Mahendra Singh Hora vs Smt. Anita Sahu and Others

Prashant Kumar Mishra, J.—The present appeal u/s 173 of the Motor Vehicles Act, 1988 (henceforth ''the Act'') has been preferred by the owner of the vehicle, truck bearing registration No. CG 04 JA 8163, assailing the award dated 21-4-2009 passed by the Additional Motor Accidents Claims Tribunal (F.T.C.), Bemetara granting compensation of Rs. 4,55,000/- to the claimants/ respondents No. 1 to 7 on their application u/s 166 of the Act. The Claims Tribunal has absolved the insurance company from liability of satisfying the award. Facts of the case, as narrated in the claim petition, in short, are that the deceased along with other Hammals were returning to Village Siltara from Akoli Road after unloading fertilizer on 6-6-2008 and when the vehicle reached at Gidhauri Road, the driver of the vehicle respondent No. 8 Avinash Kumar Yadav drove the vehicle in rash and negligent manner, as a result of which, the deceased came into contact with an overhead electrical wire and died because of electrocution. An offence u/s 304A of the Indian Penal Code was registered against the driver. According to the claimants, the deceased was working as Hammal and was earning Rs. 200/- per day. On account of death of the deceased, the claimants lost the sole bread winner of the family, therefore, they claimed total compensation of Rs. 20,35,000/- on various heads.

The owner and the driver denied the accident as also the income of the deceased. As the vehicle was insured, the said owner and the driver further stated that the liability for payment of compensation is that of the insurance company.

The insurance company/respondent No. 9 herein denied its liability on the ground that 8 persons were travelling in the vehicle, which is contrary to the terms of the policy and that the present is not a case of motor accident but the deceased died because of electrocution.

The learned Claims Tribunal has found that the accident took place while the motor vehicle was in use and the deceased was working as Hammal and his monthly income was Rs. 2,500/-, yearly income Rs. 30,000/- and after deducting 1/4th on his personal expenses, the loss of annual dependency has been calculated at Rs. 22,500/- and after applying multiplier of 18, the total loss of dependency has been calculated at Rs. 4,05,000/-. After awarding compensation on other heads, the total compensation awarded by the Claims Tribunal is Rs. 4,55,000/-. However, the learned Claims Tribunal, while deciding issue No. 5, has found that the vehicle was driven committing breach of terms of the policy of insurance and as such the insurance company is not liable to satisfy the award.

Learned counsel appearing for the appellant/owner has argued that the Claims Tribunal was not correct in holding that the deceased was travelling in the Dala of the vehicle and since the deceased was covered as a Hammal under the policy of insurance, the learned Claims Tribunal should have fastened liability of payment of compensation on the insurance company also. It has also been argued that the amount of compensation awarded is on higher side.

On the other hand, learned counsel appearing for respondent, No. 9/ insurance company has argued that from the statement of eye-witness AW-2 Kashiram Dhiwar, it is proved that the deceased was travelling in the Dala and since the offending vehicle was a goods vehicle in which sitting/travelling in the Dala is not permitted, there is clear breach of the terms of the policy of insurance as the policy does not cover any person who is sitting in the Dala.

AW-1 Anita Sahu is the widow of the deceased. In paragraph 4 of the deposition, she admits that her husband was sitting on the Dala and died because of electrocution. It is not in dispute that the deceased came into contact of a live overhead electrical wire and died of electrocution. AW-2 Kashiram Dhiwar has stated that no goods were loaded at the time of accident and that he was sitting in the cabin along with the driver and helper. From his statement, it is clear that the deceased was not sitting in the cabin but was sitting in the Dala. Thus, the finding that the deceased was sitting in the Dala is clearly born out from the evidence available on record. Even otherwise, if a person is sitting in the cabin of a truck, which is the covered portion, there would not have been any occasion for a person sitting in the cabin to come into contact of a live overhead electrical wire and for this reason also the argument advanced by learned counsel for the appellant that the deceased was sitting in the cabin and not in the Dala is unacceptable. Thus, from the statement of the claimants'' witnesses themselves, it has been proved that the deceased was sitting in the Dala and the insurance company was not required to led evidence to prove this fact which is already established from the statements of claimants'' witnesses.

