New India Assurance Co. Ltd. vs Mohinder Lal and Others

B.S. Dhillon, J.—This order will dispose of F.A.Os. Nos. 227, 247 and 251 of 1971. F.A.O. No. 227 of 1971 has been filed by the New India Assurance Company Limited, Chandigarh, F.A.O. No. 247 of 1971 has been filed on behalf of Mrs. Darbar Kaur and other claimants and F.A.O. No. 251 has been filed by Gulzar Singh and another. All the appeals are directed against the one and the same order dated 29th March, 1971, of the Motor Accidents Claims Tribunal Ludhiana (hereinafter called the Tribunal). Therefore, the same are being disposed of by a common order.

Briefly stated, the facts giving rise to these appeals are that Sohan Singh deceased, Thakar Singh and Piara Singh were standing at Bus Stop, Sanghol, on 25th December, 1967, at 5 p.m. Truck No. PNL-3465 appeared there from the side of Morinda. It was being driven by Mohinder Lal Respondent. Sohan Singh gave a signal to the truck with a view to board it. The truck was stopped by Mohinder Lal driver. Thakar Singh and Piara Singh boarded the truck from behind whereas Sohan Singh tried to board it from the front side near the seat of the driver. Mohinder Lal driver is alleged to have speeded up the truck, as a result of which Sohan Singh fell down on the road and was crushed under the truck. Thakar Singh and Piara Singh, after getting down from the truck at a distance, came back and took him in an injured condition to Civil Hospital, Samrala, where he died. Mrs. Darbar Kaur, widow of Sohan Singh deceased, Jagdev Singh, son of the deceased and Guddi, minor daughter of the deceased, filed a claim petition claiming a sum of Rs. 50,000/- as compensation. The claim petition was resisted on behalf of the Respondents and on the pleadings of the parties, the following issues were framed by the learned Tribunal:

Whether Sohan Singh died in an accident resulting from rash and negligent driving of truck No. PNL-3465 by Mohinder Lal?

Whether the claimants are heirs or dependents of Sohan Singh deceased?

To what amount the claimants are entitled by way of compensation and from whom?

Whether the truck was not driven within the terms and conditions of the insurance policy at the time of the accident and Assurance Company is not liable for any damages?

Relief.

Issue No. 1 was decided in favour of the claimants and it was held by the learned Tribunal that Sohan Singh died in an accident resulting from rash and negligent driving by Mohinder Lal. Under issue No. 2, it was held that the claimants are the heirs of Sohan Singh deceased. Issue No. 4 was decided against the Assurance Company and it was held that the truck was being driven within the terms and conditions of the Assurance Company who is also liable. Under issue No. 3 the learned Tribunal awarded a sum of Rs. 8,640/- to Mrs. Darbar Kaur, Rs. 2,430/- to Jagdev Singh and Rs. 3,816/- to Guddi. The order dated 29th March, 1971 of the Tribunal has been assailed by the claimants, the owner of the truck and the Assurance Company in these three appeals.

After hearing the learned Counsel for the parties, 1 am of the opinion that no fault can be found with the finding of the learned Tribunal on issue No. 1. Thakar Singh and Piara Singh, A. Ws. 4 and 5 respectively, have been produced to support the claim-petition. Both these witnesses were accompanying Sohan Singh deceased at the relevant time. These witnesses stated that they boarded the truck from behind whereas Sohan Singh deceased tried to board it from the front side opposite to the seat of the driver. The driver of the truck accelerated the speed of the truck which resulted in the fall of Sohan Singh deceased who sustained injuries and later on he succumbed to his injuries. The contention of the learned Counsel for the truck owner and the Assurance Company that the driver was not obliged to stop the truck and that the deceased was trying to forcibly board it, is really without any merit. According to the statements of these two witnesses, the truck had actually stopped and when Sohan Singh deceased tried to board it, the driver accelerated its speed, as a result of which the accident took place. Nothing could be pointed out to show that the Tribunal was in error in believing these two witnesses. In view of this matter, finding of the Tribunal on issue No. 1 is hereby affirmed

Finding on issue No. 2 has not been challenged and it is, therefore, held that the claimants are the heirs and dependents of Sohan Singh deceased.

