AI Structured Summary
Not yet generated for this judgment
Judgment
B.R. Dubey, J.—This judgment shall dispose of four Misc. Civil appeals arising out of two claim cases; which were instituted before the
Motor Accidents Claims Tribunal, Indore, u/s 110-A(1) of the Motor Vehicles Act, by the legal representatives of two persons who died in a
motor accident. Civil Misc. Appeal No. 119 of 73 and the connected appeal No. 156 of 73 arise out of the claim case No. 156 of 1968 while
Civil Misc. Appeal No. 120 of 73 and the connected appeal No. 163 of 73 arise out of the claim case No. 157 of 1968 lodged by the legal
representatives of deceased Fakruddin and lnamual, respectively against the owner of the vehicle, its driver and the insurer.
On 19-7-68 at about 8 p.m. motor truck No. 1673 owned by Bhagwandas dashed against the wall of Gambhir river bridge at Gogargaon and
fell into the river when it was coming towards Indore, carrying goats and their keepers Fakruddin and lnamual. On account of the said accident the
goats as well as Fakruddin and lnamual died on the spot. The case of the legal representatives of deceased persons in the respective claims
petitions was that the accident occurred on account of the rash and negligent driving of the truck by the driver Rameshwar.
In both the claims cases the owner of the truck Bhagwandas and the driver Rameshwar took the plea that the accident did not occur on account
of the rash and negligent driving of the truck by the driver and that it was simply a mishap on which the driver had no control. The insurer took the
additional defence that the two persons who were killed in the accident were in fact the owners of the goats and that neither it was required by law,
nor under the policy issued by the insurer, the liability in respect of the death or injury to such persons was covered. In both the claim cases, the
Claims Tribunal held that the accident took place on account of negligent driving of the truck by the driver. It was also held that the two persons
Fakruddin and lnamual who were killed in the accident were travelling in the truck as servants of the owner of the animals and, therefore, the
insurance policy did cover the risk of those persons. Consequently, in claim case No. 156 of 68 instituted by the legal representatives of Fakruddin
the Claims Tribunal awarded compensation amounting to Rs. 13,000/-with costs and the liability of the insurer was apportioned to the extent of
Rs. 9,286.45 with proportionate cost. In claim case No. 157 of 68 lodged by the legal representatives of deceased lnamual, the Claims Tribunal
awarded the compensation amounting to Rs. 15,000/-with costs and the liability of the insurer was apportioned to the extent of Rs. 10,713-50
with proportionate cost. Against the award and decree in claim cases No. 156 of 68 the insurer has filed Misc. Appeal No. 119/73 and the owner
of the truck Bhagwandas has filed Misc. Appeal No. 156 of 73. Similarly against the award and decree passed in claim case No. 157 of 68 the
insurer has filed Misc. appeal No. 120 of 73 and the owner of the truck Bhagwandas filed civil Misc. appeal No. 163 of 73. The Appellants in
these four appeals have reiterated the pleas taken by them in defending the two claim cases.
First of all I shall deal with Misc. Appeal No. 119 of 73 and the connected appeal No. 156 of 73. In Misc. Appeal No. 119 of 73, which is
filed by the insurer Hukumchand Insurance Co. Ltd., the learned Counsel for the Appellant firstly contended that the deceased Fakruddin was
travelling in the truck as an owner of the animals and, therefore, by virtue of the provisions contained in Section 95(1) (b) proviso (ii) of the Motor
Vehicles Act the insurance company is not liable to pay compensation on account of death of Fakruddin. In support of this contention the learned
Counsel for the Appellant referred to the original claim petition in which it was averred that deceased Fakruddin and lnamual were travelling in the
truck as owners of the goats. The contention of the learned Counsel for the Appellant is that the applicants by way of amendment pleaded that
deceased Fakruddin and lnamual were travelling in the truck as owners of the goats. The contention of the learned Counsel for the Appellant is that
the applicants by way of amendment pleaded that deceased Fakruddin and lnamual were travelling in the truck as servants of the owners of the
goats which were being transported simply with a view to fasten the liability on the insurance company. It may be pointed out that the amendment
having been allowed by the Claims Tribunal the amended petition only will be looked into to know the case of the applicants. Therefore, the only
question which arises for consideration is whether there is any evidence to prove that deceased Fakruddin and Inamual were travelling in the truck
as servants of the owner of the goats.
