-1- C.M.A. No.1174/1997 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T 1. S.B. Civil Miscellaneous Appeal No.1174 of 1997. The New India Assurance Company Limited V E R S U S Ram Prakash son of Shri Jeet Ram and Others 2. S.B. Civil Cross Objection Inward No.960 dt.02.04.99 IN S.B. Civil Miscellaneous Appeal No.1174 of 1997. The New India Assurance Company Limited V E R S U S Ram Prakash son of Shri Jeet Ram and Others Date of Judgment :::: 10/08/2010 Hon'ble Mr.Justice Dalip Singh Mr. V.S. Yadav, Counsel for the appellant-company Mr. Anirudh Singh, for Mr. Virendra Agarwal, Counsel for claimants No.1 to 3 Mr. Rakesh Kr Sharma,Counsel for respondent Nos.4 to 7 *** Per Court : Heard learned counsel for the parties. Perused the record. This miscellaneous appeal, under Section 173 of the Motor Vehicles Act, 1988, has been filed by the New India Assurance Company Limited against the award dated 01.09.1997 passed by the learned Motor Accident Claims Tribunal (Additional District & Sessions Judge) Behror District Alwar in Motor Accident Claim Case No.7/1993. The cross objections have also been preferred by the claimants for enhancement of the compensation. Facts, in brief, are that an accident took place on 25.01.1989 in which the deceased Kashi Ram was carrying 12-bags of sugar in the Tractor bearing No.RJ-A-5112 owned by the respondent No.5–Firm Alwar -2- C.M.A. No.1174/1997 Kray Vikraya Sahakari Samiti, Kedalganj, Alwar. The said tractor was insured with the appellant–New India Assurance Company Limited under the policy, Exhibit-6 which was taken on 22.07.1988 and was valid for a period of one year. Admittedly, the accident took place during the currency of the aforesaid Policy of insurance issued by the appellant. The learned Tribunal has held that the accident took place as a result of rash and negligence driving by the driver of the said tractor–Satyaveer Singh, the respondent No.4, as a result of which the accident occurred and the deceased suffered injuries resulting into death of deceased Kashi Ram. The learned Tribunal also found that as per the terms of the policy the vehicle in question was insured for commercial use and was entitled to carry a trolley for which separate premium had been charged and that the policy being for commercial use separate premium had been charged for the trolley being attached to the tractor and also that the premium had been charged by the insurer in respect of the injuries/death to one person. The learned Tribunal awarded the claim in favour of the claimants against the insurance company on the basis of the aforesaid. The learned counsel for the appellant insurance-company contended that the insurance-company -3- C.M.A. No.1174/1997 was not liable to pay the compensation in view of the specific terms and conditions of the policy. Learned counsel has also contended that the tractor being a goods vehicle the deceased being a passenger being carried in the trolley, the insurance company appellant was not liable, in view of the judgment of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, reported in 2003 A.C.J. Page 1. The learned counsel for the appellant insurance-company has also contended that in the case of Natwar Parikh & Co. Ltd. Vs. State of Karnataka and Others, reported in 2006 A.C.J. Page 1, a tractor has been considered and held to be a goods vehicle and, therefore, the insurance company would not be liable. So far as the submission of the learned counsel for the appellant insurance-company that the tractor being attached with the trolley is a goods vehicle is concerned based upon the judgment of Natwar Parikh' case (supra), suffice it to say that the aforesaid judgment was on the basis of the tax being levied by the taxation authorities under the Taxation Act, 1957 and the question for consideration was whether or not such a tractor trolley was required to have a permit for a goods carry under the provisions of the Motor Vehicles Act, 1988. As distinct from the aforesaid, the present case is one where admittedly the tractor has been -4- C.M.A. No.1174/1997 insured along with the trolley for which separate premium had been charged as per the terms of the policy, Exhibit-6. The tractor in question has also been insured for commercial purposes as distinct from the agricultural or other uses. The insurance company never raised any such plea under Section 149 of the Motor Vehicles Act, 1988 that they were not liable for reimbursement of the insured for any liability for want of permit by the owner of the vehicle permitting its use as a goods vehicle, in respect of the tractor and trolley. Therefore, so far as the aforesaid judgment of Natwar Parikh's case (supra) is concerned has no application to the facts and circumstances of the present case in absence of any plea regarding want of a permit as a goods vehicle. So far as the present case is concerned, the learned Tribunal on the basis of the evidence on record has come to the conclusion that the deceased was traveling along with his goods on the