United India Insurance Co. Ltd. Vs Jai Devi

For the appellant:	Mr. Ashwani Advocate with Advocate.	K. Sharma Mr. Ishan	, Senior Sharma,
For the respondents:	Mr. Vivek Sh respondents No.1	arma, Advo to 4.	cate, for
	Mr. P.S. Goverd with Mr. Rakesh respondent No.5.	han, Senior Kumar, Adv	Advocate ocate, for

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Satyen Vaidya, Judge

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The instant appeal has been filed by the insurer to assail award dated 21.07.2016 passed by learned Motor Accident Claims Tribunal-II, Solan in Claim Petition No.35-S/2 of 2013 whereby an amount of Rs.22,61,000/- with interest at the rate of 9% per annum from the date of filing of the petition has been

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awarded in favour of the claimants (respondents No.1 and 4 herein)

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The claimants and owners have also filed their cross objections assailing the impugned award.

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Both the appeal and cross objections are being considered and decided by a common judgement.

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The claimants filed Claim Petition under Section 166

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of the Motor Vehicles Act before the learned Tribunal seeking compensation on account of death of Shri Sita Ram in a motor vehicle accident involving Tractor No. HP-16-1259. It was alleged that on 03.09.2013 deceased Sita Ram was engaged as a labourer by respondents No.5 and 6 herein (hereinafter referred to as “owners”) and in pursuance thereof he was deputed to load and unload the tractor trolley being driven by respondent No.7 (hereinafter referred to as the “driver”). It was also averred that at about 10.00 PM, the Tractor No.HP-16-1259 being driven by driver reached at village Pajopar, Tehsil Pachhad, District Sirmour, H.P. The deceased was also the occupant of the tractor. The driver was driving the tractor rashly and negligently, as a result of which the tractor had fallen in a drain, causing the deceased to fell down from the tractor and suffer multiple bodily injuries resulting in his death.

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The claimants claimed the income of deceased at Rs.

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9000/- per month from such avocation of labour. In addition, the deceased was alleged to be earning Rs.4,000/- from agriculture and additional Rs.3,000/- per month from selling milk. In this manner, the total income of deceased was claimed at Rs.16,000/per month.

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Indisputably, claimant No.1 is the wife, claimants No.2 and 3 are children and claimant No.4 is the mother of the deceased. The age of the deceased at the time of death was 30 years. All the claimants were said to be totally dependent upon the deceased for livelihood.

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Owners and driver filed their joint reply and disclosed the factum of Tractor No.HP-16-1259 having been insured by the appellant herein (hereinafter referred to as the “insurer”) comprehensively for the period 03.08.2013 to 12.08.2014. The averments with respect to deceased earning Rs.16,000/- per month were specifically denied. The allegation of deceased having been engaged for loading and unloading of material was also denied. It was stated that the driver was driving the tractor in a slow speed. The road was narrow at the place of accident. The deceased was standing on the left side of the road, which was sloppy. The deceased appeared to be drunk. When the trolley of

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the tractor was crossing the deceased, he all of a sudden lost balance and fell down, as a result of which he struck against the rear portion of the trolley and suffered injuries. In this manner, the allegations of rashness and negligence on the part of the driver have also been denied. The driver also alleged to be possessing a valid and effective driving license issued by R&LA, Rajgarh, District Sirmaur, H.P.

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8 The insurer in its reply raised the objection that the driver was not possessing a valid and effective driving license at the time of accident. Even the validity of registration certificate of Tractor No.HP-16-1259 was questioned. The deceased was alleged to be a gratuitous passenger. The insurer denied that the deceased was occupying the tractor at the time of accident as a labourer engaged to unload the material.

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Learned Tribunal framed the following issues on

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4.3.2015:

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“1 Whether deceased Sita Ram died in a motor vehicle accident having taken place on 3.9.2013, at about 10:00 p.m. at village Pajopar, District Sirmour, H.P, on account of rash and negligent driving of tractor bearing No.HP-16-1259 by respondent Ramesh, as alleged? OPP.

