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Judgment
P.S. Dinesh Kumar, J. - This appeal is filed by the claimants challenging the judgment and award dated 29-4-2009 in MVC No. 203/ 2006 on the file of the I Additional Civil Judge and Addl MACT, Hubballi, for enhancement of compensation.
Heard Shri Dinesh M. Kulkami, learned counsel for the appellants and Shri G. N. Raichur, learned counsel for the respondent-Insurer.
Briefly stated the facts of the case are one Channappa Kare Poojar, son of the claimants, aged about 23 years was travelling in a vehicle carrying milk. The said vehicle bearing registration No. KA-22/B-5505 rammed into a Lorry parked on the road side near Chandia Village on National Highway No. 17, on 25-7-2005 at 2.30 a.m. Due to the impact, Channappa sustained grievous injuries. He was initially treated in Kamala Hospital, Ankola, and subsequently, in KIMS, Hubli, where he succumbed to the injuries. His parents presented the instant petition claiming compensation of Rs. 10,00,000/-. Petition was resisted by the insurer by filing statement of objections. Claimants got two witnesses examined and 15 exhibits marked. On behalf of the respondents, one witness was examined and copy of the insurance policy was marked.
The Tribunal framed the following issues while adjudicating the claim petition.
Whether the petitioners prove that on 25-7-2005 at about 2:30 a.m. on N. H. 17, near Chandiya, while their son Channappa was going in Mini Lorry bearing No. KA-22/B-5505, the driver of the said vehicle was driving it in high speed and rash and negligent manner and thereby lost control over the vehicle and dashed to a parked lorry and thereby their son sustained severe injuries in the accident and succumbed to injuries?
Whether respondent No. 2 poves that respondent No. 1 has violated the policy conditions by allowing the unauthorised passenger in the vehicle?
Whether respondent No. 2 further proves that the driver of mini Lorry was not holding valid and effective driving licence on the date of accident?
Whether the petitioners are entitled for the relief sought?
What award or order?
Answering issue Nos. 1 and 2 in the positive and issue No. 3 in the negative, the Tribunal awarded a compensation of Rs. 4,33,200/- recoverable only from the owner of the vehicle. Claimants are aggrieved by the judgment of the Tribunal absolving the insurer as also the quantum of compensation. Hence this appeal.
Shri Dinesh M. Kulkami learned counsel for the claimants, contended that it is not in dispute that the deceased was travelling in the milk van carrying milk. The said vehicle belonged to ''Krishna Milk Dairy'' and the deceased was working as a helper in the said Dairy. While answering issue No. 2, the Tribunal has recorded a categorical finding that deceased was working in Krishna Dairy and not under the owner of the vehicle. Having come to a conclusion that the vehicle was carrying milk belonging to Krishna Dairy and the deceased was an employee, the Tribunal erred in absolving the insurer because, the deceased was travelling as an authorised representative of the owner of goods namely Krishna Dairy.
Adverting to the insurance policy-Ex. R.l, he contended that a sum of Rs. 75/- has been collected by the insurer to cover the risk of a ''Non Fare Paid Passenger''. Therefore, the Tribunal erred in absolving the insurer from satisfying the award.
With regard to the quantum of compensation, learned counsel for the appellant submitted that the Tribunal erred in assessing the earnings of the deceased as Rs. 120/- per day while computing the loss of dependency. He further contended that the quantum of compensation under conventional heads namely, loss of love and affection, loss of estate and funeral expenses are also inadequate and deserve to be enhanced. With these submissions, he prayed for allowing this appeal.
In reply, Shri G. N. Raichur, learned counsel for the insurer at the outset submitted that the insurer has not preferred any appeal because, the Tribunal has absolved the insurer from satisfying the award. Opposing the appeal, he contended that :
a) The claim petition by the claimants is not maintainable in law as the same is hit by the Doctrine of Res-judicata under Section 11 of CPC. Amplifying his argument on this aspect, he contended that claimants had initially presented a petition for compensation under the Workmen''s Compensation Act, arraying the owner of the insured vehicle and the insurer as party respondents. The said petition came to be dismissed vide order dated 30-5-2007 as per Ex. P.O.
b) The insurer has taken a specific plea in its statement of objections before the Tribunal that the deceased was an employee of Krishna Milk Dairy and the policy was issued in the name of Shivappa Divatihal who is the owner of the vehicle. Therefore, there is no privity of contract inter se between the insurer and Krishna Milk Dairy. Despite having taken such specific plea, the Tribunal has not given any finding on the aspect of privity of contract.
