New India Assurance Company Ltd. vs Punjabai Bansi Solase And Others

Original respondent no.3 insurance company has challenged the vires of the judgment and award, passed by the Motor Accident Claims Tribunal,

Kopargaon, in Motor Accident Claim Petition No. 83 of 2006, whereby compensation of Rs.7,21,000/Â is awarded by the Tribunal and joint and

several liability is fastened on original respondent nos. 1 to 3 i.e. driver, owner and insurer of the tempo bearing No. MHÂ​20/AAÂ​7724.

Facts, in nut shell, are that on 28.6.2006 at about 6.00 a.m., deceased along with Anis Gani and Yusuf Kureshi and others was proceeding from

Shirasgaon towards Loni by offending tempo for purchasing cattle in the weekly market of Loni. The offending tempo was hired by deceased and

others for transport of purchased cattle while return journey. Deceased was in the business of sale purchase of cattle on commission basis. Near

village Sawalivihir, due to rash and negligent driving by driver of the tempo, the tempo turned over resulting into head injury to the deceased. Deceased

was removed to the hospital, however, he succumbed to those injuries. Therefore, claim petition for compensation was filed before the Motor

Accident Claims Tribunal, Kopargaon (hereinafter referred to as, 'the Tribunal').

Heard Mr. A.B.Kadethankar, learned counsel for the appellant, Mr. S.S.Deo, learned counsel for Respondent nos.1 to 3 (claimants) and

Mr. S.S.Deshmukh, learned counsel for Respondent nos. 4 and 5 (owners of the offending tempo).

Learned counsel for the appellant assailed the judgment and award, passed by the Tribunal, only on one ground that from the admitted facts on

record the deceased was traveling by offending tempo as gratuitous passenger. According to the learned counsel, the offending vehicle being goods

carriage vehicle, liability of gratuitous passenger is not covered under the policy of insurance. He has not disputed that on the date of occurrence of

the accident the offending tempo was insured with appellant insurance company. He placed reliance on “New India Assurance Company Limited

Vs Asha Raniâ€​ [2003 (2) SCC 223].

Learned counsel for respondent nos. 1 to 3 submits that though at the time of accident no goods were loaded in the offending tempo, as it was hired

for transport of cattle from Loni to the destination of deceased, the deceased being the owner of the goods carried in the offending vehicle, is covered

under the policy of insurance under Section 147 of the Motor Vehicles Act, 1988, amended in the year 1994 (hereinafter referred to as, 'the MV

Act').

His next submission is that no evidence in rebuttal has been led by the appellant insurance company to prove the breach of condition of policy of

insurance, in the alternate, he submits that if it is held that the insurance company deserves to be exonerated from liability to pay compensation, then

directions may be issued to the insurance company to first pay the compensation to the claimants and later on recover it from the owners. He submits

that the claimants being widow and minor children, they would not be in a position to recover the compensation amount from the owners of the

offending vehicle.

His further submission is that though no CrossÂobjection is filed by the respondents, this Court is empowered to enhance the compensation as

responsibility lies on the Court to determine fair and reasonable compensation. He points out that while awarding the compensation, the Tribunal did

not consider damages towards loss of future prospects and even under conventional heads, sufficient compensation is not awarded in accordance with

the guidelines laid down by the Apex Court “National Insurance Company Limited vs Pranay Sethiâ€​ [2018 (3) Mh.L.J. 70].

Learned counsel for respondent nos. 4 and 5 submits that the insurance company cannot be exonerated from the liability, as breach of conditions of

policy is not proved. He submits that the tempo being insured with the appellant, it cannot be absolved from the liability to indemnify the onus of the

offending vehicle.

Learned counsel for the claimants placed reliance on :

(1) United India Insurance Co.Ltd. vs Suresh K.K. [2008 ACJ 1741 (SC]

(2) National Insurance Co. Ltd vs Saju P.Paul

(3) [2013 ACJ 554]

(4) Manuara Khatun vs. Rajesh Kumar Singh [2017 (5) Mh.L.J. 522]

(5) United India Insurance Co.Ltd. vs Godabai [2018 ACJ 1953 (Bombay HC]

(6) Savita vs Bindar Singh [2014 ACJ 1261]

(7) UPSRTC vs Mamata & Ors. [2016 ACJ 699]

(8. Learned counsel for the appellant, in reply, submits that pay and recover order cannot be passed against the insurance company, once it is

exonerated from any liability. He placed reliance on :

(1) United India Insurance Co. Ltd. Vs Anubai Gopichand Thakare & ors. [2007 (5) Bom.C.R. 520]

(2) New India Assurance Co. Ltd. Vs Abhiman Kadhare [2016 DGLS (Bom.) 876]

(3) New India Assurance Co.Ltd. vs Vedwati and others [2007 (3) Mh.L.J. 117 (SC)]

After going through the pleadings of the parties and evidence placed on record, it emerges that most of the facts are admitted in between the

parties. It is not disputed that appellant is the insurer of the offending vehicle and on the date of accident the policy of insurance was in vogue.

