Indra Pal Pandey vs Harbansh Singh and Others

S.K. Dubey, J.—The two appeals arise out of the award dated 11.9.1995 passed in Claim Case No. 73 of 1990 by Additional Motor Accidents Claims Tribunal, Maihar, District Satna. In M.A. No. 971 of 1995, the claimant is the appellant who seeks enhancement of the compensation awarded by the Tribunal, while M.A. No. 258 of 1996 has been filed by the insurance company for setting aside the award against it.

Facts which are not in dispute: that on 13.11.1982 deceased Butni Bai, wife of claimant Indra Pal Pandey, with her minor children, one of them was deceased Rajjan alias Soordas, a blind child, and her goods, was travelling in truck No. MPA 7941 which was owned by Harbansh Singh, driven by Ramashrya Kol and insured with New India Assurance Co. Ltd., respondent Nos. 1, 2 and 3 respectively in M.A. No. 971 of 1995. When the truck was going on the downhill road, the driver lost its control on the turn, as a result it toppled down. Butni Bai and Soordas died. The appellant filed an application u/s 110-A of the Motor Vehicles Act, 1939 on 25.1.1983 to claim compensation of Rs. 2,45,000 for the death of Butni Bai and Soordas caused in motor accident. The claim was contested by the respondents. The Tribunal after appreciation of evidence held that the accident occurred due to sole negligence of the truck driver. Moreover, as the principle of res ipsa loquitur fully applied in the present case, therefore, awarded compensation of Rs. 25,000 for the death of Soordas while Rs. 25,000 for the death of Butni Bai as the Tribunal observed that the claimant has failed to establish the financial contribution of his wife to the family. The interest was awarded at the rate of 12 per cent per annum from the date of application till realization.

In these appeals, there is no challenge to the finding recorded by learned Tribunal that the accident was caused due to the sole negligence of the truck driver. However, the insurance company has prayed its absolvement from the liability on the ground that the owner and driver were carrying passengers unauthorisedly in breach of the conditions of the policy. Therefore, the insurer could not have been made liable to pay the compensation or to indemnify the insured. Reliance was placed on a decision of this Court in Shanker Prasad v. Malti Devi 1998 ACT 860 (MP).

Learned counsel for the claimant has placed reliance on a decision of this Court in Oriental Insurance Company Ltd. Vs. Smt. Chamarin and Others, , wherein on the facts of the case as proved, it was observed that the owner specifically asked the driver not to carry passengers for hire or reward, in any case, increase of one passenger beyond limit of six excluding driver without knowledge of owner cannot be said to be such a fundamental breach as to absolve the insurer from its liability. Reliance was also placed on two decisions of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) and B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, . Counsel also placed reliance on two decisions of Himachal Pradesh High Court in United India Insurance Co. Ltd. Vs. Sukha Devi and Others, and New India Assurance Co. Ltd. Vs. Lachhmi Devi and Others, .

On compensation, it was submitted that the Tribunal awarded only Rs. 25,000, which is inadequately low. Even if the deceased was a non-earning member, but she was looking after the household of the appellant and also the agriculture. Therefore, the Tribunal ought to have awarded ''just'' and fair compensation.

First we shall take up the contention of Mr. N.S. Ruprah, learned Counsel for the appellant company, about the absolve-ment of the insurance company from its liability. It is not in dispute that the deceased was travelling with her goods, of which the fare was charged by the owner. The Full Bench of this Court as back as in the year 1986, in case of Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), considered the question in view of Section 95 (1) (b), proviso (ii) and Rule 111 of the Motor Vehicles Rules, 1974 and after discussing the case law has observed that an insurance company is liable to cover the risk of a hirer/agent or his employees travelling in a goods vehicle under proviso (ii) of Clause (b) of Section 95 (1) of the Act as a passenger carried for reward or by reason of or in pursuance of a contract of employment. The hirer while paying hire charges for carrying the goods in the vehicle and while he or his employees required to travel with the goods for its safety in the vehicle, will be deemed to have been carried in the vehicle for reward while his employee was carried in the vehicle in pursuance of his employment. So the hirer and his employee both have to be covered under the insurance policy and the insurer is bound to pay compensation for the death or bodily injury when the vehicle met with the accident. Following the decision of the Full Bench, in the similar situation as in the present case, this Court in case of Oriental Insurance Company Ltd. Vs. Smt. Chamarin and Others, , has taken the same view. Same is the view of this Court after following the decision of the Supreme Court in B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, and decisions of this Court in Harishankar Tiwari''s case 1987 ACJ 1 (MP); New India Assurance Co. Ltd. v. Kusum Damodarrao Kole, M.A. No. 442 of 1992, decided on 14.8.96; and New India Assurance Co. Ltd. v. Mangali Bai, M.A. No. 383 of 1987, decided on 17.9.1996.

