AfK v. Budanti @ Danteshar Rao & Ors.

3. Smt. Rambati Madiya aged 25 years W/o. late Shri Singalu Madiya Bhoju Madiya aged 47 years S/o. late Shri Bhadaru Madiya Gangi Madiya aged 42 years W/o. Shri Bhoju Madiya All are R/o. Patel Para Mardum P.0. Mardum Distt. Bastar(C.G.) Vs. RESPONDENTS 1

Budanti @ Danteshar Rao aged 40 years S/o. S. Nandu R/o. Hikami para Jagdalpur P.S. Kotwati P.0. Jagadalpur Distt. (C.G.) (Driver of the vehicle) Pramod Kumar Yadav S/o. Shri S.R. Yadav R/o Chhapar Bhanpuri Distt. Bastar(C.G.) Bastar National Insijrance Company Limited Infront of Main post office Jagdalpur Distt. Bastar (C.G.) M.A. No. 396 of 2006 APPELLANTS CLAIMANTS

1. Smt. Motalu @ Matali Madiya aged late Shri Samloo 23 years W/o. Madiya

2. Motu Madiya aged 7 years S/o.

4. Shri Samloo Madiya Shyambati Madsya aged 5 years D/o. late Shri Saml.oo Madiya Budhram Madiya aged 3 years S/o. iate Shri Samloo Madiya

5. Munna Maciiya aged 1 years S/o. late Shri Sam'oo Madiya (Appellant Nb.2 to 5 representing through mother as natural guardian appellant no.1) All are R/o.Pate! para Mardum P.0. Mardum Distt. Bastar (C.G.) Vs. RESPONDENTS

Budanti @ Dantsshar Rao aged 40 M.A.No.395 of2006 & connected matters fDB) Bastar years S/o. S. Nandu R/o. Hikami para Jagdalpur P.S. Kotwali P.0. Jagadalpur Distt. (C.G.) (Driver of the vehicle) Pramod Kumar Yadav S/o. Shri S.R. Yadav R/o Chhapar Bhanpuri Distt. Bastar (C.G.) National Insurance Company Limited Infrontof Main post office Jagdalpur Distt. Bastar (C.G.) M.A. No. 592 of2006

(C.G.) Pramod Kumar Yadav, S/o. Shri S.R. Yadav, Aged about 20 years, R/o Lohandiguda, Chhaper Bhanpuri, District - Bastar (Owner of vehicle) Budanti @ Danteswar Rao, S/o Shri S. Nandu, Occupation - Driver, R/o Jagdalpur, District - Hikamipara, Bastar (Driver) Vs. Rambati, W/o Late Singalu, aged about 25 years, Caste - Madiya Bhoju, S/o Bhadaru, aged about 47 years, Caste - Madiya Gangi W/o Bhoju, aged about 42 years, Caste - Madiya All R/o Patelpara Mardum, P.0. - Mardum, District - Bastar (C.G.) (Claimants) Insurance Company The Nationa! Branch Manager, Through Ltd., Infront of Main Post Branch Office, Office, Jagdalpur, District - Bastar M.A. No. 593 of 2006

Pramod Kumar Yadav, S/o. Shri S.R. Yadav, Aged about 20 years, R/o Chhaper Bhanpuri, Lohandiguda, District - Bastar, (Owner of vehicle) (C.G.) Budanti @ Danteswar Rao, S/o Shri S. Nandu, Occupation - Driver, R/o Jagdalpur, District - Hikamipara, Bastar (C.G.) (Driver) Vs, APPELLANTS NON-APPLICANTS RESPONDENTS APPELLANTS NON-APPLICANTS RESPONDENTS

1. Somari, W/o Late Mangadu @ Madda aged about 35 years, Caste - ^ M.A.No.395 of 2006 & connected matters CDB) APPELLANTS NON-APPLICANTS RESPONDENTS

2. Muriya, R/o Hungapara Mardum, P.0. - Mardum, District - Bastar (C.G.) (Claimant) Insurance Company The National Branch Manager, Through Ltd., Infront of Main Post Branch Office, Office, Jagdalpur, District - Bastar (C.G.) M.A.No. 594 of 2006

