Manak Mohta, J.
1. These five misc. appeals alongwith cross- objection in Appeal No. 107/97 have arisen out of a single accident, for which, Claim Cases Nos. 178/94, 191/94, 168/94 and 13/95 were preferred by the respective parties before the Judge, Motor Accident Claims Tribunal, Dungarpur who vide his judgment and award dated 16.9.1996 decided the claim petitions. Since, in all these appeals, common questions of law and facts are involved, therefore, the same are being heard together and disposed of by this common judgment.
2. Briefly stated the facts of the case are that a Claim Petition No. 178/94 was moved by Smt. Anita Jain w/o Shri Virendra Jain (deceased), Claim Petition No. 191/94 was filed by Smt. Kamla Bai w/o Shri Ratan Lal (deceased), Claim Petition No. 168/94 was filed by Smt. Tara (injured) and Claim Petition No. 13/95 was filed by Nathu (father of deceased Raman) wherein it was stated that on 18.4.1994, Smt. Tara, Shanker, Virendra, Ratanlal and Raman were travelling in a Jeep bearing No. RJK 1193, which was being driven by Lokendra Singh rashly and negligently at high speed, consequently, the jeep driver has lost his control whereby the jeep fell down in the river, as a result of which, the occupants travelling in jeep have received grievous injuries on their persons and due to severe injuries, the occupants Virendra, Ratanlal and Raman died and others got injured.
3. With reference to Claim Case No. 178/1994, it was stated that at the time of accident, the deceased Virendra was 30 years old and he was earning Rs. 14.400A per year from M/s. Minerva Stones and Rs. 14,400/- per year from M/s. Mayur Marbles where he was doing the job of Manager in both the Firms. The claimants are widow, minor children and mother of the deceased. It was stated that they were dependent on the income of the deceased. Due to untimely death, they suffered a heavy loss of dependency. They claimed Rs. 19,50,000/- by way of compensation under different heads.
4. With reference to Claim Case No. 191/1994, it was stated that the deceased Ratanlal aged 40/45 years, was running a Tea Stall/Canteen wherefrom he was earning Rs. 1300/- per month. Besides this, he used to sit on the water-hut and was earning Rs. 300/- per month, which was being paid by the Bar Association, Sagwara. It was further stated that he was earning Rs. 500/- per month by doing 'Pooja Path' (prayer to God). The claimants are widow and children of the deceased. They were dependent on the income of the deceased. They claimed Rs. 14,30,000/- as compensation under different heads.
5. With reference to Claim Case No. 13/1995, they deceased Raman, at the time of accident, was 25 years old and he was earning Rs. 2000/- per month by way of serving in hotel. It was further stated that he was having 18 Bighas of agriculture land from which he was earning Rs. 3000/- per month. The claimants are old father and mother of the deceased. They were dependent upon the income of the deceased. They claimed Rs. 16,50,000/- as compensation under different heads.
6. With reference to Claim Case No. 168/1994, it was stated that Smt. Tara was travelling in the said jeep alongwith her two daughters. Due to accident she got serious injuries on her neck and other parts of the body. Her age was 28 years at the time of accident and she alleged that she became disabled upto 50% permanently and due to that she became unable to perform work as usual. She claimed Rs. 9,56,000/- as compensation under different heads.
7. It was stated in the claim petitions that at the time of accident the owner of the Jeep was Badri Lal and the said jeep was insured with the United India Insurance Company Ltd. It was alleged in the claim petitions that the accident took place due to rash and negligent driving of the jeep, therefore, the non- claimants are responsible for the payment of compensation.
8. In reply filed by Non-claimants No. 1 and 2, it was stated that the accident did not occur due to negligence of the driver of the jeep. Thus, the answering respondents are not liable to pay compensation.
9. In other reply filed by the Insurance Company, it was stated that the vehicle was insured with the insurer for a period of one year for the purpose of Third Party Liabilities. The deceased and the injured were passengers in the jeep. They were not insured and it was alleged that the jeep was carrying passengers. That was violation of the terms and conditions of the policy. Thus, the Insurance Company is not responsible to pay compensation. The other averments made in the claim petitions were denied for want of knowledge. It was prayed that the claim petitions may be rejected.
