JUDGMENT
Subhash Samvatsar, J.
1. This appeal is filed by the claimants under Section 173 of Motor Vehicles Act challenging the award dated 13.7.1999 passed by the Motor Accident Claims Tribunal, Gohad, District Bhind, in Claim Case No. 14 of 1995.
2. The brief facts of the case are that the claimants have filed this claim petition alleging that Govind Singh, husband of claimant No. 1 and father of claimant Nos. 2 and 3 died in the motor accident on 20.3.1995. At the time of the accident he was travelling in jeep No. MP 9-A 0963. Tempo No. MP 06-9994 which was coming from opposite side dashed against the jeep which has resulted in the accident. According to the claimants both jeep as well as Tempo were driven rashly and negligently by the drivers which has resulted in the accident in which Govind Singh died. The Tribunal after recording the evidence and appreciating the same has passed the award of Rs. 1,24,388 in favour of the present appellants with interest at the rate of 12 per cent per annum. At the time of passing of award the Tribunal exonerated Oriental Insurance Co. Ltd. the respondent No. 4, from its liability. Tempo was not insured. Hence, the owner and driver of the said vehicle were also held jointly responsible for the said accident.
3. The contention raised by the Counsel for the appellants is that the Insurance Company, respondent No. 4 is wrongly exonerated by the Claims Tribunal and amount of compensation is also on the lower side.
4. As regard the amount of compensation is concerned, as per finding of the Court below, Govind Singh died in the said accident. The accident has taken place due to rash and negligent driving of the drivers of both the vehicles. Govind Singh was aged about 42 years. The Claims Tribunal has assessed his income at Rs. 1,200 per month. The accident has taken place after amendment of 1994 in the Motor Vehicles Act. Hence, for assessing the dependency of the deceased his income will have to be calculated on the basis of notional income which is Rs. 15,000 per annum. Thus, the dependency of the deceased will come to Rs. 10,000 per annum. Deceased was 42 years of age as per finding of the Tribunal. Hence, the multiplier 15 will be applicable. Thus, the total compensation comes to Rs. 1,50,000. Apart from this amount the claimants are entitled to other amount for funeral expenses, pain and suffering, loss of consortium, Claims Tribunal awarded Rs. 10,000 towards these heads. Thus, the total compensation comes to Rs. 1,60,000.
5. As regards question of liability is concerned, the contention of the Insurance Company is that the jeep which was private vehicle was used as taxi on hire and reward which is contrary to the terms of the policy, Exh. D1. On this plea the Court below has framed issue No. 7 which is decided in para 16 of the judgment. The Claims Tribunal on the basis of statement of Bhupendra, AW 2, in his cross-examination has come to the conclusion that the deceased and other passengers were travelling in the jeep after paying fare. Bhupendra in para 4 of his statement has admitted the fact that 8 to 9 persons were travelling in the vehicle and they have paid the fare of Rs. 2 each. Considering this fact, the Court below has held that the vehicle was used as taxi and, therefore, the Insurance Company is not liable.
6. On this question the contention of the learned Counsel for appellants is that there is no evidence on record to show that the vehicle was used as taxi for commercial purpose. The Counsel for the appellants has relied on the Division Bench judgment reported in New India Assurance Co. Ltd. v. Bafatbai . The Division Bench of this Court has held that the occasional use of the vehicle for commercial purpose does not absolve Insurance Company from payment of its liability. However, from the perusal of the policy, Exh. Dl, which is admitted by claimants, I find that there is clause under Section 11(1) to the effect that Insurance Company shall be liable to pay amount of compensation for the death and bodily injury but shall not be liable to pay compensation in respect of person carried in the vehicle for hire and reward. In the present case it has come on record that 8 to 9 persons were travelling in the jeep after paying fare of Rs. 2 each. Hence, according to me Insurance Company is not liable.
7. Learned Counsel for the appellants submitted that even though the aforesaid breach is committed by the driver of the vehicle, there is no record to show that the said breach was within the knowledge of the owner and, therefore, in absence of any evidence to prove wilful default or wilful breach on the part of owner, Insurance Company cannot be absolved of its liability, in absence of proof of wilful breach by the Insurance Company.
8. In the present case, Insurance Company has not examined any witness in support of their contention and they are relying only on one witness which has been on record in the statement of Bhupendra, AW 2. From the perusal of the examination of Bhupendra, I find that the Insurance Company has not even put a suggestion to Bhupendra that breach was within the knowledge of the owner. The Apex Court in the case of Sohan Lal Passi v. P. Sesh Reddy, , laid down that it must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to in demnify the insured. It was also observed that when the insured has done everything within his power in inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. If due to the driver’s acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. Similar view is taken by the Apex Court in case of United India Insurance Co. Ltd. v. Gian Chand . In reply to this argument, the contention of learned Counsel for the Insurance Company is that both cases relate to the driving licence and do not relate to breach of condition. He relied on a judgment of Division Bench of this Court in the case of National Insurance Co. Ltd. v. Tanuja M.A. No. 725 of 2000; decided on 23.8.2005. In para 11 of the aforesaid judgment the Division Bench has held that as there is no evidence on record to show that the vehicle was used as taxi and unauthorisedly carried persons for fare and reward, Insurance Company is liable. According to the learned Counsel of Insurance Company, in the present case there is evidence to that effect. However, after appreciating evidence on record, I find that there is no evidence to show that the breach committed by driver was within the knowledge of the owner. Hence, in the light of judgment of the Supreme Court in case of Sohan Lal Passi (supra), I hold that the Insurance Company is liable to pay amount of compensation.
9. In the result, this appeal is allowed. The amount of compensation is enhanced from Rs. 1,24,388 to Rs. 1,60,000 (Rupees one lakh sixty thousand). The enhanced amount shall carry interest at the rate of 6 per cent per annum from the date of filing of this appeal. It is also held that Insurance Company is also jointly and severally liable to pay amount of compensation.
10. Appeal stands allowed with costs. Counsel’s fee Rs. 1,000, if certified.