D. Raju, C.J.
1. The above appeals arise out of one and the same accident, which occurred at 8.00 p.m. on 31.1.87 involving truck No. HPS 7357 in which the respective victims were said to have been travelling and, therefore, are taken up for consideration together. The respondents are also one and the same and that is how the learned counsel appearing on either side came to make common submissions. It will be useful to give certain facts, which are common for both the cases.
2. So for as F.A.O. No. 46 of 1991 is concerned, the same has been filed by the National Insurance Co. Ltd. against the award made by Motor Accidents Claims Tribunal, Shimla on 3.12.1990 in Case No. 57-S/2 of 1987 on a claim petition filed under Section 110-A of the Motor Vehicles Act, 1939 by son and a daughter both majors and a minor son of late Mohan Lal, whereunder the Tribunal below awarded a total sum of Rs. 91,400 in favour of the claimants and against the insurance company, with a further direction that all the claimants will share the amount equally. The case of the claimants-respondents herein before the Tribunal below is that the truck in question involved in the accident was owned by respondent Nos. 1 to 6 in the claim petition, that when the accident occurred at Meenus Dhank on Paonta Road in Chopal, deceased Mohan Lal, who was working as munshi with respondent Nos. 1 to 6 before the Tribunal below and was entrusted with the vehicle in question to manage the business affairs travelling in the vehicle, rolled down from the Dhank, noticed above, on account of the rash and negligent driving of the driver and as a consequence whereof the said Mohan Lal died. It was also stated that the driver of the truck was carrying food grains, etc., which were being transported and the deceased was entrusted with the articles, which were so loaded in the above truck to deliver them safe at its destination. It was the case of the claimants that the deceased was earning Rs. 1,500 as wages, besides earning to the tune of Rs. 800 per month from agricultural work. On that basis they claimed a sum of Rs. 3,00,000 as compensation on account of the untimely death of Mohan Lal. At the time of filing of the claim petition, the respondent late Jatinder Chauhan, the husband of the respondent No. 1 and the father of the other respondents was alive. The respondent was said to have admitted in his reply that the deceased Mohan Lal was working as munshi and that his income was shown only as Rs. 1,200 and, therefore, the claim was exaggerated and excessive. The vehicle was said to have been insured with the appellant insurance company. The insurance company also appears to have filed a reply taking an objection that the deceased was neither covered under the policy of the insurance in question nor required to be covered under the Motor Vehicles Act and, therefore, they are not liable to pay the compensation. It was also alleged by the insurance company that unauthorised passengers while travelling illegally in the truck, which is not meant for carrying passengers are not covered under the policy of the insurance, in view of section 95 of the Motor Vehicles Act and that at any rate the claim is highly exaggerated and excessive. The Tribunal below after considering the materials on record held that the accident occurred on account of the negligence of the driver and fixed the liability for compensation ultimately awarded against the insurance company. The Tribunal below also held that the deceased Mohan Lal was not only employed as munshi under the owner of the truck but he was deputed by the owner for delivering the goods to its destination and so long as the deceased was on the insured vehicle by reason of or in pursuance of his contract of employment, the insurance company cannot escape its liability to pay the compensation to the claimants. In assessing the quantum of compensation, the Tribunal below accepted the evidence let in on the side of the respondents to arrive at the conclusion that the monthly income of the deceased was Rs. 1,200 and that the loss suffered by the claimants on account of the death of the deceased was to the tune of Rs. 600 per month and applying a multiplier of 12, keeping in view the age of the deceased, the compensation was arrived at Rs. 86,400 and adding to the same a sum of Rs. 5,000 towards compensation for love and affection and towards conventional charges, the total amount to be awarded was arrived at Rs. 91,400. Aggrieved, the insurance company has filed the above appeal.