As regards issue No. 4, Mr. L.M. Suri, learned Counsel for the Assurance Company, has vehemently argued that the Assurance Company is not liable keeping in view the provision of proviso (ii) of Section 95(1)(b) of the Motor Vehicles Act, 1939 (herein after referred to as the Act). The contention of the learned Counsel is that in view of the terms and conditions of the policy, Exhibit R. 2, the Assurance Company will be liable only so far as it is necessary to meet the requirements of Section 95 of the Act. He submits that the provision of proviso (ii) of Section 95(1)(b) of the Act exempts the company from liability in respect of death of or bodily injury to person being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. The learned Counsel contends that Sohan Singh deceased was trying to enter or mounting the truck when he fell down and thus got injuries to which he succumbed later on. Reliance has been placed by the learned Counsel on a number of decisions reported in Chander Mohan and Ors. v. D.C. Kapur and Ors. 1970 A.C.J. 121 The Commonwealth Assurance Co. Ltd. Bombay v. V.P. Rahim Khan Sahib and Ors. 1971 A.C.J. 295 Sardar Mohan Singh Bedi v. Manu Maya Thappa and Ors. 1972 A.C.J. 174 Mahabir Prasad Agarwalla v. Jiban Chandra Hazarika and Ors. 1973 A.C.J. 180 C. Naryanan v. Madras State Palm Gur Sammelan and Anr. 1974 A.C.J. 479, Indian Mutual General Insurance Society Ltd. v. Manzoor Ahsan and Ors. 1977 A.C.J. 85. The contention of the learned Counsel is that the words "to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises" contained in proviso (ii) to Section 95(1)(b) are to be read with the heading of the main proviso, i.e. "Provided that a policy shall not be required" and thus the Assurance Company is not liable. The interpretation of this provision, as has been contended by the learned Counsel for the Assurance Company, finds ample support from the aforementioned decisions where it has been held that the Assurance Company is not liable in respect of death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. In this view of the matter, the Assurance Company not being liable, the claim made against it cannot be decreed. The finding of the learned Tribunal on issue No. 4 is, therefore reversed and it is held that the Appellant Assurance Company will not be liable in view of the provisions of proviso (ii) to Section 95(1)(b).

As regards issue No. 3, the contention of Mr. R.M. Suri, learned Counsel for Respondents No. 1 and 2 that the compensation awarded to the claimants is excessive and that their interest on the total amount of compensation comes to Rs. 120/- per month whereas the learned Tribunal came to the conclusion that the deceased might be spending about Rs. 100/- per month on his dependents, is really without any merit. It is no doubt true that the earning of interest on the amount of compensation awarded is one of the criteria which may be taken into consideration, but that is not final, as has been held by a Full Bench of this Court in The Vanguard Insurance Co. Ltd. Madras and Anr. v. Mrs. Naresh Kanta and Ors. 1977 P.L.R. 328 that the interest theory cannot be adopted as an inflexible principle for the purpose of assessing the compensation specially in these days when the purchasing power in terms of money is being eroded after short intervals on account of run-away inflation. Keeping in view the facts and circumstances of this case, I am of the opinion that the learned Tribunal rightly assessed the amount of compensation and thus there is no scope for interfering either for enhancing or reducing the same. The deceased was earning Rs. 250/- per month. The learned Tribunal came to the conclusion that he had been contributing Rs. 100/- per month towards the maintenance of his wife and dependent children. Nothing could be pointed out that the amount of compensation has been wrongly assessed by the Tribunal. Therefore, the finding of the Tribunal on issue No. 3 is also maintained. However, the decreetal amount may be recovered from the Respondents other than the New India Assurance Company Ltd., Chandigarh, which was also held liable by the Tribunal.

For the reasons recorded above, F.A.O. No. 227 of 1971 filed by the New India Assurance Company Limited is allowed without any order of costs. F.A.Os. Nos. 247 and 251 of 1971 are dismissed but there will also be no order to costs.