JUDGMENT
Lokeshwar Singh Panta, J.
1. By
this common judgment we propose to dispose of a batch of nine appeals and one miscellaneous petition, namely, FAO (MVA) Nos. 160/98, 164/ 98, 29/99, 30/99, 32/99, 33/99, 57/99, 147/99, 152/99 and Miscellaneous Petition No. 7 of 1999, since these arise out of one of (and) the same accident which occurred at 2.30 p.m. on June 29, 1996 involving truck bearing Registration No. HP-18-4974 in which many persons were said to have died and resulting injuries to others. It will be useful to give certain facts which are common
for these cases.
2. Truck No. HP-18-4974 was engaged by several persons on 29th June, 1996 for carrying their tomatoes consignments to the market. The owners of the goods were travelling in the said truck owned by Bharat Sharma. When the owners of the goods were traveling in the truck with their tomatoes consignments and were returning from Kheri in the truck after obtaining G. Rs., the truck met with an accident near village Chhapang on Nanan-Rajgarh road, when it fell down on a side of the road due to rash and negligent driving of its driver. The truck in question was said to have been insured with Oriental Insurance Company-appellant herein at the time of the accident. Many persons died in the accident and others who survived received grievous injuries on their body in the accident. The dependants and the legal representatives of the deceased persons and the injured themselves filed Claim Petitions before the Motor Accident Claims Tribunal (I), Sirmour District at Nahan claiming different amount of compensation against the appellant-Company and owner of the truck.
3. In his written statement respondent-owner of the truck has not denied the accident or the factum of the death or injuries to the persons who had died or injured in the course of the accident. He also admitted that the victim who died in the accident or those persons who suffered injuries were travelling in the truck with their tomatoes consignments, which were loaded in the truck. However, respondent-owner has disputed the allegation of the claimants that the driver of the truck was driving the truck rashly and negligently. The employment of the deceased persons and injured and their income are not admitted by the owner in his written statement. During the proceedings of the claim petitions one Vishal Sharma who is said to be the co-owner of the truck in question was impleaded as respondent by the Tribunal below who has not filed separate reply to the claim petitions.
4. The appellant-Company in its written statement has taken the preliminary objection that the driver of the truck did not possess a valid driving licence and, therefore, the appellant-Company was not liable to pay the compensation to the claimants. It is also stated by the appellant-Company that the truck involved in the accident was being plied in utter disregard and violation of
the terms and conditions of the policy inasmuch as 30 persons were being carried in the truck as unauthorised passengers and on this ground also the appellant-Company has sought to avoid its liability to pay any compensation to the claimants. On merits, the appellant-Company has denied that the persons who died or received injuries in the accident were travelling in the truck in question with their tomato consignments and pleaded that all those persons were travelling in the truck in question for joy ride as unauthorised passengers.
5. On the controversial pleadings of the parties, the Tribunal below framed issues. After conclusion of the trial, the Tribunal held that the accident had occurred due to rash and negligent driving of the vehicle in question by its driver Dev Raj and consequently held that all the claimants who are dependants and legal representatives of deceased passengers and injured persons of the accident are entitled for compensation. The Tribunal held that the payment of the compensation shall be the liability of the owners of the truck in question, namely, Bharat Sharma, Vishal Sharma and the appellant-Company being the insurer of the truck in question shall be liable to indemnify the claim and payment of the compensation to the claimants. Eight Claim Petitions Nos. 59-N/2 of 1996, 60-N/2 of 1996, 61-N/2 of 1996, 62-N/2 of 1996, 63-N/2 of 1996, 64-N/2 of 1996, 65-N/2 of 1996 and 66-N/2 of 1996 came to be decided by the Tribunal vide award dated 26-7-1997. Claim Petition Nos. 01-N/2 of 1997 and 02-N/2 of 1997 came to be decided on 27-11-1997 and M. A.C. Petition No. 143-MAC/ 2 of 1997 was decided by the Tribunal on 31st August, 1998.
