Judgment:
Pasayat, J.
1. These eight appeals areinterlinked and are disposed of by this common judgment. Eight applications were filed under Section 110-A of the Motor Vehicles Act, 1939 (in short, the 'Act') claiming compensation on various scores in respect of an accident which occurred on 27-11-1985 resulting in deaths of Surendra Kumar Jena, Kamala Mohapatra and Kalika Dei. Their legal representatives claimed compensation, while five others who sustained injuries in the accident also claimed compensation.
2. Common case of all the claimants sans unnecessary details is as follows :--
On 27-11-1985, the deceased persons, injured persons and some others were travelling in a vehicle (Trekker) bearing registration No. WNF 1148, owned by Gourang Katual(hereinafter referred to as the 'owner'). Vehicle in question was subject-matter of insurance with the National Insurance Company Ltd. (hereinafter referred to as the 'insurer'). All of them were travelling from Talamundali to Puri. The driver of the vehicle was driving the same at a high speed, and near Gppalpur Control check gate on the National Highway No. 5, it dashed against a truck bearing registration No. ATK 9655 belonging to Sudark Mary (herinafter referred to as the 'owner of the truck') which had been parked on the left side of the road, and as a result of the accident the trekker over turned on the left side of the road and three of the occupants named above breathed their last, while others suffered serious injuries. During adjudication by the Second Motor Accidents Claims Tribunal, Cuttack (in short, the 'Tribunal'), the owner of the truck did not appear but the owner of the trekker filed his written statement. The United India Insurance Company Ltd. (hereinafter referred to as the 'insurer of the truck') filed written statement in all cases and contested the claims.
3. Five issues were framed by the Tribunal. The main issues related to cause of death of deceased persons, and injuries to the injured, and whether they were on account of rash and negligent driving of the trekker and truck, and whether Insurance Companies were liable to pay compensation. On evaluation of evidence, Tribunal came to hold that the trekker had dashed against the truck. The driver of the trekker was driving in a rash and negligent manner, and death and injuries resulted from the accident. So far as individual claims are concerned, various amounts were awarded to the claimants. It was observed that insurers were not liable and the owner of the trekker was liable to pay compensation to the claimants. The basis of such conclusion was that claimants have not established that they were gratuitous passengers, and on the contrary it was to be presumed that the vehicle was being plied for hire or reward, though registered as & private vehicle and insured as a private car. Tribunal observed that it was hard to believe that even fuel charge was not paid by the occupants to the owner of the vehicle for use of the same. Various amounts were awarded to the claimants.
4. The owner of the trekker has filed the appeals in question challenging the conclusion of the Tribunal which according to him are based on surmises. The insurer of the trekker however, supported conclusions of the Tribunal. According to learned counsel appearing for the insurer of the trekker, realities of life cannot be lost sight of and it is hard to believe that any owner of the vehicle would permit the use of a vehicle, even without taking a pie for fuel required to be consumed. Learned counsel appearing for the claimants however, supported the award and while supporting quantum awarded, submitted that the insurer of the trekker was liable to indemnify the amount.
5. The undisputed position is that the trekker was insured with the insurer. Requirements of policies of insurance and limits of liability are stipulated in Section 95 of the Act corresponding to Section 147 of the Motor Vehicles Act, 1988 (in short, the 'new Act') with certain changes in the new Act. Said provision deals with duties of the insurer to satisfy the judgments and awards against third party risk. Section 95 of the Act (corresponding to Section 147 of the new Act) lays down the requirements which are to be complied with by the policy of insurance issued in relation to the use of a particular vehicle. They are (1) the policy must specify the persons or classes of persons who are insured with respect to their liability to third parties (2) the policy must specify the extent of liability which must extend to the extent specified in Sub-section (2); and (3) the liability which may be incurred by the specified person or classes of person in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle insured in a public place. According to learned counsel for the insurer of the trekker there was a breach of specified condition of policy as prescribed under Section 95 of the Act corresponding to Section 147 of the new Act and therefore, insurer is not liable to indemnify the award. According to him, there was a condition excluding use of the vehicle for hire or reward. On the date of contract the vehicle was not covered by permit to ply for hire or reward. According to him, specified condi-tion of policy excluding use of the vehicle for hire or reward had been violated. There is no dispute by learned counsel appearing for parties that if there is breach of condition excluding use of the vehicle for hire or reward, the insurer will have no liability. Question is whether the vehicle was used for hire or reward. According to Tribunal the vehicle was so used. With reference to evidence of the witnesses, it came to hold that the offending vehicle was not given by the owner to gratuitous passengers. It was observed that had the owner given the vehicle gratuitously for family members of Raghunath Jena on the request of the son of the deceased, he and his wife and family would have travelled in the offending trekker and other persons of the village could not have travelled in the vehicle. It was further highlighted that evidence of witnesses was to the effect that the owner of the trekker had given the vehicle for use without even asking him payment of cost of fuel for journey to Puri and its return journey on the request of deceased Surendra. According to Tribunal, merely because he was related distantly to the owner of the vehicle, such a course is uncommon and unnatural. Accordingly he fastened liability on owner of the trekker and exonerated the insurer.
