IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 299 of 2009 a/w FAO Nos. 298, 300, 505, 506 and 507 of 2009 Date of decision: 28.9.2011 1. FAO No. 299 of 2009 Royal Sunderam Alliance Insurance Company ..Appellant. Versus Veena Devi & Ors. …Respondents. 2. FAO No. 298 of 2009 Royal Sunderam Alliance Insurance Company ..Appellant. Versus Veena Devi & Ors. …Respondents. 3. FAO No. 300 of 2009 Royal Sunderam Alliance Insurance Company ..Appellant. Versus Kamla Devi & Ors. …Respondents. 4. FAO No. 506 of 2009 Sita Devi & anr. ..Appellant. Versus Saneh Lata & anr. …Respondents 5. FAO No. 507 of 2009 Sita Devi & anr. ..Appellant. Versus Saneh Lata & anr. …Respondents. 6. FAO No. 505 of 2009 Sita Devi & anr. ..Appellant. Versus Saneh Lata & anr. …Respondents 2 Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? For the appellant(s): Ms. Shilpa Sood, and Mr. Atul Jhingan, Advocates for the appellants in FAO Nos. 299, 298 and 300 of 2009. Mr. J.R. Poswal, Advocate, for the appellants in FAO Nos. 506, 507 & 505 of 2009. For the respondents: Mr. Avinash Jaryal, Advocate for respondents No. 1 and 2 in FAO Nos. 299, 298 and 300 of 2009. Ms. Aruna Sharma, Advocate vice counsel for respondent No.3 in FAO Nos. 299, 298 and 300 of 2009 and for respondent No.1 in 506, 507 & 505 of 2009. Mr. Aman Sood, Advocate for respondent No.2 in FAO Nos. 506 and 507 of 2009 . _____________________________________________________ Deepak Gupta, J(oral). 1. These six appeals are being disposed of by one common judgment since common questions of law and fact arise in these appeals. 2. Briefly stated, the facts of the case are that a Chevrolet Tavera bearing No. HP-12A-1888 was owned by respondent No.1 Smt. Sneh Lata and it was insured with Royal Sunderam Alliance Insurance Company, appellant in FAO Nos. 298, 299 and 300 of 2009. This vehicle was going towards Manimahesh. It met with an accident. The vehicle went off the road 3 and fell in the river Ravi. All the occupants of the vehicle died in the accident. Out of this accident, various claim petitions were filed, out of which three were filed in Hamirpur(Himachal Pradesh), three in Nalagarh(Solan) and three are alleged to have been filed in Uttar Pradesh. In the three claim petitions filed at Solan, the Insurance Company was proceeded against exparte and the awards were announced against it. It has not challenged the awards at all. In the three claim petitions filed in Hamirpur, the Insurance Company has filed three appeals. In my view the Insurance Company is estopped from filing the appeals since it has not challenged the awards passed by the Motor Accident Claims Tribunal, Solan. 3. The grounds raised by the Insurance Company in the appeals filed by it are that; firstly, the vehicle in question though registered as a private vehicle but was being used as a taxi; secondly that the carrying capacity of the vehicle was only 10 persons but 12 persons were being carried in the vehicle as is apparent from the FIR which shows that 12 passengers died in the accident; and thirdly that no premium has been paid for unnamed passengers. Another ground raised is that the OD claim has been decided against it and hence, the Insurance Company is not liable. 4 4. As already observed the Insurance did not challenge the awards arising out of the same accident, though the Insurance Company was served in those claim petitions. Even in the appeals the Insurance Company was served as far back as in the year 2009, but it did not care to file appeals against the said awards. Therefore, it cannot be permitted to challenge the awards in some cases arising out of the same accident. 5. Even assuming that the Insurance Company can challenge the awards, in my opinions there is no merit in the grounds raised by the Insurance Company. There is nothing on record to show that any fare had been charged from the passengers. The only statement being relied upon by Shri Atul Jhingan learned counsel for the appellant is that of the mother of the deceased in one case in which she stated that her son had hired a taxi to go to Manimahesh but she could not aware of the fact whether he had actually paid any fare or had taken a lift. 6. The second contention that the Insurance Company would not be liable to pay compensation in all the claim petitions on the ground that more than 10 passengers were being carried in the vehicle cannot be accepted. At best the Insurance Company can say that its liability is restricted to 10 claims. In the 5 present case as far as this Court is concerned only three appeals have been filed by the Insurance Company. At best nine claim petitions have been filed. The Insurance Company may, if permissible under law, can take this defence in 11th and 12th but it cannot be permitted to raise this plea in the first ten cases. 7. It has also been urged by Mr. Atul Jhinghan that no premium was paid for unnamed passengers and the Company is not liable because the policy in question is a private car package policy. No official of the Insurance Company stepped into the witness box to explain as to whether the premium charged included the premium for the passengers being carried in the car or not. Therefore, this contention is also rejected. 8. The last plea raised by the Insurance Company is that the own damage claim has been rejected. To say the least the Insurance Company cannot take benefit of its own action in rejecting the O.D. claim. As such all the three appeals filed by the Insurance Company are rejected FAO Nos. 505, 506 and 507 of 2009 9. These appeals have been filed by the claimants who lost their son, daughter-in-law and two years old grand daughter in the accident. The learned Tribunal in the case of loss of the son who was working as Chemist assessed his income at 6 Rs.6,000/- per month and awarded compensation of Rs.2,10,000/-. In the case of daughter in law also Rs.2,10,000/- has been awarded and as far as the minor girl is concerned Rs.70,000/- has been awarded. 10. As far as FAO No. 505 of 2009 is concerned it relates to the death of the son. Even if the version of the Tribunal is accepted that the deceased was only earning Rs.6,000/- per month he would have at least spent Rs.2,000/- per month on his parents i.e. Rs.24,000/- per annum. The parents were aged about 55 and 62 respectively and taking into consideration the ages of both parents multiplier of 9 is applied, the compensation works out to Rs.2,16,000/- on account of loss of dependency. In addition thereto the claimants are awarded Rs.10,000/- for funeral expenses and sum of Rs.24,000/- for loss of love and affection, since the claimants have lost the entire family of the son. Therefore, the total compensation works out to Rs.2,50,000/-. The award is accordingly enhanced from Rs.2,10,000/- to Rs.2,50,000/- alongwith interest at the rate of 9% per annum from the date of filing of the petition till the amount is paid/deposited. 11. As far as FAO No. 506 of 2009, it relates to the death of minor grand daughter aged 2 years of the claimants. The learned Tribunal has only awarded 7 Rs.70,000/- for the death of the grand daughter. Even if a petition under Section 163-A of Motor Vehicles Act had been filed the minimum amount which would have been awarded is Rs.15,000 x 15 Rs.2,25,000/- less 1/3rd i.e. Rs.1,50,000/- plus Rs.2,000/- for funeral expenses and Rs.2,500/- for loss of love and affection i.e. Rs.1,54,500/-. This Court in a number of cases has held that the amount of compensation to be awarded under Section 166 where the claimants prove negligence cannot be less than the amount to be awarded under Section 163-A. Therefore, the award is enhanced from Rs.70,000/- to Rs.1,55,000/- alongwith interest at the rate of 9% per annum from the date of filing of the petition till the amount is paid/deposited. 12. As far as FAO No. 507 of 2009 is concerned, the award passed by the Tribunal is just and reasonable and calls for no interference. 13. All the appeals are disposed of in the aforesaid terms. No order as to costs throughout. September 28, 2011 ( Deepak Gupta ) (vt) Judge