In the Hish Court of Chhattissarh. Bilasfw r^ \cf MAC 1 / 2009 Appellant / Non - Applicant # 2 The Owner Naresh Smghania Age 48 S/o Late Brijmohan Singhania, Tatibandh, Raipur V. ; 1. Reliance General Insurance Co. Ud, through Branch Manager, Shop # 124 - 126, Krishna Complex, Applicants The Claimants Respondents / Non - Applicanf # 1 & 3 The Insurer &' Driver ^X-' ... Krishna Complex, ,....-^^..S.WW Kutchery Chowk, Raipur ^•^^^'"^^'^ ^2' Bhola,singh RaJput,Age 25, y^*w<s ......••-•^ S/o Suresh Srngh Rajput, R/o Vill. Gorakhpur, PS & Teh.Lohara, Kawardha ^ 3.^ Ku. Parwati Patel, 10 Yrs. 4^ Ku. Pushpa Patel, 8 Yrs. ^ 5^ Durgesh Kumar Patel, 6 Yrs. 6f Lalchand, 4 Yrs. 3 to 6 Child ofLate Jagdish Patel 7. Smt. Khaimbati wd./o Munshiram Patel 3 to 6 throuyh. Next Friend Grand MotherResv. # 7 3 to 7 R/o Mararpara, Ward 7, PS PO Up-Teh. Khamharia, Durg Appeal under Sec. 173 of theMotor VehidesAct, 1988 ^ 1 sn^ HIGH COURT OF CHHATTISGARH : BILASPUR Appellant Respondents Appellant Respondents Appellant Respondents M.A. (QNo. 988 of 2009 Naresh Singhania Versus Reliance General Insurance Co. Ltd. & others And M. A. (C) No. 989 of 2009 Naresh Singhania Versus Reliance General Insurance Co. Ltd. & others And M.A. iC) No. 1007 of 2009 Naresh Singhania Versus Reliance General Insurance Co. Ltd. 85 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Prashant Kumar Mishra, JJ Shri Raja Sharma, Advocate for the appellants in all the three appeals. None for the respondent No.l/Insurance Company despite servrice of notice. Shri Anil Gulati, Advocate fcr the respondents No. 3 to 7 in M.A.(C) No.988/2009. Shri Avinash Chand Sahu, Advocate for the respondents No. 3 to 6 in M.A.(C) Nos 989/3009 and 1007/2009. ORDER (Oral) ( Passed on this 7th day of March, 2011 ) Per I. M. Quddusi, J. 1. These appeals ( M.A.(C) No.s 988, 989 and 1007 of 2009), have been filed by the appellant (owner) against the impugned awards dated 26.2.2009, passed by the Additional Motor Accident Claims Tribunal (FTC), Bemetera, District- Durg in Claim Case Nos. ^/. 42/2008 (Kapil 85 others Vs. Bhola & others), 49/2008 ( Ku. Parvati Patel 85 others Vs. Bhola Singh 85 others) and 48/2008 ( Premlal Patel 85 others Vs. Bhola Singh Rajput 85 others. All the above mentioned three appeals arise out of the one and the same incident dated 27.7.2008, wherein due to rash and negligent driving of non-applicant No.l (Bhola Singh Rajput) the vehicle, bearing registration No. C.G. 04 JA 9107 dashed a nearby tree, standing near the petrol pump on Than Khamharia road. The vehicle was returning from Navagaon after unloading stones along with one conductor and two porters. The M.A.(C) No 989/2009 arises out of the Claim Case No. 49/2008, wherein Rajo Bai, who was sitting in the yehicle as Porter died and her legal heirs filed the claim case under Section 166 of the Motor Vehicles Act. Learned Tribunal having regard to the facts and evidence awarded a sum of Rs. 4,54,500/- to the claimants. The M.A.(C) No 1007/2009 arises out of the Claim Case No. 48/2008, wherein Khelan Bai, who was sitting in the vehicle as A Porter died and herlegal heirs filed the claim case under Section 166 of the Motor Vehicles Act. Learned Tribunal having regard to the facts and evidence awarded a sum of Rs. 4,30,500/- to fhe claimants. On the request of learned counsel for the appellant above two appeals i.e. M.A.(C) Nos 989 and 1007 of 2009 are considered separately as in both the appeals the deceased were occupant of the vehicle as Porter. The M.A.(C) No 988/2009 arises out of the Claim Case No. 42/2008, wherein Vijay Pal, who was sitting in the vehicle as ^Kws%. '^ ^<^' Conductor died and his legal heirs filed the claim case under Section 166 of the Motor Vehicles Act. Learned Tribunal having regard to the facts and evidence awarded a sum of Rs. 4,06,500/- to the claimants. 7. Learned Tribunal having regard to the facts, circumstances and the evidence on record held in all the above three claim cases that the owner and the driver are liable to pay the amount of compensation to the claimants, jointly and severally/exonerating the insurance company from payment of the amount of compensation. 8. We have heard learned counsel appearing for the appellants as well as learned counsel appearing for the respondents and perused the lower Court record as well as the findings given in the impugned award. 9. Despite servrice ofnotice none appears nor any representation is made on behalf of the respondent No.l/Insurance Company even in the third round when the list is revised. Therefore, we have no other way except to proceed ex parte against the Insurance Company. 