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2009 Supreme(Guj) 47
2009 (2) GCD 1424 (Guj)
Hon’ble Mr. Justice H.K. Rathod
New India Assurance Co. Ltd. Manek Centre Jamnagar
Versus
Cargo Motors Ltd. & Ors.
First Appeal No. 487 of 20091—Decided on 06/02/2009
Appearance :
Mr. Vibhuti Nanavati, for the Appellant No. 1.
None, for Defendants No. 1 - 7.
Point in Issue :
Whether claim petition in an accident case is maintainable in absence of driver of offending truck?
Headnote:Head Note :
Motor Vehicles Act, 1988 (Central Act 59 of 1988) — Section 166 — Claim petition — Driver of offending truck not party — Award — Sustainability — Finding as to — Main contention of Learned Counsel for Insurance is that driver of the alleged offending truck is a necessary party in claim petitions — He has not been made party — In the petitions, therefore, claim petition must fail — Court considering the various decisions including Supreme Court held that driver is not a necessary party to the claim proceedings — The owner and driver of the offending truck are joint tort feasors and, therefore, absence of one of them will not be a bar for compensation — It does not however mean that negligence of driver need not be proved — It could be proved even in absence of driver — Court, therefore, rejected the contention of Insurance — As regards quantum of compensation is concerned in both the cases Claim Tribunal has considered the evidence on record — Claims Tribunal has rightly inferred that how much is the income of the deceased in both cases — Court opened that what ever amount is awarded by Claims Tribunal is reasonable and not on higher side in any manner and multiplier is also proper and rightly applied by Claims Tribunal in accidental death wherein two persons lost their lives because of negligence of driver of truck who was not examined by Insurance before Claims Tribunal — Court held that compensation awarded in both cases is just and proper and there is no substance in appeals.
Held :
According to my opinion, there is no decision given by Apex Court tot he effect that in absence of driver, claim petition become fatal to claim of claimant and there is bar against maintainability of claim petition. Apex Court only considered that it would be expected normally that driver is joined as party to claim petition. It is necessary to note one important aspect, no doubt according to learned Advocate Mr. Nanavati, in Exhibit 76 written arguments, specific contention was raised by insurance company regarding non joining of driver as a party to claim petition but after perusal of entire award passed by claims Tribunal, no where such contention is finding place in award. Even Exhibit 72 application as referred to in written argument also does not find place in impugned award. Therefore, looking to award as it is, these two contentions raised by learned advocate Mr. Nanavati in award. Apart from that, this being legal contention, same has been examined by this Court after considering decision of Apex Court in case of Oriental Insurance Company Ltd. vs. Meena Variyal & Ors. reported in 2007 (5) Scale 269 = AIR 2007 SC page 1609 and decision of Kerala High Court, this Court is of the view that driver is not necessary party because driver and owner both are being joined as tort feasor and if owner is there and there is no any controversy as to who was driving vehicle like Apex Court decision and, therefore, contention of learned advocate Mr. Nanavati in that regard cannot be accepted and same is therefore rejected. [Para 13]
As regards quantum, in both cases, according to my opinion, claims Tribunal has right to draw certain inference on the basis of evidence on record to find out income of deceased. For assessing income of deceased, whatever evidence available on record has been considered by claims Tribunal. It was not a case of no evidence. There was enough evidence on record and on the basis of said evidence as referred to above, claims Tribunal has rightly inferred that how much is income of deceased at the relevant time in both cases and claims Tribunal has rightly assessed income on the basis of evidence on evidence of witness Exhibit 31 and certificate Exhibit 69 and revenue record Exhibit 50 which proved that deceased was holding agricultural land ad measuring 1.27.27 having well in land and therefore, on that basis, claims Tribunal has rightly assessed income of deceased in both cases which is quite reasonable, just and proper and not on higher side in any manner whatsoever. Looking to multiplier applied in both cases in light age of deceased persons died in accident. According to my opinion, whatever amount awarded by claims Tribunal is reasonable, not on higher side in any manner and multiplier is also proper and rightly applied by claims Tribunal in accidental death wherein two persons lost their lives because of negligence of driver of truck who was not examined by insurance company before claims Tribunal. [Para 14]
Law Laid Down :
The owner and driver are joint and tort feasors and, therefore, absence of one of them will not be a bar for a suit for compensation.