Though in the pleadings, the claimants have contended that the deceased and other persons hired the tempo for transport of cattle from Loni cattle

market to Shirasgaon, Taluka Kopargaon, to substantiate this contention neither any witness is examined by the claimants nor any document is filed on

record. On the other hand, claimant Punjabai Solase (PW 1) even in her examinationÂinÂchief has not whispered a word regarding hiring of the

tempo for transport of the cattle. Punjabai (PW 1), on the other hand, has admitted in her cross examination that the deceased was traveling by

tempo on payment of money. Thus, at the time of accident the deceased was traveling by tempo only as fare payee passenger.

Even, from the first information report relied by both the parties, it reveals that at the time and date of accident, the deceased and other persons

were traveling by tempo as gratuitous passengers. Not a word is mentioned in the first information report that the tempo was hired by deceased and

others for transport of cattle. Thus, only one conclusion can be drawn that at the time of accident, the deceased was traveling as gratuitous or fare

payee passenger by the offending tempo.

From the policy of insurance, it becomes clear that it was for goods carriage vehicle and naturally except owner of the goods or authorized

representative of the owner of the goods, risk of any passenger is not covered under that policy even under Section 147 of the MV Act.

In New India Assurance Co. Ltd. vs Asha Rani (supra) and New India Assurance Company Limited vs Vedwati (supra), as well as in the

authorities relied by learned counsel for the claimants, it is consistently held that any passenger traveling in goods carriage vehicle is not covered under

the policy of insurance under Section 147 of the MV Act and the insurer would have no liability therefor. Therefore, this point

requires no more further consideration. I hold that the deceased being gratuitous passenger traveling by goods vehicle, his risk is not covered under the

policy of the insurance of offending vehicle. Therefore, the insurance company deserves to be exonerated from the liability to jointly and severally pay

compensation along with the registered owner.

However, next question arises whether pay and recover order can be passed against the insurance company once it is exonerated from all the

liabilities.

Learned counsel for the appellant has drawn my attention to the United India Insurance Company Limited vs Anubai Thakare (supra) and New

India  Assurance  Co.  Ltd.  vs  Abhiman  Kadhare (supra), wherein the Single Judge of this Court held that in case of

death of gratuitous passenger traveling by goods vehicle, once insurance company is exonerated, direction cannot be issued against the insurance

company to first pay the amount of compensation and then to recover it from the owner and driver of the insured vehicle. However, at the same time,

in New India United India Insurance Co. Ltd. Vs Godabai (supra), so also recently in “New India Assurance Company Limited vs Paikaji s/o Asuji

Lambade and Others [2018 (5) All MR 571]â€, the Single Judge of this Court has taken contrary view. Therefore, I am bound to consider what is the

exact position of law regarding issuance of such direction to pay and recover against the insurance company.

In United India Insurance Co. Ltd. vs Suresh K.K. (supra), National Insurance Co. Ltd. Vs Saju Paul (supra), Manuara Khatun vs Rajesh Kumar

Singh (supra), the Supreme Court consistently held that despite exoneration of insurance company from the liability to pay the compensation to the

claimants, directions can be issued to the insurance company to first pay the compensation to the original claimants and subsequently recover it from

the owner of offending vehicle by simply initiating proceedings before the executing court without filing any suit. Despite opportunity to the appellant,

learned counsel for insurance company expressed his inability to point out that the Apex Court has changed the view taken earlier.

In the case at hand, respondent nos. 1 to 3 being widow and minor children of the deceased, they would not be in a position to recover the

awarded compensation amount from the owner of offending vehicle. In such situation, if the pay and recover order is not passed against insurance

company, its indirect impact would be equivalent to rejection of claim petition for compensation. Considering these compelling reasons, direction needs

to be issued to the insurance company to first pay the compensation amount to the claimants and then recover it from the owners of the offending

vehicle by initiating proceedings before the executing court.

