BANE SINGH Vs. SANTOSH GIRI

JUDGEMENT

(1.) THIS is an appeal filed by owner and driver of offending vehicle, na1/2, under section 173 of Motor Vehicles Act (for short called 'the Act') against an award dated 20. 4. 2004 passed by Third additional Member, M. A. C. T. , Dewas in claim Case No. 86 of 2003. By impugned award, Claims Tribunal has partly allowed the claim petition of claimants and awarded a total sum of Rs. 3,26,626 with interest to claimants for the death of one Jagdish giri. However, while passing the impugned award, the Tribunal exonerated the insurance company, na 3, from the liability arising out of accident. It is against this award, the owner and driver, NA 1/2 have felt aggrieved and have accordingly filed this appeal. So far as claimants, Rl to R3, are concerned, they have filed the cross-objection (M. C. P. No. 2883 of 2004) dated 25. 11. 2004 under Order 41, rule 22 of Civil procedure Code claiming enhancement in the compensation awarded by the Tribunal. According to claimants, Rl to R3, what is awarded by the Tribunal is on lower side hence it should be enhanced.

(2.) SO two questions arise in this appeal. First; whether the Tribunal was justified in exonerating the insurance company from liability arising out of accident? Second; whether Tribunal was justified in awarding a sum of Rs. 3,26,626 to the claimants for the death of Jagdish Giri?

(3.) FACTS in brief are these: it is a death case. On 17. 5. 2003, Jagdish giri aged around 62 years, a retired government servant (teacher) died in vehicular accident when he was hit by tractor-trolley bearing No. MP 41-2536. It is this incident, which gave rise to filing of claim petition by his legal representatives (appellants herein) under section 166 of the Act claiming compensation for his death. The claim petition out of which this appeal arises was filed against driver, NA1; owner, NA2 and insurer, NA3 of offending vehicle, i. e. , tractor-trolley. It was contested by non-applicants. So far as insurance company, na3 was concerned, they denied their liability by contending that since on the date of the accident, the insured vehicle was being used in contravention of the terms of the policy hence, no liability could be fastened upon the insurance company. In other words, the defence of the insurance company was that at the time of accident, the tractor-trolley was in fact being used for carrying water in tankers and since, this activity was not covered in the policy of insurance rather prohibited as is clear from policy, Exh. Dl, no liability arising out of this accident could be fastened upon the insurance company. Parties adduced evidence. By impugned award, the Claims tribunal partly allowed the claims petition of the claimants and accordingly awarded a total sum of Rs. 3,26,626. It was held that deceased spent a sum of Rs. 2,24,626 on his medical treatment. It was further, held that deceased's yearly income was rs. 36,000. Deducting 1/2, the Claims Tribunal took Rs. 18,000 to be the sums for calculating the dependency and applying the multiplier of 5 awarded a total sum of rs. 90,000 as compensation for the death of jagdish Giri. In addition, sum of Rs. 12,000 was awarded towards conventional heads. This is how a total sum of Rs. 3,26,626 which was inclusive of compensation, medical expenses amounting to Rs. 2,24,626 and the conventional heads amounting to rs. 12,000 came to be awarded. As observed supra, the Tribunal held that since the offending vehicle was being used for a purpose other than the purpose for which it was insured hence no liability can be fastened upon the insurance company. In consequence, the insurance company was exonerated from the liability which was confined only against driver/owner of the offending vehicle, NA1/2. It is against this award, the driver/owner, NA1/2, have filed this appeal contending that the Tribunal erred in exonerating the insurance company from the liability. According to the appellants, the liability should have also been fastened upon the insurance company. So far as claimants, Rl/3, are concerned, they have filed cross-objection, M. C. P. No. 2883 of 2004 dated 25. 11. 2004, under order 41, rule 22 of Civil Procedure Code wherein it is prayed that the Tribunal has awarded less compensation. According to claimants, it should have been more hence the same be increased.