Thakurbai vs Virath Rustamji Patel - 1983 Supreme(MP) 776

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : M.A. Khan.
For the Respondent: S.L. Garg.

Headnote:(1) Motor Vehicles Act, 1939 – S. 110 – A – negligence – truck dashing against tree due to sudden burst of front tyre – driver is negligent as the speed was out of control.
       (2) Motor Vehicles Act, 1939 – S. 110 – B and 110 – D – deceased 23 years of age – dependency of parents Rs. 300/ – per month – award of Rs. 40,000/ – not excessive to call for interference in appeal.
       (3) Motor Vehicles Act, 1939 – S. 110 – B – deduction from compensation – amount of group insurance – not deductible.
       (4) Motor Vehicles Act, 1939 – S. 95 – liability of insurance company – passenger travelling in truck – whether for hire or gratuitously – insurance company not liable.
        Short Note
       1. On the rival contentions of the parties the following points arise for consideration in these appeals :
       (1) Whether the accident was caused on account of the rashness and negligence of the non – applicant No.1 in driving the truck ?
       (2) Whether the amount of compensation assessed by the Tribunal is too excessive or too low requiring interference in appeal?
       (3) Whether the Tribunal was justified in deducting the amount of Rs. 16,650/ – from the amount of compensation assessed by it?
       (4) Whether the insurance company is liable to pay compensation to the claimants ?
       2. Held : Point No.1 : It is not in dispute that the motor truck No. (GTK 3456 which was being driven by the non – applicant No. 1 dashed against a tree standing by the side of the road near a Dak – bungalow at Dhar, Virath (NAW 1) driver of the said truck and Ranchhod Bhai (NAW 3) conductor of the truck were examined by the non – applicants to prove the fact that the accident was caused on account of the sudden burst of the tyre of the front wheel and that the truck was being driven at a slow speed. The claimants relied upon the testimony of Pundali Rao (AW 2) mechanical expert who had inspected and examined the truck after accident. The tribunal on appreciation of the testimony of the driver and conductor held that their testimony was not reliable.
       3. We are of the opinion that the view taken by the Tribunal in this respect is reasonable. If the truck was being driven at a slow speed at 15 – 20 k. m. an hour and the tyre of the front wheel suddenly burst the driver could have controlled the truck and the truck would not have dashed against the tree standing by the side of the road. The tribunal was therefore, justified in holding that the truck was being driven at an excessive speed at the time of the accident and the accident was caused on account of the rashness and negligence of the driver. We, therefore, see no reason to interfere with the said finding recorded by the Tribunal.
       4. Point No.2 : It is well settled that this Court will not interfere in appeal as regards the amount of compensation awarded by the Tribunal unless it is made out that the amount assessed is too low or too excessive. In the present case the deceased was about 23 years of age. The father and the mother of the deceased were 46 and 44 years of age at the time of the death of the deceased in the accident. The deceased was employed with the Indian – Petro Corporation, Baroda. B. M. Seth (AW 1) Assistant Financial Controller stated that the gross emoluments of the deceased was Rs. 7227 per year out of which Rs. 1617 were deducted towards G.P.F. The net emoluments of the deceased were Rs. 5610 per year. The tribunal held that the deceased was contributing to the family Rs. 300/ – per month i.e. Rs. 3600/ – per year. The Tribunal adopted 15 as the multiplier and held that the amount of compensation awardable to the claimants worked out to Rs. 54,000/ – on that basis. However, the Tribunal held that the parents were entitled to Rs. 40,000/ – as compensation taking into consideration the Bank Rate on long term deposits.
       5. Taking into consideration all the circumstances on record we are of the opinion that it cannot be held that the amount of Rs. 40,000/ – assessed by the Tribunal can be said to be too excessive requiring deduction in appeal. We therefore, see no reason to interfere with the amount of compensation assessed by the tribunal.
       6. Point No.3 : Out of the amount of Rs. 40,000/ – assessed by the Tribunal it has deducted the amount of Rs. 16,500/ – received by the claimants 1 and 2 under a group insurance policy taken by the deceased. In view of the Full Bench decision in Kashmiran Mathur and others v. Sardar Rajendrasingh and another (1983 JLJ 113) this amount is not liable to be deducted from the amount of compensation because this amount was not received by the claimants on the ground that the deceased met an accidental death. This amount was payable to the claimants even if the deceased died a natural death. In our opinion, the Tribunal was not justified in deducting the said amount from the amount of compensation assessed by it. The claimants are therefore, entitled to Rs. 40,000/ – as compensation as assessed by the Tribunal.
       7. Point No.4 : The insurance policy under which the truck in question was insured is produced as Ex. D 4. In the policy it is provided that the insured vehicle has to be used only under a public carrier's permit within the meaning of the Motor Vehicles Act, 1939. It further provides that the policy does not cover use for the conveyance of passenger for hire or reward.
       8. The learned counsel for the claimants and the owner contended that in the present case Bipin was not carried as a passenger for hire or reward but he was being carried gratuitously as a friend of the driver and therefore the risk is covered under the insurance policy. This contention cannot be upheld. The claimant's case was that the deceased had paid hire to the driver for carrying him in the truck. The case of the driver was that he carried Bipin in the truck as a friend. However, it will not make any difference whether Bipin was carried gratuitously as contended by the non – applicants or for hire as contended by the claimants.
       9. The learned counsel for the claimants and the owner were unable to point out any term in the policy under which the insurance company can be held liable for the death of Bipin who travelled in the truck as passenger; although under the public carrier's permit held by the owner of the truck no passenger could be carried in the truck. The Tribunal therefore committed an error in holding the insurance company liable for the claim.
       10. In the result the claimants 1 and 2 are entitled to receive Rs. 40,000/ – as compensation from the non – applicants 1 and 2 the driver and the owner of the truck. They are not entitled to receive any amount as compensation from the insurance company. The award of the Tribunal has to be modified to this extent. 1983 JLJ 113 (FB) relied on. Appeal party allowed. M. A. No. 189/80, filed by insurance company allowed. M. A. No. 210/80, filed by the owner of the truck dismissed.