1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T 1. CIVIL MISC. APPEAL No. 730 of 2008 N.I.C.LTD. V/S CHANDRA RAM & ORS. 2. CIVIL MISC. APPEAL No. 655 of 2008 N.I.C.LTD. V/S SMT.JHOOMARI & ORS. 3. CIVIL MISC. APPEAL No. 731 of 2008 N.I.C.LTD. V/S CHITAR MAL & ORS. Date of Judgment : 11.8.2009 PRESENT HON'BLE SHRI N P GUPTA,J. Mr. JAGDISH VYAS, for the appellant. Mr. VISHAL SHARMA, for the respondents. BY THE COURT : These three appeals arise out of the common judgment of the learned Tribunal deciding three claim petitions and decreeing them, awarding Rs.3,54,600/- in each of the claim case as compensation for the death of the concerned victim to the legal representatives. The necessary facts are that the claim petitions were filed under Section 163A of the Motor Vehicles Act alleging inter-alia that on 16.12.2005, the three deceased 2 Omprakash, Bhanwar Lal and Ashok Kumar were travelling in jeep No.RJ21 C 3107 from Rajas to Nawa. While so travelling on the way truck No.RJ21 G 1223 hit the jeep, as a result of which the jeep overturned and all the three persons died. Out of them Ashok Kumar was the driver of the jeep and Omprakash and Bhanwar Lal were the occupants. The claim arising out of the death of Ashok Kumar is claim No.44, which is subject matter of appeal No.731, while the claim relating to death of Bhanwar Lal is claim No.43, which is subject matter of appeal No.730 and the claim relating to death of Omprakash is claim No.42, which is subject matter of appeal No.655. Learned Tribunal while deciding issue No.1 found that the three persons died in the accident as alleged. Then deciding issue No.2, which related to non-impleadment of the owner, insurer and driver of the truck it was held that since the claim under Section 163A it is not necessary to implead them as party. Then issue No.3 relating to want of driving licence with the deceased driver Ashok Kumar was decided against the insurer on the ground that the licence is available on record as Ex.9. Then deciding issue No.4 relating to liability of the insurer on the aspect of the victims being passengers in the vehicle, it was found that the victims were third parties and insurer cannot deny its liability with respect to third parties. It was also found that it is not established that the vehicle was being used in the manner violative of the conditions of the insurance policy. Thus, the insurer was held liable. Then the quantum was assessed and in each case the income was assessed at Rs.2400/- per month and employing multiplier of 18 after 3 making deduction for personal expenditure and after adding other admissible amounts, the award has been passed. Arguing the appeal it was firstly contended that since the income of the victim was pleaded more than Rs.40,000/-, the claim could not be filed under Section 163A. In my view, in view of the fact that the claim petition was amended and that order of learned Tribunal allowing the application for amendment has not been challenged in this appeal by raising any ground in that regard as contemplated by Section 105 CPC. In my opinion, this contention cannot be accepted. It was then contended that so far as the victims Bhanwar Lal and Omprakash are concerned, they were merely occupants of the jeep, which was a private vehicle and for compensation on account of their death, the appellant is not liable because the policy was only act policy. Reliance in this regard was placed on various judgments including United India Insurance Co. Ltd. Vs. Hamu Ram & Ors. reported in 2004 RAR 308, Varju & Ors. Vs. United India Insurance Co. Ltd. & Ors. reported in 2005 RAR 465, New India Assurance Co. Ltd. Vs. C.M.Jaya & Ors. reported in 2002(1) JT 198, United India Insurance Co.Ltd., Shimla Vs. Tilak Singh & Ors. reported in 2006(1) MACD (SC) 481, Oriental Insurance Co.Ltd. Vs. Meena Variyal & Ors. reported in 2007(1) MACD (SC) 390, Dr.T.V.Jose Vs.Chacko P.M.@ Thankachan & Ors. reported in (2001)8 SCC 748. Then regarding the claim relating to Ashok Kumar also it was contended that since he was not an employee of the owner of the jeep within the meaning of Section 3 of the Workman's 4 Compensation Act the appellant cannot be held liable for compensation on account of his death either. Alternatively it was submitted that in any case the liability of the appellant with respect to the death of Ashok Kumar could in any case not exceed the limit as prescribed in the Workman's Compensation Act. On the other hand, learned counsel for the claimant relied upon the judgment of Hon'ble the Supreme Court in Bhagyalakshmi & Ors. Vs. United Insurance Co. Ltd. & Anr. reported in JT 2009(9) SC 329 to contend that the question has already been referred by Hon'ble the Supreme Court to Larger Bench, and therefore, it cannot be said that the appellant is not liable. I have considered the submissions and have gone thorough the judgments. So far as the claims arising out of the death of Omprakash and Bhanwar Lal are concerned, on the face of the judgments relied upon by learned counsel for the appellant, insurer cannot be held liable for the compensation to the claimants. Of course the liability of the owner does survive. So far as the judgment in Bhagyalakshmi's