there is a definite plea taken in para 3 of the written statement that the deceased being unauthorised passenger in the vehicle was not covered by the terms of the policy in regard to risk. In column Nos. 5, 16 and 26, on Page 5 of the petition, it is categorically pleaded that the deceased was an employee under one Devabhakta Veerahhadraiah, who is said to be the owner of the vehicle. But, respondent No: 1 Vallabhaneni Koteswara Rao is impleaded as a party mentioning that he is the owner of the vehicle and Driver, involved in the accident, but in the evidence, through the testimony of P.Ws. 1 and 2, co-worker of the deceased, it was sought to be projected that the deceased was employed under respondent No. 1 owner, and that while the brick pieces (brick bats) (brick powder in this case) were being transported in the vehicle from the kiln of the son-in-law of respondent No. 1 to use it for levelling the ground for the use of respondent No. 1, the accident occurred. Therefore, there has been a contradiction between the facts and the material particulars given in the petition in the relevant column, according to the evidence in the case. The Tribunal appears to have not examined these questions carefully with the aid of such materials. In such situation, a serious doubt arises whether the deceased was really an employee of respondent No. 1 and whether he was really employed when he was stated to be an employee under Devabhakta Veerabhadriah (said to be son-in-law of respondent No. 1) as per the testimony of P.W.2. If merely that was the contradiction, the Tribunal was not justified in holding that the deceased was employed under respondent No. 1. But if the totality of the material particulars in the claim petition are read, there appears to be some confusion or misunderstanding on the part of the claimants in mentioning the occupation of the deceased as an employee under one Devabhakta Veerabhadriah who is said to be the owner of the vehicle instead of impleading respondent No. 1 as the owner of the vehicle, which is found to be correct At any rate the claimant cannot take the credit of their own contradiction and the confusion created from such particulars. If that is the material upon which the Tribunal depended to record a finding, this Court cannot sustain it If the liability is fastened en the respondent No. 1 on such a ground this Court cannot support such a finding. But even assuming that the deceased was a non-fare paying passenger or a worker travelling in the vehicle, the liability cannot be paid to be taken away in this case having due regard to the implication of provisions of Section 94 of the Motor Vehicles Act, and in view of the law laid down in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 that mere carrying persona in a vehicle more than the prescribed number under the permit, cannot be a breach of terms of the policy, and therefore, although the accident occurred while the deceased was travelling in the tractor-trailer in such capacity, the respondent No. 2 Insurer cannot absolve its liability to pay the compensation. Even at the worst it might amount to technical violation of the terms of the policy. The liability on the part of the respondent No. 2 Insurer cannot be absolved as has been held by the Supreme Court in Sohan Lal Passi Vs. P. Sesh Reddy and others, . In the present case, in the absence of plea that there is wilful violation of the terms of the policy of the part of respondent No. 1 owner of the vehicle, this is not a fit case to absolve the awarded liability on the Insurer in paying the compensation.

The real question to be decided in this case, in regard to liability, is whether the vehicle covered by the insurance policy was used for the purpose other than the purpose for which it has to be used under the limitations of the policy, Ex.B-1, as has been found. It is true, that there is no categorical plea in the written statement. But in view of clear stipulations in Ex.B-1 about the limitations of use for agricultural purpose read with para 4 of the written statement, it could be taken that the Insurer has clearly raised one of the defence of want of liability being the violation of the terms of the policy as such, and particularly in the absence of the owner of the vehicle remaining ex parte, the Insurer was entitled to raise such a contention and take a decision thereon. It must be impressed upon the Tribunal that Section 110-A (sic. 110-B) of the Act imposes obligation on the Tribunal to decide the question of liability by specifying the amount which shall be paid by the Insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. In this case, the Tribunal has not at all discharged such an obligation before recording a finding in regard to question of liability. In Ex.B-1, in spite of a categorical stipulation that limitation as to use of the vehicle was for "agricultural purpose", there is no explanation as to what is the meaning of "agricultural purpose" in any of the terms therein and it was not explained by any of the Officers or the person who was concerned with the Insurer. There is clear evidence in this case to show that the vehicle was used for carrying brick pieces or brick powder for levelling the ground in the house of respondent No. 1 the owner of the vehicle. That raises a question whether using of vehicle for such purposes comes within the expression of "agricultural purpose". As rightly pointed out by Mr. Subba Rao, nowhere it is spelt out that either the house in which the respondent No. 1 resided at the relevant time or the house at which the ground was to be levelled formed part of the land or used as farm house or that the grdund, which was to be levelled, was being used as part of agricultural operation or any other purpose. On the other hand, prima facie, it was found to be in the village and not within the land of respondent No. 1. The learned advocate for respondent No. 1 is not able to demonstrate from the material on record that such a house or such a ground was being used for agricultural purpose, and the use of the vehicle for carrying material to level the ground could be brought within the expression of "agricultural purpose". This Court in Syed Mohammed Yahya Quadri v. District Collector 1996 (3) ALT 794 dealt with the expression "agricultural land" and held as under:

