1. This judgment shall govern disposal of M.A. Nos. 647/2009, 648/2009, 649/2009, 650/2009, 651/2009, 753/2009, 757/2009, 768/2009, 769/2009 and 778/2009 as all these ten appeals have been filed under section 173 (1) of the Motor Vehicles Act, 1988 assailing the common award dated 16/1/2009 passed by the Fourth Additional Motor Accidents Claims Tribunal, Gwalior in claim case No.62/2007 (Smt. Babli and Ors. Vs. Ramvaran and Ors.), 59/2007 (Smt. Shanti and Ors. Vs. Ramvaran and Ors.), 61/2007 (Smt. Munni and Ors.Vs. Ramvaran and Ors.), 60/2007 (Smt. Ramwati and Ors. Vs. Ramvaran and Ors.) and 36/2008 (Madhosingh Vs. Ramvaran and Ors.).
2. M.A.Nos. 647/2009, 648/2009, 649/2009, 650/2009 and 651/2009 have been filed by Insurance Company assailing impugned awards on the premise of breach of policy whereas M.A.Nos. 753/2009 has been filed by injured Madhosingh for enhancement of impugned award. Madhosingh was awarded a compensation of Rs. 19,519/- for the fractures sustained by him. M.A.Nos. 757/2009, 768/2009, 769/2009 and 778/2009 have been filed by claimants of deceased Lakhmichand Jatav, Rambabu Prajapati, Meghsingh Jatav and Bhawarsingh respectively. The Tribunal has awarded compensations of Rs. 3,06,500/-; 3,09,500/-; 3,08,500/- and Rs. 3,48,500/- respectively to the claimants for the death of Lakhmichand Jatav, Rambabu Prajapati, Meghsingh Jatav and Bhawarsingh respectively.
3. Facts necessary for disposal of the case are to the effect that on the fatal day of accident i.e. 13/10/2007 injured Madhosingh, deceased Bhawarsingh, Meghsingh, Lakhmi Chandra and Rambablu Prajapti were going in a Dumper bearing registration No. M.P. 07-G-7069 to unload the sand. It is alleged that driver of the Dumper was driving it very rashly and negligently, and even after requesting him to drive slowly, he did not take care, as a result, when Dumber reached in between Devgarh and Kirol, near Gijaura Police Station, it turned turtled due to which Rambabu, Bhawarsingh, Lakhmichandra and Meghsingh had fallen and were crushed under the head of Dumper and succumbed to death; whereas, injured Madhosingh sustained grievous injuries and sustained permanent disablement. Therefore, claimants of all these deceased persons and injured Madhosingh had filed claim petitions before the Claims Tribunal for compensation for the death of Lakhmichand Jatav (Claim Case No. 59/2007), Rambabu Prajapati (Claim Case No. 60/2007), Meghsingh Jatav (Claim Case No. 61/2007), Bhawarsingh (Claim Case No. 62/2007) and injured Madhosingh filed Claim Case No. 36/2008. Upon framing of issues and appreciation of evidence, Claims Tribunal awarded compensations for the death of deceased persons and the injuries sustained by injured as stated hereinabove.
4. The main ground raised by the Insurance Company in M.A. Nos. 647/09, 648/09, 649/09, 651/09 and 650/09 is to the effect that the dumper in question at the time of accident was being run as a passenger vehicle for which it was not insured nor any additional premium was charged for the purposes of travelling by passenger in dumber. The dumber was being run without permission and the driver of the dumber was not holding valid and effective driving licence on the day of accident. It is further submitted that Claims Tribunal has ignored the objections as raised by the Insurance Company on the ground that Insurance Company has accepted the claim of two other injured persons namely Bhagwan Singh and Atar Singh filed before MACT, Dabra, whereby claim of these injured persons were allowed in Lok Adalat held on 13/10/2007. It is submitted that the aforesaid orders passed in the cases of these two injured Bhagwan Singh and Atar Singh have been challenged before this Court by filing W.P.Nos. 2228/2009 and 2100/2009 respectively and this Court while allowing the writ petitions vide order dated 21/1/2010 has remanded the matter back to the Tribunal and thereafter after remand, the injured have withdrawn their claim before the Claims Tribunal, Dabra. Copy of the orders have also been placed before this Court. It is further submitted that though policy was comprehensive in nature but as far as employee is concerned, two employees were insured, therefore, deceased Bhawarsingh, Meghsingh, Lakhmi Chandra and Rambablu Prajapti were not covered, hence were not entitled for compensation. Beside the fact that dumper had capacity for allowing six persons to ride on it, therefore, deceased persons were riding on the same as unauthorized passengers, as such the insurance company cannot be saddled with the liability of compensation of such persons being died due to rash and negligent driving of the driver Ramvaran.