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2 If Issue No.1 is proved in the affirmative, whether the petitioners are entitled for compensation, if so

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to what extent and from which of the respondents? OPP.

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3. Whether the driver of the offending vehicle was not having valid and effective driving licence? OPR-4.

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4. Whether the vehicle in question was being plied in contravention of the provisions of Motor Vehicles Act and in violation of the terms and terms of the standard insurance policy? OPR-4.

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5. Whether the deceased was travelling in the offending vehicle as gratuitous passenger? OPR-4”

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Issues No.1 and 2 were answered in affirmative

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whereas the remaining issues No.3 to 5 were answered in negative. The claim petition was accordingly allowed and compensation was awarded in favour of claimants as noticed above.

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I have heard learned counsel for the parties and also perused the record carefully.

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Learned Senior counsel for the insurer has contended that the tractor could not be used for allowing any passenger to travel on it. He has referred to the policy of insurance Ext. RW-1/B to assert that no premium had been charged for any passenger. He further submitted that since the deceased was a gratuitous passenger, the insurer was not liable to indemnify the insured. He has also made reference to Rule 28

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of Rules of the Road Regulations 1989. Regulation 28 of said Regulations reads as under:-

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“28. Driving of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver’s cabin more number of persons than that is mentioned in the registration certificate and shall nto carry passengers for hire or reward.”

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Learned Tribunal has disagreed with the objection of

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insurer. Learned Tribunal has held that the deceased was engaged as a labourer by the owners and he was deputed to load and unload the tractor trolley for which purpose the deceased was occupying the tractor at the time of accident.

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Learned Tribunal has also held the driver to be rash and negligent in driving the vehicle at the time of accident. Learned Tribunal concurred with the version of the claimants with respect to mode and manner in which the accident has taken place and for such purpose placed reliance on copy of FIR Ext. PW-5/A.

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In exercise of jurisdiction under Order 41 Rule 33 of the Code of Civil Procedure, this Court holds as under.

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Admittedly, the claimants did not examine any eye witness to the incident. The only firsthand version of the incident was available from the stand of the driver as taken in the pleading and by way of deposition made before the Court.

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Learned Tribunal, in my considered view, has clearly erred in considering the copy of FIR Ext. PW-5/A as substantive piece of evidence. The author of the FIR was not examined. Even the Investigating Officer of the case was not produced in the witness box. The contents of document Ext. PW-5/A reveal that the police official at whose instance the report was lodged had visited the spot on the next day of incident and his report was based on the version given by certain residents of the area, whose names find mention in the report. None of these persons have either been examined in the matter. Thus, the version of the police official reporting the matter was merely hearsay. In absence of the proof of the contents of FIR, those could not be considered as substantive piece of evidence.

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The only eye witness to the incident, who deposed before the Tribunal, was the driver. As per his statement on oath, he maintained that the deceased was standing on the road and struck against the rear of the tractor trolley as a consequence of slip on the road. The driver has been cross-examined at length by

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the claimants and the insurer, but nothing could be found from such cross-examination to shatter his testimony or to make it unreliable. The fact that none of the persons who allegedly had witnessed the incident, as named in Ext. PW-5/A, were examined by the claimants further lends credence to the version of the driver.

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Thus, the finding of the learned Tribunal that the deceased was occupant of the tractor at the time of incident is without any evidence on record and cannot be sustained. What has been proved is that the deceased was standing on the road and had struck against the rear of the tractor trolley driven by the driver, resulting in multiple injuries and consequent death of the deceased. In this view of the matter, the deceased was a third party and since the tractor was insured against third party risk at the time of accident, the insurer cannot avoid its liability to indemnify the insured by claiming the deceased to be a gratuitous passenger.

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As regards the cause of accident, the driver alleged that the deceased appeared to be drunk as a consequence of which he slipped and struck against the rear of the tractor trolley. However, the postmortem report of the deceased does not support this contention, meaning thereby that the deceased was

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sober and was standing on the road. It is also the version of the driver that road was narrow on the spot. That being so, the driver had to be extra cautious when he had seen a person standing on a narrow portion of the road and he should have allowed the person to move away in the first instance and thereafter to drive the tractor further. In absence, the act and conduct of driver clearly amounts to rash and negligent act in driving the tractor on a narrow road without allowing the pedestrian to pass.

