JUDGMENT
S.N. Bhargava, J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939 (in short ‘the Act’), against the award dated 21.10.1986 passed by the Motor Accidents Claims Tribunal, Ajmer, awarding a sum of Rs. 2,59,200/- in all and interest thereon.
2. As per the facts mentioned in the memo of appeal, on 5.11.1978, deceased Anand Mohan along with his wife Suman Lata and his daughter and sons left Jaipur for Ajmer in a taxi car bearing registration No. RST 76, of which respondent No. 9, Asu Singh (since dead), was the driver. Sumitra Pandit, respondent No. 8, is the owner of the taxi car. When the taxi car came near Sri Nagar bypass, appellant’s tractor bearing registration No. RJS 1372, which was being driven by Banshi Lai, respondent No. 14, turned towards Jaipur. According to the claimants, the respondent Nos. 1 to 7, the car was hit by the tractor on the back side, with the result that the driver of the car lost his control and it hit against a truck No. RRR 4197 which came to halt without giving any indication, as a result of which the taxi car overturned and Anand Mohan died on the spot. He was a Civil Maintenance Engineer and was aged 42 years and was drawing a sum of Rs. 26,966/- per year. The claimants filed claim for an amount of Rs. 10,79,707/-from the owners of the three vehicles and the insurance company with which these vehicles were insured. Sumitra Pandit, respondent No. 8, denied all the allegations for want of knowledge but admitted that she was the owner of the taxi car and that it was insured with New India Assurance Co. Ltd. and that she had given the said taxi car to Ravi Prakash Chaturvedi, one of his servants, for his personal use and the vehicle was not being driven as a taxi car. Asu Singh, driver of the taxi car, did not file any reply to the claim petition. New India Assurance Co. Ltd. has filed a separate reply and admitted that the taxi car. was insured with the company and submitted that the accident took place on account of rash and negligent act of the truck driver and not of the taxi driver and the tractor driver was also not responsible for the accident and, therefore, it was not liable to pay compensation and that compensation should be recovered from the owner of the truck, driver or the insurance company with which it was insured. Rajendra Kumar has admitted that he was the owner of the tractor No. RJS 1372 and that it was being driven by Banshi Lai, driver, at the time the accident took place and that it was insured with New India Assurance Co. Ltd. It has further been submitted that the accident did not take place on account of rash and negligent driving of the tractor but the accident took place on account of negligence of the truck driver. Mamraj, truck driver and Nahar Singh, owner of the truck, did not file any reply to of rash the claim petition. United India Insurance Co. Ltd., respondent No. 13, has admitted in reply that truck No. RRR 4197 was insured with it and has further submitted that the truck was stationary at the time the taxi car and the tractor collided. It was after the accident that the car also struck the truck which was standing and since it was not a case of rash and negligent driving of the truck, the insurance company was not liable to pay any compensation. The Tribunal framed the following issues:
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3. Claimants examined PW 1, Krishna Mohan Chaturvedi, PW 2, Suman Lata Chaturvedi; whereas Banshi Lai alone was examined as a witness of the non-petitioners.