6. Feeling aggrieved against the awards of the Tribunal below, the appellant-Company filed separate appeals and one petition under Article 227 of the Constitution of India challenging the correctness and validity of the awards of the Tribunal below on various grounds; that the appellant-Company was not liable to pay the compensation as there was violation of policy conditions inasmuch as at the relevant time the vehicle was being driven by person without valid driving licence; that the vehicle was being driven in violation of law and also in violation of insurance policy conditions, inasmuch as, it was carrying a large number of unauthorised passengers
in a goods vehicle and as such no liability could be attached to the appellant-Company and that the learned Tribunal passed the awards based upon conjectures and surmises and not upon facts and law.
7. We may now deal with the case of individual claimants in all these appeals and petition under Article 227 of the Constitution of India.
FAO (MVA) No. 160 of 1998
8. Respondent-claimant Sukh Pal was travelling in the truck in question on 29th June, 1996 when he was working as a labourer for loading and unloading the tomatoes consignments on the truck and also himself was carrying his own tomatoes consignments in the said truck. He sustained injuries in the course of the accident. The respondent-claimant has claimed his age to be of 26 years and his earning at Rs. 3,000/- per month as daily wages labourer with Forest Department and also by working as agriculturist and Horticulturist. In the accident, he had sustained compound fracture of his RB right leg and other multiple injuries over his body and remained admitted initially at Civil Hospital, Rajgarh and thereafter in Indira Gandhi Medical College at Snowdon Hospital, Shimla for about 25 days. The respondent-claimant had claimed different amounts under heads of medicines, conveyance, boarding and lodging of attendants at Shimla, Rs. 60,000/- expenditure of his future treatment and Rs. 1500/- per month loss to his earning by working as daily wages labourer with the Forest Department. The Tribunal on the basis of oral evidence of the injured witnesses, copy of the F. I. R. (Ext. P-1) and also the evidence of Dr. Gulshan Narang (PW-3) and private medical practitioner Dr. Anit Deen (PW-6), disability certificate (Ext. P-46) and prescription slip (Ext. P-4) recorded the finding that the respondent-claimant had sustained injuries because of rash and negligent driving of the truck by its driver and consequently awarded Rs. 82,400/- in favour of the respondent-claimant and against the owners of the truck in question and appellant-Company jointly and severally on various accounts along with interest at the rate of 12% per annum from the dateof filing of the claim petition till the date of payment besides costs of Rs. 2,000/-.
FAO (MVA) No. 164 of 1998
9. In this appeal respondent-claimant Ranjit
Singh who was working as part-time Postman in the Post and Telegraph Department was travelling in the truck in question on the day of the accident. He was engaged as labourer in the truck in question for loading and unloading the tomatoes consignments and also he himself was carrying his own tomatoes consignments in the said truck. He sustained injuries in the course of the accident. He claimed his age as 26 years and earning at Rs. 3500/- per month as part-time worker in the Postal Department as labourer and also by working as agriculturist and horticulturist- In the accident respondent-claimant had sustained fracture of pelvis, fracture of trochanteric of right femur and other multiple injuries over his body. Initially he remained admitted in Civil Hospital, Rajgarh and thereafter he undertook treatment as indoor patient in Indira Gandhi Medical College and Hospital, Shimla where he remained admitted w.e.f. 30-6-1996 to 5-9-1996. The respondent-claimant claimed different amounts under different heads. Consequently, the learned Tribunal below awarded a sum of Rs. 1,18,600/- in favour of respondent-claimant and against the owners of the truck in question and appellant-Company besides interest at the rate of 12% per annum and costs of Rs. 2,000A.
FAO (MVA) No. 29 of 1999
10. In this appeal respondent-claimant Ranjit claimed a sum of Rs. 2,00,000/- as compensation for the injuries sustained by him during the course of the accident. The respondent-claimant himself has not appeared as witness before the Tribunal and on his behalf his father Surat Singh appeared as PW-6. Respondent-claimant Ranjit was travelling in the truck in question as owner of the goods and had suffered injuries on his head, arm and hip in the accident. His discharge slip (Ext. PG) was brought on record issued by the doctor from Civil Hospital, Rajgarh where he remained admitted. He claimed compensation on various heads. Consequently, the Tribunal below awarded a sum of Rs. 18,000/- along with interest at the rate of 12% per annum and costs of Rs. 1,000/-. The Tribunal below decided as many as eight claim petitions by way of common awards on 26-7-1997 which are subject-matters of this appeal and other connected six appeals being FAO (MVA) Nos. 30/99, 32/99, 33/99, 57/99, 127/99 and 152/99.
