IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO (MVA)No.162 of 2004 Cross Objection No. 176 of 2004. Date of Decision : November 17, 2008 National Insurance Company …Appellant. Versus: Smt. Gayatri Devi & others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ashwani K. Sharma, Advocate. For respondent No.1: Mr.Ajay Chandel, Advocte. For respondent No.2 : Mr. Bindya Sharma, Advocate. SANJAY KAROL, JUDGE (ORAL). The appeal re-heard today. Both the insurer and the claimant have assailed the impugned Award dated 6.3.2003, titled as Gayatri Devi vs. Roop Lal and others in case MAC No. 41-K/98 by filing the present appeal and the cross-objections. The insurer has challenged the award on the ground that the deceased was a gratuitous passenger; there was collusion between the claimant and the insured and in any event the compensation awarded is much on the higher side. The claimant is seeking enhancement of the compensation awarded. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 I have heard the learned counsel for the parties and also perused the record. In the claim petition, the occupation of the deceased Sh. Swaroop Kumar is mentioned as conductor (helper and agriculturist). He is stated to have an income of Rs. 5000/- (Rs. 3000/- as salary and Rs. 2000/- from the dairy farm). Owner Sh. Roop Lal filed his reply, admitting the occurrence of the accident but disputing the driver’s negligence. That the deceased was employed and getting a salary of Rs. 2500/- per month was, however, admitted. It may be noticed that the deceased was the brother of the owner. The Insurance Company in its reply, inter alia, took a defence that the driver was not holding a valid and effective driving licence; the deceased was travelling as a gratuitous passenger and the terms of the policy having been breached, the insurer was not liable to indemnify the insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the death of Swaroop Kumar took place on account of the rash and negligent driving of Sudesh Kumar son of Partap Chand? OPP. 2. Whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPP. 3. Whether the driver did not possess a valid and effective driving licence, as alleged? OPR-2. 4. Whether the vehicle was not insured with respondent No.2? OPR-2. 3 5. Whether the petition is bad for non-joinder of the LRs of deceased driver? OPR-2. 6. Whether the deceased Swaroop Kumar was travelling as a gratuitous passenger in the vehicle, as alleged? OPR-2. Appreciating the material on record (oral and documentary), the Tribunal held that the deceased Swaroop Kumar died in an accident arising out of the use of the motor vehicle in question and as such, issue No. 1 was decided in favour of the claimant. On issue No. 2, the Tribunal held that the deceased, aged 26 years was having an income of Rs. 2500/- per month and after deducting half of the same, the loss of dependency was determined to be Rs. 1250/- x 12= Rs. 15000/- per annum and by applying a multiplier of 10, a total sum of Rs. 1,50,000/- was awarded as compensation on the said count. Further sum of Rs. 10,000/- was also awarded for loss of love and affection and other conventional charges. Mr. Sharma, learned counsel for the insurer has vehemently argued that there is nothing on record to prove that the deceased was an employee and as such he was a gratuitous passenger. In the claim petition, it is specifically pleaded that the deceased, a conductor (helper) and an agriculturist was working as a conductor-cum-helper with the owner Roop Lal in Mini Truck No. HP-39-5380. The owner in his reply has admitted this fact and only disputed the amount of salary paid to the deceased, which according to him was Rs. 2500/- per month. 4 Smt. Gayatri Devi PW-1, has categorically deposed that at the time of the accident her son was working as a conductor and drawing a salary of Rs. 3000/-. Importantly, there is no cross- examination on this point by the insurer. Even Sh. Sh. Kamal Dev PW-3, has corroborated the version of PW-1. On the other hand, no evidence has been led either by the insured or the insurer. Consequently, it cannot be said that the deceased was not an employee of the insured. The contention needs to be rejected. Relying upon a decision of the Apex Court in Ramashray Singh vs. New India Assurance Co. Ltd. and others, 2003 ACJ(3) 1550; it is further argued that even if the deceased is taken to be an employee of the insured, working as a conductor, he would still be a gratuitous passenger. In the present case, undisputedly the vehicle stands insured, which in any event is evident from the Insurance Policy Ext. R-1. As per the exception clause of policy, “it would not cover (use for carrying passengers in the vehicle except