Onkari and Others vs Akbar Hussain and Others

M.C. Sharma, J.—Since all these misc. appeals relate to the common award dated 9.8.1996 passed in Claim Petition Nos. 225, 232, 233, 234, 235, 251, 257 of 1990 and 3 of 1991 by the Judge, Motor Accidents Claims Tribunal, Tonk, (in short ''the M.A.C.T.''), they are being disposed of by this common judgment. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary.

The facts in brief are that on 20.9.1990 at about 8 a.m. jeep No. RRR 4211 was going to Bhilwara and when it reached Mendwas it dashed against truck No. RSR 2577. This accident occurred due to rash and negligent driving of jeep with excessive speed by its driver, i.e., Akbar Hussain, who is respondent No. 1 and due to sudden stopping of the truck in a rash and negligent manner by its driver, respondent No. 6. In the accident Dilip Bhargava, Moti, Samunder Singh, Jethanand, Prem Chand, Kamla and Noor Mohammed died and Shahjade Miyan sustained serious injuries. Shahjade Miyan and the legal representatives of Moti, Samunder Singh, Jethanand, Prem Chand, Kamla and Noor Mohammed filed separate claim petitions, which were consolidated and the same were decided by the common award dated 9.8.1996 of the M.A.C.T.

In the claim petitions filed by the claimants, the respondent Nos. 1 and 2 filed written statement. It was stated that the accident took place on account of rash and negligent driving of the truck driver and the owner and driver and insurance company of the truck were liable for compensation. United India Insurance Co. Ltd., respondent No. 3, in its written statement stated that the jeep was insured with them as a private vehicle and only 6 persons were to travel in the vehicle whereas it was used for carrying 10 passengers and it was stated that it was only liable to pay compensation in the amount of Rs. 1,50,000 and since it was a case of breach of policy hence no liability can be fastened on the insurance company.

The respondent Nos. 4 and 5 in their written statement stated that at the time of accident the truck was going from Delhi to Tonk for village Dhua Kalian and when it reached near Mendwas, about half kilometre the truck driver after parking it went for urination and the jeep came from behind the truck and hit it on account of which accident occurred. Since the truck was stationary, hence no liability can be fastened on the insurance company and the owner and driver of the truck.

The respondent No. 6 who was driver of the truck stated that it was due to rash and negligent driving of the driver of the jeep on account of which the accident took place and respondent Nos. 4 and 5 are not responsible for payment of compensation. It was also stated that even if on account of any mistake of the truck, they are only responsible for contributory negligence. The M.A.C.T. framed five issues.

The parties produced evidence. After considering the claim petitions, written statements and the evidence produced by the parties, the M.A.C.T. allowed the claim petitions and directed Oriental Insurance Co. Ltd., owner of the jeep and driver, to pay the compensation in the ratio 75 per cent and 25 per cent for the contributory negligence to the claimants. United India Insurance Co. Ltd. was absolved from its liability to pay compensation on account of breach of policy by the driver and owner of the jeep. Against the common award dated 9.8.1996, Oriental Insurance Co. Ltd. filed Appeal Nos. 133, 241 to 246 of 1997. The legal representatives of the deceased who died in the accident filed Appeal Nos. 39,46, 62, 120, 121, 122 and 540 of 1997 for enhancement of the compensation. It may be mentioned that Oriental Insurance Co. Ltd. has not filed any appeal against the award dated 9.8.1996 passed in the Claim Case No. 3 of 1991. Similarly, in Claim Case No. 251 of 1990, the claimants have not filed any appeal for enhancement of the compensation. It may also be mentioned that on account of breach of policy the insurance company of the jeep, i.e., United India Insurance Co. Ltd., has been absolved from its liability. Claimants filed common written arguments in support of their appeals. Oriental Insurance Co. Ltd. also filed written arguments in support of its appeals for quashing the common award granting compensation to the claimants.

Learned counsel for the claimants-appellants has contended that the appeals filed by Oriental Insurance Co. Ltd. are not maintainable as the insurance company has not taken any defence as provided u/s 170 of Motor Vehicles Act in the absence of which the insurance company is not entitled to raise the defence other than provided in section 149 (2) of Motor Vehicles Act, It is argued that in the absence of an application by the insurance company u/s 170 of the Motor Vehicles Act, 1988 and permission for the same, the insurance company cannot raise the point of quantum and negligence. This point has been decided by the Apex Court in various judgments as well as by this court and other High Courts. Some of the judgments are--

(i) British India Genl. Ins. Co. Ltd. v. Capt. Itbar Singh, 1958-65 ACJ 1 (SC).