5. Learned counsel for the Insurance Company has also referred to the deposition of the owner Jitendra Singh to submit that he himself in para 7 of his deposition has deposed that there was no insurance for employees and, therefore, the learned Tribunal has committed grave error of law while awarding compensation to the claimants and injured in all these claim cases. So far as the amount of compensation is concerned, learned counsel submits that the amount awarded is just and proper and no further enhancement can be made.
6. Per contra learned counsel for the claimants on the other hand submitted that on perusal of the Insurance policy Ex.D/1 and D/2 it is apparent that under four heads the following premium have been charged which reads as under:-
Liability Rs.80/-
Paid for Driver Rs.25/-
Paid for owner and Driver Rs.100
Employees insurance Rs.75/-
Cleaner/contractor, coolie Rs.25/-
Therefore, it was comprehensive policy for Driver, cleaner and employees were charged separately.
7. It is submitted by counsel for the owner and driver that owner Jitendra Singh has deposed in his statement (para-1 and 2) that Rs. 75/- as premium was charged for employees at the rate of Rs.15/- per employee. Deceased and injured were riding on the dumber, as they were required to be carried in dumper for the purposes of loading and unloading. In his evidence it has also come that deceased and injured persons were engaged on the vehicle for loading unloading, and this fact has not been disputed by the Insurance Company, therefore, Insurance Company is liable to indemnify the owner and the driver of the vehicle. Learned counsel relied upon judgment of a Division Bench of this Court in the matter of New India Assurance Co. Ltd. Vs. Ashok Kumar Dandotiya and others, 2006 ACJ 851. He has also relied upon the judgment of Hon. Supreme Court as well as this Court in the matter of:-
(i) Hanumanagouda Vs. United India Insurance Co. Ltd and others, 2014 ACJ 681, (ii) Amritlal Sood and another Vs. Kaushalya Devi Thaper and others, 1998 ACJ 531, (iii) Vijay Singh Vs. IDDA @ Bijasingh and Ors, IV (2008) ACC 557.
8. In view of above submissions, so far as the liability of Insurance Company is concerned, to prove the accident. Injured Madhosingh has stated in his cross examination Para 9 that he was labour on the said Dumper alongwith other deceased persons and injured persons. Driver of the Dumper did not turn up to explain that in what circumstances, accident took place. Owner Jitendra Singh has bee examined who has stated that deceased as well as injured were travelling in the Dumper in the capacity of labourer. Nothing is brought on record by Insurance Company to dislodge the evidence adduced by Owner Jitendra Singh to prove that extra premium was charged by Insurance Company which covered the risk of Labourers also, therefore, in the opinion of this Court, the Tribunal has rightly held that Insurance Company liable for payment of compensation.
9. As regards M.A.Nos. 753/2009, same has been filed by injured Madhosingh who has sustained two fracture in left hand and one fracture in left leg and Tribunal has awarded a compensation of Rs. 19,519/- with interest at the rate of 6% per annum from the date of filing of claim case. It is submitted that appellant has suffered permanent disablement and no compensation under this head has been awarded to him. But as a matter of fact no disablement certificate has been produced by the appellant. However, the amount of compensation awarded by Tribunal is found to be on a lower side, therefore, same is enhanced from Rs. 19,519/- to Rs. 60,000/- in lump sum looking to the fact that appellant has sustained three fractures, remained hospitalized and undergone operation. The enhanced amount of award shall carry interest at the rate of 6% per annum from the date of filing of claim case.