Therefore, we are of the view that the insurer cannot escape its liability. The decision of this Court in case of Shanker Prasad Vs. Smt. Maltidevi and Others, , relied on by the learned Counsel for the appellant is distinguishable on facts as in that case the Tribunal recorded a finding that the deceased after hiring the truck not only was travelling in the truck along with the cloth bundles, but, the owner arranged the driver to drive the truck and permitted 12 persons to travel in the truck along with their goods, from whom he charged the fare separately per passenger, besides the fare for carrying goods. Therefore, the court observed that it was not a case of lifting one or two persons and that the claim related to the person who died in accident and. the vehicle was being used for the purpose other than for the purpose it was adapted for its use and such passengers were carried in breach of the term of the policy, ''a fundamental breach'' as the passengers could not have been lawfully carried or permitted to travel in the goods vehicle and for committing the breach the insured was guilty. Therefore, we are of the opinion that the appeal of the insurance company is devoid of any merit and has to be dismissed.

Coming to the appeal of the claimant for enhancement of compensation: so far as award of compensation of Rs. 25,000 for the death of deceased Soordas, it does not call for any interference. However, in case of death of wife of the appellant, true the appellant has not established the dependency or financial contribution to the family of the deceased, but, as it has come in evidence that the deceased was looking after the house of the appellant and also helping in agriculture, we are of the view that the compensation ought to have been awarded fixing some notional earning of the deceased. As this accident occurred in the year 1982, even if the notional earning of the deceased is taken into consideration as that of an unskilled labourer, that would be about Rs. 600 per month, from that ''/3rd is deducted towards personal living expenses of the deceased, the dependency or financial contribution to the family would come to Rs. 400 per month, yearly Rs. 4,800. The deceased was aged 28 years, therefore, the appropriate multiplier of 16 is applied, the amount would work out to Rs. 76,800, in this an amount of Rs. 5,000 is added towards loss of consortium and Rs. 5,000 for loss to the estate and Rs. 1,000 for funeral expenses, the total would come to Rs. 87,800 which the appellant/claimant would be entitled with interest thereon at the rate of 12 per cent per annum from the owner, driver and insurer of the truck jointly or severally.

At this stage, Mr. Ruprah, learned Counsel for the respondent company has submitted that the claim remained pending since 1983 till the passing of the award on 11.9.1995 and the appeal of 1995 filed in this Court has come up for hearing in the year 1998, therefore, the interest be not awarded for the total period spent in litigation. Reliance was placed on a decision of this Court in The Oriental Fire and General Insurance Co. Ltd. Vs. Ram Singh and Others, .

Considering the circumstances and the fact that the period spent in litigation is quite long, we are of the view that it would be appropriate to award interest for a total period of 8 years. As the insurance company''s liability was to the extent of Rs. 1,50,000, therefore, we direct the insurance company to deposit the amount of compensation and interest as awarded by us less the amount already deposited by it within a period of two months from the date of supply of certified copy. On deposit the amount shall be disbursed to the appellant/claimant keeping in mind the well settled guidelines laid down by the Supreme Court for disbursement.

In the result, M.A. No. 971 of 1995 is allowed, while M.A. No. 258 of 1996 is dismissed. The award of the Tribunal shall stand substituted as indicated hereinabove. The appellant/claimant will get the costs of these appeals. Counsel''s fee Rs. 750, if pre-certified.

C.C. as per rules.