3. So far as F.A.O. No. 7 of 1992 is concerned, the claimants are the widow, minor children of late Bhim Singh, father, brother and minor sister. Late Bhim Singh was said to be the Secretary of Chandna Dhar Multipurposes Co-operative Society, Tehsil Chopal, who was also said to be travelling in the truck coming from Nerva to Randikibhir having been said to have been deputed to accompany the goods belonging to the Society loaded in the truck in his capacity as the Secretary. The claimants in this case also asserted that the truck was driven in a rash and negligent manner by the driver named Chandu Ram resulting in the accident on account of the same having rolled down into a gorge about 1000 feet down from the road head. The respondents before the Tribunal below in this case are also the same as in the other case except they had different number of array of parties. It is claimed that all the occupants, namely, Bhim Singh said to be accompanying the goods, the driver Chandu Ram and all other occupants died on the spot and the goods like levy sugar, wheat, rapeseed oil, palm oil, flour and controlled rate cloth, etc., of the Society were said to have been destroyed. Since the owner of the vehicle expired as in the other case during the proceedings, his legal representatives were brought on record in addition to the appellant insurance company, which was also impleaded as a party respondent before the Tribunal below. The respondent No. 1 owner, who was alive when the case was filed appears to have resisted the petition by a blanket and plain denial of the claims made. So far as the insurance company is concerned, they not only challenged the maintainability of the claim but also contended that late Bhim Singh was an unauthorised passenger in the truck and as such the petitioners are not entitled to claim compensation due to his death involving the vehicle, in which he was travelling. This claim petition, which was filed by the legal representatives of late Bhim Singh as M.A.C. No. 4-S/2 of 1988 was tried by the Motor Accidents Claims Tribunal (I), Shimla and was accordingly decided by the said Tribunal awarding a compensation of Rs. 1,50,000. The Tribunal below apart from fixing the responsibility for the accident on the driver and the liability on the respondents came to the conclusion that the total gross earning of the deceased can be fixed at Rs. 1,000 per month from all the sources and arrived at annual loss of dependency at Rs. 4,800 (Rs. 400 per month x 12). Applying a multiplier of 20, the total amount of loss was fixed at Rs. 96,000. In addition thereto, loss of a living being was fixed at Rs. 50,000 and Rs. 3,000 towards the expenses for the post-death ceremonies and Rs. 1,000 as litigation cost and thus making a grand total of Rs. 1,50,000. This compensation awarded was apportioned among the claimants at Rs. 40,000 to the widow, Rs. 20,000 each to the children of the deceased and Rs. 10,000 each to the father, brother and minor sister. It was held that the insurance company will pay the amount to the claimants. For arriving at such a conclusion, the Tribunal below also overruled the objection of the insurance company and came to the conclusion that late Bhim Singh being the Secretary of the Society was not an unauthorised passenger but shall be deemed to be a passenger for reward and pecuniary benefit to the owner of the truck. It was also observed that he was not separable from the goods he had booked for the owner for further safe, sure and certain transportation without impairing the mercantile value of the goods to its destination and that he had a legal right also to accompany the goods. Aggrieved, the insurance company has filed the above appeal.
4. Mr. Ravi Bakshi, learned counsel appearing for the appellant insurance company in both the appeals vehemently contended by placing strong reliance on the decision in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), that the legal representatives of deceased Mohan Lal and Bhim Singh could not be held to be entitled to any compensation as claimed by them from the insurance company. So far as Mohan Lal was concerned, it was contended that though he was a munshi with the owner of the truck, he cannot be said to be either a driver or cleaner or a labourer and, therefore, was not supposed to be with the truck for delivering the goods to its destination and the same being not a part of his duty during the course of his employment as munshi and consequently his case will not be covered under the insurance policy. Reliance has also been placed on section 95 (1) proviso (i) while asserting that Explanation (2) has no applicability to the facts of the case. It was also contended that the quantum of compensation was also on the higher side. So far as the claim on account of the death of late Bhim Singh is concerned, it was contended that the Tribunal below wrongly applied the relevant provisions of law and that inasmuch as there are no averments in the claim petition that the deceased was travelling in the truck during the course of his employment, the same could not have been countenanced. The claim relating to a passenger who was travelling in a goods vehicle is said to be not covered by the policy in view of the several decisions of various High Courts apart from challenging the quantum of compensation of the award of Rs. 50,000 under the head of loss of a living being of the family was said to be illegal and liable to be set aside.
5. Mr. Bimal Gupta, learned counsel for the owners of the vehicle in question contended that no exception could be taken to the award fixing liability for the compensation upon the insurance company on the view that the claims in question arising out of the death of the persons by name Mohan Lal and Bhim Singh are covered under the insurance policy and that, therefore, there are no merits in the appeals. Argued the learned counsel further that the reasons assigned by the Tribunal below are well merited and in tune with the various decisions of the several High Courts and, therefore, they do not call for any interference in our hands.
6. Mr. R.S. Jamalta, learned counsel for the claimants in F.A.O. No. 46 of 1991 also reiterated the same stand by drawing inspiration from the reasoning of the Tribunals below as contained in the awards.