Pramod Kumar Yadav, S/o Shri S.R. Yadav, Aged about 20 years R/o Lohandiguda, Chhaper Bhanpuri, District - Bastar, (Owner of vehicle) Budanti @ Danteswar Rao, S/o Shri S. Nandu, Occupation - Driver, R/o Jagdalpur, District - Hikamipara, Bastar (C.G.) (Driver) (C.G.) Vs^ Bitay, W/o Late Kuldhar, aged about 34 years, Caste - Muriya Gadali, W/o Dharwa, aged about 55 years, Caste - Muriya Lakhami, D/o Late Kuldhar, Aged about 18 years, Caste - Muriya Jhunaki D/o Late Kuldhar aged about 12years No. 4 Minor BitayW/oLateKuldhar through: her mother All R/o Hungapara Mardum, P.0. - Mardum, District - Bastar (C.G.) (Claimants) The National Through Ltd., Branch Office, Office, Insurance Company Branch Manager, Infront of Main Post Jagdalpur, District- Bastar & M.A. No. 595 of 20QS APPELLANTS NON-APPLICANTS 1 Pramod Kumar Yadav, S/o Shri S.R. Yadav, Aged about 20 years, R/o Chhaper Bhanpuri, Lohandiguda, District - Bastar, (Owner of vehicle) (C.G.) 1 .^- [^l'i^.l^;i.^:lj;^^:ilj .t'^i^j: :\\ M.A.No.395 of 2006 & connected matters CDB) ^ RESPONDENTS 1

5. Budanti @ Danteswar Rao, S/o Shri S. Nandu, Occupation - Driver, R/o Jagdalpur, District - Hikamipara, Bastar (C.G.)(Driver) v^. Motalu @ Motali W/o Late Samalu, aged about 23 years, Motu, S/o Late Samalu, aged about 7 years, Shyambati D/o Late Samalu, aged about 5 years, Budhram S/o Late Samalu aged about 3 years Munna S/o Late Samalu aged about 1 year No. 2 to 5 are Minor through: mother Motalu @ Motali W/o Late Samalu All by caste Madiya R/o Patelpara Mardum, P.0. - Mardum, District Bastar (C.G.) (Claimants) The National Insurance Company Through Ltd., Branch Manager, Branch Office, Infront of Main Post Office, Jagdalpur, District - Bastar APPEALS UNDERSECTION 173 OF THE MOTOR VEHICLES ACT,1988 Appearance: Shri P.K. Tulsyan, Advocate appears on behalf of appellants in M.A. No. 395/2006, M.A. No. 396/2006 and for respondents No. 1, 2 &3 in M.A. No. 592/2006 & respondents No. 1 to 5 in M.A. No.

595/2006. Shri Subhash Yadav, Advocate appears on behalf of appellants (Owner and Driver) in M.A. No. 592/2006; M.A. No. 593/2006; M.A. No. 594/2006 & M.A. No. 595/2006, who are also respondents No. 1 & 2 in M.A. No. 395/2006 & M.A. No. 396/2006. 4- Shri Shree Kumar Agrawal, Sr. Advocate with Shri A.K. Gupta, counsel for The National in all the appeals. Insurance Company Ltd. M.A.No.395 of 2006 & comiected matters fDB) 'H JUDGMENT (/Z-.08.2008) Following judgment Court was delivered Sunil KumarSinha, J, These appeals have been filed u/s 173 of the Motor Vehicles Act, (1) 1988, against the common award dated 25.01.2006 passed by the III Addl. Motor Accident Claims Tribunal, Jagdalpur, whereby, in all, 8 claim petitions were disposed of by the Tribunal. (2) M.A.No.395/2006 & 396/2006 have been filed by the claimants for enhancement of the amount of compensation, whereas M.A.No.592/2006, 593/2006, 594/2006 & 595/2006 have been filed by the owner and driver of the offending vehicle challenging their liability to pay compensation.

(3) The facts briefly stated are that on 19.4.2005 at about 10.30 p.m., a vehicle i.e., Tata 709 Truck, bearing Regn. No. C.G-17-ZB-0124 met with an accident in village sargipal resulting in death of four persons namely Samlu, Singlu, Mangdu and Kuldhar, whereas many other persons including Rama, Jairam, Dukaru and Toda received certain injuries. (4) In all, 8 claim petitions were filed in the Claims Tribunal, in which, M.A.C.C. No.58/2005, 48/2005, 49/2005 & 59/2005 were filed by the dependents of the deceased persons and M.A.C.C.No.44/2005, 45/2005, 46/2005 & 47/2005 were filed on account of personal injuries sustained by the respective claimants namely Dukaru, Toda, Jairam & Rama. In all the claim petitions, the claimants pleaded that the deceased persons and the injured persons were traveling in the capacity of labourers in the offending truck, which met with an accident on account of rash and negligent driving of its driver.

