High Court
Legal Reasoning
FA2886-15.odtthat gratuitous passengers in goods carriage vehicle cannot claim to berepresentative of the owner of goods vehicle. Therefore insurer cannot beheld liable for compensation. 20. In the case of Asha Rani & others cited supra, it is held that(prior to amendment) the insurer will not be not liable to paycompensation to the owner of goods or his authorized representative onbeing carried in goods vehicle when that vehicle met with an accident andowner of goods or his representative dies or suffers bodily injury.21. In the judgment dated 02.05.2014 in First Appeal No. 2881of 2008, Co ordinate Bench of this Court has held that 52 passengers whowere travelling in the truck they all cannot be called as labour. However,in the case in hand, it is prima facie proved that on the fateful day,deceased Pundlik was traveling in goods vehicle No. MH-20A-5385 beinglabour/employee of Respondent no.1/owner and driver of said truck forproviding labour for sugarcane cutting and transportation of sugarcanefrom agricultural field to Sugar factory.22. Though, the insurance company contended that deceasedPundlik was not employee of respondent no.1, however, the appellantinsurance company has not set out defence in its written statement.Nonetheless, no such suggestion have been given in the cross examinationto the CW-1 claimant. Therefore, in absence of such pleading and cross-Page 10 of 13 FA2886-15.odtexamination, no such defence can be set out first time in appeal by theoriginal Respondent Insurance Company.23. On perusal of impugned Judgment and Award it prima facieappears that, the findings recorded by the learned Tribunal are based onoral as well as documentary evidence, which does not appear perverse. Inview of the above discussion, no substantial grounds exists to interferewith findings recorded by the learned Member, MACT to the extent ofquantum of compensation. 24. In the case of Pranay Sethi, cited supra, it has been held that,when the deceased does not have monthly salary and is in age group of21-25, in that circumstance, future prospects shall not be more than 40%.In the case in hand, admittedly the deceased was in the age group of 21 to25. The learned Tribunal granted 50% future prospect, which is certainlycontrary to the view taken by the Hon'ble Supreme Court. 25. Therefore the impugned judgment and award is liable to bemodified to the extent of future prospect which needs to be considered40% instead of 50%. Therefore, the Claimant is entitled to receive thecompensation by considering 40% future prospects, as follows:1.Gross yearly income (4000 x 12)Rs. 48,000/-2. 40% Future prospects 48000 x 40%Rs. 19,200/-3. Gross Income for Assessing Compensation(48000 + 19200)Rs. 67,200/-Page 11 of 13
Arguments
FA2886-15.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2886 OF 2015The New India Assurance Company Ltd.,Through its Administrative Officer,Legal Hub,Shri Ravikant Rajendraprasad Yadav,Age 25 years, Occu: Service,R/o Divisional Office- INew India Insurance Co. Ltd.,Adalat Road, Aurangabad....Appellant VERSUS1.Shri Sitaram Pita ChavanAge 60 years, Occu: LabourerR/o Umbarkhed (Satkund)Tq. Kannad, Dist. Aurangabad. 2.Shri Madan Hiraman Chavan (Rathod),Age 47 years, Occu: Business,R/o Satkund Tq. Kannad Dist. Aurangabad... RespondentsMr. Swapnil S. Rathi, Advocate for the AppellantMr. Tapan Kishor Sant, Advocate for Respondent No.1Mr. S. D. Hiwrekar, Advocate for Respondent No.2.CORAM : Y. G. KHOBRAGADE, J.Dated : 30th April, 2024JUDGMENT1. Heard Mr. Swapnil Rathi, the learned counsel for Appellant-Insurance Company, Mr. Tapan Kishor Sant, the learned counsel forpresent Respondent No. 1/original Claimant and Mr. S. D. Hiwrekar, thelearned Counsel for Respondent No.2/owner of offending Vehicle.Page 1 of 13 FA2886-15.odt2. The present appellant/Insurance Company is originalRespondent No. 2, present Respondent No. 1 is original Petitioner/claimant and present Respondent No. 2 is Original Respondent No. 1/contractor and owner of offending vehicle. For the sake of