Mannu Bhil and Others vs The New India Insurance Co. Ltd. and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the award dated 26/06/07 passed by Additional MACT, Jhabua in Claim Case No.351/05, whereby claim petition filed by appellants was allowed and compensation of Rs.1,39,500/-was awarded on account of death of Dita and respondent No.1 was exonerated, present appeal has been filed. Short facts of the case are that the appellants filed a claim petition alleging that on 06/02/04 deceased Dita was travelling in a truck bearing registration No.GJ/05-V/9401 as labourer. It was alleged that the said truck was loaded with wires. It was alleged that because of rash and negligent driving of respondent No.2 the offending truck which was owned by respondent No.3 and insured with respondent No.1 met with an accident, with the result Dita sustained grievous injuries and passed away on 10/02/04. It was prayed that the claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No.1 on various grounds including on the ground that the deceased was not engaged labourer on the said truck and was also not going in the said truck for the safety of goods. It was prayed that the claim petition be dismissed so far as it relates to respondent No.1. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded compensation of Rs.1,39,500/-and exonerated respondent No.1, against which present appeal has been filed.

Learned counsel for the appellants argued at length and submits that the impugned award passed by the learned Tribunal is illegal and deserves to be set aside. It is submitted that the learned Tribunal awarded a sum of Rs.1,39,500/-, breakup of which is as under:-

Rs.1,30,000/-

Towards loss of dependency.

Rs.9,500/-

Towards other heads.

It is submitted that the learned Tribunal assessed the income of the deceased on notional basis and after deducting 1/3rd towards personal expenses applied the multiplier of 13 for assessing the amount of loss of dependency. It is submitted that the income of the deceased assessed by the learned Tribunal is on lower side and the deduction of 1/3rd is on higher side. It is submitted that on other heads also amount awarded is on lower side. So far as liability of respondent No.3 is concerned, it is submitted that since the deceased was travelling in the offending vehicle for safety of goods, therefore, learned Tribunal committed error in exonerating respondent No.3. It is submitted that appellants examined Pangla S/o Punia co-passenger, who has stated that the truck was fully loaded with wires of reliance telecom and he was travelling alongwith Dita for unloading the truck. It is submitted that the aforesaid witness was not cross-examined by the respondent No.1 on this issue. It is submitted that in the facts and circumstances of the case appeal filed by the appellants be allowed and amount of compensation be enhanced and findings of learned Tribunal whereby respondent No.1 has been exonerated be set aside.

Learned counsel for respondent No.1 submits that the amount awarded by the learned Tribunal is just and proper. It is submitted that the findings recorded by the learned Tribunal regarding liability is also based on due appreciation of evidence, which requires no interference. It is submitted that the appeal filed by the appellants be dismissed.

From perusal of the record it is evident that since the accident is of the year 2004, therefore, income of the deceased assessed by the learned Tribunal on notional basis appears to be on lower side which ought to have been Rs.2,000/-per month. Similarly appellants are 9 in numbers who were dependent on the deceased, therefore, deduction ought to have been 1/5th. On other heads also amount awarded appears to be on lower side. Hence, a case of enhancement is made out. Appellants are entitled for the following amount:-

Rs.2,50,000/-

Towards loss of dependency

Rs.5000/-

Towards funeral expenses

Rs.5,000/-

Towards loss of consortium.

Rs.5,000/-

Towards loss of estate.

Rs.35,000/-

Towards loss of love and affection.

Rs.3,00,000/-

Total

Thus the appellants shall be entitled for total sum of Rs.3,00,000/-instead of Rs.1,39,500/-. The enhanced amount of Rs.1,60,500/-shall carry interest @ 8% P.A. from the date of application.

So far as liability is concerned appellants have examined Pangla S/o Punia, who in his examination-in-chief has stated that on 06/02/04 he was going as labourer alongwith deceased Dita for unloading the wires of reliance telecom at Mandavi in the State of Gujrat. He was cross-examined by respondent No.1 and in cross-examination he has stated that the wires were loaded from Kaladevi. He has further stated that deceased Dita was working as labourer. No cross-examination was made on behalf of respondent No.1 to the effect that Dita was travelling as passenger in the goods vehicle and was not a labourer travelling for safety of goods. Respondent No.1 has examined Mr. P. Akka (Branch Manager), who has stated that deceased was travelling as gratuitous passenger. In his cross-examination he has admitted that in case of accident investigation takes place on behalf of company. He has also stated that he did not receive any report from the Investigator. He has not specifically denied that no investigator was appointed in the present case. Investigator was not examined by respondent No.1. Similarly investigation report is not placed on record for the best reasons known to respondent No.1. In para-6 of his cross-examination he has further admitted that in the policy premium was also taken for 7 labourers.

It is true that in the matter of Nilesh Kumar Vs. Bapulal and Others, wherein several passengers were travelling in a goods vehicle died when it met with an accident, this Court after examining Rule 97 of M.P. Motor Vehicles Rules and Section 2(13) of Motor Vehicles Act, held that since the vehicle was not engaged for transportation of goods from one destination to another, therefore, tribunal was justified iin exonerating insurance company from liability. But in the present case premium was charged for the labourers. Investigation report was not filed. Investigator was not examined and also no witness was examined from reliance telecom, whose wires were being transported as per allegation of the claimants, who could have cleared the entire picture relating to status of deceased in the offending truck.

In the facts and circumstances of the case, this Court is of the view that the learned Tribunal was not justified in exonerating respondent No.1 from payment of compensation. In view of this, appeal filed by the appellant is allowed and the amount is enhanced as stated above and findings regarding exoneration of respondent No.1 stands quashed. The amount awarded 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 No.1 in the nearest Nationalized Bank, in the area where the appellant No.1 is 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 of appellant No.1, which shall be opened by the appellant No.1 from where appellant No.1 can withdraw the amount as per her needs. However, on an application by the appellant No.1 this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant No.1. With the aforesaid observations, appeal stands disposed of.