JUDGMENT
Milap Chandra Jain, J.
1. This appeal has been filed against the award passed by the learned member, Motor Accidents Claims Tribunal, Udaipur, dated August 20, 1982, by which he has awarded compensation to the tune of Rs. 63,000 against the owner and driver of the offending tractor No. RJE 3487 and has dismissed the claim petition against the insurer, namely, the United India Fire and General Insurance Co. Ltd. The facts of the case giving rise to this appeal may be summarised thus.
2. The case of the claimants, Geeta Devi and her minor son, Bhagwan, is that the late Om Prakash (their husband and father, respectively) hired the said tractor No. RJE 3487 from its owner, Sukha (opposite party-appellant No. 2), got loaded a few bags of grain in its trolley for transporting them from his village Loharikalan to Deoli, he also sat in the trolley, the said tractor turned turtle near the village Gadoli due to rash and negligent driving on the part of its driver, Ram Deo (opposite party-appellant No. 1), and as a result thereof Om Prakash died on the spot. They were fully dependent upon him, he used to pay Rs. 450 per month
to meet the expenses of the family and he was 25 years old at the time of death.
3. In their joint reply, the said owner and the driver who are father and son, admit that the tractor belonged to them, it turned turtle on the . way near the village Gadoli and Om Prakash died in the accident on the spot. The remaining allegations of the claim petition have been denied. They further pleaded that Om Prakash surreptitiously and without the knowledge of the driver climbed on the trolley of the tractor and they are not liable to pay any compensation.
4. The United Fire and General Insurance Co. Ltd. (opposite party-respondent No. 3) admits in its reply that the said tractor was insured with it on the date of the accident, it is not liable to pay any amount of compensation, there was breach of the specific terms of the policy and the late Om Prakash was a gratuitous passenger.
5. The learned Tribunal framed the following issues :
“1. Kya tractor RJE 3487 ko vipakshi No. 1 utavalepan evam asavadhani poorvak chala raha tha jiske karan dale me baitha Om Prakash durghatana grast hokar mrityu ko propt hua ?
2. Kya prarthigan pratikar prapt karne he adhihari hain, agar hain to kis kis se kitna kitna ?
3. Pratikar kya hai ?”
The Tribunal held that the accident occurred due to rash and negligent driving of the said tractor by its driver, Ram Deo, and the claimants are entitled to get compensation to the tune of Rs. 63,000 from the owner and driver and the insurance company is not liable to pay it.
6. Learned counsel for the appellants has contended that the Tribunal has seriously erred in holding that the late Om Prakash was a gratuitous passenger in the said tractor, there was a breach of specific terms of the insurance policy and as such the insurance company is not liable to pay compensation. He contended that it is well proved from the evidence on record that the tractor was hired by the late Om Prakash and his brother, Kishan Gopal, PW-2, for transporting their bags of grain from their village Loharikalan to Deoli and Om Prakash sat in the trolley of the said tractor to deliver the said grain after getting the same weighed in his presence and to make payment of the hire charges to the driver, in the village Deoli. He further contended that the said tractor was used for transporting the agricultural produce and thus it was used for an agricultural purpose,
the terms of the insurance policy did not prohibit the use of the tractor for the transportation of agricultural produce on hire and it only prohibited carriage of passengers for hire or reward. He relied upon Smt. Santra Bai v. Prahlad [1985] RLW 354 ; [1986] 59 Comp Cas 714 (Raj) [FB] and Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan [1987] 62 Comp Cas 138; AIR 1987 SC 1184. He did not challenge the quantum of the amount of compensation.
7. In reply, it has been contended by learned counsel for the United India Fire and General Insurance Co. Ltd. that neither any appeal nor any cross-objection has been filed against the award exonerating the insurance company by the claimants and as such it cannot be made liable to make payment of the amount of compensation. He further contended that there is great variance in between the pleadings and proof of the owner and driver, that it has also not been pleaded by them in their written reply that the insurance company is liable to make payment of the amount of compensation, that there is a clear-cut violation of the specific terms of the insurance policy and as such the insurance company cannot be made liable to pay the amount of compensation. He relied upon United India Insurance Co. Ltd. v. Roop Kanwar [1991] ACJ 74 (Raj) ; [1980] ACJ 107 (sic), Kashiram Yadav v. Oriental Fire and General Insurance Co. Ltd. [1989] ACJ 1078 ; [1989] 66 Comp Cas 814 (SC) ; [1978] ACJ 423 (sic) and AIR 1975 SC 70. (sic).
