ORDER
1. This order shall also govern the disposal of M.A, No. 171/2000 and M.A. No. 638/2000 as all the appeals are arising out of the award dated 15.10.1999 passed by MACT, West Nimar, Mandleshwar. M.A. No. 166/2000 is filed against the award passed in claim case No. 158/1998 while M.A. No. 171/2000 and M.A. No. 638/2000 has been filed against the award passed in claim case No. 168/1998.
2. Short facts of the case are on 22.10.1997 offending bus No. M.P.-09-S-3290 was owned by respondent No. 9, driven by respondent No. 8 and insured with respondent No. 10. In the said bus deceased Salim Sheikh who happens to be the husband of respondent No. 1, father of respondent Nos. 2 to 7 and one Gajanand who is appellant in M.A. No. 638/2000 and respondent No. 1 in M.A. No. 171/2000 and is being represented by Mr. Subodh Abhyankar, Advocate were travelling. It is also an admitted fact that the offending bus was leased out to appellant at the relevant time.
3. In the claim petition, case of the claimants are that the offending bus was going from Indore to Mandleshwar. Because of rash and negligent driving of respondent No. 8 an accident took place near Rau in which Salim Sheikh died and Gajanand sustained injuries. The claim petitions were contested by the appellant and also by the respondent No. 10 on various grounds. As per the appellant since the offending vehicle was insured, therefore, respondent No. 10 is liable for payment of compensation while as per respondent No. 10 since the offending vehicle was in the control of appellant, therefore, appellant is liable for payment of compensation, if any.
4. After framing of the issues and recording of evidence, learned Tribunal allowed the claim petitions filed by the respondent Nos. 1 to 7 and by Gajanand holding that the appellant is responsible for payment of compensation. In claim case No. 158/1998 Rs. 20,000 were awarded by the learned Tribunal along with interest @ 12% per annum from the date of application, the break-up of which is as under:
Claim Case No. 158/1998
(i) towards loss of dependency Rs. 7,20,000
(ii) towards medical expenses Rs. 10,000
(iii) towards loss of consortium Rs. 5,000
(iv) towards loss.of love and affection Rs. 35,000
(v) towards funeral expenses Rs. 2,000
Claim Case No. 160/1998
(i) towards medical expenses Rs. 15,000
(ii) towards pain and suffering Rs. 5,000
5. In the present appeal and also in M.A. No. 171/2000, the contention of learned Counsel for the appellant is that the learned Tribunal committed error in holding that the appellant was responsible for payment of compensation. It is submitted that as per agreement which took place between appellant and respondent No. 9 it is the sole responsibility of respondent No. 9 to make the payment of compensation. For this contention reliance was placed on the agreement dated 17.12.1996 which took place between the appellant and respondent No. 9. The relevant clause of agreement are from Paras 15 to 17 which reads as under:
(Hindi matter omitted)
6. Apart from this, learned Counsel submits that the amount awarded is on higher side. It is submitted that income of the deceased has been assessed @ Rs. 150 per day and after deduction a sum of Rs. 500 towards personal expenses, the loss of dependency has been assessed @ Rs. 4,000 per month and after applying the multiplier of 15 as per Second Schedule of Motor Vehicles Act, 1988, loss of dependency has been assessed as Rs. 7,20,000 which is on higher side. It is submitted that the multiplier of 15 was not the correct multiplier looking to the age of the deceased. It is submitted that the respondent No. 1, herself has admitted the age of deceased as 41 years, therefore, the multiplier of 13 ought to have been applied.
7. Respondent No. 10 has also filed the cross objections. Mr. S.V. Dandwate, learned Counsel for the respondent No. 10 submits that the respondent No. 10 has rightly been exonerated and even if the liability comes on respondent No. 10 then in alternative it is submitted that the amount awarded is on higher side. It is also submitted that since there was no liability on Insurance Company as per the award, therefore, there was no necessity to file the cross objections, but the same has been filed as a matter of abandoned precaution.
8. Mr. L.S. Chandiramani, learned Counsel for the respondent Nos. 1 to 7 submit that the amount awarded is just and proper.
9. In MA No. 638/2000, learned Counsel for the claimant/appellant Gajanand, Mr. Subodh Abhyankar submits that the amount awarded is on lower side. It is submitted that the appellant sustained injuries and was hospitalised from 22.10.1997 to 06.11.1997 in Choithram Hospital, Indore. Appellant sustained fracture in his ribs and also in hand. It is submitted that no amount has awarded towards loss of income when appellant was on bed rest. No amount has been awarded towards the expenses incurred on attenders, special diet and amount awarded towards medical expenses and pain and suffering is also on lower side.