4. The Tribunal, after examining the evidence led before it, came to the conclusion that the truck stopped suddenly and was standing on the highway on the left side covering 2-4 feet of the main highway road and the truck driver had gone to have a cup of tea, and the taxi car and the tractor collided. After that only, it struck-the truck but if the truck had not been parked covering highway the accident could have been avoided. He has come to the conclusion that the taxi car which was being driven at a speed of 80-85 km. per hour on the highway collided with the tractor coming from the side and entering the highway and that the accident could have been avoided if the driver of the taxi car was cautious. Ultimately, the Tribunal has held that drivers of the taxi car, the truck and the tractor were responsible for the accident and the accident took place on account of rash and negligent driving of these three vehicles. Therefore, the Tribunal came to the conclusion that all the respondents are severally and jointly responsible. Issue Nos. 5, 6, 7 and 8 have been decided against the respondents as no evidence was led on this count. On the point of quantum of compensation, it has come to the conclusion that the deceased Anand Mohan was born on 11.9.1935 and, therefore, was 43 years of age at the time of accident and was drawing a total salary of about Rs. 1,787.50 p.m. including basic pay, dearness allowance and bonus. Tribunal has not included the conveyance allowance and coal-field allowance as his income. The Tribunal also held that the deceased used to spend about ‘/3rd on himself and 2/3rds on his family and thus, he was spending Rs. 1,200 only on his family. Suman Lata was given service by the Steel Authority of India after six months of the death of deceased Anand Mohan and was drawing Rs. 540/- per month including allowances. The age of retirement in the company was 58 years and the deceased would have served for nearly 15 years in the company. As such, the Tribunal has found that the claimants are entitled to an amount of Rs. 1,200/- x 12 x 15, i.e., Rs. 2,16,000/-. The Tribunal further found that the deceased Anand Mohan would have lived at least up to 65 years and, therefore, the claimants are entitled to a sum of Rs. 1,200 x 12 x 3 = Rs. 43,200/-, and thus, the claimants were entitled to a total amount of Rs. 2,59,200/-. After discussing the case-law, the Tribunal came to the conclusion that the New India Assurance Co. Ltd. with which the taxi car was insured is liable to pay only Rs. 10,000/- per passenger of the taxi car and also Rs. 50,000/- for the liability of the tractor. It has further been found by the Tribunal that United India Insurance Co. Ltd. with which the truck was insured is also liable to pay only a sum of Rs. 50,000/-. As such, finally, the learned Tribunal has come to the conclusion that the claimants were entitled to get a sum of Rs. 2,59,200/- and interest at the rate of 9 per cent per annum from the date the petition was filed till the date of the award and 12 per cent from the date of the award till the amount is paid. It is against this award dated 21.10.1986 that the present miscellaneous appeal has been filed by the owner of the tractor on 20.2.1987. It was admitted on 11.3.1987.
5. An application was filed under Order 1, Rule 10 (2) read with Section 151, Civil Procedure Code, by respondent No. 8 claiming to be impleaded as appellant No. 2 and to allow her to serve the respondent Nos. 1 to 7 but the respondent No. 8 did not press the prayer for transposing respondent No. 8 as appellant but confined her prayer only to give her an opportunity to get the notices of respondent Nos. 1 to 7 served. As is evident from the proceedings of the court dated 13.11.1991, the notices were sent by registered post and since the envelopes did not return back as undelivered a presumption was raised under rule 99 of the Rajasthan High Court Rules that the service was sufficient. Respondent Nos. 1 to 7 filed cross-objections on 10.4.1992 along with application under Section 5 of the Limitation Act for condonation of delay. Service was complete on all the respondents only on 28.1.1992. Thereafter, arguments were, heard.
6. Learned counsel for the appellant, owner of the tractor, has very vehemently submitted that there was no fault of the driver of the tractor and actually, accident had taken place because of the negligence of the truck driver who had stopped the truck suddenly and parked it covering up to the middle of the main highway and, therefore, the taxi driver could not control and dashed with the truck. Meanwhile, the tractor also came on the road from the side and it hit only at the back side of the car. At the most, it could be a case of composite negligence for which all the three-taxi car, tractor and truck-are equally responsible. He has further submitted that the liability of the insurance company in respect of tractor was unlimited. He has pointed out that a tractor is not covered by Clause (a) or (b) of Section 95(2) of the Motor Vehicles Act because it is neither a goods vehicle nor a vehicle carrying passengers for hire or reward. It will fall only in the residuary clause, i.e., Clause (c) vehicles of any other class for which the amount of liability is liability inclined. He also drew my attention to Section 2(8) which defines ‘goods vehicle’ as under:
(8) ‘goods vehicle’ means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers.
7. He has placed reliance on Bolani Ores v. State of Orissa AIR 1975 SC 17 and has submitted that the insurance company is liable for the whole of liability which has been fastened on the truck owner. He has also placed reliance on a judgment of this court in New India Assurance Co. Ltd. v. Kusum Jaluria S.B. Civil Misc. Appeal No. 342 of 1985; decided on 24.3.1987, which , was referred and relied by this court again in Sajid Mian v. Ganga 1990 ACJ 54 (Rajasthan). He has further submitted that the appellant’s vehicle has been described as ‘tractor with compressor’ in the insurance policy issued by the New India Assurance Co. Ltd. Compressor is one unit. Compressor works only when the tractor engine works and is not ‘goods’ which a tractor carries. He also placed reliance on New India Assurance Co. Ltd. v. Gordhanbhai Ambalal Barot 1986 ACJ 514 (Gujarat).
