Guldan Uikey vs Praveen Kumar Kaithwas and Others

N.K. Mody, J.—This order shall also govern the disposal of M.A. Nos. 363/10, 364/10, 366/10, 367/10, 368/10 and 369/10 filed by claimants and also MA. No. 418/10 filed by respondent Nos. 1 & 2 (owner and driver), as in all the appeals question involved is identical in nature and also all the appeals are arising out of one accident and parties are also one and the same except the claimant. In all the appeals award under challenge is dated 27/10/09 passed by XVII AMACT, Jabalpur. Short facts of the case are that claimants in all the appeals filed claim petitions before the learned Tribunal alleging that on 16/03/08 deceased persons were travelling in Mahendra Bolero jeep bearing registration No. MP/28-A-2540 which was being 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 rash and negligent driving of respondent No. 1 the said truck met with an accident with the result Phooldas Uike, Geetabai, Ganeshibai, Mintibai, Laltu, Gopalsingh, Rehman and Baldan sustained grievous injuries and passed away. It was alleged that the FIR was lodged by Guldan son of Laltu. It was alleged that since the accident occurred because of rash and negligent driving of respondent No. 1, therefore, all the claim petitions be allowed and adequate compensation be awarded. The claim petition was contested by respondent Nos. 1 & 2 wherein facts stated in the claim petitions were denied. It was alleged that if it is found proved, then respondent No. 1 was possessing license and the offending vehicle was duly insured, therefore, in that case respondent No. 3 is liable for payment of compensation. Respondent No. 3 also contested the claim petitions on the ground that respondent No. 1 was not possessing valid driving license. It was alleged that the accident occurred because of negligence on the part of respondent No. 1 and the offending vehicle was being used for carrying passengers, for which neither there was permit, nor the vehicle was insured for that purpose, therefore, respondent No. 3 is not liable for payment of compensation on account of violation of terms of policy. It was prayed that the claim petitions be dismissed so far as it relate to respondent No. 3. After framing of issues and recording of evidence learned Tribunal allowed the claim petitions and awarded the compensation and also exonerated respondent No. 3 on the ground that the offending vehicle was being used in violation of terms of policy, therefore, respondent No. 3 is not liable for payment of compensation, against which all the appeals have been filed.

Full particulars of each of the case are shown in the chart herein below:-

Learned counsel for the appellants argued at length and submits that the learned Tribunal taken into consideration the income of the deceased persons @ Rs. 3,000/- per month and after deducting 1/3rd towards personal expenses applied the multiplier and awarded the compensation. It is submitted that the income assessed by the learned Tribunal is on lower side as the accident is of the year 2008 and deceased were resident of Jabalpur. It is submitted that on other heads also amount awarded is on lower side. It is submitted that in all the claim petitions appellants are entitled for higher amount. So far as liability is concerned, learned counsel submits that absolutely there is no evidence to the effect that the deceased were fare paying passengers. It is submitted that in the circumstances learned Tribunal was not justified in exonerating respondent No. 3. Learned counsel placed reliance on a decision in the matter of Shiromani Vs. Sonabai, MACD 2010 (2) (M.P.) 700 wherein this Court found ample evidence on record to the effect that the offending vehicle was not taken on hire by deceased persons, hence it was held that the tribunal committed no error in holding the insurance company liable to pay compensation. Further reliance is placed on a decision in the matter of Mahendra Vs. National Insurance Co. Ltd., 2012 (4) ACCD 1752 (M.P.) wherein policy was package policy, this Court held that as per circular dated 16/01/09 issued by IRDA insurance company is liable for payment of compensation. On the strength of aforesaid position of law learned counsel submits that all the appeals be allowed and amount be enhanced and the findings whereby respondent No. 3 has been exonerated be quashed.

Learned counsel for respondent Nos. 1 & 2 supports the award so far as quantum is concerned and submits that no case for further enhancement is made out. It is submitted that since there is absolutely no evidence to the effect that the offending vehicle was being used for carrying passengers on hire and reward, therefore, learned Tribunal was not justified in exonerating respondent No. 3. Learned counsel supports the contention raised by the counsel for the appellants in that regard and submits that the appeal filed by the appellants and also appeal filed by respondent No. 1 be allowed and findings of the learned Tribunal whereby respondent No. 3 has been exonerated be set aside.

