JUDGMENT
R.D. Shukla, J.
1. This order shall dispose of M.A. No. 335 of 1989 (Leelawati v. Ravindra Kumar) and M.A. No. 63 of 1990 (M.D., Dairy Development Corporation Ltd. v. Leelawati) as also the cross-objections filed in both the cases.
2. The appeal is directed against the judgment and award dated 18.9.1989 of IV Member, Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 135 of 1987, whereby the claimants have been awarded compensation of Rs. 1,25,000 with interest at the rate of 12 per cent per annum from the date of application, i.e., 24.1.1984 till realisation of the same with a further direction that all the three respondents (non-applicants) are jointly and severally liable to make payment of compensation. The claimants-appellants have filed M.A. No. 335 of 1989 for enhancement of the amount.
Respondent Dairy Development Corporation Ltd. (hereinafter referred to as the ‘D.D.C. Ltd.’) has filed M.A. No. 63 of 1990 challenging the liability of payment on the ground that the vehicle was in possession of owner and the officer of the Corporation, who died in accident, was only in occupation of the same.
The non-applicant New India Assurance Co. Ltd. has filed cross-objections in both the appeals, disowning the liability of payment on the ground of breach of conditions of insurance policy.
3. This is not in dispute that Dr. Mangilal Yadav was working with the D.D.C. Ltd. as veterinary doctor in the capacity of Senior Veterinary Surgeon. Motor jeep No. MBF 522 was driven by Ravindra Kumar Sharma, who was the owner of the vehicle also. Dr. Mangilal (deceased) was being taken on the jeep on the basis of an agreement whereby the motor jeep was working for the D.D.C. Ltd. The vehicle was insured with the New India Assurance Co. Ltd., respondent No. 3. The claimants are widow and children respectively of deceased Dr. Mangilal.
4. Claimants’ case, in brief, is that Dr. Mangilal was going in a motor jeep driven by Ravindra Kumar. The same was driven rashly and negligently and was proceeding to veterinary sub-centre Chapda. Because of rash driving of the vehicle it overturned and resulted in grievous injuries to Dr. Mangilal, who was admitted to M.Y. Hospital, Indore, but died due to injuries. Non-applicant respondent No. 1 was the owner and driver of the vehicle, which was taken on contract by respondent No. 2. The claimants sought compensation of Rs. 3,00,000/- on different headings.
5. The non-applicant No. 1 denied the fact of rash and negligent driving and ascertained that it had rained and the vehicle skidded and overturned. It was further pleaded that the vehicle was in possession of D.D.C. Ltd., N.A. No. 2 and he was driving the vehicle under orders of the officers of Corporation. It has also been pleaded that the Corporation has utilised the service of the vehicle and was not in possession of the vehicle and, therefore, the Corporation is not liable to make payment of compensation. The quantum of compensation was also disputed.
6. Respondent No. 3, inter alia, pleaded that there was a breach of condition. The vehicle was used for hire and was in possession of respondent No. 2 and, therefore, the respondent insurance company is not liable to make good the loss occasioned due to accident of the vehicle.
7. The learned Tribunal, after framing the issues answered them in favour of the claimants and held that the accident had occurred due to rash and negligent driving of the vehicle and awarded a compensation of Rs. 1,25,000/-, as stated above with a direction that all the three non-applicants are jointly and severally responsible for making payment. Hence, these two appeals and cross-objections, as referred to above.
8. The contention of the learned Counsel for the claimants-appellants is that the learned Tribunal has erred in assessing the dependency and has not taken into consideration the future prospects of increase in pay and promotion of the deceased.
9. Learned counsel for D.D.C. Ltd., respondent No. 2 (appellant in M.A. No. 63 of 1990), on the other hand, submitted that the vehicle was taken on hire and, therefore, they are not responsible for making payment of compensation. The insurance company has reiterated the objection as to the breach of conditions.
10. We were taken to the evidence on record. There is no serious challenge as to rash and negligent driving of the vehicle. Even otherwise that stands proved from the statement of Dr. Mohanveer Malik, CW 2, who was a co-occupier of the vehicle along with deceased Dr. Mangilal. He has very clearly stated that the speed of the vehicle was about 60 kmph and the same was not lowered despite one wheel of the vehicle going outside the road. Thus finding as to rash and negligent driving calls for no interference.
11. Leelawati, CW 1, has stated that Dr. Mangilal Yadav (her husband) was aged 33 years, at the time of accident. He was earning about Rs. 2,500/- p.m. M.K. Dixit, CW 3, has stated that pay of Dr. Mangilal Yadav was about Rs. 1,737/after deduction of Rs. 131/-. Thus, the gross pay comes to Rs. 1,868/-.
The learned Tribunal has assessed dependency of Rs. 800/- p.m. The document produced and proved by M.K. Dixit goes to show that the date of birth of Dr. Mangilal was 5.6.1948. Accident occurred on 8.8.1983. Thus, the age of Mangilal was about 36 years.
