JUDGMENT
Shambhoo Singh, J.
1. This order shall govern disposal of M.A. No. 70 of 1991 (Claim Case No. 39 of 1980), M.A. No. 71 of 1991 (Claim Case No. 40 of 1980) and M.A. No. 268 of 1991 (Claim Case No. 38 of 1980) as they arise out of the same accident and involved common question of law and fact.
2. The claimants’ case in all the three Claim Case Nos. 38, 39 and 40 of 1980 was that in the night intervening 27 and 28.8.1979, respondent/non-applicant No. 1, the driver, brought truck No. HRD 6540 loaded with cattle to Lakshman Mandi, Indore where he was to unload the same and asked four boys, Iqbal Ahmed, Abdul Jahoor, Abdul Karim and Jakir to sit on the cabin of the said truck and thereafter, he drove it rashly and negligently and passed beneath the railway bridge at Nasiya. Since the height of the said railway bridge is quite low, the boys sitting on the cabin of the said truck got struck against the bridge as a result of which Iqbal Ahmed and Abdul Karim died on the spot and Abdul Jahoor died after 14 days. Jakir also sustained injuries but survived. Salima Jenab, mother of deceased Iqbal, Mukhtyarbi, mother of deceased Abdul Jahoor and Khatoonbi, mother of deceased Abdul Karim, filed Claim Case Nos. 40, 38 and 39 of 1980 and claimed Rs. 1,08,000, Rs. 1,44,000 and Rs. 1,14,000 respectively. The respondents resisted the claim. The Tribunal found that the accident occurred due to rash and negligent driving of the offending truck by respondent No. 1 as a result of which Iqbal Ahmed, Abdul Karim and Abdul Jahoor died and awarded each claimant compensation of Rs. 40,000. However, it absolved the insurance company from payment of compensation on the ground that the deceased were travelling in the truck as gratuitous passengers. Hence, these appeals by the claimants for enhancement of compensation amount and making the insurance company liable to pay the amount of compensation.
3. We considered the arguments advanced by counsel for both sides and perused the evidence on record. From the unrebutted evidence of Abdul Hamid, it has been proved that the respondent/non-applicant No. 1 drove the offending truck rashly and negligently at high speed and without taking care of the safety of the deceased boys who were sitting on the cabin, passed through the Nasiya Bridge as a result of which they got struck against the bridge, sustained injuries and died.
4. Now, we will consider the adequacy of compensation amount.
5. In M.A. No. 70 of 1991 (Claim Case No. 39 of 1980), it has come in the evidence of Khatoonbi that her son Abdul Karim aged about 15-16 years was working in a factory on the salary of Rs. 150 per month. The Tribunal taking in view the future prospects of life, determined his income at Rs. 200 per month and yearly Rs. 2,400, it applied multiplier of 20 and worked out the amount of compensation at Rs. 48,000. After deducting ‘/6th of the said amount for lump sum payment, awarded Rs. 40,000 as compensation. In our opinion, the amount of Rs. 40,000 is on lower side. The amount payable under Section 140 of the Motor Vehicles Act, 1988 under no fault liability is Rs. 50,000. In our opinion, in view of this in case of death, no amount less than Rs. 50,000 can be awarded. Parliament inserted Section 92-A of the Motor Vehicles Act, 1939, and made provisions for payment of compensation for the death or permanent disability caused in a motor accident on the principle of ‘no fault liability’. Initially, the amount payable under the section was Rs. 15,000 for death. In Section 140 of Motor Vehicles Act, 1988 this amount was enhanced to Rs. 25,000 and it was further enhanced to Rs. 50,000 by Amending Act 54 of 1994 which came into force on 14.11.94. This raising of the amount from time to time shows the intention of Parliament that the loss of human life in motor accident shall not be assessed less than Rs. 50,000. It is well settled that the provisions of Section 92-A or 140 have no retrospective effect but it is legislative guideline which should be taken into consideration by this court while assessing compensation. The Apex Court in R.L. Gupta v. Jupiter Genl. Ins. Co. Ltd. 1990 ACJ 280 (SC), observed that enactment of Section 92-A is a positive indication of the legislative intent that in case of death the compensation awarded shall not be less than the amount payable under no fault liability and keeping in view the provisions of ‘no fault liability’ awarded compensation of Rs. 20,000 to the L.Rs. of the deceased. This court in case of Devji v. Anwarkhan 1989 ACJ 567 (MP) and Karuram v. Omprakash 1989 ACJ 941 (MP), took the view that compensation provided under the provisions of ‘no fault liability’ should be taken into consideration. As stated earlier, since 14.11.1994, the amount of compensation under the provisions of ‘no fault liability’, has been raised to Rs. 50,000. In our opinion, the compensation amount deserves to be enhanced to Rs. 50,000.
