Arunkumar Goel, J.
1. This appeal is filed by Manjit Singh-(hereinafter referred to as the 'Owner") against the award passed by Shri B.D. Sharraa, Motor Accidents Claims Tribunal-11, Sirmour district at Nahan in Claim Petition No, 16-N/2 of 1991. Respondents Rattan Singh and Jai Devi (hereinafter referred to as the 'Claimants') filed a claim petition against the owner Shamsher Ali (hereinafter referred to as the 'driver') and National Insurance Company (hereinafter referred to as the 'Insurer'), wherein compensation in the sum of Rs. one lakh was claimed on account of death of the daughter of the claimants Kumari Sunita. According to claimants on 20-10-1990 at 2.30 p.m. Kumari Sunita, deceased was travelling in a truck bearing registration No. HPN-1495 belonging to the owner and the said truck was being driven by the driver at the relevant point of time when it was insured with the Insurer. Further case of the claimants was that the deceased was a fare paying passenger in the truck and she paid Rs. 15/- to the driver. When the truck in question had reached near village Khajurna, it met with an accident after striking against a rock as a result of which Kumari Sunita sustained multiple injuries and breathed her last on the spot. Further plea of the claimants was that the truck was being driven in a rash and negligent manner by the driver which resulted in its overturning after striking with a rock and fell down beyond the road.
2. According to claimants, the deceased was earning Rs. 600/- per month by way of helping them in their household and agricultural work and she was their eldest child. As- such they were dependent upon her for their livelihood. The driver was proceeded against ex parte, whereas the owner and the insurer contested the claim of the claimants. So far the owner is concerned, his case was that the deceased was not a passenger having travelled in the truck in question and further no fare was charged by the driver from her. Not only this, he further went on to the extent of saying that the truck in question did not meet with the accident as alleged and while doing so, it was also pleaded that the truck was not being driven by the driver in a rash and negligent manner. So far the insurer is concerned, its plea was that the liability in respect of passengers in a goods carrier is not covered in terms of the Motor Vehicles Act as well as under the policy of insurance. It was further pleaded that no liability is attached to the insurer in such a situation because its liability is limited.
3. Claimants filed rejoinders to the replies of owner as well as insurer and the parties went to trial on the following issues:--
1. Whether the death of deceased Km. Sunita Devi was caused due to the rash and negligent driving on the part of respondent No. 1? ...OPP.
2. In case issue No. 1 is proved in affir-' mative to what amount of compenstion, the petitioners are entitled and from whom ?
3. Whether the respondent No. 3 is not liable to pay compensation to the petitioners as claimed in the additional pleas raised by it in its reply? ...O.P.R-3.
4. The Tribunal below' while holding that the accident was the result of rash and negligent driving on the part of the driver awarded a compensation of Rs.30,000/-together with interest at the rate of 12% per annum from the date of filing of the petition i.e. 19-8-1991 in favour of the claimants and against the owner -- present appellant together with costs quantified at Rs. 500/-. It is this award dated 15-1-1994 passed by the Tribunal below which has been impugned in this appeal.
5. Under the provisions of Section 140 of the Motor Vehicles Act, 1988, amount of Rs. 25,000/- in case of death is payable on the principle of 'No Fault Liability'. This provision appears to have been enacted to provide immediate relief and respite to the dependents of the deceased person in respect of whom compensation is claimed by the claimants. By Section 43 of the Act No. 54 of 1993, provisions of Section 140 of the Act were amended thereby under Section 140(2) of the Act, amount of compensation in case of death on the principle of 'No Fault Liability' was enhanced from Rs.25,000/- to Rs.50,000/-and the amount payable in case of' permanent disablement 'was enhanced from Rs. 12.000/-to Rs.25,000/-. In accordance with the provisions of Section 141 of the Act, the amount of compensation payable has not to be less than the amount payable under 'No Fault Liability'. For ready reference, provisions of Section 141 of the Motor Vehicles Act, 1988 are reproduced hereinbelow:--
"141. Provisions as to other right to claim compensation for death or permanent disablement.-- (1) The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to (any other right, except the right to claim under the scheme referred to Section 163A (such other right hereafter) in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force).
(2) A claim for compensation under Section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and--
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation) he shall not be liable to pay the second-mentioned compensation."
