.11V i AW 44 HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, .‘J. M.A. No. 853 of 2003 Smt. Radhika, W/o. Tejram Nayak, aged about 27 years, R/o Village Navapalli, Post Office— Baramkela, Tehsil- Sarangarh, District- Raigarh (Q.G.) App‘ellant Versus Vx Respondents 1 Minketan Nayak, S/o Khirsai Nayak, aged 62 years, (Owner of Tractor- Trolley) 2 Ram Jewan Nayak, S/o Chandulal Nayak, aged 23 years, (Driver of Tractor~Trolley) Both R/o Village Navapalli, Post Office— Baramkela, Tehsil- Sarangarh, ,District- Raigarh (C.G.) 3 The New India Assurance Co. Ltd. Through Branch ManageaSatigurhi Chowk, Raigarh And M.A. No. 854 of 2003 Naresh @ Tejram Nayak, S/o. Minketan Nayak, aged 35 years Smt. Radhika, W/o Tejram Nayak, aged about 27 years, Both R/o Village Navapalli, Post Office- Baramkela, Tehsil— “ Sarangarh, District Raigarh (C.G.) Versus 1 Minketan Nayak, S/o Khirsai Nayak, aged 62 years, (Owner of Tractor- Trolley) Appellants Respondents 2 M A No R§1 of 2003 & M.A. N0. 854 of 2003 Ram Jewan Nayak, S/o Chandulal Nayak, aged 23 years, (Driver of Tractor—Trolley) Both R/o Village Navapalli, Post Office— Baramkeia, Téhsil- Sarangarh, District— Raigarh (C.G.) 3 The New India Assurance Co. Ltd. Through Branch Manager, Satigurhi Chowk,’ Raigarh ‘ (Appeals under Section 173 of the'Motor Vehicles Act) Appearance: Mr. Roshan Dubey, Advocate forthe Appellants/claimants Mr. H.S. Patel, Advocate for the Owner & Driver. Mr. Shree Kumar Agrawal, Sr. Advocate with Mr. Anand Gupta, Advocate for the Insurance Company. .JUDGMENT (28.09.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1): These appeals have been filed against the award dated 30.6.2003 passed by the First Additional Motor Accident Claims Tribunal, Raigarh. (2) By the Impugned common award, two claim case,i.e, Clai Case No. 5/2002 and Claim Case No. 16/2002 were disposed of. (3) MA. No. 853/2003 arises out of Claim Case No. 16/2002 riled by appellant- Radhika for the personal injuries sustained by her, and M.A. No. 854/2003 arises out of Claim Case No. 5/2002 filed by i l i . m appellants— Naresh and Radhika, parents of deceased- Manish Kumar, a male child aged about 4 years. Both the appeals have been‘filed for enhancement of compensation. In M.A. No. 8.53/2003, the owner and driver have filed a cross-objection vide M.(C.)P. No. 1598/2004. They have aiso filed a cross-objection in M.A. No. 854/2003 Vide M.(C.)P. No. 1596/2004. (4) The facts, brief stated,,are as under:- On 26.8.2001, appellant- Radhika, her son Manish Kumar and many other persons had gone for Ganesh Visharjan & picnic by tractor and trolley bearing registration No. MP-55-M—0274 and MP-55—M—0275. In the evening, when they were returning from the picnic, the said tractor—trolley met with an accident on account of rash and negligent driving of the driver of the tractor. Manish Kumar died at the place of the accident and Radhika received. multiple serious injuries. A First information Report (Ex.—P/5) was also lodge in the concerned police station. Appellant- Radhika filed Claim Petition No. 16/2002 claiming compensation of Rs.5,90,000/- for the injuries sustained by her in the motor accident, whereas a separate Claim Petition i.e. 5/2002 was filed by Radhika and her husband for death of deceased- Manish Kumar claiming compensation of Rs.5,53,000/—. Appellant- Radhika pleaded that she sustained fractures on her both forearms and she also sustained injury on her kidney and ultimately her one kidney was removed and in this manner, she sustained permanent disability. The certificates relating to treatment for fractures and removal of one kidney were filed as EX.-A/9 & Ex.—A/61. No permanent disability certificate was filed by appellant- Radhika. V» A NO 53' of, “2003 ;&?M.A.No.‘854 of r2003 The owner and driver filed their. joint written statement. . They admitted the factum‘rof accident. However, the owner denied his liability to pay compensation and pleaded that his ' tractor-trolley was insured with the New India Assurance Company Limited, therefore, the liability to pay compensation was on the insurer. There was no specific denial by the owner about the fact that the deceased and other persons were , traveling as passengers in the trolley at the time of the accident. The Insurance Company also filed written statement and denied its liability to pay compensation on the ground that ‘the tractor and trolley was insured for agriculture purpose and the claimant and deceased were traveling as passengers on the trolley,‘therefore, the Insurance Company would not be liable to pay compensation. In Claim Case No. 16/2002, the