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High Court Of Madhya Pradesh
J. S. Verma and K. N. Shukla, JJ.
SHANKER RAO - Appellant
Versus
BABULAL FOUZDAR - Respondents
Misc. (First) Appeal 156 Of 1976
Decided On : 03/28/1980
FATAL ACCIDENTS ACT - SECTION 1-A AND 2 - MOTOR VEHICLES ACT - SECTION 110-A - CLAIM FOR COMPENSATION - BROTHER OF DECEASED - WHETHER ENTITLED TO COMPENSATION - DISTINCTION BETWEEN SECTIONS 1-A AND 2 OF FATAL ACCIDENTS ACT - CONSTRUCTION OF SECTION 110-A OF MOTOR VEHICLES ACT - LIABILITY OF INSURER - QUANTUM OF COMPENSATION.
Fact of the Case:
Deceased Ambadas was knocked down by a bus driven by Hari Prasad, an employee of the insured owner. Ambadas succumbed to his injuries soon after the accident. The sole claimant, Shanker Rao, is his elder brother. The Tribunal dismissed the entire claim for compensation made under Section 110-A of the Motor Vehicles Act, holding that the accident occurred entirely due to the negligence of the bus driver and that Hari Prasad, who was driving the bus, had no driving license and was not an employee of the insured. The insurer was absolved from liability for payment of any compensation. It was also held that the claimant, being the brother of the deceased, was not entitled to recover any compensation as there was no pecuniary loss to him.
Finding of the Court:
The court held that the accident occurred entirely due to the negligence of the bus driver and that Hari Prasad, who was driving the bus, had no driving license and was not an employee of the insured. The court also held that the insurer was not liable for payment of any compensation as Hari Prasad was not in the employment of the insured and was not driving the bus at the time of the accident on the order or with the permission of the insured. The court further held that the claimant, being the brother of the deceased, was not entitled to recover compensation for pecuniary loss under Section 1-A of the Fatal Accidents Act as he was not one of the persons specified in the provision. However, the court held that the claimant was entitled to claim compensation for economic loss to the estate of the deceased under Section 2 of the Fatal Accidents Act.
Issues: 1. Whether the brother of the deceased is entitled to recover compensation for pecuniary loss under Section 1-A of the Fatal Accidents Act? 2. Whether the insurer is liable for payment of compensation? 3. Whether the claimant is entitled to claim compensation for economic loss to the estate of the deceased under Section 2 of the Fatal Accidents Act?
Ratio Decidendi: 1. The court held that the brother of the deceased is not entitled to recover compensation for pecuniary loss under Section 1-A of the Fatal Accidents Act as he is not one of the persons specified in the provision. The court distinguished between Sections 1-A and 2 of the Fatal Accidents Act, holding that Section 1-A provides for compensation for the benefit of the wife, husband, parent and child, if any, of the deceased for the pecuniary loss suffered by these persons specified in the provision, while Section 2 provides for recovery of loss to the estate of the deceased. 2. The court held that the insurer is not liable for payment of compensation as Hari Prasad, who was driving the bus at the time of the accident, was not in the employment of the insured and was not driving the bus on the order or with the permission of the insured. 3. The court held that the claimant is entitled to claim compensation for economic loss to the estate of the deceased under Section 2 of the Fatal Accidents Act as he is a legal representative of the deceased.
Final Decision: The court partly allowed the appeal and decreed the claim jointly and severally against the owner and driver of the bus for recovery of Rs. 5,000/- only under Section 2 of the Fatal Accidents Act as the economic loss to the estate. The court also awarded interest at the rate of 6% per annum on this amount from the date of claim petition till payment and proportionate costs of both courts to the claimant.
( 1 ) THIS Is a claimant's appeal under Section 110-B of the Motor Vehicles Act against the award dated 12-3-1976 passed by the Motor Accidents Claims tribunal East Nimar, Khandwa in Claims Case No. 12 of 1974 dismissing the entire claim for compensation made under Section 110-A of the Motor Vehicles act,
( 2 ) THE motor accident giving rise to the claim occurred on 26-1-1974 when deceased Ambadas was knocked down by a bus MFC 4757 which came from behind. Ambadas when he was walking on the correct side of the road at khandwa near the Bus stand. The deceased Ambadas was a peon in the government Irrigation Department and was aged about 40 years at the time of his death. He was drawing in all Rs. 196/-per month as his salary. The deceased succumbed to his injuries soon after the accident in which he was crushed under the front wheel. The deceased was unmarried and the sole claimant Shanker Rao is his elder brother. The claimant alleged that he was being paid Rs. 100/- per month by the deceased for meeting the house hold and other expenses. On this basis a claim for compensation had been made by him as a result of death of Ambadas. Respondent No. 1 is the owner, respondent No, 2 is the driver and respondent no, 3 is the insurer of the offending bus.
( 3 ) THE Tribunal has held that the accident occurred entirely on account of negligence of the bus driver and the deceased Ambadas died as a result of injuries sustained by him in that accident. It has further been held that respondent No. 2 Hari Prasad who was driving the bus had no driving licence and he 'was also not an employee of the insured. Accordingly the insurer has been absolved from liability for payment of any compensation. It has also been held that the claimant being the brother of the deceased, ha was not entitled to recover any compensation as there was no pecuniary loss to him and a brother is not entitled to claim compensation under Section 1-A of the Fatal Accidents act On this reason alone the entire claim has been dismissed against all the respondents. That has led to the filing of this appeal by the claimant.
( 4 ) THE first question before us is about the negligence of Hari Prasad respondent No. 2 who was driving the bus when it knocked down the deceased and its effect. The finding of the Tribunal is that Hari Prasad was driving the bus on being so asked by the regular driver Mahabir Prasad employed by the insured owner. There is no dispute that in such a case, for the negligence of hari Prasad, the owner of the bus would be vicariously liable, The fact that Hari prasad was negligent in driving the bus is beyond controversy on the facts of this case. In broad day-light the deceased was knocked down from behind on the main road by the bus, without any fault of the deceased. The negligence of hart Prasad in driving the bus is, therefore, obvious, as a result thereof the vicarious liability of the owner respondent No. 1 is beyond controversy and is not disputed. The further question however is of the insurer's liability which has been negatived by the Tribunal.
( 5 ) THE insurer pleaded in the present case that Hari Prasad who was driving the bus had no licence and was also not in the employment of the insured. On this basis the liability of the insurer was denied under terms of the policy. There is no evidence to prove that Hari Prasad had a driving licence. In fact the respondents defended the claim by denying the fact that Hari Prasad was driving the bus on being asked by the regular driver Mahabir Prasad. However, this defence has been found to be false and in our opinion rightly. Apart from the question whether Hari Prasad held a driving licence, the further question is whether Hari Prasad was in the employment of the insured i. e. bus owner. D. W. 1 ---Babulal a Munim of respondent No. 1 has stated on the basis of employees' register maintained by the respondent No. 1, that Hari Prasad respondent No. 2 was not one of the employees. That being s
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