FAO (MVA) No. 30 of 1999
11. Respondent-claimant Kushal is said to have sustained injuries in the accident of, truck in question. The respondent-claimant has not appeared as witness before the Tribunal and on the other hand his father Shri Ranbir (PW 7) has been examined who deposed that his son Kushal was travelling in the truck in question on the relevant day with his tomatoes consignments. According to the version of PW-7, respondent-claimant had sustained fractures and head injuries in the accident but it is noticed by the Tribunal below that no proper evidence was adduced to prove these facts. The Tribunal on the basis of assessment of the evidence has awarded a sum of Rs. 35,200/-in favour of the respondent-claimant and against the appellant-Company and owners of the truck in question on different counts along with interest at the rate of 12% per annum and costs of Rs. 1,000/-.
FAO (MVA) No. 32 of 1999
12. The respondent-claimant has claimed compensation of Rs. 1,00,000/- for the injuries sustained by him in the accident. His age was 18 years at the time of the accident and he claimed that he was earning Rs. 5,000/- per month. He was travelling in the truck in question with his tomatoes consignments. While appearing as PW-8 he deposed that he suffered injuries on his head and other parts of the body. He had also suffered fracture of arm as a result of which his thumb has become disfigured. Initially he remained admitted in the Civil Hospital, Rajgarh for three days for his treatment and produced on record his discharge slip Ext. PG. Consequently, the Tribunal awarded a sum of Rs. 25,000/- as compensation amount under provisions of Section 140 of the Motor Vehicles Act, 1988 along with interest at the rate of 12% per annum and costs of Rs. 500/- in favour of the respondent-claimant and against the appellant-Company and owners of the truck in question.
FAO (MVA) No. 33 of 1999
13. In this case respondent-claimants Jaswant Singh and Smt. Soma Devi are the parents of deceased-Ashok Kumar who died in the accident and his age was about 18 years. Respondent-claimant Jaswant Singh appeared in the witness box and stated that Ashok Kumar was his only son. He deposed that Ashok Kumar used to look
after agriculture and he (Ashok Kumar) had purchased lands at three occasions in his own name. Ashok Kumar was stated to be growing vegetables like tomato, peas and potato etc. and from his agricultural income Ashok Kumar used ‘ to earn Rs. 50,000-60,000 per annum. Respondent-claimant had claimed a sum of Rs. 8,00,000/- as compensation in respect of death of Ashok Kumar. The learned Tribunal on the basis of the evidence on record recorded that since Ashok Kumar is not shown to be having any special education, training or qualification, he was only looking after the agricultural work of his father and on the basis of such work a sum of Rs. 1500/- per month has been determined as loss to the estate of the respondent-claimant due to the death of their only son. The Tribunal deducted a sum of Rs. 500/- on account of personal expenditure of the deceased and consequently the loss of dependency suffered by the respondent-claimant was worked out to Rs. 1000/- per month or Rs. 2,000/- per annum. The Tribunal applied multiplier of 15 and awarded total amount of Rs. 1,80,000/- in favour of the respondents-claimants. The conventional sum of Rs. 5,000/- as funeral expenses and loss of life expectancy was also awarded granting total amount to the extent of Rs. 1,85,000/- in favour of the respondent-claimant and against the owners of the truck and appellant-Company besides interest at the rate of 12% per annum and costs of Rs. 1,000/-. The amount of compensation was proportionate to the shares of respondents-claimants to the extent that mother of the deceased would get Rs. 1,00,000/- whereas his father would get Rs. 86,000/-.