claimant examined herself asAW-1 and she also examined Dr. Govind Sahu (AW—2), Du'rgesh Kumar Nayak (AW—3) and Naresh Nayak (AW-4) in support of her Claim Petition. The owner and driver did not examine any witness. The Insurance Company examined Mr. Alexender Toppo (NAW-1) in rebuttal. The Tribunal, on a close scrutiny of the entire evidence led before it, held that the accident occurred on account of rash and negligent driving of the offending tractor by its driver and the claimants were entitled to receive compensation. The Tribunal further held that since the tractor-trolley was insured for agriculture purpose and it was used for carrying passengers in the above manner, therefore, the Insurance Company was notliable to pay compensation and the owner and driver would be responsible to pay compensation to the Mfui, claimants. }A ii M‘A. No. 853 of 2003 & M.A. N0. 854 of 2003 So far as Claim Petition of Radhika is concerned, the Tribunal awarded Rs.18,650/— as the amount incurred for treatment of kidney and it also awarded Rs.20,300/- as the amount incurred for treatment of fractures sustained by ciaimant. Allowing other biiis, furnished by the claimant for expenses incurred in her treatment, the Tribunal awarded a j sum of Rs.54,914.49 p. as the total amount incurred on the 1 treatment ‘of claimant Radhika. The Tribunal awarded l Rs.25,000/— on account of pain and suffering. The Tribunal also awarded Rs.85,000/— as loss of future earning capacity of V . the claimant on account of injuries sustained by her. The Tribunal thus awarded a total sum of Rs.1,64,914.49 p. as compensation to claimant Radhika for the injuries sustained by her in the motor accident. In Claim Case No. 5/2002, the Tribunal awarded a lumpsum compensation of Rs.50,000/— to the claimants for the death of their son- Manish Kumar in the motor accident. in both the cases, the Tribunal awarded interest at the rate of 9% per annum from the date of filing of the Claim Petitions till the date of actual payment. (5) the appellants, argued that the Insurance Company has been wrongly exonerated by the Tribunal. He also‘argued that the Tribunal assessed low amount of compensation in both the Claim Cases, therefore, the compensation awarded in both the Claim Case may be suitably enhanced. Mr. Roshan Dubey, learned counsel appearing on behalf of (6) On the other hand, Mr. Shree Kumar Agrawal, learned Sr. Advocate appearing on behalf of the Insurance Company, opposed .A. N0. 853 of 2003 & M.A. No. 854 of 20 M 03 these arguments and supported the award passed by the Claims Tribunal. (7) Mr. H.S. Patel, learned counsel appearing on behalf of the Owner and Driver, supported the argument of Mr. Roshan Dubey relating to exoneration of the Insurance Company. However, he opposed his arguments relating to enhancement of amounts of compensation. J (8) We have heard the learned counsel for the parties at length and have also perused the records of the claim cases. a (9) So far as exoneration of insurance Company is concerned, we find from the insurance policy that the tractor & trolley were insured for agriculture purpose and there isample evidence on record to show that appellant— Radhika, her son Manish Kumar and many other persons were traveling on the trolley as passengers as they were returning from picnic on the said tractor-trolley when it met with an accident on 26.8.2001. These facts are there in the pleadings of the claimant and this has also been mentioned in the F.l.R. (Ex.-p/5) and it also comes in the evidence of Durgesh Kumar Nayak (AW—3) 'who promptly lodged the F.l.R. In the above facts and circumstances of the case, we do not find any fault in the finding recorded by the Claims Tribunal that the deceased, injured and many other persons were traveling as passengers on the M.A. No. 853 of 2003 & M.A. No. 854 of 2003 tractor/trolley at the time of accident, therefore, the Insurance Company would not be liable to pay compensation to the claimants. (10) Mr. Patel also argued that according to the MP (C.G.) Motor Vehicles Rules, 1994, Rule 97 permits carrying passengers on the goods carriage on special occasions like Mela, Markets, Religious Functions, Marriages and at other ceremonial occasions, therefore, the liability to pay compensation would be on the Insurance u. l Company. We are unable to accept this argument of Mr. Patel. (11) Rule 97 of Rules 1994 reads as follows:- “97. Carriage of person in Goods Carriage.