JUDGMENT
R.D. Shukla, J.
1. The appeal is directed against the judgment and award dated 30.1.1990 of the M.A.C.T., Khargone, passed in Claim Case No. 1 of 1987 whereby claimants’ application for compensation has been dismissed.
2. This is not in dispute that Jalamsingh was husband of claimant-appellant No. 1 and father of claimant-appellant Nos. 2 to 4. He died in the motor accident. He was thrown from tractor-trolley and crushed.
3. The respondent Nos. 2 and 2-A are the owners of the tractor-trolley. It was insured with N.A. respondent No. 4 and was working for respondent No. 3 who is a contractor.
4. Claimants’ case in brief is that Jalamsingh was working as labourer and was being taken to the work-site on the tractor. Respondent No. 1 was driving the vehicle rashly and negligently. He took a sudden turn which caused jerk. Jalamsingh was thrown thereby and was crushed under the wheel of trolley.
He sustained grievous injuries and was admitted in Khargone Hospital and died.
5. It is further asserted that Jalamsingh was aged about 32 years and was earning Rs. 11/- per day. He was the bread earner of the family. Claimants have, therefore, claimed Rs. 1,10,880/- as general damages and Rs. 50,000/- for loss of consortium, love and affection; Rs. 25,000/- for pain and suffering and Rs. 2,000/- for the last rites totalling to Rs. 1,87,880/-.
6. N.A. respondent Nos. 2 and 2-A have admitted the ownership of the vehicle and its insurance with respondent No. 4 and further admitted that it was being driven by respondent No. 1. However, they have denied the fact of respondent No. 1 being in the service of N.A. respondent Nos. 2 and 2-A and it was further asserted that Jalamsingh was in the employment of N.A. respondent No. 3. They have denied the fact of rash and negligent driving also.
N.A. respondent No. 3 has denied the fact of tractor being attached to his work contract and the fact of rash and negligent driving as well.
7. Learned Tribunal found that the tractor-trolley was attached in the work contract of N.A. respondent No. 3 and respondent No. 1 was not in the service of N.A. respondent Nos. 2 and 2-A. The fact of death of Jalamsingh and working as a labourer has been answered in affirmative. The issue as to labourer being taken to the work-site has been answered in negative and as the fact of rash and negligent driving has not been found proved, the whole claim petition has been dismissed. Hence this appeal by appellants.
8. Contention of learned Counsel for appellants is that the very fact that tractor-trolley took a sudden turn at a speed of about 50-60 km. per hour, goes to show the fact of rash and negligent driving.
9. It has further been submitted that as deceased was working as a labourer and was being taken in the tractor-trolley at the work-site, the respondents are liable to make payment of compensation.
10. Learned counsel for respondents on the other hand supported the award of the Tribunal.
Learned counsel for insurance company has submitted that as the tractor was engaged in other than agricultural work and was in the possession of N.A. respondent No. 3, the insurance company is not liable to make payment of he compensation amount.
11. We were taken to the evidence on record.
The fact of death by injuries sustained during accident has not been challenged and rightly so as that stands proved apart from the evidence of other witnesses from the evidence of Dr. Bhavbhuti Purohit.
12. Bharatsingh, PW 4, who was a co-worker has stated that he was also travelling in the same tractor. He was sitting by the side of the driver and Jalamsingh was sitting on the open space of the tractor’s mudguard. Tractor driver took a sudden turn. Jalamsingh fell down and was crushed under the wheel. He has further stated about having disclosed the fact to the police. The documents produced by claimants further go to show that the F.I.R. was lodged and case was investigated and the driver was prosecuted.
13. The very fact that a sudden turn at the same speed was taken, goes to show the rash and negligent driving. Even otherwise the principle of res ipsa loquitur (incident speaks for itself) shall be attracted in the case. There is nothing to disbelieve the story disclosed by Bharatsingh.
