1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T The New India Asurance Co.Ltd. vs.Mst.Antar Kanwar&Ors. 1. S.B.Civil Misc. Appeal No.1234/2006 Vasudev & Anr. vs.Antar Kanwar & Ors. 2. SB Civil Misc. Appeal No.1240/2007 Under section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 09.06.2006 passed by the Judge, Motor Accident Claims tribunal, Jaisalmer in Claim Case No.24/2005. DATE OF JUDGMENT :: 17th September,2008. PRESENT HON'BLE MR. JUSTICE MANAK MOHTA Mr.Anil Bachhawat for the appellant/s. Mr.K.L.Chouhan ] for the respondent/s. Mr.Rajesh Panwar ] BY THE COURT : 2 Both the appeals are filed against a common order, one of them is filed by the insurer of the vehicle and the other is filed by the the owner of the vehicle, against the judgment and award dated 09.06.2006 by which the learned tribunal has awarded a compensation of Rs.4,40,000/- plus interest in favour of claimants and further directed that the amount determined as compensation be deposited at first instance by the insurer (appellant) and then the insurer will be entitled a right to recover that amount with interest, from the owner of the said vehicle. As both the appeals have been arisen out of the same incident and are based on common questions of law and facts, therefore, they were heard together and are bing disposed of by a common order. Briefly stated, the facts giving rise to the claim petition are that on 20.03.05 , Shyam Singh, deceased who was engaged as labour on truck No.RJ19-4675, was going on said truck from Jaisalmer to Tejmalta, at that time the said truck 3 was being driven by its driver non claimant No. 1, Girdhari Singh in a rash and negligent manne. As a result of which, the truck overturned, Shyam Singh got injured, resulting in his death. The report of the incident was lodged at police station Khuhadi, district Jaisalmer and police, after investigation filed challan against the driver of the said truck. It was stated that the said truck was owned by Vasudev, non-claimant No.2 and was insured with non-claimant No.3 (appellant). A claim petition under section 163-A of the M.V. Act was filed by the grand mother and brothers of the deceased. It was stated in the claim petition that death of Shyam Singh was caused in motor accident due to the rash and negligent driving of the said motor vehicle. Therefore, non-claimants are responsible for payment of compensation. Further, it was stated that at the time of accident, deceased Shyam Singh was of 22 years and he was employed as a labour on said truck and was earning Rs.4,500/- per month by said job. The claimants were dependent on his income and were being benefited by his income but due to death, they suffered loss of income. A total amount of Rs.6,96,000/- was claimed as 4 compensation under various heads. Non-claimants No.1 and 2 in their joint reply denied all the averments made in the claim petition. They did not admit in reply that Shyam Singh (deceased) was employed as a labour on truck. However, they admitted that Girdhari Singh was the driver of the truck and Vasudev was the owner of the truck. Non-claimant No.3, insurer (appellant in appeal No.1234/06) filed its separate reply and denied all the averments made in the claim petition and further stated that the driver of the said truck, at the time of accident ,was not possessing an effective and valid driving licence as such there was breach of policy conditions, therefore, insurer cannot be held responsible for the payment of compensation. It was further averred that deceased Shyam Suingh was travelling in the truck as a gratuitous passenger and risk of passenger was not taken over by insurer , therefore, no liability can be fixed for the payment on appellant and prayed to dismiss the claim petition. 5 The learned Tribunal, on the pleadings of the parties, framed relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation. The claimants, during trial, got examined AW-1 Ganpat Singh (brother of the deceased) and got exhibited certain documents in support of their claim. Non-claimants got examined NAW/1 S.C.Pathak, NAW/2 Girdhari Singh witness in defence. After hearing learned counsel for both the parties, the learned Tribunal held that accident occurred due to rash and negligent driving of the truck and found that the driver of truck was sole responsible for the same. The death of Shyam Singh was caused in said motor accident. The learned tribunal further found that the said truck was insured with appellant during that period but the risk of the person travelling in truck was not taken over by the insurer, therefore, exonerated the insurance company from its responsibility but directed to deposit payment of compensation amount at first instance, with right to recover the same from the owner of the said 6 truck. After considering the age and income of the deceased, determined the compensation and awarded a total sum of Rs.4,40,000/- as compensation, under different heads, with interest @ 9% per annum from the date of filing of claim petition i.e. 16.04.05 , till its realization, vide its judgment and award dated 09.06.2006. Being aggrieved by the