RAOJI Vs. KAILASH

JUDGEMENT

(1.) Being aggrieved by the award dated 29th March, 2007 passed by v. MACT (Fast Track), Ratlam in claim Case No. 44/06 whereby the claim petition filed by Appellants was allowed and compensation of Rs. 55,000/- was awarded on account of death of one Raisingh and Respondent No. 5 Insurance Company was exonerated, the present appeal has been filed.

(2.) Short facts of the case are that the Appellants filed a claim petition alleging the Raisingh @ Ramchandra was the son of Appellants. It was alleged that on 5th June, 2004 at about 7:00 pm when Raisingh was returning to home and was sitting on a tractor bearing registration No. MP/14-G/0014 attached with trolley bearing registration No. MP/14-G/0015 which was owned by Respondent No. 2 and driven by Respondent No. 1 rashly and negligently, at the time Raisingh feel down and the wheel of the Tractor rolled over him. It was alleged that because of this Raisingh sustained crush injuries and died on spot. It was alleged that the offending tractor and trolley was insured with Respondent No. 5, therefore, Respondent Nos. 1 & 2 and 5 are liable for payment of compensation. The claim petition was contested by Respondent No. 5 on various grounds including on the ground that since Raisingh was travelling on the mudguard of tractor and there was no space for sitting the passenger, therefore, Raisingh died because of his own negligence. It was alleged that Respondent No. 2 was also not possessing the valid driving license. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded a sum of Rs. 55,000/- on account of death of Raisingh and exonerated the Respondent No. 5, against which present appeal has been filed.

(3.) Learned Counsel for the Appellants argued at length and submits that the learned Tribunal assessed the income of the deceased on notional basis @ Rs. 15,000/- per year and applied multiplier of 8 and also deducted 1/3rd towards personal expenses and thereafter against deducted half amount on account of contributory negligence. It is submitted that the formula which was adopted by the learned Tribunal is unknown to law. It is submitted that in a death case amount awarded by the learned Tribunal is grossly inadequate. So far as liability of Respondent No. 5 is concerned, it is submitted that since no evidence was adduced by Respondent No. 5, therefore, learned Tribunal committed error in exonerating the Respondent No. 5. Learned Counsel placed reliance on a decision in the matter of New India Assurance Co. Ltd. v. Darshana Devi, 2008 ACJ 1388 wherein death of a person sitting on mudguard of tractor when he fell down due to its rash and negligent driving and the contention of Insurance Company was that deceased was passenger in the Tractor and not third party and he was travelling on mudguard in breach of insurance policy and driver had no license to drive the tractor and the Tribunal held that tractor was not being used for agricultural purposes for which it was insured and owner insured had contravened terms of contract of insurance, therefore, Insurance Company cannot escape from liability of third party but it is entitled to recover the amount from the insured, Hon'ble Apex Court observed that liability of Insurance Company is statutory and the defence is limited and dismissed the appeal filed by Insurance Company. Further reliance is placed on a decision in the matter of Gayatribai v. Nathu Singh, 2009 2 ACC 120 wherein Tractor was insured for agricultural purposes and the deceased was fare paying passenger, this Court held that since the trolley was carrying agricultural produce at the time of accident and no evidence led by insurer to prove that alleged trolley attached with tractor was not insured, it was held that Tribunal committed error in exonerating Insurance Company from liability. On the strength of aforesaid position of law and the facts and circumstances of the case, learned Counsel submits that the appeal filed by the Appellants be allowed and the impugned awarded be modified accordingly.