IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO Nos.: 455 of 2006 and 37 of 2007 Date of decision : 16.6.2011. FAO No. 455 of 2006 Deepak Chauhan …Appellant. Versus Veena Kumari and others …Respondents. FAO No. 37 of 2007 United India Insurance Company …Appellant. Versus Veena Kumari and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Insurance Company: Mr. G.D.Sharma, Advocate. For the owners & driver: Mr. Dhruv Shaunak, Advocate. For the claimants: Mr. C.S.Thakur, Advocate. Deepak Gupta, J.(Oral) 1. These two appeals are being disposed of by a common judgement since they arise out of the same award. 2. Claimants filed a claim petition under Section 166 of the Motor Vehicles Act alleging therein that the deceased Jagmohan Singh was travelling in tractor No. HP-16-0243 owned by Deepak Chauhan and Ranbir Singh and driven by 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 Suman Kumar. The tractor was insured with the United India Insurance Company. The respondents in their reply did not dispute the fact that the deceased was travelling in the tractor. Thereafter, evidence was led and the learned Tribunal came to the conclusion that the deceased was travelling in the tractor and further held that the accident had occurred due to the rash and negligent driving of the driver of the tractor. He assessed the compensation payable at Rs.3,37,200/-. The Insurance Company had taken a defence that it was not liable to pay compensation since it was not required to cover payment of compensation to passengers being carried in the tractor. The MACT accepted this plea but directed the Insurance Company to satisfy the award and recover the amount from the owners and driver jointly and severally. The Insurance Company has filed FAO No. 37 of 2007 challenging this finding of the Tribunal. The owners have filed FAO No. 455 of 2007 in which they have challenged the award on all counts and have further urged that the deceased was not travelling in the tractor and therefore, the Insurance Company should be held liable. 3 3. A perusal of the pleading itself shows that in Para 10 of the petition it was specifically stated that the deceased was travelling in the tractor. A common reply was filed by the owners and driver and in the reply they have admitted this fact. In para 24 of the petition details of the accident were given and again it was alleged that the deceased was travelling in the tractor. In reply to this paragraph there is no specific denial to the averments that the deceased was travelling in the tractor. In fact, there is no denial even indirectly to this fact. All that is stated is that the accident occurred due to mechanical fault. This clearly shows that at that time the owners did not dispute the fact that the deceased was travelling in the tractor. This being an admitted fact was not required to be proved and mere fact that the claimants had no evidence in this regard does not mean that the deceased was not travelling in the tractor. 4. Even in the F.I.R. it is recorded that the deceased was travelling in the tractor. It appears that realizing that the liability to pay compensation may fall on them the owners and driver now took up a new plea that the deceased was not a passenger in the tractor but was a 3rd 4 party. The evidence led being totally contrary to the pleadings cannot be looked into. Therefore, the finding of the learned Tribunal that the deceased was travelling in the tractor is upheld. 5. Coming to the quantum of compensation, the admitted facts are that the deceased was a daily wager working in the H.P.State Forest Corporation and his daily wages were Rs.60/- per day or Rs.1800/- per month. The learned Tribunal also held that the deceased would have been earning Rs.600/- per month from the agriculture since some agriculture land was in his name. However, from the evidence it is apparent that the deceased was posted at a village, which is about 80 k.ms from his native village. Therefore, it would have been virtually not possible to him to have cultivated his land. 6. Be that as it may, the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, has clearly held that the future prospects have to be taken into consideration. No doubt, the deceased was not in permanent employment but he being less than 35 years of age and being employed by the Forest Corporation, which is a State within the meaning of Article 21 of the 5 Constitution of India, it can be legitimately expected that he would, like other daily waged employees, have been regularized and placed in a higher scale. Therefore, it would not be inappropriate to add 25% to income which would take it to Rs.2400/- per month. Normally 1/3rd is deducted for the expenses of the deceased but here we are concerned with a case where the deceased had a wife, three minor children and a mother to support. Therefore, keeping in mind the small income and the large number of dependents it would be appropriate to fix the personal expenses of the deceased at 1/4th i.e. Rs.600/- and the dependency at Rs.1800/- per month. If the multiplier of 16 is applied the compensation will work out to an amount close to that awarded by the learned Tribunal. Therefore, no interference is called for. 7. In United India Insurance Company vs. Smt. Piari Devi and others Latest HLJ 2006(HP) 223 this Court clearly held that a tractor is not meant to carry passengers and when passengers are carried in the tractor there is violation in the terms of the policy and the provisions of the Motor Vehicles Act and the Insurance Company cannot be held liable. 6 8. In the present case, the registration certificate of the vehicle is on record as Mark-X. It was produced by the owner himself. This shows that the sitting capacity including the driver is only one. This obviously means that no passenger could be carried in the tractor. Similarly, the Insurance Policy Ext.R-1 also does not cover any liability of the passengers. Therefore, the Insurance Company could not have been held liable to pay the amount. This Court in United India Insurance Company Ltd. vs. Abdul Hamid and others, Latest HLJ 2010(HP) 187 after discussing the entire case law held that the Apex Court has been directing the Insurance Company to satisfy the awards in exercise of its powers under Article 142 of the Constitution of India which power is not there with this Court. Therefore, the appeal of the Insurance Company has to be allowed. 9. In view of the above discussion, FAO No.455 of 2006 is rejected and FAO NO. 37 of 2007 is allowed and the Insurance Company is exonerated of its liability. It is, however, made clear that in case any amount has already been released in favour of the claimants, then the Insurance Company can recover the same from the owners 7 and driver and not from the claimants. The amount deposited in FAO No.455 of 2006 be released in favour of the widow by remitting it to her bank account details whereof have been given in the application. No costs. 16th June, 2011 ( Deepak Gupta ) ™ Judge.