The insurance policy Ex. D-1 mentions the carrying capacity as 3 persons and the vehicle is insured as public carrier. The policy covers the paid driver, the owner driver and separate premium of Rs. 50/- has been paid for cleaner/ conductor/coolies though it has not been mentioned as to number of coolies covered but since premium of Rs. 50/- is paid, it can be inferred that apart from driver one cleaner/one conductor and one coolie were covered and these are the 3 persons who were permitted to occupy the vehicle in its cabin as the carrying capacity of the vehicle was 3 persons. In the clause limitations for use, it is stated that the policy does not cover use for carrying passengers in the vehicle; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of the Workmen''s Compensation Act, 1923. Reading together the liability as well as the limitations for use clause in the policy of insurance, it would appear that the policy covered one cleaner or conductor and one coolie as passengers in form of employees.

The issue now to be examined is whether such coolie who was sitting in the Dala of the goods vehicle is covered under the policy. Learned counsel for the appellant has argued that since the policy does not specifically provide for sitting in the Dala is prohibited and since one coolie is covered in the policy, there is no breach of the terms of the policy of insurance, however, learned counsel for the insurance company has vehemently argued that since the only place where the driver, cleaner/conductor, and coolie are allowed to occupy the vehicle as employees, is the cabin of the vehicle and not the Dala, which is used for loading /keeping of goods and not for sitting. According to learned counsel for the appellant if the deceased would have occupied and remained seated inside the cabin, there would have been no occasion to come into contact of the live overhead electrical wire and as such his sitting in the Dala itself has caused the accident and the breach of the terms of the policy of insurance is apparent.

In National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, , the Hon''ble Supreme Court has held that the terms of the policy has to be construed as they are and there is no scope for adding or subtracting anything. However, liberally the policy may be construed, such liberalism cannot be extended to permit substitution of words which are not intended.

In National Insurance Co. Ltd. Vs. Baljit Kaur and Others, the Hon''ble Supreme Court has held that having regard to the definition of goods carriage vis-a-vis public service vehicle, it is clear that goods carriage carrying any passenger is not contemplated under the Act as the same must be used solely for carrying the goods. Thus, any person travelling in a goods vehicle either as passenger or otherwise is not covered under the policy of insurance and the insurance company is not liable to indemnify the award.

Yet again, while considering liability of insurance company in respect of owner of goods or his authorised representative travelling in a goods carriage, the Hon''ble Supreme Court, in National Insurance Co. Ltd. Vs. Cholleti Bharatamma and Others, , has held in paragraph 19 of the report that the owner of the goods means only the person who travels in the cabin of the vehicle. Thus, applying the same principle and particularly when in the present case, no goods were loaded in the vehicle at the time of accident and the only place provided for sitting of the driver, cleaner/conductor and coolie, is the cabin of the vehicle, sitting in the Dala was not permitted as Dala is only used for loading/carrying of goods and not for sitting either as cleaner /conductor or coolie or the owner of the goods as held by the Hon''ble Supreme Court in National Insurance Co. Ltd. v. Cholleti Bharatamma and others (supra).

Learned counsel appearing for the appellant has relied on Royal Sundaram Alliance Insurance Company Vs. Lakhan Lal and Others, and Smt. Rambati Madiya and others v. Budanti @ Danteshar Rao and others 2008 (3) CGLJ 413 (DB). However, in view of the judgment of the Hon''ble Supreme Court in National Insurance Co. Ltd. v. Cholleti Bharatamma and others (supra) as also because of the definition on facts, the said judgments are not applicable in the facts of the present case.

Learned counsel for the appellant has also submitted that the amount awarded by the Claims Tribunal is excessive, however, there is no substance in the argument because as against the submission made by the claimants that the deceased was earning Rs. 200/- per day, the learned Claims Tribunal has held that the deceased was earning Rs. 100/- per day. The Claims Tribunal has also taken 25 working days in a month to further reduce the monthly income from Rs. 3,000/- to Rs. 2,500/-. The deceased was aged about 30 years and the number of claimants is 7. For personal expenses of the deceased, the Claims Tribunal has deducted 1/4th of his monthly income, whereas the Hon''ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, in paragraph 30 of the report, has held that where the number of dependent family members is more than 6, the deduction for personal expenses of the deceased should be 1/5th. Moreover, the amount for loss of love and affection has not been awarded separately to each of the claimants. Thus, for all the above reasons, the argument advanced by learned counsel for the appellant is not acceptable and the quantum of compensation awarded by the Claims Tribunal needs no interference. The miscellaneous appeal fails and is hereby dismissed. There shall be no order as to costs.