PAPPOO Vs. OM PRAKASH

JUDGEMENT

(1.) THESE two appeals have arisen out of an accident that took place on 1. 9. 1993 between tractor No. MP-06-8155 and trolley No. MP-06-8156 which was being driven rashly and negligently by respondent No. 2 Chhabi Ram and was owned by respondent No. 1 Om Prakash. It was claimed that on the said date during day time near Mishran-ka-pura and Chandanpura, the said tractor and trolley was being driven by respondent No. 2 Chhabi Ram. It turned turtle as a result of which Kallu died on the spot and Babu Ram s/o Sunnu received serious injuries in his leg. An F. I. R. was lodged by Janved and Crime No. 223 of 1993 was registered. At the time of death Kallu was aged 40 years. The longevity of the members of the family was about 70-75 years. He used to earn Rs. 60/- to Rs. 70/- per day, i. e. , Rs. 2,000/- or Rs. 1,800/- per month. He spent Rs. 400/over his personal expenses and the rest was being spent on the family. On account of his death claimant Pappoo, his son, suffered a loss. He claimed a sum of Rs. 5,04,000/- on account of the death, a sum of Rs. 10,000/- on account of loss of company and other expenses, Rs. 25,000 towards mental agony. Thus a total sum of Rs. 5,39,000/- was claimed. This claim petition was registered as No. 36 of 1994. The injured Babu Ram also preferred Claim Petition No. 37 of 1994 and he alleged that on account of the accident he received severe injuries resulting in permanent disability. He was not in a position to carry on his business. He used to earn Rs. 50/per day, i. e. , Rs. 1,500/- per month. On account of his permanent disability he could not earn and was on the verge of starvation. The average life expectancy in the family was 80 years. He, therefore, claimed a sum of Rs. 9,00,000 as compensation. It was alleged that the tractor-trolley was insured.

(2.) THE claim was contested. Respondent No. 1 being the owner admitted that the claimant Pappoo was the only legal heir of Kallu deceased. He admitted that he was the owner and respondent No. 2 was the driver of the vehicle. He denied that the deceased used to earn Rs. 60/to Rs. 70/- per day and spent only Rs. 400/- p. m. over his expenses. He further claimed that he had to construct a drain over his field and as such he required bricks. He sent respondent No. 2 on 1. 9. 1993 on his tractor-trolley to bring bricks so that the drain could be constructed. When the tractor was carrying bricks the hook in between the tractor and the trolley was broken. It was specifically denied that the tractor was being driven rashly. In case the Court came to the conclusion that there was any liability it was to be borne by respondent No. 3, the insurance company. The driver has not filed any written statement but the insurance company filed a written statement and seriously contested the claim. It was alleged that the tractor and trolley were insured for agricultural purposes only with respondent No. 3. At the time of accident it was carrying bricks and three persons were sitting in it. It was being used for commercial purposes against the terms contained in the insurance policy. It was being driven in violation of Section 149 (2) of the Motor Vehicles Act. There was collusion between the petitioner-claimant and respondent Nos. 1 and 2 in order to harm respondent No. 3. The defence taken by the defendants in both the cases is similar. The Motor Accidents Claims Tribunal after taking evidence adduced before it and hearing the parties awarded a sum of Rs. 25,000/- to the claimant Pappoo and a sum of Rs. 50,000/- to the claimant Babu Ram but directed that the claim was recoverable from respondent Nos. 1 and 2. It exonerated respondent No. 3, i. e. , the insurance company. Feeling aggrieved both the claimants have preferred separate appeals which have been registered as M. A. No. 68 of 1996 (Pappoo) and M. A. No. 69 of 1996 (Babu Ram ). As they relate to the same case, they have been heard together and are being disposed of by this common order.

(3.) LEARNED counsel for the appellants contended that admittedly an accident had taken place and in the accident Kallu, father of the claimant Pappoo died and Babu Ram received injuries. It is also not in dispute that the claimant Pappoo is the sole heir of the deceased Kallu and the claimant Babu Ram became permanently disabled. The learned Counsel urged that appeal has been preferred for enhancement of the awarded sum as well as for holding the insurance company also liable for the sum awarded. He urged that as the vehicle was insured with respondent No. 3 it cannot escape its liability. The sum awarded is also inadequate looking to the facts of the case. The learned Counsel for the insurance company contended that the learned Tribunal rightly exonerated the insurance company because it is established from the record that the tractor was being used against the terms of the policy. It was insured for agricultural purposes only but it was being used at the time of accident for commercial purposes, i. e. , for carrying bricks and as such no liability could be fastened on the insurance company. Learned counsel further urged that the insurance policy has not been proved and unless it is proved it cannot be said what were the terms of the policy. Only photo copy has been filed which in no case can be said to be a certified copy under the Insurance Act. In support of this contention he placed reliance upon National Insurance Co. Ltd. v. Vasanthara Amma 1992 ACJ 250 (Kerala) and urged that if the copy of the policy is not duly certified as provided under Section 2 (5) of the Insurance Act it cannot be accepted.