Judgment:
K.C. Agrawal, C.J.
1. This appeal under Section 110D of the Motor Vehicles Act (hereinafter referred to as 'the Act') has been preferred against the award of the Motor Accidents Claims Tribunal (hereinafter referred to as the 'Tribunal') dated 12.1.1987 rejecting the application of the appellants made under Section 110-A of the Act.
2. The appellants moved a claim petition before the Tribunal claiming Rs. 3,00,000/-as compensation on account of the death of Ladu Ram. According to the appellants, the deceased Ladu Ram was working as palledar. At about 3.30 p.m. on 27th June, 1983, while he was going in tractor No. 2988 for loading and unloading sarson bags, to Laxmi Oil Mills, suddenly he fell down from the tractor on account of its rash and negligent driving by Ram Chandra, the driver. The tractor passed through his body as a result of which his spleen was ruptured and he died on the spot. Along with the deceased, two or three other palledars were also sitting in the tractor.
3. A claim petition for Rs. 3,00,000/- for compensation was filed by Chhoti, widow and Sushila, daughter of the deceased. Apart from these two appellants, seven others were the mother and brothers of the deceased. The amount of compensation, as claimed in the petition, was as under:
For Sushila, daughter of the deceased:
Rs. 54,000/- at the rate of Rs. 250/- per month,
Rs. 16,000/- for her studies,
Rs. 30,000/- for her marriage.
For Chhoti, widow of the deceased:
Rs. 50,000/- for maintenance.
For Gulab, mother of the deceased:
Rs. 25,000/- for maintenance.
For maintenance of other appellants- brothers of the deceased: Rs. 1,25,000/-.
4. The claim petition was contested by the respondent Nos. 1 to 4 by means of a written statement as well as by the United India Insurance Co. Ltd. by another. The respondent Nos. 1 to 4 denied that the accident occurred due to the rash driving of the tractor by its driver Ram Chandra. They claimed that Ladu Ram was not in their employment and he climbed in the tractor despite the fact that he was not permitted by its driver, namely, Ram Chandra. According to the respondent Nos. 1 to 4, he was himself responsible for his death and no claim was maintainable against them.
5. The United India Insurance Co. Ltd. alleged amongst others that Ram Chandra, who was driving the tractor, did not have any licence, hence the insurance company was not liable to pay damages.
6. In all, five issues were framed by the Tribunal. Out of these five issues, issue No. 1 was whether Ladu Ram died in the accident as a result of a fall from the aforesaid tractor, which occurred due to its rash and negligent driving by Ram Chandra, the driver. In order to prove the claim, Mahboob Khan, who was also travelling by the same tractor by which the accident took place, was examined. He stated that Ram Chandra was taking the tractor from Krishi Utpadan Mandi to Laxmi Oil Mills and that he was driving the tractor at a very high speed. On account of the high speed of the tractor, Ladu Ram lost control over himself and fell down from it as a result of which he sustained serious injuries resulting in his death. The deceased Ladu Ram was examined by Dr. V.D. Sharma, who stated in his statement that the kidney and the gall-bladder of the deceased were completely ruptured due to the tractor's passing over his body. On behalf of the respondent Nos. 1 to 4, Jagram and Badri were examined as witnesses. They denied that the tractor was being driven at a high speed and that Ladu Ram fell down from the same due to having lost balance of his body because of its movements. The Tribunal held that the deceased Ladu Ram was not crushed in the manner in which the claimants alleged but as he was trying to climb on the running tractor despite protest of the driver, Ram Chandra, he came under its wheels resulting in his death.
7. Having heard learned Counsel for the parties and after going through the statements of the witnesses, I am unable to uphold the judgment of the Tribunal holding that Ladu Ram was not crushed by falling down from the tractor which was being driven rashly by the driver Ram Chandra. The Tribunal incorrectly attached more than necessary importance to the speed and held that the accident could not have occurred on account of high speed at which the tractor is alleged to have been driven. The speed is not the conclusive factor to determine negligence or carelessness of a driver of the vehicle. Speed may be slow or high but if the accident occurred because of the negligent and careless driving of the vehicle, the responsibility of the same would still be on its driver and the owner of the vehicle will be liable under the vicarious liability. Mahboob Khan is consistent in his statement and he denied that Ladu Ram climbed on the tractor despite protest by its driver. This was not denied that Ladu Ram was a palledar and he used to work on the tractor of the respondent Nos. 1 to 4 for loading and unloading purposes. When Mahboob Khan and other palledars were sitting in the tractor, it is reasonable to believe that Ladu Ram was also sitting with them, but unfortunately he came under the wheels of the tractor as a result of his falling down. It cannot be believed that the deceased received injuries while he was standing on the road and not by falling down from the tractor. The two witnesses produced by the respondent Nos. 1 to 4 did not have the occasion of witnessing the accident and, therefore, their statements cannot be believed. So far as the statement of Ram Chandra, driver, is concerned in order to save himself from the consequences of the accident, it appears that he did not give the correct version. His statement does not inspire confidence. Even if the statement of Ram Chandra is believed to be correct, that the accident occurred while deceased was standing on the road, the deceased could not receive such injuries as have been proved by Dr. V.D. Sharma.
