National Insurance Co. Ltd. vs Bashasab Shaikh and Others

A.A. Halbe, J.—The appellant--Insurance Company--has challenged the award of Rs. 1,00,000/- plus costs of Rs. 3,000/- and interest at 12% on Rs. 1 lakh passed by the Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No. 78 of 1986 on the ground that this is a case where the deceased was a gratuitous passenger on the goods vehicle; that there was collusion between the owner and driver prejudicial to the interest of the Insurance Company and if these facts are taken into consideration, the Insurance Company can not be made liable for such award. Apart from this, it is also contended that the quantum of compensation is pretty high, looking to the fact that the deceased was merely a labourer of 18 years of age. For these reasons, it is prayed by the appellant--Insurance Company--that so far as the liability foisted on the Insurance Company is there, the same should be set aside.

This has been countered on behalf of the respondents - claimants and also the owner and driver and it is contended that a very clear written statement has been filed on record to show that the deceased was a labourer on the truck belonging to the owner and he was, therefore, fully covered under the policy of the insurance.

The evidence regarding negligence need not be deliberated upon in all details in view of the self-eloquent facts and they are that on 31.5.1986 at about 11 a.m. the deceased, as a labourer, was travelling in the truck No. GDZ-6310. The truck was proceeding to Canacona to unload the contents of the truck. However on the way, the deceased Kasim Saheb Shaikh--the son of claimants--desired to alight from the truck and accordingly, it is claimed that, the driver of the truck slowed down the vehicle with a view to facilitate the deceased Kasim to get down but the driver further picked up the speed suddenly without seeing as to whether Kasim had got down safe. On account of sudden speeding of the vehicle, the deceased Kasim fell down and came beneath the wheels of the offending truck. In consequence, he sustained injuries and succumbed to them.

The claimants have preferred a claim for Rs. 1,50,000/-. On the question of negligence, there is evidence of (Cl.W. 2) Bassappa Irappa, who had deposed that when the offending truck was proceeding along Bali Canacona side, the deceased was attempting to get down. The driver of the vehicle had slowed down the speed but instead of bringing it to a halt, he picked up the speed before the deceased could get down. In that process, the deceased fell down and came under the wheels of the truck. These facts do not appear to be much in dispute and it can be easily held that the driver of the vehicle was negligent and accordingly, was answerable for the compensation.

Now in the written statement filed on behalf of the driver and the owner at Exh. 8, it is clearly stated that the deceased was a labourer on the truck and that the accident occurred as indicated above. The claim of the Insurance Company that the owner and driver had colluded so as to prejudice the interest of the Insurance Company cannot be sustained.

The learned advocate for the appellant--Insurance Company--has contended that this is clearly a case of collusion between the owner and the driver and that the deceased was a gratuitous passenger on the goods truck and was accordingly, not covered under the policy of insurance. He has further contended that the owner has been in collusion with the driver. In absence of any evidence in that regard, we are unable to hold that this is a case of collusion detrimental to the interest of the appellant. It was the bounden duty of the Insurance Company to have summoned the driver and the owner for being examined before the Court in order to establish that this was a case of collusion. In absence of that effort, the argument on behalf of the appellant cannot be sustained. Accordingly, we hold that the deceased was covered under the policy of insurance.

On the question of quantum, the learned Member has quantified the compensation at Rs. 1 lakh, out of which Rs. 75,000/- have been attributed to the loss of income. The father of the deceased Bacha Sab Shaikh at Exh. 12 has deposed that the deceased was earning Rs. 1,000/- p.m. and was contributing Rs. 700/- p.m. to the parents. There is absolutely no documentary evidence on record. We also cannot ignore an important fact that the deceased was a casual labourer and this was not the employment throughout the year. However, at the same time, we cannot be ignorant of a fact that the deceased was a person who could earn by putting in labour. In that behalf, we feel that the income of the deceased could be reckoned at least at Rs. 500/- p.m. Out of that, his contribution to the family namely parents, would be approximately Rs. 400/- p.m. The deceased was unmarried and accordingly, we can assume that he would contribute Rs. 400/- p.m. to the welfare of the parents for the first five years. That amount comes to Rs. 24,000/-. For next 12 years, his contribution could be Rs. 200/- p.m. and that comes to Rs. 26,000/-. An amount of Rs. 10,000/- shall have to be added for loss of life. The total amount thus comes to Rs. 60,000/- on fair assessment of the evidence on record. We are unable to uphold the finding of the learned Member of the Tribunal that the loss of income and the total compensation could be worked out at Rs. 1 lakh. We are, therefore, constrained to scale down the award to Rs. 60,000/-.

This amount shall carry interest of 12% p.a. from the date of application till payment or till deposit in the Court. Accordingly, the following order.

The appeal is partly allowed. The respondents - claimants are entitled to the compensation of Rs. 60,000/- with 12% interest thereon from the date of application till the actual payment or deposit in the Court. The award of costs by the learned Member of the Tribunal is maintained.