"In the very expression of the definition of ''agricultural land'' it need not always be used for that purpose to continue its identity but it will not lose its identity as long as it is capable of being used for agricultural purpose. When once a land is proved to be an agricultural land its incapability of being used as such should be a proof and the contrary is a non-proof. The defendants have not established either factually, legally or scientifically that the soil content of the suit land is not capable of being put to use for agricultural purpose.

A land is agricultural as long as it is capable of being used for agricultural purpose unless the user is stopped for justifiable reasons."

The respondent No. 1 by remaining absent and not contesting the matter allowed the matters to be dealt with without assisting the Tribunal and thereby put all the persons concerned in the proceeding at bay. But while the question is on the failure of respondent No. 2 in making a categoric plea, and to produce evidence in support of such contention has also worsened the situation. In that view of the matter, and particularly on the failure of the Tribunal to deal with the question of liability in the correct manner, as has been indicated above, such a question requires to be determined by the Tribunal afresh to render full justice to the persons involved in the proceedings. But at the same time, the claimants cannot be blamed for what the respondents failed in regard to question of liability. At this stage, it may only be pointed out that the matter deserves to be remanded back on the question of liability.

It is appropriate that CMA No. 113 of 1991 should be allowed by enhancing the compensation by modifying the award to the extent of Rs. 61,200/-. Undoubtedly, the respondent No. 1 owner of the vehicle cannot avoid the liability to pay compensation to the claimants. But the only question to be decided by the Tribunal is whether respondent No. 2 can be asked to indemnify respondent No. 1 in paying compensation for the reasons stated above. Therefore, this Court has chosen to direct both the respondents to pay or deposit the amount awarded 50 per cent each, which the claimants should get, subject to their right to be determined on the question of liability by the Tribunal. Since respondent No. 1 remained ex parte before the Tribunal, he must be permitted to move the Tribunal and file written statement by raising proper grounds and at the same time the respondent No. 2 Insurer should also be permitted to file reply to such written statement by raising proper contentions in regard to question of liability.

In the result, both the appeals are allowed. The award passed by the Tribunal is modified and substituted with the following:

The claimants shall be entitled to recover Rs. 61,200/- by way of compensation with costs of the proceedings and simple interest at the rate of 12 per cent per annum from the date of petition till the date of payment. Both the respondents shall pay 50 per cent each of the amount awarded within two months from today which the claimants shall be entitled to withdraw. The respondent No. 1 shall be entitled to make application seeking permission to file written statement which shall be allowed by the Tribunal with liberty for respondent No. 2 to file rejoinder or reply to raise the question of liability in specific terms. Thereafter, the Tribunal shall decide the question of liability : u/s 110-B of the Act subject to the grounds raised by respondent Nos. 1 and 2 after giving opportunity to .both of them to lead evidence and address arguments. In case the respondent No. 2 is absolved of the liability to pay the amount under the award, the Tribunal shall pass an award in favour of (sic. against) respondent No. 1 owner of the vehicle, directing to refund the entire amount paid by the Insurer. If any amount has already been paid that shall be proportionately given deduction. The matter being quite old, the Tribunal shall make all endeavours to dispose of the matter within six months from the date of receipt of copy of this order. It is made very clear that the liability as between the claimants and respondents shall be taken as finally decided. There shall be no order as to costs in these appeals.