7. Ms. Sunita Sharma, learned counsel appearing for the claimants in F.A.O. No. 7 of 1992 also adopted the submissions of the other learned counsel for the respondents in opposing the claim on behalf of the appellant insurance company.
8. We have carefully considered the submissions of the learned counsel appearing on either side. A volume of case law has been cited before us by the learned counsel appearing on either side and it will be useful as also necessary to refer to some of them before dealing with the respective contentions of the learned counsel appearing on either side in both the appeals.
9. In Vanguard Insurance Co. Ltd. v. Chinnamal 1969 ACJ 226 (Madras), a learned single Judge of the Madras High Court (Alagiriswami, J.), as the learned Judge then was, held that though on a superficial view of Section 95, it might appear that the words 'contract of employment' found in Section 95 of the Motor Vehicles Act would cover only a contract of employment with the owner of the insured vehicle, there was a preponderance of authority in favour of the other view that it could cover also such persons who are on the vehicle in pursuance of a contract of employment with the owner of the goods carried and what is necessary is that for sufficient practical or business reasons, the person must be the person on the vehicle in pursuance of a contract of employment and so long he is such a person, any injury caused to him would be covered by the section.
10. In Commonwealth Assurance Co. Ltd. v. V.P. Rahim Khan Sahib 1971 ACJ 295 (Madras), yet another single Judge of the Madras High Court has held that in case of passengers carried in a goods vehicle an insurance company is liable to pay compensation only in respect of death or injury to such passengers who are carried in the vehicle by reason of or in pursuance of a contract of employment and that an owner of goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any such contract.
11. In G. Dhyanand v. Zaamni Bi 1982 ACJ 399 (Madras), a Division Bench of the Madras High Court held that in case of death of a passenger due to accident, who was found to be an owner of the goods carried in the vehicle transporting the goods, the insurance company is not liable to pay the compensation arising out of his death but that the claim is maintainable against the owner and the driver. In coming to such a conclusion, the decision of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), was followed by the learned Judges.
12. In M. Kandaswamy Pillai v. Chinnaswamy 1985 ACJ 232 (Madras), yet another Division Bench of the Madras High Court while dealing with a case of the deceased and injured in that case who boarded the lorry midway along with their goods and the lorry met with an accident due to the negligence of lorry driver, held that the policy of insurance and the Act did not cover such passengers.
13. In Santra Bai v. Prahlad 1985 ACJ 762 (Rajasthan), a Full Bench of the Rajasthan High Court (Jaipur Bench) had an occasion to consider the question as to the liability of the insurance company in respect of the death or injury caused to persons travelling in the goods vehicle with or without goods either as owner of the goods or as his representatives or either under the contract of employment with the owner of the vehicle or otherwise. After an elaborate and exhaustive analysis of the relevant provisions as also the case law on the subject, it was held as follows:
(i) in case of gratuitous passengers going on joy-ride or on his own responsibility, insurance company is not liable;
(ii) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable. This would include owner of the goods as well as his employees;
(iii) the insurer shall not be liable to cover liability in respect of employee of the insured in respect of the death of or bodily injury, to any such employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 if such employee is (a) engaged in driving such vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or (c) if it is a goods vehicle being carried in the vehicle;
(iv) the insurer shall not be liable to cover any contractual liability.
It is necessary to notice at this stage that their Lordships of the Apex Court in the decision in Mallawwa's case 1999 ACJ 1 (SC), were pleased to differ from this decision of the Full Bench of the Rajasthan High Court and preferred to approve the one rendered by the Full Bench of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa). It is but appropriate and necessary that this decision which had the approval of their Lordships be noticed at this stage.
