Ramesh Kumar and anr. Vs. J.P. Singh and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, 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 accident 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 policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled].t.s. doabia, j.1. this is an appeal preferred under section 173 of the motor vehicles act, 1939, against the award by the first additional motor accidents claims tribunal on 31.8.1990.2. the accident took place on 16.5.1987. asharam, aged 17 years, was the victim. as a result of the injuries sustained by him, he died on the spot.3. learned counsel for the parties have not addressed any argument with regard to the finding on issue no. 1. thus, the factum of accident which the learned counsel for the parties addressed the court is with regard to the quantum of compensation.4. the tribunal came to the conclusion that monthly income of the deceased was rs. 350/-. the evidence with regard to deceased earning a further sum of rs. 450 by sale of milk on part-time basis was disbelieved. we have gone through the evidence on record. we find that the claimants have not been able to establish that the deceased was having an additional income of rs. 450/- by sale of milk. the income of the deceased was rightly assessed at rs. 350/- per month.5. the learned counsel for the insurance company has relied upon a judgment of this court in the case of kanhaiyalal v. dr. anilkumar 1989 acj 713 (mp). reliance has again been placed on a decision given in united india insurance co. ltd. v. babulal 1993 acj 1100 (mp). he has accordingly submitted that the compensation was rightly assessed by the tribunal. on the other hand, the learned counsel for the claimant has placed reliance on a decision of delhi high court in paras ram v. makkay singh 1993 acj 93 (delhi). reliance has again been placed on the decision given by this court in om prakash v. madhavrao 1993 acj 400 (mp). he thus seeks enhancement.6. there is no dispute with the proposition of law laid down in aforementioned decisions.7. we have gone through the record of the case. we are of the view that the dependency of parents has been fixed on the lower side. the tribunal came to the conclusion that out of rs. 350/- the deceased was contributing only rs. 175/- towards the family kitty. by applying multiplier of 16 the compensation was fixed at rs. 33,500/-.we have considered this aspect of the matter. the conclusion that deceased was contributing only rs. 175/- towards family kitty is not correct. the tribunal has fixed this figure rather on the lower side. this requires to be enhanced. we, accordingly, fix this figure at rs. 200/-. by applying multiplier of 16 the claimants would be entitled to a sum of rs. 38,400/-. however, taking into consideration the fact that the deceased was a youngman and was the eldest child in the family, we fix a round figure of rs. 40,000/- as just and fair compensation which should be paid to the claimants. the claimants would be entitled to interest on the enhanced amount. the claimants would also be entitled to interest on the statutory compensation paid to the claimants. the rate of interest would be as awarded by the tribunal.8. the appeal is allowed to the extent indicated above. the parties are left to bear their costs as incurred.