JUDGMENT
Shambhoo Singh, J.
1. This judgment shall govern the disposal of M.A. No. 358/97, Bapu and Ors. v. Karansingh and Anr. and M.A. No. 357/97, Ramnarayan and Ors. v. Karansingh and Anr. as they arise out of the same accident.
2. The facts of the case, in brief, are that on 16-5-1994 tractor-trolley No. M.P. 11/3164 and M.P. 11/4769 owned and driven by respondent/non- applicant No. 1 Karansingh and insured with respondent/non-applicant No. 2 Insurance Co. and tractor No. M.P. 11/7220 driven by Radheshyam were carrying ‘Barat’ party. The deceased Daryao, son of appellant-claimants Nos. 1 and 2 and father of appellants Nos. 3 to 5, and Sangita, daughter of appellant-claimant Ramnarayan, were travelling in tractor No. M.P. 11/7220. Near Talen valley, Daryao and Sangita alighted from the tractor of Radheshyam for urination. Radhyeshyam proceeded with his tractor asking them to come in the tractor of Karansingh which was coming behind. After sometime Karansingh came there, driving his tractor in rash and negligent manner, it turned-turtle and crushed Daryao and Sangita, as a result of which they died on the spot. The deceased Daryao was working as ‘Hummal’ (coolie), in Indore and was earning Rs. 35,000/- per year. The parents, his sons and daughters filed claim case No. 167/96 claiming compensation of Rs. 10,60,000/- and Ramnarayan, his wife and sons filed claim case No. 168/96 seeking compensation of Rs. 4,60,000/- for the death of Sangita. Respondent No. 2 inter alia pleaded that Karansingh, the owner of the tractor committed breach of the insurance policy as he carried passengers in the tractor. According to Insurance Co. Daryaosingh and Sangita were travelling in the tractor of Karansingh and they fell down due to rash and negligent driving of the tractor. Karansingh also had no valid driving licence, therefore, it was not liable to pay compensation. The learned Tribunal held that the accident occurred due to rash and negligent driving of tractor No. M.P. 11/3164 by Karansingh, as a result of which Daryao Singh and Sangita sustained injuries and died. It further held that Karansingh committed breach of the terms and conditions of the policy by carrying ‘Barat’ party in his tractor, therefore, Insurance Company was not liable to pay compensation. The Tribunal awarded compensation of Rs. 1,22,200/- for the death of Daryaosingh and Rs. 52,000/- for the death of Sangita to be paid by Karansingh. Being aggrieved of the amount of compensation and absolving of Insurance Company, the L.Rs. of deceased Daryao filed MA. No. 358/97 and L.Rs. of deceased Sangita filed M.A. No. 357/97. Respondent No. 1 filed cross-objections.
3. Shri S. M. Jain, L.C. for the appellants, submitted that the learned Tribunal committed error in holding that the deceased Daryaosingh and Sangita were travelling in Karansingh’s tractor and they fell down therefrom and sustained injuries. He submitted that the evidence on record clearly proves that both of the deceased persons were travelling in the tractor driven by Radheshyam. They got down from the tractor of Radheshyam to ease themselves and after urination they were waiting for the tractor of Karansingh who came there driving his tractor rashly and negligently. It turned-turtle and struck against Daryao and Sangita, as a result of which they died. He, therefore, contended that the deceased were not travelling as passengers in the offending tractor. They were third party and, therefore, the Insurance Company was liable to pay compensation. Shri Jain further submitted that the Insurance Co. entered in compromise with other occupants of this tractor and paid them compensation. Shri D. D. Vyas, learned A.A.G. for respondent No. 1 Karansingh, submitted that the tractor was insured with respondent No. 2, therefore, it was liable to pay compensation. On the other hand, Shri Dandwate, LC for Insurance Co. supported the impugned award.