10. The learned Tribunal consolidated the claim cases as they arose out of one accident and on the basis of the pleadings of the parties, the following common issues were framed:
1- vk;k iz'uxr okgu la[;k vkj- ts- ts- 1193 ds pkyd foi{kh la[;k ,d ds }kjk fnukad 18-4-1994 dks xzke HkhywMk esa mDr okgu dks mis{kk@mrkoysiu ls pykdj dh xbZnq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i ohjsUnz] jruyky o je.k dh e`R;q gqbZ o 'ks'k izkFkhZx.k ds pksVsa vkbZ
2- vk;k foi{kh la[;k 3 chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkifRr;ksa ,oa fo'ks'k dFku ds en~nsutj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gSa ugha rks bldk izHkko
3- vk;k nkosnkj vius nkos@nkoksa eds vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; leer jkf'k ik ldrs gSa gka rks dkSu&DkSu; nkosnkj fdruh&fdruh; jkf'k] fdl fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gSa
11. During trail of claim cases, from the claimants' side, AW 1 Smt. Anita Jain, AW 2 Smt. Kamla Bai, AW 3 Nathu, AW 4 Smt. Tara, AW 5 Lokendra Singh and AW 6 Shanker were examined and certain documents were exhibited. From the side of non-claimants, no oral or documentary evidence was produced.
12. After hearing of the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of the jeep and decided vide a common judgment and awarded compensation of Rs. 1,59,500/- in Claim Case No. 178/1994, Rs. 1,15,000/-in Claim Case No. 191/1994, Rs. 1,00,000/-in Claim Case No. 13/1995 and Rs. 45,000/- in Claim Case No. 168/1994.
13. Being aggrieved by the said award, the Insurance Company non-claimant appellants have preferred the present Appeal No. 105/1997, 106/1997, 107/1997 and 108/1997 and claimants Smt. Anita and others have also filed cross Appeal No. 629/1996 for enhancement of compensation amount before this Court. During pendency of Civil Misc. Appeal No. 107/1997, claimant Smt. Tara (injured) also filed a cross-objection which was registered as Cross-objection No. 3 of 2001 praying therein that the awarded compensation amount may be reconsidered and enhanced on the point of permanent disability caused to her in the accident.
14. I have heard learned counsel for the parties and carefully perused the records of the individual case.
15. During the course of arguments, the learned Counsel appearing on behalf of the Insurance Company-appellant submitted that the learned Tribunal has not properly considered and appreciated the evidence in right perspective and gave erroneous findings on the issues and, therefore, the judgment and awards are not sustainable, deserve to be quashed and set aside.
16. The learned Counsel further submitted that the vehicle was carrying passengers and they were not insured. The learned Counsel draw my attention towards the statements of the witnesses from claimants' side AW 4 Smt. Tara and AW 6 Shanker, wherein, AW 6 Shanker has admitted that after paying the charges, the passengers were allowed to sit in the jeep. It was also contended that by carrying the passengers in the private vehicle, the owner has violated the terms and conditions of the policy. Thus, the Insurance Company was not responsible to pay any compensation. It was also urged that the vehicle was insured only for Third Party Risk. He draw my attention towards the Insurance Policy of the Jeep Exhibit 8 filed by the claimants' side in this respect and again submitted that the learned Tribunal has not properly dealt with this issue and wrongly held the Insurance Company responsible for the payment of compensation. The learned Counsel for the appellant placed reliance on (1) Virju and Ors. v. United India Insurance Co. Ltd. and Ors. 2005 (2) RLW 1296 (Raj.), (2) United India Insurance Co. Ltd. v. Gian Chand and Ors. : AIR1997SC3824 , (3) National Insurance Co. Ltd. v. V. Chinnamma and Ors. 2004(III) ACC (SC) 1 and United Insurance Co. Ltd. v. Tilak Singh and Ors. : AIR2006SC1576 .
