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Judgment
P.D. Waingankar, J.—All these appeals under Section 173(1) of M.V. Act are arising out of the common judgment and award dated 06.08.2007 passed in MVC Nos. 795/2001 and 837/2001 on the file of Motor Accident Claims Tribunal-IV and III Additional District Judge, Belgaum.
Brief facts which gave rise to these appeals are as under:
"On 02.11.2000, one Smt. Sulochana along with her son Namdev was travelling in a Jeep bearing No. KA-30/M-657 from Kadra to Joida. On account of the rash and negligent driving of the Jeep while negotiating a curve, the Jeep toppled down on the left side of the road. As a result, Sulochana suffered grievous injuries while her son Namdev died on the spot." On account of the personal injuries sustained by Sulochana, she filed a claim petition under Section 166 of the M.V. Act in MVC No. 795/2001. Claiming compensation on account of death of her son Namdev, she filed a claim petition under Section 163(a) of the M.V. Act in MVC No. 837/2001 against the owner and insurer of the Jeep.
Both the claim petitions were opposed by the insurance company mainly on the ground that Sulochana and her son Namdev were travelling in a Jeep as fare paying passengers in breach of the policy conditions and therefore the insurance company is not liable to indemnify the owner of the Jeep in the event compensation is awarded by the Tribunal. Both the claim petitions came up for consideration before the Tribunal. The Tribunal on appreciation of the evidence recorded a finding that the accident occurred on account of the negligence of driver of the Jeep and thereby the Tribunal awarded compensation of Rs. 85,600/- for the personal injuries sustained by Sulochana in MVC No. 795/2001. Whereas the Tribunal awarded a compensation Rs. 1,54,500/- on account of the death of Namdev from the respondent Nos. 1 and 2 owner and insurer of the Jeep jointly and severally by the impugned judgment and award.
Aggrieved by the liability fastened in MVC Nos. 795/2001 and 837/2001, the insurance company preferred MFA No. 2082/2008 and 2087/2008 respectively. Whereas the claimant preferred MFA No. 987/2008 and MFA No. 984/2008 for enhancement of the compensation.
I have heard both the learned counsel appearing for the claimant and the insurance company. Perused the records and the judgment and award passed by the Tribunal.
Upon hearing the learned counsel for the parties and upon perusal of the records, the following points would arise for my consideration:
"i) Whether the compensation awarded by the Tribunal in both the claim petitions is just and reasonable?
ii) Whether the Tribunal is justified in fastening liability to pay the compensation upon the insurance company?"
MVC No. 795/2001 is a claim filed by Smt. Sulochana for the personal injuries sustained by her. The Tribunal awarded a total compensation of Rs. 85,600/-. Ex. P4 is the wound certificate and Ex. P12 is the disability certificate. Ex. P4-wound certificate issued by the medical officer Primary Health Centre Kumbarvada indicates that she had fracture of left humerus, swelling and tenderness over the left tibia. Ex. P8 is the discharge summary issued by J.N. Medical College, Belgaum which reveals that she was admitted on 02.11.2000 and discharged on 18.11.2000. It also discloses fracture shaft humerus 1/3rd left side. Hanging plaster cast was applied on 06.11.2000 after close reduction. Ex. P9 is another discharge summary issued by J.N. Medical College which indicates that she was again admitted on 28.07.2004 and discharged on 20.08.2004. It reveals non-union of fracture shaft humerus left side. Apart from her own evidence, the claimant/Sulochana examined Dr. Satish D. Patil, Consultant Orthopedic Surgeon as PW.2 who has spoken having examined her for assessment of disability and opined that she has got 38% disability of affected limb.
The Tribunal awarded a sum of Rs. 10,000/- towards injuries, pain and sufferings, Rs. 70,560/- towards loss of income on account of disability, Rs. 5,000/- towards medical expenses. The compensation awarded by the Tribunal is definitely on the lower side. Having regard to the nature of injuries, the nature of treatment and the period of hospitalisation, she is entitled for a sum of Rs. 20,000/- under the head injury, pain and sufferings as against Rs. 10,000/- awarded by the Tribunal.
The Tribunal has rightly determined the loss of future income at Rs. 70,560/- by relying upon the evidence of PW.2 the doctor who assessed the disability. Further the Tribunal is also justified in awarding a sum of Rs. 5,000/- towards medical expenses. But the Tribunal has not awarded any amount towards loss of amenities, loss of income during the period of treatment, attendant charges and incidental expenses. As such, the claimant/Sulochana is awarded a sum of Rs. 15,000/- towards loss of amenities, Rs. 5,000/- towards loss of income during the period of treatment and Rs. 10,000/- towards attendant charges, conveyance charges and nutritious food.
