- (1.) The claimants are in appeal against the dismissal of the petition for compensation. The deceased was one of the passengers in a goods vehicle travelling as a member of marriage party. By the rashness of the driver of a truck in which the deceased was travelling the vehicle capsized and he died by the negligent conduct of the driver of the truck. The FIR was immediately lodged that had brought out the manner of how the accident had taken place. The postmortem certificate has also recorded the fact that the death was on account of road side accident. The driver and the owner who had been impleaded as parties along with the insurer had not contested the case but remained ex-parte. The court found that there was no one examined to prove the accident and therefore the negligence was not established, consequently dismissed the petition. I find the judgment of the tribunal as erroneous as regards the finding of negligence for the Tribunal must have taken it to be a case answering res ipsa loquitur situation where the vehicle had capsized on road causing the fatal injuries. It must be taken to be resultant of rashness driving and poor up-keep by the owner of the vehicle. The negligence must be taken as established and the liability must have been fastened on the owner and driver.
(2.) The liability for an insurer arises on the basis of a contract assigned by law. There is no requirement to cover the risk of a passenger in a truck except in situations provided under Section 147 of the Motor Vehicles Act itself. Such persons who will have a risk coverage only for owner of the goods travelling along with the goods and any one of the workman to whom the benefit of Workman Compensation Act will be applicable. There was no statutory cover to make the insurer liable. The award must therefore be available for enforcement for the claimants only against the owner and the driver.
(3.) The quantum of compensation would require to be assessed on the basis of the fact that the deceased was a contractor in DTC earning Rs. 2066/-. I will apply the parameters enunciated in Sarla Verma v. Delhi Road Transport Corporation, 2009 6 SCC 121 and tabulate the heads of claim making provision for prospect of increase and provide for conventional heads of claim viz. loss of consortium, loss to estate and funeral expenses. The same are tabulated as under:- The total compensation payable shall be Rs. 4,01,880/-. The amount in excess of what has already been granted by the Tribunal shall attract interest at the rate of 7.5% per annum from the date of petition till the date of payment. The right of enforcement will be available against the owner and insured. The insurance company is exonerated. Counsel wants the compensation towards love and affection to be Rs. 1 lac. I reject the same. I will apply the law laid down by the Supreme Court in Rajesh and others v. Rajbir and others, 2014 173 PunLR 779 only in those cases which have been dealt with and disposed of after the decision of the Supreme Court in Sarla Verma v. Delhi Road Transport Corporation, 2009 6 SCC 121 other wise the conventional heads shall be calculated as asserted in Sarla Verma's case .;