17. On the above submission, it was prayed that the judgment and award against the Insurance Company are liable to be quashed and they may be set aside and the appeals may be allowed.
18. On the other hand, the learned Counsel for the claimant- respondents refuted the contentions and supported the findings given by the learned Tribunal. It was further contended that the allegation of the Insurance Company that the deceased and injured sat in the vehicle, after giving fare was not proved. AW 4 Smt. Tara has denied the suggestion given to her that she has paid any fare and AW 5 Lokendra Singh driver of the vehicle has denied and stated that the vehicle was not running as Taxi and no fare from any passenger was taken. In the light of these statements, the statement of AW 6 Shanker is having no effect. It was further submitted by the learned Counsel for the respondents that no oral or documentary evidence has been produced by the non-claimants' side. The appellants have admitted in their written statement that the vehicle was insured but violation of any terms and conditions of the policy, have not been proved. The learned Tribunal has rightly made them responsible for the payments. In these circumstances, the cited authorities do not help their contentions. It was urged that the appellants of the Insurance Company may be disallowed.
19. The learned Counsel for the respondents also placed contentions with regard to the cross appeal (Claim Case No. 178/1994) filed by Smt. Anita and others. It was submitted that the learned Tribunal has awarded lesser amount of Rs. 1,59,000/-as compensation in case of the death of Virendra Jain. It was urged that the deceased was 28 years old and he was earning Rs. 2400/- per month and used to send Rs. 2000/-per month to the claimants. The claimants are widow and others, who were fully dependent on the income of the deceased. The age and income of the deceased have been proved by the reliable evidence but the learned Tribunal has not properly assessed the loss of dependency and awarded a lump sum amount of Rs. 1,50,000/-as compensation that is not reasonable and under the other heads, a meagre amount of Rs. 9,500/- was awarded. It was urged that the awarded amount is not adequate and that requires modification and re-consideration. In this regard, the learned Counsel has placed reliance on (1) Saushnuma Begum and Ors. v. New India Assurance Co. Ltd. and Anr. 2001 (1) ACC (SC) 151, (2) Pandian Roadways Corporation Ltd. v. Shankarammal and Ors. , (3) Smt. Bilasini Mondal v. National Insurance Company Limited and Ors. 2003 (III) ACC (DB) 137) and (4) Ashok Kumar and Ors. v. Arvind Kumar and Ors. 2004 (II) ACC (DB) 154 (5) Smt. Kalli @ Kalyani and Ors. v. Indra Raj Bairwa and Ors. 2004 WLC (Raj.) 789 (UC) and (6) Vibha Seth and Ors. v. Jai Kishan Tiwari and Ors. . It was prayed that reasonable compensation may be determined and awarded. The cross appeal may be allowed.
20. The learned Counsel for the claimant-respondent Smt. Tara (injured) also raised contentions with regard to the cross- objections and submitted that due to injuries sustained in the accident, she remained hospitalized for long time. Her husband also remained on leave to look after her. It was also stated that from her side, Exhibit P/120 Disability Certificate issued by the Head of Department (Orthopaedics), M.G. Hospital, Banswara has been placed on record. Due to injuries, her working capacity has been reduced by 50%, therefore, she can not discharge her day to day work as she was discharging prior to the accident. It was further stated that the claimant being a lady, it became more difficult to work without aid of the others for .that she has to engage helper. It was urged that the learned Tribunal has not given due weightage to her statement and documents submitted by her and awarded a meagre amount of compensation, that requires modification and that may be enhanced and cross objection may be allowed.
21. The learned Counsel for the Insurance Company refuted the contentions with regard to enhancement of compensation and urged that the learned Tribunal has already awarded appropriate compensation looking to the facts of the claims and it was prayed that there is no further scope for enhancement, the cross- objection and cross-appeal may be disallowed.
22. I have considered the rival contentions placed by the learned Counsel for the parties and have perused the findings and conclusion drawn thereon by the learned Tribunal.