10. As regards M.A. No. 757/2009, same has been filed by dependents of deceased Lakhmichandra Jatav. The Claims Tribunal has awarded a compensation of Rs. 3,06,500/- for the death of deceased. Deceased at the time of death was only 22 years of age as per the postmortem report. The Tribunal has assessed his income at Rs. 2,500/- per month notionally and after applying multiplier as per age of his mother (as deceased was unmarried) and deducting 1/3 towards personal expenses has passed the impugned award. In the opinion of this Court the Tribunal has committed no error while applying multiplier as per age of his mother and deducting 1/3 towards personal expenses; however, the Tribunal has committed error while assessing income of the deceased at Rs. 100/- per day. As the accident is of the year 2007 and deceased were casual piece-rated labour engaged in loading unloading business and not daily rated labour. Therefore, even if after applying minimum wages as when work was available, same should be Rs. 150/- per day and they might have worked for 25 days in a month. Under the head future prospects, the Tribunal has awarded nil, therefore, in the interest of justice it would be fruitful to award a sum of Rs. 20,000/- towards future prospectus as the deceased was only 22 years old at the time of accident. Thus, the income of the deceased comes to Rs. 3750/- per month and Rs. 45,000/- per annum. After deducting 1/3 i.e.Rs. 15,000/- towards self expenditure, the yearly dependency comes to Rs. 30,000/-. Multiplier of 15 shall be applicable, thus total dependency comes to Rs. 4,50,000/- after adding other heads like funeral expenses, loss of motherhood and brotherhood, loss of estate and funeral expenses total compensation comes to Rs. 4,50,000 + 2,000 + 2,000 + 2,500 + 20,000 = 4,76,500/- (Rs. Four Lacs Seventy Six Thousand Five Hundred Only). Thus, the amount of compensation is enhanced from Rs. 3,06,500/- to Rs. 4,76,500/-. The enhanced amount of award shall carry interest @ 6% per annum from the date of claim petition.
11. As regards M.A. No. 768/2009, same has been filed by dependents of deceased Rambabu Prajapati. The Claims Tribunal has awarded a compensation of Rs. 3,09,500/- for the death of deceased. Deceased at the time of death was only 23 years of age as per the postmortem report. The Tribunal has assessed his income at Rs. 2,500/- per month notionally and after applying multiplier as per age of his mother (as deceased was unmarried) and deducting 1/3 towards personal expenses has passed the impugned award. In the opinion of this Court the Tribunal has committed no error while applying multiplier as per age of his mother and deducting 1/3 towards personal expenses; however, the Tribunal has committed error while assessing income of the deceased at Rs. 100/- per day, as the accident is of the year 2007, and therefore, same should be Rs. 150/- per day and he might have worked for 25 days in a month. Under the head future prospects, the Tribunal has awarded nil, therefore, in the interest of justice it would be fruitful to award a sum of Rs. 20,000/- towards future prospectus as the deceased was only 23 years old at the time of accident. Thus, the income of the deceased comes to Rs. 3750/- per month and Rs. 45,000/- per annum. After deducting 1/3 i.e. Rs. 15,000/- towards self expenditure, the yearly dependency comes to Rs. 30,000/-. Multiplier of 15 shall be applicable, thus total dependency comes to Rs. 4,50,000/- after adding other heads like funeral expenses, loss of motherhood and brotherhood, loss of estate and funeral expenses total compensation comes to Rs. 4,50,000 + 2,000 + 5,000 + 2,500 + 20,000 = 4,79,500/- (Rs. Four Lacs Seventy Nine Thousand Five Hundred Only). Thus, the amount of compensation is enhanced from Rs. 3,09,500/- to Rs. 4,79,500/-. The enhanced amount of award shall carry interest @ 6% per annum from the date of claim petition.