6. In M.A. No. 268 of 1991 (Claim Case No. 38 of 1980) and M.A. No. 71 of 1991 (Claim Case No. 40 of 1980), the Tribunal awarded compensation of Rs. 40,000 for the death of Abdul Jahoor and Iqbal Ahmed aged about 16-17 years. Thisamount of compensation also deserves to be enhanced to Rs. 50,000 on the same reasoning given above.
7. Now, the question is whether the Tribunal committed error in absolving the insurance company from making payment of compensation to the claimants.
8. Mr. Patwa, learned counsel for the appellants, submitted that the deceased boys were asked by the driver to board the truck and show him the way. The deceased boarded the truck on the request of the driver, therefore, it should be held that the deceased boys were employed by the driver, who was agent of the owner, thus, at the time of accident the deceased were in the employment of the owner, therefore, the insurance company is liable to pay compensation. Mr. Goyal, learned counsel for the respondents, submitted that this was not the case of claimant in the Tribunal, no such pleadings were made in the application. He submitted that the deceased were gratuitous passengers, therefore, they were not covered under the policy and the learned Tribunal rightly absolved the insurance company from payment of compensation under Section 95 of the Motor Vehicles Act. The relevant Section 95 (2) (b) is quoted below:
95. Requirements of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a)XXX XXX XXX (b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Provided that a policy shall not be required-
(i) To cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods vehicle, being carried in the vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
From plain reading of the above, it becomes clear that the passengers not carried in contract of employment or for hire or reward are excluded from the insurer’s liability in respect of death of such passenger being carried in the motor vehicle at the time of accident. The Apex Court in case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC); held that it is not required that policy of insurance should cover risk to the passengers who are not carried for hire or reward. Full Bench of this court in case of Kallu Maharaj v. Meenabai 1989 ACJ 770 (MP), also held that insurance company is not liable for paying compensation for the death of a gratuitous passenger. But in this case, it could not be proved that the deceased were gratuitous passengers. We do not agree with the argument of learned counsel for the insurance company that the burden of proving that the deceased were not travelling as gratuitous passengers was on the claimants. The law is well settled that if breach of terms of contract is pleaded by a party not to perform the contract, the burden is on that party which comes with the case of breach to prove that breach has been committed by other party to contract. Here the insurer wants to be exonerated from its liability on the ground that the deceased were travelling in the truck as gratuitous passengers, therefore, the burden lay on the insurance company to prove that the deceased were gratuitous passengers. The insurance company did not produce any evidence in this regard hence it could not prove that the deceased were gratuitous passengers.
9. It has come in the evidence of Abdul Hamid that he and the deceased were sitting in the mosque as it was 27th day of ‘roza’. At about 2.30 a.m. they were going to prepare tea inside the mosque. The driver of the offending truck came there and told them to guide him to Lakshman Mandi where he was to unload his truck. He requested them to board the truck and show him the way for which he would pay them and get them back to their place near the mosque. On this, the deceased boys boarded the truck. This evidence could be rebutted by the driver of the offending truck but he was not examined. From un-rebutted evidence of this witness, it is clear that the four boys could be treated as employees employed by the driver on behalf of the owner of the truck to reach the destination. Thus, they could be said to be travelling in the truck as employees of the truck owner, therefore, in view of contractual liability the insurance company was liable to pay compensation.
10. In the result, all the three appeals are partly allowed. We modify the award and direct that respondents/non-applicants shall pay Rs. 50,000 to the claimant of each case with interest at the rate of 12 per cent per annum from the date of filing of claim application till realisation. No order as to costs.