IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.183 of 2001. Judgment reserved on : 5.12.2007 Date of decision: 10.1.2008 Smt. Darshanu …….Appellant Vs. Shri Shishupal and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Vinod Thakur, Advocate. For the Respondents : Mr. Vinod Gupta, Advocate, for respondent No.1. Mr. Harish Dod, Advocate, for respondent No.2. Mr. K.D. Sood, Advocate, for respondent No.3. Kuldip Singh, Judge 1. The sole claimant has filed this appeal for enhancement against the award dated 28.3.2001 passed by Motor Accident Claims Tribunal, Mandi in Claim Petition No.50 of 1997, awarding Rs.1,06,000/- compensation to the claimant along with 9% per annum interest from the date of presentation of the petition i.e. 14.1.1997. The award amount has been ordered to be paid by New India Assurance Company Hamirpur, Insurer, of the vehicle. 2. The facts in brief are that the deceased Ranvir Singh was on board in truck bearing registration No.HIE-126 owned by respondent Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… No.1, insured with respondent No.3 and was being driven by respondent No.2 in rash or negligent manner, as a result of which the truck met with an accident on 15.2.1996 near village Chhang on Mandi-Jogindernagar, National Highway. Ranvir Singh sustained multiple injuries and he succumbed to his injuries on 16.2.1996 in Civil Hospital, Jogindernagar. The deceased was a hale and hearty person of 22 years and was earning Rs.5000/-per month as mason, band master and from agriculture. The appellant-mother of the deceased filed claim petition, praying therein Rs.6,00,000/- compensation on account of death of Ranvir Singh and Rs.35,000/- on account of his treatment. The respondent No.1 filed reply and has admitted that accident took place on 15.2.1996 but has submitted that he had instructed the driver, not to carry any passenger and in case he allowed any person to travel in the truck, he did the same in violation of the instructions given to him. He has submitted that truck is insured with insurer who is liable to indemnify the insured. The accident took place due to mechanical defect and not on account of rash or negligent driving on the part of the driver. Respondent No.2 driver did not file any reply. The insurer in its reply has pleaded that the truck was being plied in contravention of the terms and conditions of the insurance policy. The carrying of passengers in goods vehicle is not permitted. The driver was not holding valid and effective driving licence to drive the truck at the time of accident. The insurer denied its liability to indemnify the insured. 3. The following issues were framed by the Tribunal. …3… 1. Whether the accident occurred due to the rash and negligent driving of driver of vehicle HIE-126, respondent No.2, as alleged? OPP 2. Whether the petition is bad for mis-joinder and non-joinder of proper parties, as alleged ? OPR-1. 3. Whether the claim petition is not maintainable in the present form, as alleged? OPR-3. 4. Whether the vehicle involved in the accident HIE-126 is not insured with respondent No.3, as alleged? OPR-3 5. Whether the vehicle was being driven by un- authorized person, who did not have effective and valid driving licence as alleged? OPR-3. 6. Whether there has been breach of terms and conditions of the policy? OPR-3 7. Relief. The Tribunal held that accident took place due to rash and negligent driving on the part of the driver of the truck. The issues No.2 to 6 were answered in negative. 4. I have heard the learned counsel for the appellant and learned counsel for the respondents and gone through the record. The learned counsel for the appellant has submitted that Tribunal has wrongly assessed the income of the deceased at Rs.3000/- per month. The Tribunal has further committed an error by holding that loss to the appellant is Rs.1000/- per month or Rs.12,000/- per annum. The multiplier of 8 applied by the Tribunal in awarding the compensation is on the lower side. The learned counsel representing the owner and driver have supported the impugned award and have submitted that Insurance company is liable to pay the compensation. …4… The learned counsel for the insurer has submitted that deceased was an unauthorized passenger in the truck and therefore, New India Assurance Company is not liable to indemnify the insured. He has submitted though the impugned award against the insurer has become final as no appeal has been filed by the New India Assurance Company, but even than no further liability can be put on the Insurance company in the appeal. 