JUDGMENT
A.K. Gohil, J.
1. This judgment shall govern the disposal of Misc. Appeal No. 283 of 1994 filed by the insurance company and Misc. Appeal No. 276 of 1994 filed by the claimant.
2. Deceased Mukesh Kumar was diploma holder in Civil Engineering and was working with the contractor of National Fertilizer Plant. On 30.6.1990 the deceased was returning from duty and was travelling in a jeep No. MP 3227, the said jeep was driven by the driver Pradeep Kumar, respondent No. 1. Shakir Hussain, respondent No. 2, was the owner of the said jeep. The jeep was insured with National Insurance Co. Ltd., the respondent No. 3. The driver of the jeep was driving the jeep rashly and negligently. He made attempt to overtake a vehicle. As a result, deceased Mukesh Kumar was thrown out from the jeep and he was crushed by the truck, which was coming behind the jeep and he died. Deceased was unmarried. He was getting salary of Rs. 2,800 per month. The claim was contested on the ground that no accident took place with the jeep and owner and driver of the truck were necessary party. The insurance company contested the claim on the ground that driver violated the terms and conditions of the insurance policy, therefore, the insurance company is not liable. The Motor Accidents Claims Tribunal after considering the evidence on record found that no accident took place from the truck, the owner and driver of the truck were not the necessary party. There was no violation of the terms and conditions of the policy, therefore, the insurance company is liable but awarded Rs. 25,000 under no fault liability and Rs. 10,000 for loss of love and affection, thus, awarded total compensation of Rs. 35,000 to the parents. Against which claimants who are parents and insurance company both have filed appeals. Insurance company has filed appeal about its liability and claimants have filed appeal for the enhancement of compensation.
3. We have heard the learned Counsel for the parties and perused the evidences and findings recorded by Claims Tribunal.
4. Mr. Amit Bansal, learned Counsel for the insurance company, has vehemently submitted that jeep was insured only for private use and not for carrying passengers for hire or reward and that at the time of said accident jeep was being driven and used for the purpose for which it was not insured in contravention of the terms and conditions of the policy, therefore, the insurance company is not liable. He further argued that the deceased was a gratuitous passenger. Section 147 of Motor Vehicles Act, 1988 does not permit to cover the risk in respect of death of or bodily injury to a gratuitous passenger in the vehicle, in which passengers are carried for hire or reward and according to the policy, Exh. D1, no premium was paid for the risk of the passengers, therefore, insurance company is not at all liable to pay compensation.
5. In reply, Mr. R.P. Gupta, the learned Counsel for the claimants, submitted that the matter has to be decided on the basis of the terms and conditions of the policy. Third party risk of occupant is covered by the policy and the vehicle was not used for hire or reward. The insurance company has also failed to prove that the deceased was travelling as a gratuitous passenger. He has further submitted that the Tribunal has also recorded a finding that the vehicle was not being used for hire or reward. There is no evidence on record that the deceased had paid any fare to the driver of the jeep. Insurance company has to prove that the insured is responsible for acting in such a manner which has resulted in violating the terms and conditions of the policy. It was further argued that this was also required to be proved by the insurance company that the driver was not having valid licence. Claims Tribunal has found that there is no evidence on record to prove that the driver of the vehicle was not having any valid driving licence.
6. Having considered the rival submissions of the learned Counsel for the parties, we have perused the evidence on record and also considered the terms and conditions of the policy.
7. Gajanand Prasad, AW 4, who was also travelling in the same jeep on the date of the incident, has stated that there was collision between the truck and jeep. 4-5 persons were sitting in the jeep. The fare was payable at the place of destination. He had not asked about the fare but had taken permission to travel in the jeep. In the cross-examination he has stated that he has made up his mind that whatever amount jeepwala will demand, he will pay.
8. Girraj Kishore Samadhiya, AW 5, was also travelling in the same jeep. He has deposed that Mukesh (deceased) was sitting in the jeep behind the seat of the driver. The driver was driving the jeep rashly and negligently with an uncontrolled speed. When the jeep came on the blind turning after overtaking the truck the jeep dashed against the military truck. As a result, Mukesh was thrown outside the jeep and thereafter Mukesh was crushed by the truck, which was coming behind the jeep. There was no effective cross-examination from this witness about the use of the jeep or about the nature of travelling by the passengers or by deceased Mukesh Kumar.