brevity, partiesto the present appeal, hereinafter, will be referred to in their originalcapacity.3. The Appellant/Insurance Company has preferred presentappeal under Section 173 of the Motor Vehicles Act, 1988 and questionedthe legality and validity of the Judgment and Award dated 27.07.2015passed by the learned Member, Motor Accident Claims Tribunal, Dhule inMotor Accident Claim Petition No.187 of 2010, whereby the learnedTribunal allowed the Claim Petition and directed the respondents to paythe compensation to the tune of Rs.6,98,000/- jointly and severally to theoriginal claimant inclusive of N.F.L. amount with interest @ 7.5%.4. The Petitioner/original claimant filed proceeding bearing M.A. C. P. No. 187 of 2010 and thereby prayed for compensation to the tuneof Rs. 3 lakhs with interest @ 18% from the date of filing of claim tillrealization of the amount on the ground that, on 10.11.2006, his sonPundlik was travelling in a vehicle bearing registration No. MH-20-A-5385being a labour and was proceeding towards Durga Khandsari, Khetia(MP) from Umbarkhed Ta. Kannad Dist. Aurangabad for cutting ofPage 2 of 13 FA2886-15.odtsugarcane and it’s transportation to the Sugar Factory. Respondent No.1 isa contractor for providing labour for sugarcane cutting and it’stransportation at Sugar Factory from field of Agriculturist. Respondent No.1 is the owner of the vehicle and on fateful day drove said vehicle in rashand negligent manner, due to which vehicle was turned turtle andaccident has occurred on Mumbai-Agra National Highway near Mori(Bridge) No. 247/2 in which his son Pundlik sustained grievous injuriesand succumbed to the injuries while in “Astha Hospital” at Dhule. 5.According to the claimant, his son was doing labour work ofsugarcane cutting and was earning Rs. 4000/- per month, but due toaccidental death of his son, he has suffered a lot, hence, claimed forcompensation under various heads. According to the Petitioner/originalclaimant, said accident caused due to rash and negligent driving of truckby respondent no. 1 and said truck was duly insured with respondentNo.2/Insurance company. Therefore, respondents are jointly and severallyliable to pay compensation. 6. Though, respondent No.1 owner/driver served with thenotice, but he failed to file written statement. Respondent No.2/InsuranceCompany (present appellant) filed written statement at Exh. 19 andthereby denied the claim of the claimant. Defence of respondent No.2 isthat respondent no.1 was not holding the valid driving licence as well asPage 3 of 13 FA2886-15.odthe was carrying passengers in the goods vehicle, therefore, there is breachof policy. Hence, prayed for dismissal of the claim petition.7. On the basis of rival pleadings, the learned Tribunal framedissues at Exh. 20. In order to prove the claim the petitioner/originalclaimant has filed evidence affidavit at Exh. 21 and proved the contents ofF.I.R. Exh.26, spot panchanama Exh. 29, inquest Panchanama Exh. 28,postmortem report Exh.29. 8. On 27.05.2015, the learned Tribunal passed the impugnedJudgment and award and determined compensation to the tune ofRs.6,98,000/- under various heads as observed in Paragraph No. 13 of theJudgment. Being aggrieved by said judgment and award, the RespondentNo.2/ Insurance company has preferred this present appeal.9. Mr. Swapnil Rathi, the learned counsel for the appellant/Insurance Company, vehemently canvassed that the deceased Pundlik wasnot employed by respondent No. 1 over the insured vehicle. On thecontrary, it is the case of the claimant that at the relevant time, his sonPundlik was travelling on the said vehicle for going to sugarcane factoryfor cutting sugarcane. Therefore, it proves that the deceased wastravelling in the goods vehicle in capacity of passenger and the same act isnot covered under the policy. The learned counsel for the InsurancePage 4 of 13 FA2886-15.odtcompany further canvassed that the claimant has failed to prove that thedeceased Pundlik was employee of respondent no.1-owner/driver of thevehicle or the deceased was engaged in the