Ram Sujan Tiwari vs Sita Gupta and Others

K.S. Chauhan, J.—This appeal has been preferred being aggrieved by the award dated 17.3.2003, passed by the Additional Motor Accidents Claims Tribunal, Umariya in Claim Case No. 7 of 2001, whereby the claim petition filed by the respondent Nos. 1 to 6 u/s 166 of Motor Vehicles Act has been partly allowed directing the appellant and respondent No. 7 to pay the compensation of Rs. 1,99,000 with interest at the rate of 7 per cent to be awarded to the respondent Nos. 1 to 6 for the death of Shrawan Kumar Gupta caused in the motor accident.

The facts of the case in short are that on 7.12.2000 Shrawan Kumar Gupta was travelling in jeep No. MP 18-T 0289 and going to Manpur. This jeep was being driven by respondent No. 7 rashly and negligently met with an accident near village Paljha resulting in the death of Shrawan Kumar Gupta. This vehicle was owned by appellant and insured with respondent No. 8. The report was lodged at the concerned police station wherein the offence was registered. It is averred that Shrawan Kumar Gupta was aged 30 years. He was running cycle shop, doing the agriculture and earning Rs. 4,000 per month. The claimants have suffered a great loss on account of death of Shrawan Kumar Gupta, therefore, they filed the claim petition for compensation of Rs. 10,00,000 with interest to be paid by the respondents for the death of Shrawan Kumar Gupta caused in the motor accident.

The respondent No. 7 filed the written statement controverting the allegations made in the claim petition that he was employed with appellant and he carried the deceased as per his direction.

Appellant also submitted the written statement controverting the allegations of the claim application mainly contending that on 5.12.2000 the vehicle was sent for servicing to Satna and the vehicle was returning therefrom. The driver was having valid and effective driving licence. Therefore, he is not liable to pay compensation.

The respondent No. 8 also submitted the written statement mainly contending that the vehicle was used for carrying the marriage party. The deceased was travelling by paying the fare and the respondent No. 7 was not having any driving licence. Village Paljha does not come in the way of permit route, therefore, the vehicle was being driven in contravention of the terms and conditions of the insurance policy. Therefore, the insurance company is not liable to pay compensation.

The Tribunal found that this accident was the outcome of rash and negligent driving of respondent No. 7 resulting into death of Shrawan Kumar Gupta. It was also held that the vehicle was being driven in contravention of the terms and conditions of the insurance policy, therefore, the insurance company is not liable to pay the compensation. The Tribunal awarded total compensation of Rs. 1,99,000, directed the appellant and respondent No. 7 to pay the compensation to the respondent Nos. 1 to 6 with interest at the rate of 7 per cent per annum.

Being aggrieved by the award the owner of the vehicle has filed this appeal on the grounds mentioned in the memo of appeal filed u/s 173 of Motor Vehicles Act with prayer to set aside the award and to saddle the liability on the insurance company.

We have heard the learned Counsel for the parties.

The learned Counsel for the appellant has submitted that the Tribunal has not properly appreciated the evidence, the Tribunal erred in holding that this accident was the outcome of rash and negligent driving of the offending vehicle by respondent No. 7, the driver was having the driving licence of L.M.V. He can also drive this taxi. This vehicle was insured for taxi purpose and was having a valid permit from Manpur to Umariya. This was not being used for transporting marriage party. No fare was taken from any person travelling in it. The Tribunal has erred in exonerating the insurance company from its liability. The awarded amount is excessive and the award be set aside.

Learned Counsel for the respondent Nos. 1 to 6 has supported the award and submitted that the awarded amount is not excessive hence it does not call for any interference.

Learned Counsel for the respondent No. 8 has submitted that the vehicle was being driven in contravention of terms and conditions of the insurance policy, therefore, the Tribunal has rightly exonerated the insurance company to pay the compensation.

The main point for consideration in this appeal is that whether the Tribunal has awarded excessive amount of compensation and whether the Tribunal committed any illegality in exonerating the insurance company from payment of compensation?

Ramgarib, AW 3, has deposed that on 7.12.2000 he was coming from Satna to Manpur by jeep No. MP 18-T 0289. Shrawan Kumar Gupta was also travelling with him. The driver of this jeep drove this vehicle rashly and negligently and turned turtle near village Paljha. Consequently, Shrawan Kumar Gupta sustained the injury and died on the spot. This jeep was owned by the appellant.

Sita Gupta, AW 1, has also deposed that her husband died in the motor accident. She has filed the documents Exhs. P1 to P3 relating to the F.I.R., map and postmortem report.

Mohanlal Kacher, NAW 3, was the driver of this jeep on the day of accident. He has deposed that the accident has not occurred due to his rash and negligent driving. He was driving the vehicle slowly and carefully. On account of the pit on turning the vehicle turned turtle. He was having a driving licence, Exh. D4. Appellant Ram Sujan Tiwari, NAW 1, has also supported this fact.

