Shantabai & Ors. vs Pravin Ishwarchand Goyal & Anr.

Heard Mr. B.B. Raijpure, learned counsel for the appellants, Mr. Aniket Rangari holding for Mr. Amol Mardikar, learned counsel for respondent No.1 and Mrs. Mrunal Naik, learned counsel for respondent No.2.

By the consent of learned counsels appearing on behalf of the respective parties, the appeal is taken up for final disposal.

The appellants have preferred the present appeal challenging the judgment and award dated 10.12.2012 passed by the learned Motor Accident Claims Tribunal, Chandrapur, in M.A.C.P. No.7/2007. Vide the said judgment and award, the learned Tribunal has directed the non-applicant No.1 (respondent No.1 herein) to pay the appellants herein, the compensation of Rs.84,500/- including no fault liability amount, along with interest at the rate of 9% per annum from the date of application i.e. 16.01.2007 till its realization.

Being aggrieved by the said impugned judgment and award, the appellants approached this Court under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”).

According to the appellants, the deceased was an agriculturist and used to earn Rs.60,000/- per annum. On 03.05.2006, the deceased went to his daughter's house, namely Yogita Borsaare at Sushi (Dabgaon), for construction of her house. After purchasing the Iron, Gitti, building material, etc. the deceased was returning from Mul. It is further contended that respondent No.1 Pravin Goyal, is the owner of tractor and trolley, which was being used for transporting the materials with his labours. The deceased after purchasing the aforesaid building material, iron and Gitti, had hired a tractor bearing registration No.MH-34-7161 and its trolley bearing registration No.MH-34-A-493. The said building material was loaded in the trolley. The driver of the respondent No.1 was driving the tractor in rash and negligent manner. While driving, he lost control and in that event the trolley get separated from the tractor and turned turtle. Due to that, the deceased fell down, who was sitting on the goods in the trolley, therefore, the deceased received fatal injuries to his head and other parts of his body. Resulting into the deceased sustained injuries and succumbed to death. It is further pointed out by the appellant that the tractor and trolley were insured with respondent No.2 - Insurance Company. Therefore, the appellants - claimants have approached to the Claim Tribunal by filing the Motor Accident Claims Petition No.7 of 2007.

According to the appellants, the learned Tribunal, Chandrapur, granted very meager amount of compensation based on the yearly income of Rs.15,000/- instead of Rs.36,000/-. It further fastened the liability on the owner of the offending vehicle and ought to have fastened the liability on the Insurance Company. He further stated that the learned Tribunal ought to have considered the notional income of the deceased as Rs.3,000/- per month and therefore, prayed for enhancing the compensation.

Mr. Rangari holding for Mr. Mardikar, learned counsel for the Respondent No.1, submitted that deceased was owner of the goods which was purchased by the himself and therefore, it was not appropriate on behalf of learned Tribunal to exonerate the Insurance Company and holding respondent No.1-Owner, liable to pay the amount of compensation. In support of his submissions, he relied upon the judgment delivered by this Court in the matter of Nanasaheb Vs. Oriental Insurance Company Ltd. Through Branch Office Branch Office and Others reported in 2014 SCC OnLine Bom 1331, Para 11 of the aforesaid judgment is reproduced herein below for ready reference:-

Mrs. Mrunal Naik, learned counsel for respondent No.2 submits that the offending vehicle was a goods carrying vehicle. As per the Act, only the owner of the goods or its authorized representative traveling in the goods vehicle is covered under the statutory policy. Gratuitous or unauthorized persons are traveling in a goods carriage are not covered. She further submitted that the deceased at that time was traveling in a trolley of the goods vehicle and he was neither the owner of the goods nor the authorized representative accompanying the goods. No premium was paid to cover the risk of gratuitous passengers. On the contrary, the policy was covering the statutory risks contemplated under Section 147 of the Act. Therefore, in absence of the contractual coverage, respondent No.2 cannot be made liable to indemnify the owner for the death of the gratuitous passenger. In support of her submissions, she relied upon various judgments delivered by the Hon’ble Apex Court, which are mentioned here in below :-

Learned counsel for respondent No.2 further submitted that it is in order to hold the Insurance Company liable to pay compensation, it is required to see whether the deceased was a gratuitous passenger or not. It is also equally required to observe whether the deceased traveling in goods carriage was actually the owner of the goods or merely a gratuitous passenger. She further submitted that no documents have been produced before the learned Tribunal to claim that the deceased was in fact the owner of the goods, which was loaded in the trolley. According to her, learned Tribunal has rightly observed that deceased was not traveling as an owner of the goods. She further submitted that the claimants have also failed to produce any documentary evidence regarding the income of the deceased. In absence of any proof and income the notional income prescribed under the Second Schedule to Section 163-A of the Act, Rs.15,000/- per annum deserves to be adopted. She, therefore, submitted that the appellants are not entitled to any compensation from the Insurance Company and hence, prayed for dismissal of the instant appeal.

