S.K. Dubey, J.
1. The owner of the vehicle, the appellant, has filed this appeal aggrieved of the award dated 8-8-1980 passed in Claim Case No. 16 of 76 by Shri V.S. Yadav, Member, Motor Accident Claims Tribunal, Mandsaur.
2. Brief facts, leading to this appeal are that one Prabhulal Kalal, the owner of the goods, carried his goods in the tractor and trolley bearing registration No. MPI 9661 and MPI 9662, which was being owned by the appellant was being driven by the driver Fatahlal, respondent No. 8. The tractor and the trolley, at the relevant time, were insured with the respondent No. 9 the New India Insurance Company Ltd. After unloading the goods while Prabhulal was returning to his house from Suwasara, he was sitting on the mudguard of the tractor. The tractor was being driven rashly and negligently. The tractor driver, at place, applied the brakes as a result of which Prabhulal lost his balance and fell down on the road. He was crushed by the rear wheel of the tractor, as a result of which he succumbed to the injuries and died instantaneously.
3. The respondent-claimant No. 1, wife of the deceased Prabhulal and respondent-claimants Nos. 2 to 7, the minor children of Prabhulal filed an application under Section 110-A of the Motor Vehicles Act, 1939 (For short of Act) and claimed compensation on Rs. 75000/- for the death of Prabhulal, which occurred due to the use of the tractor. The appellant, driver and the Insurance Company filed their separate written statements. The owner-appellant contended that at the relevant time Fatahlal was driving the tractor unauthorized. The Insurance Company contended that as the passenger was being carried in the tractor and further as the driver was not holding a license, hence the Insurance Company, according to the terms of the policy, is not liable to indemnify the insured owner.
4. After recording of evidence the Tribunal held that the death of Prabhulal occurred due to rash and negligent driving of the tractor by the driver and at the relevant time as the driver was driving the tractor, hence the appellant owner is vicariously liable to pay compensation. The dependency was arrived at the rate of Rs. 200/- per month and the annual dependency at Rs. 2400/-. Applying a multiplier of fifteen, compensation was arrived at Rs. 36,000/-. after deducting 20 per cent towards lump sum payment, the Tribunal fixed the compensation of Rs. 28,800/-. But in Para 28 of the award of the Tribunal held that as the deceased was also responsible for accident, because he was sitting on the mudguard of the tractor and was not also careful as a result of which be fell down and was crushed to death. Therefore, because of the contributory negligence of the deceased the liability was apportioned between the driver and the deceased at the rate of two-third and one-third of the compensation. After deducting one-third of the compensation from the amount of Rs. 28,000/-, the Tribunal awarded compensation of Rs. 19,200/-. Being aggrieved of this award the appellant has filed this appeal and after notice, the respondents-claimants have preferred cross objections under Order 41, Rule 22 CPC for enhancement of the compensation and interest at the rate of 12 per cent per annum from the date of the application till payment, instead of interest at the aate of 6 per cent as awarded by the Tribunal.
5. Shri Wadnerkar, learned Counsel for the appellant contended that on 6-8-1976 the case was dismissed for non-appearance of the claimants when the appellant was present, but the Tribunal illegally restored the case without notice to the appellant and further illegally held that the appellant is liable to pay compensation. In any case the liability of payment of compensation ought to have been ordered to be satisfied by the Insurance Company.
6. Shri B.K. Samdhani, learned Counsel for the Insurance Company contended that the Tribunal has arrived at a finding after appreciation of evidence that the driver was not holding a license and the deceased was traveling as a passenger in breach of the terms of the policy. Therefore, the Tribunal rightly exonerated the Insurance Company.