(ii) Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, .

(iii) Narendra Kumar and Another Vs. Yarenissa and Others, .

(iv) National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, .

Learned counsel for the claimants-appellants also placed reliance on A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, ; T.O. Anthony Vs. Karvarnan and Others, ; National Insurance Company Vs. Kastoori Devi and Others and Shanti Devi and Others, ; and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Learned counsel for the claimants-appellants has further submitted that Oriental Insurance Co. Ltd. has challenged the finding regarding negligence on the ground that the driver of the jeep was not examined. This submission by the insurance company is incorrect. In fact Akbar Hussain driver was examined as witness. Insurance company has also raised a point that the witnesses had not said anything about the negligence of the truck driver. This contention is also incorrect. In fact three eyewitnesses, i.e., Shahjade Miyan, Krishna Gopal and Sua Lal have categorically stated in their statements that the truck No. RSR 2577 was going ahead of the jeep No. RRR 4211. The truck driver stopped the truck suddenly in the middle of the road without any indication because of which the jeep dashed against it. It was a case of negligence on the part of both the drivers. The M.A.C.T. in view of the judgments in DNJ (Raj) 1994 page 619 and Sohan Lal and Another Vs. Bal Swaroop Bal Bhatnagar and Others , has arrived at a conclusion that there was 75 per cent negligence for the truck driver and 25 per cent negligence was of the jeep driver. In regard to point raised by the insurance company that there was no pleadings with regard to the negligence of the truck driver in the claim petition, the learned counsel argued that in the claim petition only brief facts of the case are written and it is not necessary that specific pleadings with regard to negligence must be mentioned as strict rules of pleadings and evidence are not applicable in the cases of motor accident claims. This view has been taken by the Apex Court in the judgment of Minu B. Mehta v. Balkrishna Ramachandra Nayan, 1977 ACJ 118 . So far as F.I.R. and charge-sheet against the jeep driver is concerned, it is settled law that the conclusion of the investigating officer or finding by the criminal court is not binding on the proceedings before the Claims Tribunal. The Claims Tribunal has to decide the cases as per the evidence led before it. In regard to liability of the insurance company of the jeep the learned counsel placed reliance on Abdul Jabbar v. Kesar & Sons, 1998 (1) TAC 187. It was argued that the insurance company should not have been exonerated from the liability of paying compensation to the claimants. Insurance company of the jeep is statutorily liable to pay compensation to the claimants and in case of breach of policy condition it can recover that amount from the owner of the jeep. In support of this argument learned counsel placed reliance on the following rulings:

(i) New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., ;

(ii) United India Insurance Company Ltd. Vs. Lehru and Others, ;

(iii) The New India Assurance Company Ltd. Vs. Smt. Bhanwari Devi and Others, ;

(iv) Sohan Lal Passi Vs. P. Sesh Reddy and others, .

In regard to composite negligence the learned counsel has placed reliance on National Insurance Co. Ltd. v. Kastoori Devi, 1988 ACJ 8 (Raj); Sampat Kunwar Bai and Another Vs. Gurmeet Singh and Another, and WLC 1992 (2) 344 (Raj).

The learned counsel for appellant Oriental Insurance Co. Ltd., Mr. Risipal Agarwal, has contended that while deciding the issue relating to negligence the M.A.C.T. placed reliance on the testimony of Shahjade Miyan, who has stated that the truck driver also suddenly applied the brakes and as such both the drivers were negligent. This piece of evidence of Shahjade Miyan is beyond his pleading since he has nowhere stated in his claim petition that the driver of the truck suddenly applied the brakes and rather in the claim petition he has pleaded that the accident occurred due to sole negligence of the jeep driver. Thus the evidence adduced beyond the pleadings cannot be taken into consideration particularly when Sujan Singh, I.O., who has filed the charge-sheet has been examined by the claimants themselves as AW 2 in Claim Case No. 232 of 1990 and who has categorically stated on oath that there was no negligence of the truck driver.

The learned counsel has further contended that M.A.C.T. observed that the F.I.R. by the driver of jeep was not registered by the police. In this respect the learned counsel has contended that F.I.R. was lodged at 8.20 a.m. at PS Mendwas, i.e., within 20 minutes of the incident and as such the genuineness of contents of the F.I.R. cannot be questioned particularly when the I.O. has come in the witness-box.

