Smt. Mangobai & Ors. vs Lal Singh & Ors

This Misc. Appeal has been filed under Section 173 of the Motor Vehicles Act, 1998 (for brevity ‘the Act’) for the enhancement of

compensation and for extending the liability of payment of compensation on all the respondents (Non Applicants) against the award dated 17.08.1998

passed by Ist Additional Motor Accident Claims Tribunal, Sagar in Claim Case No.145/1996 whereby learned Tribunal awarded compensation to the

tune of Rs.2,79,573/only against the owner of the offending jeep bearing registration No.MP-09-S1084 and exonerated respondent No.1 and No.2

driver and owner of the tractor bearing registration No.MP-20-H-4658 and respondent No.4 the Insurance Company of tractor and offending jeep.

It is undisputed fact that respondent No.1 was the driver and respondent No.2 was owner of the tractor bearing registration No.MP-20-H-4658 and

at the time of accident tractor was insured with respondent No.4 Insurance Company and it is also admitted that respondent No.3 was owner of the

jeep bearing registration No.MP-09-S-1084 in question and said jeep was insured with respondent No.4-Insurance Company.

Brief facts of the case, which are relevant for the disposal of this appeal, are that on 22.06.1996 deceased Jamuna Prasad Gupta along with other

passengers was going from Deori to Sagar in the jeep in question which was being driven by Ram Gopal (who died in the accident). At about 10:00

hours in the night, when the jeep reached village Bhilainya, the tractor bearing registration No.MP-20-H-4658 came from opposite direction and

dashed against the jeep, as a result of the aforesaid accident, Jamuna Prasad Gupta and some other passengers of the jeep died while rest of them

sustained injuries. On that present appellants, the heirs of Jamuna Prasad Gupta filed claim case No.145/1996. Eight other claim petitions were also

filed before the Tribunal regarding accident.

The respondent No.2-tractor owner, respondent No.3 Jeep Owner, respondent No.1 tractor Driver and the respondent No.4-Insurance Company

filed their separate written statement.

The jeep owner denied the factum of negligence on the part of jeep driver and averred that the accident in question occurred due to rash and

negligent driving by the tractor driver. Therefore, applicants are not entitled to get any compensation from him and prayed for dismissal of the

application. Further, he also pleaded that if at all any liability comes on him, it must be borne by respondent no.4 as the offending jeep was insured with

respondent No.4 at the time of the accident.

The tractor owner and driver in their written statement averred that on the relevant date, at the time of accident, the tractor was standing on the

left side of the road and its driver had gone to attend the call of nature, the driver of the jeep in question drove rashly and negligently and dashed

against the stationary tractor as a result of which the accident occurred. Therefore, applicants are not entitled to get any compensation from them and

prayed for dismissal of the application. Further, they also pleaded that if at all any liability comes on them, it must be borne by respondent No.4 as the

offending vehicle was insured with respondent No.4 at the time of the accident.

The insurance company in its written statement denied the claim petition and contended that no information was given by the owner of both the

vehicles in question and, therefore, in absence of information, it is not liable to pay the compensation. It is also averred that at the time of the accident,

the jeep in question was insured, as a private vehicle, and was being used as a taxi in violation of the conditions of the insurance policy. So, the

insurance company is not liable to pay compensation.

On the basis of the pleadings of the parties, the tribunal framed the issues and after considering the facts and circumstances of the case and

appreciating the material available on record, the tribunal came to conclusion that the accident did not occur due to negligent driving by the driver of

the tractor and, therefore, the tractor driver, owner and the insurance company are not liable to pay compensation. It is further held that the liability is

that of the jeep owner and it is also held that the said jeep was being used for carrying passengers though it was registered as merely a private jeep

and not as a taxi. Thus at the time of accident, the jeep was being driven in violation of conditions of policy. So insurance company is not liable to pay

the compensation and also exonerated the insurance company and directed to respondent No.3 owner of the said jeep to pay compensation of

Rs.279,573/- along with 12% interest. Being aggrieved from that award, the appellants filed this Misc. Appeal. Apart for the enhancement of

compensation amount and also for extending the liability of payment of compensation on all the respondents (Non Applicants). The grounds urged are

that the tribunal erred in opining that the tractor driver was not negligent and thereby exonerating the respondents No.1, 2 & 4. It is also urged that

tribunal further erred in and holding that the jeep driver alone is responsible for accident in question. A ground has also been urged that the tribunal

ought to have held that the accident occurred due to composite negligence of the drivers of both the vehicles. The respondent No.4- Insurance

company being the insurer of both the vehicles cannot escape its liability. A ground has also been raised to the effect that there is no evidence on

record to prove that Jamuna Prasad Gupta was a fare paying passenger in the jeep. The evidence adduced by Kedarnath and Bhagwat Sharan have

been misinterpreted. Hence, all the respondents ought to have been fixed with the liability jointly and severally. The amount awarded by the tribunal is

lower side and the same deserves to be enhanced suitably. The interest at the rate of 18% per annum should have been awarded instead of 12% p.a.