6. Shri Gian Chand Gupta, learned counsel for the owner-appellant has raised three-fold submission that the deceased was not travelling in the vehicle in question. So, there/is no question of her being a 'Fare Paying Passenger'. Alternatively and without conceding he submitted that the accident was not the result of rash and negligent driving on the part of the driver. Lastly, liability, if any, for payment of compensation is that of the insurer. . .
7. On the other hand, Shri S.S. Kanwar, learned Senior Counsel submitted that the deceased on the own showing of the claimants was travelling as a 'fare paying passenger' in the vehicle in question which was a goods carriage vehicle adapted for carriage of goods and thus, neither under the provisions of Motor Vehicles Act nor under the contract of insurance subject to which the vehicle in question had been insured was covered in terms of the policy of insurance, Ext. RX and thus, the insurer is not liable for payment of compensation. According to him, the liability has been rightly fixed on the owner-appellant and thus, he has prayed for the dismissal of the appeal.
8. On behalf of the claimants, Sh. Sandeep Kaushik made two-fold submission that the impugned award is contrary to the provisions of Sections 140 and 141 of the Motor Vehicles Act, 1988 when examined in the light of the judgment of this Court passed in FAO(MVA) No. 205 of 1995, titled as Oriental Insurance Company Ltd. v. Khem Chand and others decided on 16-7-1996. According to Shri Sandeep Kaushik, the amendment has been held to be retrospectively applicable, as such in no case, the award in the present case can be less than Rs. 50.000/-in terms of Section 140 of the Motor Vehicles Act, 1988 as it stands amended w.e.f. 14-11-1994. Thus, he has prayed for exercise of discretion in favour of his clients thereby enhancing the amount of compensation from Rs. 30,000/- to Rs. 50.000/- so as to bring the impugned award in consonance with the provisions of Section 140 of the Motor Vehicles Act, 1988 as it stood on the date of final hearing in this case.
9. So far the first two submissions of Shri Gian Chand Gupta are concerned, the findings recorded by the Tribunal below on issue No. I call for no interference. In this behalf, it is appropriate to point out that the driver of the vehicle was proceeded against ex parte and the owner-appellant did not care to examine him. There could be no better evidence that could be produced by the owner , other than examining the driver of the vehicle in question. Statement of PW-5, Mohan Singh in this behalf is clear and there is no reason to discard the same. He has given a vivid account of the manner in which the accident took place and all the passengers of the bus in which he was travelling and had witnessed the accident came out after the bus had stopped when it was noticed that the deceased was lying in a serious condition beneath the truck. This witness has withstood the test of cross-examination directed to him. In addition to this, there is another circumstance though a weak one i.e. that a case has been registered vide F.I.R. No. 162 of 1992, dated 20-12-1992 against the driver Shamsher Ali under Sections 279, 337/304, I.P.C. (Section 304-A?). Copy of F.I.R. has been proved by MHC Kundan Singh (PW-I). It may further be pointed out that the F.I.R. was lodged by Asghar Ali, Conductor of the truck in question. In these circumstances, the pleas on behalf of the owner that the deceased was either not travelling as a 'Fare paying passenger' or no fare was charged and the accident being not the result of rash and negligent driving are rejected.
10. Now, the plea regarding the insuance company being not liable has to be considered in the light of the submission of Shri S.S. Kanwar that the insurer is not liable for payment of compensation in respect of the persons like the deceased. : . ,
11. In 1996 ACJ 496, New India Assurance Co. Ltd. v. Lachhmi Devi, a Division Bench of this Court has held that where the truck had been hired for carrying the members of a marriage party and dowry and met with an accident resulting in several persons sustaining injuries and some of them succumbing to those, the plea of the Insurance Company that the deceased/injured being gratuitous passengers, it is not liable for payment of compensation was negatived. At the same time, it was held by this Court that even gratuitous passengers are entitled to get compensation from the Insurance Company. To similar effect are the cases reported in 1988 ACJ 176, Shingara Ram v. Balak Ram Walia; 1989 ACJ 685, New India Assurance Co. Ltd. v. Satya Nath Hazarika;i 1996 ACJ 367, New India Assurance Co. Ltd. v. Bhajni; 1995 (2) Shimla Law Cases 134, Oriental Insurance Company v. Smt. Punni Devi and other connected cases.