12. Looking to the pay and the future prospects and the increase in pay, in our considered opinion, the dependency ought to have been assessed at at least Rs. 1,250 p.m. Even otherwise if the gross pay on the date of accident is taken to be Rs. 1,868 and 1/3rd is deducted towards expenditure of Dr. Mangilal, the amount of dependency would come to little less than Rs. 1,246/p.m. which can be rounded to Rs. 1,250/-. For assessing the just compensation application of multiplier system is the best, as adopted by Apex Court in Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC). The learned Tribunal has adopted a multiplier of 12. The Supreme Court adopted a multiplier of 12 for a person aged 39 years. Here, in this case the deceased was aged 36 years and, therefore, a multiplier of 13 will have to be applied. Thus, the general damages payable come to Rs. 1,250 x 12 x 13=Rs. 1,95,000/-. The learned Tribunal has awarded Rs. 10,000 towards the loss of consortium to the wife and loss of love and affection to the children, which appears to be just and proper. Thus, the total compensation payable in the case comes to Rs. 2,05,000/-.
13. Now, the next point that comes for determination is that as to whether all the three respondents (in M.A. No. 335 of 1989) are jointly and severally liable or whether the D.D.C. Ltd. or the insurance company stands exonerated?
As accident occurred in the year 1983 the provisions of Motor Vehicles Act, 1939 shall be attracted. Section 2(19) defines word ‘owner’ as under:
Section 2(19): ‘owner’ means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement.
Thus, the person in possession and having control over the vehicle will be deemed to be the owner of the vehicle. We have perused the agreement, Exh. D/1, entered into between D.D.C. Ltd. and Ravindra Kumar Sharma, whereby D.D.C. Ltd. has taken the service of the vehicle. On the basis of agreement the vehicle was within the command and control of D.D.C. Ltd. and on the date of accident it was being driven under the command and control of D.D.C. Ltd.
14. Counsel for appellant D.D.C. Ltd. has vehemently submitted that Ravindra Kumar Sharma was the owner and driver of the vehicle. Since, he himself was driving, therefore, it would be deemed that he was in possession of the vehicle.
We are not in agreement with this contention of the learned Counsel as according to the terms of the agreement, the services of the vehicle were taken by D.D.C. Ltd., it was in the exclusive possession of D.D.C. Ltd. Looking to the definition referred to above, the ‘owner’ of the vehicle would mean the person in possession of the vehicle. It is not a case of hire-purchase agreement. It is a case where the vehicle was hired by D.D.C. Ltd. and it was in exclusive control of D.D.C. Ltd. It was driven at their command and, therefore, the D.D.C. Ltd. would be deemed to be in possession of the vehicle and thereby the owner of the vehicle on the date of accident.
15. We would further like to observe that this proposition of law may not hold good after change in the definition of word ‘owner’ vide Motor Vehicles Act, 1988, but as the present accident occurred much prior to coming into force of the amended Act, the person in possession will be deemed to be the owner of the vehicle.
16. Learned counsel for the insurance company has referred to condition No. 3 which is reproduced below:
The policy does not cover use for the purpose of (a) hire or reward, (b) organised racing or speed testing.
This goes to show that the vehicle can be used for one’s own business or profession for taking the members of the family and/or relations of the owner of the vehicle. It could be used for pleasure driving, but it could not be used for hire or reward. In this case the vehicle was given on hire to respondent No. 2, D.D.C. Ltd. and the D.D.C. Ltd. was in possession of the vehicle under the contract. In such a situation the insurance company would not be liable to make payment of compensation. In our considered opinion, therefore, in this case respondent No. 1, owner and driver of the vehicle and D.D.C. Ltd., respondent No. 2, are responsible to make payment of the compensation.
17. Learned counsel for the respondents have referred to a case reported in 1996 JLJ 343, whereby it has been held that under Section 95(2)(b)(i) and (ii) in Sub-clause (i) the expression ‘persons’ has been deliberately used to cover in it victims of the accidents, then sub-clause (ii) covers all remaining categories of passengers carried for hire or reward.
The case referred to above does not help the respondents in any way. In this case Dr. Mangilal was the person in possession of the vehicle as agent of D.D.C. Ltd. in whose control and command vehicle was being plied. Dr. Mangilal was the servant of D.D.C. Ltd. The heirs of Dr. Mangilal had a choice either to file application before the Member, Motor Accidents Claims Tribunal or to file application for compensation before the Labour Court. In this case they have filed application before the Member, Motor Accidents Claims Tribunal and, therefore, the D.D.C. Ltd. cannot be allowed to say that as forum of Labour Court has not been chosen, they are not liable to make payment of compensation.
18. As a result, appeal filed by D.D.C. Ltd., i.e., M.A. No. 63 of 1990 fails and is dismissed with costs. M.A. No. 335 of 1989 partly succeeds. Cross-objections filed by the insurance company also succeed and are allowed. The claimants are entitled to a compensation of Rs. 2,05,000 in all. They shall further be entitled for interest at the rate of 12 per cent per annum from the date of application till realisation of the same. N.A. 1 & N.A. 2, i.e., respondent Nos. 1 and 2 in M.A. No. 335 of 1989 are jointly and severally liable to make payment. Respondent Nos. 1 and 2 shall bear their own costs and shall pay cost of the claimants. Respondent No. 3, insurance company, shall bear its own costs. Counsel’s fee Rs. 2,000/-.