It is worth mentioning here that earlier this Misc. Appeal was disposed of by the coordinate Bench of this Court vide order dated 24.03.2009

whereby this court rejected the appellant’s appeal holding that the compensation has been worked out which cannot be said to be improper, unjust

or unreasonable in the facts and circumstances of the case. It has been further held that on perusal of impugned award it seems that learned tribunal

in paragraphs 26 to 29, of the impugned award after evaluating all the evidence rightly found that the offending jeep was being used for carrying

passengers though it was registered as merely a private jeep and not a taxi. This being so, the Insurance Company has been rightly exonerated but the

another Misc. Appeal No.1524/1998 which also arisen from the said accident was allowed by another co-ordinate bench of this Court and disposed of

vide order dated 15.05.2009. In that order, the coordinate Bench of this court allowed the appeal holding that in the accident the driver of both the

vehicles were negligent so the liability should be fastened on both the vehicles and it should be apportioned and further held that in the facts and

circumstances of the case, 60% liability shall be rest on the insurer of the jeep and 40% liability shall be with the insurer of the tractor and also held

that from the evidence, it is proved that the insurance company failed to prove the fact that at the time of accident, the jeep was being used as a taxi.

The Tribunal grossly erred in absolving the insurance company and also held that Insurance Company is also liable to pay compensation. In the light of

that judgment, the appellants filed Review Petition No.770/2013 which was disposed of by Division Bench of this Court by order dated 17.07.2014 and

allowed the review petition observing that by the same award, the Tribunal decided another claim case of Savitri Bai, who was a victim in the said

accident and Savitri Bai also challenged the finding of tribunal exonerating the liability of insurance company in Misc. Appeal No.1524/1998 which

was heard by another learned Single Judge who by a detailed order dated 15.05.2009 reversed the finding of the tribunal exonerating the liability of

insurance company. The learned Single Judge by giving cogent reasons has held that tribunal grossly erred in absolving the insurance company. The

appellants being armed with the order dated 15.05.2009 has filed the review petition. The learned counsel for insurance company has fairly conceded

that order dated 15.05.2009 passed by the learned Single Judge holding the insurance company liable to pay compensation has not been challenged

before any superior court. The insurance company has, therefore, accepted the finding that it is liable to pay compensation. In the fact situation of the

case, it was held that the finding of the learned Single Judge in Misc. Appeal No.1669/1998 vide order dated 24.03.2009 requires reconsideration and

set aside the impugned judgment and remanded the matter for fresh decision.

This court has gone through the record and arguments put forth by the learned counsel of both the parties and also perused the order dated

15.05.2009 passed by the coordinate bench of this court in Misc. Appeal No.1524/1998. In that order learned coordinate bench of this court after

evaluating the evidence in para 14,15, 16 & 18 held as under :-

“14. Two questions that emerge for consideration are whether the tribunal is justified in exonerating the insurance company from the liability and

further whether the tribunal is justified in determining the quantum of compensation. First I shall advert to the facet whether the absolvation of the

insurer is correct in law. The tribunal adverted to the factum of negligence of both the vehicles. It has come to the conclusion that the road was wide

and the jeep was driven in a rash and negligent manner. The tractor, though it was pleaded to be stationary, on analysis of the reasonings in the award,

which are correctly based on the evidence, it is manifest that the tractor was mobile. The only thing that weighed with the tribunal was that the tractor

was on its left side but on a deeper scrutiny of the evidence, it is perceptible that the tractor was in a state of mobility and it was almost in the middle

of the road. As is manifest from other evidence brought on record, the driver of the jeep was driving the jeep in a rash and negligent manner and

dashed against the tractor. The tribunal noted that the driver of the jeep was driving in a drunken state. Though the driver had died in the accident,

nothing has been brought on record except the bald statement of a witness that he was in a drunken state. In view of the aforesaid, I am inclined to

dislodge the finding of the tribunal that the jeep driver alone was negligent for causation of the accident.

