ORIENTAL INSURANCE CO LTD Vs. GUNWANTBA MULARAJSINH JADEJA

JUDGEMENT

(1.) HEARD the learned advocates appearing on behalf of respective parties.

(2.) THE appellant - insurance company has challenged the award passed by Motor Accident Claims Tribunal, Jamnagar in Claim Case No. 4148 of 1998 decided on 22nd May 2006, where, Claims Tribunal has awarded Rs. 7 lakhs with 7. 5% interest in favour of respondents claimants.

(3.) LEARNED advocate Ms. Jani raised contentions before this Court that Claims Tribunal has failed to appreciate that deceased was travelling as a gratuitous passenger and not as a Cleaner as claimed, therefore, Insurance Company cannot be held liable to pay any compensation. The FIR is filed by one of the passenger travelling in Matador, but, FIR does not mention that deceased was travelling as a Cleaner. In Matador, approximately eight passengers were travelling where driver, owner, conductor and all passengers belong to village Toda. Therefore, it is not possible that name of deceased and his alleged capacity of Cleaner of Matador does not figure in the FIR. Learned advocate Ms. Jani further submitted that affidavit filed by owner shows that deceased was employed by him as a Cleaner. If the owner mentioned that deceased was travelling as a gratuitous passenger, the entire liability would rest on him and Insurance Company would be exonerated. The charge-sheet also does not mention that deceased as a Cleaner of the truck. The owner has not produced any evidence like his books of accounts or other detail showing that he was paying Rs. 2,000/- as salary and Rs. 1,000/- as Bhattha to deceased since last three years as claimed by him. She also raised contention that without prejudice to aforesaid contention, deceased was travelling as a Cleaner, the liability of Insurance Company would be limited to that under the Workmen's Compensation Act, 1923. She relied upon the decision of Apex Court in case of National India Insurance Company Limited v. Prembai Patel and Others reported in (2005)6 SCC 172. She also raised contention that against employer, an employee has no right to file claim petition if the risk is covered under the provisions of Workmen's Compensation Act. The accident occurred on 1st April 1998 and policy was effective on the date of accident. Therefore, amount which has been awarded by claims tribunal is on higher side and monthly wages of claimant cannot be exceeded Rs. 2,000/- per month and taking 50% of monthly wages and adopting relevant factor of 203. 83 considering age of deceased to be 32, payable compensation would be Rs. 2,03,850/- as against Rs. 7 lakhs. She also raised contention before this Court that income from agriculture source is also included while awarding compensation, which is also a basic error committed by claims tribunal in awarding compensation in favour of claimants. This Court has simply asked a question to learned advocate Ms. Jani that whether insurance company has obtained 170 permission under provisions of M. V. Act or not ? The answer is given that on 1st July 2005, a claims tribunal has allowed application on the same day granting permission to insurance company under the provisions of Section 170 of the M. V. Act. The claims tribunal has granted permission under Section 170 on what ground when owner of vehicle had appeared and gave evidence before claims tribunal. Except that, no other contention is raised by learned advocate Ms. Megha Jani before this Court.