IMPORTANT POINT
The court established that intoxication and improper positioning on the vehicle breached insurance policy conditions, affirming liability on the driver-owner and recalculating compensation based on future prospects.

JUDGMENT :

RADHAKISHAN AGRAWAL, J.

1. This appeal is by the claimants against the award dated 13.05.2016 passed by the Motor Accident Claims Tribunal, Balod, C.G. in Claim Case No. 74/2015, awarding total compensation of Rs.8,25,000/- with interest @ 8% per annum from the date of application till its realization while fastening liability on the non-applicant No. 1/driver-owner of the offending vehicle.

2. Respondent No. 1/Driver-owner of offending vehicle has also filed cross objection under Order 41 Rule 22 of CPC challenging quantum of compensation and liability part.

3. As per averments made in the claim petition, on 02.03.2015, deceased-Shivcharan Thakur, aged about 38 years, earning Rs.10,000/- per month by working as driver and also doing labour work, died in the motor vehicular accident caused due to rash and negligent driving of Tractor bearing registration No. CG24-E-3243 attached with Trolley bearing registration No. CG24-E-3129 (hereinafter referred as ‘offending vehicle’) by non-applicant no. 1/driver-owner of offending vehicle- Tikendra Singh Bhuarya. At the time of accident, the offending vehicle was insured with non-applicant no. 2/TATA A.I.G. General Insurance Company Ltd.

4. On claim petition being filed by the claimants under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.32,10,000/- the Tribunal, considering the evidence led by both the parties, passed an award as mentioned above.

5. Learned counsel for the appellants/claimants submits that the Tribunal has wrongly assessed the monthly income of the deceased at Rs.5,000/- per month, whereas it should be Rs.10,000/- per month looking to the nature of work of the deceased. He further submits that the Tribunal has not awarded any amount towards future prospects and that amount awarded by the Tribunal towards conventional heads is also on lower side, which needs to be enhanced suitably. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matters of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and Others, (2018) 18 SCC 130. Lastly, he submits that at the time of accident, the offending vehicle was insured with non-applicant No. 2/Insurance Company under comprehensive policy, then in the given facts and circumstances of the case, order of pay and recover may be passed in this case. Reliance has also been placed on the decision of Hon’ble Supreme Court in the matter of Shivaraj vs. Rajendra and Another, 2018 (10) SCC 432.

6. Learned counsel for the respondent No. 1/owner of the offending vehicle, in appeal as well as cross objection, submits that at the time of accident, the deceased-Shivcharan Thakur was driving the offending vehicle in an intoxicated condition and he fell down while demounting from the offending vehicle, as a result of which, he sustained injury over his head and died during treatment in the hospital. He further submits that at the time of accident, offending vehicle was insured with non-applicant No. 2/Insurance Company and the Insurance Company has not proved any breach of policy conditions, therefore, Insurance Company ought to have been held liable to pay compensation to the claimants. He further submits the amount of compensation awarded by the learned Claims Tribunal is also on higher side and needs to be reduced suitably. Therefore, he urged that the cross-objection filed by the owner-driver of the offending vehicle may be allowed and the owner-driver of the offending vehicle may be absolved from its liability.

7. Learned counsel for the Insurance Company supports the impugned award and submits that at the time of accident, although the offending vehicle was insured with the Insurance Company, but at the time of accident, deceased was sitting on the mudguard of the offending vehicle, therefore, the risk of deceased is not covered under the Insurance policy (Ex.D-1). In that view of the matte