6. There is no dispute that deceased Surendra was given the vehicle for use. The Tribunal itself had observed that the co-villagers had travelled in the trekker. Merely because parents of deceased Surendra did not travel in the vehicle, the stand that the vehicle was given as a gesture of friendship for use gratuitously cannot be disbelieved. Merely because the owner of the vehicle did not ask for cost of fuel, that does not necessarily lead to a conclusion that the vehicle was used for hire or reward. Interestingly, insurer of the trekker had not taken a plea in its written statement that the vehicle was used for hire or reward. Even no evidence to that effect was led by it during adjudication. The onus squarely lies on the insurer to establish that there was breach of a specified condition of the policy. In order to successfully disclaim its liability the insurer will have to establish that (1) on the date of contract of insurance, thevehicle in question was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, (2) there was a specified condition in the policy which excluded use of the vehicle in question for carriage of any passenger for hire or reward, and (3) vehicle in question was in fact used in breach of such specified condition on the occasion giving rise to claims by reason of carriage of passenger therein for hire or reward. If aforesaid facts are established by the insurer the benefit of statutory insurance will not be available in respect of such passenger. The Tribunal therefore, clearly erred in coming to a presumptuous conclusion that vehicle was used on hire or reward. In that view of the matter, the insurer is liable to indemnify the awards.
7. Coming to the quantum awarded in each case, the following details are relevant:--
(i) In M. A. No. 47 of 1991 husband and minor children of deceased Kamala Mohapatra had claimed compensation of Rupees 60,000/-. It was stated that she was preparing waist chain and earning Rs. 500/- to Rs. 600/- per month. Tribunal found that another claim petition has been filed in respect of the said deceased where it has been stated that the deceased was engaged in milk business and was getting Rs. 300/- per month. Taking all these aspects into consideration, award of Rs. 25,000/- does not appear to be unreasonable and is maintained.
(ii) In M. A. No. 48 of 1991 Uttama Dei has lodged claim of Rs. 50,000/- for injuries sustained by her. She claimed to be engaged in milk business. The Tribunal awarded Rs. 15,000/- towards compensation. It found that the claimant was admitted into Surgical Ward on 27-11-1985 and was discharged on 30-11-1985. She had sustained fracture of right arm. Considering nature of injury, and disability which has been assessed at 30%, the award does not appear to be unreasonable, and is accordingly maintained.
(iii) In M.A. No. 49 of 1991 husband of Malia Jena had lodged a claim of Rs. 50,000/ -. Her age was 34 years and it was claimed that she was earning Rs. 400/- per month frombusiness. Her husband was 50 years old and eldest son was accepted to be about 21 years old at the relevant time. The other claimants were minor children. No details of milk business was placed before the Tribunal. Award of Rs. 40,000/- for loss of life and affection is definitely on the higher side. Though there can be no definite yardstick for assessing such compensation, yet award should not be vague, unreasonable and detached from realities of life. The award is reduced to Rs. 20,000/-.
(iv) In M. A. No. 50 of 1991 claimant has been awarded Rs. 3,000/- for sustaining minor injury. Considering the small quantum involved, I do not find any justification for interference.
(v) In M. A. No. 51 of 199.1 claimant Narayan Jena had claimed compensation of Rs. 50,000/- for injuries sustained by him. From the evidence on record, it appears that claimant was admitted into Surgical Ward on 27-11-1985 and was referred to the eye department on 30-11-1985 and 9-12-1985. He had sustained minor injury on the right eye and major injury on the left eye. There is no vision of the said eye and the eye-lid has been deformed. Considering nature of injury a sum of Rs. 30,000/- as awarded by the Tribunal does not appear to be unreasonable and is maintained.
(vi) In M. A. No. 52 of 1991 claimant Sushila Dei has been awarded a sum of Rs. 3,000/- for injuries sustained by her. Considering the fact that she had complained of pain and head reeling and injury on the head, quantum does not need interference.
(vii) In M. A. No. 53 of 1991 parents of a girl aged about 13 years were claimants. In the claim petition it was stated that the deceased was earning Rs. 4/- to Rs. 5/- per day. They claimed an amount of Rs. 50,000 / -. However, considering the age of deceased, an award of Rs. 15,000/- has been made. In acase of non-earning person, fixation of compensation is a delicate and difficult issue. Considering age of deceased, quantum awarded does not appear to be unreasonable and accordingly, the same is maintained.
(viii) In M. A. No. 54 of 1991 it was claimed that deceased Suresh Kumar Jena was earning Rs. 700/- per month from business. Interestingly, claimants had filed Misc. Case No. 430 of 1985, where it was stated that deceased was running a hotel. This miscellaneous case was withdrawn. The Tribunal has rightly concluded that the deceased was young and had no earning capacity. Considering the age of deceased and age of parents, award of Rs. 20,000/- does not appear to be unreasonable and is maintained.
The Tribunal has awarded interest @ 6% per annum but has to be stipulated default rate @ 12%. In view of the Division Bench decision of this Court in Oriental Insurance Co. Ltd. v. Harapriya Nayak, 1994 (1) OLR 88, stipulation of default rate cannot be maintained. Considering the fact that grant of interest is discretionary, I direct interest @ 9% per annum from the date of claim i.e. 17-5-1986 till realisation. In each case, 80% of the amount awarded along with interest, rounded to nearest hundred shall be kept in fixed deposit. The Tribunal shall accordingly fix up quantum of fixed deposit to be made which is to be made in any Nationalised Bank for a period of not less than five years. Claimants shall not be permitted to make any withdrawal of amount. In case any motion is made before the Tribunal indicating urgency, the Tribunal on being satisfied that withdrawal is necessary shall permit withdrawal of such amount from the fixed deposit as deemed just.
The miscellaneous appeals are disposed of accordingly.