c) Claimants pleadings disclose that the insured vehicle was taken on ''hire basis'' to supply milk using the said van with the help of the helpers. Thus, according to the claimants, the insured vehicle was hired or leased with the dairy. In the absence of a specific lease agreement, as contemplated in IMT 6 (Indian Motor Tariff), the benefit of insurance coverage would not be available to the deceased;
d) P.W.2 was working as Supervisor in the Dairy. Deceased was working as a helper. Thus, the deceased was neither the owner of the goods nor an authorised representative of the owner of the goods namely, the Krishna Dairy and as such he was an unauthorized passenger. By permitting the deceased to travel as an unauthorized passenger, the owner of the vehicle has violated policy conditions. Therefore, the benefit of insurance cover available to a ''Non Fare Paid Passenger'' cannot be extended to the deceased in the instant case.
e) When the claim petition was filed, the ''Krishna Milk Dairy'', whose goods were being transported was not made a party respondent. The proprietor of the said firm although impleaded subsequently, remained absent though out and placed ex parte.
f) Admittedly, the insured vehicle has rammed into the hind side of a Lorry. Parking a vehicle on the road in a dangerous manner is in violation of Section 122 of the Motor Vehicles Act, 1988 (''the Act'' for short). The Tribunal has erred in not recording a finding with regard to the contributory negligence and therefore, even if it is held that the insurer is liable to satisfy the award, in the absence of a specific finding with regard to the percentage of contributory negligence, the insurer cannot be held liable to satisfy the award in full.
With the above submissions, learned counsel for the insurer prayed for dismissal of the appeal.
In the light of the rival contentions, the following point/s arise for consideration of this Court.
i) Whether in the facts and circumstances of the case, insurer is liable to satisfy the award?
ii) Whether the compensation awarded is just and appropriate ?
Re : Liability of insurer : The incontrovertible fact of this case is that the deceased Channappa was travelling in the insured vehicle, which was carrying milk belonging to Krishna Dairy.
The insurer has conceded that deceased Channappa was working with ''Krishna Milk Dairy''. But the petition is sought to be resisted on the ground that the insured was one Shivappa, the owner of the vehicle and therefore, insurer is not liable to satisfy the award. In its statement of objections, the insurer has stated thus :
"03. At the outset it is submitted that as per the police records and also from the investigation report of out company investigator Anand Kalghatagi reveals that insured persons are employees of Krishna Milks Dairy. It is to be noted that the policy was issued in the name of Shivappa Divatinal. Therefore, there is no contract between the Krishna Milk Dairy and this respondent. Therefore, allowing the helper of Krishna Dairy is violation of conditions of policy. Therefore, the deceased was unauthorised passenger in the vehicle." (sic)
It is further case of the insurer that apart from the deceased some other persons too were travelling in the vehicle and thus the owner of the vehicle had violated the policy conditions by permitting unauthorized passengers to travel in a goods vehicle.
Ex. R1 is the insurnce policy, It shows that the insurer has collected Rs. 75/- as premium to cover a ''Non Fare Paid Passenger''. In terms of IMT-37, upon payment of an additional premium the insurer shall indemnify the insured against his legal liability in respect of death or bodily injury to a person not being carried for hire or reward. IMT-37 r$ads as follows :
"IMT 37 Legal Liability to Non-fare Paying Passengers other than Statutory Liability except the Fatal Accidents Act, 1855 (Commercial Vehicles only)
In consideration of the payment of an additional premium of Rs................and not-withstanding anything to the contrary contained in Sections II-1 (b) and (c) it is hereby understood and agreed that the Company will indemnify the Insured against his legal liability other than liability under the Statute (except the Fatal Accidents Act, 1855) in respect of death of or bodily injury to :-
i) Any employee of the within named insured who is not a workman within the meaning of the Workmen''s Compensation Act Prior to date of this endorsement and not being carried for hire or reward.
ii) Any other person not being carried for hire or reward provided that the person is
a) charterer or representative of the charterer of the truck.
b) Any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any Motor Vehicle described in the schedule of the policy.
Subject otherwise to the terms exceptions conditions and limitation of this policy."
As noted supra, the insurer has taken a specific stand that the deceased was an employee of ''Krishna Milk Dairy'' but he was an unauthorized passenger. This argument canvassed on behalf of the insurer is untenable because, once it is conceded by the insurer that the deceased was an employee of Krishna Dairy, then, the status of deceased shall be that of a passenger carrying goods. It is noted that the claimant has averred in para 22 of the claim petition that the vehicle was taken on hire basis to supply milk. This pleading has remained uncontroverted.
The fact that the deceased was an employee working with Krishna Dairy and travelling with milk belonging to Krishna Dairy, leads to an irresistible inference that the deceased was travelling as an agent on behalf of the owner of the goods along with the goods. Further, it is also not in dispute that an additional premium of Rs. 75/- has been collected by the insurer to cover a ''Non Fare Paid Passenger''. Therefore, the finding on issue No. 2 that the deceased shall not be eligible for insurance cover as there is no privity of contract between the Dairy and the Insurer is perverse and unsustainable.
