N.K. Mody, J.
1. This order shall also govern the disposal of M.A. No. 2500 of 2007 as both the appeals are arising out of one award dated 21.4.2007 passed by the Seventeenth Additional M.A.C.T., Indore in Claim Case No. 99 of 2006, whereby the claim petition filed by appellants was allowed on account of death of Motiram and the learned Tribunal awarded a sum of Rs. 2,27,000, against which the present appeals have been filed.
2. In M.A. No. 2255 of 2007, prayer is for enhancement of awarded amount while in M.A. No. 2500 of 2007, which is filed by insurance company, respondent No. 2, prayer is for exonerating respondent No. 2.
3. M.A. No. 2500 of 2007 is barred by 9 days for which an application for condonation of delay is filed. Since appellant has filed the appeal in which respondent No. 2 is having the right to file cross-objections, therefore, the application for condonation of delay is allowed.
4. Short facts of the case are that the appellants filed a claim petition alleging that deceased Motiram was driving the motorbike on 15.4.2006, which was owned by respondent No. 1 and insured with respondent No. 2. It was alleged that at the time when the deceased was driving the motorbike, deceased met with an accident with a handcart with the result Motiram died. Since the motor cycle which was owned by respondent No. 1 was insured with respondent No. 2, therefore, it was prayed that the compensation be awarded against the respondents.
5. The claim petition was contested by the respondent No. 2 on various grounds including on the ground that claim petition is not maintainable because the risk of the driver who is driving the motor cycle is not covered by the policy, which has been issued by respondent No. 2. It was also alleged that respondent No. 1 is son of the deceased and also son of appellant No. 1 and brother of appellant No. 2. It was also alleged that the cause of action is against the driver of the handcart and not against the respondent No. 2. It was alleged that since the deceased was not the third party, therefore, insurance company, respondent No. 2 cannot be held liable for payment of compensation. It was prayed that the claim petition be dismissed.
6. After framing of issues and recording of evidence learned Tribunal allowed the claim petition filed by appellants and awarded a sum of Rs. 2,27,000 break-up of which is as under:
Towards loss of dependency Rs. 2,18,400Towards funeral expenses Rs. 2,000Towards loss of loveand affection and consortium Rs. 6,600
7. Learned Counsel for the appellants submit that the learned Tribunal assessed the income of the deceased at the rate of Rs. 2,100 per month and after deducting 1/3rd amount and also after applying multiplier of 13 assessed loss of dependency. It is submitted that since the death took place in the year 2006, therefore, the income of the deceased has been assessed on lower side. It is also submitted that on other heads also the amount awarded is on lower side.
8. Mr. S.V. Dandwate, learned Counsel for the respondent No. 2 submits that the learned Tribunal committed error in holding respondent No. 2 liable for payment of compensation. It is submitted that deceased was not the third party but was the father of respondent No. 1, who was driving the offending motorbike at the relevant time. It is submitted that under Section 147 of the Motor Vehicles Act, insurance company, respondent No. 2, was not statutorily liable to cover the risk of driver who is driving the vehicle other than person employed to drive the vehicle. Reliance was placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Meena Variyal : 2007 ACJ 1284 (SC), wherein in a case where the car was being driven by Regional Manager of the company, who was owner of the vehicle and the insurance company avoided the liability on the ground that the person driving the vehicle was not employed as driver and the risk of only paid employee is required to be covered statutorily and, therefore, insurance company is not liable. Hon'ble Apex Court held as under:
(11) The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923, in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the insurance company, in the case on hand, was liable to indemnify the owner, the employer company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is doubtful on the case put forward by the claimant whether the deceased could be understood as a workman coming within the Workmen is Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that insurance company is not liable to indemnify the insured in the case on hand.
9. So far as the amount of compensation is concerned, it appears that the income of the deceased has rightly been assessed at the rate of Rs. 2,100 per month and the multiplier of 13 has also been rightly applied. However, in other heads, it appears that a case of marginal enhancement is made out and the claimant shall be further entitled for a sum of Rs. 23,000.
10. So far as liability of the insurance company respondent No. 2 is concerned keeping in view that law laid down by the Hon'ble Supreme Court in the matter of Meena Variyal 2007 ACJ 1284 (SC), since the deceased was the father of respondent No. 1 and was not a third party within the meaning of the Act and there is nothing on record to show that there was any special contract covering such a person, insurance company cannot be made automatically liable.
11. In view of this both the appeals filed by the appellants and also by respondent No. 2 stand allowed. The amount awarded by the learned Tribunal is enhanced to Rs. 2,50,000 instead of Rs. 2,27,000. The enhanced amount shall carry interest at the rate of 7.5 per cent per annum from the date of application. The finding relating to liability of respondent No. 2 stands set aside. The amount of award including the enhanced amount shall be payable by respondent No. 1. However, if any amount has already been paid by the respondent No. 2 to the appellants the same shall not be recovered either from the appellants or respondent No. 1. No order as to costs.