AI Structured Summary
Not yet generated for this judgment
Judgment
There is a delay of 23 days in filing of the appeal. Cause shown is accepted. Delay in filing of the appeal is condoned.
Even though the appeal is listed for admission, with consent of both the counsel, it is taken up for final disposal.
Mr. A.N. Venkatesh, learned Counsel appearing for the Appellant-insurer has raised three contentions.
The vehicle in question is goods vehicle and was carrying gas cylinders, which had no permit to carry such gas cylinders. He further submits that the deceased was not an employee or for that matter a loader. Hence, the question of the insurer answering the claim would not arise. He further submits that the compensation as determined is excessive and assuming that the insurer is liable to pay the compensation it is required to be determined under the Workmen''s Compensation Act. We do not find any merit in any of his contentions for the following reasons:
The claimants are the Respondents 1 to 4. They are the widow, the children and the mother of the deceased. The specific case made out by the claimants is that, on 5.9.2005, the deceased was travelling in the lorry in question as a loader and the driver of the lorry was driving the said vehicle in a rash and negligent manner and near Sakleshapura town, the lorry hit the hind portion of another lorry. Due to the said impact, the deceased sustained grievous injuries and succumbed to the said injuries on the spot.
The owner of the vehicle in question even though served did not appear and was placed exparte and the insurer appeared through the counsel and contested the claim and denied the entire petition averments.
The case of the insurer is that there is a valid insurance covered for the period from 4.8.2005 to 3.8.2006. But however, they denied the negligence as well as the liability to answer the claim inasmuch as their liability to satisfy the claim is subject to the terms and conditions of the insurance policy.
The learned member of the Tribunal having regard to the evidence let in by the claimants as well as the Respondents was of the view that indeed the driver of the vehicle was responsible for the accident. Hence, recorded a finding that the insurer of the lorry is liable to answer the claim.
In so far as the quantum is concerned, the learned member of the tribunal has found that the deceased was an employee and was earning Rs. 4,000/- p.m. and after deducting 1/3rd towards personal expenses has determined the loss of dependency'' at Rs. 4,80,000/-. The learned member of the Tribunal has taken the age of the deceased as 36 years having regard to what is stated in the post mortem report. To that tribunal has added an additional sum of Rs. 50,000/- under the various heads. Thus, the total compensation awarded to the claimants is Rs. 5,30,000/.
Indeed, in so far as the first contention regarding the type of the vehicle is concerned, there is no dispute. Indeed, it is a goods vehicle. It is also admitted fact that it was carrying gas cylinders. To that extent the insurer cannot have any grievance inasmuch as Ex. R2 discloses that it had a goods carriage permit. Indeed, to that extent, we are of the view that the finding recorded by the tribunal that it is a goods carriage cannot be faulted.
In so far as whether there is permit to carry the gas cylinders is concerned, we are of the view that no documents are produced to show that the vehicle was not permitted to carry the said gas cylinder.
It is no doubt true Section 149(2) of the Motor Vehicles Act. would relate to the liability of the insurer to satisfy the claim. It is also no doubt true that one of the grounds, on which the insurer can avoid liability, is that if it does not have a valid permit.
In the case on hand we notice that the vehicle in question is a goods carrier and also it had the valid permit to carry the goods. Hence, to that extent we are of the view that it is not open for the insurer now to contend that they did not have a permit.
Another contention is regarding the liability to be fixed under the Workmen''s Compensation Act. Indeed, we could have considered the said contention, but however, a perusal of the statement of objections does not disclose that such a contention is raised before the tribunal. In the absence of such a contention, we are of the view that it is not open for the insurer to urge that the compensation is required to be determined under the Workmen''s Compensation Act. We find that the insurer has filed an application u/s 170 of the Motor Vehicles Act. Indeed, it is open for the insurer now to contend that the compensation determined is on excessive side.
Indeed, we notice that the tribunal has taken the income of the deceased at Rs. 4,000/- although it is contended by the claimants that it was Rs. 5,000/-. We are of the view that the income of the deceased is required to be taken at Rs. 3,500/- p.m.
In so far as deduction towards personal expenses is concerned, it is to be noticed that, the claimants are the widow and two children as well as the mother. Hence, we are of the view that instead of 1/3rd, 1/4th is required to be deducted towards personal expenses.
In so far as multiplier is concerned, there are two versions. The claimants would claim that the deceased was 32 years old. We are of the view that the multiplier adopted by the learned member of the Tribunal is just and proper. Hence, the loss of dependency would work out to (Rs. 3,500-1/4=2625) Rs. 2,625/-. The learned member of the tribunal has adopted the multiplier of ''15'', which we find is correct. Having regard to the age of the deceased the compensation under the head of loss of dependency would be Rs. 4,72,000/-.
Indeed, we notice that the Tribunal has awarded Rs. 15,000/- towards Funeral Expenses and loss of consortium under the conventional heads. We propose to award a sum of Rs. 28,000/- under the heading of funeral expenses and loss of consortium under the conventional heads. Thus, the total compensation awardable would be as follows:
Loss of dependency (2625 x 12 x 15) 4,72,500/-
Conventional heads 28,000/-
5,00,500/-
Thus, the total compensation awardable to the claimants would be Rs. 5,00,500/-. To that extent we are of the view that the insurer is entitled to succeed.
Having said so, we are of the view that the appeal is to be accepted to that extent. Hence, the following order:
(i) We accept the appeal in part
(ii) The compensation awardable to the claimants-Respondents would be Rs. 5,00.500/- and rest of the award stands confirmed.