14. Driver Ram Singh has denied the fact that Jalamsingh was coming on the tractor and has further stated that his attention towards Jalamsingh was drawn after he found him beneath the wheel.
His evidence does not inspire confidence. During cross-examination he has admitted that he was working as a driver for the last ten years and admitted that he was working with the contractor who was paying him Rs. 20/- per day. He further admitted that he was sent to work with the tractor.
15. Dinesh (NAW 1) has stated that the tractor was sent to Inamuddin, i.e., N.A. respondent No. 3 for agricultural work. Inamuddin, contractor, took the tractor through driver Ram Singh.
16. It is noteworthy that Inamuddin has not come in the witness-box and thus, the evidence of Dinesh remains unrebutted. He stands partially corroborated from the statement of Ram Singh who has stated that some water-tanks were kept in the trolley; but looking to the evidence of Bharatsingh it appears to be correct that he along with Jalamsingh and other labourers were returning after work. Ram Singh has tried to change his stand during the cross-examination by advocate of claimants and another respondent.
17. We, therefore, hold that the tractor was being taken under the orders of owners of tractor and was taken for the purpose of agricultural work; meanwhile, work other than for agricultural purposes was also taken.
18. The insurance policy, Exh. D/1, shows that the tractor was insured for agricultural purpose only.
19. In view of above and in the absence of statement by Inamuddin it is found proved that though the tractor was initially taken for agricultural work through driver Ram Singh but the tractor was used for other than agricultural work by and under orders of N.A. respondent No. 3, and with the consent and connivance of owner.
20. The next point that arises for determination is as to what would be the just compensation and who are responsible to make payment of compensation.
21. Claimants have stated that Jalamsingh was getting about Rs. 11/- per day; if 1/3rd amount is deducted for his personal expenditure and if the fact of rise in prices is taken into consideration, the minimum dependency would come to Rs. 8/- per day, i.e., Rs. 240/- per month.
22. Doctor who has conducted autopsy has shown the age of Jalamsingh to be 35 years. In such a situation a multiplier of 13 will have to be applied and, therefore, the amount of general damages would come to Rs. 37,440/- which may be rounded to Rs. 38,000/-.
23. Claimants are further entitled to loss of consortium, love and affection; an amount of Rs. 10,000/- would be just and proper compensation on that count. Thus, claimants are entitled to a compensation of Rs. 48,000/- in all.
24. As the accident occurred during the work other than work of agricultural purposes, under orders of the contractor N.A. respondent No. 3 and with the consent of owners of the tractor N.A. respondent Nos. 2 and 2-A and therefore, the driver, owner of the tractor and the contractor, i.e., N.A. and respondent No. 1, respondent Nos. 2, 2-A and 3 are jointly and severally liable to make good the losses and pay the compensation.
25. Since there was a breach of condition and accident occurred during the work other than agricultural purposes, insurance company stands exonerated from liability of payment of compensation.
26. As a result, appeal partly succeeds. Claimants-appellants are entitled to a compensation of Rs. 48,000/- and they are further entitled to simple interest at the rate of 12 per cent per annum from the date of petition till realisation of the same.
27. Non-applicant-respondent Nos. 1, 2, 2-A and 3 are jointly and severally liable to make payment of compensation amount. They shall bear their own cost and shall pay the cost of the claimants throughout.
Appeal against N.A. respondent No. 4, insurance company, fails and it is held that insurance company is not liable to make payment of compensation amount. Insurance company shall bear its own cost.
28. It is further directed that out of the amount recovered, 2/3rd of the same shall be deposited equally in the names of all the four claimants for a period of ten years in an interest paying scheme with some nationalised bank. They shall be entitled to withdraw the interest only for meeting day-to-day expenditure. No loan against the said deposit shall be sanctioned.
Remaining 1/3rd amount and the cost, if recovered, shall be paid to all the claimants jointly and severally either in cash or by cross-cheques as the Claims Tribunal deems it fit.
Counsel’s fee Rs. 1,500/-, if certified.