Thus, the claimant/Sulochana is held to be entitled for a total compensation of Rs. 1,25,560/- as against Rs. 85,600/- awarded by the Tribunal as under:
Coming to the compensation of Rs. 1,54,500/- awarded by the Tribunal in respect of death of Namdev the minor son of Sulochana aged about 15 years, the Tribunal has awarded a total compensation of Rs. 1,54,500/-. Since it is a claim under Section 163-A of the M.V. Act compensation to be awarded is as per Second Schedule. Ex. P5 is the Post Mortem Examination report of deceased-Namdev wherein his age is shown as 15 years. The Tribunal has taken his income at Rs. 15,000/- per annum which is not proper. It would be in the ends of justice to take the income at the rate of Rs. 30,000/- per annum he being the only son of mother who was about to attain the age of majority within a period of 3 years. If 1/3rd of the income is deducted in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive, the annual loss of dependency comes to Rs. 20,000/-. Since the age of the deceased is shown as 15 years, the multiplier to be adopted is ''15''. If the annual loss of dependency of Rs. 20,000/- is multiplied by ''15'' multiplier, the total loss of dependency for which the claimant is entitled comes to Rs. 3,00,000/-. In addition to that she is entitled for Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate. Thus the claimant in MVC No. 837/2001 is entitled for a compensation of Rs. 3,04,500/- as against Rs. 1,54,500/- awarded by the Tribunal.
Coming to the liability to pay the compensation, though the insurance company admitted having issued a policy in respect of the vehicle involved in the accident and that the policy was in force as on the date of the accident, it has contended that it was a policy issued to private vehicle. Since the claimant Sulochana and her son Namdev were travelling in the said vehicle as fare paying passengers, there is a breach of policy conditions by the insured and hence insurance company is not liable to indemnify the insured and to pay the compensation. Ex. R1 is the policy in respect of vehicle No. KA-30/M- 657. It covers 9 persons. It is a private car policy. Therefore, it is to be seen whether the claimant Sulochana and her son were travelling in the said vehicle as fare paying passengers. The owner of the vehicle though served has not come forward to participate in the proceedings or to contend that they were travelling as fare paying passengers. Evidence of PW.1-Sulochana would go to show that there were other persons also in the Jeep. She was returning from Kadra after attending a fair at Kadra. Her evidence would further go to show that she had not paid any fare as such though respondent No. 1 was demanding the fare as could be seen from her evidence. But the fact remains that she had not paid fare as such. There is no concrete evidence to show that the persons were carried in the said Jeep including the claimant Sulochana and her son for hire on reward. The owner is not examined, so also the driver. In the absence of concrete evidence to show that Sulochana was travelling along with her son as a fare paying passenger it is rather difficult to believe a stray admission by PW. 1 a rustic woman in her cross-examination that respondent No. 1 had demanded the fare of Rs. 15/- per passenger, in order to jump to the conclusion that they were travelling in the said vehicle as a fare paying passenger. Moreover, the policy covers 9 persons. Under such circumstances, the Tribunal is justified in recording a finding that the insurance company failed to establish that they were travelling in the Jeep as fare paying passengers so as to absolve the insurance company from indemnifying the owner of the Jeep. There is no merit in both the appeals filed by the insurance company. Accordingly, I pass the following order.
M.F.A. No. 984/2008 is allowed-in-part. The judgment and award dated 06.08.2007 passed in MVC No. 837/2001 on the file of the Motor Accident Claims Tribunal-IV, Belgaum, stands modified. The claimant is held to be entitled for a total compensation of Rs. 3,04,500/- as against Rs. 1,54,500/- awarded by the Tribunal together with interest at the rate of 6% per annum from the date of petition till the date of realisation.
M.F.A. No. 987/2008 is allowed-in-part. The judgment and award dated 06.08.2007 passed in MVC No. 795/2001 on the file of the Motor Accident Claims Tribunal-IV, Belgaum, stands modified. The claimant/Sulochana is held to be entitled for a total compensation of Rs. 1,25,560/- as against Rs. 85,600/- awarded by the Tribunal together with interest at the rate of 6% per annum from the date of petition till the date of realisation.
Respondent No. 2-insurance company is directed to deposit the compensation amount in both the appeals together with 6% interest thereon within a period of two months from the date of receipt of copy of this judgment.
M.F.A. Nos. 2087/2008 and 2082/2008 filed by the insurance company are hereby dismissed. The amount in deposit shall be transmitted to the Tribunal.