8. Learned counsel for the claimants contended that no term of the insurance policy was breached by the insured, Sukha (appellant No. 2), that the said tractor was hired by the late Om Prakash and his brother, Kishan Gopal, PW-2, for transporting their bags of grain, that the late Om Prakash accompanied the said goods to personally deliver the bags of grain after getting them weighed in his presence there and to make payment of the hire charges to the driver there, that he was not a gratuitous passenger, that he accompanied the goods and that thus the Tribunal committed a serious error in exonerating the insurance company. He further contended that this court has power under Order XLI, Rule 33 of the Civil Procedure Code to pass the award against the insurance company also. He relied upon Koksingh v. Deokabai, AIR 1976 SC 634.
9. The main question for consideration in this appeal is whether the United India Fire and General Insurance Co. can also be made liable to make payment of the amount of compensation awarded by the Tribunal to the claimants, Geetabai, and her minor son, Bhagwan. It is the admitted case of the parties that at the time of the accident, bags of grain were
in the trolley of the said tractor and the late Om Prakash was also sitting in it. The owner and the driver have pleaded in their reply that neither the late Om Prakash nor his brother had any connection with the bags of grain which were in the trolley of the said tractor at the time of the accident. They have not pleaded that the bags of grain belonged to them or to some other person. For the first time, the driver, Ram Deo, DW-1, disclosed in his statement that these bags of grain belonged to his father, Sukha. It is an afterthought. No amount of evidence can be looked into in the absence of pleadings. No reliance can be placed on this statement. He has further deposed that the late Om Prakash met him on the way before the place of the accident, that he requested him (Ram Deo) to carry him also in the trolley to village Deoli, that he (Ram Deo) did not permit this and that despite it, Om Prakash climbed and sat in the trolley of the tractor. It is thus clear that there is great variance between his pleadings and proof. No reliance can be placed on this statement also. On the contrary, Kishan Gopal, PW-2, has categorically stated on oath that the tractor belonging to Sukha (appellant No. 2) was hired by him for taking the bags of grain from his village Loharikalan to Deoli, that Sukha and Ram Deo requested him to send Om Prakash along with the bags of grain so that the grain may be weighed in his presence and hire charges might be taken from him at Deoli and as such Om Prakash boarded the said tractor. In the cross-examination, he disclosed that hire charges were agreed to at the rate of Rs. 2.50 per bag. Ratanlal, PW-3, has deposed that Kishan Gopal and Om Prakash hired the said tractor in his presence, that 10 to 15 bags of grain were loaded in its trolley and that he and Om Prakash boarded it. Nothing damaging could be elicited from their cross-examination. There is no good reason to disbelieve their testimony. Their statements find corroboration from the first information report, exhibit A-1, lodged by Kishan Gopal the same day in the Police Station, Jahajpur. It is also mentioned in it that Ratna, PW-3, was also in this tractor.
10. It is thus well proved from the evidence on record that Kishan Gopal, PW-2, and the late Om Prakash hired the said tractor No. RJE 3487 from its owner, Sukha (appellant No. 2), for transporting their bags of grain from their village Loharikalan to Deoli and the late Om Prakash accompanied these bags of grain. On August 5, 1978, an application was moved by the insurance company for directing the insured (Sukha) for producing the original insurance policy. This application is not attached with the file of the Tribunal though there is a reference to it in the order-sheet of August 5, 1978, and also in the general index of the file. On June 13, 1982, its copy was filed. The relevant portion of the insurance policy runs as under :
“Limitation as to use :
For agricultural and forestry purposes.–(1) Policy does not cover.– . . .
(2) for carriage of passengers for hire or reward ; . . .”