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Leaned Senior counsel for the appellant has further submitted that the Tribunal has wrongly considered the income of deceased at Rs.8,000/- per month. According to him reliance was placed by the learned Tribunal on a notification issued by the Government of India under Section 4(1B) of the Employees Compensation Act. He has contended that minimum wages in the State of Himachal Pradesh, at the relevant time, were less than the assumption drawn by learned Tribunal.

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Learned Tribunal held the deceased to be earning Rs.8,000/- per month on the premise that he was working as a labourer. The contention of the claimants that the deceased had been earning extra income from the agriculture and selling of milk did not find favour with the learned Tribunal. It means that the

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learned Tribunal considered the daily wage of the deceased to be somewhere around Rs.260/-.

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It is not in dispute, rather all the respondents admitted that the deceased was working as a labourer. He was a young man of 30 years of age. It can be easily inferred that the deceased could work for extra hours and in such view of the matter the daily wage considered by the learned Tribunal to have been earned by the deceased cannot be said to be unreasonable or unjustified. However, allowance of loss of future prospects to the tune of 50% in favour of claimants by learned Tribunal requires to be reduced to 40% per month, since, the deceased was not employed permanently in any permanent establishment. As per judgments passed by Hon’ble Supreme Court in Sarla Verma Vs DTC (2009) 6 SCC 121 and National Insurance Co.

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Ltd vs Pranay Sethi (2017) 15 SCC 680 , the loss on account of future prospects was to be assessed at 40%. Thus, the loss on account of future prospects in the case of deceased would be Rs.3,200/- per month and by adding the assessed monthly income of Rs.8,000/-, the monthly dependency would be Rs.11,200/- and Rs.1,34,400/- per annum. Learned Tribunal has also correctly deducted 1/4^th of the income of the deceased towards his personal expenses, therefore, after deduction, the

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monthly dependency shall rest at Rs.8,400/- and the same, if annually calculated, will be Rs.1,00,800/-. The multiplier of 17 has rightly been applied and for such reason the total dependency will be Rs.17,13,600/-.

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Further, learned Tribunal has granted Rs.1,00,000/on account of loss of consortium, Rs.1,00,000/- for loss of love and affection to wife, Rs.2,00,000/- to claimants No.2 to 4 on account of loss of love and affection and Rs.25,000/- on account of funeral expenses. As per position settled after the judgment passed by Hon’ble Supreme Court in Magma General Insurance Co. Ltd. Vs Nanu (2015) 18 SCC 230 , each of the claimants were entitled to Rs.40,000/- on account of loss of consortium. In addition, Rs.15,000/- each was awardable on account of loss of estate and funeral charges. Thus, the total compensation awardable to the claimants would be Rs.17,13,600/-+ Rs.1,60,000/- (Rs. 40,000/- for each of the claimants as loss of consortium) +15,000/- (loss of estate) + Rs.15,000/- (funeral charges)= Rs.19,03,600/-. The claimants shall also be entitled to interest at the rate of 9% per annum on the entire awarded amount from the date of filing of petition till the actual payment. 25. In result, FAO No.62 of 2017 is partially allowed. The impugned award is modified in aforesaid terms. The claimants are

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held entitled to compensation amount of Rs.19,03,600/- along with interest at the rate of 9% per annum from the date of filing of petition till the realization of the amount.

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By way of Cross objections, the claimants have sought enhancement of compensation on the premise that learned tribunal had wrongly rejected the income of deceased from other sources viz. agriculture and selling of milk. The record of the case, however, does not support such assertion. No credible evidence was on record to prove such contention. Even assuming in alternative that deceased earned some income from agriculture and selling of milk, no evidence was lead to prove that after the death of deceased the said income had completely stopped for the dependents. Cross Objections No.39 and 45 of 2017 are accordingly dismissed.

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