Rajesh and Others vs Bahadur and Others

S.S. Jha, J.—All the three appeals arise out of the same accident, therefore, they are decided by this common order.

Claims Tribunal held that the Insurance Company is not liable to indenmnify the insured. Counsel for the appellants submitted that these appeals are filed for enhancement of compensation and for the liability of the Insurance Company to indemnify the insured.

Facts of the case are that all the three deceased were travelling in the trailor of a tractor along with wheat bags. It is pleaded that each passenger had paid Rs. 5 per bag to the tractor driver, respondent No. 1 Bahadur. When they were returning from village Nithau to village Sujarama trolley of the tractor overturned at about 8.30 in the night on 22nd July, 1995 which resulted into the death of Munnidevi, Birbal on the spot and Ramprasad died in the hospital 7-8 days after the accident.

Claim petitions have been filed by the legal representatives of Ramprasad, Birbal and Munnidevi. In the evidence, witnesses have deposed that number of passengers were travelling in the trailor. Tractor was insured for agricultural purpose only. Passengers were fare-paying passengers and they have paid fare for travelling in the tractor and they were not carrying any goods with them. Eye- a witnesses have deposed that they had gone to attend a ceremony of "Bhat" and they were returning back to their village in the trolley of the tractor after payment of fare. In view of the aforesaid statement of witnesses, Claims Tribunal has held that since trailor is essential a goods carrier and the vehicle was a goods carrier, therefore, insurer is not liable to indemnify the insured.

Distinction is drawn by the Counsel for appellants that in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, , Apex Court while overruling the judgment in the case of New India Assurance Company Vs. Shri Satpal Singh and Others, . has held that the Insurance Company is not liable for payment of any compensation for the death of a gratuitous passenger travelling in a goods c vehicle. Asha Rani''s case (supra), question was about the cases prior to the amendment in the Motor Vehicles Act in the year 1994. In the case of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, it is held that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representatives remains the same. Although the owner of the goods or his authorised representatives would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated atthe time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. Same view has been reiterated by the Apex Court in the cases of National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, ; Sri Pramod Kumar Agrawal and Another Vs. Smt. Mushtari Begum and Others, and National Insurance Co. Ltd. Vs. V. Chinnamma and Others, . V. Chinnamma''s case (supra) relates to passengers travelling in trailor of the tractor and it is held that trailor of the tractor acquires the status of goods carriage.

From entire evidence on record, it is found that the deceased and other passengers were travelling in the trailor of the tractor and were returning after the ceremony of "Bhat" and they were not travelling with their goods. Therefore, the Insurance Company is not liable to indemnify the insured. Finding of the Claims Tribunal is affirmed.

As regards compensation is concerned, in Misc. Appeal No. 632/99, this appeal is filed by the sons, mother-in-law and father-in-law of deceased Munnidevi. Findingrecorded by the Claims Tribunal that the yearly income of the deceased was . Rs. 6,000 being a woman does not appear to be correct. Buddhiram has been examined as AW 1. He has deposed that deceased Munnidevi was earning Rs. 50 per day. There is no cross-examination about the income of the deceased. Therefore, in the circumstances of the case, there is no reason to disbelieve the evidence about the income of the deceased. Therefore, income of the deceased is determined at Rs. 50 per day. She must be getting work for about 25 days in a month. Therefore, her monthly income is determined at Rs. 1,250. Yearly income is determined at Rs. 15,000 and dependency of the claimants is determined at Rs. 10,000 per annum. Deceased was thirty years of age, therefore, multiplier of 17 will be applicable. On applying the multiplier of 17, compensation is determined at Rs. 1,70,000. Claimants will be further entitled for Rs. 30,000 towards damages under various heads such as funeral expenses, loss of estate, etc. and the compensation is determined at Rs. two lacs. Claimants will also be entitled for interest at the rate of six percent per annum on the enhanced amount of compensation from the date of filing of the appeal. Award is modified and it is also clarified that compensation will be payable to appellants 1 to 3 only and appellants 4 and 5 will not be entitled for compensation. Amount of compensation shall be kept in a fixed deposit in a Nationalised Bank which shall be payable to the appellants 1 to 3 only after appellant No. 3 Dilip attains majority.

In Misc. Appeal No. 634/99 deceased Birbal was only one year of age and the Claims Tribunal has awarded compensation of Rs. 62,000. Considering the evidence on record, we find no error in award ingthe compensation. This appeal has no merit and is dismissed.

In M.A. No. 635/99 filed by Rajesh and Ors. finding is recorded by the Claims Tribunal that income of the deceased was Rs. 1,250 per month and yearly income was Rs. 15,000. Dependency is determined at Rs. 10,000 per annum. Deceased Ramprasad was 35 years of age, therefore, the Claims Tribunal has committed an error in applying the multiplier of 12. Multiplier of 16 ought to have been applied and on applying the multiplier of 16, compensation is determined at Rs. 1,60,000 plus Rs. 10,000 awarded by the Claims Tribunal under various heads. Thus, compensation is enhanced to Rs. 1,70,000 (Rs. one lac seventy thousand). Claimants will also be entitled for interest on the enhanced amount of compensation from the date of filing of appeal. However, this compensation shall be payable to appellants 1 to 3 and 5 Shrimati Janka Devi jointly and severally and appellant No. 4 Budhiram will not be entitled to receive any compensation. Amount of compensation shall be kept in a fixed deposit in a Nationalised Bank and shall be payable to the claimants after appellant No. 3 Dilip attains majority.Claimants will be entitled for interest on the amount kept in the fixed deposit.

In the result, Misc. Appeal Nos. 632/99 and 635/99 succeed in part. Misc. Appeal No. 634/99 has no merit and is dismissed. There shall be no order as to costs.