JUDGMENT
S.K. Dabey, J.
1. This appeal Under Section 110-D of the Motor Vehicles Act, 1939 (for short “the Act”), shall also govern the disposal of Misc. Appeal No. 175/79 Vitthal v. Laxminarayan and Ors. and Misc. Appeal No. 176/79 Deceased Shiva and Legal Representatives Gopabai v. Laxminarayan and Ors.
2. Short facts for disposal of these appeals are as under:
On 14-6-77, Durgabai aged 35 years w/o Khandu, Yashodabai aged 20 years w/o Vitthal and deceased Shiva after collecting fire wood from jungle were coming from Bijasan that and were going to Sendhwa. They were awaiting on the road side for conveyance. At the same time, a truck No. 5441 MPN owned by, one Laxminarayan (respondent No. 1) driven by Anopsingh (respondent No. 2) and insured by the New India Insurance Co. (respondent No. 3), loaded with the rollers, was going towards Sendhwa. Some passengers were also sitting in the said truck. These three persons demanded lift from the driver. The driver, on payment of some fare, gave lift to these three persons with their head loads of wood. These three persons boarded the truck with their head loads. On the way, the truck because of rash and negligent driving, met with an accident at about 5-15 PM, in between Sendhwa and Bijasan Ghati, as a result of which Durgabai and Yashodabai died and Shiva received multiple grievous injuries.
3. Khandu, husband of Durgabai and Bhikhi, Sakhi, Langdu and Ravi, children of Durgabai, filed an application Under Section 110-A of the Act claiming compensation of Rs. 1 lac for the death of Durgabai. Vitthal, husband of Yashodabai, claimed compensation of Rs. 70,000/- before the Tribunal for the death of his wife. Shiva claimed the compensation of Rs. 1,20,000/- for the injuries received by him, who ultimately died in the hospital in the month of December, 1977 because of the injuries. His parents Pundlik and Gopibai were brought on record, the application was amended accordingly. During the pendency of the claim petition, father of Shiva also died. Driver remained ex parte before the Tribunal. The owner of the vehicle and Insurance Co. contested the claim. The owner denied the allegations No plea was raised by the owner that the driver, unauthorisedly and without the consent or permission of the owner gave lift to the victims and further contended that the Insurance Company, is liable to pay the compensation according to the terms of the policy. The Insurance Company raised the defence that the vehicle was a goods carrier, wherein the carrying of passengers was prohibited. As the passengers were being carried in breach of the terms of the insurance policy, the Insurance Company is not liable to pay any compensation.
4. The learned Tribunal framed the issues. No issue was framed about the acting of the driver beyond the authority and the scope of the employment and giving of the lift unauthorisedly without the consent of the owner. No issue was also framed to the effect that master/owner is not vicariously liable. The evidence was recorded in claim case No. 47/77 Khandu v. Laxman four witnesses were examined on behalf of the claimants, i.e. Gopabai (PW 1), Khandu (PW 2), Vitthal (PW 3) all claimants, and Loten an eye-witness. In rebuttal no witness was examined by any of the parties, even, the driver and owner did not examine themselves. Insurance Company produced the policy of the Insurance which was admitted by the parties.
5. The Tribunal, after trial held that the accident occurred because of rash and negligent driving of the driver, as a result of which the truck went into ditch and turned turtle. For the death of Durgabai, who was aged about 35 years, out of her earnings, the dependency was arrived at Rs. 75/- per month, Rs. 900/- yearly, multiplied by 25 years total Rs. 23,500/- was arrived. But after giving lump-sum deductions only Rs. 3000/-were awarded as compensation. Four children were further awarded Rs. 1000/- each for the loss of company and husband Khandu was awarded Rs. 2000/-. In all Rs. 9000/- were awarded to the legal representatives of Durgabai. In Claim Case No. 45/77 (Vitthal h/o Yashodabai) was awarded compensation of Rs. 5,000/-, Gopabai mother of Shiva was awarded only Rs. 500/- for the injuries caused to her son who ultimately died because of the injuries during the pendency of the claim. The Tribunal held that the amount under award in each case shall be payable by the driver only. The owner was not made liable because the Tribunal gave a finding that the driver gave lift without any authority and unauthorisedly. The Insurance Company was not held liable to pay any compensation because carrying of passengers in goods vehicle was prohibited.
