B.N.MAHAPATRA, J. MACA NOS.464 & 895 OF 2006 (Decided on 14.09.2010) CHANCHALA SAHU & ORS. ………. Appellants. .Vrs. D.M., M/S. NEW INDIA ASSURANCE COMPANY & ANR. ……….. Respondents. MOTOR VEHICLE ACT, 1988 (ACT NO. 59 OF 1988) – SEC.171. For Appellants - M/s.Dillip Kumar Mohapatra &A.K.Kar. For Respondents - Mr. N.N.Mishra For Appellant - Mr. N.N.Mishra For Respondent - M/s.D.K.Mohapatra, A.K.Kar, L.Kabi (R-1 to 3) M/s. G..K.Mishra, G.K.Mishra, G.N.Mishra & S.C.Sahoo. (R-4) B.N.MAHAPATRA, J. These two appeals are directed against the judgment dated 30.3.2006 passed by the Second Addl. District Judge-cum-MACT, Cuttack in M.V. Misc.Case No.1241 of 2000. MACA No.464 of 2006 has been filed by the claimants for enhancement of compensation amount whereas MACA No.895 of 2006 has been filed by the Insurance Company challenging correctness of the findings of the learned Tribunal that the deceased was an employee under the owner of the offending truck and not a gratuitous passenger. 2. The case of the claimants before the Tribunal was that on 29.9.2000 at about 9.30 A.M. a truck bearing Registration No.OR04-6511 carrying instruments and belongings of a Jatra Party met with a road accident due to rash and negligent driving of its driver and capsized. In the said accident, the deceased sustained severe injury and died being squeezed under the materials and instruments carried in the truck. It was further stated that though signal was given by the Highways personnel for stoppage of the offending truck for checking of documents, the driver of the offending vehicle suddenly swerved to the extreme left side of the road as a result of which one of the wheels of the vehicle slipped into the telephone cable hole following which the vehicle was over turned resulting death of the deceased, some other labourers and Jatra Party members. The further claim of the claimants was that the income of the deceased was their only source of maintenance. The deceased was earning Rs.3000/- per month as a permanent labourer in the offending vehicle and was contributing Rs.2500/- towards maintenance of the family. On the death of the deceased, the members of the family are deprived of love and affection besides financial support. With these averments the claimants filed the claim petition claiming a compensation of Rs.4.20 lakh from the owner of the offending vehicle and the insurer of the vehicle holding them liable jointly and severally for the act of the offending driver. 3. The owner of the offending vehicle filed written statement admitting the fact of accident and engagement of the deceased in his vehicle as labourer on a monthly salary of Rs.3000/-. According to him, at the relevant time of accident, the vehicle was insured with the Insurance Company and the deriver of the offending vehicle had valid driving license for which the Insurance Company is required to indemnify. 4. The Divisional Manager, M/s. New India Assurance Co. Ltd., (in short “Insurance Company) respondent in MACA No.464 of 2006 and appellant in MACA No.895 of 2006 by filing a separate written statement resisted inter alia that the claimants and the owner have colluded for compensation; but admitted coverage of the vehicle with it and taken a stand that the offending truck being registered as goods carrying vehicle was restricted to carry passengers along with goods. Since the offending vehicle was carrying members of a Jatra Party along with their belongings, it violated the term and conditions of the Insurance Policy. Hence, the Insurance Company is not liable to pay any compensation. The Insurance Company also raised dispute with regard to age, profession and income of the deceased. 5. On the aforesaid pleadings of the parties learned Tribunal framed the following issues: “(i) Whether due to rash and negligent driving of the vehicle bearing Regn. No.OR- 04-6511 (Truck), the accident took place and in the accident one Brundaban Sahoo succumbed to the injuries? (ii) Whether all the opp.parties or any of the opp.party is/are liable to pay the compensation? (iii) Whether the petitioners are entitled to get compensation?” 6. The claimants examined two witnesses whereas the owner of the offending vehicle and Insurance Company examined one witness each. The claimants exhibited five documents marked as Exts. 1 to 5 in support of their claim. The Insurance Company exhibited 11 documents marked as Exts. A to A/8 and Exts. B, C and D. 7. Taking into consideration both oral and documentary evidence learned Tribunal came to the conclusion that the vehicular accident resulted due to rash and negligent driving by the driver of the offending vehicle and as such the owner of the offending vehicle is vicariously liable for such accidental death of the deceased. The deceased was not moving as a gratuitous passenger in the offending truck at the time of the alleged accident. The deceased died in the accident being engaged as a labourer in the truck. The vehicle in question being covered by the Insurance Policy the Insurance Company cannot be exonerated from the liability to pay