12. Another question to be examined is that whether on account of carriage of deceased by the driver of the truck, it can be said that there was breach of policy of-insurance, Ext. RD to such an extent that the owner of the vehicle i.e. the present appellant being denied the indemnification due to such use which may be irregular but cannot be said to be so fundamental a breach to put an end to the contract of insurance. Carriage of the deceased was in no way a contributory factor to the accident in question. It is neither the plea raised by the owner nor by the insurer that in case the deceased had not been carried in the vehicle in question, the accident could be avoided. In taking this view, we are guided by the judgment of the apex Court reported in 1996 (6) JT (SC) 32 : (1996 AIR SCW 2466), V.V. Nagaraju v. Oriental Insurance Co. Ltd. In the face of this position, the plea of the insurer that it is not liable for payment of compensation to the claimants on account of death of Kumari Sunita who, according to it, was a gratuitous passenger is hereby negatived. Further in order to succeed, the insurer was required to prove that at the time of accident the vehicle was used in breach of specified conditions giving rise to the claim by risk of the carriage of the passenger therein for hire or reward and there was a specified condition in the policy which excluded the use of insured vehicle for carriage of any passenger for hire or reward and at the time of insurance, the insured vehicle was expressly or impliedly not covered by a permit for hire or reward. In the instant case, though the Registration Certificate of the vehicle in "question has been tendered in evidence and marked as Ext. RA, fitness certificate" is marked as Ext. RB and Goods Carriage Permit is marked as Ext. RC. Besides these documents, insurance policy has been marked as Ext. RD. So far Exts. RA to RC are concerned, they do not stand proved in accordance with law. Simply because the documents had been exhibited would not dispense with the mode of proof through which such documents are required to be proved by a party wanted to take benefit of it. Further in case the insurer wanted to take benefit of insurance policy Ext. DX, it was required to examine the witness to prove as to what was the risk covered in terms of it, what was the risk not covered and what was the amount of' premium charged under what heads. This has not been done. In 1987 (2) SCC 654 : (AIR 1987 SC 1184), Skaindia Insurance Company v. Kokilaben Chandra-vadan, the Apex Court has observed as under:--
"....When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause does not cross swords with the main purpose highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's "Breach of Contract" vide paragraph 251. To quote;
. Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining-a promiser's contractual obligations. For example, in Glynn v. Margeston & Co. (1893 AC 351, 357), Lord Halsbury, L. C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard....as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.
Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societed' Armement Maritime S.A. v. N. V. Rotterdamsche Kolen Centrale, 1967 I AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract."
13. In the face of the case law discussed hereinabove, the contention raised by Shri S.S. Kanwar does not hold the ground and it is held that the insurer is liable to indemnify the owner for payment of compensation in the present case. Needless to clarify here that it is not in dispute that the vehicle in question was insured with the insurer i.e. National Insurance Company at the relevant point of time vide policy No. 400108/6301342/91, Ext. RX. The vehicle in question stood insured with the Insurance Company and the vehicle being not insured is not the plea raised by the insurer in its reply.
14. Now remains the plea of Shri Sandeep Kaushik made on behalf of the claimants to bring the award in consonance with the provisions of Sections 140 and 141 of the Motor Vehicles Act referred to hereinabove. The parties are not at variance that the amount of compensation payable in case of claim made in no case be less than the amount under 'No fault liability'. Shri S.S. Kanwar has submitted that since the amendment came into force w.e.f. 14-11-1994, therefore, the amended provision is not retrospectively applicable and he has contested the contention of Shri Kaushik. This question is no more res integra in view of the decision of a Division Bench of this Court in FAO (MVA) No. 205 of 1955 (supra) wherein the amended provision of Section 140(2) of the Motor Vehicles Act has been held to be retrospectively applicable. As such it is held that the claimants are entitled to compensation of Rs.50,000/- instead of Rs.30,000/- as awarded by Tribunal below.
