Sikha Das vs Rakhal Muhuri and Others

D. Biswas, J.—These two appeals are arising out of T.S. [MAC] 35/1995 disposed of by the teamed Member, Motor Accident Claims Tribunal, South Tripura, Udaipur. Hence both the appeals are proposed to be disposed of by this common judgment.

Smti. Sikha Das, Appellant in F.A.No.57 of 1995 submitted an application u/s 166 of the Motor Vehicles Act, claiming compensation of Rs. 3 lakhs on the death of her husband Krishna Chandra Das, occurred in a road accident on 23.7.1994. Late Das, a Driver by profession, was driving the vehicle No. T.R.T.-828 attached with a loaded trailer. The vehicle over turned near Garjee on way to Shantirbazar, and as a result, the driver Das died. The Petitioner Smti. Sikha Das, the sole successor of the deceased, filed the application for compensation of Rs. 3 Lakhs. It has been pleaded that her husband was in receipt of salary of Rs. 1500/- per month, and in addition, he used to earn Rs. 500/- from other sources.

The learned Tribunal on consideration of the evidence adduced by the claimant awarded a sum of Rs. 75,000/- as compensation to be paid by the owners of the vehicle.

Being aggrieved, Smti. Sikha Das has preferred F.A. No. 57 of 1995 claiming enhanced compensation while the owners Rakhal Muhuri and another preferred F.A. No. 48 of 1995 asserting that the amount of compensation is payable by the Insurance Company and not by them.

A glimpse of the impugned award shows that the learned Tribunal fixed the responsibility for payment of the compensation amount with the owners of the vehicle on the ground that the vehicle was driven in violation of the condition of the policy and, for that reason alone, the learned Tribunal further held that the driver was negligent in driving the vehicle.

I have perused the evidence of the lone witness Smti. Sikha Das. Except a suggestion to the effect that her husband had driven the vehicle in violation of the condition of the policy, which too she had emphatically denied, there is no evidence on record to show that the jeep was being driven in a negligent manner. The Insurance Company in para 4 of their written statement simply stated that there has been a breach of condition of the policy and for that reason the claim petition against them is not maintainable. Apart from this, there is no specific plea in the written statement submitted by the Insurance Company to show that the accident occurred because of the trailer attached with the vehicle The Insurance Company also did not adduce any evidence to prove the alleged breach of condition of the policy in driving the vehicle. Even the claimant Smti. Das was not confronted with any suggestion to bring home the allegation of negligence. It is, therefore, clear that the learned Tribunal has come to the above conclusion on surmises and presumption and not on any evidence on record. For this reason, the decision of the learned Tribunal that it is owners who are liable to pay compensation cannot stand.

I have taken care of the definition of the ''Motor Vehicle'' incorporated in Sub-section (28) of Section 2, and the provisions of Sub-section (2) of Section 149 of the Motor Vehicles Act. It would appear that the violation of the condition of the policy as held by the learned Tribunal is not covered by any available defence under the above provisions. That apart, the undisputed fact is that the accident occurred due to failure of brake-system. On perusal of the lower Court records, I find that no evidence has been adduced by the Insurance Company even to suggest that the attachment of the trailer with the vehicle was the proximate cause of the accident i.e. the failure of the brake-system. There being no evidence at all on this aspect, it will be too far-fetched to attribute. Negligence on the part of the driver and consequent liability on the owners.

It would further appear from the impugned award that the learned Tribunal has referred to the conditions incorporated in the Insurance Certificate and the Insurance policy. But, strangely, these two documents have not been tendered into evidence by any party. A document filed but not tendered into evidence cannot be taken note of by a Tribunal for the purpose of adjudicating the dispute between the parties. However, the claim petition will not be liable to be rejected as because Insurance Company in their written statement has admitted that the concerned vehicle was insured with them at the relevant time. In the opinion of this Court, while the Tribunal was competent to pass an award on the basis of the admission made by the Insurance Company, in the written statement, it was not competent to divest the responsibility for payment of compensation from the Insurance Company relying on the various clauses of the Insurance certificate and the Insurance policy as these were not part of evidence.

The discussion above leads to the conclusion that the Insurance Company has not been able to discharge their burden to get absolved from their liability to pay the compensation. The circumstances of the case discussed above do not inspire this Court to endorse the view of the learned Tribunal in determining the responsibility for payment-of compensation as that of owners. In my considered view, when the proximate cause of the accident is not relatable to the alleged breach of condition of the policy and that the accident took place during the validity period of the policy, it is the Insurance Company which is liable to pay the compensation. This answers the question raised in First Appeal No. 48 of 1995.

The next question urged is that Smti. Sikha Das has re-married after death of her husband and, as such, she is not entitled to compensation. In support of this, the learned Counsel for the Insurance Company has referred to a decision of Delhi High Court reported in Chandan and Another Vs. Kanwarlal and Another, . But this contention is also foreign to the pleadings of the case and raised for the first time before this Court. In my opinion, in the absence of any pleadings, no discussion of this issue is warranted in the instant case. That part any dispute on the score is a matter between the legal heirs of the deceased and, it cannot be raised either by the Insurance Company or the owner of the motor vehicle to resist the claim of the Petitioner.

Now, I shall deal with the matter relating to quantum of compensation. The learned Tribunal has dealt with this matter in para 13 of the impugned award. It would appear that the learned Tribunal adjudged the monthly income at Rs. 1500/- and deducted 50% there of for the personal expenses of the deceased. Thereafter, without applying any multiplier, he has assessed Rs. 75000/- as compensation so to compensate the loss of dependency @ Rs. 750/- per month by way of interest. This approach is hither to un-known in the field of compensation cases. This judgment was delivered in 1995 i.e.long after the Motor Vehicles Act, 1988 came into force. The entire exercise in calculating the compensation made by the learned Tribtmal has been contrary to the legal provisions embodied in the Act. It has, therefore, to be reassessed as per provisions of the second schedule of the Act.The deceased was 26 years old at the time of his death. Therefore, 18 will be the appropriate multiplier in the instant case. His monthly income was adjudged by the learned Tribunal at Rs. 1500/- i.e. 18,000/- per annum. As per table in the schedule of the Act the compensation payable comes to Rs. 3,06,000/. This amount has to be reduced by 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining him self had he been alive. Therefore, the amount comes down to Rs. 20,4,000/- In addition a sum of Rs. 4,500/- as funeral expenses and loss of estate may be added. Thus it figures to Rs. 20,8,500/-. This will be the just and proper compensation in the instant case.

In the result, both the appeals are allowed. The compensation amount awarded by the learned Tribunal is raised to Rs. 20,8,500/- to be paid by the insurance Company. 3 months tune is granted to the Insurance Company to make the payment less the amount, if any already paid,failing which the Petitioner will be entitled to interest @ 12% per annum. No order as to costs. The amount of Rs. 25,000/- already paid by the owner Appellants and withdrawn by the claimant shall be adjusted against the compensation amount to be paid by the Insurance Company and returned to the owner Appellants.