IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : United India Insurance Co. Ltd. Vs. Gopal Singh & Another. (S.B. Civil Misc. Appeal No.1247/2010) DATE OF JUDGMENT : December 06, 2010 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Anil Kaushik for the appellant. BY THE COURT : Instant appeal has been filed by the United Insurance Company Ltd. under Section 173, Motor Vehicles Act, 1988 challenging the award dated 13.05.2010 passed by Motor Accident Claims Tribunal, Jaitaran (Pali) in Claim Case No.65/2005 (128/2003), whereby, learned Tribunal allowed compensation of Rs.3,73,000/-. As per facts of the case, an accident occurred while mother of the claimants, Smt. Fundi Devi was sleeping at Jhala Crasher Mines on 04.04.2003, at that time, tractor bearing No.RJ 21R 9148 passed along and due to rash and negligent driving of the tractor by its driver Madhu Ram, the trolley of the tractor fell upon Smt. Fundi Devi and she 2 died on the spot. For the said accident, an FIR was filed and claim petition was preferred by the claimants for compensation of Rs.7,35,000/- before the Motor Accident Claims Tribunal. Before the Tribunal, all the above facts were narrated and for loss of love and affection and damages the claimants pressed their claim. The insurance company filed reply and submitted that the driver of the vehicle was not possessing valid driving licence and tractor in question was insured for agricultural purpose, therefore, when contravention was made of the terms and conditions of the policy, then, the appellant insurer cannot be held liable to indemnify the claimants. After reply was filed, the Tribunal framed five issues and, upon adjudication, granted compensation of Rs.3,73,000/- in favour of the claimants vide judgment/award dated 13.05.2010. Learned counsel for the appellant insurance company while challenging the award argued that on behalf of the insurance company Rishi Kumar entered the witness box and exhibited insurance policy which was for agricultural purposes but, at the time of the incident, the vehicle in question was being used for carrying stones for commercial purpose. However, this aspect of the matter 3 is not considered properly by the learned Tribunal. It is also argued by learned counsel for the appellant that if the vehicle in question was insured for agricultural purposes, then, obviously it cannot be used for other purposes. It is further submitted that the learned Court below has committed an error while passing award of Rs.3,73,000/- which is on the higher side. It is submitted that deceased Fundi Devi was house-wife and claimants are two minor children and father of the children is alive, therefore, burden of maintaining the children lies upon him. In this view of the matter, the finding arrived at by the learned Tribunal deserves to be quashed. I have perused the impugned award. In my opinion, the insurance company is not disputing that the tractor in question was insured with the appellant insurance company. Further, the appellant is not disputing the accident; but, they have taken ground that vehicle was used for commercial purpose whereas it was insured for agricultural purpose; but, learned Tribunal after taking into consideration entire oral and documentary evidence gave finding that the occurrence took place when the tractor in question was used for agricultural purpose and was being driven rashly and negligently. In my opinion, the finding 4 given by the learned Tribunal with regard to liability of the insurance company is based upon cogent evidence adduced before the Tribunal. Admittedly, deceased Fundi Devi was sleeping under shadow of tree at the site and due to rash and negligent driving by the driver of the tractor the trolley of the tractor fell down upon her which resulted into her death and this fact is not disputed. Therefore, there is no illegality in the finding of the Tribunal with regard to entitlement of the claimants for compensation. With regard to assessment of the income of deceased, it is obvious from the finding that deceased was sleeping near the mines and, in the afternoon at about 3 O'clock, this incident took place. On that date, she was upon the site to work for livelihood. Learned Tribunal arrived at finding that at least deceased was earning Rs.3,000/- per month and, out of that, one-third amount was spent upon herself, therefore, learned Tribunal held that respondent-claimants are entitled for compensation at the rate of Rs.2,000/- per month and while applying the multiplier of 15, awarded a sum of Rs.3,60,000/-. In my opinion, said finding with regard to income of the deceased and quantum of compensation is based upon sound appreciation of relevant facts on record. More so, both 5 the claimants are minor, therefore, the award passed by the Tribunal does not suffer from any illegality. In this view of the matter, there is no force in this appeal. In view of the aforesaid discussion, this appeal fails and is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.