HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.NO.4428 OF 2004 JUDGMENT: 1. This appeal is directed against the order dated 12-10-1999 in O.P.No.33 of 1994, on the file of the Motor Accidents Claim Tribunal-Additional District Judge (for short “the Tribunal”), Madanapalle, wherein the claim of the respondents 1 to 5 herein was allowed-in-part awarding compensation of Rs.1,77,200/- with interest at 9% per annum from the date of petition i.e., 25-11-1993. 2. Heard the learned counsel for appellant and the learned counsel for respondents. Perused the record. 3. The appellant herein is the owner of the vehicle. The respondents 1 to 5 herein filed claim application seeking compensation of Rs.4,25,440/ on account of death of the deceased-Rama Chandrappa, who died in a motor vehicle accident that occurred on 13-08-1993. The first claimant is the wife and claimants 2 to 5 are the children of deceased. According to them, on that date the deceased was traveling in a Tractor bearing No.AP03/T-8959 and its Trailor bearing No.AP03/T 8959 along with tomato baskets from Chembakur to Madanapalle market yard and that on account of rash and negligent driving of the Tractor by its driver-the 7th respondent herein, the vehicle overturned resulting in the death of the deceased on the spot. The 6th respondent herein is the insurer of the vehicle. According to the claimants, the deceased was having Ac.5.00 of land and he was also doing milk vending business and earning Rs.5000/- per month and he left behind the wife and daughters and the daughters were polio affected. The owner of the vehicle and the insurer filed counter- affidavits opposing the claim, denying their liability. The insurer further contended that the owner of the vehicle used the same for non- agricultural purpose and therefore violated the terms and conditions of the policy and the driver of the vehicle was not having valid license at the time of the accident and therefore the insurer is not liable to pay the compensation. According to the insurer, as per the terms of the policy, the owner of the vehicle alone should use the vehicle for agricultural purpose and the policy covers the risk of one person i.e., driver. 4. In support of their case, the claimants examined PWs.1 and 2 and got marked Exs.A1 to 6. The appellant herein- the owner of the vehicle was examined as RW.1 and one K.Srinivasulu was examined as RW.2 and Exs.B-1 and B-2 were marked on behalf of the respondents in O.P. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving of the Tractor and Trailor by its driver i.e., 7th respondent herein. The Tribunal further held that the claimants are entitled for a total compensation of Rs.1,77,200/. The Tribunal further held that there was a breach of terms and conditions on the part of the owner of the vehicle and therefore the insurer is not liable to indemnify the owner and hence compensation was payable by the owner of the Tractor alone. Accordingly, the award was passed against the owner of the vehicle alone exonerating the insurer from any liability to pay the compensation. Aggrieved by the same, the owner of the vehicle filed the present appeal. 6. The finding of the Tribunal that the accident occurred due to rash and negligent driving of the Tractor and Trailor by its driver-7th respondent herein is not seriously disputed. The learned counsel for the appellant would contend that the compensation awarded by the Tribunal is excessive and the Tribunal erred in not fastening the joint liability on the insurer as well. According to the claimants, the deceased was having Ac.5.00 of land and was doing milk vending business and selling about 15 liters per day and earning Rs.30/- per day. They further plead that on account of tragic death of the deceased, the claimants who are the wife and daughters of the deceased became destitute and out of four daughters, three were polio affected. EX.A-4 a copy of 10(1) Adangal would show that the deceased was having about Ac.5.00 of land. It is not disputed that the deceased was hale and healthy by the date of accident and he was aged about 45 years. The Tribunal in the absence of any evidence to show the income from the land rightly rejected the claim of the claimants that the deceased was earning income of Rs.1 lakh per annum. Though the lands remained intact even after the death of the deceased as contended by the learned counsel for the appellant, the fact remains that on account of death of the deceased, his wife and daughters are certainly deprived of the personal supervision of the cultivation which the deceased was making while he was alive, it cannot be expected that the first claimant-widow of the deceased and the other claimants the daughters of the deceased who are polio affected, as can be seen from the disability certificate-Exs.A-5 to 7, would be able to cultivate the land the same way the deceased was doing or would be able to generate the same extent of income as the deceased was deriving from cultivation. The plea of claimants that on account of the death of the deceased they are unable to cultivate the lands properly and are unable to derive income therefrom as before stands to reason. In fact the Tribunal has assessed the income from out the landed property and other sources only at Rs.24,000/- per annum, which comes to Rs.2000/- per month. Even if the loss of services and supervision of cultivation by the deceased alone is to be taken into consideration, still an amount of Rs.24,000/ per annum estimated by the Tribunal cannot be held to be excessive or unreasonable. After deducting 1/3rd thereof towards personal expenses, the Tribunal had infact taken only Rs.16000/- per annum into consideration for estimating the loss of dependency. Applying the multiplier of 10.45, which was appropriate for the deceased who was aged about 45 years by the date of death, the loss of dependency is Rs.1,67,200/- and the same is held to be just and reasonable. The Tribunal further awarded a sum of Rs.15,000/- towards loss of consortium and Rs.15,000/- towards loss of estate and Rs.3,000/- towards funeral expenses which are usual amounts awarded in the absence of Second Schedule. Thus, the total compensation payable to the claimants worked out to Rs.2,02,000/- and after deducting the sum of Rs.25,000/- already paid under “no fault liability”, the Tribunal passed an award for the balance amount of Rs.1,77,200/-. 