compensation even if there was breach of policy conditions. The accused driver had a valid driving licence, but the tenure of licence had expired at the time of accident. There is no material to indicate that at the time of accident the driver had incurred any disqualification as contemplated under the M.V. Act. Therefore, the insurer is liable to pay compensation to the legal representatives of the deceased, but it has the right to recover the same from the insured if there was any breach of terms and conditions of the Insurance Policy. The Tribunal taking into consideration the minimum wages of an unskilled labourer assessed the monthly income of the deceased at Rs.1500/- and deducting 1/3rd towards his personal expenses determined Rs.1,000/- towards monthly contribution to his family. The age of the deceased was taken as 33 years and multiplier 15 was applied by the Tribunal. The dependency was calculated at Rs.1.80 lakh. Rs. 15000/- was also awarded towards funeral expenses, loss of estate and transportation of the dead body of the deceased from the place of accident to the village. Accordingly, compensation of Rs.1.95 lakh was awarded to the claimants. The Tribunal further held that the claimants 2 are entitled to get 6% interest per annum on the compensation amount from the date of appearance of the insurance company, i.e., 20.07.2001. Out of the total compensation, an amount of Rs.1.0 lakh was directed to be deposited in the name of the wife of the deceased Smt. Chanchala Sahoo in an unencumberable Fixed Deposit in a nationalized bank for five years with quarterly interest payable. A sum of Rs.40,000/- was directed to be deposited in the name of Rashmita Sahoo and Rajkishore Sahoo each (the daughter and son of the deceased) in an unencumberable Fixed Deposit in a nationalized bank till they attain their majority and the rest of the amount of Rs.15,000/- with interest on the total compensation amount and a cost of Rs.500/- were directed to be released in favour of the widow wife in cash. 8. Mr. D.K. Mohapatra, learned counsel for the claimants submitted that in view of the statement in the written statement filed by the owner of the vehicle and the statement of the Supervisor of the owner confirming that the deceased was working under them as labourer at a monthly salary of Rs.3000/- and in absence of any contrary evidence adduced on behalf of the Insurance Company, learned Tribunal is not justified to determine the monthly income of the deceased at Rs.1500/-. It was argued that the Tribunal is wrong in applying the multiplier 15 having held that at the relevant time of accident the deceased was 33 years old and the appropriate multiplier should be 17. In support of his contention, he relied upon Second Schedule of the M.V. Act, 1988. The Tribunal has committed wrong in allowing interest from the date of appearance of the Insurance Company instead of the date on which the claim petition was filed before the Tribunal. Interest at the rate of 6% as allowed by the Tribunal is also extremely low. According to the learned counsel, the proper rate of interest should be 9% per annum in the year 2000. Placing reliance on the judgment of the apex Court in Rathi Menon vs. Union of India, 2001 (2) T.A.C. 250 (S.C.), Mr. Mohapatra contended that the scheme of compensation under the M.V. Act, 1988 and the W.C. Act, 1923 for determination of compensation are different and that the claims Tribunal must consider what the Rules prescribe at the time of making order for payment of compensation. 9. Mr. Mishra, learned counsel for the Insurance Company submitted that the petitioner was a gratuitous passenger in the offending truck. In its written statement, the Insurance Company has specifically taken the stand that the deceased was not working as a labourer under the owner of the offending vehicle. The Investigator of the Insurance Company has categorically stated that the deceased was a member of the Jatra Party travelling in the offending vehicle. Therefore, the Insurance Company is not liable to pay any compensation. In support of his contention, Mr. Mishra placed reliance upon the decision of the apex Court in New India Assurance Co. Ltd. Vs. Vedwati and others, 2007 (2) T.A.C. 8 (S.C.). He submitted that if this Court comes to a conclusion that the deceased was a labourer working under the owner of the offending truck, the amount of compensation awarded by the Tribunal being just and reasonable, the same should not be enhanced. He further submitted that barring the oral evidence no documentary evidence was adduced by the claimants before the Tribunal in support of the claim that the deceased was getting Rs.3,000/- per month. Therefore, the Tribunal is right in taking into consideration the minimum wage of an unskilled labourer during the relevant time of accident and that the deceased was not getting work throughout the month so as to determine his monthly salary at Rs.1,500/-. 