tractor trolley owned by the respondent No.5-society and insured with the appellant. It has also been found as a fact by the learned Tribunal, on the basis of the appreciation of evidence and particularly Exhibit-6, the policy, in question issued by the appellant that the same was in respect of the tractor for which premium had been charged for the trolley and also that the policy -5- C.M.A. No.1174/1997 permitted the use of the vehicle for the “commercial purposes only”. It has also been found that for the driver separate premium had been paid as is evident from the Cover-Note, Exhibit-6. The learned Tribunal also found that the policy specifically permitted the carrying of one person on the tractor and this one person, in the opinion of the learned Tribunal, could be the owner of the goods as distinct from the driver. On the basis of the aforesaid evidence on record and the statement given by Sawant Singh Meena on behalf of the insurance company, NAW-1, the learned Tribunal came to the conclusion that the appellant insurance company had specifically permitted the carrying of one person on the tractor, which was insured for commercial purposes along with a trolley and the said one person would be the owner of the goods in question as the vehicle was insured for commercial use along with the trolley. Learned counsel for the appellant insurance- company sought to contend that the policy in question did not permit carrying of any person other than the driver of the tractor. Learned counsel submits that the learned Tribunal has committed a serious error in holding the insurance company liable in the light of the specific provisions that the tractor is capable of carrying only the driver and no other person. -6- C.M.A. No.1174/1997 I have considered the aforesaid submissions as well as the findings of the learned Tribunal, I am of the opinion that so far as the present case is concerned, looking to the contents of Exhibit-6, the policy in question the interpretation of the policy in question given by the learned Tribunal cannot be said to be perverse. If at all there is any doubt regarding the interpretation of the terms of the policy, the interpretation, which leans in favour of giving effect to the provisions of the Act must be taken and the object of the Act necessarily is for providing social security and coverage of the risk of a person involved in an accident as such one interpretation, which leans in favour of the claimant must be taken. Since, Policy, Exhibit-6 does not specify that the aforesaid one person for whom premium has been charged is only the driver and not the owner of the goods or any other person entitled to accompany the goods, as the tractor was insured for commercial use with a trolley the interpretation in favour of the claimant taken by the learned Tribunal cannot be questioned. Since, the vehicle is insured for commercial uses only as per terms of the policy which may require carrying of person for loading and unloading of the goods or the owner of the goods in question to travel along with the goods, the interpretation of the learned Tribunal cannot, in the facts and circumstances of the case be said to be perverse so as to call for interference by -7- C.M.A. No.1174/1997 this Court. In the facts and circumstances which have come on record, the submissions of the learned counsel for the appellant insurance-company cannot be accepted. Accordingly, so far as the appeal filed by the insurance company appellant is concerned, the same is hereby dismissed. The stay application also stands dismissed. CROSS – OBJECTIONS. As far as the cross-objections are concerned, the learned counsel for the claimants has submitted that the learned Tribunal has erred in adopting a multiplier of 12 where the deceased was only 35 years of age for whom at least multiplier of 16 as provided in the provisions of II Schedule to the Motor Vehicles Act, 1988 ought to have been adopted. I have gone through the award passed by the learned Tribunal and I find that so far as the question with regard to the age is concerned, there is no specific finding given by the learned Tribunal as to what was the age of the deceased. The learned Tribunal has adopted a multiplier of 12 in the facts and circumstances of the case, as the accident occurred prior to 1994 and the provisions of the II Schedule of the Motor Vehicles Act, 1988 -8- C.M.A. No.1174/1997 were brought in force by amending Act of 1994 with effect from 14.11.1994, as such the learned Tribunal as not taken into consideration the provisions of the aforesaid Schedule. In the facts and circumstances of the present case, therefore, it cannot be said that the learned Tribunal has committed any error in not taking into consideration the provisions of the II Schedule to the Motor Vehicles Act, 1988. There is no force in the cross-objections and the same are accordingly dismissed. The appeal, the stay application and the cross-objections stand dismissed. There shall be no order as to costs. (Dalip Singh),J. Ashok/