Shabana & Ors. vs Maliksab & Anr.

(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

These two appeals filed under Section 173 (1) of Motor Vehicles Act, 1988 (for short, ‘the Act’) are directed against the judgment and award dated 20.10.2022 passed by the III Additional Senior Civil Judge and JMFC, Vijayapura, (for short, ‘the Tribunal’) in MVC No.1072/2019. The insurer is in appeal questioning the saddling of liability, whereas, the claimants are in appeal not being satisfied with the quantum of compensation with a prayer to enhance the same.

The claimants filed claim petition under Section 166 of the Act, claiming compensation for the accidental death of Sri.Ibrahim, husband of claimant No.1 in a road traffic accident that occurred on 20.06.2019 involving tractor bearing No.KA-28/TB-9469 and trailer bearing No.KA-28/T-3499. Before the Tribunal, it was stated that claimants were dependent on the income of the deceased. It was further stated that the deceased was doing coolie work and was earning Rs.15,000/- per month. It was also stated that deceased was aged 30 years, as on the date of accident.

On issuance of notice, respondent No.1 has failed to appear before the Tribunal and respondent No.2 appeared and filed its objections denying the averments made in the claim petition. It was further stated that deceased was an unauthorized passenger in the tractor trailer and as such, insurer is not liable to pay compensation. Further the insurer specifically contended that there was no goods in the tractor trailer and the panchanama or any document would not indicate bricks which is said to have been loaded. Further, it was stated that except driver, no other person could travel in the tractor trailer. Thus, it is submitted that, as there were breach of conditions of policy, the claim petition was liable to be dismissed. Before the Tribunal, claimant No.1-wife of the deceased, examined herself as PW.1 and also examined PW.2 eyewitness and got marked Exs.P1 to P7, whereas, respondent No.2-insurer examined RW.1 and marked insurance policy as Ex.R1.

The Tribunal on appreciation of material on record, awarded total compensation of Rs.25,94,800/- on the following heads:

While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.10,000/- per month, added 40% of the assessed income towards future prospects, applied multiplier of 17 and deducted 1/5^th towards personal and living expenses of the deceased.

Heard learned counsel Sri.Sanjay M. Joshi, for the respondent-Insurance Company, learned counsel Sri.S.S.Mamadapur, for respondent No.1-owner and learned counsel Sri.C.L.Koujalagi, for appellants-claimants and perused entire appeal papers as well as the Tribunal records.

Learned counsel for the insurer would submit that the Tribunal committed a grave error in saddling the entire liability on the Insurance Company. Learned counsel would submit that the claimants are not entitled for compensation as the deceased was an unauthorized passenger, who is not covered under the policy. Learned counsel for the insurer would further submit that since the deceased was an unauthorized and gratuitous passenger, the claimants would not be entitled for any compensation. Further, learned counsel would submit that the deceased was not proceeding with any goods, as such, he cannot even be considered as a worker. Further learned counsel would submit that no document is placed on record to indicate that the deceased was traveling in the tractor-trailer along with the goods. Therefore, he submits that the Tribunal was not right in awarding any compensation to the claimants. Further learned counsel would submit that the claimants have also not placed on record any proof to establish that he was employed by the owner of the tractor. In the absence of material, learned counsel would submit that the appeal deserves to be allowed by setting aside the judgment and award.

On the other hand, learned counsel Sri.C.L.Koujalagi, would submit that the deceased was proceeding in the tractor-trailer along with bricks, which is recorded in the FIR. Learned counsel referring to Ex.P1-FIR, would submit that in the complaint it was made clear that the deceased was proceeding in the tractor-trailer along with goods i.e. bricks. Therefore, he submits that he cannot be considered as unauthorized or gratuitous passenger.

Further, learned counsel would submit with regard to quantum of compensation that the accident is of the year 2019 and in terms of the notional income chart of Karnataka State Legal Services Authority (KSLSA), the notional income ought to be assessed at Rs.13,250/- and not Rs.10,000/- as assessed by the Tribunal. Thus, he would pray for reassessing the monthly notional income of the deceased and to enhance the compensation by allowing the appeal of the claimants.

Having heard the learned counsel for both the parties and on perusal of entire appeal papers as well as the Tribunal records, the following points would arise for consideration:

Whether the Tribunal is justified in saddling the entire liability on the insurer of offending vehicle?

Whether the claimants would be entitled for enhanced compensation?

The answer to both the above points would be in the affirmative for the following reasons:

The accident that occurred on 20.06.2019 involving a tractor bearing No.KA-28/TB-9469 and trailer No.KA-28/T-3499 that led to the accidental death of husband of claimant No.1 Ibrahim Bagawan is not in dispute in this appeal. The claimants are in appeal seeking enhancement of compensation, whereas, the insurer is in appeal questioning the saddling of liability.

The main contention of the respondent-insurer is that, the deceased was an unauthorized or gratuitous passenger, as such, the insurance company cannot be held liable to pay the compensation. There is no dispute with regard to validity of the insurance policy as on the date of accident. The case of the claimants is that the deceased was traveling in the tractor trailer along with goods i.e. bricks. A perusal of Ex.P1-FIR clearly indicates that the deceased was proceeding in the tractor trailer along with bricks. Merely because the panchanama would not indicate the bricks, we cannot come to the conclusion that deceased was not traveling with the bricks. Moreover, the evidence of PW.2 would indicate that, PW.2 along with respondent No.1 and deceased-Ibrahim loaded the bricks at Devar-Hipparagi to unload the same at Yaragal village for construction of agricultural pond. When the evidence of PW.2 is clear and when in the cross-examination nothing contrary is elicited, the contention of the respondent-insurer that the deceased was an unauthorized or gratuitous passenger, cannot be accepted.

Further, learned counsel for the insurer would contend that, there is no material to establish that the deceased was employed by the owner of the offending vehicle-tractor trailer. It is not in dispute that the deceased was traveling in the tractor trailer and further we have held that the deceased was traveling along with bricks loaded. No other material is required to say that the deceased was employed to load the bricks. In the light of the above, we do not find any merit in the contention of the respondent-insurer and accordingly, the contention of the insurer stands rejected.

The contention of the learned counsel for the appellants-claimants that the notional income assessed by the Tribunal of the deceased at Rs.10,000/- is on the lower side, shall have to be accepted. In terms of the notional income chart prepared by the KSLSA for the year 2019, the notional income is fixed at Rs.13,250/- per month, whereas, the Tribunal without noticing the same assessed the notional income of the deceased at Rs.10,000/- which is on the lower side. Accordingly, we reassess the monthly notional income of the deceased at Rs.13,250/- per month.

The Tribunal has rightly added 40% of the assessed income towards future prospects and rightly deducted 1/5^th towards personal and living expenses of the deceased, taking note of the fact that there were 7 dependents. The Tribunal is also justified in applying multiplier 17, taking note of the age of the deceased being 30 years. The Tribunal is also justified in awarding Rs.2,80,000/- (Rs.40,000/- each) towards loss of consortium to all the claimants. Thus, the claimants would be entitled for the following modified compensation:

The claimants are entitled to total compensation of Rs.33,37,360/- as against Rs.25,94,800/- awarded by the Tribunal.

In the light of the above, the following:

the Insurance Company is dismissed.