National Insurance Co. Ltd. vs Sahiba Khatun and Others

S.K. Dubey, J.

These three appeals arise out of the award dated 9-8-1994 passed in Claim Case No. 2 of 1990, by the Motor Accidents Claims Tribunal, Sidhi.

The National Insurance Co. has filed M. A. No. 940/94, Central Coal Fields Limited the owner of Jeep and Dumper have filed M. A. No. 1009/94 while the legal representatives of the deceased have filed M. A. No. 1010/94 for enhancement of compensation of Rs. 3 lacs awarded by the aforesaid award.

Facts : One Mohosin Raza aged 24 years was employed as Class-II Manager and was drawing Rs. 3660 per month under the employment of the Central Coal Fields Ltd. at Singrouli, a registered Government of India Company, the owner of Jeep No. CIE 3176 insured by National Insurance Co. Ltd. and of the Dumper neither registered nor insured. On 20-8-1989, Mohosin Raza was sitting in the Jeep car driven by Rajkumar, during the course of his employment at the place of his work in the mines area and was giving instructions on wireless to concerned employees. One Dumper No. 55 driven by Ramniwas during the course of his employment with Central Coal Fields Ltd. dashed the Jeep standing stationary on the wrong side of the road. As a result of forceful impact the stationary Jeep was crushed, the driver of the Jeep and Mohosin Raza died sitting in the Jeep died at the spot. The legal representatives of Mohosin Raza i.e. widow aged 24 years and old parents filed an application u/s 166 of the Motor Vehicles Act, 1988 (for short the ''Act'') to claim compensation of Rs. 20,55,000 for the death of Mohosin Raza caused in accident by the use of two motor vehicles. The claim was contested by the owner of the two vehicles and by the insurer of the Jeep. The driver of the Dumper remained ex parte.

The claimants adduced oral and documentary evidence to establish their claim. However, no eye witness to the occurrence was produced to prove the rash and negligent act of the Dumper driver. In rebuttal, the owner of the vehicles did not examine the Dumper driver. The Tribunal raised the adverse inference for non-production of the driver and on the basis of certified copies of charge-sheet (Ex. A-11), First Information Report (Ex. A12), Spot map (Ex. A13), Postmortem report (Ex. A-14) of the criminal case u/s 304A, I. P. C. against the driver in the Court of Judicial Magistrate, First Class at Waidhan District Sidhi, held the accident occurred due to sole rash and negligent act of the Dumper driver. The plea of owner that the accident occurred in the prohibited area, not a public place and the Jeep driver was also responsible for the accident as it was parked on the wrong side against traffic rules was negatived. To award the compensation the Tribunal after estimating the dependency at Rs. 1830 per month, yearly Rs. 21960.00 applied the multiplier of 20 worked out the amount of Rs. 4,39,200. From this Rs. 1,39,200 was deducted for lump sum payment, thus award of Rs. 3 lacs was awarded with interest thereon at the rate of 12% per annum from 8-1-1990, the date of application till payment.

The manner and the circumstances in which the accident occurred are eloquent of the fact that the driver of Dumper was rash and negligent, who collided with the stationary Jeep which was smashed, as a result of which the driver of the Jeep and Mohosin Raza died at the spot. It is a case where the principle of ''res ipsa loquitur'' that is the ''accident speaks for itself or tells its own story fully applied. Hence, when accident was admitted, it was for the driver of the Dumper to establish that the accident happened due to some other cause without his own negligence, which is the well established principle. If any authority is needed, see Puspabai v. Ranjit Ginning and Pressing Co. Ltd. ATR 1977 SC 1735.

In the circumstances the contention that the Jeep driver also contributed to the accident as it was parked on the wrong side of the road cannot be accepted. It may be that the driver of the Jeep violated the traffic regulations, for that he would have been prosecuted. But as the Jeep was stationary parked in the open area of the mines easily visible, therefore, even if the Jeep was wrongly parked, the driver of the Dumper had the last opportunity to avoid the accident, hence, the Tribunal rightly applied the principle of res ipsa loquitur.

Shri P. S. Nair learned counsel then made an attempt that the Dumper was not a ''motor-vehicle'' or ''vehicle'' as defined in Section 2(28) of the Act. In our opinion the contention has no merit as this Court in K. K. Jain and another v. Smt. Masroor Anwar, 1989 MPLJ 690 following the decision of the Supreme Court in Bolani Ores Ltd., : 1975 Tax LR 1208 considered the definition of ''motor vehicle'' as defined u/s 2(18) of the Motor Vehicles Act, 1939 and definition of goods vehicle u/s 2(8) of the Act of 1939 and held that so far as the Motor Vehicles Act is concerned, the Dumper and rockers are motor vehicles as ordinary function of a Dumper is not only to extract and collect but also to carry goods, hence. Dumper is a motor vehicle within the meaning of Section 2(18) of the Act of 1939.