23. The learned Tribunal while deciding issue No. 1 held that the accident has occurred due to rash and negligent driving of the offending jeep by its driver Lokendra Singh resulting in causing death of Virendra Jain, Ratanlal and Raman and causing injuries to Smt. Tara, the concerned persons of present claim cases. I have seen the findings. AW 4 Smt. Tara and AW 6 Shanker are among the persons who were traveling in the same jeep and they have deposed that the concerned jeep was driven rashly and negligently at high speed and due to that, the jeep fell down and caused accident. AW 5 Lokendra Singh, driver of the jeep has also stated that he lost the control over the jeep and the jeep fell down. It is also revealed from the record that report of this accident was made to the concerned police station, the police also inspected site and made investigation. After completion of the investigation, the police has also filed a challan against the driver AW 5 Lokendra Singh for the offence of rash and negligent driving and causing death and injuries in competent Court. This, the findings on Issue No. 1 is correct and that is to be maintained.
24. The main question for consideration in the appeals filed by the Insurance Company is that whether in the facts and circumstances of the case, the Insurance Company can be held liable for the payments of compensation amount on account of that the concerned jeep was insured with them during that period. The learned Tribunal while deciding Issue No. 2 in this respect came to the conclusion that the allegations made by the Insurance Company that the jeep was carrying passengers after taking fare from them, has not been proved. Further no evidence has been led by the Insurance Company to prove their stand. Thus, concluded issue No. 2 against the Insurance Company and made responsible for the payments of the awarded amounts. From perusal of the record, it is revealed that the persons involved in the accident, all were travelling in the same jeep, out of that Virendra Jain, Ratan Lal and Raman died due to injuries sustained by them and respectively Claim Cases No. 178/1994, 191/1994 and 13/1995 have been filed in their respect. Smt. Tara was also travelling in the same jeep. She also sustained injuries during the said accident, thus, she has also filed a Claim Case No. 168/1994 in the learned Tribunal.
25. The contentions placed by the learned Counsel appearing on behalf of Insurance Company is that the concerned jeep was insured with the Insurance Company for Third Party Risk. The passengers or occupants travelling in the jeep were not insured. The Insurance Company has not received any premium from the owner of the jeep in this respect. The contention is supported by Insurance Policy (Exhibit 8) of the jeep available on record. It is evident from perusal of the Insurance Policy that the concerned jeep was insured with the appellant under the nature 'Act Only' policy and no extra premium was given. The owner of the jeep has also not stated in his written statement that extra premium was paid for the coverage of risk of other person, who were travelling in the jeep. He has not appeared in evidence before the learned Tribunal.
26. The learned Tribunal merely on the basis that the factum of taking fare by the persons including deceased persons and injured has not been proved, decided issue against Insurance Company and held their responsibility for the payment but the learned Tribunal has not properly considered the contention of Insurance Company and have not properly considered the material on record. Insurance policy of jeep (Exhibit 8) was on record and was placed by the claimants side and in that policy, no extra premium to cover the risk of occupants has been received. The nature of policy is with regard to private vehicle and premium for TPPD that is Third Party Property Damages for that Rs. 50/- has been collected, Before the learned Tribunal, the owner of the vehicle has not been able to prove that under the said policy of jeep, Insurance Company was responsible to pay compensation in case of death of injury sustained by any passenger or occupant sitting in the jeep at the time of accident. In the case of Vargu and Ors. v. United India Insurance Company and Ors. 2005(2) RLW 1296 (Raj.), (supra) cited by the learned Counsel for the appellant, Hon'ble Division Bench of this Court in the similarly situated fact after a detailed discussion, held that the insurance is not liable to indemnify the owner of the vehicle in respect of liability arising on account of death or bodily injury to occupant of the vehicle in case the vehicle is covered under the 'Act only' policy. In that case also Padma Ram, Chaina Ram and Hanu Ram were travelling in jonga jeep No. RSF 8247 and in accident, Padma Ram and Chaina Ram died and Hanu Ram suffered injuries. In their respective claim cases the learned Tribunal awarded compensation and held Insurance Company liable but in appeal filed by the Insurance Company. They were not held responsible. Against that the owner of jeep filed appeal before the Division Bench and the Division Bench while holding that in 'Act only' policy, the Insurance Company cannot be made responsible however order of payment of compensation to Insurance Company was given and that made Insurance Company entitled to recover the same in execution proceedings in the same claim case. The relevant portion of the order is reproduced below:
Consequently, the appeal filed by the claimants Varju is allowed in part by holding that the insurer is not liable to indemnify the owner of the vehicle in respect of the liability arising on account of death or bodily injury to the occupant of the vehicle in question as the same was not covered under the 'Act only' policy. However, in terms of the directions issued in Baljeet Kaur's case, the Insurance Company shall satisfy the awarded amount in favour of the claimants, if not already satisfied, arid recover the same from the owner of the vehicle. In case, the owner does not make the payment, it can be recovered by initiating proceedings before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Accidents Claims Tribunal and the issue was declared against the owner and in favour of the insurer.