The owner and the driver filed their written statements. Along-with (5) plea of denial regarding entitlement of the claimants, liability and pleaded that the deceased persons and the injured persons were traveling in that vehicle as labourers, if any amount of they denied their therefore, compensation is to be paid that shall be paid by the Insurance Company as the vehicle was insured with them. The Insurance Company also filed M.A.No.395 of 2006 & coimected matters CDB) its written statement. It took the plea that the deceased and the injured in fact, they persons were not traveling as labourers in the vehicle and, were the paid passengers, therefore, according to the policy conditions, the Insurance Company would not be liable to pay compensation in these cases. (6) Learned Claims Tribunal framed various issues in the claim cases and after taking evidence of the parties, recorded a finding that accident occurreid on account of rash and negligent driving of offending truck by its driver, therefore, the claimants were entitled to receive compensation.

However, the Tribunal exonerated the Insurance Company and fastened liability on the owner and the driver on the ground that the deceased persons and the injured persons were not traveling as labourers in the said goods vehicle and even otherwise also the vehicle was being plied in breach of policy conditions as there were more than 7 persons (driver + 6 others), for which the policy was obtained after paying the premium. (7) In personal injury cases, the Tribunal awarded Rs.3000/- each to injured Dukaru, Toda & Rama and Rs.1500/- to injured Jairam, whereas, in Claim Cases No.58/2005 & 59/2005 (two death cases in which M.A.No.395/2006 & 396/2006 have been filed for enhancement) awarded Rs.1,73,200/- respective claimants/dependants of deceased Singlu & Samlu.in both the cases, the Tribunal assessed the month!y income of the deceased as Rs.1300/- and after deducting Rs.500/- towards personal expenses of the deceased, the monthly dependency of the claimants was assessed as Rs.800/- and the annual dependency as Rs.9600/-. By using multiplier of 17, the Tribunal worked out the loss of dependency in sum of Rs.1,63,200/-. By awarding Rs.10,000/- under other permissible heads; compensation was assessed in sum of Rs.1,73,200/- in each claim case the total amount of separately.

The Tribunal further directed that if the above amount of compensation is not deposited within a period of two months from the date of passing of award in these cases, the claimants shall be entitled to receive interest @ 6% per annum from the date of passing of the award ti!l the actual payment is made. M.A.No.395 of 2006 & connected matters CDB) (8) Shri Subhash Yadav, learned counsel for the owner and driver argued that the Claims Tribunal erred in law while recording a finding that the deceased/injured persons were not vehicle, and were the passengers, and by holding so, exonerati*^ the Insurance Company. He also argued that the finding recorded by the the labourers in the offending Claims Tribunal that since more than 6 persons were allowed in the goods vehicle by the owner and driver and the vehicle was being plied in breach of policy conditions which allow only 6 persons as the employees in the vehicle, therefore, the Insurance company would not be responsible to pay compensation to the claimants, cannot be sustained.

He referred to the Insurance Policy marked as Ex.P-2. (9) Shri P.K. Tulsyan, learned counsel for the appellants/claimants in M.A.No.395/2006 & 396/2006, which have been filed for enhancement of amount of compensation, argued that in these cases, the Tribunal has grossly erred in assessing the income of the deceased persons and awarding low compensations to the claimants. He submitted that the Tribunal ought to have accepted Rs.3000/- as the monthly income of the deceased person(s) and would have assessed the amount of compensation on such income. (10) On the other hand, Shri S.K. Agrawal, Senior Counsel Insurance Company opposed these arguments and supported the for the common award passed by the Claims Tribunal. He argued that in all 12 persons were traveling on the goods vehicle and the vehicle was being piied in breach of policy conditions, therefore, the Insiirance Company has rightly been exonerated in these cases.

