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Mohan Lal & another v. Bira & Ors - FAO-68-1989  RD-P&H 4679 (24 July 2006)
& X-Obj. No.73-CII of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
FAO No. 68 of 1989
& X-Obj. No.73-CII of 1989
Date of Decision : 4 .8.2006
Mohan Lal & another v. Bira and others
CORAM:- HON'BLE MR. JUSTICE ARVIND KUMAR
Present: None for the appellants.
Mr. Vinod Gupta, Advocate,
for respondent-insurance company
Mr. Vivek Singla, Advocate,
In this appeal, appellants (i.e. owner and driver of offending truck) have challenged award dated 5.9.1988 passed by the Motor Accident Claims Tribunal, Rohtak, awarding a sum of Rs.90,000/- as compensation to the claimants(respondents 1 to 3 herein) along with interest at the rate of 12 per cent per annum from the date of claim petition till payment. Insurance company was absolved of its liability and thus, claim petition qua it was dismissed.
In brief, the facts as stated in the claim petition, are that on 11.7.1986, a marriage party was travelling by two trucks, namely, HYK- 1827 and HYR-1056 and was heading for village Sirsar. Bhup Singh,deceased, was travelling by truck No.HYK-1827. The said truck over-turned at Rohtak bye-pass point which leaves Delhi-Rohtak road, as a result of which Bhup Singh sustained injuries and simultaneously died on 13.7.1986. His widow and two minor children (respondents 1 to 3 herein) claimed compensation on account of his death. Upon notice of the claim FAO No.68 of 1989
& X-Obj. No.73-CII of 1989 2
petition, the driver and owner of the offending truck in their joint written statement disputed the fact that their truck was carrying marriage party and instead pleaded that the truck was carrying goods including valuables and ornaments for transportation to village Sirsar and that owners of the said goods, who were three in number, were travelling on the truck for the sake of protection of the goods and further loading and unloading the same. It was pleaded that the truck was being used for the purpose of carrying goods. Insurance company in its written statement denied its liability on the ground that the vehicle in question was being used for carrying passengers whereas its insurance was covered for the purpose of carrying goods.
On framing of issues by the Tribunal, the parties led evidence in support thereof. On appreciation of evidence so adduced by the parties, the learned Tribunal found that the offending truck was being driven by its driver rashly and negligently and accordingly, held the driver and owner liable to pay compensation and passed the award in the manner indicated above.
Feeling dissatisfied, the owner and the driver of the offending truck have come up in appeal, while on the other hand, cross- objections have been filed by the claimants for enhancement of compensation so awarded to them by the Tribunal.
Counsel for the parties have been heard.
The only ground taken by the appellants in the instant appeal is that there was no marriage party in the truck; rather there were only three persons travelling in the truck in order to safe-guard the valuable goods like garments and jewellery which were being taken for marriage purpose. The Tribunal has erred in absolving the insurance company of its liability. The said plea has been taken with reference to statement of RW-1 Ishwar Singh, driver of the truck. That plea of the appellants has been analysed with reference to the evidence led before the Tribunal. RW-1 Ishwar Singh being the driver of the offending truck would certainly depose according to his suitability. No doubt, PW-2 Azad Singh in cross- examination has stated that in the truck there was no marriage party. He along with Suresh and Bhup Singh were in the truck, that too in order to FAO No.68 of 1989
& X-Obj. No.73-CII of 1989 3
keep a watch over the articles and for that purpose the truck was engaged.
Azad Singh has certainly given statement beyond pleadings and has tried to make improvement. In the claim petition, there is a clear cut plea that the deceased was travelling in truck No.HYK-1827 upto village Sirsar with the marriage party and the driver of the said truck was negligent in driving the same. PW-2 Azad Singh is also the author of the FIR, Exhibit P-2, stating that two trucks bearing registration Nos. HYK-1827 and HYR-1056 were carrying marriage party for Sirsar on 11.7.1986. Now his averment that truck No.HYK-1827 was not carrying any marriage party is certainly an improvement. In this context, the learned Tribunal has rightly observed that Azad Singh (PW-2) is not telling the truth for the reason that his statement not only suits the owner of the truck but also the claimants because it would be easier for them to make recovery of compensation from the insurance company than from the owner. Vehicle No.HYK-1827 was a truck and thus, a transport vehicle. Insurance policy, Exhibit R-2, is for a public carrier permit. Insurance company had insured the vehicle for transportation and third party risk does not include gracious passengers.
Carrying of passengers in a goods carriage is not contemplated in the Act.
Therefore, keeping in view the ratio laid down in New India Assurance Co.Ltd. v. Asha Rani, 2003 ACJ 1(SC) followed in Jankibai Laxman Dhoke and others v.Ramesh Laxmanrao Uike and others, 2005 ACJ 2133, the plea of the appellants is not sustainable. Therefore, the Tribunal has rightly exonerated the insurance company in payment of compensation.
Accordingly, the finding in this regard stands affirmed.
In this case, by way of cross-objections, the claimants (respondents herein) have also sought enhancement of compensation. The deceased was a Havildar in Army. His salary certificate, Exhibit P-3, depicts monthly salary of Rs.1150/-. No doubt, the deceased was in Army, living far away from home and it has rightly been held by the Tribunal that he would be spending a good deal on himself. However, keeping in view this fact, the monthly dependency of Rs.500/- so fixed by the Tribunal is meager. Accordingly, the same is enhanced to Rs.700/-. The deceased was about 33 years of age at the time of accident. Multiplier of 15 applied by the Tribunal stands increased to 16. Thus, the compensation is worked out FAO No.68 of 1989
& X-Obj. No.73-CII of 1989 4
which comes at Rs.1,34,400/-(700x12x16), i.e. Rs.44,400/- over and above the amount awarded by the Tribunal. The enhanced amount would be shared equally by the claimants-respondents.
Coming to the rate of interest, previously it used to be 12 per cent, however, in the recent years the bank rates have been considerably reduced and the rate of interest is being awarded at the rate of 7-1/2 per cent in view of the judgment of the Supreme Court in Tamil Nadu State Transport Corporation Limited v. S.Rajapriya and others, (2005-2) P.L.R.
650. Therefore, in that back-drop of the situation, the enhanced compensation in this case shall carry interest at the flat rate of 9 per cent per annum from the date of filing of the claim petition till its payment.
Consequently, the appeal being without any merit is dismissed while the cross-objections preferred by the respondents-claimants are allowed. The award stands modified in the manner indicated above. No costs.
( ARVIND KUMAR )
August 4, 2006 JUDGE
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