Kamlabai and ors. Vs. Kamlesh and ors.

N.K. Mody, J.

1. This order shall also govern disposal of M.A. No. 3136/06 as both the appeals are arising out of one award dated 10-7-06 passed by MACT, Neemuch in Claim Case No. 83/05 whereby claim petition filed by appellant was allowed and compensation of Rs. 2,52,000/- was awarded in a death case. In M.A. No. 3487/07 filed by claimant/appellant grievance is that the amount awarded by the learned Tribunal is on lower side and the same be enhanced. In M.A. No. 3136/06 the grievance of respondent No. 5 is that respondent No. 5 has wrongly been held liable for payment of compensation which ought to have been exonerated.

2. Short facts of the case are that appellant/claimant filed claim petition alleging that on 29-5-05 while deceased Gajendra Yadav was returning from his job, at that time, was travelling in a tractor bearing registration No. RJ-09/R-7261, which was being driven by respondent No. 1, owned by respondent Nos. 2 to 4 and insured with respondent No. 5. It was alleged that because of rash and negligent driving of respondent No. 1 appellant fell down from the tractor and sustained grievous injuries. Deceased was brought to hospital but unfortunately expired on 6-6-05. It was alleged that since the accident occurred because of rash and negligent driving of respondent No. 1 and offending tractor was insured with respondent No. 5, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by respondent Nos. 2 to 4 owner of the offending tractor and also by respondent No. 5, i.e., Insurance Company. The defence of respondent Nos. 2 to 4 was that no accident has occurred by the offending tractor while the defence of respondent No. 5 was that even if any accident has taken place in which Gajendra has died then respondent No. 5 is not liable for payment of compensation as offending vehicle was insured under farmer package policy. It was prayed that the claim petition be dismissed against respondent No. 5. On the basis of pleadings of parties learned Tribunal framed issues, recorded the evidence and awarded compensation of Rs. 2,52,000/- break up of which is as under:

towards loss of dependency Rs. 2,16,000/-towards and love and affection Rs. 25,000/-towards consortium Rs. 5,000/-towards funeral expenses Rs. 5,000/-towards medical expenses Rs. 1,000/-

3. Being aggrieved by inadequacy of amount of award, passed by the learned Tribunal M.A. No. 3487/04, present appeal has been filed. Learned Counsel for appellant submits that income of the deceased.

Gajendra has been assessed as Rs. 70/- per day while the deceased was skilled labour. He was working as mason and was getting Rs. 250/- per day. It is submitted that multiplier of 12 has been applied by the learned Tribunal while assessing loss of dependency, which ought to have been 17, looking to the age of the deceased, and looking to the age of the appellant, which is 32 years at the time of accident. It is submitted that while assessing the dependency learned Tribunal deducted l/3rd amount towards personal expenses which ought to have l/4th. The amount awarded on account of medical expenses, is also on lower side.

4. Mrs. Vinita Phaye, learned Counsel for respondent Nos. 2 to 4 submits that the amount awarded by the learned Tribunal is just and proper and no case for enhancement is made out. It is submitted that respondent No. 5 has rightly been held liable for payment of compensation as no evidence was adduced by respondent No. 5 to demonstrate that respondent No. 5 was not liable for payment of compensation.

5. Mr. V.P. Khare, learned Counsel for respondent No. 5 submits that Exh. D-2 is the policy which is on record. The policy is farmers package policy. It is submitted that offending tractor was the goods vehicle and was not meant for carrying passengers. As per claim petition itself, the deceased was travelling in the offending tractor, as passenger. It is submitted that in the facts and circumstances of the learned Tribunal committed error in holding respondent No. 5 liable for payment of compensation. For this contention reliance was placed on a decision in the matter of New India Assurance Co. Ltd. v. Vedwati reported in : AIR 2007 SC1334 , wherein Hon'ble Apex Court has held as under:

The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.

6. Further reliance was placed on a decision in the matter of National Insurance Co. Ltd. v. Cholleti Bhamtamma reported in : AIR 2008 SC484 , wherein Hon'ble Apex Court has held as under:

The Act does not contemplate that a goods carriage shall carry a large number of passengers with a small percentage of goods as the insurance policy considerably covers the death or injuries either of the owner of the goods or his authorised representative. The provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, and the insurer would not be liable therefor. The words 'injury to any person' in Section 147(1)(b) would only mean a third party and not a passenger travelling in a goods carriage whether gratuitous or otherwise.