9. Insurance company has produced Devkinandan Garg, DW 1, who has stated that the vehicle was insured for personal use and policy was not issued for the use of vehicle by passengers. In the cross-examination he has admitted that the vehicle was insured for social, domestic and pleasure purposes and Section II(1)(a) of the policy, Exh. D1, was made effective.
10. From the aforesaid evidence, it is clear that there is no evidence as to how the deceased Mukesh was travelling. The insurance company has failed to prove that he was travelling as a gratuitous passenger or was travelling for hire or reward. We have also perused the terms and conditions of the policy. Section II relates to ‘Liability to third parties’. Under sub-clause (a) of clause (1) of section II, it is clear that for the death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirements of Sections 92A and 95 of Motor Vehicles Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured. From the aforesaid condition of the policy, it is clear that for the death of any person including the occupants carried in the motor car provided that such occupants are not carried for hire or reward, the insurance company shall be liable to indemnify the insured. The insurance company has not changed the terms and conditions of the policy even after the enforcement of new Motor Vehicles Act, 1988 and its amendment in 1994.
11. From the aforesaid terms and conditions, it is also clear that the risk of the occupants is covered under the third party liability. It was the burden on the insurance company to prove that the passengers were carried for hire or reward. There is no evidence on record to prove that the deceased was travelling either as a gratuitous passenger or on hire or reward. The insurance company has failed to prove the violation of terms and conditions of the policy by the insured. Under the policy the occupants are covered under third party risk, therefore, the insurance company is liable. This case is squarely covered by the decision in the case of Dr. T.V. Jose v. Chacko P.M. 2001 ACJ 2059 (SC), in which Supreme Court has held that to decide the liability of the insurance company the terms and conditions stated in the policy are relevant and if the risk of the occupant is covered specially under the third party policy, the insurer is liable.
12. Therefore, in view of the policy, we find that the Claims Tribunal has rightly recorded the finding and has rightly held that the insurance company is liable for payment of compensation and there is no merit in the appeal filed by the insurance company. Accordingly, the appeal of the insurance company (Misc. Appeal No. 283 of 1994) is liable to be dismissed.
13. So far as Misc. Appeal No. 276 of 1994 filed by claimants for enhancement of compensation is concerned, it has come in the evidence that the deceased was working with the contractor of National Fertilizer Limited and was getting salary of Rs. 2,800 per month. The parents were fully dependent on the deceased. Nemi Chand, AW 2, father of the deceased, has deposed that the deceased was diploma holder in Civil Engineering and working with the D.J. Building Company, which has contracted National Fertilizer Limited at Vijaypur. He was getting total salary of Rs. 2,800 per month and he was paying Rs. 2,000 to his father for maintenance and expenses. There is no rebuttal of evidence on record. Accordingly, it can safely be held that the deceased being Engineer was having a bright future, therefore, his income is considered at Rs. 3,000 per month and yearly income as Rs. 36,000. As the claimants are parents, therefore, one-third amount Rs. 12,000 p.a. can be considered for their dependency. The parents of the deceased are aged about 51-53 years. At the time of accident, the age of the deceased was 26 years but since the parents are the claimants, multiplier would be applicable on the age of the parents. The age of the mother is 51 years and that of father is 53 years. Therefore, if the lower age of the mother is taken into consideration, by applying the multiplier of 11 on the age of mother the amount comes to Rs. 12,000 x 11 = Rs. 1,32,000. To this amount, further sum of Rs. 25,000 is awarded under various heads, such as, funeral expenses, loss to estate, loss of love and affection, etc. Thus, the claimants would be entitled for total compensation of Rs. 1,57,000 with interest at the rate of 7 per cent per annum on the enhanced amount of compensation from the date of filing of the appeal with costs of this appeal to the claimants. The counsel’s fee Rs. 1,000.
14. Thus, the appeal filed by insurance company (Misc. Appeal No. 283 of 1994) is dismissed as having no merit and the appeal filed by claimants (Misc. Appeal No. 276 of 1994) seeking enhancement of compensation is allowed to the extent as indicated above.