14. In New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), while undertaking an exhaustive analysis and consideration of the relevant provisions of the Act as also the case-law on the subject, it was held, while dealing with the liability of the insurance company in relation to persons travelling in a goods vehicle that the insurance company is not liable for the death or injury suffered by persons carried in a goods vehicle for hire or reward and that Section 95 (1) (b) proviso (ii) did not apply to a person carried in a goods vehicle for hire or reward and the same is only restricted to passengers carried in a public service vehicle. G.B. Patnaik, J., as the learned Judge then was, who delivered a separate but concurring opinion observed that if proviso (ii) to Section 95 (1) (b) is examined, the conclusion is irresistible that unless a vehicle is a vehicle meant for carrying passengers for hire or reward or the said vehicle, by reason of or in pursuance of contract of employment, is required to cover the liability in respect of death of or bodily injury to persons being carried in or upon, the insurer will not be liable to pay the compensation and that the owner of the goods who has hired a goods vehicle does not become a person travelling on the vehicle in pursuance of a contract of employment and even if he is carrying his goods after hiring the vehicle, the vehicle does not become a vehicle meant for carrying passengers for hire or reward and, therefore, such person would not come within the proviso (ii) to Section 95 (1) (b). It has been emphasised by the learned Judge that to come under the first part of Section 95 (1) (b), proviso (ii), the vehicle in question must be the vehicle which is meant for carrying passengers for hire or reward and consequently a goods vehicle will not come within the said provision. Their Lordships of the Apex Court in the decision in Mallawwa's case 1999 ACJ 1 (SC), have approved the decision of the said Full Bench of the Orissa High Court quoting with approval the opinion recorded by Hansaria, J., as his Lordship then was, with particular reference to paras 18, 19, 22 and 23 of the said judgment.
15. It is also necessary at this stage to refer to the decision of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), which decision has been re-affirmed also in the latest decision in Mallawwa 's case 1999 ACJ 1 (SC). The decision in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (supra), dealt with the scope of Section 95 (1) (b) (i) and it was observed therein that it is not required that a policy of insurance should cover the risk to the passengers, who are not carried for hire or reward. While dealing with the powers of the Claims Tribunal to award compensation under Section 110-B of the Motor Vehicles Act, 1939, it was also observed therein that, for the master's liability to arise, the test is whether the act was done on the owner's business or that it was proved to have been impliedly authorised by the owner, the law being well settled that the master is vicariously liable for the acts of his servants acting in the course of his employment and consequently unless the act is done in the course of employment, the servant's act does not make the employer liable. Adverting to the trend in law to make the master liable for acts which do not strictly fall within the term 'in the course of the employment' as ordinarily understood, it was observed that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is with the owner's consent driving the car on the owner's business or for the owner's purposes. It was also observed that in the absence of any evidence to the contrary it was reasonable to conclude that the right to give leave to the deceased to ride in the car was within the ostensible authority of the Manager of the company; who was driving the car and that the Manager was acting in the course of his employment in giving leave to the deceased and as such the company was liable by applying the ratio laid down in the earlier decision in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 ACJ 89 (SC).
16. In National Insurance Co. Ltd. v. Philomina Mathew 1993 ACJ 1166 (Kerala), a Full Bench of the Kerala High Court held that the employees of the vehicle owner such as cleaner have to be covered under the Act policy by virtue of the second part of second proviso to Section 95 (1) (b) and they can be treated as 'passengers' in the employer's vehicle if, as an incident of their contract of service with the vehicle owner, they are entitled to travel in the vehicle. While elaborating and construing the words 'by reason of or in pursuance of their contract of employment', Jagannadha Rao, C.J., as his Lordship then was, who spoke for the Full Bench after a meticulous and careful analysis of the relevant provisions of the Act and also the case-law noticed therein held that those words are wider than the words 'arising out of and that though the words 'arising out of may require an obligation on the part of the workman to travel in the owner's vehicle, but the words 'by reason of or in pursuance of their contract of employment' being wider do not require any such obligation and it is sufficient if the workman was entitled to travel or if such travel was an incident of his service, and consequently he will be a passenger within the meaning of the said provision. If such an employee is killed or injured, the insurer was held liable to indemnify the vehicle owner if the accident occurs on account of any negligence on the part of the vehicle owner or his servants or if there is breach of any statutory duty on the part of the vehicle owner. In construing the words 'vehicle in which passengers are carried by reason of or in pursuance of a contract of employment' as contained in the second proviso to Section 95 (1) (b), it was held that they include not only the employee of a hirer of the goods vehicle travelling as passengers in the said vehicle, but that the said words also include employee of the vehicle owner and the fact that some employees of the owner may fall within the first proviso to Section 95 (1) (b) did not really make any difference in this regard. It must also be pointed out that this decision no doubt was rendered in the context of an accident relating to a passenger vehicle.
17. A learned single Judge of this court in the decision in New India Assurance Co. Ltd. v. Shukri 1991 ACJ 897 (HP), while rejecting the appeal filed before this court against an award of compensation observed that when the deceased, from the evidence on record has been established to be a person deployed by the owner of the goods and carried on the vehicle, such employee of the owner of the goods would be covered by the insurance policy.