Banshilal (P.W. 1) has appeared in the witness box before the Claims Tribunal and has deposeo that Fakruddin was his servant. He has further
deposed that Fakruddin used to buy goats on his behalf and that on the date of the accident this witness had sent Fakruddin to Dhamnod to buy
goats for him. The Claims Tribunal relying on the evidence of this witness has come to the finding that deceased Fakruddin was the servant of
Banshilal who was carrying the goats in the truck on behalf of his master. To my mind there is no ground to disagree with the Claims Tribunal on
this point.
It is true; that by a strange logic the Claims Tribunal came to a finding that deceased Fakruddin could be treated as the employee of the insured
as well. When the Claims Tribunal had come to a clear finding that deceased Fakruddin and Inamual were travelling in the truck in order to carry
the goods belonging to their masters it could not have given a contradictory finding that the two deceased were the employees of the insured as
well.
However, the question for consideration is whether the Appellant insurance company is liable under the insurance policy to pay compensation
on account of the death of the servants of the owner of the goats. In the The Venguard Insurance Co. Ltd., Madras Vs. Chinnammal and Others,
the Madras High Court had taken the view that where a passenger carried in a goods vehicle in pursuance of a contract of employment with
someone other than the insured, sustained injuries on account of the accident caused by that vehicle, the insurance company will be liable to pay
compensation as it was not essential that the contract of employment should be with the insured only. In Oriental Fire and General Insurance Co.
Ltd. Vs. Gurdev Kaur and Others the High Court of Punjab and Haryana relying on an English decision in Izzard v. Universal Insurance Co. Ltd.
(1937) A.C. 773, held that ''contract of employment'' as envisaged in Section 95(1)(b), proviso (ii) of the Motor Vehicles Act need not necessarily
be with the insured alone and employees of the owner of the goods carried in a truck are as well entitled to the protection of compulsory insurance
u/s 95(1)(b), as the employee of the insured. I am in agreement with the above view taken by the Madras and Punjab and Haryana High Courts. I
therefore, hold that the risk of the servants of the owner of the goats which were being transported in the vehicle was covered u/s 95(1)(b) proviso
(ii) and hence the Appellant insurance company is liable to pay the compensation.
The learned Counsel for the Appellant, in the alternative, contended that Banshilal (P.W. 1) has deposed that he used to pay Rs. 300/- per
month to deceased Fakruddin by way of wages and hence the liability to pay compensation to the legal representatives of the deceased on account
of the fatal accident would be governed by the Workmen''s Compensation Act and as per Schedule IV read with Section 4 of that Act, the
amount of compensation payable could not exceed Rs. 8,000/-. To my mind, this contention is not tenable. In the instant case the deceased
persons were not the employees of the truck owner and hence their legal representatives could not claim compensation from the truck owner under
the Workmen''s Compensation Act.
The claim for compensation is made on account of the fatal accident of the truck which resulted due to the negligence of the truck owner''s driver.
Therefore, the deceased persons were third parties who were travelling in the truck under the contract of employment with the owner of the goats
for the transportation of which the truck was hired. Under these circumstances, the extent of liability of the owner of the truck as well as that of the
insurance company would be governed by the Motor Vehicles Act and not by the Workmen''s Compensation Act. The decision in T.M.
Venkatarajan and Another Vs. T. Abdul Munaf Sahib and Others, relied on by the learned Counsel for the Appellant would not be applicable
because in that case the cleaner of the vehicle had died on account of the negligence of the driver. It was, therefore, held that u/s 95 of the Motor
Vehicles Act a statutory duty was cast upon the insurance company to indemnify the insured against any liability to pay compensation to his
employee under the Workmen''s Compensation Act. Therefore, u/s 95(2) (a) as it stood at the time of the said accident, the total limit of the
insurance company to indemnify on account of the fatal accident was Rs. 20,000/-. The Claims Tribunal has apportioned the liability of the
Appellant within the said limit for paying compensation to the legal representatives of the two persons who died in the accident. Therefore, Misc.