The defence of the owner of the jeep to the effect that the truck was in motion and the driver of the truck suddenly applied the brakes is a cooked up story since in the F.I.R. itself it has come that at the time of accident the truck was standing on the roadside and it was not in motion. Alternatively the learned counsel has contended that if the Hon''ble court comes to the conclusion that the truck driver was also negligent to some extent then he cannot be held liable to the extent of 75 per cent since the evidence adduced on record shows that the driver of the jeep was more negligent since the vehicle was overloaded. Learned counsel placing reliance upon New India Assurance Co. and Others Vs. Kheta Ram and Others, , has contended that in case of composite negligence there is no method to bifurcate or apportion the liability. The amount awarded must have been apportioned between both the tortfeasors to the extent of their respective negligence.

The learned counsel for the appellant Oriental Insurance Co. Ltd. further placed reliance on State of Karnataka Vs. Satish, ; Oriental Insurance Co. Ltd. v. Premlata Shukla, 2007 ACJ 1928 (SC); Raj Rani and Others Vs. Oriental Insurance Co. Ltd. and Others, ; Vijay Kumar Kulhar v. Rajasthan State Road Trans. Corpn., 2009 AIR SCW 5425; and Renukadevi H. Etc. Vs. Bangalore Metropolitan Transport Corporation Etc., .

Mr. Anant Bhandari, learned counsel appearing for United India Insurance Co. Ltd., has contended that the learned M.A.C.T. considered each and every thing while holding the truck driver negligent and rightly fixed the liability 75 per cent and further contended that on account of breach of policy the insurance company was rightly absolved from its liability. He placed reliance on United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and Others, ; The Oriental Insurance Company Limited Vs. Meena Variyal and Others, ; Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and Others, ; and National Insurance Co. Ltd. Vs. Kusum Rai and Others, .

I have heard the learned counsel for the parties and considered the rival contentions and the award passed by M.A.C.T. and material on record.

Before proceeding further it would be necessary to have a look at the rulings cited by the learned counsel for the parties.

In A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, , the Apex Court held that where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. The Apex Court fixed proportion 1:4.

In National Insurance Company Vs. Kastoori Devi and Others and Shanti Devi and Others, , the Division Bench of this court held that there is no method or indicia to bifurcate or apportion the liability, both are liable jointly and severally.

In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the Apex Court held that deduction for personal and living expenses of the deceased should be made from his income to arrive at the contribution to the dependants and further held that different multiplier can be affixed for each age-group to avoid any inconsistency.

In State of Karnataka Vs. Satish, , the Apex Court held in a matter related to sections 337, 338 and 304-A, Indian Penal Code that in absence of any material on record presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur and it was held that high speed does not bespeak of either negligence or rashness by itself.

In Oriental Insurance Co. Ltd. v. Premlata Shukla, 2007 ACJ 1928 (SC), the Apex Court held that proof of rashness and negligence on the part of driver being sine qua non for maintaining an application u/s 166 of the Motor Vehicles Act. The Apex Court set aside the judgment of the High Court granting compensation holding that F.I.R. having been not legally proved, driver of Tempo Trax was guilty of rash and negligent driving.

In Raj Rani and Others Vs. Oriental Insurance Co. Ltd. and Others, , the truck parked in the middle of the road without parking lights on and car driver driving at normal speed of 40 kmph, owing to lights of another vehicle coming from opposite direction, sighted the truck only at the last minute and could not avoid the accident resulting in his death. Uttarakhand High Court held that both drivers of the vehicles were equally negligent. The Apex Court in the case upheld the findings of the High Court.

In Vijay Kumar Kulhar v. Rajasthan State Road Trans. Corpn., 2009 AIR SCW 5425, the left side of truck collided with right side of bus. Conductor and driver of the bus deposed in one voice that bus was going in a moderate speed. Truck came in a high speed and dashed violently to rear side of bus, as a result of which bus dashed against bridge and broke the wall and was lying in a hanging position. The inspection reports of both vehicles made out clear case that truck was driven by appellant in a rash and negligent manner and came from behind and while attempting to overtake the bus dashed against it causing damage. The Supreme Court held (sic) liable to the appellant Vijay Kumar Kulhar to pay the amount of compensation.