10. According to the insurance policy premium of Rs. 150/- was paid wherein the legal liability of the insurance company was to the following extent : "for accidents to Non fare paying passengers including Employees of the insured who are not Workmen under the Workmen's Compensation Act. No. of Persons 2??. Likewise, premium of Rs. 25/- was paid wherein the legal liability of the insurance company was to the following extent : ato persons employed in connection with Operations Ss/or maintenance of the insured Vehicle - Paid Driver No. of Persons l.w 11. In M.A. (C) No. 988 of 2009 the deceased was working as a Conductor of the vehicle. He was a full time employee and was a workman, therefore, he was not covered under the policy for which premium of Rs. 150/- was paid. Further, premium of Rs. 25/- was paid in respect of one paid driver. Therefore, as the paid driver was driving the vehicle, the conductor of the vehicle would not come in that category as the limit of the person insured under the policy was mentioned as 'one' only. Though it was a package policy but risk of the conductor would not be covered unless premium is paid or shown to be paid. If under the insurance contract the Conductor of the vehicle is not insured and nothing has been shown in the package policy that everybody sitting in the vehicle as employees of the owner or otherwise is deemed to be insured, we are unable to accept the contention oflearned counsel for the appellant that being a package policy risk of the conductor was also covered. Thus, we are of the opinion that the insurance company has rightly been exonerated from any liability in respecf of the compensation granted to the legal heirs of the deceased, who was a Conductor of the vehicle. Therefore the M.A.(C) No 988 of 2009 on the ground ofliability is dismissed. 12. In M.A.(C) Nos 989 and 1007 of 2009 the deceased were porters. They were only engaged for loading and unloading of materials/articles in the vehicle. Their ser^ices were not required during running of the vehicle and they were also not engaged as full time workers. Therefore, they do not come under the category of workmen, though they were covered under the category of non fair paying passengers for which a premium of Rs. 150/- up to two persons was paid. Therefore, the Insurance Company has wrongly ^ .^ been exonerated in respect of payment of compensation to the dependents of these two persons, who died in the inotor accident. Therefore, M.A.(C) Nos 989 and 1007 of 2009 are allowed and the appellant/owner is exonerated from any liability to pay the amount of compensation. 13. It is directed that in the claim cases, giving rise to M.A.(C) Nos 989 and 1007 of 2009, the Insurance Company shall pay the amount of coinpensation to the respective claimants, in terms ofthe award passed by the Claims Tribunal. The amount if any deposited by the appellant/owner shall be refunded to him, if not already disbursed to the claimants, else the appellant/owner would be entitled to recover the same from fhe Insurance Company. 14. In M.A.(C) No 988 of 2009 learned counsel appearing for the appellant further argued on the question of quantum. We have perused the record and the findings of learned Tribunal on the point of quantum. 15. Learned Tribunal has accessed the monthly income of deceased Vijay (conductor) as Rs. 3000/-, thus yearly income as Rs. 36,000/-. After deducting l/3rd i.e. Rs. 12,000/- per year on personal and living expenses of the deceased, and taking the age ofthe deceased as 20 years, the multiplier of 16 was applied, thus a total sum. of Rs. 3,84,000/- was awarded towards loss of dependency. Under the conventional heads learned Tribunal has awarded' Rs. 5000/- towards funeral expenses, Rs. 2500/- towards loss of estate, Rs. 15000/- for loss of love and affection. Thus, a total compensation ofRs. 4,06,500/- has been awarded. 16. Having regard to the facts situation and the law laid down by Hon'ble Supreme Court in Sarla Verma (Smt) and others Vs. Y ^/ t-1 II ll^ Thakur 17. 18. Delhi Transport Corporation and another1 we are of the opinion that for the yearly income of Rs. 36,000/-, assessed by the Tribunal, there should have been 50% deduction towards personal and living expenses of the deceased who was a bachelor and aged about 19 years. Similarly, looking to the age of the parents of the deceased, who were 44 and 40 years, the average age comes to 42 years, multiplier of 14 would be applicable. Thus we assess the total loss of dependency as Rs. 2,52,000/- ( 18,000/- x 14). In addition to that we award Rs. 5000/- towards funeral expenses, Rs. 25,000/- ( Rs. 5000/- each to fiye claimants) towards loss of love and affection, Rs. 10,000/- for loss of estate ( total Rs. 40,000/- under other heads). Therefore, we award a total sum of Rs. 2,92,000/- as compensation to the claimants. Therefore, we set aside and modify that part of the award dated 26.2.2009 passed in Claim Case No. 42/2008 and direct that the claimants are entitled for the total amount of Rs. 2,92,000/- ( Rs. 2,52,000/- + Rs. 40,000/-) as compensation along with simple interest at the rate of 6% per annum, only, from the date of the application. The condition of payment of penal interest imposed on the appellant is also set aside. Rest of the conditions of fhe award by the Tribunal shall remain intact. The appeal ( M.A.(C) No. 988/2009) is allowed in part to the above extent. In view of the above all the three appeals ( M.A.(C) No.s 988, 989 and 1007 of 2009) are allowed to the extent indicated in the foregoing paragraphs.No order as to costs. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge (2009)6 SCC 121