Now, question arises what would be the fair and reasonable compensation, which can be awarded to the claimants. After going through the

award, it emerges that considering the agricultural land in possession of the deceased and his cattle sale purchase business, the Tribunal assessed

notional income of the deceased as Rs.6,000/ per month. I am satisfied that the notional income assessed by the Tribunal is justÂ

and reasonable.

However, as per verdict of Larger Bench of the Apex Court in National Insurance Company Limited vs Pranay Sethi (supra) while assessing monthly

income of the deceased, percentage wise additional amount is to be added towards loss of future prospects. From the postmortem notes of the

deceased, it emerges that at the time of death he was 55 years old. Therefore, as per guidelines laid down by the Apex Court in National Insurance

Company Limited vs Pranay Sethi (supra), the deceased being between age of 50 to 60, ten per cent amount is to be added in the monthly income of

the deceased. Thus, agricultural income of the deceased is assessed as  Rs.6000+600=6600/Â. It follows that annual income of the deceased is

Rs.6600x12=79200/Â. Claimants being three in number, 1/3rd amount is to be deducted towards personal expenses of the deceased, which is

assessed at Rs.79200Â26400=52800/Â. Thus, Rs.52,800/Â is the multiplicand. Appellant being 55 years old person, multiplier of 11 is applicable in

view of law laid down in “Smt. Sarla Verma and Ors. Vs Delhi Transport Corporation [AIR 2009 SC 3104]â€, which is assessed

as Rs.52800x11=580800/Â​.

In addition to this as per guidelines fixed in the case of National Insurance Company Limited vs Pranay Sethi (supra), under the conventional head,

compensation of Rs.40000/Â is to be awarded for loss of consortium, Rs.15000/Â for loss of estate and Rs.15000/Â for funeral expenses. Thus the

claimants are entitled for following total compensation under different heads.

Loss of dependency : Rs. 580800/Â​

Loss of consortium : Rs. 40000/Â​

Loss of estate : Rs. 15000/Â​

Funeral expenses : Rs. 15000/Â​

Â​Â​Â​Â​Â​Â​Â​Â​Â​Â​Â​‐

Â​Â​

Total : Rs. 650800/Â​

Â​Â​Â​Â​Â​Â​Â​Â​Â​Â​Â​‐

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(Rs. Six Lac Fifty Thousand Eight Hundred only)

Thus, the claimants are entitled for total compensation of Rs.650800/ (Rs. Six Lac Fifty Thousand EightÂ

Hundred).  This compensation amount shall be inclusive of no fault liability amount awarded under Section 140 of the Motor Vehicles

Act. The claimants are also entitled to interest on this amount at the rate of nine per cent per annum from the date of filing of petition till realization of

the compensation amount. This amount shall be inclusive of compensation received by claimants under no fault liability. Thus, by assessing just and

reasonable compensation, I hold that the award passed by the Tribunal in Motor Accident Claim Petition No. 83 of 2006 deserves to be modified to

reduce the quantum of compensation amount. Accordingly, I hold that this appeal deserves to be allowed.

Accordingly, First Appeal No. 840 of 2013 is allowed. Appellant insurance company is exonerated from its liability to indemnify respondent nos. 4

and 5 (Original respondent nos. 1 and 2). However, compensation payable to respondent nos. 1 to 3 (original claimants) is reduced to the extent of

Rs.6,50,800/Â with interest thereon at the rate of nine per cent per annum from the date of filing of petition till realization of the compensation amount

inclusive of compensation already received by claimants. Though appellant is exonerated from its liability to pay the compensation, direction is issued

to the appellant insurance company to first pay the compensation to the original claimants in accordance with modified award, and thereafter to

recover it from respondent nos. 4 and 5 (owners of the offending vehicle), by initiating proceedings before the executing court, as if the dispute

between the insurer and owners was the subject matter of determination before the Tribunal and the issue is decided against the owners and in favour

of the insurer. The Tribunal shall obtain security for the entire amount, which the insurer will pay to the claimants. The Tribunal shall attach the

offending vehicle as part of the security. The Tribunal shall obtain security from the owners of the offending vehicle of the amount payable to the

claimants. If necessity arises, the Tribunal shall take assistance of the Regional Transport authority concerned. The award, passed by the Tribunal, be

modified in above said terms. Parties to bear their respective costs of the appeal. Appeal is disposed of in aforesaid terms. Respondent nos. 1 to 3 are

permitted to withdraw the compensation amount deposited by the appellant in this Court in accordance with modified award. If any amount is surplus,

the same be refunded to the appellant insurance company.