Prashant Dutta & Anr. vs National Insurance Co. Ltd. & Ors.
2012 Latest Caselaw 2195 Del

R-54(part-1)
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.556/2007

     %                       Reserved on : 16th March, 2012
                            Date of decision : 30th March, 2012

      PRASHANT DUTTA & ANR.                 ....Appellants
                   Through : Mr. Amit Sethi, Adv.

                               versus

      NATIONAL INSURANCE CO. LTD. & ORS. ..Respondents
                    Through : Ms. Shantha Devi Raman and
                              Mr. Sunil Kumar Tiwari, Advs.
                              for R-1.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

                            JUDGMENT

1. The accident dated 4th June, 2006 resulted in the death of

Om Prakash. The deceased was survived by his widow, mother

and four children who filed the claim petition before the Claims

Tribunal. The deceased was aged 27 years at the time of the

accident and was working as a conductor on the offending bus

bearing No.DL-1P-5998. The Claims Tribunal took the minimum

wages of `3,271/- into consideration, deducted 1/4th towards

personal expenses, applied the multiplier of 18, added

`60,000/- towards loss of love and affection and `20,000/-

towards funeral expenses. The total compensation awarded is

`6,09,902/-. The Claims Tribunal exonerated the insurance

company and held the driver and owner liable to pay the

award amount.

2. The appellants are the owner and driver of the offending

vehicle and have challenged the impugned award on the

limited ground that the offending vehicle was validly insured

and, therefore, respondent No.1 alone is liable to pay the

entire award amount to the claimants. Learned counsel for the

appellants submit that the deceased, employed as a

conductor, was validly covered under the insurance policy and,

therefore, respondent No.1 alone is responsible to pay the

insurance amount.

3. The widow of the deceased appeared in the witness box

as PW-1 and deposed that her husband was on duty on the

vehicle as a conductor at the time of the accident. She

reiterated the same in her cross-examination. The learned

Trial Court has taken the deceased to be helper on the basis of

the statement of respondent No.1 who appeared in the witness

box as RW-1. However, respondent No.1 did not produce any

document to show that the deceased was a helper.

Respondent No.1 did not lead any evidence to rebut the

evidence of PW-1 that the deceased was a conductor. The term

conductor has been defined in Section 2(5) of the Motor

Vehicles Act as a person engaged in collecting fares from

passengers, regulating their entrance into and exit from the

vehicle and performing such other functions as may be

prescribed. The offending vehicle involved in the present case

is a chartered bus which is a contract carriage as defined in

Section 2(7) of the Motor Vehicles Act. Since there is no

requirement of ticketing in a chartered bus, the person who

regulates the entrance/exit of the passengers and other

functions is a conductor within the meaning of Section 2(5) of

the Act even if he has been named as a helper. In the present

case, this Court is of the view that the deceased was a

conductor on the offending vehicle as per the testimony of PW-

1. However, even assuming that the deceased was a helper as

contended by respondent No.1, he falls within the meaning of

conductor under Section 2(5) of the Motor Vehicles Act as he

was performing the work of a conductor and there was no

other conductor on the chartered bus.

4. The liability of the insurance company in respect of the

Workmen's Compensation in respect of the driver and

conductor of the offending vehicle under Section 147(1) of the

Motor Vehicles Act is statutory and, therefore, respondent No.1

would be liable to pay the Workmen's Compensation. The

insurance policy of the offending vehicle has been placed on

record as Annexure-F (colly.) with the appeal in which

respondent No.1 has charged the premium for Workmen's

Compensation to the employee. Under Section 147(1) of the

Motor Vehicles Act, 1988, the insurance company is required to

compulsorily cover the liability in respect of the death or bodily

injury of the driver and conductor in the case of public service

vehicle. The contention of respondent No.1 that they have

charged for premium for one employee is untenable in view of

the statutory requirement of Section 147 (1) of the Motor

Vehicles Act to cover the driver and the conductor. Even if the

contention of respondent No.1 that the policy covered one

employee is accepted, the policy should be construed to cover

the deceased. In that view of the matter, this Court is of the

view that respondent No.1 is liable to pay Workmen's

Compensation in respect of death of the deceased and the

remaining amount of compensation is liable to be paid by the

appellants.

5. The liability of respondent No.1 under the Workmen's

Compensation Act, 1923 is computed to be `3,49,294/-

(`3,271/2 x `213.57) taking the minimum wages of `3,271/-

per month as the income of the deceased.

6. The appeal is partly allowed to the extent that out of the

award amount of `6,09,902/-, respondent No.1 shall be liable

to pay `3,49,294/- along with interest @ 7.5% per annum from

the date of filing of the claim petition till realization to

respondent Nos.2 to 7. The remaining amount of `2,60,608/-

(`6,09,902 - `3,49,294) along with interest @ 7.5% per annum

for the date of filing of the claim petition till realization shall be

paid by the appellants.

7. The appellants deposited a sum of `3,31,650/- with the

Registrar General of this Court in terms of the order dated 12th

September, 2007. The aforesaid amount was initially kept in

fixed deposit. Vide order dated 10th March, 2008, the aforesaid

amount along with interest thereon was directed to be

remitted to the Claims Tribunal and the Claims Tribunal was

directed to disburse the said amount to the claimants in terms

of the award. Accordingly, a sum of `3,41,344/- was sent to

the Claims Tribunal on 16th May, 2008. The liability of the

appellants in terms of this judgment as on 16th May, 2008 was

`2,96,442/- (`2,60,608 +' interest of `35,834/- for the period

17th July, 2006 to 16th May, 2008) which has been paid to the

claimants. The appellants are thus entitled to refund of

`44,902/- (`3,41,344 - `2,96,442) from respondent No.1.

Respondent No.1 is directed to make the payment of the

aforesaid amount of `44,902/- along with interest @7.5% per

annum with effect from 16th May, 2008 up to the date of

realization to appellant No.1 within 30 days. Respondent No.1

is also directed to deposit `3,49,294/- along with interest

@7.5% per annum from the date of filing of the claim petition

(17th July, 2006) till realization with UCO Bank, Delhi High Court

Branch by means of a cheque drawn in the name of UCO Bank

A/c Lokesh within 30 days. Upon the aforesaid amount being

deposited, UCO Bank shall keep the said amount in fixed

deposit till further orders.

8. The order of disbursement of the said amount shall be

passed after examining the claimants on 27th April, 2012. Let

the Court notice be issued to respondent Nos.2 to 7 as well as

their counsel, returnable on 27th April, 2012. The Court notice

shall indicate that the claimants shall remain present in Court

on the next date of hearing. Copy of the judgment be sent to

respondents No.2 to 7.

9. The statutory amount of `25,000/- deposited by the

appellants along with these appeals be refunded back to the

appellants through counsel within four weeks.

J.R. MIDHA, J MARCH 30, 2012 aj