Learned counsel for respondent No.2 further submitted that respondent No.1-Owner has filed the Cross Objection No.3/2014 in the instant appeal thereby, praying that the judgment and award dated 10.12.2012 passed by learned Motor Accident Claims Tribunal, Chandrapur, in Motor Accident Claim Petition No.7/2007 be quash and set-aside.

According to Mr. Rangari, learned counsel for the appellant the tractor as well as trolley are insured with the respondent No.2-Oriental Insurance Company Ltd. He further submitted that age of deceased was 72 years old and looking to his age, the expectancy of life cannot be considered more than 80 years and therefore, he submitted the compensation amount as exorbitant on, it was not appropriate on the part of learned Tribunal to exonerate the Insurance Company.

After hearing learned counsel for the parties and going through the record, appellants being claimants have filed the claim petition under Section 166 of the Act, which is registered as Motor Accident Claim Petition No.7 of 2007, before the Motor Accident Claims Tribunal, Chandrapur. The claimants have stated that the deceased was earning more than Rs.5,000/- per month and he was also an agriculturist having 3 acres of agricultural land. The age of the deceased at the time of accident was 72 years old. In para No.7, it is specifically submitted that the deceased was carrying the building material, iron Gitti, which was purchased from the shop at Mul and the same was loaded in the offending vehicle trolley. Accordingly appellants/claimants prayed for claim compensation of Rs.1,00,000/-.

The appellants have stated that though they were entitled to claim the compensation of Rs.2,25,000/-, they have restricted their claim in the prayer clause (i) for Rs.1,00,000/- only. On the part of appellants/claimants, the appellant No.1, Shantabai Khobare, entered into the witness box and deposed as per her evidence, in the cross-examination after being confronting whether the deceased has purchased the building material, she had denied the same. In her cross-examination, she has straightaway admitted that construction of their house was going on and the building material was purchased. The learned Tribunal was pleased to consider that the deceased was a gratuitous passenger and therefore, he comes within the purview of Section 147 of the Act. The Respondent No.1 has contravened the terms and conditions of the Insurance Company. Therefore, liability cannot be fastened on the Insurance Company for the death of the deceased. However, the evidence as regards the deceased had purchased the building material for the construction of the house has not been disturbed as the appellant No.1 firmly deposed before the learned tribunal about the same, and even when the said witness put to cross-examination, nothing odd could be elucidated from the evidence. The findings given by the learned Tribunal as regards the deceased as gratuitous passenger is without any merit and substance.

The reliance placed by the learned counsel for respondent No.1 in Nanasaheb’s Case (supra), is very much applicable to the present case. When the policy is sold in the goods carrier, it needs to be presumed that the policy covers the risk to owner of the goods and its representative. The only question which can be determined is whether the deceased was present in the vehicle as an owner of the goods or not. Whether the learned Tribunal decides the question in favour of claimants, then insurance company cannot be exonerated from making payment of compensation.

In the light of above, when Appellant No.1 in her evidence has clearly deposed that the deceased was carrying the building material along with him, which the deceased had purchased for construction of their house. Therefore, it was not appropriate for the learned Tribunal to hold that the goods were not belonging to him and therefore, this Court finds that the learned Tribunal has committed a mistake in exonerating the Insurance Company.

In that view of the matter, it is held that Insurance Company is liable to indemnify the owner. Thus, the Insurance Company cannot be exonerated.

The record reveals that the accident took place on 04.05.2006. There is also an admission on the part of appellant No.1 in her deposition that the building material which was purchased by the deceased was loaded in the trolley of the tractor and the death of her husband is caused because of the trolley was turned turtle. However, the record also reveals that the deceased was 72 years old and was an agriculturist and was earning Rs.60,000/- per annum. The accident is of the year 2006 and the daily income of an agriculturist for the said period has been considered at the rate of Rs.3,000/- per month and therefore, following calculations are being made in terms of judgments in the matter of National Insurance Company Limited Vs. Pranay Sethi and Others, reported in (2017) 16 Supreme Court Cases 680 and Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another reported in (2009) 6 Supreme Court Cases 121 :-

Thus, as per the above calculations, I am of the view that in order to meet the ends of justice it would be appropriate to direct the respondent Nos.1 and 2 to pay jointly and severally an amount of Rs.2,23,100/- to the appellants along with interest at the rate of 7.5% from the date of registration of claim petition, till the realisation of entire amount. After deducting the amount of compensation already awarded by the learned Tribunal, the balance enhanced amount shall be paid to the appellant. Accordingly, I pass the following Order :-