SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL MISC. APPEAL NO.50/1998 United India Insurance Company Ltd. Versus Smt. Kushti and ors. 2. S.B. CIVIL MISC. APPEAL NO.38/1998 Smt. Kushti and ors. Versus Surjan Ram and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. Manoj Bhandari, for the Insurance Company. Mr.L.D. Khatri, for the driver and owner. Mr.Rajesh Chaudhary, for the claimants. DATE OF JUDGMENT : 1st October, 2009. JUDGMENT APPEAL NO.50/1998 1. This appeal by the Insurance Company is directed against the award of the MACT, Jaisalmer dtd.9.9.1997 deciding claim petition No.3/1994 – Smt. Kushti W/O Pata Ram V/s Surjan Ram and ors. SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 2/6 2. In an accident which took place on 17.8.1993 when the deceased Pata Ram was sitting on a “Patia” near the driver of the tractor in question registered at No. RJ15-R/0058, the tractor met with an accident and he fell down from the said tractor on account of rash and negligent driving of the said tractor by the driver Sh. Surjan Ram and on being crushed by the tyre of the said tractor and trolley, he expired. The claim petition was filed by the legal representatives of the deceased Pata Ram for a sum of Rs.6,23,000/- and deciding various issues framed by the learned Tribunal, the learned Tribunal awarded a sum of Rs.1,23,000/- in favour of the claimants. 3. The learned counsel for the Insurance Company Mr. Manoj Bhandari submits that the tractor is insured only for agricultural purposes and therefore, the deceased who was travelling in the said tractor as passenger was unauthorised to so travel and therefore, the Insurance Company is not liable to pay said compensation as determined by the learned Tribunal in view of Hon'ble Supreme Court's decision in the case of National Insurance Company Limited V/s V. Chinnamma and ors. reported in (2004) 8 SCC 697, Oriental Insurance Co. Ltd. V/s Brij Mohan and ors. reported in (2007) 7 SCC 56 and National Insurance Co. Ltd. V/s Prema Devi reported in 2008 ACJ 1149, in which the Hon'ble Apex Court has held that gratuitous passengers travelling in goods carriage vehicles are not liable to be compensated by the Insurance Company. The SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 3/6 judgment in the case of National Insurance Co. Ltd. V/s Prema Devi was also rendered by the Hon'ble Supreme Court following the previous decision in the case of New India Assurance Co. Ltd. V/s Asha Rani reported in 2003 ACJ 1 (SC) wherein it was held that the Insurance Company in such cases is not liable to pay such compensation. 4. As far as this legal proposition is concerned, there cannot be any dispute on the said proposition after the said controversy having been settled by the Hon'ble Apex Court in number of decisions. Accordingly, the Insurance Company could not be held liable to pay said compensation in the present case. However, the learned counsel for the appellant – Insurance Company submits that in view of rejection of stay application by this Court while admitting the present appeal on 21.1.1998, the appellant – Insurance Company had to deposit the said compensation with the learned Tribunal which has also been disbursed to the claimants and he, therefore prays that in view of aforesaid legal position, the appellant insurance company may be allowed to recover the said amount paid by it including the payment under no fault liability etc. from the owner of the vehicle – insured, namely, respondent No.4 Surjan Ram and respondent No.5 Mohan Lal. The contention of the learned counsel for the appellant Insurance Company appears to be justified. Accordingly, it is directed that the appellant – Insurance Company shall have a right to SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 4/6 recover the amount already paid by it to the claimants from the owner and driver of the said vehicle. APPEAL NO.38/1998 FILED BY THE CLAIMANTS SEEKING ENHANCEMENT OF THE COMPENSATION. 5. The learned counsel for the claimants Mr. Chaudhary submits that the claim deserves to be enhanced on the following two grounds: i) Multiplier of 15 has been wrongly adopted by the learned Tribunal, whereas the age of the deceased was determined as 24 years and even as per 2nd Schedule to the said Act, the multiplier of 17 ought to have been applied. He also relied on the recent judgment of the Hon'ble Supreme Court in Civil Appeal No.3483/2008 – Smt. Sarla Verma and ors. V/s Delhi Transport Corporation and anr. decided on 15.4.2009 wherein the Hon'ble Apex Court reproducing the enhanced multiplier adopted by the Hon'ble Supreme Court in 3 leading judgments in the case of General Manager, Kerala State Road Transport Corporation V/s Susamma Thomas reported in 1994 (2) SCC 176, U.P. State Road Transport Corporation V/s Trilok Chandra (1996 (4) SCC 362) and New India Assurance Co. Ltd. V/s Charlie (2005 (10) SCC 720), in which for age group of 21 to 25 years, the Hon'ble Supreme Court SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 5/6 has adopted multiplier of 18 as against 17 prescribed in the schedule, he prays that multiplier of 18 may be applied in the present case also. ii) The other contention raised by the learned counsel for the petitioner is that instead of 1/3rd deduction for personal expenses out of net income determined by the learned Tribunal, the learned Tribunal has deducted ½ amount, which has also resulted in reduced compensation to the claimants. 6. After hearing the learned counsels and upon perusal of the relevant evidence and the reasoning given by the learned counsel, this Court is of the opinion that both the contentions of the learned counsel for the claimants are justified and the compensation deserves to be enhanced on these grounds. Accordingly out of net income of 14400/- after deduction of 1/3rd, the amount would come to Rs.9600/- which upon being multiplied by 18, the compensation on this ground would be Rs.1,72,800/-, whereas the learned Tribunal has awarded only Rs.1,08,000/-. Thus, the net enhancement of Rs.64800/- would be payable to the claimants. However, in view of long lapse of period after the death of the deceased, the claimants are not held entitled to any interest and it is also made clear that since the Insurance Company cannot be held liable in view of aforesaid legal position, said enhancement of compensation would be payable by the owner and driver of the said offending vehicle in questions. The SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 6/6 claimants shall be entitled to recover the said enhanced compensation of Rs.64,800/- from the respondents No.4 and 5 – owner and driver of the said vehicle and not from the Insurance Company. 7. Accordingly, the appeal No.50/1998 filed by the Insurance Company is allowed as indicated above and the appeal No.38/1998 filed by the claimants also stands allowed as indicated above. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.7-8 Ss/-