12. As regards M.A. No. 769/2009, same has been filed by dependents of deceased Meghsingh Jatav. The Claims Tribunal has awarded a compensation of Rs. 3,08,500/- for the death of deceased. Deceased at the time of death was only 22 years of age as per the postmortem report. The Tribunal has assessed his income at Rs. 2,500/- per month notionally and after applying multiplier as per age of his mother (as deceased was unmarried) and deducting 1/3 towards personal expenses has passed the impugned award. In the opinion of this Court the Tribunal has committed no error while applying multiplier as per age of his mother and deducting 1/3 towards personal expenses; however, the Tribunal has committed error while assessing income of the deceased at Rs. 100/- per day, as the accidentis of the year 2007, and therefore, same should be Rs. 150/- per day and he might have worked for 25 days in a month. Under the head future prospects, the Tribunal has awarded nil, therefore, in the interest of justice it would be fruitful to award a sum of Rs. 20,000/- towards future prospectus as the deceased was only 22 years old at the time of accident. Thus, the income of the deceased comes to Rs. 3750/- per month and Rs. 45,000/- per annum. After deducting 1/3 i.e.Rs. 15,000/- towards self expenditure, the yearly dependency comes to Rs. 30,000/-. Multiplier of 15 shall be applicable, thus total dependency comes to Rs. 4,50,000/- after adding other heads like funeral expenses, loss of motherhood and brotherhood, loss of estate and funeral expenses total compensation comes to Rs. 4,50,000 + 2,000 + 4,000 + 2,500 + 20,000 = 4,78,500/- (Rs. Four Lacs Seventy Eight Thousand Five Hundred Only). Thus, the amount of compensation is enhanced from Rs. 3,08,500/- to Rs. 4,78,500/-. The enhanced amount of award shall carry interest @ 6% per annum from the date of claim petition.
13. As regards M.A. No. 778/2009, same has been filed by dependents of deceased Bhanwar Singh Kushwah. The Claims Tribunal has awarded a compensation of Rs. 3,48,500/- for the death of deceased. Deceased at the time of death was only 24 years of age as per the postmortem report. The Tribunal has assessed his income at Rs. 2,500/- per month notionally and after applying multiplier of 17 and deducting 1/3 towards personal expenses has passed the impugned award. In the opinion of this Court the Tribunal has committed no error while applying multiplier of 17; however, has committed error while deducting 1/3 towards personal expenses looking to number of dependents, the same should be 1/4 and assessing income of the deceased at Rs. 100/- per day, as the accident is of the year 2007, and therefore, same should be Rs. 150/- per day and he might have worked for 25 days in a month. Under the head future prospects, the Tribunal has awarded nil, therefore, in the interest of justice it would be fruitful to award a sum of Rs. 20,000/- towards future prospectus as the deceased was only 24 years old at the time of accident. Further the amount awarded by the Tribunal under the head loss of consortium to the tune of Rs. 1,000/- is also found to be on lower side and therefore, same is enhanced to Rs. 5,000/-. Thus, the income of the deceased comes to Rs. 3750/- per month and Rs. 45,000/- per annum. After deducting 1/4 i.e. Rs. 11,250/- towards self expenditure, the yearly dependency comes to Rs. 33,750/-. Multiplier of 17 shall be applicable, thus total dependency comes to Rs. 5,73,750/- after adding other heads like funeral expenses, loss of motherhood and brotherhood and consortium, loss of estate and funeral expenses total compensation comes to Rs. 5,73,750 + 2,000 + 4,000 + 5,000 + 2,500 + 20,000 = 6,05,250/- (Rs. Six Lacs Five Thousand Two Hundred Fifty Only). Thus, the amount of compensation is enhanced from Rs. 3,48,500/- to Rs. 6,05,250/-. The enhanced amount of award shall carry interest @ 6% per annum from the date of claim petition.
14. In the result M.A.Nos. 647/09, 648/09, 649/09, 650/09 and 651/09 are dismissed and M.A.Nos. 753/2009, 757/2009, 768/2009, 769/09 and 778/09 are allowed in part as indicated hereinabove.