8. For what I have said above, I find that Ladu Ram actually fell from the tractor on account of its rash and negligent driving resulting in his death and the respondent Nos. 1 to 4 cannot escape from the liability on the ground pleaded by them.
9. The contention raised on behalf of the insurance company was that Ladu Ram was a trespasser and as such, there was no liability of the insurance company for making any payment of compensation to his dependants. I have already disbelieved this theory. The deceased was one of the palledars going on the tractor for loading and unloading of goods which were kept thereon under the direction of respondent Nos. 1 to 4. The insurance policy was the contract between the insured on the one hand and the insurer on the other. Any breach of the conditions of the insurance policy affects the right of the parties and that it does not have any impact upon the rights of the third party, the liability towards whom was insured with insurer. Consequently, I am not prepared to accept the plea of the insurance company that it was not liable to pay compensation on account of the contravention of the policy. This will not affect the rights of the claimants to claim compensation. Hon'ble Supreme Court had to consider such problem in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC). In that case it was held that:
Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. We are of the opinion that once the company had undertaken liability to their parties incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy.
In the aforesaid case as well, as in the present case, the deceased who died in the accident was not the employee of the insured but he was an employee of the person whose goods were carried in the insured vehicle in pursuance of the contract of employment with the owner of the goods carried in the vehicle. In the instant case, the deceased was since working for respondent Nos. 1 to 4, these respondents as well as respondent No. 5 would not be entitled to escape from the liability. The deceased would be deemed to have been working on the vehicle in pursuance of the contract of employment with the owner of the vehicle. The deceased being such a person, any injury caused to him would also be covered by Section 95 of the Act. The deceased was travelling in the vehicle with the permission of the driver, who was the agent of the owner of the vehicle, in the course of employment and under the contract of employment.
10. Next comes the question of determination of compensation. Claim petition under Section 110-A of the Act was filed not only by the wife and daughter of the deceased but also by several others, who claim themselves to be the brothers and mother of the deceased. Nothing has been brought on record to establish as to how the others, other than the wife and daughter of the deceased, were entitled to receive compensation. The claim of each dependant has to be an individual one and damages have to be assessed according to loss to each. The wife and the daughter of the deceased are entitled to damages to the extent that each of them was worse off as a result of the death but so far as others were concerned, they were not entitled to get any compensation inasmuch as the benefit in respect of which damages are payable must be one which the dependants expected to enjoy as a result of their blood relationship with the deceased. Except the wife and the daughter, nothing could be established from record to establish the entitlement of other appellants. Therefore, I have come to the conclusion that only Chhoti, the wife and Sushila, the daughter of the deceased, are entitled to receive compensation. These two are arrayed as appellant Nos. 8 and 9 in the appeal. Hence the appeal preferred by appellant Nos. 1 to 7 fails and is liable to be dismissed.
11. So far as the income of the deceased is concerned, the accident occurred in the year 1983. At that time, the version of the appellants that he was earning Rs. 1,000/-per month by doing the job of palledar is too good to be believed. Considering all facts and circumstances of the case, I hold the income of the deceased when the accident took place as Rs. 350/- per month. Out of this amount, he must have been spending Rs. 100/- on himself. Thus, the family was getting Rs. 250/- per month while he was alive. Applying the formula Rs. 250 x 12 x 20, it comes out to Rs. 60,000/-. On this amount, the appellant Nos. 8 and 9 are entitled to get interest from the date of the petition filed under Section 110-A of the Act before the Tribunal.
12. In the result, the appeal filed by appellant Nos. 1 to 7 is dismissed. Appeal of appellant Nos. 8 and 9, namely, Chhoti and Sushila, is partly allowed. They would be entitled to get Rs. 60,000/- as compensation along with interest at the rate of 12 per cent per annum from the date of the petition filed under Section 110-A of the Act before the Tribunal. The parties shall bear their own costs.