4. We considered the arguments advanced by counsel for both sides and perused the evidence. It has come in the statement of Bapu (C.W.I), the father of deceased Daryao and Ramnarayan (C.W.2), the father of Sangita, that the Barat of Bhursingh was coming from Miyapura in two tractors, belonging to Karansingh and Radheshyam. They further deposed that they were travelling in the tractor driven by Radheshyam along with deceased Sangita and Daryao. The deceased got down from the tractor for easing themselves. Radheshyam asked them to come in the tractor of Karansingh which was coming behind. They further stated that Karansingh came there driving his tractor at high speed, as a result of which it struck against Daryao and Sangita and turned-turtle. No evidence in rebuttal has been produced by the respondents. Karansing did not examine himself nor was examined by the respondent Insurance Company. The learned Tribunal committed error in disbelieving the evidence given on oath before it on the basis of F.I.R. Ex.P.2 wherein it was mentioned that the deceased were travelling in the tractor driven by Karansingh. Ratan Singh who is alleged to have lodged this F.I.R. or the police officer who recorded it, has not been examined. Therefore, on the basis of Ex.P. 2, the substantive evidence of the above witnesses cannot be (sic) -aside. In our opinion, from the evidence of the appellants’ witnesses it has been proved that Sangita and Daryao were travelling in the tractor driven by Radheshyam and they got down for urination and thereafter Karansingh came driving his tractor rashly and negligently and dashed against them, as a result of which they sustained injuries and died on the spot. 5. It is true that Karansingh was carrying passengers in his tractor- trolley in breach of the terms and conditions of the policy. According to the insurance policy only six labourers could be carried in the tractor. But the tractor did not overturn because of the travelling of the passengers in the trolley. There Lordships of the Supreme Court in case of 1996 ACJ 1178, B. V. Nagaraju v. Oriental Insurance Co. Ltd, where the driver of the truck allowed more persons to travel in the truck than allowed by Motor Vehicle Rules and the insurance policy, held that on account of this breach, Insurance Co. cannot be absolved from its liability. Even otherwise, in view of the provisions of Sections 95(5) and 96(1) of the Motor Vehicles Act, which are quoted below; the Insurance Co., was liable to pay compensation;
“95(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
96(1) If, after a certificate of insurance has been issued under sub- section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.”
From the perusal of above, it is clear that even if the insurer was entitled to avoid the liability of paying compensation on some grounds, still it was liable to pay compensation to the person entitled to the benefit of the award. In view of the provisions of Sections 95(5) and 96(1) of the Motor Vehicles Act, the respondent Insurance Company was liable to pay the amount of compensation to the claimants. If the Insurance Company feels that it was not liable to indemnify the insured, it could take legal steps against the insured in accordance with the provisions of law. The learned Tribunal committed error in absolving it.
6. Now we come to the question of quantum of compensation.
M.A. No. 358/97 (claim case No. 167/96)
7. The learned Tribunal awarded compensation of Rs. 1,22,200/- to the L.Rs. of the deceased Daryao. In our opinion, the amount of compensation does not appear to be on lower side. Bapu (C.W. 1), the father of the deceased Daryao, stated that his son Daryao was working as ‘Hummal’ at Indore and he used to pay him Rs. 5,000/- yearly. He admitted in cross-examination that male labourers were paid Rs. 30/- per day while women labourers were paid Rs. 25/- per day. He did not state as to what was the daily earning of the deceased Daryaosingh. Under such circumstances, the Tribunal on the basis of the statement of Bapu that male labourers were earning Rs. 30/- per day, assessed the monthly income of the deceased at Rs. 900/-. In our opinion, the assessment of the learned Tribunal in view of the evidence cannot be said to be erroneous. The Tribunal after deducting l/3rd of it for personal expenses of the deceased determined monthly dependency at Rs. 600/- and selected multiplier of 16 in view of the age of the deceased which was 35 years and worked out (7200 x 16) Rs. 1,15,200/-. It further awarded Rs. 5,000/- for loss of love and affection and Rs. 2,000/- for funeral expenses, totalling Rs. 1,22,200/-. In our opinion, this amount is just and reasonable and does not call for interference.
MA. No. 357/97 (claim case No. 168/96)
8. In this case, the learned Tribunal awarded Rs. 52,000/- for the death of deceased Sangita aged about 10 years. Admittedly, Sangita was not an earning member. Under such circumstances, it cannot be said to be on lower side. A Division Bench of this Court in case of Devchand and Anr. v. Babulal Faujdar Bus Service and Anr., 1997 ACJ 392, awarded compensation of Rs. 50,000/- as compensation for the death of a child in accident which had occurred on 9-5-1985. Even otherwise, Sangita was aged about 10 years, after sometime, she would have been married and would have gone to her matrimonial home. Keeping in view all the facts and circumstances of the case, we hold that the amount of compensation awarded by the Tribunal is just and reasonable.
9. In the result, both the appeals are partly allowed and the award is modified and it is directed that the respondent Insurance Co. shall pay the amount of compensation to the claimants with interest as directed by the Tribunal. There shall be no order as to costs.