judgment and award dated 09.06.06 passed by the learned Tribunal, the New India Assurance Company has preferred SB Civil Misc. Appeal No.1234/2006 while challenging the order for making payment of compensation at first instance to claimants and then to recover the same from owner of truck Vausdev and non- claimants Nos. 2 ,owner and driver, have filed SB Civil Misc. Appeal No.1240/2007, assailing the validity, quantum of compensation and exoneration of insurer from its liability from the payment of compensation. Notices of appeals were given to opposite parties, record was called and both the appeals were heard together. During the course of arguments, learned counsel for the 7 appellant insurer with reference to Appeal No.1234/2006 submitted that admittedly the vehicle in question was a truck and the deceased person Shyam Singh was travelling in that truck and later on, he expired in the accident. It was stated that the deceased Shyam Singh was neither the driver of the truck nor khalasi of the truck. Therefore, his risk was not taken over by the Insurance Company. It was further submitted that Shyam Singh was a gratuitous passenger in that truck and the truck was not meant for carrying passenger. It was a goods vehicle and Insurance Company has not charged any premium to cover the risk of passenger. Learned counsel drew my attention towards the Insurance Policy Ex.A/1 and again he has stressed on the ground that the policy was only with regard to third party risk, along with one employee but that was with regard to driver of the truck. Thus, from all angles, Insurance Company was not responsible for the payment of compensation. The learned tribunal itself has admitted this position, but without any legal basis, has directed to make payment at the first instance and then recover it from the owner of the vehicle. It was urged that the tribunal committed an error in giving such a direction. 8 Learned counsel for the appellant in support of his contention placed reliance on the judgment given in National Insurance Company v. Bommithi Subbhayamma [(2005) 12 SCC 243] and on that basis it was urged that the direction for depositing money at the first instance be quashed and Insurance Company be made completely free from depositing payment before the learned tribunal. Further a request was made that any amount paid or deposited under the award may be ordered to be recovered from the owner of the vehicle. It was also stated that admittedly, the deceased being occupant of the truck, thus as per settled provision of law he cannot be stated to be a 3rd party therefore, under the said policy, he was not entitled to receive any sort of compensation. The learned counsel for the respondents refuted the contention and submitted that Insurance Company was fully responsible to pay compensation. Learned counsel for the appellant with reference to his appeal No.1240/3007 submitted that in this case the learned tribunal has committed a grave error in exonerating the Insurance Company from its 9 liability. It was submitted that the deceased was an employee on the truck. Learned counsel further submitted that in this case, the tribunal has further committed an error, while determining the compensation. It was contended that in this case, the claimants are grand mother and brothers of the deceased. The age of the grand mother is above 70 years and she is residing with other grand sons. Thus, she was not dependent upon the deceased and other claimants are brothers of the deceased, therefore, they cannot be said to be dependent on the deceased. The learned tribunal has not properly appreciated the material available on record from the claimants' side and awarded a compensation on higher side. It was contended that looking to the age of the grand mother, at the most a multiplier of 5 could have been applied. Learned tribunal, ignoring the material facts, has awarded a compensation taking the age of the deceased i.e. between 20-25 years. But in this case, the age of the grand mother was material to consider. Thus, on the basis of the aforesaid submission, it was prayed that appeal of the Insurance Company be dismissed and the awarded compensation 10 amount be modified and Insurance Company be directed to make payment for the same. Learned counsel for the claimant respondents submitted that the learned tribunal has awarded reasonable compensation taking into account the age and income of the deceased, that should be maintained. It was contended that the family of the deceased was to be benefited by the income of the deceased. Therefore, grand mother, as well as brothers of the deceased are interested persons. They are the heirs of the deceased and, therefore, the awarded compensation be maintained and both the appeals may be dismissed. I have considered the rival submissions made by the learned counsel for the parties and perused the finding and conclusion drawn thereon. In appeals, questions question arise for consideration are whether the Insurance Company was wrongly made responsible for depositing the compensation at the first instance with the right to recover the same