JUDGMENT
Ravani, J.
1. The appeal is directed against the judgment and award dated December 24, 1977, passed by the Motor Accidents Claims Tribunal, Panchmahals at Godhra, in Motor Accidents Claims Petition No. 22 of 1977, by which the Tribunal directed that the appellant, United India Fire and General Insurance Co. Ltd., as well as the owner and the driver of the vehicle in question were liable to pay in all Rs. 19,000 to the claimants except claimants Nos. 3 and 4. It is against this award that the insurance company and the original opponent No. 2, i.e., the owner of the truck No. GTB 6032, have filed this appeal.
2. There is no dispute with regard to the fact that the vehicle in question, i.e., motor truck bearing No. GTB 6032, was involved in the accident which took place on December 2, 1976. There is also no dispute with regard to the fact that respondent No. 8 was the driver of the said vehicle. In the accident, one Havsing Dalsing Bhuria, the husband of applicant No. 1, and the father of applicants NOs. 2 and 7, and the son of applicant No. 6, who is the mother of the deceased, was killed. Applicant No. 6, who is the mother of the decease after taking divorce from erstwhile husband and when she married, she had brought with her ttow children, namely, Bhavnaben, aged about 7 years – original applicant No. 3 and Ramesh, aged about 4 years – original applicant No. 4. The claim petition was filed by the parents of the deceased, the wife and minor children of the deceased. It appears that during the pendency of the claim petition, the father of the deceased, Dalsing Bhuria – respondent No. 5 died and, therefore, his name is deleted as one of the claimants. Thus there remain in all six claimants. On appreciation of the evidence, the Tribunal held that the driver was negligent in driving the vehicle and on account of his rash and negligent driving the accident took place. We see no reason to interfere with the finding arrived att by the Tribunal on this point.
3. In this appeal, learned counsel appearing for the appellant- insurance company has strenuously argued that the Tribunal ought to have held that the insurance company has satisfactorily proved that it was not liable to discharge the liability under the insurance policy. According to him, the case was covered by the decision of the Division Bench of this High Court in the case of Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai [1979] 20(2) GLR 342; [1983] 53 Comp Cas 475. It is submitted by counsel for the appellant that the Full Bench judgment of this court in the case of New India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj [1982] 23 (1) GLR 411; [1984] 55 Comp Cas 568, would not be applicable because at the time when the accident occurred, the insurance company had proceeded on the footing that the law declared in Vanaji’s case [1983] 53 Comp Cas 475 (Guj) was applicable and the same governed the position between the insured and the insurer.
4. Now, if one looks at the decision rendered by this court in New India Assurance Co.’s case [1984] 55 Comp Cas (Guj) [FB], it is clearly held that the insurer in order to successfully disclaim its liability must establish the following things (at page 586):
“1. that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to ply for hire or reward, that is, by a permit to carry any passenger for hire or reward ;
2. that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of passenger for hire or reward ; and
3. that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward”.
5. In the instant case, there is nothing on record to show that the appellant-insurance company has established the first condition, namely, that on the date of the contact of insurance, the insured vehicle was expressly or implicitly not covered by a permit to ply for hire or reward. To establish this condition, the appellant-insurance company must have got produced on record the necessary permit. No such permit is produced on record. Therefore, the finding given by the Tribunal on this point is not required to be interfered with.
6. Reliance placed by counsel for the appellant on Vanaji’s case [1983] 53 Comp Cas 475 (Guj), is of no help to the appellant inasmuch as the facts in that case were quite different. It was the case of a tractor along with trailer and the tractor turned on account of the rash and negligent driving on the part of the driver of the tractor. On the facts of the case it was held by the Division Bench of this High Court that the insurance company was able to establish the defence available to it. No proposition of law of universal applicability has been laid down in that decision. In this view of the matter, the condition so raised has got to be rejected.
7. In this appeal, there are cross-objections filed on behalf of the claimants. As noted hereinabove, the Tribunal has not awarded any compensation to original claimants No.3 and 4, namely, minors Bhavnaben and Ramesh. This decision appears to have been based on the ground that these two claimants were brought by applicant No. 1 along with her at the time of her marriage with the deceased and they were not the natural daughter and son of the deceased. However, on behalf of the claimants, it is conceded that the original claimants Nos. 3 and 4, are also entitled to compensation on the same basis as the other children of the deceased are entitled in this case. In view of this concession made by counsel for the respondent-claimants, it is not necessary to discuss this question on merits.