8. Learned counsel for United India Insurance Co. Ltd. has submitted that the truck, with which the taxi car collided wherein the deceased was travelling, was insured with United India Insurance Co. Ltd. The liability of the United India Insurance Co. Ltd. has been fastened to the extent of Rs. 50,000/- being the limited liability and the appellant has not challenged that finding given in the award. Learned counsel for New India Assurance Co. Ltd. has vehemently challenged the finding of the Tribunal on issue Nos. 1, 2 and 3 and has urged that the accident had taken place not because of the negligent driving of the tractor. The claimants have not examined Munshiram and site inspection note has not been produced, therefore, adverse inference should be drawn. There is no cross-examination on material points of NAW 1, driver of the tractor and there is nothing to disbelieve his statement given in the examination-in-chief. Even the deceased’s wife’s statement, when read as a whole, shows that the accident had taken place not on account of negligence or rash driving of the driver of the tractor. He has further submitted that the tractor is covered within the definition of ‘goods vehicle’ given in Section 2(8) of the Act. He drew my attention to Section 2(7) giving definition of ‘goods’ as under:
(7) ‘goods’ includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
He has further drawn my attention to Sub-clause (30) of Section 2 of the Act which defines ‘tractor’ as under:
(30) ‘tractor’ means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion), but excludes a road roller;
9. He has, therefore, submitted that the tractor in the present case should be covered by the provisions of Section 95(2)(a) and the maximum liability could be of Rs. 50,000/- only. He has tried to distinguish case of Bolani Ores v. State of Orissa AIR 1975 SC 17, by saying that the observations are in different context. He has further submitted that the recent decision of this court in Rama Nand v. Lalita Sharma 1993 ACJ 863 (Rajasthan), does not lay down correct law and needs another look. Since in the facts and circumstances of the case, there appears to be a composite negligence of all the three vehicles, therefore, the liability has to be apportioned between them. It has further been submitted that the respondent No. 8 has filed cross-objections very much delayed and she has given no grounds to condone delay nor has shown any sufficient cause for condonation of delay and the application under Section 5 of the Limitation Act has been filed in a casual manner, very vaguely, without giving any reasons and, therefore, application under Section 5 should be dismissed and the cross-objections need not be entertained and that since there has been no miscarriage of justice, this court should not exercise its power under Order 41, Rule 33, Civil Procedure Code. He further submitted that the appeal had been filed only by the owner of the tractor and the insurance company can only support the appellant but other respondents who have not filed any cross-objections cannot pray or request that the award should be modified in their favour.
10. I have considered the arguments advanced by learned counsel for the parties and have also perused the authorities cited before me.
11. First of all, I would like to deal with the objections of Mr. R.M. Lodha, learned counsel for respondent No. 10, that the cross-objections are time-barred and should not be entertained and considered. A perusal of the record shows that respondent Nos. 1 to 7, the claimants, were not being served on the addresses which had been mentioned in their claim petition. It was only when respondent No. 8 was allowed to get the notices of the respondent Nos. 1 to 7 served that she sent notices by registered post and since the registered envelopes containing the notices did not return undelivered, the notices were deemed to have been served under rule 99 of the Rajasthan High Court Rules. Notices were sent by registered post on 17.11.1991 and an affidavit was filed on 23.1.1992 and the court ordered for deemed service on 28.1.1992. Cross-objections on behalf of respondent Nos. 1 to 7 were filed on 10.4.1992 along with an application under Section 5 of the Limitation Act duly supported by an affidavit wherein it has been mentioned that the claimants originally used to live in Mathura and they had shifted from Mathura long back, therefore, the notices were not being served personally on them. The person, who had received the registered envelopes containing notices, informed them on telephone only on 8.4.1992, thereafter, the claimants immediately rushed, contacted an Advocate and instructed him to file the cross-objections, which was done on 10.4.1992. No reply has been filed nor any affidavit controverting the facts mentioned in the application has been filed. In this view of the matter, it cannot be said that the cross-objections were filed at a belated stage and I think it proper, in the interest of justice, to allow application under Section 5 of the Limitation Act and condone the delay in filing the cross-objections. Therefore, the cross-objections have to be taken into consideration.
