Syed Md. Mahfooz Alam, J.
1. This Miscellaneous Appeal has been preferred by the appellants against the judgment dated 4.5.1999 passed in M.V. Claim Case No. 20 of 1997 by the District Judge - cum - Motor Vehicle Accident Claims Tribunal, Katihar whereby he has been pleased to dismiss the claim application of the appellants filed under Section 166 of the Motor Vehicles Act on the ground that the deceased was an unauthorised passenger and was trying to take lift in the offending tractor when the tractor met accident.
2. The brief facts of the case which gave rise to this M.V. Claim case are as follows:
On 3.5.1997 a tractor bearing registration No. BR39 - 1533 belonging to Manas Kumar Mukherjee and Dulal Mukherjee, met with accident as a result of which deceased Sk. Manjar and A.W. 1 Md. Zafir fell down from the tractor and both the persons sustained injuries and after 4-5 hours of the incident deceased Sk. Manjar succumbed to his injuries. The tractor was being driven by Shambhu Sah (OP.W. 1) and at the time of occurrence a trailor was also attached with the tractor. It is said that the injured as well as the deceased were doing the work of the labourer on the tractor belonging to one Awdesh Singh. It is further said that the deceased was earning Rs. 900/- per month. After the accident A.W. 1 Md. Zafir gave his fardbeyan before Manihari Police on the basis of which a criminal case bearing Manihari P.S. Case No. 59 of 1997 under Sections 279, 337 and 338 of the Indian Penal Code was initially registered but later on, chargesheet was submitted under Sections 279 and 304A of the Indian Penal Code as injured Sk. Manjar died on 30.9.1997.
3. The legal representatives of the deceased Sk. Manjar, namely, Safique, Bibi Tofa, Jamshed Alam, Nousad Alam and Rojina Khatoon, filed this claim case claiming a total compensation of Rs. 4,00,000/- on account of the death of Sk. Manjar caused in the said accident. The owner as well as insurer both appeared and contested the claim by filing separate written statements.
4. The main defence of the owner of the tractor was that the deceased was never his employee / labourer and as the deceased Sk. Manjar along with 3-4 unknown persons had stealthily climbed over the trailor of the offending vehicle from behind without the knowledge of the driver who was taking away the said tractor for filling air in the wheels of the tractor but on way, the tractor over-turned and the deceased and some other persons who had climbed upon the trailor without the knowledge of the driver, fell down by the side of the road and suffered injuries and later on, the deceased died. Further defence is that the vehicle in question was insured and as such, the Insurance Company is liable to pay the entire compensation.
5. The defence of the Insurance Company is that although the vehicle in question was insured for agricultural purpose only and not for commercial use and the Insurance policy did not cover the risk of any passenger or any person other than the driver of the tractor and so the Insurance Company is not liable to pay compensation. However, both the respondents have accepted that the deceased had died in the accident which had occurred on 3.5.1997 and in the said accident the tractor in question was involved which was being driven by Shambhu Sah (OP.W.1).
6. From perusal of the judgment of the Tribunal it appears that the Tribunal refused to grant any relief to the applicants and dismissed the application filed by them under Section 166 of the Motor Vehicle Act on the ground that the deceased was an unauthorised pass and was trying to take lift in the offending tractor when the said tractor met with accident.
7. The point for consideration is whether the finding of the Tribunal is correct and if it is incorrect then whether the appellants are entitled for grant of compensation and if so, what will be the quantum of compensation and who is/are liable to pay the compensation.
8. From perusal of the lower court records it appears that in support of their case, the applicants-appellants have examined altogether four witnesses, namely, Md. Jafir (A.W. 1), Dinesh Yadav (A.W. 2), Manoj Kumar Sah @ Mantu (A.W. 3) and Sk. Shafique (A.W. 4) and besides that, the applicants have also brought on record the first information report of Manhari P.S. Case No. 59/97 and post mortem report of Sk. Manjar which have been marked Exts. 1 and 2, respectively. It further transpires that on behalf of the owner of the vehicle, two witnesses, namely, Shambhu Sah (OP.W. 1) and Manas Kumar Mukherjee (OP.W.2) were examined. OP.W.1 Shambhu Sah is the driver of the tractor which had met accident in which deceased Sk. Manjar had died whereas OP.W. 2 Manas Kumar Mukherjee is the owner of the said vehicle. This witness has produced insurance papers of the vehicle in question which have been marked as Exts. A and A/1. Both the abovementioned witnesses have deposed that the deceased was not working as a labourer or as an employee of OP.W. 2 on the tractor which had met accident rather the deceased along with some other persons had forcibly climbed upon the trailor attached with the tractor and due to that, the tractor had met accident.