6. Aggrieved of the award, passed by the Tribunal, all the three claimants have preferred these separate appeals and challenged the findings about the liability of owner and insurer and have also prayed for enhancement of compensation and interest. Shri H.S. Rajpal, Advocate appearing for the appellants-claimants, submitted that the compensation awarded is too low, rather it is a mockery of the Tribunal, who treated the human life being so cheap. All these three claimants were earning members. In any case compensation cannot be less than Rs. 15,000/- each looking to the intendment of the Parliament in the Act by incorporating Section 92-A of the Act wherein, even, in no fault liability cases minimum compensation fixed is Rs. 15,000/-. He submits, that this Court even in the cases arising out of the use of the Motor Vehicle before the insertion of Section 92-A, while hearing the appeals compensation awarded minimum Rs. 15,000/- and the interest thereon at the rate of 12% per annum from the date of the application till payment. In respect of the liability of the owner and insurer, Shri Rajpal contended that the goods were being carried, i.e. head load, and with the goods the owner was travelling in the vehicle, as such the owner and insurer both are liable to pay compensation. He leanded support on the Full Bench case of this Court Harishankar Tiwari v. Jagru 1987 ACJ, Vol. I, page 1. Shri Rajpal also drawn my attention towards Rule 111 of the Motor Vehicles Rules, 1974, and urged that six passengers are allowed in a goods vehicle as a bonafide employee or owner of goods as such the Insurance Company is liable to pay the compensation.
7. Shri Samvataar, Advocate appearing for the Insurance Company submitted that it is settled that Insurance Co. will only be liable in case the owner of the goods or the employee or agent or care-taker of the goods, travel in the truck with the goods which are loaded and carried in the truck. It will not cover the risk of the persons, who after taking lift from the driver on payment of some money or fare otherwise travel in the truck carrying with them, their some luggage or goods. In support of his contention he also relied on the Full Bench authority of Harishankar case (supra), a Full Bench decision of Bombay High Court in case of Oriental Fire and General Insurance Co. v. Hira Vitthal Nikai 1988 ACJ, 494, two Division Bench authorities of this Court in Pathribai Karansingh and Ors. v. Firm Lalji Shankarilal and Ors. 1985 ACJ, 526, Nanu and Ors. v. Hayatkhan and Ors. 1988 ACJ, Vol. I, 10 and Abdul Salam v. Kishan 1981 MPW Note, Vol 2, Note No. 226 and the case of the Supreme Court in Pushpabai Purshottam Udesi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343. He submits that in such facts and circumstances of case, only driver and owner would be liable and not the insurer. For this sub mission, he placed reliance on the Full Bench Case of this Court in Narayanlal and Anr. v. Rukhmanibai and Ors. 1979 ACJ, 261 and a single Bench decision of this Court reported in Mahendrapalsingh and Anr. v. Prakashchandra Goyal and Ors. 1987 ACJ, 677. The owner though defended the case remained ex-parte before this Court. Driver was ex parte before the Tribunal as well as before this Court. Hence, after the service of the notice of appeal for the date of hearing i.e. 23-6-88, again SPC was sent intimating them about the fix date of hearing, but even after this, the owner and the driver did not appear nor contested the appeal. In the circumstances the appeal was heard in their absence.
8. First I will deal with inter se liability between the owner, Insurer and the driver. The Tribunal after holding the driver as rash and negligent, erred in holding that the owner of the vehicle is not liable to pay compensation. The conclusion to this effect in para 39 holding that the owner and the Insurance Co. not liable as the driver of the vehicle gave lift to the deceased persons unauthorisedly, is illegal and perverse. Before the tribunal, there was no case pleaded by the owner that the driver was not acting the scope of his employment. It was not pleaded that there was any express prohibition by the master from giving lift to anyone in the truck. Not only this, no such issue was framed nor any question even was put to the witness of the claimants. Further, the owner and the driver did not examine themselves. Thus, this finding and conclusion of the tribunal that the owner is not liable, because the driver gave lift unauthorisedly and beyond the scope of his employment, is not only illegal but is also perverse. The tribunal made out a new case, which was not pleaded nor put to in issue. Besides, the burden of proving the fact that there was an express prohibition by the owner of the vehicle to the driver for giving lift to anyone in the truck, was upon the owner, who failed to discharge the same. Hence, the owner is vacariously liable for the payment of compensation to claimants. See the Full Bench decision of this Court in Narayanlal and Anr. v. Renukabai and Ors. 1979 ACJ, 261 and Division Bench decisions of this Court in Abdul alam v. kishan M.A. No. 140/78, decided on 9-4-81 at Indore, reported in 1981 (2) MPWN Note No. 266 and Misc. Appeal No. 345/83 Nanu and Ors. v. Hayatkhan and Ors. reported in 1988 (1) ACJ, 10.