About the quantum, he argued that a reasonable amount has been assessed by the Claims Tribunal. (11) So far as the finding that the injured claimants and the deceased persons were traveling as passengers in the offending vehicle is concerned, we do not find it to be based on material available on record. The Tribunal has recorded this finding vide Paras 23 & 24 of the impugned award by relying on the contents of First Information Report, Ex.P.1 and Dehati Nalishi Ex. P.2. It has also referred to the contents of the Claim Form, Ex.D-2, filed by the owner before the Insurance Company, and the contents of report of the Investigator of the Insurance Company filed as Ex.D-5. The Tribunal has taken into account that al! these documents •^. ^^^If^i^^^^;-.^'^ ^iSffSi^^W^^SiSSS^ M.A.No.395 of2006 & connected matters <DB) only contain that 12 persons were traveling in the vehicle who sustained injuries and the owner of the vehicle had not deposed in his evidence before the Tribunal that how much amount he was paying to the deceased it was not established that the injured claimants, therefore, deceased/injured claimants were engaged as labourers in the vehicle. If we look into the First Information Report, Ex.P-1, it would appear that the same was lodged by one Paiko, s/o Mahangu who stated therein that on

18.4.2005 he along-with one Lachhinder, s/o Sunder, had gone to purchase floor stones (granite tiles) from the mines and had taken the deceased and injured persons with them in the offending vehicle to the loading the stones in the vehicle, when they were mines and after returning back to their village, the vehicle met with an accident as it turned turtle on account of rash and negligent driving of its driver, due to which, the persons present in the vehicle sustained injuries. Neither the Dehati Nalishi Ex.P.2 nor the F.1.R. Ex.P.1 contains any such fact which may show that the injured and deceased persons were not traveling in the vehicle in the capacity of labourers. Even the other documents relied on by the Tribunal do not disclose that the victims were not traveling as labourers in the offending vehicle. Rather the contents of Dehati Nalishi would show that they were taken by Paiko to purchase floor tiles from the mines for which the offending vehicle was hired by him and after purchasing the floor tiles, they loaded the same in the offending vehicle which clearly shows that the injured and the deceased persons were engaged as labourers in that trip and the tiles purchased by the owner from the stone mines were loaded by them in that vehicle.

It appears that the word like "labourers" has not been used in this document, therefore, in error by recording a finding that they were not the the Tribunal labourers on the vehicle. In this regard, if we look into the evidence of Rambati Madiya (A.W.7) and Mutali @ Matali Madiya (A.W.8), wife of the it would appear that they had clearly deposed that on deceased person, the fateful day the deceased persons were traveling in the vehicle in the (labourers) and were engaged for loading and capacity of unloading the stones. This is supported by the evidence of the owner "hammals" (N.A.W.3), who also deposed that the deceased and the injured persons were working as labourers in the vehicle. Hence, the finding of the Tribunal the deceased and injured persons were traveling as passengers in the vehicle cannot be sustained being perverse on the face of material available on record. Therefore, this finding of the Tribunal M.A.No.395 of 2006 & connected matters fDB) 's^ set aside and it is held that the deceased and the injured persons were traveling as labourers in the offending vehicle, which met with an accident on the fateful day.

(12) Admittedly, the offending vehicle was registered and insured as a goods carrying commercial vehicle and the policy of insurance was valid on the date of accident. As per the contents of the policy, Ex. D-2 & D-2/C, the requisite premium vvas paid for 8 employees including the driver and In this regard, the Insurance Company has also cleaner of the vehicle. examined Mr. A. Kujur, the concerned Branch Manager (N.A.W.1). He has clearly deposed in his Examination-in-Chief that apart from the driver and cleaner, extra-premium was charged for the Coolies. It is, therefore, clear that the risk of six persons, other than the driver and cleaner who were traveling as labourers, was also covered under the Insurarice policy and in case of the accident, the Insurance Company would be liable to pay compensation to them. As we have already held that the injured and the deceased persons were traveling as labourers in the offending vehicie, therefore, in these cases, the Insurance Company would be liable to pay compensation to the claimants and the finding of the Claims Tribunal that the compensation shall be paid by the owner and driver, cannot be sustained.