In Renukadevi H. Etc. Vs. Bangalore Metropolitan Transport Corporation Etc., , bus came at fast speed and hit a scooter from behind, scooter was trapped under wheel of bus and rider of scooter sustained serious injuries. High Court observed that spot mahazar clearly indicated that scooter hit rear wheel of bus indicating that injured was also negligent to a great extent and held that both the bus driver and scooter rider were equally negligent. The Apex Court held the finding of the High Court not perverse or arbitrary in nature and thus upheld.

In United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and Others, , the Supreme Court regarding risk of death or injury to gratuitous passenger carried in a private vehicle, if covered held that an insurance policy u/s 147 does not cover such a risk.

In The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the Apex Court held that section 149 (1) of the Motor Vehicles Act cannot be used to enlarge the liability if it does not exist in terms of section 147 of the Act.

In Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and Others, , the Apex Court held that the insurer is not liable to pay compensation in respect of a pillion rider in terms of the statutory cover mandated by section 147 when the accident has taken place owing to rash and negligent driving of the motor vehicle carrying the pillion rider concerned. Such a pillion rider is not to be treated as a third party u/s 147. Such a pillion rider would be covered only in case additional cover is purchased under the contract of insurance. Legal obligation arising u/s 147 cannot be extended to an injury or death of the owner of the vehicle or a pillion rider travelling thereon.

In National Insurance Co. Ltd. Vs. Kusum Rai and Others, , the Apex Court held that the commercial vehicle driven by a person not possessing appropriate licence therefore meeting with an accident resulting in death of a minor girl, the insurer could rightly set up the defence of breach of condition of the insurance contract. The Apex Court refused to interfere with the judgment of the High Court although it was erroneous.

Now I may consider the findings arrived at by the M.A.C.T. and the arguments of both the parties on the basis of the rulings cited by the counsel for the parties, against which the claimants and the insurance company have filed the present appeals.

The issues framed by the M.A.C.T., reads as under: (Omitted as in vernacular)

The M.A.C.T. in relation to issue No. 1 in the findings recorded by it held as under: (Omitted as in vernacular)

For coming to this finding, M.A.C.T. had considered the statements of Shahjade Miyan, Krishna Gopal and Sua Lal who were the eyewitnesses to the accident. I have gone through the statements of these witnesses. These witnesses were also travelling in the jeep and they stated that they paid the fare for travelling in the jeep and the accident took place on account of brakes applied by the truck driver and the jeep driver also applied brakes and it hit the back side of the truck. The M.A.C.T. also considered the witnesses produced by the other parties and came to the conclusion that even if the truck was standing then also the truck and the jeep both were liable for the compensation. This finding of the M.A.C.T. cannot be said to be unjust. The finding of the M.A.C.T. that in view of the judgment in 1994 DLJ (Raj) 619, the truck standing on the metal road without any backlight and if it is hit by jeep from the back side, both the truck and the jeep were liable for contributory negligence in the ratio of 75:25. This finding of the M.A.C.T, cannot be said to be unjust.

The M.A.C.T. while coming to this finding also observed as under: (Omitted as in vernacular)

This finding of M.A.C.T. cannot be said to be unjust and in my opinion the issue No. 1 was rightly decided in favour of claimants and against the non-claimants. The arguments raised by Oriental Insurance Co. Ltd. in this respect are, therefore, rejected.

Now I may come to the findings on issue No. 2 given by the M.A.C.T. in the claim petitions.

S.B.C.M.A. No. 133 of 1997 and

S.B.C.M.A. No. 46 of 1997:

S.B.C.M.A. No. 46 of 1997 has been filed by the claimants for the death of Dr. Dilip Bhargava and the M.A.C.T. awarded compensation in the amount of Rs. 4,62,840 for the death of Dr. Dilip Bhargava. The M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 14 and on this basis awarded compensation. The M.A.C.T. on the basis of salary slip held that the deceased was earning Rs. 3,132 and looking to his prospects and as his wife, father and mother were earning fixed Rs. 1,000 and in this manner after deducting 1/3rd, the multiplier of 14 was used and in this manner a sum of Rs. 4,62,840 was awarded and for loss of love and affection Rs. 15,000 was awarded and for love and affection of children Rs. 2,000 each was awarded and total amount of Rs. 4,81,840 was granted by the M.A.C.T. I have gone through the calculation based on the judgment of Apex Court in Susamma Thomas and I do not find any infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by the counsel for the insurance company for quashing the common award. In my opinion, the appeal filed by the insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 540 of 1997 and

