National Insurance Co. Ltd. vs Arvind Kumar and Another

Amitava Lala, J.—The awarded amount of compensation in this case is Rs. 1,74,500 as per the judgment and order dated 15th February, 2008, passed by the concerned Motor Accident Claims Tribunal, Etawah.

By preferring this appeal, the appellant Insurance company has stated before this Court that the claim petition was filed u/s 163A of the Motor Vehicles Act, 1988 when the award was given in favour of the brother of the deceased which cannot be given according to the ratio of the Supreme Court Judgment rendered in the cases of Mrs. Hafizunbegum v. Md. Ikram Heque and Ors. 2007 (4) TAC 1 : 2007 (4) AWC 3366 (SC). He said that brother cannot be said to be dependant, therefore, entitlement of the dependant is to be considered while assessing the quantum applying the multiplier system. In other words multiplier is a measure. From the said judgment we find that the Court held that in terms of Section 140 of the Act entitlement of a person does not cease because of absence of dependency.

According to us, Court held that Irrespective of proof of dependency, one can get compensation for an amount at least in terms of Section 140 of the Act.

He further cited a few other Judgments to establish before this Court that as because the application is made u/s 163A of the Act, that does not necessarily mean that there would not be any proof of any negligence. Such Judgments are in the cases of Appaji (Since deceased) and Anr. v. M. Krishna and Anr. 2005 (1) TAC 994 (Kant) and Kanhaiya Lal and Anr. v. Sitabai and Ors. 2004 (3) TAC 934 (MP). According to Mr. V.K. Birla, learned Counsel for the appellant, when there is no proof as required under the law as to whether the deceased himself was negligent or not, even if the proceeding is u/s 163A of the Act, compensation cannot be allowed to be paid apart from the question of dependency as agitated by him at first.

We are of view that we have to go by given case because in case of applicability of the Act on account of payment of compensation varying from case to case depending upon the factual circumstances. In the present case, the factual situation is that the deceased was travelling by tractor trolley of the Forest Department as labourer. A truck was hit. The deceased before his death, fell down from the tractor trolley and died. Neither an issue was framed nor a written statement was filed on account of dependency. On the contrary the Court held that the brother was living with the deceased which is Implied answer to the cause giving a presumptive value in absence of the specific case of the insurance company.

So far as negligence part is concerned, we have to consider a recent Supreme Court Judgment in the case of New India Insurance Company v. Darshna Devi and Ors.AIR 2008 SCW 2035 : 2008 (2) AWC 1154 (SC), where it was held that the deceased was labourer and was also owner of the goods transported in offending vehicle to market for sale sitting on the mudguard of the tractor. Even in such case the Court held that so far as third party risk is concerned, that cannot be avoided and as such granted relief in favour of the claimants. However, in passing such order the Court also held that the insurance company, if required to realise the dues, need not file any separate execution petition against the owner of the vehicle which is Insured to insurer but such realisation or recovery of dues can be proceeded before the Tribunal and in such a case, the Tribunal shall take appropriate steps in this behalf.

We are of view that the factual difference in both the cases are that in that case the labourer was himself owner and in this case the labourer was sitting in the tractor-trolley along with the owner but so far as the other vehicle is concerned, being the offending vehicle, such person has to be declared as a third party to get benefit. Hence, the Insurance company being the insurer of the offending vehicle cannot avoid the liability particularly when the amount of compensation is also on the lower side. Therefore, in totality we cannot pass any order in favour of the appellant company and we cannot admit the appeal.

Hence, the appeal is dismissed without Imposing any costs.

However, it is open for the appellant Insurance company to make any application for recovery, if so advised, and in such case, upon notice to the parties, the Court shall hear out the case upon giving fullest opportunity of hearing and decide the issue but in no circumstance, the claimants will be made to suffer accordingly. The entire sum, if not deposited, will be deposited as early as possible but not a period beyond one week from this date and pendency of any proceeding will not debar the claimants from realising such amount.

Incidentally the appellant Insurance company prayed that the statutory deposit of Rs. 25,000 made before this Court for preferring this appeal shall be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimant, however, such prayer is allowed.

Shishir Kumar, J.

I agree.