FAO (MVA) No. 57 of 1999
14. Respondents-claimants are the parents of deceased-Kamal Raj. According to the version of respondent-claimant Nanta Ram, the age of his son was 16 years at the time of the accident and the deceased was earning a sum of Rs. 4,000/- by cultivating potato crop etc. before his death. The respondents-claimants claimed a sum of Rs. 8,00,000/- as compensation in respect of death of their only son. The learned Tribunal on the basis of the evidence on record determined a sum of Rs. 1000/- per month as loss to the estate. The Tribunal applied multiplier of 15 and awarded compensation of Rs. 1,80,000/- and added a sum of Rs. 5,000/- as conventional damages. Consequently, the total amount of compensation awarded to the respondents-claimants was Rs. 1,85,000/- along with interest at the rate of 12% and costs of Rs. 1,000/-. The father of the deceased was awarded Rs. 86,000/- whereas mother was held entitled to Rs. 1,00,000/-.
FAO (MVA) No. 147 of 1999
15. In this appeal the respondents-claimants are the parents, wife, minor daughter and minor son of deceased Ram Pal Singh who died in the accident at the age of 23 years. Respondents-claimants claimed a sum of Rs. 10,00,000/- as compensation for untimely death of Ram Pal Singh. According to the version of respondent-claimant Jagmohan, father of the deceased, the deceased was earning a sum of Rs. 5,000/- per month by doing the work of masonry and agriculture before his death. The Tribunal assessed monthly income of the deceased at the rate of Rs. 1500/- and out of this amount Rs. 500/- was deducted for personal expenditure of Ram Pal Singh. The loss to the estate has been assessed to Rs. 1000/- per month and multiplier of 18 was used by the Tribunal determining the total loss of dependency suffered by the respondents-claimants to the tune of Rs. 2,16,000/-. In addition to this amount a sum of Rs. 5000/- as conventional damages were also awarded raising amount of compensation to the tune of Rs. 2,21,000/- with interest at the rate of 12% per annum and costs of Rs. 1,000/- was also awarded in favour of the respondents-claimants. Out of the award amount of compensation the father and mother of the deceased have been awarded a sum of Rs. 30,000/- each and minor children a sum of Rs. 50,000/- each whereas Smt. Kamla wife of the deceased was awarded Rs. 62,000/-.
FAO (MVA) No. 152 of 1999
16. In this case respondent-claimant Ram Inder made a claim of Rs. 5,00,000/- as compensation for the injuries suffered by him in the accident. He appeared as PW-5 and deposed that he was travelling in the truck in question along with his twenty tomatoes consignments when the truck met with an accident. He is said to have suffered injuries on his body and remained admitted in Civil Hospital, Rajgarh and thereafter in Indira Gandhi Medical College, ‘Shimla for one month. According to him, he suffered injuries on his head and, therefore, he still is not in a position to read properly and he also finds it
difficult to attend his daily pursuits. He also stated that a rod was fixed in his leg. The learned Tribunal on the basis of the evidence has awarded a total sum of Rs. 56,400/- in favour of the respondent-claimant under various heads along with interest @ 12% per annum and costs of Rs. 1,000/-.
CMPMO. No. 7 of 1999
17. This petition has been filed by the petitioner-Insurance Company under Article 227 of the Constitution of India challenging the award passed by the Motor Accidents Claims Tribunal-1, Sirmour District at Nahan in M. A. C. Petition No. 143-MAC/2 of 1997 decided on 31st August, 1998 whereunder an award of Rs. 7,000/- as compensation amount was passed in favour of respondent-claimant and against the owners of the truck in question and petitioner-Company. In his claim petition, respondent-claimant claimed a sum of Rs. 2,00,000/- as compensation on account of injuries suffered by him in the accidental truck. The respondent-claimant pleaded that he boarded the truck after loading his tomato boxes from village Khairi and he was occupying the truck as owner of the tomato boxes, The truck met with an accident at village Chhapang due to rash and negligent driving by its driver. The respondent-claimant is said to have sustained injuries including head injury in the course of the accident. He initially remained under treatment in Civil Hospital, Rajgarh from 29th June, 1996 to 2nd July, 1996 where he spent huge amount for his treatment. The learned Tribunal on appraisal of the evidence on record awarded a total sum of Rs. 7,000/- on account of medical treatment and attendants etc. and for pain, shock and suffering to the respondent-claimant and against the petitioner-Company and owners of the truck in question. In addition to the amount of compensation interest at the rate of 12% per annum and costs of Rs. 500/- was also awarded in favour of the respondent-claimant by the Tribunal below.