11. Grain is an agricultural produce and its transportation is also an agricultural purpose. As already observed above, the said tractor was hired by Kishan Gopal, PW-2, and the late Om Prakash for the transportation of their bags of grain and Om Prakash also accompanied the driver of the tractor to get the bags weighed, deliver them to the concerned person and to pay its hire charges to him at Deoli. The tractor was not hired for carrying Om Prakash only. As such no term of the policy was breached by the insurer. The insurance company is thus liable to make payment of the amount of compensation. Admittedly, it was a party in the claim petition and duly contested it. It is correct that the claimants have not filed any appeal or cross-objection against the award exonerating the insurer. This error can be corrected by this court by invoking the provisions of Order XLI, Rule 33 of the Civil Procedure Code. It has been observed in Koksingh v. Deokabai, AIR 1976 SC 634, as follows (page 636) :
“In Giani Ram v. Ramji Lal [1969] 3 SCR 944 ; AIR 1969 SC 1144, the court said that in Order 41, Rule 33, the expression ‘which ought to have been passed’ means ‘what ought in law to have been passed’ and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.
Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.”
Reference to Murari Lal v. Gomati Devi [1986] 1 ACJ 316 (Raj) may also be made here. When the insured is liable the insurer will also be liable to make payment of the amount of compensation.
12. The surviving question is about the extent of liability of the insurance company. Section 2(8) of the Motor Vehicles Act, 1939 (hereinafter referred to as “the Act”), defined goods vehicle as follows :
“2(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.”
The said tractor was adapted for use of carriage of goods by attaching a trolley to it. As such, the tractor with the trolley fell within the definition of a goods vehicle within the meaning of Section 2(8) of the Act. Thus the insurance company is liable to the extent of Rs. 50,000.
13. It has been observed by a Division Bench of this court consisting of Hon’ble Mr. Justice J. S. Verma C. J. (as he then was) and Hon’ble Mr. Justice N. C. Kochhar in Rajasthan State Road Transport Corporation v. Manorama (Spl. Appeal No. 10 of 1982-30-11-1988) as follows :
“In our opinion, increase in the rate of interest to make it reasonable is clearly permissible even without any express prayer in the cross-objection to that effect. We would add that it is in fact the duty of the court to increase the rate of interest to make it reasonable in order to ensure award of ‘just compensation’ as required originally by Section 110B and later also by Section 110CC of the Motor Vehicles Act. We see no impediment in doing so.
The question now is of the rate of interest which would be reasonable. We have no doubt that interest at 6 per cent. per annum from the date of award is too low by any standards and interest should be awarded to the claimants on the amount of compensation at 12 per cent. per annum from the date of claim, i.e., May 30, 1979. The rate of 12 per cent. per annum is the reasonable rate even according to some recent decisions of the Supreme Court (see Smt. Chameli Wati v. Delhi Municipal Corporation, AIR 1986 SC 1191 and Jagbir Singh v. General Manager, Punjab Roadways, AIR 1987 SC 70). Accordingly, we direct that interest shall be paid on the amount of compensation determined as payable to the claimants at 12 per cent. per annum from the date of the claim petition, May 30, 1979, instead of at 6 per cent. per annum from the date of award granted by the learned single judge.”
The learned Tribunal has awarded interest at the rate of 6 per cent. per annum from the date of award to the date of recovery. No pendente lite interest has been awarded. The rate of 6 per cent. is also inadequate. The Tribunal should have awarded interest at the rate of 12 per cent. per annum at least from the date of institution of the claim petition to the date of payment.
14. Consequently, the appeal is allowed. Respondent No. 3, United India Fire and General Insurance Co. Ltd., is held liable along with the appellants,
jointly and severally, to pay the amount of compensation to the extent of Rs. 50,000 with interest at the rate of 12 per cent. per annum from the date of institution of the claim petition to the date of payment. To this extent, the award of the Tribunal is modified. No order as to costs. The appellants would not be allowed to take back the amount if they had deposited it in compliance with the order dated August 16, 1985, passed by this court on their stay application and the claimants would be paid as per this judgment.