7. Learned Counsel submits that in view of the aforesaid law learned Tribunal committed error in holding respondent No. 5 for payment of compensation. So far as amount of compensation is concerned, learned Counsel supports the arguments advanced by Mrs. Vinita Phaye, learned Counsel for respondent Nos. 2 to 4.

8. Mr. Sameer Aathawale, learned Counsel for appellant submits that appeal filed by respondent No. 5 deserves to be dismissed. It is submitted that the policy has not been proved by respondent No. 5 in accordance with law and the terms and conditions of the policy have not been filed. There is nothing on record to show that how the policy has been marked as Exh. D-2. It is submitted that since respondent No. 5 is claiming exoneration, therefore, burden to prove policy and the terms and condition on the basis of which the Insurance was done, was on respondent No. 5. It is also submitted that since the policy is not public document, therefore, no notice can be taken by this Court. Reliance was placed on a decision of Hon'ble Apex Court in the matter of National Insurance Company v. Jugal Kishore and Ors. : [1988]2SCR910 , wherein Hon'ble Apex Court has held that:

The attitude of not filing copy of policy of insurance is worth mentioning. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the State such as the appellant Insurance Company who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in claim petition that its liability is not statutory in excess of the statutory liability it should file a copy of the insurance policy along with its defence.

9. Further reliance was placed on a decision of this Court in the matter of Jugal Kishore v. Ramlesh Devi reported in 2004 (1) JLJ 110, wherein Full Bench of this Court has held that passengers carried in dumber against conditions in the policy does not contemplate breach of the policy, the owner cannot be denied indemnification in case of accident.

10. From perusal of record it is evident that Exh. D-2 is the policy which is on record. Policy has been filed by the appellant himself along with list of documents. In the matter of New India Insurance Co. v. Pushpa reported in , in a case where Carbon Copy of the policy signed by and duly constituted attorney of Insurance Company on record and the Insurance Company did not adduce any evidence to prove truth of the policy, Bombay High Court has held that the policy is inadmissible in evidence. Since the appellant himself has submitted the policy, therefore, there was no necessity on the part of the appellant to adduce any evidence to prove the policy.

11. So far as the amount of compensation is concerned, it appears that the income of the deceased has been assessed on lower side which ought to have been assessed @ Rs. 2,500/- per month. After deducting l/3rd and after applying multiplier of 16 appellants are entitled for the following amount:

Towards loss of dependency Rs. 3,20,000/-Towards love and affection Rs. 25,000/-Towards consortium Rs. 5,000/-Towards funeral expenses Rs. 3,000/-Towards loss of estate Rs. 5,000/-Towards medical expenses Rs. 5,000/---------------Total: Rs. 3,63,000/---------------

12. Thus the appellants are entitled for Rs. 3,63,000/- instead of Rs. 2,52,000/-. Enhanced amount is of Rs. 1,11,000/-. The amount shall carry interest @ 7.5% per annum from the date of application.

13. So far as liability of respondent No. 5 is concerned, undisputedly, case of the appellant ascribed in the claim petition is that deceased Gajendra was the passenger travelling in the tractor which was not meant for carrying passenger. Keeping in view the law laid down by the Hon'ble Apex Court in the matter of Vedwati (supra), this Court is of the view learned Tribunal committed error in holding the respondent No. 5/Insurance Company liable for payment of compensation.

14. In view of this, appeal filed by appellant, claimant and appeal filed by respondent No. 5 stands allowed in part. The amount awarded is enhanced from Rs. 2,52,000/- to Rs. 3,63,000/-. The liability of payment of awarded amount shall be of respondent Nos. 1 to 4. Respondent No. 5 stands exonerated. However, it is made clear that the amount which has already been paid by respondent No. 5, shall not be recovered from the appellant and shall be recoverable from respondent Nos. 1 to 4.

15. With the aforesaid modifications both the appeals stands disposed of. No order as to costs.

16. Copy of this order be placed in connected M.A. No. 3136/06.