case is concerned, that in my opinion has no bearing on the controversy involved in the present case, inasmuch as, the question was about liability of the insurer with respect to gratuitous passengers travelling in a private car or pillion riders carried on two wheelers, in cases where the policy is a package policy or a comprehensive policy, and since the correctness of the earlier judgment of Hon'ble 5 the Supreme Court in case of Amrit Lal Sood Vs. Kaushalya Devi Thapar reported in JT 1998(2) SC 484 was doubted and various other judgments were referred to, and the matter was referred to the Larger Bench. But then so far as the other judgments of Hon'ble the Supreme Court including United India Insurance Co. Ltd. Vs. Tilak Singh reported in JT 2006(4) SC 280, which adopts New India Assurance Co. Ltd. Vs. Asha Rani reported in JT 2002(10) SC 162 whole hog do clearly lay down that the gratuitous passengers of private vehicle are not covered in a case of act policy. It may be observed here that in Tilak Singh's case also, the victim was a pillion rider and the prevalent tariff as was then applicable did cover the risk of pillion rider by providing for its coverage as a third party. However, the ratio of that case does hold good and is not effected in any manner, by the reference made to Larger Bench in Bhagyalakshmi's case. Then so far as the case of claim arising out of death of Ashok Kumar is concerned, in this regard, a look at the record shows, that in para 5 of the claim petition, he was pleaded to be employee of defendant No.1, the owner, and in the reply in para 5 was simply denied, and he was pleaded to be an unemployed person having no income. This stand was taken by collectively denying para 5 and 6. It was submitted by learned counsel for the appellant, that the claim petition was of course amended but then the amendment was with respect to the income only, and this part of the amendment made in para 5 of the application is beyond the scope of the application for amendment. To appreciate this argument, I have gone through the 6 application for amendment which was filed on 2.2.2007, and learned counsel for the appellant is right when contending that no amendment was sought to be made in para 5 of the claim petition. But then other more important aspect is, that the amended claim petition was filed on 2.2.2007 while the original claim was filed on 10.2.2006 and this pleading about defendant No.1 being employer of the deceased is contained in para 5 of the application as filed on 10.2.2006 itself, therefore, this was not required to be amended. In that view of the matter, the fact remains that pleading is very much there, and on the side of the insurer there is a bald denial. Then coming to the evidence, A.W.4 Usha had appeared to depose on this aspect. This Usha happens to be the wife of the deceased, and in para 2 of the affidavit she has deposed that the deceased was employed as a driver on the jeep of the defendant No.1. In cross-examination of course she deposed that the husband was working as a free lancer driver, but then in my view, this stray sentence which could be made to fall from her mouth in an intelligent cross-examination cannot be said to have the effect of enabling this Court to arrive at a conclusion that at the time of accident, the deceased was not employed as a driver with the defendant No.1. The reply given in cross-examination is vague and admits of very many meanings, she might well-nigh mean that earlier the deceased might working as a free lancer driver, but then she has not to been specifically put that he was not employed by the defendant No.1 as a driver. In my view, this coupled with the fact that there is no evidence in rebuttal, nor anything in this regard has been got elicited from any other persons, it cannot be said that the deceased 7 was not the employee. In that view of the matter, the appellant ofcourse would be liable for compensation for death of driver Ashok Kumar. However, on the face of the language of Section 147, the liability would be limited to the extent provided under Workman's Compensation Act. The learned Tribunal has found that at the time of death Ashok Kumar was 28 years of age and his income has been assessed at Rs.2400/- per month. According to Schedule of the Workman's Compensation Act the amount of compensation comes to Rs.2,54,148/-, and therefore, the liability of the appellant in this claim is required to be restricted to that extent, along with interest, of course at the rate prescribed under the Workman's Compensation Act (Section 4A) being 12% per annum. The result of the aforesaid discussion is that appeals No.730 and 655 are allowed in the manner that while maintaining the award it is held that the appellant- insurance company would not be liable for the compensation, obviously whatever amount has already been paid by the insurer, insurer would be entitled to recover the same back from the owner. Then appeal No.731 is partly allowed in the manner that the liability of the insurer is restricted to an amount of Rs.2,54,148/- along with interest as mentioned above. The balance amount would be recoverable by the claimants from the owner. ( N P GUPTA ),J. /tarun/