Uma Bai & others vs Pradeep Das Bairagi and others

This appeal has been filed under Section 173 of the

Motor Vehicles Act, 1988 by the claimants for enhancing of

compensation being aggrieved by the order dated 30.04.2004

passed by the Additional Motor Accident Claims Tribunal,

Gadarwara in M.V.C. No.15/2002.

This appeal is pending 2004, since long no one appeared on behalf of the appellant.

Learned Tribunal awarded Rs.1,50,000/- in favour of appellant no.1 mother of the deceased. The appellant no.2 and 3 are the elder brother of the deceased. Therefore, learned Tribunal dismissed their claim holding that they are not the dependents of the deceased nor they are legal heirs of the deceased, as held by learned Delhi High Court in case of The New India Insurance Company Vs. Bhuwan Chandan & others [(2003) (2) D.M.P. page 435[ that under Section 8 of Hindu Succession Act the elder brother of the deceased would not come under the category of Class-I legal heirs. The Tribunal further held that they are 35 & 38 years old and the deceased was younger to them. Hence, the findings of learned Tribunal are not illegal or perverse.

This Court does not agree with the contention of the appellants that they are dependents of the deceased and that they are entitled to claim compensation. Learned Tribunal rightly awarded compensation in favour of the appellant no.1 who is the old mother of the deceased and she was dependent on the deceased.

Learned Tribunal awarded Rs.1,40,000/- for loss of dependency and Rs.10,000/- for funeral expenses only. The appellant no.1 is also entitled to receive compensation in the head of ''loss of estate''. This fact has been ignored by the learned Tribunal Court. Therefore, the appellant no.1 is entitled for Rs.10,000/- for ''loss of estate''.

Looking to the facts and circumstances of the case, no further enhancement is required and appellant no.2 & 3 are not to be treated as real legal representatives of the deceased. They are major and earning money. Hence, they are not entitled for any compensation to that extent.

The cross objection under Order 41 Rule 22 of Code of Civil Procedure has been filed by the Insurance Company on the grounds that the Tribunal has erred in awarding the compensation of Rs.1,50,000/- jointly and severally against the Insurance Company/respondent no.3. The learned Tribunal has wrongly held that there is no breach of conditions of policy. Even then, it was proved the offending tractor is a single seater vehicle registered and insured for agriculture purpose only. It was also submitted that permitting passengers to travel in the offending Tractor by itself causes a breach of condition of policy. Therefore, the Insurance Company prayed that Company has to be exonerated from the liability.

Learned counsel for the Insurance Company/respondent no.3 has contended that the driving licence held by respondent no.1 was renewed after the date of incidence on 27.03.2002. Respondent no.1 was not holding valid and effective driving licence at the time of accident. In this regard no averment was made in cross objection. But respondent no.1-Pradeep (owner) has himself admitted that at the time of the accident, respondent no.2, who is a driver was not holding a valid licence. After the accident on 05.04.2002 his licence was renewed. Further he admitted that respondent no.2 has sufficient experience to drive the vehicle. It is important that after the occurrence of accident the licence was renewed. Therefore, this is a technical ground for which Insurance company is not exonerated from its liability but it is apparently clear that at the time of the accident the tractor was not used for the agriculture purpose. The decease was traveling on the aforesaid tractor as a gratuitous passenger.

Even though, learned Tribunal held that the Insurance Company is liable to pay compensation because the Company has failed to prove any breach of condition of policy by not adducing any evidence. This Court is not in agreement with the above finding because pleadings of the claimants itself show that at the time of accident the deceased was traveling on the tractor as a passenger, no further evidence is required to prove such fact. Undisputedly, according to Insurance Policy, the offending tractor was ensured for agriculture purpose.

In case of Bhav Singh Vs. Savirani & Ors [2008(1) MPLJ 72], Full Bench of this Court has held as under: -

"in case of insurance of tractor-trolley, any person other than the insurer and the insured who are parties to the insurance policy is a ''third party''. The insurer, however, would not be liable for any bodily injury or death of a third party in an accidence unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the insurance policy. Hence, the mere fact that a passenger is a third party would not fasten liability on the insurer." Therefore, the Insurance Company is liable to pay the compensation but is entitled to recover the same from the respondent no.1 as the matter pertains to death case and pending since 2004. Upto that extent, cross objection filed by the Insurance Company is allowed and the findings of the learned Tribunal with that regard is set aside.

With the aforesaid, the appeal is disposed of.