S.B.C.M.A. No. 243 of 1997:

S.B.C.M.A. No. 540 of 1997 has been filed by the claimants for the death of Samunder Singh. Insurance company filed appeal No. 243 of 1997 for quashing of the award. The M.A.C.T. awarded compensation in the sum of Rs. 2,33,944 for the death of Samunder Singh. M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 14 and on this basis awarded compensation. The M.A.C.T. on the basis that the deceased was labourer and was earning Rs. 2,500 per month and at the time of accident he was 36 years of age, applied multiplier of 14. On the basis of earnings the M.A.C.T. determined the monthly income as Rs. 2,000 out of which 1/3rd was deducted for his expenditure and the rest of the amount multiplied by 14 comes to Rs. 2,33,944, and for loss of love and affection Rs. 15,000 was awarded and for love and affection of children Rs. 2,000 was awarded; in this manner total amount of Rs. 2,46,944 was awarded by the M.A.C.T. I have gone through the calculation based on the judgment of the Supreme Court in Susamma Thomas (supra) and I do not find infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by the counsel for the insurance company for quashing the common award. In my opinion the appeal filed by the insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 122 of 1997 and

S.B.C.M.A. No. 241 of 1997:

S.B.C.M.A. No. 122 of 1997 has been filed by the claimants for the death of Kamla. The insurance company filed appeal No. 241 of 1997 for quashing of the award. The M.A.C.T. awarded compensation in the amount of Rs. 92,327 for the death of Kamla. The M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 12 and on this basis awarded compensation. The M.A.C.T. on the basis that deceased was doing tailoring work determined that she must have been earning Rs. 1,000 per month. Deceased was 35 years of age at the time of accident. On the basis of earning the M.A.C.T. determined the monthly income as Rs. 1,000 out of which 1/3rd was deducted for her expenditure and further 1/7th was deducted on account of death of her husband and on rest of the amount multiplied by 12 and for love and affection of children Rs. 2,000 each was awarded; in this manner total amount of Rs. 92,327 was awarded by the M.A.C.T. I have gone through the calculation based on the judgment of Apex Court in Susamma Thomas and I do not find any infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by learned counsel for the insurance company for quashing the common award. In my opinion, the appeal filed by the insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 121 of 1997 and

S.B.C.M.A. No. 244 of 1997:

S.B.C.M.A. No. 121 of 1997 has been filed by the claimants for the death of Prem Chand. The insurance company filed appeal No. 244 of 1997 for quashing of the award. The M.A.C.T. awarded compensation in the amount of Rs. 4,47,308 for the death of Prem Chand. The M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 12 and on this basis awarded compensation. The M.A.C.T. on the basis that the deceased was librarian in Education Department determined that he was earning Rs. 2,814 per month. The deceased was 40 years of age at the time of accident. For future loss his income was further assessed at Rs. 2,500, out of which 1/3rd was deducted for his expenditure and it was determined to be Rs. 3,543. Multiplier of 12 was applied and compensation of Rs. 5,10,192 was determined. Since his wife also died, further 1/7th was deducted and the total amount was determined to be Rs. 4,37,308 and for love and affection of children Rs. 2,000 each was awarded; in this manner total amount of Rs. 4,47,308 was awarded by the M.A.C.T. I have gone through the calculation based on the judgment of Apex Court in Susamma Thomas and I do not find any infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by the counsel for the insurance company for quashing the common award. In my opinion the appeal filed by insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 39 of 1997 and

S.B.C.M.A. No. 245 of 1997:

S.B.C.M.A. No. 39 of 1997 has been filed by the claimants for the death of Moti. Insurance company filed appeal No. 245 of 1997 for quashing of the award. The M.A.C.T. awarded compensation in the amount of Rs. 1,78,960 for the death of Moti. The M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 10 and on this basis awarded compensation. The M.A.C.T. determined monthly income on the basis that the deceased was agriculturist and was earning Rs. 2,000 per month. The deceased was 47 years of age at the time of accident, out of which 1/3rd was deducted towards his self expenditure and after applying multiplier of 10 and for love and affection Rs. 15,000 was determined and for love and affection of children Rs. 2,000 each was awarded; in this manner total amount of Rs. 1,78,960 was awarded by the M.A.C.T. I have gone through the calculation based on the judgment of Apex Court in Susamma Thomas and I do not find any infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by the counsel for the insurance company for quashing the common award. In my opinion the appeal filed by insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 120 of 1997 and

