Hon'ble S.C. Agarwal, J.
(Delivered by Hon'ble S.C. Agarwal, J.) We have heard Sri Rahul Sahai, learned counsel for the appellant - Insurance Company at length on 13.5.2010 at the time of admission. This Appeal can be disposed of at this stage finally without issuing notices to the respondents.
This First Appeal From Order under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') has been filed by the appellant - Bajaj Allianz General Insurance Company Limited against the judgment and award dated 22.1.2010 passed by Motor Accident Claims Tribunal / Additional District Judge, Court No.2, Fatehpur in MACP No.213 of 2009.
In brief, the facts are that on 2.7.2009, the deceased Rampal, father of claimant-respondent nos.1 & 2, was going from Chaurhgra G.T. Road to Fatehpur by Magic Loader No.UP-77N - 3096. He was carrying with him 60 kilograms fish to sell at Fatehpur. On the way, in front of Rewari Plant, within the circle of P.S. Kalyanpur, District Fatehpur, the driver of the vehicle No. UP-77N - 3096 was driving it very rashly and negligently, on account of which the vehicle climbed the divider situated in the middle of the road and overturned. Rampal was crushed under the vehicle and died on spot. The incident took place at 7:00 a.m. F.I.R. was lodged by uncle of the claimants at P.S. Kalyanpur, District Fatehpur, which was registered at crime no.158 of 2009 under Sections 279, 337, 338, 304-A I.P.C. According to the claimants, the deceased used to earn about Rs.9000/- per month from fish business and was about 55 years of age. An amount of Rs. 11,60,000/- with interest was claimed as compensation.
The claim petition was contested by respondent no. 3 and the appellant, who were impleaded as respondent nos. 1 and 2 respectively in the claim petition. The defence of the vehicle owner was that his vehicle was being driven by a competent driver Keval Singh, who had a valid driving license and vehicle was insured with the appellant - Insurance Company.
The defence of Insurance Company was that the vehicle was a goods transport vehicle and was not meant for carrying passengers and thus there was breach of conditions of the insurance policy.
Learned Tribunal framed relevant issues. The claimants examined Sajjan - P.W.1, Ramesh Prasad - P.W.2 and Banwari Lal as P.W.3. Appellant examined its Law Officer Navneet Kumar as O.P.W.1. The vehicle owner did not adduce any oral evidence. Both the parties filed documents.
After hearing the parties, Tribunal came to the conclusion that the death of Rampal was caused due to rash and negligent driving of driver of Magic Loader No.UP-77N - 3096. The Tribunal also found that respondent no.3 was the registered owner and the appellant was the insurer of the vehicle. The deceased was not travelling in the vehicle as a fare paying passenger, but was carrying his goods on hire in the vehicle and was sitting in the vehicle as owner of the goods and thus, there was no breach of insurance policy on the part of vehicle owner. Learned Tribunal assessed the income of the deceased to be Rs.15,000/- per annum as per the notional income provided under II schedule of the 'Act' and the dependency of the claimants was assessed at Rs.10,000/- per annum. Applying the multiplier of 11, relevant for the age group of 50 - 55 years, pecuniary damages were assessed to be Rs.1,10,000/-. Additional amount of Rs.2000/- for funeral expenses and Rs.2500/- as loss of state estate were added. Thus, a consolidated sum of Rs.1,14,500/- was awarded to the claimant-respondent nos.1 & 2 along with 6% interest w.e.f. the date of presentation of the claim petition.
Sri Rahul Sahai, learned counsel for the appellant - Insurance Company submitted that the Insurance Company had moved an application under Section 170 of the 'Act' on 5.12.2009, but learned Tribunal did not pass any order on the aforesaid application and thus committed illegality. It was further submitted that the vehicle, being a transport vehicle, was being used by its owner for carrying passengers and, therefore, Insurance Company is absolved from its liability to pay compensation. It was further submitted that there was no evidence to show that the deceased was carrying fish in the disputed vehicle and was travelling in the same as owner of goods.
From the record, it transpires that an application under Section 170 of the 'Act' was moved by the appellant before the Tribunal on 5.12.2009. On the same date, the evidence of two witnesses for the claimants was recorded. Copy of order sheet filed by the appellant reveals that no order on the application under Section 170 of the 'Act' was passed by the Tribunal, but a perusal of the statement of P.W.1 Sajjan, which has been filed as annexure no.2 to the affidavit filed in support of Appeal, reveals that he was permitted by the Tribunal to be cross-examined by the Insurance Company on all the points taken in the written statement, this fact clearly establishes that though no written order was passed by the Tribunal on the application under Section 170 of the 'Act', but this application was impliedly allowed by the Tribunal and the Insurance Company was permitted to cross-examine the witness on all the points, which could have been raised by the vehicle owner. Thus, no prejudice has been caused to the Insurance Company.
As regards negligence on the part of the driver of the vehicle, the negligence is apparent. The impugned vehicle did not collide with any other vehicle. It climbed the divider situated in the middle of the road and overturned. Thus, the negligence on the part of the driver of the vehicle is self evident.
As regards the submission that the deceased was travelling as a fare paying passenger, we do not find any force in the same. Sajjan (P.W.1) has clearly stated that his father used to deal in fish. When he reached the spot, he found the vehicle overturned and fish were lying outside the vehicle. This fact clearly supports the contention of the claimants that at the time of accident, the deceased was transporting fish by vehicle in question. The deceased was travelling in the vehicle as owner of the goods and not as a fare paying passenger. Thus, the submission in this regard made by learned counsel for the insurance company is of no avail. As regards quantum of compensation, the Tribunal fixed the income of the deceased on the basis of notional income and awarded a meager sum of Rs.1,14,500/- to the claimants, which can hardly be said to be excessive in respect of a person 50 - 55 years of age and who was doing business of selling fish.
Having regard to the facts and circumstances of the case and submissions made by Sri Rahul Sahai, learned counsel for the appellant, we do not find any merit in this Appeal, which is liable to be dismissed. There is no need to issue notices to the respondents.
The Appeal is dismissed at admission stage.
The amount of Rs.25000/- deposited by the appellant while filing the present Appeal, be remitted to the Tribunal for being adjusted towards the amount to be deposited by the appellant.
Office is directed to send the copy of this judgment to the Tribunal concerned for necessary action.
Dt./- 14th September, 2010.
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