- (1) No person shall be carried in a goods carriage other than a bonafide employee or the owner or the hirer and except in accordance with this rule. (2) xxxxxxxx (3) xxxxxxxx (4) xxxxxxxx' (5) xxxxxxxx (6) xxxxxxxx (7) Notwithstanding anything contained in sub-rules (1) and (2) but subject to the provisions of sub-rule (5) such tractor-trailer other than those registered in the name of Industrial organization, [Municipal Institutions, water supply institution and non- agricultural cooperative societies and the unladen wreight of which does not exceed 7300 Kgs may be used for the followmg purposes- (I) for carrying labourers and the member of the family of agriculturist for the M.A. No. 853 of 2003 & M.A. No. 854 of 2003 purpose of agriculture or any urpose ‘ connecte with agricu!ture including Sale and purchase of articles or agricultu. u (ii) for carrying persons at e time of Me, arkets, Religious Functions, Maraes and at other ceremonial occasion ovided that the number of persons so carried shall not exceed 20 at a time.” (Only relevant portion qoted) u A‘perusal of Rule 97 of Res 1994 uld show that the goods cara contained in sub—rule 7) may be used for the purposes of rige ( carrying persons at the time of Mela, Markets, Religious Functions, Mariages and at ther ceremonial occasions, but only by permitting r o in trited manner as contained in this Rule would not make the resc insurer liable to pay compensation to suc persons unls a h es coract of Insurace to that extent exist between the owner and nt n s the insurer. l the prent cas, we do not d any such contract n se e fin betwee the own and insurer. he actor & trolle were simply n er T tr y insured for agriculture purpose and no extra premium was paid for covering the risk of any of the specified persons as mentioned in the above Rule. Therefore, in the above facts and circumstances, the insurance Company cannot be held liable to pay compensation on account of provisions of Rule 97 of the Rules of 1994. \, p d re th la M rig s pr f ul wo 9 M.A. No. 853 of 2003 & M.A. No. 854 of 2003 (12) Mr. Patel also argued that the direction/libetty granted to the insurance Company to recover the amount of interim compensation from the owner was also unjustified. He referred to the juogment of Indra Devi & Ors. —Vs- Bagada Ram & Anr., 2010 AIR SCW 4924. This; argument is also misconceived. (13)l In Indra Devi (supra), claim made no fault basis was rejected and‘there was a direction to the insurance Company to recover the V . amount of interim compensation along with the interest from the claimants/appellants. The Supreme Court referring to the judgment rendered in the matter of Eshwarappa @ Maheshwarappa and Anr. —Vs- C.S. Gurushanthappa and Anr., 2010 AIR SCW 4918 set-aside th'e said direction of the Tribunal holding that the above payment is made ‘on the principle of no fault’ and the expression ‘no fault’ suggests that the compensation under section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made. (14) ln case on hand, the claims of the claimants‘were not rejected and the claimants were held entitled to get compensation and the insurance Company was exonerated from its liability to pay compensation. lt is in these circumstances, the Tribunal has directed that the amount-of no fault compensation, paid by the insurance Company, shall be recovered from the owner. For the foregoing reasons, we do not find any fault in such direction issued by the Claims Tribunal. M.A. No. 853 of 2003 & M.A. No. 854 o 2003 f (15) Now we shall consider about the quantum of compensation. (16) In Oriental Insurance Co. Ltd. —Vs- Syed Ibrahim and Others, (2007) 11 SCC 512, the Supreme Court held in Para-10 of the judgment as f‘oliows: “In ces of yng children of tender age, in view of the ncertainties abound, neither their income at te time of eath nor the prospects of the future increase in their income no‘r‘chanc f advancement of their career are capable of roper detemination on estimatd basis. The rason is that at such an early age, the uncertaintis in re to their academic pursuits, achievement in career and thereafter advancement in life are so may that nothig an be ssumed with reasonabie certainty. Therefore, neither is the ome of the deceased child capable of assment on estimated basis nor is the financial loss suffere by the ants capable of mthematical computation." pre a lt is ot dispud that the deceased was aged abou years. The amot of Rs.50,000/— awarded to the aellants fr death of un pp o deceased—Manish Kumar, when examined in light of the principles laid down by the Supreme Court in Syed Ibrahim (supra) and the quantum awarded therein, we do not find any scope for enhancement of the said amount of compensation awarded to the appellants