18. A learned single Judge of the Punjab and Haryana High Court also in the decision in Sushil Kumar v. National Insurance Co. Ltd. 1988 ACJ 52 (P&H;), held that the expression 'contract of employment' in Section 95 of the Act refers to not only a contract of employment with the insured, but also to a contract of employment of a person, who is on the insured vehicle for sufficient or business reasons and has taken a contract of employment in pursuance of which he was on the vehicle.
19. The decision in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), dealt with the case of liability of an insurer in relation to the death of the owner of goods carried in the goods vehicle. It was observed therein by their Lordships of the Apex Court as hereunder:
(10) For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers are carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95 (1) (b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The High Courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at the Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other.
In doing so, their Lordships have quoted with approval the decision of Full Bench of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), particularly, the opinion rendered by Hansaria, J., as his Lordship then was. It was also emphasised therein that though the Full Bench of the Orissa High Court had rendered its opinion after taking into consideration the Orissa Motor Vehicles Rules, even otherwise the position would be so and that the contra views expressed by the other High Courts have to be regarded as incorrect.
20. The need at this stage arise for considering the claim of the insurance company on merits in the light of the principles laid down in various decisions relied upon by the learned counsel appearing for either of the parties. So far as F.A.O. No. 46 of 1991 filed by the insurance company is concerned, it pertains to the claims made by the legal representatives/dependants of late Mohan Lal, who had been as a fact specifically found by the Tribunal below to be the employee of the owner of the truck at the relevant point of time when the accident occurred. This factual finding is found to have been recorded by the Tribunal below on the basis of the overwhelming materials made available on record including the oral evidence of the brother of the erstwhile owner of the truck, and that nothing tangible or concrete has been pointed out either from the oral or documentary evidence on record, which would go to either undermine the said finding or oblige us to disturb the said factual finding arrived at by the Tribunal below. If that be the position, it is obvious that the insurance policy would cover such a person, like Mohan Lal, an employee of the owner of the truck, who appears to have been managing the business of the owner of the truck and who is said to have accompanied the goods by travelling in the vehicle to ensure their safe delivery having regard to the fact that they are controlled articles, the safe delivery of which would equally be the responsibility of the owner of the truck, who has been entrusted with the task of transporting and carrying of the goods to be delivered safely at its destination, being an employee of the owner of the truck and who had every justification and right to be in the vehicle for a legitimate and proper purpose too. The insurance company cannot legitimately contend that the claim arising out of the death of such a person cannot be said to have been either covered or need to be covered by the insurance policy envisaged under the Act. It may also be pointed out that nothing serious or worth credence has been pointed out or even argued to discredit the quantum of compensation and, therefore, there was no need or occasion to interfere with the same. Consequently, the appeal filed by the insurance company in F.A.O. No. 46 of 1991 fails and shall stand dismissed. No costs.
21. So far as Cross-objection No. 3 of 1992 is concerned, it may be stated that the same has not been seriously pursued on merits before us and we do not find also any justifying reason to interfere with the quantum already fixed by the Tribunal below, which seems to be a reasonable one. Hence, the Cross-objection in this appeal (F.A.O. No. 46 of 1991) shall also stand dismissed.
22. So far as the appeal in F.A.O. No. 7 of 1992 filed by the insurance company is concerned, there is no controversy over the factual position that Bhim Singh, whose heirs/legal representatives were the claimants in the petition for compensation in respect of which this appeal has been filed, was the Secretary of the cooperative society concerned, whose goods were being transported in the truck at the relevant point of time when the accident occurred. It was also the case of the claimants themselves, as could be seen from the materials on record, that he was said to have been deputed to accompany with the goods belonging to the Society in question, loaded in the truck, in his capacity as the Secretary of the society, to which the goods belonged. Even the position of a Secretary of a cooperative society of the nature seems to answer the description of both an 'officer' or an 'employee' of the society. Therefore, vis-a-vis, the goods which were being transported in the ill-fated truck, at best he can claim himself to be only an employee of the society, which owned the goods. Though as could be seen from the various decisions, noticed by us and relied upon for either of the parties, in some of the decisions, some of the High Courts have chosen to take the view, including the Madras High Court, that there was no necessity to confine the meaning of the words, 'contract of employment' found in Section 95 of the 1939 Act, only to such of the persons, who had a contract of employment with the owner of the insured vehicle and that it can also cover the persons who are on vehicles in pursuance of a contract of employment with the owner of the goods carried, such view could no longer be held to be a correct one after the declaration of law made by their Lordships of the Supreme Court in the decision in Mallawwa's case 1999 ACJ 1 (SC). As indicated by us in the earlier part of the decision, their Lordships have dealt with the varying views taken by different courts and while approving the view taken by the Full Bench of the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), they have quoted with approval para 23 of the judgment rendered by Hansaria, J., as his Lordship then was, who spoke for the Full Bench in the High Court, which may also be usefully quoted at this stage:
(23) There is another aspect of the matter which had led us to differ from the Full Bench decision of Rajasthan High Court. The same is what finds place in Sub-section (2) of Section 95. That Sub-section specifies the limit of liability and Clause (a) deals with goods vehicle; and insofar as the person travelling in goods vehicle is concerned, it has confined liability to the employee only. This is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, Clause (a) would have provided a limit of liability regarding such person also.
