National Insurance Company Ltd. vs Puniabai And Others

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MA No.950/2013 has been filed by the Insurance Company, whereas MA No.1037/2013 has been filed by the Claimants for enhancement of",

award. By this common order both these appeals shall be disposed of.,

Both these appeals have been filed against the award dated 24/7/2013 passed by the Motor Accident Claims Tribunal, Gwalior in Claim Case",

No.137/2010, by which the Claims Tribunal has held that the Insurance Company is also jointly and severally responsible to pay the compensation",

amount and an amount of Rs.2,69,000/- has been awarded by way of compensation.",

The necessary facts for disposal of the present appeal in short are that the claimants filed a claim petition under Section 166 of the Motor Vehicles,

Act on the ground that on 3/12/2010 the claimant-Puniabai and the deceased Ku. Jamuna were going towards their house by walking on Karahiya-,

Dubahi road. The defendant no.2 by driving the offending tractor No. MP07 AA 3188 in a rash and negligent manner, which was owned by defendant",

no.1, dashed the deceased Ku. Jamuna from behind, as a result of which, she fell down and was run over by the tractor. She was immediately taken",

to the hospital, however, on the way she expired. Therefore, the claim case was filed and accordingly, a claim of Rs.12,40,000/- was made.",

Defendants no.1 and 2 filed their written statement and denied the accident.,

Defendant no.3 also filed its written statement and denied the accident. It was further denied that the deceased was aged about 20 years and was,

earning Rs.4,500/- per month and it was further pleaded that in case if it is found that the deceased was travelling in the trolley, then the insurance",

company would not be liable to make payment of compensation amount. It was further pleaded that the accident did not take place because of any,

mistake or negligence of the driver and in fact the deceased herself was responsible for the accident and it was further pleaded that in case if it is,

found that the deceased herself was also negligent, then the compensation amount may be apportioned accordingly. It was further pleaded that the",

tractor in question was being plied for commercial purposes, therefore, there is a violation of the insurance policy. The offending tractor was under",

insurance, but there was no insurance for the trolley.",

The claimants examined Puniabai (PW-1), Vishnu Koli (PW-2), Rangilal (PW-3) and Buddharam Kori (PW-4).",

Mathew John (DW-1) and Digveer Singh Chauhan (DW-2) were examined by the insurance company.,

The claims tribunal after considering the evidence has come to a conclusion that the insurance company is jointly and severally liable to pay the,

compensation. The age of the deceased at the time of accident was 17 years and her notional income was assessed as Rs.36,000/- and looking to the",

age of the deceased, it was held that 50% of the notional income has to be deducted towards the personal living expenses and in case of marriage, the",

contribution to the parents and siblings is liable to be cut and accordingly, the loss of dependency has been assessed as Rs.18,000/-. However, the",

multiplier was applied by taking into consideration the age of the mother. Rs.10,000/- were awarded towards loss of estate. Rs.25,000/- were awarded",

for funeral expenses and in all Rs.2,69,000/- have been awarded.",

Challenging the award passed by the claims tribunal, it is submitted by the counsel for the insurance company that since the deceased was travelling",

in a trolley, therefore, there was a violation of insurance policy and thus, the claims tribunal has wrongly held that the insurance company is jointly and",

severally responsible. It is further submitted that since the insurance policy was an “A†policy, therefore, the person sitting in the vehicle is not",

covered by the policy. It is further submitted that an excessive amount has been awarded under the head of funeral expenses.,

Per contra, it is submitted by the counsel for the claimants that there is nothing on record to suggest that the deceased was travelling in the trolley",

and thus, she was a third party as it is the case of the claimants that the deceased alongwith the claimant-Puniabai was going by walking to her house.",

Even if the insurance policy was an “A†policy, would not make any difference because the deceased was not travelling in the trolley. So far as",

the amount awarded under the head of funeral expenses is concerned, that has not been challenged by the insurance company in the appeal as the",

quantum of compensation has not been challenged by the insurance company. The claims tribunal has failed to see that the deceased had four minor,

siblings and she was maintaining them also alongwith her mother and the claims tribunal has wrongly assessed the age of the deceased as 17 years.,

Considered the submissions made by the counsel for the parties.,

Liability of the insurance company:,

The insurance company has filed its written statement to the claim petition and in the said written statement it was nowhere mentioned that the,

deceased was travelling in the trolley and because of rash and negligent driving of the tractor, she fell down from the trolley and was run over by the",

tractor and trolley. A very vague pleading to the effect was made that in case if it is found that the deceased was travelling in a trolley, then the",

insurance company should be exonerated and such a pleading cannot be accepted as a pleading. The insurance company is expected to take a specific,

defence and not a vague defence. Furthermore, the insurance company has tried to establish its defence on the basis of the FIR (Ex.P/1) to suggest",

that the deceased was travelling in the trolley. The claimant-Puniabai in her evidence has specifically stated that she was not provided with the copy,

of the FIR and she has specifically denied that at the time of accident she along with the deceased was sitting in the trolley. It is well established,

principle of law that the FIR is not an encyclopedia of an incident. Furthermore, the claim petitions are to be decided on the basis of evidence which",

have come on record. The insurance company has not examined the scribe of the FIR to prove that the contents of the FIR were recorded as per the,

disclosure made by the claimant-Puniabai (PW-1).,

In absence of any conclusive proof that the deceased was travelling in the trolley at the time of the accident, this Court is of the considered opinion",

that the claims tribunal did not commit any mistake in holding that the insurance company is also jointly and severally responsible alongwith the owner,

and driver of the offending tractor. Since the deceased was a third party, therefore, whether the insurance policy was an “A†policy or a",

comprehensive policy, would not make any difference.",

So far as the question of award of compensation amount under the funeral expenses is concerned, the same has not been challenged by the",

insurance company in the memo of appeal. Accordingly, MA No.950/2013 filed by the insurance company is hereby dismissed.",

Amount of compensation:,

Seeking enhancement of compensation amount, it is submitted by the counsel for the claimants that the claims tribunal has wrongly assessed the",

age of the deceased as 17 years, whereas she was 20 years of age. However, it is clear from the record that no document to prove the age of the",

deceased was filed by the claimants. Even the claimant-Puniabai (PW-1) could not disclose the year of birth of the deceased in her cross examination.,

Under these circumstances, the claims tribunal was left with no other option but to rely on the age mentioned by the doctor in the postmortem report.",

Yearly Income,": Rs.36,000/-

50% Living Expenses,"Rs.18,000/-

Loss of yearly income,": Rs.18,000/-

Dependency,": Rs.2,70,000/-

Loss of Estate,": Rs.15,000/-

Loss of Love and Affection,": Rs.40,000/-

Funeral Expenses,": Rs.25,000/- (in absence of challenge it is not being

reduced)

Total,": Rs.350,000/-