from the owner of the vehicle ? (2) Whether the awarded compensation is exorbitant and it requires 11 modification ?. First of all, I have considered the contention raised by the Insurance company in support of its appeal. Admittedly, the vehicle in question was a truck , a goods vehicle, which was not meant for carrying passenger. At the time of accident, the deceased was occupant of that truck and during the accident he got expired. Insurance Company has specifically taken a stand that it has not taken the risk of any labour or Khalasi or passenger at the time of issuing policy. Before the learned tribunal,owner and driver of the truck have pleaded in the reply that Shyam Singh was an employee of the truck nor he has appeared before the learned tribunal stating that he was employed as a labour or khalasi of the truck. Thus, for the first time in appeal owner has stated that he was a labour on the truck. The contention of the owner is not sustainable. As the Insurance Company has not charged any premium in respect of any labour. Thus, as the deceased was not proved to be a labour on the said truck, in that case, his risk has not been taken over by the Insurance Company, 12 therefore, the Insurance Company cannot be held responsible for the payment of compensation. The learned tribunal has rightly exonerated the Insurance Company, but while relying on the judgments cited above, the tribunal has directed the Insurance Company to deposit the compensation at the first instance and then recover it from the owner of the vehicle. But as discussed above, where the Insurance Company has not taken over the liability of the labour, therefore, they cannot be directed to first make payment and then recover it from the owner. The contention placed by owner's side are having force. The conclusion gets support from the relevant judgment rendered in the case of National Insurance Company v. Bommithi Subbhayamma (supra ). Thus, on the basis of aforesaid discussion, the appeal filed by the Insurance Company deserves to be allowed and the direction given by the learned tribunal to deposit payment at the first instance is not sustainable and is liable to be quashed. I have also considered the other submissions made by the learned counsel for the owner of the truck in this respect, 13 but they are not sustainable. The deceased cannot be stated to be third party, as he was occupant on that truck. Therefore, the responsibility for paying the compensation only remains solely on the shoulders of owner of the truck. If any amount has been paid by the Insurer of the truck, on behalf of the owner of the truck, then it can be recovered from the owner of the truck. I have also considered the contentions raised with regard to quantum of compensation with special reference to appeal filed by the owner of the truck.. Though the claim petition was filed under section 163A of the M.V.Act, but admittedly claimants are grand mother and brothers of the deceased. The age of the grand mother, at the time of submitting the application is stated to be 70 years. The other claimants are the major brothers of the deceased. Therefore, they cannot be said to be dependent on the deceased but the grand mother was entitled to claim compensation. But her age was required to be taken into consideration. The learned tribunal has not properly appreciated the material in this respect and applying the schedule annexed to Act has awarded compensation of 14 Rs.4,40,000/-, that is not sustainable. In my opinion , looking to the age of the grand mother, the maximum multiplier of 5 can be taken into consideration. Thus, on the estimated income by the learned tribunal of the deceased of Rs.3,000/- per month, after deducting 1/3rd for his own expenses, yearly income comes to Rs.24,000/- and applying the said multiplier, total compensation comes to (2000x12x5) i.e. Rs.1,20,000/-. Further, grand mother is an old lady and other claimants are brothers. They have also been shocked by the death of their brother, therefore, compensation of Rs.2,000/- to each, is further awarded and the total compensation comes to a total of Rs.1,26,000/-. Thus, the compensation awarded by the learned tribunal of Rs.4,40,000/- is reduced to Rs.1,26,000/-. On said amount of compensation, the claimant will get interest @ 9% per annum as awarded by the learned tribunal. On the basis of aforesaid discussion, the appeal filed by the Insurance Company (SB Civil Misc. Appeal No.1234/2006) is allowed and appeal filed by the owner of the truck(SB Civil Misc.Appeal No.1240/2007) is partly allowed with above modification that awarded compensation of Rs.4,40,000/- is 15 reduced to Rs.1,26,000/- and claimants swill get 9% interest thereon. If any amount has been paid by the Insurance Company against the award, then that will be recoverable from the owner of the truck. The owner of the truck is directed to make payment, if any, due to claimants within a period of two months , failing which the claimants will be free to recover the same. Rest of the judgment is maintained. Considering the facts of the case, cost is made easy. (MANAK MOHTA),J. l.george