On 18th September 2020 a single bench of Shri Justice Sanjay S. Agrawal in the case of Smt. Geeta Yadav & ors. V. Dhannulal Yadav & Ors. held that the besides, the widow of the deceased is entitled to be awarded loss of consortium under the head of the spousal consortium, and further, the Court held that the vehicle in question was a transport vehicle, as defined under Section 2 (47) of the Act, 1988 and in absence of any plea and evidence led by the owner that it was being used for carrying goods, it cannot be termed as a goods vehicle so as to hold that by virtue of sub-section (3) of Section 66 of the Act, the vehicle in question can be used even without a valid permit.
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Factual Background
On 22.11.2013 at 5:00 pm, deceased Namdev Yadav was returning to his village Sathgaon while traveling in the vehicle in question, namely, Tata Magic, which was owned by Sukrat and insured with Bharati Axa General Insurance Company Limited. driver Dhannulal Yadav, driving rashly and negligently dashed against the cattle and then tree and fell down in the nearby ditch of field. As a result of the alleged accident, the deceased was injured badly and died on the spot, giving rise to the institution of the claim petition enumerated under Section 166 of the Act, 1988, by the legal representatives of the deceased. It is alleged in the claim petition that the deceased, was a milk vendor and used to earn Rs.10,000/- per month and thus the total amount of compensation to the tune of Rs.57,40,000/- has been claimed under various heads., driver and owner of the alleged offending vehicle have contested the aforesaid claim on the ground that the vehicle in question was duly insured with Bharati Axa General Insurance Company Limited and was being used in accordance with the terms and conditions stipulated in the said policy, therefore, in case of any liability being fastened, the same could be indemnified by the said company. While the insurer of it has contested the claim mainly on the ground that the vehicle in question was insured as a commercial vehicle-passenger-comprehensive policy and was being used in violation of the terms and conditions of its policy as the driver of it was neither holding the effective and valid driving license nor was it being used with a valid permit.
The Tribunal, after analyzing the evidence led by the parties, arrived at a conclusion that the alleged accident occurred on 22.11.2013 due to rash and negligent driving by the driver of the alleged offending vehicle, resulting into the sad demise of Namdev Yadav, who was 28 years old at the relevant time. It held further that the vehicle in question, insured as a commercial vehicle-passenger-comprehensive policy, was being used without any permit and that by considering the monthly income of the deceased to the tune of Rs.3,000/-, awarded the aforesaid amount of compensation along with the interest while exonerating the said insurance company from its liability.
Submissions on behalf of the Appellant
The learned counsel for the appellants, the Tribunal, while determining the amount of compensation, has committed illegality in assessing the monthly income of the deceased only to the tune of Rs.3,000/- per month merely on the ground that the claimants have failed to produce any document in order to show the monthly income of the deceased and thereby erred in awarding a meager amount of compensation even without providing the proper amount of compensation under the conventional heads. It is contended further that the unrebutted statement of the deceased's wife would reveal the fact that he was engaged in running the dairy-farm, therefore, his monthly income ought not to have been taken into consideration as such.
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Submissions on behalf of the respondent
The learned counsel appearing for the respondent, while supporting the award impugned submits that since the vehicle in question was being used without any permit, therefore, the Tribunal has rightly exonerated the insurance company from its liability. While, learned counsel appearing for Non-applicants No.1 & 2 would, however, submits that the finding of the Tribunal exonerating the insurance company from its liability is apparently contrary to law. According to him, the vehicle in question though was a commercial vehicle but was not being used as a commercial vehicle at the relevant point of time and since the unladen weight of it was below 3000 kilograms, therefore, by virtue of subsection (3) of Section 66 of the Act of 1988, no permit as such was required. However, without considering the said fact in its proper manner, the Tribunal has committed serious illegality in exonerating the insurance company from its liability.
Court Analysis
- According to the claimants, the deceased was a milk vendor and was engaged in running a dairy-farm while earning a sum of Rs.10,000/- per month. In support thereof, the widow of the deceased examined herself and, according to her unrebutted statement, it thus appears that her husband was involved in running the said business. However, in absence of any documentary evidence showing his monthly income to the tune of Rs.10,000/- per month, it cannot be held to be as such. In such circumstances, it would thus be appropriate to consider the deceased's income as of a skilled worker, as provided under the Minimum Wages Act, 1948.
- Besides, the widow of the deceased is entitled to be awarded loss of consortium under the head of the spousal consortium, as held by the Supreme Court in the matter of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others.
- The appeal preferred by the claimants was, thus, allowed in part to the extent indicated hereinabove with the aforesaid observations.
- In the present case, the vehicle in question was a transport vehicle, as defined under Section 2 (47) of the Act, 1988, and in absence of any plea and evidence led by the owner that it was being used for carrying goods, it cannot be termed as a goods vehicle so as to hold that by virtue of sub-section (3) of Section 66 of the Act, the vehicle in question can be used even without a valid permit, as contended by Shri Singroul. Consequently, the Tribunal has not committed any illegality in exonerating the insurance company from its liability
- In view of the above, the cross-objection raised by the driver and owner of the vehicle in question under Order 41 Rule 22 of CPC is accordingly rejected. Since the vehicle in question was admittedly insured with the Bharati Axa General Insurance Company Limited, as evidenced by the insurance policy (Ex.D.1), therefore, by applying the principles of pay and recover, as held in the matter of National Insurance Co. Ltd. vs. Swaran Singh and others reported in (2004) 3 SCC 297, it would be just and proper to issue a direction to Non-applicant No.3-Bharati Axa General Insurance Company Limited to first pay the awarded sum to the claimants and then to recover the said awarded sum from the owner and driver of the offending vehicle, in execution proceedings arising in this very case.
Judgment
In view of the foregoing discussions, the appeal preferred by the claimants is allowed in part with the observations as made hereinabove, while the cross-objection preferred by the driver and owner under Order 41 Rule 22 of CPC is hereby rejected. No order as to costs.
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