10. So far as the amount awarded in MA No. 166/2000 is concerned from perusal of the record, it is evident that Wahidan (AW-1), wife of the deceased and appellant Gajanand (AW-2) have been examined. Wahidan has stated in her examination-in-chief that the age of deceased was 45 to 46 years. She has also stated that the deceased was doing the seasonal business, as such sale of Rakhi on the occasion of Rakshabandhan, crackers on Diwali and also doing the business of cutlery item in villages. She has also stated that the deceased was going in that market of various villages five days in a week. Learned Tribunal has assessed the income of deceased @ Rs. 150 per day. From the statement of Wahidan respondent No. 1, herein, even if it is assumed that the income of deceased was Rs. 150 per day as assessed by learned Tribunal, then too it is not more than Rs. 3000 per month in the year 1997 as the deceased was working five days in a week. While determining the income of the deceased it has to be kept in mind that the deceased was having seasonal work. Since, there were eight members including the deceased in the family of respondent Nos. 1 to 7, therefore, it can be presumed that the deceased must not be spending more than 1/5th of his income towards personal expenses. So far as application of multiplier is concerned, looking to the statement of Wahidan (AW-1) the age of deceased was 45 to 46 years, thus, the multiplier of 13 ought to have been applied instead of 15. Therefore, the respondent Nos. 1 to 7 are entitled for the following amount:
(i) towards loss of dependency Rs. 3,74,400
(ii) towards medical expenses Rs. 10,000
(iii) towards loss of consortium Rs. 5,000
(iv) towards loss of love and affection Rs. 35,000
(v) towards funeral expenses Rs. 2,000
(vi) towards loss of estate Rs. 2,500
11. The total amount for which the respondent Nos. 1 to 7 are entitled comes to Rs. 4,28,900 instead of Rs. 7,67,000.
12. Coming to MA No. 638/2000, the appellant Gajanand sustained grievous Injuries, there were fractures in his hand and ribs. However, there was no permanent disability. Appellant Gajanand was hospitalised In Choithram Hospital, Indore from 22.10.1997 to 6.11.1997. No amount has been awarded towards expenses incurred by appellant on attenders, special side, transport charges and the amount awarded towards pain and suffering is also on lower side.
13. After taking into consideration all the evidence on record, the same is enhanced to Rs. 15,000. The enhanced amount shall carry interest @ 6% per annum from the date of application.
14. Coming to the second contention regarding the liability for payment of compensation is concerned, Section 2(30) of Motor Vehicles Act, 1988 lays down the definition of 'Owner', which reals as under:
'Owner' means a person in whose name a motor vehicle stands registered and where person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.
15. The respondent No. 10 avoiding the liability only on the ground that since the offending vehicle was under the control of appellant, as per agreement of lease, therefore, respondent No. 10 is not liable for payment of compensation.
16. For this contention, reliance is placed on a decision in the matter of Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and Ors. reported in : AIR1997SC3444 . It is submitted that in this case also the offending bus was on lease with the Rajasthan State Road Transport Corporation and the Hon'ble Apex Court observed that-
The expression 'owner' must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would, in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case the owner is of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, Instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Owner, was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus.
17. It is submitted that the case in hand is identical and, therefore, the learned Tribunal has rightly held the appellant responsible for payment of compensation. It is submitted that in view of the law laid down by the Hon'ble Apex Court, hirer of the vehicle i.e., the appellant was in actual possession and control of the vehicle, therefore, the appellant falls within the definition of 'owner' and is vicariously liable to pay compensation for tort committed by the driver, even if driver was employee of registered owner. From perusal of the facts Rajasthan State Road Transport Corporation (supra), it is evident that in that case the accident took place on 17.7.1981 when the Motor Vehicles Act, 1939 (hereinafter referred as the 1939 Act') was in force and the liability of the Insurance Company was limited. In the circumstances, the Hon'ble Apex Court has observed that, the RSRTC would be vicariously liable to pay compensation for tort committed by driver.
18. In the present case, the accident took place on 22.10.1997, when Motor Vehicles Act (1959 to 1988) was in force and the liability of Insurance Company, so far as it relates to third party is concerned was unlimited. However, since, the driver and the conductor of the offending vehicle were the employees of respondent No. 9, therefore, respondent Nos. 8 and 9 were equally liable to compensate the third party along with the appellant as the vehicle was being plied on a specified route for which permit was granted to the appellant. Since it is held that respondent Nos. 8 and 9 are equally liable, therefore, respondent No. 10 is also equally liable as the offending vehicle was insured with respondent No. 10. In the circumstances, the amountof compensation payable to the respondent Nos. 1 to 7 in M.A. No. 166/2000 and Gajanand appellant in M.A. No. 638/2000 shall be paid by the appellant and respondent Nos. 8 to 10 equally. The amount which has already been paid to Gajanand and respondent Nos. 1 to 7 shall be adjusted while making payment of amount of award to the claimants. Learned Tribunal shall permit the appellant to withdraw the excess amount deposited by it.
19. With the aforesaid modifications, appeals stand disposed of.