1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.189 OF 1999. Oriental Insurance Co. Ltd., Adalat Road, Aurangabad, through it's Divisional Manager, "Inderprakash " Adalat Road, Aurangabad, District Aurangabad. ... Appellant. Versus 1. Sadanand S/o Bajirao Kasbe, Age 54 years, Occ.Service, in S.T. R/o Khamgaon, Tq. Khamgaon, Dist.Buldhana. 2. Sou. Lalikabai W/o Sadanand Kasbe, Age 45 years, Occ. Household, R/o as above. 3. Chandrakant S/o Kathalu Pardeshi, Age 24 years, Occ. Driver of Matador No.MH-20 8904, R/o Pardeshipura, Paithan, Dist. Aurangabad. 4. Sy. Babu S/o Sy. Jamal, Age 33 years, Occ.S.T.Driver, S.T.Depot, Ambad, Dist.Jalna. 5. Divisional Controller, M.S.R.T.C., Jalna. 6. Joharsingh S/o Maniksingh 2 Pardeshi, Age 43 years, Occ. Business, R/o Pardeshipura, Occ.Business, R/o Pardeshipura, Paithan, Tq. Paithan, Dist. Aurangabad. (Owner of the Matador) ... Respondents. ... Mr.S.M.Godsay, advocate for the appellant. Mr.M.D.Shinde, advocate for the Respondent No.1. Mr.Afzal Hussain, advocate holding for Mr.D.S.Bagul, advocate for the Respondent NO.5. Mr.N.T.Tribhuwan, advocate for the Respondent No. 6. ... CORAM : V.R.KINGAONKAR,J. Date : 01.12.2009. ORAL JUDGMENT 1. This appeal is directed against judgment and award rendered by learned Ex-officio Member of Motor Accident Claims Tribunal, Jalna in Motor Accident Claim No.72/1997, whereby compensation of Rs.1,50,000/- (Rupees one lac fifty thousand) along with proportionate costs and interest at 12% p.a. was awarded to original claimants, who are Respondent Nos.1 and 2 herein, on account of accidental death of their employed daughter, by name, Yojna. 2. It is not necessary to elaborately set 3 out rival pleadings and contentions. Suffice it to say that on 6.2.1994 at about 9-45 a.m. deceased Yojna was travelling in Matador bearing No.MH-20/8904 while returning to place of her residence at Ambad from her working place i.e. Wadigodri. She was employed as a nurse in the Primary Health Center at Wadigodri. She was unmarried and young. The Matador vehicle met with an accident at intersection of village Zipri on the way. There took place collision between a S.T. Bus bearing MCA 7944 and the said Matador vehicle which resulted into severe injuries to Yojna and some other passengers of the Matador vehicle. 3. The parents of deceased Yojna filed the claim application U/s 166 of the M.V. Act, 1988, seeking compensation of Rs.3,00,000/- (Rupees three lacs) on account of her accidental death. They alleged that there was head on collision between the two vehicles which was result of contributory negligence of both the drivers. They alleged that they lost dependency due to her accidental death and also lost consortium. 4 4. The driver of the Matador vehicle and the owner thereof did not resist the claim application by filing pleadings. The driver of the ST Bus of M.S.R.T.C., however, resisted the claim application alleging that the accident was due to sheer negligence of drver of the Matador vehicle. It was denied that the driver of the S.T. Bus contributed to the cause of the accident. 5. The appellant is insurer of the said Matador vehicle. It was contended by the appellant that the deceased was travelling in the Matador vehicle as a fare paying passenger. It was also contended that there was no negligence of the driver of the Matador vehicle. It was further contended that the driver had no valid license. On these premises, the appellant urged for dismissal of the claim petition. 6. The claimants adduced oral and documentary evidence in support of their rival contentions in pursuance to the issues which were settled by the Tribunal below Exh.31. It is 5 pertinent to note that the driver of the Matador vehicle and the driver of the S.T. Bus did not enter the witness box. It is further significant to note that no evidence was adduced in order to prove that the driver of the Matador vehicle had no valid license and, therefore, such defence of the appellant was rightly rejected by the Tribunal. 