The Supreme Court in M/s. Central Coal Fields Ltd. and Others Vs. State of Orissa and others, and Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., . reiterated the view of Bolani Ores'' case (supra) and observed that mere fact that the Dumper or Rockers run on rubber tyres are vehicles adapted for use on roads and are motor vehicles. Mere fact that the Dumper and Rockers are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word ''adapted'' in provision is to be read as ''suitable''.

The contention that the accident occurred in the mines area, the premises owned by the Central Coal Fields therefore, the place of accident was not a public place as defined u/s 2(34) of the Act. ''Public place'' means ''a road, street, way or other place, whether a through fare or not, to which the public have a right to access, and includes any place or stand at which passengers are picked up or set down by a stage carriage. It is not disputed that inside the mines area there are roads. Though the entry is restricted, but, the members of the public have also access on permission. That would not mean that it would cease to a public place. If the accident occurs on such road, the owner and insurer would be liable to pay compensation. See K. K. Jains case (supra) and decisions of Kerala and Orissa High Courts in Chacko v. Mariakutty and others 1987 ACJ 557, Oriental Fire and General Insurance Co. Ltd. Vs. Raghunath Muduli and Others, .

Re : Insurer''s liability : As we have held that the accident was caused due to rash and negligent act of the Dumper driver, the Jeep driver did not contribute to accident in any manner, therefore, the submission of Smt. Amrit Ruprah, learned counsel for the insurer of Jeep that insurer cannot be made liable to pay compensation or to indemnify the insured has a force. Hence, we set aside the direction of the Tribunal making the National Insurance Company to pay the compensation jointly or severally.

At this stage Shri Nair submitted that the widow of the deceased has been given employment, besides Rs. 76,837 of group insurance and ex gratia in all Rs. 1,50,000 has already been paid. Besides the Central Coal Fields taking a sympathetic view has agreed to pay a further amount of Rs. 75,000 without interest in addition to the amount awarded by the Tribunal, so that the litigation may come to an end.

Shri P. N. Pathak learned counsel for the claimants submits that though the amount of compensation deserves to be enhanced in view of the principles laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , but, looking to the circumstances and to end the litigation the claimants have agreed and would be satisfied if a further sum of Rs. 75.000 is awarded to them in addition to the compensation awarded by the Tribunal.

As a result of the above, we allow the appeal of the insurance company -- M. A. No. 940/94 and set aside the order of the Tribunal directing the National Insurance Company to pay the compensation jointly or severally. The appeal of the Central Coal Fields Ltd. M. A. 1009/ 94 is dismissed. The appeal of the claimants --M. A. 1010/94 is allowed to the extent that in addition to the amount awarded by the Tribunal with interest thereon the claimants would get a further sum of its. 75,000 without interest from the Central Coal Fields Ltd. We direct the Central Coal Fields Ltd. to deposit the amount of Rs. 3 lacs with interest thereon at the rate of 12% per annum from the date of application and a further sum of Rs. 75,000 within a period of two months from the dale of supply of certified copy less the amount already deposited by the insurance company. On deposit the amount shall be disbursed keeping in mind the guidelines laid down by the Supreme Court in Susamma Thomas''s case (supra) and Lilaben Udesing Gohel, Shyamala Shashidharan Nayyar and Others, Pramilaben Narendra Bhai Patel and Others, Ramabhai Shankarbhai Chavda, Lilaben and Others, Kantaben Anil Kumar Patel and Others, Motor Vahan Durghatna Sanghthan, Nadiad and Others and Shardaben Chandubhai Patel and Others Vs. Oriental Insurance Company Ltd. and Others, Hemraj Loduram Rajpur and Another, Nandubhai Ambalal Thakkar and Others, Ganibhai Ambabhai Vora and Another, Kaji Gulam Nabi Sheikh and Others, Gujarat State Road Transport Corpn. and Others, State of Gujarat and Others and Bachusha Dadusha and Others, .

The amount deposited by the Insurance Company before the Tribunal shall be reimbursed by the Central Coal Fields Ltd.

In the circumstances the claimants will only be entitled to costs in these appeals. Counsel''s fee Rs. 1,500, if pre-certified.