employees other than driver) not exceeding six in number coming in the purview of the Workmen’s Compensation Act, 1923.” Thus, in the present case, upto six employees of the insured, travelling in the vehicle would be covered under the Insurance Policy. It is not the case of the insurer that claim petition on behalf of more than six passengers have been filed. Infact, there is nothing to prove that except for the instant petition any other claim petition was filed. The Apex Court in Ramashray Singh (supra), was dealing with the case where no employee of the insured, apart 5 from the driver was covered and therefore, with those facts, it was so held that the Insurance Policy could not have held to have expressly covered totally or impliedly as khalasi. In the present case, the ratio of the said decision is not applicable as it has come on record that the deceased was working as a conductor/helper and, completely covered by the Insurance Policy. Mr. Sharma, has further argued that there is collusion between the claimant and the respondent-owner of the vehicle as the claimant is the mother of the owner. I am afraid, the contention needs to be rejected for the following reasons: i) There is nothing on record to prove the collusion between the claimant and the owner; ii) the claimants come from rural areas and background and a situation where one brother is working for another brother is not unheard of in this part of the country. The petition has been filed only on behalf of the mother who has been proved to be dependant on the deceased. Of course, I have examined the statement of the claimants’ witnesses with circumspection while arriving at the aforesaid conclusions. While deciding issue No. 1, the Tribunal has taken into account the ratio of the law laid down by the Apex Court in Rita Devi vs. New India Assurance Company Ltd. and another 2000(2) ACC 291. Reliance on the same is mis-conceived as there is sufficient evidence on record to prove the factum of negligence of the Driver. Statement of Sh. Madan lal PW-2, is 6 relevant in this regard who has deposed that he witnessed the occurrence of the accident and the fault lied with the driver who was driving the vehicle in great speed and lost control due to the same. There is no cross-examination on this point at all. With regard to the compensation, both the claimant and the insured are aggrieved. Permission under Section 170 was accorded to the insurer. Un-disputedly, the deceased was 25 years of age. In any event, this stands proved by Dr. Hemant Sharma PW-4, who has also proved the Post-Mortem- Report Ext. PW4/A. Smt. Gayatri Devi (PW-1), Sh. Kamal Deep (PW-3) and Sh. Rakesh Kumar (PW-5) have deposed with regard to the fact that the deceased, apart from being employed was also doing some odd jobs of maintaining of dairy farm and selling milk. From the ocular version, it is evident that he was earning anywhere between Rs. 2000/- to Rs. 3000/- per month. It is true that there is no documentary evidence but the owner has also admitted the salary to be Rs. 2500/-. The Apex Court in V.Subbulakshmi & Ors. V. S.Lakshmi & another, AIR 2008 SC 1256, has held that in the absence of any documentary evidence some guess work is permissible. The Tribunal has considered monthly income of the deceased to Rs. 2500/-. I find no error in that, however, while considering the dependency, the Tribunal has deducted half of the same which in my view should have been 2/3rd as the deceased was un-married and had a joint residence with his parents. Therefore, for the purposes of 7 dependency, the income of the deceased is taken to be Rs. 833/- per month or Rs. 10,000/- per annum. The Apex Court in Sarita Sharma & others vs. Union of India/Chandigarh Administration & another 2008 ACJ, 2032, has held that normally the multiplier laid down in the schedule shall ought to be adopted unless there are compelling reasons to deviate from the same. In the present case, at the time of accident, the age of the deceased was 25 years and that of the claimant was 45 years. Therefore, in my view a multiplier of “13” instead of “12” ought to have been applied by the Tribunal. Accordingly, the claimant would be entitled to a sum of Rs. 10,000 x 13 = 1,30,000/- as compensation for loss of income. The amount awarded towards loss of love, affection and conventional damages is just, fair and reasonable. The impugned award is modified and the claimant is held entitled to a sum of Rs. 1,30,000/- plus 10,000/- as compensation. The claimant shall be entitled to interest as awarded by the Tribunal. The impugned award is accordingly modified. Both the appeal and the cross-objections are accordingly disposed of. ( Sanjay Karol ), Judge. November 17, 2008. (karan)