27. The learned Counsel for the appellant cited one more recent authority of Apex Court, United India Insurance Company v. Tilak Singh and Ors. : AIR2006SC1576 (supra). In that authority, the Hon'ble Apex Court held that unless there was a specific coverage of risk pertaining to gratuitous passenger in the policy, the Insurance Company was not liable. The relevant portion of Para 21 of the aforesaid authority is reproduced below:.Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh, who was a pillion rider, as the insurance policy was a statutory policy, and hence, it did not cover the risk of death of or bodily injury to a gratuitous passenger.
28. Thus, on the above discussion, admittedly, in the present case, the insurance policy of the Jeep is also 'Act Only' policy and under that policy, the Insurance Company as such cannot be held responsible for indemnifying the owner's risk in case of person dead or bodily injured while occupying in the vehicle at the time of accident. Therefore, the finding of the learned Tribunal on Issue No. 2 is not sustainable and liable to be set aside. The Insurance Company cannot be held responsible, the contentions of the appellant-Insurance Company are acceptable and conclusion of the learned Tribunal holding responsible for the payment of compensation amount is liable to be set aside at the same time the Insurance Company can be directed to make payment of compensation with a right to recover the same amounts from the owner of the vehicle.
29. Now I have considered the contentions raised by the learned Counsel appearing for the appellant-claimant Anita and others in Cross Appeal No. 629/1996 in relation to Claim Case No. 178/1994 mainly it is contended that looking to the age and income of the deceased, learned Tribunal has not awarded reasonable and adequate amount of compensation. It was urged that the multiplier method has not been applied. From perusal of the record, it is revealed that the learned Tribunal has accepted the age of the deceased as 30 years at the time of the accident but the learned Tribunal, was not satisfied with the factum of income of the deceased. Thus, estimated lump-sum amount of Rs. 1,50,000/- as loss of dependency. In this respect AW-1 Anita has deposed that her husband used to send Rs. 2000/- per month to maintain the family. AW-1 Anita has stated that her husband was engaged with two marble firms and was getting of Rs. 2400/- per month. It is revealed from the evidence that he was a young person of 2H-30 years arid was maintaining a big family and there is no rebuttal from the other side. The learned Tribunal has awarded lump-sum amount of Rs. 1,50,000/- for the loss, of dependency, in my opinion, looking to the age and income of the deceased, it is not just and reasonable. The multiplier method has not been applied. Thus, it requires re-consideration looking to the evidence at least monthly income of the deceased is estimated Rs. 1500/- per month and out of that after deducting 1/3rd amount for his personal maintenance Rs. 1000/- can be estimated that he used to spend over his family and due to untimely death in accident, family member-claimants have suffered a loss of that income. Thus, taking the age of the deceased at the time of the accident 30 years, the minimum multiplier of 16 is suitable and thus loss of dependency comes to (Rs. 1000 x 12 x 16) = Rs. 1,92,000/-. Further, the learned Tribunal has awarded only Rs. 5000/- for loss of consortium and love and affection and Rs. 4,500/- for loss of further income and funeral expenses but looking to the age of widow and children, this amount is not reasonable, AW-1 Anita has stated that she was pregnant at the time of accident of her husband and one child was born after the death of her husband. Thus, Rs. 20,000/- is awarded in place of Rs. 5,000/- and other general damages Rs. 8,000/- in place of Rs. 4,500/- is enhanced. Thus, the total compensation is determined (Rs. 1,92,000 + 20,000 + 8,000) = Rs. 2,20,000/- in place of Rs. 1,59,500/- and it is held that the appellants are entitled to receive jointly and severally from the owner and driver of the vehicle.
