S.S. Jha and Sheela Khanna, JJ.
1. This appeal is filed by the claimants for enhancement of compensation and against the finding of the Claims Tribunal holding that insurance company is not liable to indemnify the insured on the grounds mentioned in the order.
2. Counsel for the appellants submitted that since the deceased was travelling with his own goods in the said truck, therefore, insurance company is liable to indemnify the insured. Counsel for appellants read evidence on record and while reading evidence of Angrez Singh, AW 1, she referred para 3 of the deposition. In para 3, it is deposed that his father deceased Joginder Singh has purchased clothes for marriage and tin of ghee and was travelling with his goods in the truck and truck turned turtle on way. He died on the spot in the accident.
3. Counsel for the appellants submitted that since deceased was travelling with his own goods, therefore, insurance company is liable to indemnify the insured. Claims Tribunal has committed error in holding that the insurance company is not liable to pay compensation jointly and severally with the owner and driver of the vehicle. Karnail Singh, PW 3, has deposed that they were standing at Chandrabadani Naka waiting for a bus. Driver Jaswant Singh and Balwant Singh came on the spot driving truck bearing registration No. 13-E 993 then he said that number of truck was 944. He inquired from truck driver about its destination and he was informed that the vehicle is going to Guna, then fare was settled at Rs. 400 and some luggage was kept in the truck on the back side and some goods were kept by the passengers with them and they sat by the side of driver. Truck was driven by the deceased Jaswant Singh. This witness has deposed that on payment of Rs. 400 all of them boarded the truck along with their goods.
4. In para 8 of the deposition, this witness has admitted that the goods kept in the truck mentioned by him have been taken away by somebody after the accident and he has no knowledge who took away the goods. The goods have not been returned to him either by police or by the court. He denied the suggestion that since there were no goods in the truck, therefore, no goods could be seized by the police. In the first information report, Exh. P1, it has not been mentioned that the passengers were travelling along with their goods on the contrary, it is mentioned that they were travelling in truck from Gwalior to Guna. In the first information report, it is not mentioned that they were travelling with their own luggage.
5. Claims Tribunal has considered the evidence on record. Trial court has held that on account of rash and negligent driving, the truck overturned which resulted into the death of Joginder Singh. As regards liability of insurance company is concerned, Claims Tribunal has recorded finding in para 17 of the award and considered the evidence of Karnail Singh, PW 3. He has deposed that along with luggage and utensils, they sat in the truck after fixing fare at Rs. 400, but no evidence regarding purchase of goods at Gwalior or receipts of the said purchase have been filed. Witnesses have not said that after accident, they took the goods with them which were kept in the truck. The truck driver was their relation and is their cousin. In first information report, Deedar Singh has mentioned that deceased Joginder Singh is father's sister's husband and truck was driven by Jaswant Singh who is the son of his father's other sister. Thus, all the passengers were related to driver of the truck. No goods were seized on the spot to demonstrate that the passengers were travelling with their own goods.
6. The Claims Tribunal has recorded a finding that the deceased was travelling in a goods vehicle as a gratuitous passenger and exonerated insurance company of its liability as the claim is not covered under the insurance policy. Insurance company is not liable to pay compensation in such cases. Reference has been made of the judgment rendered in the case of National Insurance Co. Ltd. v. V. Chinnamma, : AIR2004SC4338 . This case relates to tractor and trailer but while referring to the judgment of Supreme Court in the case of New India Assurance Co. Ltd. v. Asha Rani, : AIR2003SC607 , wherein it is held that while interpreting clause (b) (i) of subsection (1) of section 147 of the Motor Vehicles Act, 1988, which relates to the liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger carrying vehicle must pay premium for covering the risks of passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover the third party liability and also the owner of the goods or his authorised representative but not any passenger carried in a goods vehicle whether for hire or reward or otherwise. Thus, it was necessary to prove that deceased was travelling along with his goods as owner thereof, therefore, the liability cannot be fastened upon the insurance company. In the absence of any evidence to that effect, we do not find that Claims Tribunal has committed any error in exonerating insurance company.
7. As regards quantum of compensation is concerned, counsel for appellants submitted that about income of the deceased, Angrez Singh, AW 1, has deposed that the deceased was earning Rs. 2,500-2,600 per month from selling milk and earning equal amount from monthly labour and his total income was Rs. 5,000 per month. However, as regards income from labour is concerned, his evidence does not appear to be reliable. Age of the deceased had been found to be 60 years in post-mortem report though claimants have asserted that the age of deceased was 50 years. Statement of Angrez Singh is not supported or corroborated by any evidence regarding age of the deceased. Any other person who knew about the age of deceased or who could depose about the age of deceased has not been examined. Therefore, Tribunal has rightly held that the age of deceased was 60 years as determined by the doctors in the post-mortem report. Thus, the evidence that the deceased was earning Rs. 2,500-2,600 from labour cannot be accepted. As regards finding about selling of milk is concerned, claimants have not examined any person who was purchasing milk from deceased Joginder Singh. Only bald statement regarding evidence about selling milk is on the record. Beant Singh, AW 2, has deposed that the deceased was carrying on business of selling milk and was earning Rs. 2,500 per month but this is also a bald statement and in the absence of any account book or any account of income, his income Rs. 2,500 per month from selling milk cannot be accepted. In the circumstances, Tribunal has not committed any error in determining income as notional income at Rs. 1,500 per month and treating him to be 60 years of age applied multiplier of 5 only.
8. Counsel for appellants submitted that even if the age is determined as 60 years then his age should be treated as 65-70 years and multiplier of 8 may be applied on this figure. Even in Second Schedule under section 163A of the Motor Vehicles Act notional income of a person is mentioned at Rs. 15,000 per annum. Since the deceased was involved in selling of milk, therefore, it can safely be presumed that he had some income which shall be more than notional income.
9. Counsel for appellants during arguments has argued that even if the income is treated as Rs. 2,000 per month then the dependency will be Rs. 16,000 per annum. Considering dependency as Rs. 16,000 per annum multiplier of 8 will be applicable as the deceased was 60 years of age and compensation will be Rs. 1,28,000. The claimants will be entitled for further sum of Rs. 22,000 for damage under various heads such as loss of consortium, loss to estate, etc. Compensation is enhanced to Rs. 1,50,000. Appellants will be entitled to recover the same from respondent No. 1.
10. Appeal succeeds in part. Amount of compensation is enhanced to Rs. 1,50,000 and over and above this amount, appellants shall also be entitled to interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of appeal. In the circumstances of the case, there shall be no orders as to the costs.