Case Law Analysis :
Oriental Insurance Company Ltd. vs. Meena Variyal & Ors., 2007 (5) Scale 269 = AIR 2007 SC 1609 [Para 5];; Kerala High Court in Simon Pathrose vs. United India Insurance Co. Ltd. and Anr., 1994 ACJ 840 [Para 12];; United India Fire & General Insurance Company Limited vs. Varghese, 1989 ACJ 472 (Ker) [Para 12];; United India Insurance Co. Ltd. vs. Ratnamma, 1988 ACJ 435 (Ker) [Para 12].—Relied on
H.K. Rathod, J.—Heard learned Advocate Mr. Vibhuti Nanavati for appellant insurance company in these two appeals.
2. By filing these appeals, appellant has challenged award made by MACT Jamnagar in Claim Case No. 16/07 and 49/07 dated 30.08.2008 wherein claims Tribunal has awarded compensation of Rs. 6,35,000.00 and Rs. 7,02,000.00 respectively with 9% interest thereon in favour of claimants for the accident which occurred on 30.12.2006 wherein two persons died, one Dosmohamad Jusabbhai Sodha and Amad Dosmohmad Movar and third person received injury.
3. Learned Advocate Mr. Nanavati raised contention before this Court that driver of offending truck was not joined as a party in claim petitions filed by claimants. He submitted that driver is necessary party and because of negligence on the part of driver, vicariously, owner is becoming liable and insurance company has to indemnify owner, therefore, according to him, in absence of driver, question of negligence cannot be examined by claims Tribunal. He submitted that specific application Exhibit 72 was preferred by appellant before claims Tribunal that the driver should be joined as a party to claim petitions but that application was rejected by claims Tribunal. As per his submission, said contention was also specifically raised by appellant in its written arguments Exhibit 76 but claims Tribunal has not considered it and in doing so, claims Tribunal has committed an error and, therefore, interference of this Court is required. He relied upon Apex Court decision in case of The Oriental Insurance Company Ltd. vs. Meena Variyal & Ors. reported in 2007 (5) Scale 269 = AIR 2007 SC page 1609. He read before this Court para 9 of said judgment and pointed out that driver is must, in absence of driver, negligence question cannot be examined and therefore, claims Tribunal has committed an error in deciding issue of negligence in absence of driver. He also raised specific contention on merits in respect to Dosmohamad. He submitted that claims Tribunal has committed gross error in considering income from two sources, one is from the source of providing labour contract to employer and also having income from agricultural land for supervision, receiving two crops in a season. He submitted that claims Tribunal has considered income of Rs. 5100.00 without any cogent evidence from side of claimants. He submitted that looking to age of deceased 42 to 43 years, multiplier of 15 applied by claims Tribunal is on higher side and claims Tribunal ought to have applied multiplier of 10 or 12 at the most and, thus, according to him, award made by claims Tribunal is on higher side.
4. As regards case of deceased Amad Dosmamad, according to him, he was working as fisherman having income of Rs. 3000.00 and considering future prospective income also at Rs. 3000.00 (Rs. 3000 x 3 = Rs.9000 less Rs. 4500 = Rs. 4500 less 1/3rd = Rs. 3000/- p.m.), claims Tribunal has applied multiplier of 17 by considering age 24/25 which is on higher side and multiplier of 15 ought to have been applied by claims Tribunal and, thus, according to him, award made by claims Tribunal is on higher side. He has relied upon decision of Apex Court in case of Oriental Insurance Company Ltd. vs. Meena Variyal & Ors. Reported in 2007 (5) Scale 269 = AIR 2007 SC page 1609 and except that, no other decision has been referred to and relied upon by him before this Court.
5. I have considered submissions made by learned advocate Mr. Nanavati before this court. I have also perused impugned award in both claim petitions. Accident occurred on 30.12.2006 at any time prior to 10.00 hours, on Malia-Pipalia Highway near village Sarvad. At that time, accident had taken place between truck No. GJ.12.U.9542 owned by M/s. Cargo Motors Ltd. and motor cycle No. GJ.J.3204 which was being driven by deceased Dosmohamad wherein driver of motor cycle Dosmohamad and pillion rider of motor cycle Amad Dosmohamad died and Siddiq Dosmohamad had received injury