23. In view of the above and the seal of approval accorded to the said decision of the Full Bench of the Orissa High Court, wherein it has been stated that the legislature did not have in mind the carrying of either the hirer of the vehicle or his employee in the goods vehicle, and the said binding declaration of law by their Lordships of the Apex Court, the claim arising out of the death of Bhim Singh, former Secretary of the Chandna Dhar Multi-purposes Co-op. Society cannot be said to be properly either covered or required to be covered under the insurance policy envisaged under the Act. Therefore, the view taken by the Tribunal below that he would be covered under the insurance policy and that thereby the appellant insurance company will be liable for compensation awarded on account of his death is unsustainable in law. Even on the facts, admittedly recorded by the Tribunal below, the order of the Tribunal below to this extent, would stand rejected and in view of the conclusion arrived at by us that the insurance company will not be and cannot be made liable, it becomes the liability of the owner of the truck and as such the legal representatives of the erstwhile owner of the truck, who are party respondents before us as also before the Tribunal below, alone will be liable for the compensation awarded and there shall be a decree against them, accordingly for the sum awarded in favour of the claimants, who are the heirs/legal representatives of late Bhim Singh. The appeal filed by the insurance company in F.A.O. No. 7 of 1992 shall stand allowed and the insurance company would be entitled to restitution of the amount, if any, paid by it to the claimants and it is for the claimants to recover the same from the owner of the vehicle at the time of accident and from his heirs and legal representatives.
24. So far as Cross-objection No. 312 of 1992 filed by the claimants, who are wife and children of late Bhim Singh is concerned, we find no merit whatsoever, in the same. It is just a mere reiteration of the claims made before the Tribunal below apparently to counteract and counterbalance the appeal filed. The Tribunal below has rejected the claim about the so-called extent of earning of commission from out of the sale of ration articles belonging to the Society by the deceased and also the further claim projected, vis-a-vis, his performance as a P.W.D. contractor. As rightly pointed out, in the absence of any positive proof about the quantum in respect of commission said to have been earned by the deceased from out of the sale of ration articles, keeping in view the nature of the society activities, the inference drawn by the Tribunal below, which had the benefit of appreciating the materials on record, no exception could be taken to the quantum of such monthly commission earned by him. As for the claim, vis-a-vis, his role as a P.W.D. contractor, the Tribunal below was right in holding that there was no material, whatsoever, produced to show either the volume of work he has undertaken or executed or the amounts earned either in the form of contracts executed by him or in the form of any income-tax returns. From the mere fact that he was a registered contractor, in the absence of any proof, whatsoever, of any work done or the earnings made in this respect, no exception could be taken to the findings recorded in this regard also. As for the grievance that the multiplier of 20 is too low, it need only to be stated that in the light of the law declared by the Apex Court, there is no scope for applying any different or higher multiplier than the one adopted and though the multiplier itself is on the maximum side but keeping in view the total compensation awarded, we do not find any material worth for interference with the multiplier adopted by the Tribunal below. The amount awarded towards 'loss of living being', though cannot be justified on any principle as such, yet having regard to the total compensation awarded which does not seem to be on the higher or exorbitant side, the same is allowed to stand without interference in our hands. As for the grievance that the share apportioned to the minor son Guddu, who was said to have died and the absence of any provision relating to the share apportioned to him, we are of the view that the same may be apportioned equally in favour of the other minor children and the compensation awarded to the minor children accordingly may be revised and stand enhanced by an equal distribution of Rs. 20,000 among the other minor children of the deceased Bhim Singh. To this extent only, the cross-objection is allowed to rectify the mistake and in other respects shall stand dismissed.
Interim orders in both the appeals are vacated.