work of operation of vehicle.On the contrary, the deceased was travelling in the goods carriage vehiclefor going to sugar factory, however, the learned tribunal failed toappreciate the evidence and passed the impugned judgment and award.Therefore it is not sustainable in the eyes of law.10. He further canvassed that the learned tribunal committedgrave error while deciding the claim and granting 50% additionalcompensation under the head of future prospects of the deceased.Therefore, the impugned judgment and award is illegal and bad in law,hence, prayed for quashing and setting aside the same.11. In support of these submissions, the learned counsel for theappellant/insurance company has placed reliance on the following cases:(1) National Insurance Company Ltd. Vs. Pranay Sethi & others 2 (2017)16 SCC 680.(2) Sanjeev Kumar Samart Vs. National Insurance Co. Ltd, AIR 2013 SC1125.(3) New India Assurance Co. Ltd. Vs. Vedwati and others, AIR 2007 SC1334(1)(4) New India Assurance Co. Ltd. Vs. Asha Rani and others, 2002 AIRPage 5 of 13 FA2886-15.odtSCW 5259.(5) National Insurance Company Vs. Rattani and others, AIR 2009 SC1499 .(6) Unreported judgment of this Court -United India Insurance Co. Ltd.Vs. Kalabai Padmakar Jagale and others in First Appeal No. 2881 of2008 (Aurangabad Bench).12. Per contra, Mr. Tapan Kishor Sant, the learned counselappearing for Respondent No.1/ original claimant supported the findingsrecorded by the learned Tribunal. The Counsel for the Respondent no. 1submits that, the claimants specifically pleaded that, the Respondent No.1is contractor for providing labourer for cutting sugarcane andtransportation of sugarcane from agricultural field of farmers to DurgaKhandsari, Khetia. The deceased Pundlik, son of the original claimant, wasemployee of respondent no.1, who is owner and driver of vehicle No. MH-20-A-5385, but due to rash and negligent driving of Respondent No.1,said vehicle turned turtle on Mumbai-Agra National Highway near Mori(Bridge) No. 247/2 in which his son- Pundlik sustained grievous injuriesand succumbed to the injuries.13. The claimant filed evidence affidavit at Exh. 21 andspecifically deposed that at the time of accident, his son was employee ofrespondent No.1 and was earning Rs.4,000/- per month. So also, theInsurance Policy Exh. 21 proves about payment of premium for fivePage 6 of 13 FA2886-15.odtemployees @ Rs.125/- per labour. Therefore, the learned Tribunal rightlyappreciated the evidence available on record and granted thecompensation which does not suffer from any illegality, hence prayed fordismissal of the appeal.14. Having regard to the submissions canvassed on behalf of bothsides, I have gone through the record. It is needless to say that, theclaimants have specifically pleaded in Paragraph No.14 of the claimpetition that, the Respondent No.1 is owner and driver of the truck No.MH-20-A-5385. The Respondent no. 1 is labour Contractor and heproviding labour for cutting of sugarcane and its transportation fromagricultural fields of the farmers to Durga Khandsari. On 09.11.2006,deceased, alongwith other labourer were travelling in Vehicle No. MH-20-A-5385 for going to Durga Factory. Respondent No.1 was driving the saidvehicle from Umberkhad and due to rash & negligent driving of thevehicle by the Respondent accident occurred as vehicle turned turtle andthe deceased Pundlik, son of the claimant sustained serious injuries andhe succumbed due to injuries. 15. The Insurance company though filed written statement atExh. 