12. Section 95(2) reads as under:
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely-
(a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen’s Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,-
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; and
(d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party.
13. Section 95(2)(a) deals with goods vehicle whereas Section 95(2)(b) deals with the vehicle in which passengers are carried for hire or reward whereas Section 95(2)(c) is a residuary clause limiting the amount of liability. Keeping in mind the observations of the Supreme Court in Bolani Ores’s case, AIR 1975 SC 17, to the effect that a tractor though it may be a motor vehicle within the definition of that term is neither a goods vehicle nor a vehicle which carries passengers and the observations of this court in the cases of Kusum Jaluria, S.B. Civil Misc. Appeal No. 342 of 1985; decided on 24.3.1987 and Sajid Mian, 1990 ACJ 54 (Rajasthan), wherein New India Assurance Co. Ltd. was a party and which judgment has become final and the case of Gordhanbhai, 1986 ACJ 514 (Gujarat), I am of the view that tractor cannot be said to be a goods vehicle more particularly when in the present case, in the insurance policy, the vehicle has been described as a tractor with compressor. It cannot be said that tractor is covered within the definition of ‘goods vehicle’ given in the Act. Moreover, in the present case, the insurance company had never raised this point before the Tribunal and only argued regarding limited liability and, therefore, this point has to be decided in favour of the appellant as has been observed in New India Assurance Co. Ltd. v. Charan Kaur 1986 ACJ 243 (P&H). Burden of proving that liability is limited is on the insurance company. Since it had not raised the question of limited liability, it is not open in appeal to press this point, as has been observed by the Division Bench of this court in National Insurance Co. Ltd. v. Narain Das Mehta 1986 ACJ 919 (Rajasthan) and, therefore also, the objection of the insurance company has to be rejected. It is interesting to note that the insurance company had neither taken plea that the tractor was a goods vehicle nor that its liability is limited nor led any evidence in this regard, therefore also, the insurance company is liable for the total compensation. As has been observed in Jugal Kishore v. Rai Singh 1982 ACJ 503 (Delhi), United India Fire and General Ins. Co. Ltd. v. Pallamparty Indiramma 1982 ACJ 521 (AP), Apt Singh v. Sham Lal 1984 ACJ 255 (P&H) and General Assurance Society Ltd. v. Avtar Singh 1986 ACJ 652 (P&H), an insurer can raise defence which is available under Section 96(2) of the Act only.
14. Therefore, it cannot be said that the tractor is covered within the definition of ‘goods vehicle’ given in the Act and hence, it is covered not by Section 95(2)(a) but by Section 95(2)(c) where the limit of liability is the amount of liability incurred.
15. Now coming to the cross-objections. The Tribunal did not award any amount under the head ‘loss of consortium’ to the wife, loss of love and affection to the children and mental agony and pain suffered by the claimants. Learned counsel for the claimants placed reliance in this connection on a Full Bench decision of this court in Rajasthan State Road Trans. Corporation v. Kistoori Devi 1986 ACJ 960 (Rajasthan), which was relied by this court again in National Insurance Co. Ltd. v. Devi 1988 ACJ 962 (Rajasthan). Looking to the facts and circumstances of the present case, I am of the view that the Tribunal was wrong in not awarding compensation on this head and I think it proper to award Rs. 15,000/-to wife and Rs. 2,000/- to each child. The claimants will also be entitled to interest on this amount at the rate of 12 per cent per annum from the date of filing the claim petition.
16. In the result, this appeal and cross-objections are disposed of. The award passed by the Tribunal on 21.1.0.1986 is modified to the extent that the claimants will also be entitled to get Rs. 15,000/- (to wife) and Rs. 2,000/- each to children on account of loss of consortium, loss of love and affection and mental agony and pain, in addition to what has been awarded by the Tribunal. The award of the Tribunal is confirmed. The claimants will also be entitled to interest on the amount of Rs. 15,000/- to wife and Rs. 2,000/- to each child at the rate of 12 per cent per annum from the date of filing the claim petition. Liability of New India Assurance Co. Ltd. (insurer of tractor) is unlimited whereas that of the United India Insurance Co. Ltd. (insurer of truck) is limited to Rs. 50,000/- and that of insurer of taxi is limited to Rs. 10,000/- per passenger. Parties shall bear their own costs.