Appeal No. 119 of 73 filed by the insurance company having got no force must be dismissed.
Now I come to the connected appeal No. 156 of 73 filed by Bhagwandas the owner of the truck. This Appellant has challenged the finding of
the Claims Tribunal that the accident occurred on account of rash and negligent driving of the driver. The evidence of Siraj (P.W. 5) and Latif
Khan (P.W. 6) clearly establishes the fact that the accident took place on account of the negligent driving of the truck. Both these witnesses were
travelling in the truck. They have deposed that the drive was driving the truck at high speed. When the truck was passing through the Gambhir liver
bridge, the driver in order to save the consumption of diesel changed the gear to make it in the neutral position and allowed the truck to roll with
the result that the driver lost the control of the truck and it dashed against the wall of the bridge. It appears that on account of the high speed the
truck broke the wall of the bridge and fell into the river. I, therefore, agree with the finding of the Claims Tribunal that the accident took place on
account of the rash and negligent driving of the truck by the driver.
The next contention of the learned Counsel for the Appellant Bhagwandas is that the Claims Tribunal has not made any deduction on account
of lump sum payment and uncertainty of life. He has placed reliance on certain decisions of different High Courts in which the deduction on account
of lump sum payment was made in the range of 15 to 20 per cent In the instant case, it may be noted that from the evidence of Banshilal (P.W. 1)
it is clear that he used to pay a sum of Rs. 300/- per month to deceased Fakruddin. The Claims Tribunal has found that at the time of the death of
the deceased his age was 45 years. It also held that the normal expectation of life was 70 years. Even in case the normal expectancy of life were to
be taken as 60 years, the deceased could have supported the family atleast for 15 years. Therefore, the loss of the income to the family at the rate
of Rs. 300/- per month if multiplied by the number of months of the expectancy of life would lead to a larger sum than that which has been
awarded by the Claims Tribunal to the legal representatives of the deceased. It may be noted that the Claims Tribunal by awarding the
compensation has taken into consideration the shortened expectation of life. Therefore, the award of compensation amounting to Rs. 13,000/-
being quite reasonable, it is not necessary to make further reduction on account of the lump sum payment. I am, therefore, of the view that Misc.
Appeal No 156 of 73 filed by Bhagwandas the truck owner has got no force and it must be dismissed.
Now coming to Misc. Appeal No. 120 of 73 and the connected Misc. Appeal No. 163 of 73, it may be noted that they involve common
questions of facts and law which have already been discussed above while dealing with Misc. Appeal Nos. 119 of 73 and 156 of 73. These
appeals arise out of the claim case No. 157 of 68 filed by the legal representatives of deceased Inamual who also died in the same accident. The
deceased Inamual was also travelling in the truck as the servant of the owner of the goats by name Fakir Mohammad, who is Petitioner''s witness
No. 3. This witness has also deposed that he used to pay Rs. 300/-per month to deceased Inamual. Zulfinnissa (P.W. 2), the widow of Inamual
has deposed that her husband used to pay her Rs. 250/-per month for the maintenance of the family. The Claims Tribunal has come to the finding
that age of Inamual was 35 years at the time of the accident and that on account of his death there was loss of Rs. 250/- per month to his
dependents. In this case also the Claims Tribunal has taken the normal expectancy of life as 70 years. The deceased, therefore might have survived
for 35 years. In case the loss of income of the dependents of the deceased at the rate of Rs. 250/- per month were to be multiplied with the total
months of the normal expectancy of the life of the deceased the amount of compensation could have been assessed at a very high amount.
However, the Claims Tribunal taking into consideration the uncertainty in life has awarded lumpsum compensation of Rs. 15.000/- only. Therefore,
for the reasons already stated above while dealing with Misc. Appeal No. 119 of 73 and connected Misc. Appeal No. 156 of 73, Misc. Appeal
No. 120 of 73 and the connected appeal No. 163 of 73 must also be dismissed.
In the result all the four appeals i.e. Misc. Appeal Nos. 119 of 73, 156 of 73, 120 of 73 and 163 of 73 having got no force are hereby
dismissed accordingly. Looking to the facts of the case no order as to costs.