Vesta and Another vs Poona and Others

Hon''ble Shri Justice, N.K. Mody

Being aggrieved by the award dated 9/7/2008 passed by MACT, Jobat, District Jhabua in claim case No.72/2006 whereby the claim petition filed by the appellants was allowed and compensation of Rs.1,62,000/-was awarded in a death case and respondent No.3 was exonerated, the present appeal has been filed. Short facts of the case are that appellants filed a claim petition before the learned tribunal alleging that deceased Dileep was going on a tractor-trolley on 25/5/2006 bearing registration No.MP04 5 M 1532 which was driven by respondent No.1 rashly and negligently, owned by respondent No.2 and insured with respondent No.3, with the result tractor-trolley turtled down and Dileep sustained injuries and he died on spot. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was contested by respondent Nos.2 and 3. After framing of issues and recording of evidence learned tribunal allowed the claim petition and awarded a sum of Rs.1,62,000/-and exonerated the respondent No.3, against which the present appeal has been filed.

Learned counsel for appellants submits that since accident is of the year 2006 and deceased was aged 16 years, therefore learned tribunal committed error in assessing the income on notional basis. On other heads also the amount awarded is on lower side. So far as exoneration of respondent No.3 is concerned,learned counsel submits that learned tribunal committed error in exonerating the respondent No.3. It is submitted that appeal be allowed, amount be enhanced and findings regarding exoneration of respondent No.3 be set aside.

Learned counsel for respondent Nos.1 and 2 submits that cross objections have been filed wherein that part of the award whereby respondent No.3 has been exonerated, is prayed to be quashed. It is submitted that amount awarded is just and proper. So far as liability is concerned, learned counsel placed reliance on a decision in the matter of New India Assurance Co.Ltd. Vs. Girvarnath, 2007 ACJ 613, wherein the claimant was gratuitous passenger on a tractor, this court held that since injured is included within the definition of third party as defined in section 145(g) of the Motor Vehicles Act, therefore Insurance company is liable. Reliance is also placed on a decision in the matter of The New Indian Insurance Company Vs. Darshana Devi and Others, wherein deceased was sitting on mudguard of tractor when he fell down due to its rash and negligent driving and the tribunal held that tractor was not being used for agricultural purpose for which it was insured, owner, insured had contravened terms of contract of insurance and insurance company cannot escape from liability of third party but it is entitled to recover the amount from the insured. Lastly reliance is placed on a decision of this court in the matter of Raoji and Another Vs. Kailash and Others, where in a case where deceased fell down and wheel of tractor rolled over him, this court held that Insurance company is liable to pay jointly and severally. On the strength of aforesaid position of law, learned counsel submits that cross objections filed by respondent Nos.1 and 2 be allowed so far as it relates to exoneration of respondent No.3 is concerned.

Learned counsel for respondent No.3 submits that cross objections filed by respondent Nos.1 and 2 itself are not maintainable. Learned counsel submits that since deceased is occupant of the vehicle, therefore learned tribunal has rightly exonerated respondent No.3. Reliance is placed on a decision in the matter of National Insurance Co. Vs. Vedvati, 2007(II) ACJ 29.

From perusal of record it appears that while assessing the income of deceased, notional income was taken into consideration while accident is of the year 2006 and since deceased was a young man, therefore income ought to have been assessed @ Rs.3000/-per month and half of the amount ought to have been deducted on account of personal expenses as deceased was bachelor. In view of this, appellants are entitled for the following amount :

Towards loss of dependency

Rs.2,88,000/-

Towards funeral expenses

Rs.5,000/-

Towards loss of estate

Rs.5,000/-

Towards loss of love and affection

Rs.10,000/-

Total

Rs.3,08,000/-

Thus, appellants shall be entitled for a sum of Rs.3,08,000/-instead of Rs.1,62,000/-. The enhanced amount of Rs.1,46,000/-shall carry interest @ 8% per annum from the date of application. The enhanced amount of Rs.1,46,000/-shall carry interest @ 8% per annum from the date of application.

Since the offending tractor was insured for agricultural purpose and was not meant for carrying passengers, therefore, in the opinion of this court learned tribunal has rightly exonerated the respondent No.3 and the findings which are based on due appreciation of evidence, requires no interference. In view of this, appeal filed by the appellants be allowed in part by enhancing the amount and so far as liability is concerned, the findings recorded by learned tribunal requires no interfernce.