9. The learned Advocate of the appellants while arguing on behalf of the claimants-appellants submitted that there was overwhelming evidence on record to hold that deceased Sk. Manjar was an employee of the owner of the tractor and was doing the work of labourer on the said tractor which also was engaged in carrying bricks. The learned Advocate further argued that the statement of A.W. 1 Md. Zafir made before the police that the deceased was working as labourer on the tractor of Awadhesh Singh cannot be legally used for coming to the conclusion that the deceased was working as labourer on another tractor belonging to one Awdhesh Singh. He submitted that A.W. 1 Md. Zafir has deposed on oath that at the time of accident, the deceased was working as labourer on the said tractor belonging to Manas Kumar Mukherjee but neither the lawyer of the Insurance Company nor the lawyer of the owner of the vehicle put any question to him regarding his previous statement made before the police and so the statement of A.W.1 made in his fardbeyan that the deceased was working as labourer on the tractor of Awadhesh Singh cannot be legally used in evidence. I fully agree with the submission of the learned advocate of the appellants and hold that the statement made by A.W.1 Md. Zafir before the police for which his attention was not drawn either by the lawyer of the owner of the vehicle or by the lawyer of the Insurance company, is inadmissible in the eye of law. As regards the evidence of Md. Zafir that the deceased was an employee of Manas Kumar Mukherjee and at the time of accident he was working as labourer on the offending tractor belonging to Manas Kumar Mukherjee, I find that the said evidence of A.W.1 stands corroborated by the evidence of A.W.2 Dinesh Yadav who has deposed at paragraph 2 of his cross-examination that he had seen the deceased boy working on the said tractor on earlier occasion also. This fact further finds corroboration from the evidence of A.W. 3 Manoj Kumar Sah alias Mantu, who has stated at paragraph 2 of his cross-examination that he had seen the deceased Sk. Manjar working on the ill-fated tractor as he had taken work of cultivation from the said tractor. Both the witnesses, namely, A.W.2 Dinesh Yadav and A.W. 3 Manoj Kumar Sah appear to be independent witnesses and there is nothing on record to show that they are interested witnesses and so they would falsely depose in favour of the applicants. A.W.4 is the father of the deceased Sk. Manjar. He has also deposed that his son deceased Sk. Manjar was working under tractor owner Manas Kumar Mukherjee for the last one year. Thus, it appears that there is sufficient evidence on record to come to the conclusion that the deceased was an employee of tractor owner Manas Kumar Mukherjee and was working as labourer on the said tractor which met accident on 3.5.97.
10. It is true that the driver of the tractor, namely, Shambhu Sah and the owner of the tractor, namely, Manas Kumar Mukherjee in their evidence have denied that the deceased was working as labourer on the said tractor but their evidence do not inspire confidence in view of the statements of the two independent witnesses, namely, A.W.2 Dinesh Yadav and A.W.3 Manoj Kumar Sah that they had seen the vehicle in question (tractor) carrying bricks on several occasions and at that time also the deceased was seen sitting on the tractor. The evidence of A.W.1 and A.W.3 that the tractor was engaged in carrying bricks finds corroboration from the fact that at the time of occurrence a trailor was also found attached with the tractor from which inference can be drawn that the tractor was engaged in carrying bricks and the evidence of OP.W 1 and 2 that the tractor was being used 'only for' cultivation is false. Thus, the above fact establishes that the deceased was never an unauthorised passenger rather he was labourer working on the tractor in question. I, therefore, hold that the finding of the Tribunal that since the deceased was an unauthorised person on the tractor, as such the applicants are not entitled to get compensation on account of his death caused in the motor-vehicle accident is totally wrong and against the law. I further hold that it is proved beyond doubt that deceased Sk. Manjar who was working as labourer on the tractor which met accident on 3.5.97 had died in a motor-vehicle accident involving the tractor in question and as such the applicants, who are legal heirs of the deceased, are entitled to get compensation.
11. The next question is as to what should be the quantum of compensation and from whom it should be realised. According to the case of the applicants, at the time of death the deceased was aged about 18 years and his personal income was Rs. 900/- per month. There appears no dispute on the point of monthly income of the deceased and therefore I find no difficulty in fixing the monthly income of the deceased at Rs. 900/- per month and if this figure is multiplied by 12, the annual income of the deceased will come to Rs. 10,800/-. Once the annual income of the deceased is ascertained then the next stage will be to determine the total loss to the family or legal representatives of the deceased on account of his untimely and prematured death. In order to determine the total loss or dependency, I am of the view that multiplier method is the best suitable method in such cases and for using the multiplier it would be necessary to determine what would be the correct and appropriate multiplier in this case keeping in mind the age of the deceased as well as the age of his parent are claimants and the family background of the deceased's family.
12. From perusal of the record, it appears that the father of the deceased namely Sk. Safique was examined in this case as A.W.1 and he has given his age as 50 years old. His age will be relevant to determine the appropriate multiplier as the deceased has not left behind him his widow and children. Moreover the background of deceased's family was of labourer and therefore, in my view, figure '11' will be the best suitable multiplier in this case as per Schedule appended with Motor Vehicle Act. Thus, figure '11' is taken as best suitable multiplier in this case. Now the compensation will be calculated in the following manner:
Monthly loss - 900
Annual loss - 900 x 12 = 10,800
Total loss - 10,800 x 11 = 1,18,800/-
Thus, as per the above calculation the total loss to the family of the deceased on account of his death caused in the motor-vehicle accident comes to Rs. 1,18,800/-. According to the schedule, this amount will be reduced by 1/3rd towards personal expenses of the deceased and so after deducting 1/3rd amount the amount of compensation payable to the claimants on account of death of the deceased comes to Rs. 79,200/-. As per the rule, the applicants will also be entitled to Rs. 2000/- towards funeral expenses, Rs. 5000/- towards loss of consortium and Rs. 2500/- towards loss of estate. After adding the abovementioned amount, the total compensation payable to the applicants in this case will come to Rs. 88,700/-. Accordingly, a sum of Rs. 88,700/-/- is fixed as compensation to be awarded to the applicants in this case.