The next aspect which requires consideration is whether the claimants who were travelling in the jeep are entitled to compensation from the

insurance company. Be it noted, both the vehicles jeep and the tractor were insured with the same insurance company. The tribunal has exonerated

the insurance company on the ground that the persons going in the jeep were fare-paying passengers and the jeep was used in breach of the policy.

On a perusal of the documentary as well as oral evidence brought on record, it is manifest that the tribunal has reached such a finding as some of the

injured persons have stated that they had no prior acquaintance with the driver of the jeep. That apart, recourse has been taken to statement of one of

the witnesses who stated that he had paid Rs.15 towards fare. On the analysis of the entire evidence brought on record, it transpires that there is no

adequate evidence that the jeep was being run as a taxi. There is no concrete proof that he had collected fare. The approach of the tribunal, as it

appears, is literally very scanty that the jeep was used as a taxi. Nothing has been brought on record that there has been violation of the terms of the

permit. In view of the aforesaid analysis, I am of the considered opinion that the tribunal has grossly erred in absolving the insurer.

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Consequently, both the appeals are allowed in part. As I have already held both the vehicles were involved in the causation of the accident, the

liability should be fastened on both the vehicles and it should be apportioned. Regard being had to the facts and circumstances of the case, I am

inclined to think that 60% liability shall be rest on the insurer of the jeep and 40% liability shall be with the insurer of the tractor. The amount shall

carry interest at the rate of 6% per annum. There shall be no order as to costs.â€​

Learned Division Bench also in his order dated 17.07.2014 in Review Petition No.770/2013 held as under:-

“It is to be noted that the Tribunal by the same award dated 17.8.1998 had decided one another claim case of Savitri Bai, who was a victim in the

same accident. And Savitri Bai also challenged the finding of tribunal exonerating the liability of insurance company in Misc. Appeal No.1524/1998

which was heard by another learned Single Judge who by a detailed order dated 15.05.2009 reversed the finding of the tribunal exonerating the liability

of insurance company. The learned Single Judge by giving cogent reasons has held that tribunal grossly erred in absolving the insurance company. The

applicants being armed with the order dated 15.05.2009 has filed this present review petition.

The learned counsel for insurance company has fairly conceded that order dated 15.05.2009 passed by the learned Single Judge holding the insurance

company liable to pay compensation has not been challenged before any superior court.

The insurance company has, therefore, accepted the finding that it is liable to pay compensation. In the fact situation of the case, we are of the prima

facie view that finding of the learned Single Judge in Misc. Appeal No.1669/1998 vide order dated 24.03.2009 requires reconsideration. We

accordingly set-aside the order and remand the case for its fresh decision.â€​

Which shows that the division bench of this court was also of the view that the order passed by the coordinate bench of this court in

M.A.No.1524/1998, which also arose from the same award, is more correct. This court also after evaluating all evidence agrees with the findings

given by the coordinate bench of this court in M.A.No.1524/1998. In view of the aforesaid, this Court is inclined to dislodge the finding of the tribunal

that the jeep driver alone was negligent for collusion in the accident. From the evidence, it appears that 60% liability shall be rest on the jeep driver and

40% liability shall be rest on the tractor driver. The Insurance Company failed to prove that the questioned jeep was being driven as a taxi at the time

of incident and erred in absolving the insurance company. Nothing has been brought on record that shows any violation of the terms of the policy.

As regard the compensation, this Court earlier already held that the compensation has been worked out which cannot be said to be improper,

unjust or unreasonable in the facts and circumstances of the case. There is no reason to deviate from earlier view. So as regard to enhancement of

the compensation, there is no question arises in the facts and circumstances of the case.

Hence, this appeal is partly allowed & it is hereby ordered that:-

(a) Appellants/Claimants are entitled to get Rs.2,79,573/- as compensation from Non applicants, out of which 40% amount will be paid by the Non

Applicant No.1,2 & 4 and 60%Â by the Non Applicant No.3 & 4. The amount so deposited by the insurance company as an interim compensation

shall be adjusted from the award amount.

(b) The amount shall carry simple interest @ 6% per annum from the date of application i.e. 03.12.1996 to till payment.

(c) Non applicants No.1,2 & 3 and Non applicants No. 3 & 4 shall pay the said sum jointly and severally.

(d) Looking to the facts and circumstances of the case, both the parties shall bear their own costs.

(e) After realisation, the amount shall be paid in cash to the appellants.