49, but has not denied the fact that deceased Pundlik was notemployee of respondent no.1. Insurance policy Exh. 21 proves that theappellant/ insurance company has obtained premium for five employeesPage 7 of 13 FA2886-15.odt@ Rs.125/- per labour.16. Respondent No.1 is owner and driver of the vehicle againstwhom offence under Section 62 and 192 of the Motor Vehicles Act came tobe registered with concerned police station. It is an admitted fact that theinjured Pundlik died on 11.11.2006, while hospitalization in AsthaHospital at Dhule. The Postmortem Report Exh. 29 corroborates aboutdeath of deceased due to injuries described in paragraph Nos. 17 and 18of the Postmortem Report, which are accidental injuries. The MedicalOfficer opined that cause of death of deceased is due to head injury.17. In the case of Sanjeev Kumar Samrat (supra), the Hon'bleSupreme Court has observed in Paragraph No. 24 as under:"24. It is worthy to note that sub-clause (i)(c) refers to anemployee who is being carried in the vehicle covered by the policy.Such vehicle being a goods carriage, an employee has to becovered by the statutory policy. On an apposite reading of Sections147 and 167 the intendment of the Legislature, as it appears to us,is to cover the injury to any person including the owner of thegoods or his authorised representative carried in a vehicle and anemployee who is carried in the said vehicle. It is apt to state herethat the proviso commences in a different way. A policy is notrequired to cover the liability of the employee except an employeecovered under the 1923 Act and that too in respect of an employeecarried in a vehicle. To put it differently, it does not cover all kindsPage 8 of 13 FA2886-15.odtof employees. Thus, on a contextual reading of the provision,schematic analysis of the Act and the 1923 Act, it is quite limpidthat the statutory policy only covers the employees of the insured,either employed or engaged by him in a goods carriage. It does notcover any other kind of employee and therefore, someone whotravels not being an authorised agent in place of the owner ofgoods, and claims to be an employee of the owner of goods,cannot be covered by the statutory policy and to hold otherwisewould tantamount to causing violence to the language employedin the Statute. Therefore, we conclude that the insurer would notbe liable to indemnify the insured." 18. In the case of Vedwati & others cited supra, the Hon'bleSupreme Court, in paragraph Nos. 14 and 15 has observed as under:"14. The inevitable conclusion, therefore, is that provisions of theAct do not enjoin any statutory liability on the owner of a vehicleto get his vehicle insured for any passenger travelling in a goodscarriage and the insurer would have no liability therefor. 15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance CompanyLimited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which ithas been held that Satpal Singh's case (supra) was not correctlydecided. That being the position, the Tribunal and the High Courtwere not justified in holding that the insurer had the liability tosatisfy the award."19. In the case of Rattani and others cited supra, it has been heldPage 9 of 13
Decision
FA2886-15.odt4. 50% Deduction towards persons expenses( Rs.67200/2)Rs. 33,600/-2.Multiplier for the Age of 25 is '18' (33600 x 18) Rs.6,04,800/-26. Therefore, considering 40% future prospect, compensationfor loss of income is required to be modified to the tune of Rs.6,04,800/-instead of 6,48,000/- as granted by the learned tribunal.27. In view of the above, I pass the following Order.O R D E R(i) The appeal is partly allowed with proportionate costs. (ii) The judgment and award passed by the Motor Accident ClaimsTribunal, Dhule in M. A. C. P. No. 187 of 2010 dated 27.07.2015 ishereby modified only to the extent of future prospects which arereduced to 40% instead of 50%. However, the impugned judgmentand award is maintained to the extent of remaining compensationunder other heads.(iii) The Respondents to pay the total compensation of Rs. 6,54, 800/-(Rupees Six Lakhs Fifty Four thousand Eight Hundred) inclusive ofNFL, if any, with interest @ 7.5% per annum to the presentrespondent no. 1/original claimant from the date of filing of ClaimPetition i.e. 05.03.2010 till the date of realization of the entireamount.Page 12 of 13 FA2886-15.odt(iv) If the compensation amount is already deposited, presentrespondent No.1/Claimant is permitted to withdraw the amount asper this award and rest of the amount be returned to theappellant /Insurance company.( Y. G. KHOBRAGADE, J. )JPChavanPage 13 of 13