Learned counsel for the insurer sought to explain that no appeal has been filed by the insurer challenging the findings recorded by the Tribunal because the insurer was absolved of its liability. However, it is to be noted that the insurer has not chosen to exercise its right to file cross-objections in this appeal. Resultantly, the finding recorded by the Tribunal with regard to an unsuccessful attempt made by the claimants to seek compensation under Workmen''s Compensation Act has attained finality and binds the insurer. Even otherwise, so far as the ground with regard to res judicata is concerned, despite several opportunities being granted, the insurer could not make available a copy of the claim petition which was said to have been submitted by the claimants before the appropriate authority under the Workmen''s Compensation Act. Ex. P13, relied upon by the insurer only shows that the claimant did not make use of the opportunities given resulting in the dismissal of the said petition filed under the Workmen''s Compensation Act. In other words, the said endorsement is nothing more than a communication of dismissal of the claim made before the said authority for default. The finding recorded by the Tribunal based on pleadings and evidence that the deceased was an employee of Krishna Dairy having attained finality it is unnecessary to deal with the aspect of res-judicata any further.
Therefore, having noted that the insured vehicle was carrying milk belonging to Krishna Dairy and the deceased, an employee with the dairy was travelling in the said vehicle, I am of the considered view that deceased was travelling as an authorised representative of the Dairy along with the ''goods'' and consequently falls within the definition of a ''Non Fare Paid Passenger''. The insurer having collected an additional premium of Rs. 75/- is duty bound to indemnify the owner of the vehicle against the claim arising out of death or injury of a passenger with goods as provided in IMT 37. Therefore, in my considered view the insurer is render liable to indemnify the owner to and satisfy the award.
The next incidental issue is as to whether there was violation of any condition by the owner of the vehicle. Tribunal has recorded a finding that PW2 - Mallesh was working as a Supervisor in Krishna Dairy. He was also an eye-witness and the complainant. The insurer has pleaded in the statement of objections that there were other passengers in the vehicle in question. Owner of the vehicle has not challenged this finding nor he is represented before this Court during the hearing.
It is no more res-integra that ''breach of conditions'' of policy if any, have to be specifically averred and proved. It may be useful to refer to the ruling of the Hon''ble Supreme Court in the case of National Insurance Co. Ltd. v. Swarn Singh and others, reported in (2004) 3 Supreme Court Cases 297 wherein it is held as follows at paragraph No. 110 (iv) :
"(iv) Insurance Companies, however, with a view to avoid their inability must not only eatablish the avalable defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof where for would be on them."
The object of the Motor Vehicles Act is for the benefit of claimants. However, an errant insured cannot be placed at a premium The owner of the vehicle in question has taken a complacent position in this case. He has not filed any objection to the petition The finding of the Tribunal that PW2, the Supervisor working with the Dairy was also a passenger clearly establishes that there were more than one passenger in the insured vehicle. The fact remains that the unfortunate one among them was the deceased who sustained injuries and succumbed to the same Vehicle having been insured, the benefit of insurance coverage cannot be denied to the grief stricken and dependent parents.
In the circumstances, in my considered view, it would be just and appropriate to direct the insurer to satisfy the award and recover the same from the owner of the vehicle.
Re : Quantum: Records disclose that he deceased was aged 23 years. No material is brought on record to indicate the exact earnings of the deceased. The accident has occurred on 25-7-2005. The Tribunal has assessed the notional income of the deceased at Rs. 120/- per day which comes to Rs. 3,600/- per month and the same is just and proper. Since the deceased was a bachelor 50% will have to be deducted towards his personal expenses. Thus, the loss of earnings will come to 50% of Rs. 3,600/- i.e. Rs. 1,800/-. The age of the deceased at the time of death was 23 years. Hence, the appropriate multiplier applicable is 18. With these inputs, the compensation is reassessed as follows :
SI.No. Heads of compensation Amount
Loss of dependency (Rs. 1,800/- x 18 x 12) Rs. 3,88,800/-
Loss of love and affection Rs. 25,000/- x 2 Rs. 50,000/-
Loss of estate Rs. 10,000/-
Transportation of dead body and funeral expenses Rs. 25,000/-
Total Rs.4,73,800/-
Less : Awarded by the Tribunal Rs. 4,33,200/-
Total enhanced compensation Rs. 40,600/-
In the result, I pass the following :-
ORDER
i) Appeal filed by the appellants is allowed in part;
ii) Judgment and Award dated 29-4-2009 in MVC No. 203/2006 on the file of First Additional Civil Judge (Sr. Dn.) and Additional MACT, at Hubballi is modified by awarding an enhanced compensation of Rs. 40,600/-.
iii) Insurer is held liable to satisfy the entire award and granted liberty to recover the compensation amount from the owner of the vehicle in the same proceedings.
iv) Insurer is directed to deposit the entire compensation of Rs. 4,73,800/- with 6% interest pa. from the date of filing of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order.
iv) On such deposit, the Tribunal is directed to disburse the compensation to the appellants in terms of the directions contained in its judgment and award.
No costs.