for the death of deceased- Manish Kumar in the motor accident. (17) So far as compensation awarded to appellant-Radhika is concerned, the Tribunal has awarded Rs.54,914.49 p. as the as ou u h d es o p r e e e gard s n n c a inc sse d n te t 4 M.A. No. 853 of 2003 & M.A. No. 854 of 2003 amount incurred for her treatment in which Rs.18,650/- is for the treatment of kidney and Rs.20,300/— is for the treatment of fractures and the rest of the amount is the amount of various medicines purchased by the claimant during the said period. This ha been awarded by th Tribunal on the basis of receipts o by ‘n nd bove»:te Tr prduced theciaimat. Over a a,h ibunal has also aarded Rs.25,000/— on account of pan a suffering. According w i nd to the pleadings in the Claim Petition, claimant— dhika was a Ra house wife. There is no pleadin relating to her personal income. g a T Tribunal, therefore, held Rs.15,000/- as her annual income he o notional basis. There was no evidence to show that‘claimant— n Radhika sustained any permanent disability, however, on the basis of the certificat (unproved)and the vidence of the es . e claimant, the Tribunal held that since one iey f the claimant ws removed therefore, it would certainly affect her future ening capacity to the exten f 50. The Tribunal, therore, ar t o % ef % 1 deducted 50 from the above notional income of Rs.5,000/— an looking to the age of the claimant, which was in between 30- d 35 years, applied multiplier of 17 to Rs.7,500/- and loss of future earning capacity was assessed at Rs.1,27,500/—. Since the claimant has claimed Rs.85,000/— towards loss of future capacity on account of loosing strength after removal of one kidney, therefore, the Tribunal awarded Rs.85,000/— to the claimant under this head. The Tribunal thus awarded a total sum of Rs.1,64,914. 49 p. (rounded up as Rs.1,65,000/—) to claimant- fa @ " s e kdn o a , 12 M.A. No. 853 of 2003 & M.A. No. 854 of 2003 Radhika for the personal injuries sustained by her in the motor accident. We find that amount of all the receipts filed by the claimant were allowed by the Tribunal and even in absence of proof of permanent disability, the Tribunal awarded a sum of Rs.85,000/— as loss of future earning capacity (18)‘ The law in relation to awarding compensation in accident cases is well settled. Under the Motor Vehicles‘Act, the V . Tribunals are under obligation to award “just and reasonable" Compensation to‘the genuine claimants after determining the factum of accident as also the factum of rash and negligent act on the part of driver of the offending vehicle. It has to be borne in mind that the compensation is not expected to be windfall for the victim. The statutory provisions clearly communicate that the compensation must be just and it cannot be a bonanza. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just and which would‘ depend upon the particular facts and Circumstances, and attending peculiar or special features, if any. 'Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration and requires judicious approach. The expression “just” denotes equitability, fairness, reasonableness and non-arbitrariness. Please see State of Haryana and another —Vs- Jasbir Kaur and others (2003) 7 SCC 484 and \ 13 M.A. No. 853 of 2003 & M.A. N0. 854 of 2003 Helen C. Rebello Mrs. and others —vs- Maharashtra State Road Transport Corporation and another, (1999) 1 SCC 90. (19) If we examine the compensation awarded to claimant— Radhika, in light of the above principles, it would be clear that the compensation awarded to her is just and proper and in the facts‘ and circumstances of the case, there is hardly any scope for enhancement of'the same. .I (20) Tho‘ugh we have held (supra) that the Insurance Company was rightly exonerated and the amount of compensation was also reasonable, yet we find that rthe’ cross-objections were even ' otherwise not maintainable. ln Abhilasha Bai —Vs- Arvind Kumar and others, 2002 (2) M.P.L.J. 493, it was held that the cross— objection is an appeal within‘meaning of Section 1Z3 of the Motor Vehicles Act, therefore, the cross-objection would not be maintainable without mandatory deposit as provided under First Proviso of Section 173. In the present cases no mandatory deposits have been made by the owner & driver of the vehicle. Therefore, the cross-objections filed by the owner & driver were not maintainable. (21) For the foregoing reasons, we do not fined any substance either in these appeals filed by the claimants or in the cross- objections filed by the owner & driver. i K (22) The appeals filed by the claimants are dismissedu