7. Shri B.L. Pavecha, learned Counsel for the claimants-respondents contended that the Tribunal, after calculating the compensation at the yearly dependency of Rs. 2400/- while adopting a multiplier of fifteen, erred in deducting 20 per cent towards lump-sum payment of the compensation. Learned Counsel also contended that the Tribunal erred in awarding interest at the rate of 6 per cent per annum. The interest ought to have been awarded at the rate of 12 per cent per annum, which is the mandate of the Apgx Court. Learned Counsel for the claimants also feebly contended that the dependency arrived at by the Tribunal was too low in the facts of the case.
8. After hearing the counsel we are of the opinion that the appeal has no merit and deserves to be dismissed. The cross-objections filed by the respondents deserve to be allowed and the award deserves to be modified as indicated hereinafter.
9. The contention of the learned Counsel for the appellant that the application for compensation was dismissed for non-appearance and was restored without notice to the appellant, has no merit in the facts of the case. It is no doubt true that when the application was dismissed it was dismissed in the presence of the appellant, but it was restored without notice to the appellant. On this issue No. 1(a) and (b) was framed by the Tribunal and the Tribunal after hearing the parties gave a finding against the appellant. These findings have not been challenged by the appellant in in appeal. Hence at this stage, after a period of nine years, the appellant cannot be allowed to challenge the said findings.
10. The other contention of the learned Counsel for the appellant is that the driver was solely responsible for payment of compensation, has also no merit in the facts of the case. After recording of evidence the Tribunal has come to a definite finding that the driver was driving the tractor of the appellant during the course of his employment and when he was returning back the deceased was sitting on the tractor with the permission of the driver. In such circumstances, as the driver has been held to be rash and negligent, the owner of the vehicle will also be vicariously liable. See A.I.R. 1966 S.C. 1697 Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt.
11. The other contention of the learned Counsel for the appellant that the Insurance Company was liable to satisfy the claim has also no merit. It is an admitted fact that the driver was not holding a license to drive the vehicle and further when the deceased was returning he was not sitting in the tractor as the owner of the goods but was traveling as a passenger. In such circumstances the Tribunal rightly held that the Insurance Company is not liable to indemnify the insured owner of the vehicle.
12. Now coming to the cross-objections filed by the claimants, it is settled law that when multiplier is adopted all considerations of uncertainties of life or lump sum payment are included in the multiplier and that is why the multiplier is fixed which is generally less than the years of the remaining life of the deceased. Therefore, further deductions cannot be made on account of lump sum payment, uncertainties of life and other imponderables. These deductions take care of the value of the acceleration of interest in the estate of the deceased and no further deduction can be made on these counts. See the Full Bench decision of this Court in Kashmiran Mathur v. Sardar Rajendrasingh 1983 JLJ 113. Therefore, the Tribunal committed an illegality while making a deduction after adopting a multiplier of fifteen years. Calculating the compensation at Rs. 36,000/- and thereafter giving deduction of 20 per cent towards lump sum payment. In fact the compensation ought to have been Rs. 36,000/-. 13. The finding as regards contributory negligence cannot be inter ferred with. Therefore, the Tribunal was right in apportioning the com pensation because of contributory negligence of the deceased at the rate of two-third and one-third. Out of Rs. 36,000/- the claimants-respondents, after deducting one-third of the amount, are entitled to compensation of Rs. 24,000/-. On this amount of Rs. 24,000/-, in view of the mandate of the Apex Court in 1985 ACJ 397 Nareinva V. Kamat and Anr. v. Alfredo Antonio Doe Martins and Ors. and 1987 ACJ 15 Jagbir singh and Ors. v. General Manager, Punjab Roadways and Ors. the claimants are entitled to interest at the rate of 12 percent per annum from the date of the application till payment instead of 6 per cent as awarded by the Tribunal.
14. In the result the appeal of the appellant is dismissed having no merit and the cross-objections filed by the respondents-claimants are allowed and the award passed by the Tribunal is modified to the extent that the claimants-respondents shall be entitled to Rs. 24,000/- as compensation for the death of Prabhulal and interest at the rate of 12 percent per annum from the date of the application till payment of the said amount. In the circumstances of the case the parties shall bear their own costs.