K. Ramaswamy, J.
1. The three appeals can be disposed of by a common judgment since the three deceased died in an accident which occurred on January 5, 1984 at about 11.00 a.m. on the road between Chandralapadu and Bobbillapadu villages by the lorry bearing No. AAG 4352 belonging to the first respondent, driven by the second respondent and insured with the third respondent. The case of the claimants is that the three deceased by names, K. John, Muttaiah alias Devadanam and Hussain, aged about 25, 25 and 30 years respectively, died in the accident due to the rash and negligent driving of the vehicle by the driver. The widow and minor children of K. John filed O.P. No. 191 of 1984 against which C.M.A. No. 259 of 1986 arises claiming a sum of Rs. 50,000/- but a sum of Rs. 38,000/-was awarded by the Tribunal below. In O.P. No. 192 of 1984 against which C.M.A. No. 258 of 1986 arises, the widow and three minor children of the deceased Muttaiah alias Devadanam laid a claim in a sum of Rs. 50,000/- but the Tribunal below awarded a sum of Rs. 38,000/-, and in O.P. No. 193 of 1984 against which C.M.A. No. 261 of 1986 arises, the widow and two minor children and father of Hussain laid the claim in a sum of Rs. 50,000/- but the Tribunal awarded a sum of Rs. 36,000/-. The Tribunal also awarded a sum of Rs. 6,000/- to each of the widows towards consortium. For the balance amount, the appeals have been filed. The finding that the driver, second respondent, had driven the vehicle rashly and negligently as a result of which the accident had occurred has not been challenged by the respondents. Therefore, I confirm the said finding. It is the contention of Mr. K. Mangachary, learned counsel for the insurance company that the three deceased were only gratuitous passengers and that they were not carried as owners of the goods nor for hire or reward, therefore, the legal representatives of the deceased are not entitled to any compensation. I find no force in the contention. The lorry was engaged for loading and unloading of the building material and the three deceased and other persons who were engaged as coolies were going in the lorry for the said purpose. Therefore, they are persons carried for the purpose of carrying on business of the owner. Thereby, they are not gratuitous passengers. Hence the finding that they are persons carried for loading and unloading is accordingly confirmed. It is contended by Mr. Dharma Rao, learned counsel for the appellants, that the Tribunal below having accepted that the deceased would at least get Rs. 10/- per day, their dependency should be computed at Rs. 300/- per month and if 1/3rd of it is deducted, it would come to Rs. 200/-and that would be the loss of dependency per month; and for one year, it would be Rs. 2,400/-. The appropriate multiplier is 18 years and if it is so worked, it would come to Rs. 43,200/-. The Tribunal below has wrongly calculated. Thereby, there is an arithmetical error required to be corrected. The award of a sum of Rs. 6,000/- to each of the widows towards consortium has not been challenged. Accordingly it is confirmed.
2. The contention of Mr. Mangachary is that Section 95 (2) of the Motor Vehicles Act (Act 4 of 1939), for short 'the Act', provides limits of the policy and the liability of the insurance company. Under Clause (a) thereof, where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. Therefore, the insurance company is not liable to pay to each of the persons, damages as a reparation for the death of or bodily injury to the victims. The question, therefore, is what is the compensation to which the appellants are entitled? The defence taken in the Tribunal below is that Section 95 (2) (a) provides only for carriage of passengers upto six in number and if any passenger, carried in excess thereof, the insurance company is not liable to pay damages for the death of or bodily injury to the victims and that therefore, there arises no liability. This contention did not find favour with the Tribunal below and was negatived. It is undoubted that Clause (a) of Sub-section (2) of Section 95 provides the entitlement to carry persons not exceeding six in number excluding the driver and the cleaner. The vehicle admittedly carried more than six persons for loading and unloading purpose. In a similar case, in Ragunath Eknath Hivale v. Shardabai Karbhari Kale 1986 ACJ 460 (Bombay), it was contended that since the vehicle carried persons in excess of the prescribed limit it is a contravention of the insurance policy and that therefore, the insurer is absolved of its liability to pay the compensation. While considering that contention, Sawant, J. speaking for the Bench held:
It is true that at the relevant time, the truck was carrying about 15 to 16 persons in addition to the goods for the carriage of which alone the permit was issued to ply it. However, it must not be lost sight of that under the said Rule 118, even a goods vehicle is permitted to carry persons though upto seven in number. Those persons include the owner or the hirer of the vehicle. The only condition for carrying such persons is that they have to be carried free of charge. Hence, even if a vehicle has a permit only for carrying goods, the carrying of persons is not prohibited absolutely. The evidence on record admittedly shows that the passengers in question were the owners of the goods, i.e., the hirers of the vehicle. It is nobody's case that they were charged any fare. The only condition of the permit which was breached was that the persons in question were in excess of the number permitted by the rule. This was a breach of condition of the permit issued for plying the vehicle. The vehicle was, however, being used essentially for carrying the goods. It cannot therefore be said that the vehicle was not being used for the purpose for which the permit was issued. A breach of the condition of the permit is not the same thing as a breach of the purpose for which it is issued. The contravention of one or the other condition of the permit is not a contravention of the purpose for which the permit is issued. There was therefore no contravention either of Clause (b)(i)(a) or of (b)(i) (c) of Section 96 (2) which clauses alone are and can be pressed into service on behalf of the insurance company.
I respectfully agree with the above ratio which squarely applies to the facts of this case. In similar circumstances, I have also considered and held the same view. Under those circumstances I have no hesitation to hold that merely because more than six persons have been carried while using the vehicle on the public way, for the purpose for which the permit was issued, it cannot be said that there is a contravention of the covenants of the policy though there is a contravention of the conditions of the statute. If there is any contravention of the conditions, it is always open to the other party to take appropriate action, but that would not be a ground for holding that it is a breach of conditions of the contract of policy of the insurance. Under these circumstances, I hold that Section 96 (2) had no application and Section 95 (2) (a) does not prohibit the court to award the amount as damages.
3. It is next contended that it is necessary that every such person should be covered by a policy without which the insurance company is not liable. I find no force in the contention. It is not the requirement of law that every person who meets with death or sustains bodily injury must be covered by a policy. Therefore, this contention also is untenable.
4. Accordingly, calculating the amount as referred to hereinbefore, the total amount towards loss of dependency comes to Rs. 43,200/-, in each appeal. Therefore, that would be the amount, in addition to Rs. 6,000/-awarded towards consortium, granted by the Tribunal below. The claimants are also entitled to interest at 12 per cent from the date of claim till the date of realisation. It is always open to the insurance company to fall back upon the insured according to law.
5. The appeals are allowed as indicated above. No costs.