R.C. Patnaik, J.
1. Thirty to forty passengers boarded a mini truck bearing registration No. OSG 494 on 29.1.1983 at Kodala bus-stand on payment of fare. The owner was also present in the vehicle. It met with an accident by hitting a milestone and rolling down the road and toppling. That resulted in death of four persons and injuries to others. Eleven applications were filed before the Motor Accidents Claims Tribunal under Section 110-A of the Motor Vehicles Act claiming compensation for the rashness and negligence of the driver in driving the vehicle. The insurer was impleaded as a party. MJC Nos. 81, 92 and 94 of 1983 related to death of persons and the rest for injuries. In MJC No. 94 of 1983 compensation was claimed for death of wife aged 30 years and daughter aged 1. In MJC No. 81 of 1983, son aged 20 years had died, the mother was the claimant and in MJC No. 92 of 1983, mother had died, son was the claimant. On the materials placed before the Tribunal, it held that the accident was due to rashness and negligence of the driver. But, in the absence of any material for the purpose of computing compensation, in each of the death cases it awarded a sum of Rs. 15,000/- as compensation. In all injury cases except in MJC No. 88 of 1983, it awarded a compensation of Rs. 2,000/-, but in MJC No. 88 of 1983 it awarded a compensation of Rs. 3,000/-. The insurance company has preferred this appeal against the decision of the Tribunal challenging its liability when the persons injured and the persons who met their death were passengers taken on hire on the ground that it had no liability for the passengers taken on hire in a goods vehicle having regard to the provisions contained in the Motor Vehicles Act and in the absence of a permit, it would be contrary to the contract under which it had taken a liability and carriage of passengers was contrary to rules without a permit granted authorising the goods vehicle to carry passengers on hire. Four cross-objections have been filed, i.e., in Misc. Appeal Nos. 228, 232,234 and 235 of 1985. Those relate to three injury cases (M.A. Nos. 228,232 and 235 of 1985) and a death case (M.A. No. 234 of 1985). It has been urged in the injury cases that the amount of compensation was very low whereas in the death case it has been urged that the compensation of Rs. 15,000/- for the death of wife aged 30 years and daughter aged 1 was grossly low and the Tribunal was in error in insisting on two applications for the death of the mother and the daughter.
2. The counsel for the appellant has referred to a large number of decisions, but it is unnecessary for me to refer to them all as many of them have been considered by a Division Bench of Andhra Pradesh High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. M. Bhanumathi 1990 ACJ 1043 (AP), where it has been held that having regard to the provisions contained in Rule 227 of the Andhra Pradesh Motor Vehicles Rules, in the absence of a permit authorising carriage of passengers on hire, the insurance company is not liable for the death of or bodily injury to passengers carried on hire in a goods vehicle.
3. Rule 95 of the Orissa Motor Vehicles Rules, 1940 while authorising carriage of some person like the employee of the owner or the hirer on the seat next to the driver and authorising the Regional Transport Authority to specify the conditions subject to which a larger number of persons than six could be carried in the vehicle, states in Clause (e) as follows:
95 (e). Nothing contained in this rule shall be deemed to authorise the carriage of any person for hire or reward on any vehicle.
and Rule 95-A authorises the State Government notwithstanding anything contained in Rule 95 to allow a goods vehicle in special case to carry such number of persons not exceeding the number reckoned by dividing the floor area of the vehicle in square decimetres by forty-six. Hence, having regard to the provisions contained in Rule 95 (e), carriage of any person for hire or reward in goods vehicle is expressly prohibited unless authorised by the State Government under Rule 95-A.
4. The learned Counsel for the claimants relied on the decisions in the cases of Bai Dahiben v. Jesingbhai Bijalbhtai 1984 ACJ 150 (Gujarat), Oriental Fire & Genl. Ins. Co. Ltd. v. Yusuf Musa Chandki 1986 ACJ 500 (Gujarat) and Badri Narain v. Chotu Ram 1986 ACJ 1062 (Rajasthan). I with respect do not agree with the view expressed in Bai Dahiben's case (supra) that unless the insurance company failed to prove that on the date of the contract the vehicle insured was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, it was liable to bear the liability of the insured. The burden of proof is on the insured. Whether a vehicle had a permit or authorisation would be known to the owner. It cannot be expected of the insurance company to secure the said document. The primary liability is of the owner. If he wants to pass that on to the insurer, it is his obligation to produce the permit. Having regard to the provisions contained in Rules 95(e) and 95-A, I with respect cannot accept the view expressed in Badri Narain's case (supra) wherein it has been held:.the legislature has not put any restriction regarding the use of any particular class of vehicle and the term is only 'vehicle'. No insurer is permitted by law to wriggle out of the statutory liability by putting any adverse condition in its policy.
This view is also distinguishable having regard to the provisions contained in the Orissa Rules, referred to above. For the reasons I differ from the view expressed in Bai Dahiben's case (supra). I also differ from the view expressed by the Division Bench in Oriental Fire & Genl. Ins. Co. Ltd.'s case (supra) where the burden was cast on the insurer to bring on record the necessary permit by which it could have been shown that the goods vehicle in question was not permitted to carry in it any passengers.
5. The owner who contested the matter did not produce any authorisation from the State Government. Admittedly, the passengers were carried on hire and, therefore, there was violation of Rule 95(e). Hence, the insurance company is not liable. The liability shall be borne by the owner.
6. Having regard to the paucity of evidence, the Tribunal awarded a nominal amount in each of the three injury cases. No exception can be taken to the determination made by it. I would not, therefore, interfere with the orders.
7. As regards Misc. Appeal No. 234 of 1985, the claimant lost his wife and daughter. The amount of Rs. 15,000/- awarded appears to be grossly low. His wife was aged 30 years. He lost consortium, assistance and help, her care and service. He would have also suffered mental agony and pain both for the loss of his wife and for the loss of his daughter. I would accordingly enhance the compensation awarded from Rs. 15.000A to Rs. 40,000/- (Rs. 35,000/- for the death of the wife and Rs. 5,000/- for the death of the daughter). I do not agree with the finding of the Tribunal that on a single application the claimant could not claim compensation for the death of his wife and daughter. Hence, while I accept the appeals in M.A. Nos. 225 to 233 and 235 of 1985 filed by the insurance company that it was not liable and in the facts and circumstances the liability is to be borne by the owner and dismiss the cross-objections filed in M.A. Nos. 228, 232 and 235 of 1985, I allow the cross-objection filed in M.A. No. 234 of 1985 in part and enhance the compensation from Rs. 15,000/- to Rs. 40,000/-, as aforesaid. The amount of compensation awarded shall carry the same rate of interest as directed by the Tribunal.
There would be no order as to costs.