3 10. Now the questions that fall for consideration by this Court are as follows:- 1. Whether the deceased who was traveling in the offending truck and died in the vehicular accident was working as a labourer under the owner of the vehicle or was a member of the Jatra Party and moving as a gratuitous passenger in the offending truck? 2. Whether the Tribunal is justified in not accepting the claim of the claimants that the deceased was getting monthly salary of Rs.3,000/- during the time of accident? 3. Whether the Tribunal is justified to apply multiplier 15 having held that at the time of accident the age of the deceased was 33 years? 4. Whether the Tribunal is justified to allow interest at the rate of 6% from the date of appearance of the Insurance Company till the date of payment? 11. So far as question No.1 is concerned, the stand of the Insurance Company is that it had stated in the written statement that the deceased was a member of the Jatra Party moving in the truck and he was not an employee under the owner of the vehicle. To substantiate its stand it relied upon the statement of the investigator. On the other hand, the claimants as well as the owner of the vehicle claimed that the deceased was a labourer under the owner of the offending truck and at the time of accident he was moving in the truck as a labourer for the purpose of loading and unloading goods. Learned Tribunal has dealt with the issue as follows:- “To put forth their claim, the claimants as well as Opp. party no.1 has placed reliance on the oral testimony. P.W.1, the wife of the deceased has claimed in her oral testimony that the deceased was working as a permanent labourer in the offending vehicle for more than two years prior to the alleged accident. The witness O.P.W.1, examined on behalf of the owne r of the vehicle, has also testified that the deceased was working as labourer in the vehicle and according to him, he being the supervisor of Opp. party no.1, looks after the affairs of the truck. On the date of accident, the truck was hired by Niyati Gananatya for transportation of stage materials and the deceased and some others were moving in the truck as labourers to load and unload the goods. Although these two witnesses have been cross-examined to a substantial length, Opp. party no.2 seems to have failed to bring any substantial from their cross-examination to raise slighted suspicion that the deceased was moving in the vehicle in the capacity of a member of opera troop, but not a labourer of the vehicle. Undisputedly, the insurer has examined its investigator and filed some statements of various persons to demolish such stand of the claimants, the evidence adduced by the investigator is apparently based on the version of others and those statements have no evidential value. Effort is also made on behalf of the insurer by filing some news reports to prove its stand. But the reports in the news papers cannot also be accepted in evidence without the examination of the makers of those news items. Thus, there is nothing on the record as legal evidence to lead a conclusion that the deceased was moving as a gratuitous passenger in the offending vehicle at the relevant time of accident for which the insurer cannot be fastened with the liability to make payment of compensation.” 4 12. In view of the above, this Court has no hesitation to hold that at the time of accident the deceased was moving in the truck as a labourer being engaged by the owner of the truck for the purpose of loading and unloading of goods in the offending truck and he was not moving as a gratuitous passenger as claimed by the Insurance Company. For the reasons stated hereinbefore, the decision of the apex Court in Vedwati & Ors. (supra) relied upon by the Insurance Company in support of its contention that it has no liability to pay compensation is of no help to the Insurance Company. 13. As regards monthly income of the deceased, the Tribunal has not accepted the claim of the claimants on the ground that except the oral evidence no document or register was produced before it to show that the deceased was getting Rs.3,000/- per month as a labourer from the owner of the offending truck. Taking into consideration the minimum wage of an unskilled labourer, the Tribunal determined the monthly income of the deceased at Rs.1,500/-. The owner of the vehicle in his written statement admitted that he was paying Rs.3,000/- per month to the deceased. The Supervisor of the owner of the offending truck in his evidence stated that the deceased was getting Rs.3,000/- salary per month. Nothing contrary has been elucidated by way of cross-examination from the mouth of these witnesses. In fact, no documentary evidence or register was produced before the Tribunal in support of such claim. It is not uncommon in our society that many labourers are engaged by the owners of trucks on monthly salary basis without issuing any letter of appointment and no attendance register and payment register are systematically maintained by such owners of the vehicles. It is also very much common that a person, who carries on any type of trade/business keeps some sorts of account, may be in a rough manner, to record the receipts and expenditure in connection with his business. This is particularly true, when a person carries on some business engages a Supervisor to supervise his business. In the instant case, the owner of the vehicle engaged a supervisor. It is therefore hard to believe that no account is maintained to record the salary paid to the employees engaged in truck plying business. Except the statement made in the written statement and the oral evidence of the Supervisor, there is no other corroborating evidence to support the claim that the deceased was getting salary of Rs.3,000/- per month. The owner of the vehicle was also not examined. 