8. The Tribunal has awarded compensation on the basis that the deceased was earning Rs. 1,500 per year and after deducting Rs. 500 as expenditure for himself, the Tribunal has taken Rs. 1,000 as the dependency benefit and multiplying the same by 16, in all Rs. 16,000 has been awarded as compensation and Rs. 3,000 has been awarded for loss of expectation of life. Thus, the Tribunal has awarded Rs. 19,000 and the same has been ordered to be distributed amongst the claimants who are held to be entitled to receive the compensation.
9. It is in evidence that the deceased was doing agricultural work and that he owner agricultural land. As per the revenue produced at exhibits 30 to 33, it is clear that the total land cultivated by the deceased was to the extent of 11 to 12 acres. However, the wife of the deceased, Shantaben, has stated in her deposition, exhibit 38, that the deceased was owning about 9 to 10 acres of land. She has further stated in her deposition, exhibit 38, that the total income per year was Rs. 2,000 to Rs. 5,000. The original claim of the claimants was for Rs. 50,000. The Tribunal held that the income of the deceased would be Rs. 1,500 only. It is not understood on what basis the Tribunal has arrived at this figure. There is no reason to disbelieve the sworn testimony of the wife of the deceased. Moreover, it would be reasonable to infer that the total produce from the land admeasuring 10 acres would be roughly about Rs. 5,000. Assuming that there may be some exaggeration, the total income from agricultural land can safely be placed at Rs. 4,000 per year. It is an admitted position that after the death of Havsing Dalsing the claimants are getting one-fourth of the income from the land even at the time of deposition. Further, it may be assumed that the deceased might be spending about Rs. 1,000 on himself. Therefore, excluding this much amount form the total earnings, it can safely be calculated that the contribution of the deceased for the benefits of all the dependants would be around Rs. 2,000 per year. Applying the same multiplier adopted by the Tribunal i.e., 16, the amount of compensation awardable to the claimants would be Rs. 32,000 and not Rs. 16,000 as held by the Tribunal. The conventional figure for loss of expectation of life would be Rs. 5,000 and not Rs. 3,000. On this count also, the amount of compensation will have to be raised by Rs. 2,000.
10. In the above view of the matter, respondents Nos. 1 to 4, 6 and 7, i.e., the original claimants would be entitled to Rs. 37,000 as compensation. In the facts and circumstances of the case, we believe that the entire amount of compensation should be distributed amongst all the claimants in equal proportion, meaning thereby, each of the claimants would be entitled to receive one-sixth of the total amount awarded.
11. In the result, the appeal filed by the insurance company is dismissed. Cross-objections filed by the original claimants are allowed and the award passed by the Motor Accidents Claims Tribunal, Panchmahals at Godhra, in Motor Accidents Claim Petition No. 22 of 1977, is modified to the following effect :
The appellant-insurance company and the original opponents Nos. 2 and 3 are liable to pay Rs. 37,000 to the respondents-claimants with interest at the rate of 6% per annum from the date of the claim petition till payment and also proportionate costs throughout. As far as the distribution of the amount is concerned, applicants Nos. 1 and 6 shall each recover Rs. 6,166 with interest at the rate of 6% per annum and also proportionate costs from the appellant-insurance company and respondents Nos. 7 and 8, i.e., original opponents Nos. 1, 2 and 3, respectively. The rest of the claimants, i.e., applicants Nos. 2, 3, 4 and 7, each shall recover Rs. 6,167 with 6% interest and also proportionate cost throughout from original opponents Nos. 1, 2 and 3. The compensation awarded to original applicants Nos. 1 and 6 shall be paid to them. The amount of compensation awarded to the rest of the claimants, namely, applicants Nos. 2, 3, 4 and 7, shall be deposited in long term fixed deposit with a scheduled bank so as to earn interest quarterly. The interest which may accrue thereon shall be paid to applicant No. 1, mother of the minors as and when the interest becomes due till the minors attain majority. After the minors attain majority the interest on the fixed deposit be paid directly to them.
12. Appeal dismissed with costs. Cross-objections partly allowed with proportionate costs throughout.;