S.S. Jha, J.
1. This appeal is filed by the claimants against the award passed by the Additional Motor Accidents Claims Tribunal, Mauganj, District Rewa. Claims Tribunal has dismissed the application of the applicants on the ground that offending vehicle was not insured with the insurance company and in the absence of eyewitness negligence on part of driver of the truck in not proved.
2. The facts of the case are that on 17.8.1995, deceased Kamta was travelling in a truck bearing No. MBA 4447, driven by Ruab Ali, respondent No. 2 and owned by Awadh Narayan Jaiswal, respondent No. 1. The truck dashed against a tree which resulted in death of Kamta. The claimant Nos. 1, 3, 4 and 5 are the legal representatives of the deceased Kamta. Insurance company has taken the plea that driver was not having valid licence. The insurance company has also denied their liability to pay compensation. However, insurance company has reserved its right about the insurance of vehicle, if policy of the said vehicle is produced in the court. Owner and driver were proceeded exparte and insurance company has contested the claim. The driver and the owner have not denied the factum of insurance as well as accident. It is settled position of law that burden to disprove negligence rests upon the driver of the offending vehicle. Since the driver has not filed written statement as well as he has not entered the witness-box, therefore, it will be deemed that he has admitted the contents of the application filed by the claimants. Shanti, AW 1, who is widow of the deceased has deposed that Kamta died in accident and she filed copy of first information report, Exh. P1, to prove that Kamta died in accident arising out of use of motor vehicle, i.e., truck No. MBA 4447. There is no cross-examination pertaining to death and accident by the insurance company. In the circumstances, finding of Claims Tribunal that claimants had not proved the negligence is erroneous and is set aside and it is held that in the absence of evidence of driver and written statement by owner and driver that Kamta died in truck accident on account of rash and negligent driving by the driver of the truck.
3. The next question involved in the case is whether the truck was insured with insurance company, respondent No. 3. The respondent Nos. 1 and 2 have filed an application under Order 41, Rule 27, Code of Civil Procedure and have filed copy of insurance policy. Said application was filed on 11.10.2000 but no reply has been filed by insurance company either admitting their liability or denying their liability. Almost 5 years had elapsed and insurance company has not filed any reply to the said application, therefore, the document is taken on record and it is admitted in evidence. On going through the certificate of insurance, it is found that said truck, MBA 4447, was insured with Oriental Insurance Co. Ltd., respondent No. 3 and premium was paid. Schedule of premium shows that the vehicle was insured and premium for the person employed in connection with the operation and/or maintenance and for loading or unloading was paid and for the increased property damages, additional premium was paid. However, schedule and conditions of agreement have not been filed either by the claimants or by the insurance company. In the circumstances, it is held that vehicle was insured with respondent No. 3 on the date of accident.
4. As regards liability of the insurance company is concerned, counsel for the insurance company vehemently argued that insurance company should be absolved as vehicle was driven against the policy of the vehicle. Counsel for insurance company invited attention to Section 2(14) of Motor Vehicles Act which defines 'goods carriage'. He submitted that 'goods carriage' is the motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of goods. He submitted that truck is a 'goods carriage' and in the 'goods carriage' passengers are not permitted to travel.
5. He submitted that under Section 149(2) of the Motor Vehicles Act if the vehicle is used for hire or reward, then insurance company is not liable. The learned Counsel for the insurance company has referred to judgment of the Supreme Court in case of National Insurance Co. Ltd. v. V. Chinnamma and submitted that in this case it is
held that if the vehicle is plied against the policy of insurance and against the intention of the Motor Vehicles Act, then insurance company is not liable to indemnify the insured. He invited attention to paras 27 and 28 of the judgment [Sic. of Asha Rani's case, referred in] and submitted that owner of passengers carrying vehicle is required to pay premium for covering the risk of passengers. If a liability other than the limited liability provided under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of the decision in New India Assurance Co. Ltd. v. Satpal Singh , is taken to its logical
conclusion, although for such passengers, the owner of the goods carriage need not take insurance, they would be deemed to have covered under the policy whereof no premium is required to be paid. However, considering the import of Motor Vehicles Act, 1939 and the Act of 1988, distinction has been drawn, court has considered the distinction drawn by this Court in the case of New India Assurance Co. Ltd. v. Asha Rani , referring to the judgment in the case of Oriental
Insurance Co. Ltd. v. Devireddy Konda Reddy , wherein it is held that "the inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor". Relying upon this judgment, the learned Counsel for insurance company submitted that insurance company is not liable to pay anything and the compensation is recoverable from owner of the vehicle. Question now involved is whether a passenger who is a third party travelling in a truck is entitled for compensation. On bare reading of Section 147 of Motor Vehicles Act, it is clear that insurance company is liable to indemnify third party in an accident. Section 147(1)(b)(i) provides that insurance company under the policy is liable against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in public place.