30. I have considered the contentions raised by Smt. Tara with regard to the Cross Objection No. 3/2001. It is revealed from record that she has suffered injuries in accident and there is a report of fracture of post part of neck bone as per injury report Exhibit 31 and as per medical report, there was sub-luxasation of C2 over C3 with Neurological deficit; Hemi paresis of left upper and lower limb and for that she remained in hospital near about two months. Medical certificate (Exhibit 120) has been placed, in which partial permanent loss of efficiency has been recorded upto 35%. Further she stated that she cannot discharge her day-to-day work without the aid of others. Learned Tribunal, has awarded Rs. 6000/- for the injury sustained by her. Looking to the nature of injury, this amount is not reasonable and it requires reconsideration. She has also produced medical bills, receipt of attendant charges and other material for that, the learned Tribunal has awarded Rs. 8,500/-, 11,370/- and 6,000/- in lieu of leave taken by the husband, total Rs. 31,870/-and for general pain and suffering Rs. 13,130/- total Rs. 45,000/-. Looking to over-all material and compensation awarded by the learned Tribunal. It is on lesser side, thus it is reasonably enhanced from Rs. 45,000/- to 65,000/-. Thus, total amount of compensation is determined Rs. 65,000/- in place of Rs. 45,000/-, She is entitled to receive the same jointly and severally from the owner and driver of the vehicle jeep.
31. Thus, from the above discussion, the appellants filed by the Insurance Company deserve to be partly allowed and it is held that Insurance Company-appellant cannot be held responsible to pay compensation under the said policy and to this extent, the finding of the learned Tribunal is set aside. However, in the light of the directions given in the case of Vargu and Ors. v. United Insurance Company 2005(2) RLW 1296 Raj., (supra) the Insurance Company is directed to deposit total compensation amount including enhanced amounts alongwith interest after deducting the amounts paid by them within two months from this order in the learned Motor Accident Claims Tribunal, Dungarpur and claimants will be entitled to recover the same, failing which, it will be recoverable. Further, the Insurance Company will be entitled to recover in the same proceedings before the learned Tribunal from the owner of the vehicle Jeep No. RJK 1193.
32. The Appeal No. 629/1996 filed by the claimant-appellant Anita is partly allowed and the compensation amount is enhanced from Rs. 1,59,500/- to Rs. 2,20,000/- with a further direction that she will get interest @ 7.5% per annum on the enhanced amount of compensation Rs. 60,500/- from the date of filing of the Claim Petition No. 178/1994.
33. The cross-objection No. 3/2001 filed by Smt. Tara is partly allowed and compensation of Rs. 45,000/- awarded by the learned Tribunal, is modified and enhanced to Rs. 65,000/- with further direction that she will be entitled to recover interest @ 7.5% per annum on the enhanced amount i.e. Rs. 20,000/- from the date of filing of Claim Petition No. 168/1994. The compensation awarded in other claim cases are maintained.
34. In the result, the Appeals No. 105/1997, 106/1997, 107/1997, 108/1997, 629/1997 and Cross-Objection No. 3/2001 are partly allowed.
35. With the above direction and modification, rest of the judgment and awards of the learned Tribunal is maintained and confirmed. Costs made easy.