The Tribunal has dealt with this aspect in great detail and came to the conclusion that this accident was outcome of rash and negligent driving of the offending vehicle by Mohanlal, respondent No. 7. The finding appears to be reasonable. The reason is that Ramgarib, AW 3, eyewitness has clearly stated in his evidence that the driver of the vehicle drove it rashly and negligently. Consequently, Shrawan Kumar Gupta received the injuries and died on the spot. The case of the claimants is further supported by the contents of F.I.R., Exh. P1, wherein it is mentioned that this jeep was being driven by its driver rashly and negligently. The crime under Sections 279, 304-A, 337, Indian Penal Code, has been registered in concerned police station, Ind-war against the driver Mohanlal and after completing the investigation the charge-sheet has been filed against him before the competent court. Thus the oral evidence given by the claimants is supported by the documentary evidence.

On the other hand, the evidence of driver and owner of the vehicle is not reliable due to the fact that they want to escape from the liability by deposing that the accident occurred due to pit on the turning. If there was any pit then it was the duty of the driver to drive the vehicle cautiously. Thus we affirm the finding of the learned Tribunal that this accident occurred due to rash and negligent driving of offending vehicle resulting into death of Shrawan Kumar Gupta.

Sita Gupta, AW 1, has deposed that her husband was of 30 years of age, was running cycle shop and earning Rs. 4,000 to Rs. 5,000 per month and he was earning Rs. 5,000 to Rs. 6,000 per month from agriculture. Suresh Kumar Gupta, AW 2, has also supported her evidence.

The Tribunal on appreciation of evidence found that no document regarding his cycle shop and agriculture land were produced. The Claims Tribunal found that deceased was doing the cycle repairing work. Thus, the Tribunal had assessed his monthly income of Rs. 1,000 from cycle repairing and Rs. 500 per month from the agriculture. Thus, his monthly income was assessed at Rs. 1,500 from all sources, annually Rs. 18,000. After making 1/3rd deduction the dependency worked out at Rs. 12,000. As 36 years age of deceased was mentioned in the post-mortem report, hence the Tribunal applied the multiplier of 16 and worked out the compensation at Rs. 1,92,000. In addition to it the sum of Rs. 7,000 awarded in the customary heads. Thus total amount of compensation determined at Rs. 1,99,000. This compensation is not exorbitant looking to the death of a young person in the motor accident and sole breadwinner of the family.

So far as the exoneration from the liability of insurance company is concerned, it is stated in the evidence that Vinod Kumar, NAW 2, investigator that he investigated in the matter of driving licence of respondent No. 7, the information was furnished by concerned R.T.O. which is Exh. D2 and the investigation report, Exh. D3. On investigation he found that the respondent No. 7 was having the driving licence of L.M.V. private vehicle but he was driving taxi at the time of accident, therefore, there has been contravention of the terms and conditions of the insurance policy.

Ramgarib, AW 3, has clearly stated that the driver took Rs. 50 as fare from him. Shrawan Kumar Gupta also gave Rs. 100 to the driver Mohanlal. He has further stated that the place of accident is not in between Manpur and Umariya.

The appellant Ram Sujan Tiwari, NAW 1, has stated that his vehicle was not being used as a taxi and fare was not realised from any person. He has admitted that the permit of his vehicle is in between Manpur and Umariya. Driver Mohanlal himself admitted that village Paljha is not in between Manpur and Umariya.

The Tribunal has dealt with this aspect in great detail and found that the vehicle was being used for carrying marriage party and the driver was not having valid and effective driving licence to drive the commercial vehicle. The finding of the Tribunal is based on the proper appreciation of evidence.

Apart from it, it is found that the place of accident is near Paljha village which does not come in the route for which the permit was granted. As it is manifestly clear that the permit was to ply the vehicle in between Manpur and Umariya but the accident has occurred near Paljha village which does not come in that route, therefore, it can very well be said that the vehicle was being driven in contravention of the conditions of permit.

In National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, , it has been held that person without permit to ply vehicle cannot be placed at better pedestal vis-a-vis one who has permit, but has violated condition thereof. Insurer consequently would not be liable to pay compensation. Para 12 of the judgment runs as follows:

(12) High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. High Court was, therefore, not justified in holding the insurer liable.

Since the vehicle was being driven on the route for which the permit was not granted, hence contravened the conditions of permit. In such circumstances, the insurance company cannot be held liable to pay compensation. The Tribunal has rightly exonerated the insurance company from its liability of payment.

On foregoing discussions, we find no merit in this appeal hence deserves to be dismissed.

Consequently, the appeal fails and is dismissed accordingly. No order as to costs.