1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T (1) CIVIL MISC. APPEAL No. 529 of 1997 THE NEW INDIA ASSURANCE COMPANY LTD V/S SMT. PUSHPA DEVI & ORS (2) CIVIL MISC. APPEAL No. 565 of 1997 SMT. PUSHPA DEVI & ORS V/S NATUR RAM & ORS Date of Judgment : 16.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. RK MEHTA, for the appellant (insurer) Mr. AK RAJVANSHY, Mr. DHANESH SARASWAT for Mr. RAVI BHANSALI, for the respondent BY THE COURT : These two appeals arise out of the same award of the learned Tribunal, Bhilwara dated 6.5.1997. Appeal No.529 has been filed by the insurer, while appeal No.565 has been filed by the claimants. The claimants seek enhancement, while insurer seeks exoneration of its liability. Accordingly, both the appeals are being decided by this common judgment. The necessary facts are that on 25.1.1994 the 2 deceased Omprakash along with other persons was travelling in jeep No.RJ06/C-729, which was being driven rashly and negligently, and on the way from Raipur to Gangapur near culvert of Nayakon Ka Khera, Koshithal Majra, the jeep overturned, resulting into death of Omprakash. Owner and driver contested the claim inter-alia on the ground, that right front tyre got punctured, as a result of which the jeep lost balance and overturned. Thus there was no negligence. The insurer contested the claim on the ground, that the deceased was the fare paying passenger in the jeep, for which there was no insurance cover, and as such, the insurer is not liable. Learned Tribunal framed 7 issues. Issue No.1 and 3 related to the liability of the insurer, while issue No.2 relates to the quantum of compensation. Since the question of negligence and driving of the jeep is not a matter in controversy before me, I need not dilate on that. Learned Tribunal deciding issue No.1 and 3 found, that according to the insurance cover note Ex.9, the jeep was insured for private and professional use, and since the deceased was a fare paying passenger, the insurance company is liable as the jeep was insured for professional use also. Then deciding issue No.2, the learned Tribunal found that though the claimants have led evidence about the deceased earning Rs.150-200/- per day, or earning Rs.3000/- 3 per month, but then no documentary evidence has been produced in that regard, and therefore, has assessed the income at Rs.25/- per day, and making deduction of 1/3rd as personal expenditure, dependency of the family has been assessed at Rs.500/- per month. Finding the age of the deceased to be 38 years at the time of death, multiplier of 8 has been employed, and compensation on account of loss of income has been assessed at Rs.48,000/-. Then by adding other amounts payable under other different heads, a total award of Rs.98,000/- has been passed. So far the insurer's appeal is concerned, being appeal No.529, it would suffice to say, that in view of the consistent judgments of Hon'ble the Supreme Court right from that in Amrit Lal Sood & Anr. Vs. Smt. Kaushalya Devi Thapar & Ors. reported in JT 1998(2) SC 484, and subsequent judgments in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy & Ors. reported in JT 2003(1) SC 372, United India Insurance Co. Ltd., Shimla Vs. Tilak Singh & Ors. reported in JT 2006(4) SC 280, New India Assurance Co. Ltd. Vs. Asha Rani & Ors. reported in JT 2002(10) SC 162, and Dr.T.V.Jose Vs. Chacko P.M. @ Thankachan & Ors. reported in (2001) 8 SCC 748 para-19, it is clear that the insurer is not liable for such passenger, irrespective of the fact, as to whether he was a fare paying passenger, or a gratuitous passenger, as the fact remains, that the vehicle was a private vehicle, and was not intended to be used for 4 carrying passenger for hire or reward. In that view of the matter, the finding of the learned Tribunal on issues No.1 and 3 is liable to be reversed, and is hereby reversed. The appeal No.529 is accordingly allowed, and the insurer is exonerated of its liability. However, it is clarified, that whatever amount has already been paid by the insurer to the claimants under Section 140, so also the amount, which has been deposited by the insurer as a requirement of Section 173, for filing the present appeal, shall be recoverable by the insurer from the owner. Coming to the appeal No.565, a look at the evidence on record shows, that the claimant A.W.1 has deposed that the deceased was earning Rs.150-200/- per day approximately he was earning Rs.2500-3000/- per month. Then A.W.2 has clearly deposed that the deceased was working as a tailor, stitching pent, bushirt, Paijama etc., and was earning Rs.3000/- per month, though in the claim petition the income has been pleaded to be Rs.2500/- per month. In my view, this being only a bald word of mouth, and the evidence has been led to show the income at a figure beyond what has been pleaded, at the same time, there is no material to lend assurance to the bare word of mouth of the claimant, even though there is no rebuttal evidence on the side of the defendants. In the totality of circumstances, I think it appropriate to assess the income of the deceased 5 at Rs.1500/- per month. Then out of it, after deducting 1/3rd as personal expenditure, the dependency of the family is assessed at Rs.1000/- per month. Then looking to the age of the deceased, in my view, the multiplier of 8 employed by the learned Tribunal is also inadequate, and is required to be enhanced to at least 12. Accordingly, the amount of compensation awarded under the head of loss of dependency being Rs.48,000/- is enhanced to Rs.1,44,000/-. The other amounts awarded and the other stipulations however are maintained. Accordingly, the appeal No.565 is allowed, and the amount of compensation awarded under the head of loss of income being Rs.48,000/- is enhanced to Rs.1,44,000/-. Other conditions and stipulations of the award regarding quantum are maintained. Likewise, the appeal No.529 is accordingly allowed, and the insurer is exonerated of its liability. However, it is clarified, that whatever amount has already been paid by the insurer to the claimants under Section 140, so also the amount, which has been deposited by the insurer as a requirement of Section 173, for filing the present appeal, shall be recoverable by the insurer from the owner. ( N P GUPTA ),J. /tarun/