1. M.A.Nos.208/2006, 218/2006 and M.A.No.948/2005 are being disposed of by this common order as all three appeals arise out of same accident.
2. The appellant/Oriental Insurance Company Limited is before us aggrieved and dissatisfied with the award dated 25th April, 2005 passed in Claim Case Nos.116/2004 and 118/2004 whereby and whereunder awards have been passed awarding compensation in favour of the claimants fastening liability of payment of compensation on the appellant/Oriental Insurance Company Limited. Appellants in M.A.No.948/2005 are the claimants in Claim Case No.118/2004 seeking enhancement in the amount of compensation award by the 2nd Additional Motor Accident Claims Tribunal, Raigarh.
3. Facts of the case in brief are as under:
(i) The accident took place on 7-6-2002 when deceased Vijay Kumar Agrawal and Suresh shah along with other deceased/injured persons were travelling in Truck bearing registration No.C.G.13/ZC/0322 (Old No.M.B.L.6296). Indisputably, it was a goods vehicle. First Information report was lodged in relation thereto wherein the driver of the vehicle was made an accused.
(ii) Separate Claim Petitions were filed by the heirs and legal representatives of deceased Suresh Shah and Vijay Kumar Agrawal before the 2nd Additional motor Accident Claims Tribunal, Raigarh.
4. The learned Tribunal, on a close scrutiny of the evidence led, held: the driver of the truck responsible for the accident; the Oriental Insurance Company Limited liable for payment of compensation to the claimants as deceased Suresh Shah and Vijay Kumar Agrawal were sitting in the said truck in their capacity as owners of the goods; award Rs.1,32,000/- along with interest at 9% per annum from the date of application till its actual payment to the heirs and legal representatives of the deceased-Vijay Kumar Agrawal.
5. Shri Abhishek Sinha, learned counsel appearing for Oriental Insurance Company Limited would submit; the learned Tribunal has failed to appreciate the fact that number of persons were travelling in a goods carrying vehicle apparently as passengers and not in their capacity as owners of the goods and thus has erred in fastening liability of payment of compensation upon the Oriental Insurance Company Limited.
6. On the other hand, Shri Goutam Bhaduri, learned counsel appearing for the appellants/claimants in M.A.No.948/2005 while supporting the award so far as the learned Tribunal has fastened the liability of payment of compensation upon the Oriental Insurance Company Limited, would submit: the learned Tribunal has erred in assessing the income of the deceased as Rs.15,000/- ignoring the evidence adduced in the case and in awarding low amount of compensation.
7. Shri K.N. Nande, learned counsel appearing for owner and driver supported the award and submitted that in the facts and circumstances of the case, the amount awarded by the learned Tribunal is just and reasonable and also the Oriental Insurance Company Limited has rightly been held liable for payment of compensation.
8. We have heard learned counsel for the parties and perused the records of the Tribunal including award impugned.
9. The appellants/claimants in M.A.No.948/2005 are parents and major brother of deceased Vijay Kumar Agrawal. The father and major brother of the deceased Vijay Kumar Agrawal were certainly not dependents on him.
10. True, the claimants pleaded: deceased used to earn Rs.4000/- per month but failed to prove the same by leading clinching and cogent evidence therefor, as such, we do not find any infirmity in the approach of the learned Tribunal in discarding the claimant’s pleading regarding income of the deceased. Moreover, if we take the income of the deceased as Rs.2000/- per month and Rs.24,000/- per annum instead of Rs.15,000/- per annum as assessed by the learned Tribunal, it will not affect the ultimate result. The claimants are parents and major brother, therefore, after deducting 50% of it towards person and living expenses of the deceased and by applying multiplier of 10, in view of the decision of the Supreme Court in case of Municipal Corporation of Greater Bombay v. Laxman Iyer and another (2003) 8 SCC 731 : (AIR 2003 SC 4182) wherein it has been held that in those cases where the claimants are parents of the deceased, multiplier should never exceed 10, the overall compensation works out to Rs.1,20,000/-. If we add a further amount of Rs.10,000/- on other heads, the amount of compensation comes to Rs.1,30,000/- only whereas the learned Tribunal had already awarded Rs.1,32,000/-. Therefore, we do not find any force in the appeal preferred by the claimants seeking enhancement in the amount of compensation awarded by the Tribunal.
11. The main controversy in these appeals, therefore, centers around the fact: whether the persons travelling in the truck were gratuitous passengers or sitting in the truck in their capacity as owner of the goods being carried in the truck, in terms Sections 147(1)(b)(i) of the Motor Vehicles Act (for short ‘the Act’).
12. A bare perusal of final report (Ex.A-2) would show deceased Vijay Kumar Agrawal and Suresh Shah along with other deceased/injured persons were travelling in the truck in question as gratuitous passengers and not in their capacity as owners of the goods being carried in the vehicle. Indisputably, it was nobody’s case that deceased Vijay Kumar Agrawal and Suresh Shah were sitting in the Cabin of the Truck as owners of the goods being carried in the Truck.
13. As per the statement of Gyan Prakash (A.W.2) in Claim Case No.118/2004, 12 to 15 persons were travelling in the truck at the time of accident and were going from Rengali (Orissa) to Raigarh (Chhattisgarh). The seizure of goods said to be carried in the vehicle by the deceased persons was also not effected by the police. The Act does not contemplate that a goods carriage shall carry a large number of persons with a small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative. Further, the owner of the goods means only the person who travels in the cabin of the vehicle and travelling with the goods itself does not entitle anyone to protection under Section 147 of the Act.
14. The Supreme Court in the case of National Insurance Co. Ltd. v. Cholleti Bhratamma and others, (2008) 1 SCC 423 : (AIR 2008 SC 484), held as under:
“8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative.
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19.) It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle.
20. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs.20 as transport charges. It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle any one to protection under Section 147 of the Motor Vehicles Act.”
15. By applying the law laid down by the Supreme Court in the case referred herein above, we have no hesitation to hold that deceased Vijay Kumar Agrawal and Suresh Shah were travelling in truck as gratuitous passengers and not as owners of the goods being carried in the truck.
16. In view of the various pronouncements of Hon’ble Apex Court, it is now settled: statutory liability of the insurance policy cannot be extended to cover the risk of gratuitous passengers sitting in the goods carriage vehicle.
17. In view of the above, in our considered opinion, the learned Tribunal went wrong in fastening the liability of payment of compensation upon the appellant/Oriental Insurance Company Limited and the above finding deserves to be set aside.
18. For the reasons aforementioned, M.A.No.948/2005 for enhancement of compensation is dismissed. M.A.Nos.208/2006 and 218/2006 filed by the appellant/Oriental Insurance Company Limited are allowed. The awards are set aside to the extent learned Tribunal has fastened the liability of payment of compensation upon the appellant/Oriental Insurance Company Limited. The award is modified to above extent. Rest of the conditions of the award shall remain intact. However, it is directed that in case during the pendency of these appeals, if any amount has been deposited by the appellant/Oriental Insurance Company Limited and disbursed to the claimants, then the appellant/Oriental Insurance Company Limited shall be entitled to recover the same from the owner of the vehicle by filing execution petition before the concerned Tribunal. The Claimants are entitled to execute the award against the owner of the vehicle.
19. In the facts and circumstances, there shall be no order as to costs.