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Judgment
R.K. Gupta, J.—The default pointed out by the office for payment of fresh process fee on behalf of Respondent Nos. 1 to 7 with regard to correct and present address be ignored.
In these appeals the dispute involved is similar and, therefore, they are heard analogously.
M.A. No. 3041/2009 is an appeal by the Insurance Company challenging the impugned award wherein the Insurance Company is held responsible to indemnify the claim of compensation.M.A. No. 5616/2008, is the appeal preferred by the claimants for the enhancement of the amount of compensation.
The facts in the present case are that the claim application by Respondent No. 1 was filed alleging that on 28.1.2006 her husband namely; Mohd. Ravi Khan was travelling in a truck which was belonging to Respondent No. 8 and was driven by Respondent No. 7 rashly and negligently as a result of which the vehicle bearing registration No. MP37-G-0201 dashed with a tree and the deceased succumbed to the injuries.
The claimant appeared before the Motor Accidents Claims Tribunal (in short, "the Tribunal") and submitted that the deceased had gone to the market to purchase vegetables and while returning home he boarded the offending truck by paying a fare of Rs. 10/- to the driver. This submission was supported by witnesses Gangaram and Sakina Bi (P.W.2). Thus, it is clear that deceased Mohd. Ravi Khan was a passenger in a goods vehicle, Mahendra pick-up van, and he travelled in it by paying a fare of Rs. 10/-. The story is also supported by Surendra Singh Joshi (P.W. 4). None of the witnesses examined by the claimants has stated that deceased Mohd. Ravi Khan travelled in the said goods vehicle for the safety of his good and the truck was hired.
The Apex Court in National insurance Co. Ltd. v. Asha Rani 2003 (2) SCC 223 has held that a passenger is also entitled to the compensation in case of death or injury received due to the accident. It has been further held that the insurance company would be entitled to pay the compensation only if it is proved before the Tribunal that the passenger was travelling along with the goods for the purposes of its safety and protection.
It is not the case of claimants that deceased Mohd. Ravi Khan was sitting in the vehicle for the safety of his goods. He was only a passenger. There is nothing on record to show that he was in possession of the goods and was boarded along with the same.
In view of the law laid down by the Apex Court in Asha Rani (Supra), I am of the view that the Tribunal has committed an illegality in holding the insurance company liable to indemnify the claim of compensation. However, the judgment and decree passed in favour of the claimants and against the owner and driver of the vehicle is affirmed. The Tribunal has awarded Rs. 3,91,000/- under all heads. The Insurance Company is discharged of its liability to pay compensation, however, if the amount has been received by the claimants, the Insurance Company shall be entitled to recover the same from the owner.
In view of the aforesaid, the appeal preferred by the Insurance Company is allowed.
So far as the appeal for enhancement of award is concerned, it is submitted that in the present case the Tribunal wrongly applied the multiplier. The notional income calculated at the rate of Rs. 3000/- is not an adequate income which has been assessed by the Tribunal.
It is to be seen that the date of accident is 28.1.2006. No proof of notional income has been submitted. The Tribunal has taken into account that the deceased was selling vegetables and in the absence of any evidence, the Tribunal arrived at a conclusion that Rs. 3000/- would be the notional income of deceased and on that basis ratio of 2:3 has been applied by the Tribunal. In the present case, there has been dependency. The Tribunal has deducted � part of the claim amount and the remaining has been treated as dependency. In view of the aforesaid, I do not find any substance.
Accordingly, the appeal for enhancement of amount is dismissed.