7. So far as quantum of compensation awarded to the claimants is concerned, it is manifest that considering age of the deceased as well as the age of her parents (claimants), the learned Member of the Tribunal properly applied multiplier of 11 (eleven). It appears that father of deceased Yojna was aged about 54 years, whereas the mother was aged about 45 years at the relevant time. The fact that deceased Yojna was unmarried and was employed as nurse in the Primary Health Center is uncontroverted. Copy of the School Leaving Certificate (Exh.36) purports to show that her birth date was 19.1.1964. Thus, she was around 30 years old at the relevant time. It has come on record that her home take salary 6 was Rs.2,562/- (Rupees two thousand five hundred sixty two). The claimants relied upon intrinsic evidence appearing from the salary certificate (Exh.40) in this behalf. In my opinion, the learned Member duly considered the oral evidence of PW 1 Sadanand and the documentary evidence in order to reach the conclusion that due to untimely and accidental death of Yojna, the parents had lost dependency for at least 11 years and were entitled to receive the compensation of Rs.1,50,000/- (Rupees one lac fifty thousand). There appears no serious error committed by the Tribunal while arriving at such conclusion. 8. This takes me to consider whether the deceased was travelling in the Matador vehicle as fare paying passenger. It is true, no doubt, that the appellant did not examine any witness in order to establish such legal defence. The Tribunal repelled contentions of the appellant on account of entirely different reasons. The Tribunal observed that it was necessary for the Insurance Company to file on record the copy of 7 the Insurance Policy and prove its stand about breach of conditions of Policy, if any. In fact, the record shows that copy of the Insurance Policy (Exh.35) was filed by the appellant. On perusal of the copy of Insurance Policy, it is amply clear that the Matador vehicle was insured as a Private Car. The Policy was issued on condition that the same was issued to cover use for any purpose other than (a) hire or reward; (b) organised racing or (c) speed testing. Thus, there was embargo on use of the private car vehicle for carrying passengers for hire or reward. Obviously, the question is whether Yojna was travelling in the Matador vehicle as fare paying passenger. The testimony of her father - PW 1 Sadanand would make explicit that on day of the accident, she was returning to Ambad in the Matador vehicle. He categorically states that the Matador vehicle was used for carrying the passengers. This part of his testimony is not challenged during course of cross-examination by owner of the Matador vehicle. In fact, the driver of the owner of the Matador vehicle remained absent at the time of recording of 8 evidence. They had not filed pleadings. It has come on record that driver of the Matador vehicle was prosecuted by the Police for offence U/s 192 of the M.V.Act. The circumstances on record, including the recitals of the FIR and the Panchanama go to show that deceased Yojna was travelling in the said private vehicle as a fare paying passenger. It is nobody's case that she was related, in any manner, to the Respondent No. 5 i.e. the owner of the Matador vehicle. The driver of the said vehicle was prosecuted, after due investigation, for using the vehicle to carry passengers for hire or reward without having permit for such user. Considering these aspects, it will have to be said that defence of the appellant regarding prohibitory use of the vehicle by the owner thereof is probabilised. In this view of the matter, the insurer is entitled to seek immunity from the payment of compensation to the Respondent Nos.1 and 2. 9. At this juncture, the averments in the claim petition also may be noticed. While giving the particulars of the claim, in the required 9 format, it was stated that decease Yojna was travelling in the Matador vehicle. There was absolutely no averment in the pleadings of the claimants that she was travelling as a gratuitous passenger or the person allowed to travel due to acquaintance with the owner. What appears from the record is that she was commuting to the native from the place of her work and while doing so, she used to travel in the available vehicle as fare paying passenger. Under these circumstances, the appeal will have to be allowed. 10. In the result, the appeal is allowed. The impugned judgment whereby the appellant is held responsible for payment of compensation amount is partly set aside. The impugned award is modified and only the Respondent Nos.1 and 5 are jointly and severally held liable to pay the compensation to the claimants. If the appellant has paid such compensation or any part thereof then the appellant will be entitled to recover 10 the same from the Respondent No.1. No costs. (V.R.KINGAONKAR,J.) asp/office/fa18999