Judgment:
S.S. Jha and Subhash Samvatsar, JJ.
1. This appeal is by the insurance company, whereby the insurance company has challenged the entire award and argued that no accident took place by the offender vehicle. There is no evidence regarding rash and negligent driving by the driver and insurance company is not liable to indemnify the insured. Counsel for the appellant submitted that quantum is on higher side.
2. Counsel for appellant submitted that according to the claimants the deceased was travelling in a tractor and the tractor was insured and premium was paid for the tractor driver. Tractor has sitting capacity of driver alone in the tractor. He submitted that risks of every person travelling on tractor is not covered by insurance policy and such driving by the owner of the vehicle is in violation of Section 149 of the Motor Vehicles Act. He submitted that insurance company is not liable to indemnify the insured.
3. Counsel for appellant then submitted that finding is recorded that deceased was earning Rs. 1,600 per month, but Claims Tribunal erred in determining the dependency at 2/3rd in favour of the claimants who are the parents of the deceased. He submitted that dependency cannot be more than l/3rd of the income of the deceased. The deceased was bachelor and there was every likelihood after his marriage, he may raise family and after raising of family, parents will be getting 1/3rd of his income. Therefore, dependency ought to have been determined at 1/3rd of the income of the deceased. He referred to the judgment in the case of Donat Louis Machado v. L. Ravindra, 1999 ACJ 1400 (SC).
4. The learned counsel for the appellant then invited our attention to the deposition of PW 5 Ghamandilal. This witness has deposed that the tractor was driven by the owner of the tractor in a rash and negligent manner and on account of rash and negligent driving deceased fell from the tractor. In the cross-examination this witness has admitted that he was sitting in the trolley whereas deceased was sitting on a tractor and he alighted from tractor at Morena. He did not inform anyone about the accident and went home. Counsel for the appellant submitted that this witness has not seen the accident and he is a reliable witness. The said tractor was not involved in the accident.
5. Counsel for the respondent Nos. 1 and 2 submitted that accident took place and it is proved. Owner of the tractor has not denied the averments after filing of the claim application. Since owner of the vehicle has not filed his written statement and denied the pleadings, therefore, there is implied admission of the owner regarding accident. He submitted that accident is proved. He further submitted that the compensation determined by the Claims Tribunal is just and proper and insurance company is liable to pay compensation along with the owner of the tractor.
6. Counsel for respondent Nos. 3 and 4 has expressed his inability to argue the case.
7. We have heard the counsel for the parties.
8. In view of non-filing of reply by the owner of tractor and since driver/owner has not entered the witness-box and denied the pleadings about the rash and negligent driving, the factum of accident, finding of Claims Tribunal regarding rash and negligent driving is affirmed.
9. As regards the quantum of compensation is concerned, Tribunal has recorded a finding that the income of the deceased was Rs. 1,600 per month. In the said facts of the case and in view of law laid down in the case of Donat Louis Machado, 1999 ACJ 1400 (SC), the dependency of parents will be at 1/3rd of income of the deceased. Therefore, we determine the dependency of parents at Rs. 600 per month, which is Rs. 7,200 per annum. At the time of accident the deceased was 20 years of age and age of parents was between 35-40 years. Therefore, it will be appropriate to apply multiplier of 16 to this figure. On applying multiplier of 16, claimants are entitled to Rs. 1,15,200. To this amount further sum of Rs. 25,000 is added for damages under various heads such as funeral expenses, loss to estate, etc. and the amount comes to Rs. 1,40,200. However, interest as determined by the Claims Tribunal shall be payable to the claimants.
10. As regards the liability of the insurance company is concerned, witness has admitted that the deceased was travelling on a tractor, which is driven by respondent No. 4 Kamal Singh who is the owner of the tractor. Sitting capacity of tractor is only one. Insurance policy is on record, which is Exh. D-1. From perusal of insurance policy, it is clear that the tractor was insured as Act insurance and premium for risk of driver is paid. Since passenger is not permissible in a tractor, therefore, the insurance company cannot be held liable to indemnify the passenger travelling in a tractor. Section 149(2)(a)(i) of the Act provides that no sum shall be payable by an insurer, if there has been a breach of a specified condition of the policy, namely, a condition excluding the use of vehicle. The vehicle was insured for agricultural purposes and the tractor was driven in violation of the conditions of the policy. It may be mentioned that deceased was not travelling in a trolley, whereas PW 5 has categorically deposed that he was travelling in a trolley attached to the tractor and deceased was sitting on the tractor.
11. Considering these facts and the fact that the vehicle was being driven in violation of the condition of the policy, insurance company cannot be held to be liable to pay compensation. In case of Ramashray Singh v. New India Assurance Co. Ltd., 2003 ACJ 1550 (SC), the court has considered the words 'any person or passenger' occurring under Section 147 of the Act and it is held that if a 'person' or 'passenger' is an employee, then the insured is required under the statute to cover only certain employees and under Section 146(1) a policy shall not be required to cover liability in respect of the death arising out of and in the course of an employment of the person insured unless the liability of the insured arises under the Workmen's Compensation Act or if the employee or the driver is engaged in driving the vehicle, but where the vehicle is being driven in breach of the policy and the purpose for which it was insured the insurance company will be liable to pay compensation.
12. Admittedly tractor was insured for agricultural purpose and premium was paid to cover the risk of the driver only. No passenger can travel on a tractor. Therefore, the insurance company cannot be held liable to indemnify the insured in this case. Appeal of insurance company is allowed and it is held that compensation shall be paid by the owner of vehicle to the claimants. The insurance company is not liable to pay compensation. Award of the Claims Tribunal is modified as mentioned above.
13. Appeal succeeds and is allowed without any order as to costs. The insurance company is at liberty to recover the amount deposited with Claims Tribunal from the owner of the vehicle.