13. Now, the next question is as to who is liable to pay the compensation. Admittedly, the vehicle in question was insured with the National Insurance Company respondent No. 3 and at the time of accident, the Insurance Policy was valid. It has been argued by the learned Advocate appearing on behalf of the owner of the vehicle that since the vehicle in question was insured and the Insurance policy was valid at the time of accident, as such the Insurance Company is liable to pay the entire compensation. Against the said argument, it was argued by the learned Advocate of the Insurance Company that the policy does not cover the liability of any other employee except the driver of the vehicle. He has further argued that the Insurance policy will show that the vehicle was insured for the agricultural purpose only but as the vehicle was being used for carrying bricks meaning thereby that the vehicle was being used for commercial purpose, as such, the Insurance Company is not liable for payment of compensation in such cases. To support his argument, the learned Advocate of the Insurance Company has placed reliance upon the decision reported in 2000 (1) T.A.C. Page 643 (A.P) (New India Assurance Co. Ltd. Kurnool v. Smt. Laxmamma and Anr.) and upon the unreported decision of this Court delivered in M.A. No. 194 of 1994 disposed of on 26.9.1997 (Ramasis and Anr. v. Nand Lal Singh alias Nand Singh and Ors.).
14. It is the admitted position that the vehicle in question i.e. Tractor was insured for agricultural purposes only but from Ext.A it appears that the Insurance Company has charged extra premium for doing insurance of Trailor also. In addition to that, the Company has charged extra premium at the rate of 15% amounting to Rs. 270/- for the purpose of loading meaning thereby that the tractor in question can also be used for loading and unloading agricultural produce and other articles. It further transpires from Ext.A that a premium of Rs. 30/-/- was charged by the Insurance Company for driver as well as for cleaner. It is true that this policy relates to the period from 6.10.1995 to 5.10.1996 whereas the accident had taken place on 3.5.1997. The relevant insurance policy is Ext.A/1 in this case but this policy does not show the details of premium paid rather it shows that the previous policy was renewed. Under such circumstance, I have to place reliance upon Ext.A regarding the details of premium paid with regard to the insurance of the vehicle in question which establishes that the insurance was done for the tractor as well as for trailor also and extra premium amounting to Rs. 270/- was charged by the Insurance Company for loading meaning thereby that the Trailor could be used for loading and unloading agricultural produce or equipments etc. which is never possible without the help of any labourer. Under such circumstances, even if the argument of the learned lawyer of the Company is accepted that the policy does not cover the risk of any person other than the driver, I am of the view that since the Policy was comprehensive as such the Insurance Company is liable to pay the compensation under third party risk for the death of deceased Sk. Manjar who was working on the said tractor as labourer specially when the trailor was also insured alongwith the tractor and there is nothing on record to establish that at the time of accident the tractor and trailor were being used for commercial purpose and not for agricultural purpose. This is also proved from the fact that the trailor attached with the tractor was found empty at the time of accident and no other material was found loaded on the said tractor or trailor. Thus, I am of the view that the facts and circumstances of this case materially differ from the facts of the case law cited on behalf of the learned lawyer of the Insurance Company and as such the same are not applicable in this case. Under the facts and circumstances mentioned above I hold that if the Insurance Policy is comprehensive and covers the insurance of vehicle as well as the trailor attached with the vehicle, the Insurance Company is liable to pay compensation for the death of the person using the vehicle or its trailor as labourer working on the said vehicle or its trailor, and not covered under the Policy, as there is presumption that the insurance of trailor was done with a view to carrying agricultural produce or equipments which is not possible without the help of any labourer. I further hold that the risk of the labourer will be covered under third party risk. Accordingly, I hold that in this case both the owner as well as insurer are liable to pay compensation.
15. In the result, this Miscellaneous Appeal is hereby allowed on contest with cost and the impugned judgment of the Tribunal dated 4.5.99 is hereby set aside. Accordingly, the application filed by the claimants for grant of compensation is hereby allowed and a total compensation of Rs. 88,700/- is awarded to the claimants-appellants along with simple interest at the rate of 8% per annum since the date of filing of claim application which will be payable by the owner of the vehicle as well as the insurer. It is further ordered that the insurer i.e. National Insurance Company shall indemnify the entire award within three months from the date of this order with interest at the rate of 8% per annum from the date of filing of the claim application till the date of final payment. It is further observed that the plea of 'violation of terms and conditions of the Policy' shall be available to the Insurance Company in any future proceeding, if any, filed against the owner of the vehicle for realisation of the amount of award from the owner.
16. Accordingly, this Miscellaneous Appeal is allowed.