New India Assurance Co. vs Nitin Dhanta and Others Nitin Dhanta and Others Vs Gurinder Singh and Others

Surjit Singh, J.—These two appeals, arising out of the same award dated 23.6.2005, are being disposed of by this common judgment. One appeal has been filed by the Insurance Company, challenging the direction by the Tribunal for payment of compensation money by it, on the ground that the deceased, for whose death compensation has been awarded, was a gratuitous passenger, travelling by a vehicle meant for carriage of goods. Second ground raised by the Insurance Company is that its application for taking all the defences available to the insured has been wrongly rejected by the Tribunal. Second appeal has been filed by the dependents of the deceased for enhancement of compensation money and also for award of interest from the date of the petition, instead of the date of award, as ordered by the Tribunal. Insurance Company, shall hereinafter be refereed to as insurer and the dependents of the deceased as claimants.

Deceased Balbir Dhanta was travelling by a truck No. HR-38-7581 on 21.8.1996, near Jarol-Tikkar in Kotgarh area, when it met with an accident. He sustained injuries, which resulted in his death. He was employed as Assistant Manager with HPMC and had been drawing salary of Rs. 8999/- per month. His dependents filed petition, seeking award of compensation. It was alleged that the accident took place, because of rash or negligent driving of the vehicle by its driver, who too died in the accident. A sum of Rs. 12 lacs was claimed by way of compensation.

Owner of the vehicle, namely respondent Gurinder Singh denied that the cause of accident was rash or negligent driving of the truck by the driver, though it was conceded that Balbir Dhanta had died in the accident.

Insurance Company in its reply pleaded that the deceased was on board the truck at the time of accident as a gratuitous passenger and, hence, it (Insurance Company) was not liable to pay any compensation. An application was also moved by the Insurance Company for taking all those defences, which are available to an insured. That application was moved, u/s 170 of the Motor Vehicle Act. It was dismissed vide order dated 10.5.2005, with the observation that the same had been moved after the evidence had been led by the parties and the matter was at argument stage.

Learned Tribunal concluded that the deceased was travelling in the capacity of owner of the goods and, therefore, he was not a gratuitous passenger. It was also held that the accident took place due to rash or negligent driving of the truck. A sum of Rs. 10,80,000/- was awarded by way of compensation.

I have heard learned Counsel for the parties and gone through the record.

One of the claimants, namely Shanta Dhanta, appeared as PW-1 and testified that she reached the spot within 15 minutes of the accident. She also stated that her husband was carrying crates from Kotgarh to Jarol-Tikkar in the truck, when the accident took place. Though the witness was cross-examined by the Insurance Company, no suggestion was thrown with regard to her testimony that at the time of accident deceased was carrying crates in the truck. The only thing that was suggested to her was that the deceased was a gratuitous passenger, which she denied.

Claimants examined one more witness, namely PW-6 Manjeet, who stated that the accident took place at a distance of about 300 metres from his residence and that the deceased was travelling by the truck with his crates and trays. He stated that he reached the spot within 5-10 minutes of the accident. The witness was cross-examined by the Insurance Company. No suggestion was put to him that trays and crates were not being carried in the truck, though it was suggested that the trays and crates were not being carried by Balbir Dhanta, the deceased. The witness stated that the trays and crates belonged to HPMC and the deceased was carrying those crates and trays for distribution to the growers on account of his being an employee of HPMC. Insurer led no evidence in rebuttal. There should be no reason to disbelieve the testimony of this witness as also the wife of the deceased, namely PW-1 Shanta Dhanta that the deceased was on board the truck as crates and trays of HPMC were being carried by him for distribution to the growers in that truck. Consequently, no fault can be found with the finding of the Tribunal that the deceased was on board the truck as the owner or the representative of the owner of goods being carried din the truck.

As regards the second ground raised by the Insurance Company in its appeal, application, u/s 170 of the Motor Vehicles Act, was moved after the trial had concluded and the matter was listed for arguments. Otherwise also, what was stated in the application was that the Insurance Company had reserved right to contest the claim on all the ground available to the insured and that the owner had not been effectively contesting the petition and there was apprehension that he might collude with the insured. It is well settled that an insurer cannot take defences other than those specified in Section 149(2) of the Motor Vehicles Act, even if in the policy it is stated that insurer reserves the right to take all the defences available to insured. As regards the second aspect of application, u/s 170 of the Motor Vehicles Act, not only that it was not specifically stated that there was any collusion, because by that time the evidence had already been led by all the parties, but also it was not stated as to what were the grounds for apprehension that the claimants "might collude" with the insured. Therefore, order of rejection of application, u/s 170 of the Motor Vehicles Act, is upheld.

Coming to the appeal of the claimants, learned Counsel admits that loss of dependency has rightly been calculated at Rs. 6000/- per month and multiplier of 15 years purchase has also correctly been applied. He, however, submits that interest has been awarded from the date of the award, though it ought to have been awarded from the date of the petition, as held by the Supreme Court and various High Courts, from time to time. Submission of the learned Counsel is well founded. The same is, therefore, accepted.

As a result of the above discussion, appeal filed by the Insurance Company is dismissed. Appeal filed by the claimants is partly accepted and the award of the Tribunal is modified to the extent that interest on compensation money is ordered to be paid from the date of petition, i.e. 17.2.2000, instead of the date of award, as ordered by the Tribunal.

Both the appeals stand disposed of accordingly.