Jasmat and another vs State of M.P.

The appellant-insurance company/original non-claimant No.2 has filed this Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988 against an award dated 2.8.2006 passed by the First Additional Member, M.A.C.T., Hoshangabad in Claim Case no.213/2005, whereby an award for compensation of Rs.2,71,700/- has been passed in favour of present respondents No.2,4 and 5/original claimants, Kosabai, Savita and Sanju respectively and jointly and severally against the appellant-insurance company and respondent No.6/non- claimant No.1 Nanhu Patel alias Brijendra Prasad Gaur and the above mentioned compensation is directed to be paid with interest at the rate of Rs.6 percent per annum, if paid within one month from the date of award, otherwise at the rate of Rs. 9 percent per annum.

Admittedly, on the date of incident i.e. 27.10.2005, tractor bearing registration No.M.P.05M-1940 was registered in the name of original non-claimant No.1 Nanhu Patel alias Brijendra Prasad and it was insured with the appellant/original non-claimant No.2.

Present respondents No.1 to 5, Mukandi, Kosabai, Sukhram, Savita and Sanju as claimants filed a claim under Section 166 of the Motor Vehicles Act on pleadings that on the above mentioned date of incident about 25 years old Vishram was being taken by the original non-claimant No.1 Nanhu Patel alias Brijendra Prasad for labour work by above mentioned tractor, which was being driven by non-claimant No.1 Nanhu alias Brijendra Prasad himself. Due to rash and negligent driving of Nanhu alias Brijendra Prasad, in the way Vishram had fallen on earth from the tractor and was crushed by the wheels of the tractor and trolly and died on the spot. The above mentioned claimants No.1 and 2 are parents, claimant No.3 was brother and claimants No.4 and 5 are daughter and son respectively of deceased Vishram and were dependent on the income of Vishram. Vishram was earning annual income of Rs.60-70 thousand from business of milk and labour work. On a report of relating accident, criminal case was registered against non-claimant No.1 at Police Station concerned. Non- claimant No.1 Nanhu alias Brijendra Prasad as driver and owner of the tractor concerned and the appellant being insurer are jointly and severally liable for payment of compensation to the claimants. Under different heads mentioned in the claim petition, in total, an award of Rs.60,25,000/- was prayed against both the non-claimants.

It was pleaded in the written statement filed by the non- claimant No.1 before the Tribunal that actually on the date of incident i.e. 27.10.2005, above mentioned tractor was not being driven by him and on that day, no any accident had occurred with the tractor and Vishram has not died in any accident caused by above mentioned tractor. In the alternative, it was also pleaded that his tractor was insured with the appellant, thus if any of his liability is found proved, then only insurance company would be liable for payment of compensation.

It was pleaded by the appellant in its written statement filed before the Tribunal that actually alleged man named Vishram had not died in any vehicular accident and Vishram had died due to any other reason, but claimants have filed claim petition on false grounds to obtain compensation from the insurance company. All other pleadings of the claimants were denied. It was pleaded by the appellant that the tractor was insured only for the agricultural purposes and if tractor was being used for any other purpose, then due to contravention of terms of insurance policy, the appellant would not be liable. It was prayed that the claim petition be dismissed.

Learned M.A.C.T. framed issues on pleadings of the parties. Before the Tribunal, claimant No.1 Mukandilal (P.W.1) and eye witness of the accident Ram Singh (P.W.2) were examined and no any witness was examined for the appellant-insurance company and other non-claimant. After hearing, the Tribunal recorded its findings in the impugned award that it was found proved that on mentioned date of accident, the above mentioned tractor was being driven by Nanhu alias Brijendra Prasad rashly and negligently; it was also found proved that due to above reason, accident was caused under which Vishram was immediately died after being crushed by the trolly and on the relevant date, tractor was insured with the appellant; it was not proved that the terms of the insurance policy were violated by the non-claimant No.1 Nanhu alias Brijedra Prasad and from the labour work, deceased???s monthly income was estimated to Rs.1800/- and its one third was assumed as expenses of the deceased on himself and it was not found proved that father Mukandi and brother Sukhram were dependent on the income of the deceased, but it was found proved that only mother, son and daughter of the deceased were dependents on the income of the deceased and in the light of the referred citation looking to the age of 25 years of the deceased, a multiplier of 18 was applied and the total loss of dependency of above mentioned three claimants was calculated as Rs.2,59,200 and under the head of funeral expenses Rs.2500/- were awarded and under the head of loss of love and affection towards daughter and son of the deceased, aged 10 years and 6 years respectively, Rs.10,000/- were awarded. Thus, in total an award of Rs.2,71,700/- was passed in favour of original claimants No.2,4 and 5 and jointly and severally against both of the non- claimants.

Learned counsel for the appellant-insurance company has contended that it has been clearly recorded in the F.I.R. (Ex.P.1) relied on by the claimants themselves that on the date of incident i.e. 27.10.2005, deceased Vishram and other persons were being taken from village Tigaria to drop Vishram and others as labourers and tractor was insured only for the agricultural purposes, but it was being used in contravention of policy terms, thus the learned Tribunal had erred in passing the award against the appellant. Hence, it is prayed that the appellant be exonerated from the liability of payment of compensation.

On the other hand, learned counsel for the original claimants contended that as no any witness was examined by the appellant and other non-claimant, thus it was not proved that at the time of incident, tractor was being used for any purpose other than agricultural purpose and it is prayed that the appellant''s appeal is meritless, which be dismissed.

Much emphasis has been given by the learned counsel for the appellant on the produced and exhibited certificate of insurance (Ex.NA/1). From Ex.NA/1, it is clear that this certificate was relating to a farmers package insurance. Father of the deceased, Mukandilal (P.W.1) deposed that his son Vishram had gone for labour work on the date of incident from tractor of Nanhu, who is resident of village Tigaria. Ram Singh (P.W.2) deposed that he was also sitting on the tractor in side of the driver''s seat on mudguard and other labourers were sitting in the trolly. No any witness was examined by the appellant and tractor owner before the Tribunal. Nothing has come in cross-examination of claimants'' above mentioned witnesses, which could suggest that Vishram or other labourers were travelling as passengers after payment of fare to the tractor-owner.

F.I.R. (Ex.P.1) does not contain any recital which could suggest that Vishram and other labouers were travelling in the trolly attached with the tractor as passengers. On the contrary, in the FIR itself, it is clearly recorded that Vishram and other labourers were being taken by the tractor for labour work. Thus, it is clear that as no any evidence was produced before the Tribunal by the appellant to establish that at the time of the incident, the questioned tractor was being used by the tractor owner-cum-driver in contravention of the policy terms. It is clear that the learned Tribunal has properly and legally appreciated the oral and documentary evidence in light of the referred citation in its award. It is clear that the awarded compensation amount also does not appear to be on higher side. It is clear that the appeal filed by the appellant- insurance company is devoid of any substance.

Consequently, the appeal filed by the appellant-insurance company is dismissed as being meritless. No order as to costs.