IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.213 of 2007 M/S United India Insurance Company Limited through the Chief Regional Manager, Regional Office, Chanakya Comm- Ercial Complex, R’Block,Patna Versus 1. Seraj Devi W/O Suresh Sao 2. Suresh Sao S/O Rameshwar Sao Both resident of village- Rani Bazar( Mathurapur), P.S. Guraru, District-Gaya 3. Kuer Vijay Singh S/o Sri Jagdish Singh, resident of Village- Konchi P.S. Guraru, District-Gaya ----------- WITH MA No.324 of 2007 1 Seraj Devi W/O Suresh Sao 2 Suresh Sao S/O Rameshwar Sao Both resident of village- Rani Bazar( Mathurapur), P.S. Guraru, District-Gaya Versus 1 M/S United India Insurance Company Ltd. through Branch Manager, G.T. Road, Branch Officer, Sasaram, District-Rohtas 2 Kuer Vijay Singh S/o Sri Jagdish Singh, resident of Village- Konchi P.S. Guraru, District-Gaya ________ For the Insurance Company in both appeals:Mr. Durgesh Kumar Singh, Advocate For the Claimants in both appeals : Mr. Arun Kumar Sinha, Advocate ---------------- O R D E R Both these appeals have been taken up together as they arise out of the Judgment dated 31.1.2007 and Award dated 14.2.2007 passed by Sri Kameshwar Nath Rai, learned 1st Additional District Judge-cum- Motor Accident Claims Tribunal , Gaya in M.A.C. Case No. 34 of 1999/45 of 1997 and having been heard together is being disposed of by this common order. - 2 - The appellants of M.A. No.324 of 2007 are the unfortunate grieved parents of 16 years old boy , Raj Kumar Sao, who died in an accident involving the use of a Motor Vehicle , being a jeep bearing registration no.BEA 5554, while travelling from Guraru to Mathurapur, and their appeal is founded on the inadequacy of the amount of the compensation awarded . On the other hand, the appellant of M.A. No.213 of 2007, the Insurance Company, with whom the ill-fated vehicle was insured, have questioned the justification of the Award in the face of the nature of the Insurance, policy taken out. By the impugned judgment and award, a sum of Rs. one lakh has been allowed as compensation on lump sum basis, and a sum of Rs.50,000/- having already been paid under Section 140 of the Motor Vehicles Act ( hereinafter referred to as the “ M.V. Act”) the balance amount of Rs.50,000/- was to be paid by the Insurance Company along with interest at the rate of Rs.8.5 % per annum from the date of filing of the claim case till its payment apart from the cost of the suit. The submission on behalf of the appellants of M.A. No.324 of 2007 is that the tribunal had miserably failed to give a thoughtful consideration of the fact that the deceased aged about 16 years was earning Rs.100/- to Rs.150/- per day from vending fruits and vegetables as has emerged from the evidence adduced by their witnesses which have not been demolished by the Insurance Company and has mechanically awarded compensation of Rs.one lakh ignoring - 3 - the Second Schedule of the M.V. Act. Assailing the impugned judgment and award the submission of the Insurance Company is that the Tribunal failed to take into account the facts that the vehicle in question was insured as a private vehicle under „Act Policy‟ and the deceased being a gratuitous passenger, the company was not liable to pay any compensation legally. It was also submitted that the driver of the ill fated vehicle did not possess a valid driving licence. As would appear from the Memorandum of Appeal of M.A. No.324 of 2007, A.W.1 Madhu Sao, deposed in court that the deceased was 17-18 years old and earned between Rs.100/- to Rs.150/- per day from vending fruits and vegetables, whereas A.W.4, Suresh Sao, the father of the deceased, stated that his deceased son was 16 years of age and earned Rs.100/- to Rs.125/- per day out of which he contributed Rs.100/- per day for household expenses. A.W.5, Seraj Devi, the mother of the deceased, stated that her son earned Rs.200/- to Rs.250/- per day and gave Rs.100/- per day for daily expenses. A.W.6 on the other hand stated that Raj Kumar earned Rs.700/- to Rs.800/- in a week and used to purchase fruits from his shop. Apparently, there does not appear any consistency in the deposition of the A.Ws in respect of the age and daily earnings as also the amount given by the deceased towards expenses for the household. There is a marked difference in the figures supplied by the father and mother. One other aspect which has not been looked into is the fact - 4 - that some amount must have been spent over the purchase of fruits and vegetables which he vended. There does not appear any indication in this regard in the deposition of the witnesses. In these circumstances the very income of the deceased becomes doubtful. So far as the question of the Tribunal‟s non- adherence to the Second Schedule is concerned, the same only lays down guidelines for determination of the amount of compensation in terms of Section 166 of the M.V.Act. It is not that the guidelines are inflexible. As held by the Apex Court, deviation from the structured formula is permissible in appropriate cases. Now coming to the appeal preferred by the Insurance Company. Admittedly the vehicle was insured as a private vehicle under the “Act Policy”. The terms of a policy as also the quantum of the premium payable for insuring the vehicle in question depends on amongst others also on the purpose for which the vehicle was being utilized and the extent of the risk covered thereby . By taking an „Act Policy‟ the owner of a vehicle merely fulfils his statutory obligation as contained in Section 147 of the M.V.Act. If additional risks are sought to be covered, additional premium has to be paid. As the vehicle was insured as a private vehicle and did not cover any additional risks by paying additional premium, the deceased would be treated as a gratuitous passenger. Gainful reference for the purpose may be made to the decisions of United India Insurance Co. Ltd. Vrs. Tilak Singh reported in (2006)4 SCC 404 and New India Assurance Co.Ltd. Vrs. Sadanand Mukhi, reported in (2009) 2 SCC 417. - 5 - In view of the discussions made above, M.A.No.324 of 2007 fails and is dismissed, whereas M.A. No.213 of 2007 succeeds and the judgment and award impugned is set aside. The amount of Rs.50, 000/- already paid to the claimants under Section 140 of the M.V.Act shall be permitted to be retained by the claimants by way of sympathy. The statutory amount deposited by the Insurance Company be returned to the Claims Tribunal to be paid to the Insurance Company. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 23rd April,2009 Nawal Kishore Singh/A.F.R.