This finding of the Tribunal is set aside. (13) As far as the effect of breach of policy by carrying more than 8 persons on the vehicle is concerned, Shri Subhash Yadav, Advocate, referred to the decision of the Apex Court rendered in the matter of Nataonal Insurance Company Limited -Vs- Anjana Shyam and others (2007) 7 SCC 445. In the said case, a passenger vehicle was overioaded and the number of dead and injured has exceeded the number of passengers insured. The awards were passed for more than the insured passengers and the Insurance Company was made liable for payment of amounts covered by all the awards. The Insurance Company took an objection before the Supreme Court that its liability was confined only to the extent of number of passengers insured by it and should not be extended to cover the persons not covered by the Insurance Policy. The Apex Court held that the insurance taken for the "in such a situation, number of permitted passengers can alone determine the liability of the Insurance Company in respect of those passengers.

It held that in terms of Section 149 of the Motor Vehides Act, the duty of the Insurer is cnly to / w ..ii.^.^^1 'M^ri^H 10 M.A.No.395 of 2006 & connected matters CDB) satisfy the judgment and awards against the persons insured in respect of the third party risk that is to the extent the third party risk is coverable and is covered. " Therefore, the law is that in such cases where the vehicle was over (14) loaded, the liability of the Insurance Company would be to the extent of number of persons for whom the risk was covered under the agreement and nothing more, but for that kind of breach of policy, the Insurance Company of amount of exonerated cannot from payment compensation. Hence the finding of the Tribunal that on account of carrying more than permitted persons on the vehicle, Company would not be liable to pay compensation even to the persons covered under the Insurance Policy, cannot be sustained and the same is the Insurance also set aside.

(15) Now, we shall consider M.A.No.395/2006 & 396/2006, the cases for enhancement. In the claimants had pleaded that deceased persons were earning Rs.100/- per day and Rs.3000/- per month, but the Tribunal assessed their income as Rs.50/- per day, that too for 26 days in a month, and determined that each deceased person was earning Rs.1300/- per month. This does not appear to be reasonable. When the evidence led by the parties was not clinching on the point of income, the Tribunal ought to have taken recourse to the notional income prescribed in the second schedule u/s 163-A of the Act. This notional income was prescribed in the year 1994. The accident in which the deceased persons lost their lives took place in the year 2005. increase in the price of essential commodities and the cost of between the years 1994 and 2005 is taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994 would come to Rs.30,000/- in the year 2005.

We, therefore, propose to recompute the compensation taking the income of the deceased persons at Rs.30,000/- per annum. towards the personal expenses of each of the claimants' dependency is By deducting 1/3 of Rs.30,000/- the deceased, If the living assessed atRs.20,000/- per annum. (16) Considering that the ages of the deceased Singlu and Samlu were in between 25 and 28 years and that the claimants are widow, children and parents of the deceased, we are of the opinion that the multiplier of 15 11 M.A.No.395 of 2006 & comiecled matters ('DB) would be appropriate in both the cases. By multiplying the annual dependency of Rs.20,000/- with the muitiplier of 15, the dependency is worked out to Rs.3 lakhs in each case. Further by adding a sum of Rs.15,000/- under other permissible heads, the claimants of each case (M.A.No.395/2006 & 396/2006) would be entitled to receive a total sum of Rs.3,15,000/- as the amount of compensation on account of death of deceased Singlu and Samiu.

The Tribunal has awarded a sum of Rs.1,73,200/-, therefore, the (17) claimants would get Rs.1,41,800/- more in each case. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeals as also the fact that the Insurance Company alone is not to be blamed for the delay in disposal of the matter, we quant'fy the amount of interest payable on the enhanced amount of compensation of Rs.1,41,800/- at Rs.13,200/-. compensation Therefore, Rs.1,73,200/- awarded by the Claims Tribunal in above two cases is enhanced by Rs.1,55,000/- in each case. (18) In the result, the appeals are aiiowed in the following terms: (i) The Insurance Company shall be liable to pay the amounts of compensation awarded in MAC.C. Nos.48/2005, 49/2005, 58/2005 & 59/2005. (ii) The amounts of compensation awarded in M.A.C.C. No.58/2005 & 59/2005, which are the subject matters of M.A.No.395/2006 & 396/2006, are enhanced by Rs.1,55,000/- in each case.

(iii) The respondent time to deposit Insurance Company is granted 3 months' the enhanced amount of compensation, failing which, they shall be liable to pay interest @ 6% per annum on the enhanced amount for the period commencing after completion of 3 months' time till its realization. (iv) There shall be no order as to costs. Sd/- Chief Justice Sd/- Sunil Kumar Sinha 'l ' .1- /^.<^/