18. Now we propose to deal with the submissions made by the learned counsel on either side. Mr. Rajeev Mehta, learned counsel appearing on behalf of the appellant-Company contended that all the occupants of the goods vehicle were travelling in the truck in question unauthorisedly and they are not covered under the Insurance Policy. He also contended that the driver of the truck in question was not possessing a valid driving licence at the time of the accident. Both these contentions have to be rejected for want of evidence. There is no evidence to show that the victims and injured persons were travelling as an unauthorised passengers. The evidence led by the respondents-claimants has conclusively proved on record that the victims and the injured persons were travelling in the goods vehicle as owners of their goods. There is no rebuttal to the evidence of the respondents-claimants led either by the owners of the truck in question or the appellant-Company. Therefore, the Tribunal below has rightly hold that the victims and the injured persons were travelling in the truck in question as owners of their goods.
19. The learned counsel for the appellant-Company next contended that if the victims and the injured persons-claimants were travelling in the goods vehicle as owners of their goods, the appellant-Company is not liable to pay the amount of compensation to the respondents-claimants in the light of the judgment of the Apex Court in Smt. Mallawwa v. Oriental Insurance Co. Ltd., AIR 1999 SC 589. We are afraid that we cannot accept this contention of the learned counsel for the appellant-Company. There is no dispute about the proposition settled by the Apex Court in the case of Smt. Mallawwa holding that the Insurance Company is not liable in case of death of owners of goods carried in a goods vehicle. The Hon’ble Judges of the Apex Court has very specifically stated in paragraph-13 of the report that the interpretation of Section 95 of the 1939 Act will govern the cases which have arisen under the 1939 Act and not to the provisions of Section 147 of the Motor Vehicles Act, 1988. Therefore, the ratio of the judgment of the Supreme Court in Smt. Mallawwa’s case (supra) has no application in the facts of the present cases.
20. In the present cases, admittedly the accident took place on June 29, 1996 and the provisions of Motor Vehicles Act, 1939 will not govern the cases in hand. The 1939 Act is now replaced by the 1988 Act. Section 147 which corresponds to old Section 95 has been substantially altered by the Legislature and the present cases will be governed by the Motor Vehicles Act, 1988. Section 147 of the 1988 Act provides for requirement of policy and limits of liability and it reads as under :
“(1) In order to comply with the requirements
of this Chapter, a policy of insurance must be a policy which –
(a)…….
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place…….”
21. The word ‘injury’ to any person including owner of the goods or his authorised representative carried in the vehicle has been inserted by Section 46 of Act No. 54 of 1994 and the Motor Vehicles (Amendment) Act, 1994 was made applicable w.e.f. 14th November, 1994; and the present cases will be governed by the provisions of Act No. 54 of 1994 under which owner of the goods or his authorised representative carried in the vehicle in respect of his death or bodily injury is entitled to compensation and the Insurance Company shall pay the amount of compensation in such cases. In view of this legal position, the Tribunal has rightly held the appellant-Company to pay the amount of compensation to the respondents-claimants who are either legal representatives of the deceased or injured passengers. The appellant-Company is under statutory obligation to pay the amount of compensation and it cannot take the shelter that such passengers are not covered under the Insurance Policy as it has failed to prove the Policy, its exclusions and breach thereof to show that the appellant-Company is exempted from such liability. The view we have taken against the appellant-Company in these appeals stand supported by two Division Bench decisions of this Court in Oriental Insurance Co. Ltd. v. Puni Devi, 1995 ACJ 486 and National Insurance Co. Ltd. v. Bhag Devi, 1998 ACJ 235.
22. No other contention has been raised by the learned counsel appearing on either side.
23. In the result for the reasons stated above, we find no merit in these appeals and CMPMO.
No. 7 of 1999 and these are accordingly dismissed. The parties are left to bear their own costs. CMP(s), if any, in these appeals shall also stand disposed of.