15. Now, the question that remains to be considered is whether the provision of Order 41, Rule 33, C.P.C. is applicable to the present case and whether in exercise of such powers this Court is competent to enhance the amount of compensation awarded by the Tribunal below. In this behalf, it may be appropriate to point out that when the provisions of Sections 140 and 141 of the Motor Vehicles Act, 1988 are read together, then in that event, it has to be ensured that the amount of compensation payable in a claim petition should not be less than the amount payable under 'No fault liability. If that is so, then this Court is competent to bring the award in accordance with law and to make any order which ought to have been passed or made and to make further or other order as the case may require, and this power can be exercised by this Court in favour of all or any of the respondents although such respondents may not have filed an appeal or cross-objections. Further there is no exclusion for the exercise of powers under Order 41, Rule 33, C.P.C. by this Court or under the provisions of Motor Vehicles Act, 1988 or the rules framed thereunder.
16. When this Court is exercising its appellate jurisdiction conferred on it under a special statute i.e. Motor Vehicles Act in 'the present case, then the rules of procedure, and practice followed by this Court applicable to an ordinary civil appeal would govern unless, of course, there is a specific prohibition under the statute governing such appeal. Besides this, the provisions of Motor Vehicles Act are a beneficial piece of legislation for providing quick and substantial relief to the claimants, who are the victims of unfortunate accident-for no fault of theirs. Further in such like circumstances, provisions of Order 41, Rule 33, C.P.C. can be made applicable and being a beneficial legislation, technical meaning need not be given to the law. By giving such a meaning, the Court would be acting in the direction of achieving the object of the legislation, for which it has been enacted.
17. If a pedantic or technical view is taken regarding applicability of the provisions of Order 41, Rule 33, C.P.C. then the provisions of Order 41, Rule22, C.P.C. would not be applicable to the appeals under the provisions of Motor Vehicles Act. Yet in cases where a party is unable to file the appeal comes up in cross-objections, then in such an eventuality the appeal so filed when cross-objections arc filed has to be regulated by the practice and procedure of the High Court and it is on this basis that the cross-objections under Order 41, Rule 22, C.P.C. are entertained. In taking this view, we place reliance on 1968 ACJ 1, Manjula Devi Bhuta v. Manjusri Raha; 1974 ACJ 470 : (AIR 1975 Gau 20), The Phoenix Assurance Co. Ltd. v. Kalpana Rajput; 1974 ACJ 522: (AIR 1975 Ker 18), K. Chandrashekhara Naik v. Narayana; AIR 1988 Raj 191, National Insurance Co. v. Tulsi Devi; 1988 ACJ 821, Municipal Board, Mount Abu v. Hari Lal; AIR 1986 MP 21, Sonaram v. Jaiprakash; AIR 1989 All 221, Oriental Fire & General Insurance Company Ltd. v. Rajendra Kaur; 1989 (2) Ker LT 227, Velunni v. Vellakutty. It may be reiterated here that Motor Vehicles Act, 1988 provides right of appeal under Section 173 to this Court without indicating anything the manner in which the appeal is to be disposed of. In these circumstances what is necessarily implied is that the right of appeal will carry applicability of rules of practice and procedure of this Court with regard to its power to entertain and decide the appeal including its disposal and manner of exercise of that jurisdiction and all other incidences thereof. Needless to point out here that Order 41, Rule 33, C.P.C. confers a special power on the appellate Court. In the face of this position, this Court is well within its legal authority to exercise jurisdiction vested in it under Order 41, Rule 33, C.P.C. and to bring the Award in consonance with the provisions of the Motor Vehicles Act, 1988.
18. As a result of the above discussion, the present appeal succeeds and the Award of the Motor Accident Claims Tribunal (II), Sirmour District at Kalian in Claim Petition No. 16-N/2 of 1991, dated 15-1-1994 is modified thereby holding that the claimants Rattan Singh and Jai Devi are entitled to a compensation of Rs. 50,000/- instead of Rs.30,000/- as awarded by the Tribunal below. They are also held entitled to interest on this amount at the rate of 12% per annum w.e.f. 19-8-1991 till the date of payment and the liability of both owner Manjit Singh and insurer National Insurance Company is joint and several and the insurer is liable to pay this amount of compensation together with interest and costs as assessed by the Tribunal below. Parties are left to bear their own costs. Amount if any, deposited by the owner will be refunded to him and in case any part/ whole of the same has been paid/refunded to the claimants, owner is held to be entitled to recover the same from the insurer on the strength of this judgment by executing it and without his being dragged to another round of litigation.