JUDGMENT
R.S. Chauhan, J.
1. Having lost their mother on an earlier occassion, five small children lost their father in an accident. Ramkishan Meena, a poor labourer while coming on a truck filled with stones, met his untimely death. The truck on which he was travelling was rashly and negligently driven by the driver. The truck went off the road. Because of bumpy ground, Ramkishan fell from the truck and his head was crushed under the rear wheel of the truck. He died instantly. Five children so orphaned were represented by their maternal grand-father, who filed a claim petition on their behalf. Considering the facts and circumstances of the case, the Additional District Judge (Fast Tack) No. 7, Jaipur City, Jaipur, was pleased to award a compensation of Rs. 4,90,800 to the claimants vide his award dated 21.3.2005. However, the Insurance Company is aggrieved by the fact that the orphans have been given such a large bounty. Therefore, it has challenged the said award before us.
2. Mr. Pratap Singh Arya, the learned Counsel for Insurance Company has raised three contentions before us; firstly that the deceased was travelling as an agent of the person to whom the goods belonged, therefore, he is not covered by the insurance policy. Hence, the Insurance Company is not liable for his death. Secondly, that instead of sitting in the cabin of the truck, he was sitting among the stones which were stored in the body of the truck. Therefore, he contributed to his own death by the sheer act of negligence of sitting in the open body of the truck. Thirdly, that the learned Tribunal has imposed a penal interest of 12% per annum which it could not have done as there is no legal provision for such imposition.
3. On the other hand, Mr. O.K. Bhardwaj, the learned Counsel for the respondents, has contended that according to the evidence on record the deceased was a contractor, had gone to pick up the stones and was travelling with the stones at the fateful moment. Thus, he was travel ling with his own goods. Hence, he would be covered under Section 147 of the Motor Vehicles Act, 1988 (henceforth to be referred to as the Act, for short). He has further argued that since the ‘Khalasi’ and the driver do not permit others to travel in the cabin, therefore, the deceased had no choice but to sit in the open part of the truck. Hence, there was no negligence on his part in so travelling in the truck. In all fairness he has conceded that there is no provision for imposition of penal interest.
4. We have heard the learned Counsels for both the parties and have perused the impugned award.
5. According to A.W. 1, Panchu Ram Meena, the deceased was travelling with his own goods (stones). Therefore, according to Section 147 of the Act “insurance would be liable for death of any person including owner of the goods”. Since the deceased was travelling with his own goods, the Insurance Company cannot escape its liability to pay the compensation to the claimants.
6. It is a common site in India to see people travelling with their goods in the open part of the truck. Such travelling is not by choice, but by sheer necessity as the truck drivers and the ‘Khalasies’ may not permit the person to sit with them in the cabin. Hence, the deceased was not travelling in the back part of the truck by choice but by necessity. It was the duty of the driver, knowing fully that there was passenger in the open part of the truck to drive the truck carefully on the road. But, according to the evidence of A.W. 2 the truck driver drove the truck in such a rash and negligent manner that the truck went off the road into the ‘Kachcha’ road (uneven land). Because of the bumpy road, the deceased fell off the truck and was crushed under the rear tyre. Thus, the negligence was squarely of the truck driver and not of the deceased. Therefore, the second contention raised by the learned Counsel for the appellant about contributory negligence is baseless.
7. It is, indeed, a settled principle of law that penal interest cannot be imposed in case the claim amount is not paid within the stipulated period. There is no provision of law permitting such an imposition of penal interest. However, as we are informed by Mrs. Bhardwaj, the learned Counsel for the claimant-respondents that the amount was paid within the stipulated period, the imposition of penal interest is only an academic issue that we need not entertain.
8. In the result, there is no merit in this appeal. It is, hereby, dismissed.