S.B.C.M.A. No. 242 of 1997:

S.B.C.M.A. No. 120 of 1997 has been filed by the claimants for the death of Jethanand. The insurance company filed appeal No. 242 of 1997 for quashing of the award. The M.A.C.T. awarded compensation in the amount of Rs. 2,62,940 for the death of Jethanand. The M.A.C.T. as per the judgments of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , applied multiplier of 15 and on this basis awarded compensation. The M.A.C.T. on the basis that the deceased was doing grocery work determined that he must be earning Rs. 2,000 per month. The deceased was 30 years at the time of accident. Out of this amount 1/3rd was deducted for his self expenditure and after applying multiplier of 15 and for love and affection Rs. 15,000 was determined and for love and affection of children Rs. 2,000 each was awarded; in this manner total amount of Rs. 2,62,940 was awarded by the M.A.C.T. I have gone through the calculation based on the judgment of Apex Court in Susamma Thomas and I do not find any infirmity in the same and in this manner the appeal filed by the claimants deserves to be rejected. On the other hand, the appeal filed by the insurance company is also devoid of merit and the same also deserves to be rejected.

S.B.C.M.A. No. 246 of 1997:

The insurance company filed appeal No. 246 of 1997 for quashing of the award passed by M.A.C.T. for the death of Noor Mohammed. M.A.C.T. awarded compensation in the amount of Rs. 1,80,000 for the death of Noor Mohammed. It was stated by the claimants before the M.A.C.T. that the deceased was earning Rs. 2,000 and he was aged about 26 years. The claimants could not produce the income proof and hence the M.A.C.T. determined his income to be Rs. 1,500 per month and applied the multiplier of 15 after deducting 1/3rd expenditure to be incurred by the deceased on himself and in this manner the M.A.C.T. awarded a one-time compensation in the amount of Rs. 1,80,000. This amount cannot be said to be excessive. The claimants have not filed any appeal for enhancing the amount. I have also gone through the arguments raised by Oriental Insurance Co. Ltd. and the rulings cited by the counsel for the insurance company for quashing the common award. In my opinion the appeal filed by the insurance company is devoid of merit and the same deserves to be rejected.

S.B.C.M.A. No. 62 of 1997:

The claimant Shahjade Miyan filed appeal No 62 of 1997 for enhancing the compensation granted by the M.A.C.T. The M.A.C.T. passed award of Rs. 7,000 for the three injuries received by Shahjade Miyan. I have looked into the injury report. No disability certificate was produced on account of which any amount is to be enhanced. Oriental Insurance Co. Ltd. has also not filed any appeal against the grant of Rs. 7,000 to him. The award of Rs. 7,000 looking to his injuries cannot be said to be unjust. The appeal filed by him deserves to be rejected.

It is true that the passengers travelling in the jeep paid the fare. The owner of the jeep only paid Rs. 180 as premium. Thus it is clear that he has not paid any amount in relation to the passengers who travelled in his jeep. On the basis of the judgments of the Apex Court quoted above. United India Insurance Co. Ltd. was absolved from its liability. The M.A.C.T. also held that the insurer of the truck was liable for payment of 75 per cent compensation and the driver and owner of the jeep were made liable to the compensation up to 25 per cent. This finding of the M.A.C.T. cannot be said to be unjust and improper on the basis of the judgments of the Apex Court mentioned above particularly the judgment of the Supreme Court in A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, , fixed proportion 1:4 for composite negligence.

The other issues decided by the M.A.C.T. were not seriously opposed by the counsel for the claimants and insurance company. United India Insurance Co. Ltd. has already stated in its written statement that the owner of the jeep violated the condition of the insurance policy and hence it is rightly absolved from its liability to pay compensation. For the reasons and the findings mentioned above, Misc. Appeal Nos. 39, 46, 62, 120, 121, 122 and 540 of 1997 filed by the claimants and appeal Nos. 133, 241, 242, 243, 244, 245 and 246 of 1997 filed by Oriental Insurance Co. Ltd. fail and are hereby rejected. The common award passed by the M.A.C.T. in all the claim petitions stands confirmed. The stay applications also stand rejected. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.