Learned counsel for respondent No. 3 supports the award and submits that the findings recorded by the learned Tribunal are based on due appreciation of evidence, which requires no interference . It is submitted that the respondent Nos. 1 & 2 filed the appeal which was numbered as MA. No. 421/10, which was dismissed vide order dated 30/06/10, against which a review application is filed with a delay of 300 days approximately, which is pending before Hon''ble Division Bench. It is submitted that another appeal which was numbered as MA. No. 417/10 was also dismissed by this Court vide order dated 19/03/10 on account of non-compliance of order passed by this Court. It is submitted that since once view has been taken by this Court that the findings recorded by the learned Tribunal regarding exoneration of respondent No. 3 is just and proper, therefore, the appeal filed by respondent No. 1 deserves to be dismissed. It is submitted that similarly the appeals filed by appellants whereby findings regarding exoneration is challenged cannot be entertained. It is submitted that all the appeals be dismissed.

From perusal of the record it is evident that to prove the case appellants have filed the documents Ex. P/1 to Ex. P/7. Ex. P/1 is the FIR wherein informer is Guldan Uike, who was also co-passenger and his father Laltu died in the same accident. FIR is based on Marg intimation, which was lodged on the information of Guldan Uike which was given immediately after the accident Apart from this in all the cases claimants have examined themselves and Guldan was examined as eyewitness. The FIR which was lodged by ASI on the basis of marg intimation is having a recital to the effect that the offending vehicle was hired at the relevant time. Witness Guldan was thoroughly cross-examined by the insurance company. No suggestion was given by respondent No. 3 that the passengers who were travelling in the offending vehicle were fare paying passengers. Respondent No. 3 has examined Nazir Mohammed (officer of insurance company) who has stated that the policy was issued by respondent No. 3 and extra premium of Rs. 50/- per passenger was charged for the members of the family of the owner. He has further stated that the occupant of the vehicle were from other community, therefore, they are not covered under the definition of third party. Except this there is no other evidence. In the matter of National Insurance Co. Ltd. Vs. Rattani and Others, Hon''ble Apex Court has held that burden to prove breach of condition of policy is on the insurer and the burden of proof stands discharged when facts admitted or sufficient material is brought on record to enable Court to arrive at conclusion of breach of policy conditions. Since respondent No. 3 failed to examine respondent No. 1 to prove that the deceased were fare paying passengers and also no investigation was conducted by respondent No. 3 to find out whether deceased were fare paying passengers, therefore, only on the basis that the deceased persons were from other community, this Court finds that the learned Tribunal committed error in holding that the deceased were fare paying passengers and the offending vehicle was being used in violation of terms of policy at the respondent No. 3 failed to prove the breach of conditions of policy.

It is true that the appeal filed by the respondent No. 1 was dismissed by this Court summarily which was numbered as MA. No. 421/10, but that was dismissed at the initial stage without notice to the appellants and respondent No. 3. Similarly other appeal which is numbered as MA. No. 417/10 was also dismissed on account of non-compliance of mandatory requirement of Section 173 of Motor Vehicles Act. In view of this, it cannot be said that the rights of the appellants can be affected adversely only because the appeal filed by the respondent Nos. 1 & 2 was dismissed in limine. In view of this, this Court finds that the findings recorded by the learned Tribunal whereby respondent No. 3 was exonerated cannot be allowed to sustained.

So far as quantum is concerned, it appears that the accident is of the year 2008 and the deceased were resident of Jabalpur, therefore, income assessed by the learned Tribunal appears to be just and proper. However, on other heads amount awarded by the learned Tribunal appears to be on lower side. In my opinion it will be proper to enhance the compensation by Rs. 25,000/- in each appeal filed by claimants. The enhanced amount shall carry interest @ 8% P.A. from the date of application.

The amount awarded in all the appeals shall be deposited by the Insurance Company with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in MA. Nos. 362/10 & 366/10, in MA. No. 363/10 in the name of appellants equally, in MA. Nos. 364/10, 367/10 & 368/10 in the name of appellant No. 1 and in MA. No. 369/10 in the name of appellant Nos. 1 to 3, in the nearest Nationalized Bank, in the area where they are residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account, which shall be opened by the them from where they can withdraw the amount as per their need. However, on an application by the them this condition could be modified by the learned tribunal in exceptional circumstances, if made out by them.

This order shall be executable upon payment of proportionate Court fees on the enhanced amount The Court fees be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellants'' counsel shall provide certified copy of memo of costs to the counsel for Insurance Company. The Insurance Company thereafter shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of Cost. Failure to comply with the aforesaid direction no interest would be payable on the enhanced amount from the date of order till the Court fees is actually paid and memo of costs is supplied to counsel for Insurance Company. With the aforesaid observations, appeal stands disposed of Copy of the order be placed in the record of connected appeals.