14. In view of the above, I do not find any infirmity in the order of the Tribunal in taking the monthly income of the deceased at Rs.1,500/- on the basis of minimum wages of an unskilled labourer during the relevant time and his contribution towards his family at Rs.1,000/- after deducting 1/3rd for personal expenses. The facts of the case in Rathi Menon (supra) relied upon by Mr. Mohapatra are completely different from the case at hand. Hence, the decision of the apex Court in that case is of no help to the appellant. 15. Question No.3 relates to appropriate multiplier. The apex Court in Supe Dei & Others vs. National Insurance Co. Ltd. & Another, 2002 (3) T.A.C. 378 (SC), held as follows: “While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the Second Schedule under Section 163-A to the Act which gives the amount of compensation to be determined for the purpose of claim under the Section can be taken as a guideline while determining the 5 compensation under Section 166 of the Act. In that view of the matter, there is no reason why multiplier of 17 should not be taken as the appropriate multiplier in this Case.” Since the Tribunal has determined the age of the deceased on the date of the of accident to be 33 years, as per Second Schedule to the M.V. Act, the appropriate multiplier should be 17 instead of 15. 16. So far as question No.4 is concerned, no reason has been assigned by the Tribunal for awarding interest from the date of appearance of the Insurance Company till the date of payment at the rate of 6% per annum. Taking into consideration the provisions of Section 171 of the M.V. Act, this Court feels, the interest should have been allowed from the date of filing of the claim petition till the date of deposit. The apex Court in Dharampal & Ors., Vs. U.P. State Road Transport Corpn., 2008(3) T.A.C. 789 (SC), held as follows:- “Interest is compensation for forbearance or detention of money, which ought to have been paid to the claimant. No rate of interest is fixed under Section 171 of the Act and the duty has been bestowed upon the Court to determine such rate of interest. In order to determine such rate we may refer to the observations made by this Court over the years. In the year 2001 in the case of Kaushnuma Begaum (Smt.) and Others Vs. New India Assurance Co. Ltd. and others, (2001) 2 S.C.C. 9 : 2001 (1) T.A.C. 649, on the question of rate of interest to be awarded it was held that earlier, 12% was found to be the reasonable rate of simple interest but with a change in economy and the policy of Reserve Bank of India the interest rate has been lowered and the nationalized banks are granting interest @9% on fixed deposits for one year. Accordingly, interest @ 9% was awarded in the said case.” [Also see Supe Dei & Others (supra)] In the circumstances, the appropriate rate of interest should be 9% per annum instead of 6%. 17. Taking into consideration the monthly income of the deceased at Rs.1,500/- and deducting 1/3rd towards personal expenses and applying multiplier 17, the amount of compensation comes to Rs.2,04,000/-. Apart from the above, the claimants are also entitled to get Rs.15,000/- towards funeral expenses, loss of love and affection, estate etc. as awarded by the Tribunal. Thus, the claimants are entitled to get total compensation of Rs.2,19,000/. 18. In view of the above, the Insurance Company is directed to deposit the compensation amount of Rs.2,19,000/- along with interest at the rate of 9% from the date of filing of the claim petition till the date of deposit and a cost of Rs.500/- before the Tribunal within eight weeks from today. Liberty is given to the Insurance Company to recover the same from the owner of the vehicle in accordance with law. On such deposit being made by the Insurance Company, learned Tribunal shall disburse the above revised compensation amount to the claimants in the same manner as it has directed in its judgment. 19. On production of evidence in support of payment of award amount along with interest and cost before the Tribunal as indicated above, the Registrar (Judicial) of the Court shall refund the statutory deposit of Rs.25,000/- along with interest accrued thereon to the Insurance Company. 6 20. In the result, MACA No.464 of 2006 filed by the Claimants is allowed in part and MACA No.895 of 2006 filed by the Insurance Company is dismissed. Claimants appeal allowed in part. Insurance Company appeal dismissed. 7