7. The next contention of the learned counsel for the appellant is that the Tribunal ought to have fastened a joint liability on the insurer as well. According to the 6th respondent-insurer, there was breach of conditions of the policy and therefore they are not liable to pay the compensation. Ex.B-2-a copy of the policy would show that the vehicle i.e., Tractor and Trailor was insured subject to the limitation as to use to the effect that it was to be used for agricultural purpose only. Ex.B-2 would also show that apart from the basic premium for the Tractor and Trailor, an additional premium of Rs.15/- was paid only in respect of the driver. Even according to the claimants and also the appellant, at the time of accident the Tractor and Trailor was not being used for any agricultural purpose of the owner of the vehicle. On the other hand, the deceased was said to be transporting tomato bags in the Trailor to Madanapalle market when the accident occurred. RW.2 Assistant Administrative Officer of the insurer deposed that the Company is not liable for any accident while the vehicle is being used other wise than according to the limitations for use. He further deposed that the deceased was unauthorized person, traveling in the Tractor and Trailor. It is also his evidence that O.P.No.32 of 1994 was filed for compensation for no fault liability against the Insurance Company. He filed Ex.B-1 deposition of PW.1-the widow of the deceased wherein she deposed that on that date the tomatoes belonging to the deceased, Venkata Ramana, Krishnappa who are belonging to the same village were loaded in the Tractor and the Tractor was hired by the above persons to transport the tomatoes to Madanapalle Market yard. In the cross-examination, RW.1- the appellant herein admitted that he used to load the tomato baskets in the village and send the same through his driver. Though he denied the suggestion that he gave the Tractor on hire, he stated that on that date his driver Murappa was driving the vehicle but he admitted that his son Janardhana Reddy was convicted in the criminal case regarding the same accident. It is therefore clear from the evidence of RW.1 that he was making a vain attempt to throw the blame on some other persons in order to save his son and thus he has no regard for the truth. The evidence of PW.1 herein in O.P 32 of 1994 as can be seen from Ex.B-1 would establish that the Tractor was hired by the deceased and others for transporting their tomatoes to Madanapalle Market yard. The claim of the appellant herein that he was transporting his own tomatoes and he also allowed others’ tomatoes also to be loaded cannot be believed. It is therefore clear from the evidence on record that the appellant-owner of the tractor has violated the terms and conditions of the Ex.B-2 policy regarding the limitation on its use by hiring out the same to others in the village for transporting their tomato produce to Madanapalle Market yard. The appellant- owner was therefore not using the vehicle for his own agricultural purpose at the time of accident. 8. Even otherwise, the accident occurred on 13-08-1993, which was before the amendment of the Motor Vehicles Act, the amendment having come into force on 14-11-1994. By the date of accident the only person covered by the policy Ex.B-2 was driver in respect of whom an additional premium was paid. By the date the owner of the vehicle was not required to insure the vehicle in respect of any risk for the owner of the goods or the representatives of the owner of the goods. It is only subsequent to the amendment to the Act, which came into force on 14-11-1994, that the owner of the goods and the representative of the owner of the goods came to be covered. Thus by the date of the accident, which occurred on 13-08-1993 the deceased was only an unauthorized passenger in the Tractor which is a goods vehicle and whose risk is not covered by the policy. In a catena of decisions of Apex Court i n New India Insurance Company Limited Vs. Asha Rani ([1]) it was held that the insurer is not liable to pay the compensation in respect of the accident involving the risk of an unauthorized passenger traveling in a goods vehicle. Thus viewed from any angle, the insurer is not liable to pay the compensation. The Tribunal has therefore rightly exonerated the insurer without fastening any joint liability on them for payment of compensation. The appellant- owner of the vehicle alone is liable to pay the compensation of Rs.1,77,200/- awarded by the Tribunal. However, the rate of interest @ 12% per annum awarded by the Tribunal is considered to be on the higher side and the same is reduced to 9% per annum from the date of petition. 9. In the result, subject to the above modification in the rate of interest, the appeal is dismissed. No order as to costs. ______________________ G.V.SEETHAPATHY,J Dt.10-11-2009 tsnr [1] 2003 ACJ 1 (SC) = (2003) 2 SCC 223