HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'bleShriDilipRaosahebDeshmukh.J. hflisc. Appeal (CtNo. 268 of 2007 Appellant (Non-applicant No.3 Respondents (ApplicantNo.1) (Applicant No.2) United India Insurance Co. Ltd., Branch Manager, Branch Office, Opp. Gopi Talkies, Raigarh (CG) versus 1. Tiharu s/o Suhru Kashyap aged 50 years. 2. Smt. Chote Bai, W/o Tiharu Kashyap, aged 48 years. Both are R/o Budena Tahsil - Janjgir, Distt. - Janjgir - Champa (CG) 3. Bhim Singh Rathore, S/o Dhaniram Rathore, Vill. Sonsari, P.S. - Pamgarh, Tahsil - Janjgir, Distt. Janjgir - Champa (CG) 4. Sriram Yadav S/o Anil Kumar, aged 17 years, Minor through guardian father Anil Kumar, aged 40 years, R/o Vill. Sarso, Tahsil - Janjgir, Distt. Janjgir - Champa (CG) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Present : Shri Dashrath Gupta, counsel for theappellant/insurancecompany. Shri Sourabh Sharma, counsel for respondents No.1 & 2/Claimants. Shri Indrasen Sahu, counsel for respondents No.3 & 4. (Non-Applicant No.1) (Non-Applicant No.2) ORDER (Passed on Tf^of July, 2008) This is insurer's appeal against an order of pay and recover passed by the Additional Motor Accidents Claims Tribunal, Janjgir (henceforth 'the Tribunal') in Claim Case No. 43/2005 vide its Order dated 11.12.2006. The respondents No.1 & 2/Claimants have also preferred a cross- objection for enhancement of compensation awarded by the TribunaL. r 2. Brief facts are that on 27.01.2005 respondent No.1 Tiharu Was riding a cycle to Bhatapara from his village Budena with his daughter Ku.Ramwati on the pillipn. As they approached Naila - Bhatapara, respondent No.4/driver drove tractor No.CG 11-A 3581 (henceforth 'the tractor') to which a trolley No.CG 11-A 3582 (for brevity 'the trolley') was attached, in a rash and negligent manner and dashed the cycle from behind. Ku. Ramwati fell down and died due to being crushed underneath the tractor. 3. Resisting the application under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) for compensation filed by respondents No.1 & 2, the appellant/insurer pleaded that there was a fundamental breach of policy of the insurance inasmuch as the respondent No.4/driver Sriram Yadav, who drove the tractor, was a minor and did not possess any licence. 4. The Tribunal recorded a finding that by permitting the tractor to be driven by a minor, a fundamental breach of the policy of insurance was proved. It, therefore, exonerated the appellant/insurer from the liability to pay compensation. However, since the accident had resulted in the death of a third party, it passed an order of pay and recover against the appellant/insurer. Compensation ofRs.1,62.000/- was awarded. 5. Submissions of Shri Dasharath Gupta, learned counsel for the appellant/insurer, Shri Sourabh Sharma, learned counsel for respondents 1 No.1 & 2/Claimants and Shri Indrasen Sahy, learned counsel for respondents No.3 & 4/owner and driver were heard. Record isperused. 6. A decisioh rendered by the Apex Court in National Insurance Co. Ud. vs. Swaran Singh and others, (2004) 3 SCC 297, National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 and a decision rendered by this Court in United India Insurance Company Limited vs. Kunjbihari Mishra and others in Miscellaneous Appeal (C) No. 44 of 2007 on 26.02.2008 is a complete answer to the insurer's appeal wherein it was held that under Section 147(1) of the Act, the insurer is statutorily liable to cover the risk of a third party and upon proof of a fundamental breach of a specified condition of the policy under Section 149 (2) (a) of the Act, the Tribunal has jurisdiction to direct the insurer to first pay the compensation to the claimants and to recover the same from the owner. This is precisely what the Tribunal did in the present case. There is thus no merit in the insurer's appeal. 7. The principles of award of compensation in case of an accidental death of a child have been dealt with by the Apex Court in Manju Devi and another vs. Musafir Paswan and another, 2005 (1) TAC 609 (SC): 2005 ACJ 99 wherein it was held that in case of death of a non-earning child aged 13'years, his notional yearly income must be taken at Rs.15,000/- and multiplier of 15 would have to be applied. In the present case, although the Tribunal assessed the notional yearly income of the deceased at Rs.15,000/-, it erred in deducting 1/3'd therefrom towards personal expenses ofthe deceased, who was a child aged 13 years. The Tribunal ought to have applied multiplier of 15 to the yearly notional income of Rs.15,000/- while assessing compensation andshould have awarded compensation of Rs.2,25,000/-. In this view of the matter, cross- objection filed by respondents No.1 & 2/claimants deserves to be allowed. 8. As a result, the insurer's appeal is dismissed. Cross-objection filed by respondents No.1 & 2/Claimants is allowed. In partial modification of the award passed by the Tribunal, compensation of Rs.2,25,000/- is awarded. The appellant/insurer after paying compensation may initiate proceedings to recover thesame from respondent No.3 i.e. the owner of the tractor. Sd/- Dilip Raosaheb Deshmukh Judge