5. The question involved in the present appeal is quantum of compensation and the liability to pay the compensation to the appellant. PW-4 Darshanu has stated that her son Ranvir Singh was 22 years at the time of his death. He was earning Rs.5,000/- per month. By doing jobs like band master, mason, he used to earn Rs.125/- to Rs.140/- per day. He was removed to hospital after the accident and died in the hospital on next day. She spent Rs.10,000/- on his treatment and performing his last rites. She disclosed her age 46 years at the time of making her statement. PW-5 Ragubir Singh has stated that he along with deceased were travelling in truck No.HIE-126. They were carrying instruments of band and ration. They paid Rs.40/- to the driver which was shared by all. PW-6 Kehar Singh has stated that he knew the deceased and he was earning Rs.125/- per day. He worked as mason at his residence. He himself is a contractor and deceased worked with him on contract basis. He used to earn Rs.4000 to Rs.5000/- per month. He was member of band party. RW-1 Shishupal has stated that he was not in the truck at the time of accident. In cross-examination conducted on behalf of the claimant, he has stated that as the vehicle was goods carrier, …5… therefore driver was permitted to carry the goods on payment. The insurer failed to produce any evidence, therefore, the evidence of the insurer was closed by the Tribunal on 5.8.2000. 6. PW-5 Ragubir Singh has specifically stated that he and deceased travelled in the truck along with goods and they made payment to the driver for this purpose. In addition to their goods, they were in the truck with the instruments of band. The insurer has not rebutted this evidence by leading any evidence. RW-1 Shishu Pal in his statement has also not denied the fact that deceased was not travelling in the truck as owner of the goods. He has rather stated in his cross-examination that the driver of the truck was permitted to carry the goods. In New India Assurance Co.Ltd. vs. Asha Rani and others [ 2003 ACJ 1 ] the Supreme Court has held as follow:- “On the other hand, it clearly demonstrates that the legislature wanted to bring within the sweep of section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury” Therefore, it can not be said that the deceased was an unauthorized passenger in the truck at the time of accident, rather he was travelling in truck as owner of goods on payment of charges, therefore, it is held that at the time of accident the deceased was travelling in the truck as owner of the goods and insurer is liable to indemnify the insured. …6… 7. PW-4 Darshanu claimant has stated that the deceased was earning Rs. 5000/- per month. She has also stated that deceased was earning Rs.125/- to Rs.140/- per day. This has been corroborated by PW-6 Kehar Singh who has stated that the deceased was earning Rs.125/- per day as mason. The respondents have not rebutted this evidence. Therefore, as per statements of PW-4 and PW-6, the income of deceased comes to Rs.3750/- per month. It is common knowledge that in un-organized sector a workman ordinarily does not get work for full month, therefore, the learned Tribunal has rightly assessed the income of the deceased at Rs.3000/- per month. The deceased was 22 years of age at the time of death. The appellant-claimant mother of the deceased was 46 years of age when she appeared as PW-4 on 24.3.1999 and her son died in the accident on 16.2.1996. Therefore, at the time of death of Ranvir Singh the claimant was 43 years of age. In New Indian Assurance Co. vs. Man Chand & Ors. [ Latest HLJ 2007 (HP) 1046 ] a Division Bench of this Court has held that in the normal circumstances when the parents are the claimants, their dependency is to be assessed at 1/3rd of the total income. In the present case it has been held above that income of the deceased was Rs.3000/- per month and therefore, claimant being the mother is entitled to Rs.1000/- per month being 1/3rd of the income of the deceased. The Division Bench has also noticed H.S. Ahammed Hussain and another vs. Ifran Ahammed and another (2002) 6 SCC 52 ( Para- 12) where in the case of mothers aged 40 to 45 years of young victim 21 and 22 years the multiplier of 16 and 15 were applied. In …7… the present case also the deceased was 22 years old and claimant mother was 43 years old at the time of accident and death of Ranvir Singh. Therefore, in my opinion the appropriate multiplier is 15. The appellant is thus entitled to compensation Rs.1,000/- x 12 x 15 = Rs. 1,80,000/-. In addition to this appellant-claimant is entitled to Rs.22,000/- (consolidated amount) for loss of love and affection, expenditure on treatment, funeral and last rites expenses of the deceased. Thus total compensation payable to the claimant comes to Rs.2,02,000/- inclusive of paid or determined no fault amount in favour of the appellant. On the amount of Rs.2,02,000/- the claimant is entitled to 9% per annum interest from the date of the filing of the petition i.e. 14.1.1997 till payment. The truck was insured with the insurer and the violation of the policy has not been proved by the insurer. Therefore, insurer is liable to indemnify the insured. 8. No other point was urged. 9. The result of the above discussion, the appeal is allowed. Impugned award is modified. An award of Rs.2,02,000/- is passed in favour of the appellant-claimant and against the respondent jointly and severely. The truck was insured with the respondent No.3-The New India Assurance Company, therefore, award amount of Rs.2,02,000/- along with interest at the rate of 9% per annum w.e.f. 16.1.1997 till payment shall be payable by the insurer to the appellant-claimant. No costs. ( Kuldip Singh ) Judge. January 10, 2008 (sks)