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Judgment
D.M. Patnaik, J.—This appeal by the United India Insurance Company Limited is against the award of compensation to the respondents in an accident case arising under Motor Vehicles Act awarding compensation of Rs. 92,000/- besides 9% interest per annum.
Claimants are the widow of the deceased Kali Charan Das, his son (petitioner No. 2) and parents (petitioners 3 and 4).
Case of the claimants were that on 13.3.1989 the deceased who was then serving in the Sales Tax Department, after office hour while attempting to board the town bus bearing Registration No. ORU - 9677 at Badambadi, fell down and sustained bodily injuries and died of the injuries next day in the hospital. This was on account of sudden movement of the vehicle for rash and negligent driving of the driver. He was aged 58 years and earning a monthly income of Rs. 1644/- as Senior Assistant under the Sales Tax Department of the State Government. Opposite parties 1 and 2, owners of the bus, did not contest the case and were set ex parte.
Opposite party No.3 filed written statement taking various pleas such as, absence of driving licence of the driver of the vehicle, absence of permit for the bus. It also took other statutory pleas in defence available under the provisions of the Motor Vehicles Act. It was further claimed that since deceased was travelling in the bus as a passenger liability of the insurance company was in any case limited to the extent of Rs. 50,000/-.
Learned Tribunal framed three issues and after considering the material on record found that the deceased was aged 58 years, secondly he was not a passenger travelling in the bus but a third party. He made the Insurance Company alone liable to pay the entire amount of compensation. Learned Tribunal awarded interest '' 9% per annum from 8.1.1993, i.e. the date of adducing evidence and not from the date of application of the claim.
Being dissatisfied with the inadequate compensation claimants have filed cross-objection for enhancement of the compensation so awarded.
Mr. A.K.Mohanty, learned counsel for the petitioner - Insurance Company in support of the grounds of appeal argues strenuously that the finding of the learned Tribunal that the deceased Kali Charan Das was a third party is against the nature of evidence adduced. It is also strenuously urged that assuming that the Tribunal in that regard is correct, yet u/s 95(2)(b) of the old Motor Vehicles Act, 1939 liability of the Insurance Company in respect of such third party would be only limited to Rs. 50,000/-and nothing more than that. Besides the above contention Mr. Mohanty has pressed the points that the vehicle was plying without permit and secondly the driver driving the vehicle at the relevant time did not have a valid driving licence. Mr. Mohanty relies on a decision in the case of New India Assurance Co. Ltd. Vs. Jagdish Prasad and Others, .
Mr. N.B.Das, learned counsel for the claimants on the other hand, submits that the finding of the learned Tribunal that deceased was a third party is based on evidence since the witnesses examined unerringly proved that the deceased had not boarded the bus, when the accident took place. However, he challenges the decision of the learned Tribunal so far as the amount of compensation is concerned. According to him taking seven years multiplier is wholly inapplicable to the facts and circumstances of the case. In support of this he relies on the decisions in the case of National Insurance Co. Ltd. Vs. Asha Lata Rout and Others, and in the case of Thoznilalar Transport Co. v. Vallimmal and Ors. 1989(2)TAC 570.
Having heard Mr. Mohanty, I am unable to accept his submission that the Tribunal has committed an error by holding that the deceased was not travelling as passenger, but as a third party. Reference may be made to the evidence of P.W. 3 Sushant Kumar Moharana who stated that on 13.3.1989 at about 7.30 P.M. while he was repairing his scooter at Badambadi, Cuttack one town bus was there and the deceased while getting into the bus, the bus started moving and the deceased fell down. Mr. Mohanty, stated that his evidence is untrustworthy because he in fact had not seen the accident. But I may point out that no cross-examination has been made to discredit the evidence of this witnesses. It is further claimed by Mr. Mohanty with reference to the evidence of P.W. 2, the son of the deceased that he stated that on the date of accident his father was returning home in the town bus. In my view this statement does not prove that the deceased had entered the bus, for which it could be said that he was travelling in the bus particularly when he is not an eye-witness. Therefore, I confirm the finding of the learned Tribunal that the deceased was not travelling as a passenger, but he was a third party. There was nothing wrong with the Tribunal saddling the liability on the Insurance Company for payment of compensation.
However, there has been error in overlooking the provisions of Section 95 of the M.V.Act wherein liability of the Insurance Company in such case has been limited to Rs. 50,000/- and nothing more. Therefore, Insurance Company''s liability is limited to the extent of Rs. 50,000/- and the rest amount is to be paid by the owner/owners.
So far as other two points of Mr. Mohanty is concerned, i.e. absence of permit in respect of the vehicle and absence of driving licence with the driver, those pleas were no doubt taken in the written statement, but not proved. Therefore, these points are held against the Insurance Company.
The next point as to which one of the owners or both should be liable to pay the amount in excess of Rs. 50,000/- for which the Insurance Company is made liable. In column 15 of the claim petition, claimants mentioned owner of the vehicle as one Dhruba Charan Swain (opposite party No. 1) and one Ranjit Kumar Pani (opposite party No. 2) who is stated to be the present owner of the vehicle obviously meaning that the person who was in control and management was the de facto owner of the vehicle. Though both the persons were noticed to appear to contest the case, they remained exparte. Thus, opposite party No. 2, did not controvert the claim that he was the present owner having control and management of the vehicle in question at the precise moment of the accident. However, it is amply clear from the Insurance Certificate (Ext. A) that the Insurance policy in respect of the said vehicle was valid till 20.2.1990 and the accident having taken place on 13.3.1989, the policy was in force. In the policy Dhruba Charan Swain (opp. party No. 1) is mentioned as the insured. Therefore, for all legal purpose, the said O.P. No. 1 being the insured, the opposite party No. 3 the Insurance Company will be liable to indemnify him and thus liable to pay the compensation. Thus, both opposite parties shall be liable to pay the compensation, one being the party legally bound by the contract of insurance, other being the person in actual management and control of the vehicle at the time of accident. Since I have already held liability of the Insurance Company would be limited to Rs. 50,000/-, the rest amount to be paid by the owner/owners. For the ends of justice and equity, I feel it appropriate to direct that the rest amount of Rs. 42,000/-should be recovered from the opposite parties 1 and 2 half and half.
So far as payment of interest is concerned, it is made clear that payment of interest '' 9% per annum should be calculated on Rs. 50,000/-so far as the Insurance Company is concerned from the date of filing of the application, i.e. 12.7.1989 and so also the interest at that rate on the. amount of Rs. 42,000/- which is to be equally paid by the petitioners 1 and 2, owners of the vehicle. I find from judgment of the learned Tribunal that Tribunal has not awarded any amount of compensation towards loss of love and affection for the death of Kali Charan. Therefore, I feel it appropriate to award Rs. 10,000/- on that head to be recovered equally from opposite parties 1 and 2.
In the result, appeal of the Insurance Company is dismissed but without any cost. Cross-objection of the claimants is.allowed to the extent as observed above, but no cost.
The statutory deposit of Rs. 25,000/- should be adjusted towards principal amount and the rest amount of Rs. 25,000/- with interest should be paid within three months from today, failing which the same shall carry panel interest at 18% per annum.
The opposite parties 1 and 2 (Respondents 5 and 6) shall pay their part of the compensation amount within three months of the receipt of the notice from the Tribunal.