6. It is true that other than the owner of goods or authorised representative, no person is entitled to travel in the goods carriage. However, person so travelling is a 'third party'. In the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma, the Apex Court has considered the question of liability of insurance company when gratuitous passenger is travelling in a truck and dies in an accident. In this case Tribunal allowed compensation, but exonerated insurance company from payment of compensation. High Court in an appeal from the judgment and award passed by the Motor Accidents Claims Tribunal allowed the appeal and held that the insurance company is liable. While considering the judgment in the case of New India Assurance Co. Ltd. v. Asha Rani , it is held that in spite of amendment in the year 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by 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 at the time the contract of insurance was entered into, nor any premium was paid to extend the benefit of insurance to such category. While considering other judgments in the case of National Insurance Co. Ltd. v. Challa Bharathamma ; Pramod Kumar Agrawal v. Mushtari Begum and National Insurance Co. Ltd. v. V. Chinnamma
, it is held that claimants will be entitled to
recover compensation from the owner of the vehicle and insurance company is exonerated. Considering the ratio laid down in this case and the case of V. Chinnamma (supra) and New India Assurance Co. Ltd. v. Asha Rani (supra), insurance company cannot be held liable to pay compensation. Claimants are entitled to compensation from the owner of the vehicle.
7. As regards quantum of compensation is concerned, the claimants had led evidence that Shanti, AW 1, has deposed that the deceased was earning Rs. 50-60 per day and was having income from sale of milk of Rs. 500 per month. In the cross-examination, in para 7, suggestion is given that deceased was earning Rs. 10-25 per day which was accepted by her. Bhagwat, AW 3, father of deceased, had deposed that deceased was aged about 32 years at the time of accident. He was cultivating agricultural land on lease from the bhumiswami and was also involved in daily wages, he was earning Rs. 60-70 per day and Rs. 40 per day from selling milk. Suggestion was given by insurance company that deceased was earning Rs. 12-15 per day, in reply this witness deposed that the deceased was earning Rs. 50 per day apart from income from selling of milk. No other evidence was led by the insurance company pertaining to income of the deceased.
8. In the circumstances, considering the overall evidence on record, it can safely be held that the income of the deceased was Rs. 2,000 per month, yearly income was Rs. 24,000, dependency is determined at Rs. 16,000 per annum, deducting his 1/3rd personal expenditure. Deceased was aged about 32 years, therefore, multiplier of 17 will be applicable to the dependency which is Rs. 16,000 x 17 = Rs. 2,72,000. Over and above this amount, appellants will also be entitled for a further sum of Rs. 28,000 towards damages under various heads such as, loss to estate, funeral expenses, loss of consortium, loss of expectancy of life, etc. Compensation amount is determined at Rs. 3,00,000 (Rs. three lakh only). Over and above this amount, claimants will also be entitled for interest at the rate of 6 per cent per annum from the date of filing of claim petition. The amount will be payable to appellant Nos. 1, 3, 4 and 5. Out of the amount of compensation, Rs. 50,000 will be paid to claimants. Remaining amount shall be deposited in a fixed deposit in a nationalised bank. The claimants will be entitled for the interest on the said amount. Said fixed deposit shall be renewed from time to time. In case the claimants require money out of the said fixed deposit, they may apply to Claims Tribunal and Claims Tribunal, after examining the urgency, may pass orders in accordance with law.
9. Appeal succeeds and is allowed without any order as to costs.