9. In respect of the liability of the Insurance Company, the findings and conclusions of the tribunal cannot be disturbed. It is evident from the case pleaded by the parties before the tribunal and the evidence so led by the claimants, that the deceased were not travelling in the truck as owner of the goods or the agent or caretaker or an employee of the owner of the goods but the truck was already loaded with rollers and some persons were also travelling in that truck. The deceased persons with headloads of wood demanded a lift on payment of fare. The deceased persons paid the fare to the truck driver and boarded the truck with their headloads, of wood or luggage. The contention of the learned Counsel cannot be accepted that the deceased persons were travelling in the vehicle for safe carriage of the goods. It has also not been proved that the truck was hired for carrying of the goods belonging to the deceased. It cannot be held in such a situation that the deceased persons were travelling in the truck for safe carriage of their goods. The distinction made by Shri Rajpal and reliance placed on the Full Bench decision of this Court in Harishankar’s case (supra) cannot be made applicable in the present facts and circumstances of the case, wherein it was held that the Insurance Company is liable to cover the risk of a hirer/agent or his employees travelling with the goods in a goods vehicle under the proviso to Clause (b) of Section 95(1) as a passenger carried for hire or reward or by reason or in pursuance of a contract or employment. Moreover, the said decision, instead of supporting the case of the claimants, supports the case of the Insurance Company. In such state of affairs, case pleaded, evidence led, it cannot be held that the deceased persons were travelling in the truck as the owner or agent, employee or caretaker of the goods. The Full Bench of this Court and full Bench of Bombay and Division Bench cases of this Court, support the contention of the Insurance Company, and I cannot take a different view. The result is that the Insurance Co. cannot be made liable to pay compensation to the claimants and the owner is vicariously liable. Both owner and driver jointly and severally shall pay the compensation and interest as indicated hereinafter.
10. As regards compensation, the compensation awarded by the tribunal in the circumstances of the case, is too low. Now, the view of this Court is that for a human life, the compensation cannot be less than Rs. 15,000/- as after the insertion of Section 92-A in no-fault liability cases, the minimum compensation fixed is Rs. 15,000/-. Without going into the question of calculation of dependency or other factors. I am of the view that the claimants are entitled to Rs. 15,000/- as compensation in each case for the death of Durgabai, Yashodabai and Shiva, which I award in all the three eases. See Shamsher Khan. M.P.E.B. and Ors. 1987 ACJ 462, Rukmanibai v. Ramlal and Anr. 1988 ACJ, 351 and the view taken by them in Deoji v. Anwar Khan and Ors. M.A. No. 141 of 1979, decided on 21-6-88.
11. The interest awarded is also not in accordance with the mandate of the highest judicial pronouncements and thereafter the consistent view of this Court following the judgments of the Apex Court. The appellants-claimants are entitled to interest at the rate of 12% per annum from the date of the application on the amount of compensation of Rs. 15,000/-. One word is necessary for the case of Shiva. Shiva was alive when the claim petition was filed. He claimed compensation for the, injuries but because of the said injuries, the tribunal awarded only Rs. 500/- though it was held that the death of Shiva occurred only because of the said injuries. Even for the injuries, such a low compensation could not have been awarded. Award of such compensation is nothing but a mockery. As the death of deceased occurred because of the injuries, during the pendency of the trial, the legal representatives of Shiva, i.e. his mother now only, is entitled to Rs. 15,000/-as compensation See New India Assurance Co. Ltd. v. Shakuntaladevi and Ors. 1987 JLJ 462.
12. The upshot of the above is that all the appeals are allowed. The claimants are awarded Rs. 15,000/- as compensation for the death of Durgabai, Yashodabai and Shiva. This amount of Rs. 15,000/- in each case shall carry interest at the rate of 12% per annum from the date of application till payment. The award shall be satisfied by the owner and the driver jointly and severally, i.e. Laxminarayan s/o Bhuralal (owner) and Anopsingh s/o Bhanwarsingh (driver) In case any amount is deposited by the driver, it shall be given due adjustment. The amount so awarded shall be satisfied by the owner and the driver within six weeks from today. Result is appeals are allowed with no order as to costs.
13. In Misc. Appeal No. 174/79, appellants Nos. 2, 3, 4 and 5 are minors, out of them atleast one must have attained majority. In case the amount is realised from the owner and driver of the vehicle including the amount of interest, out of the said amount Rs. 3,000/- for each minor and the interest thereon, shall be deposited by the Tribunal in a Nationalised Bank, which shall be payable to the minor appellants when they attain majority or they obtain suitable orders from the Tribunal.