1. The appellant-GSRTC herein by way of preferring First Appeals no. 2787 & 2788 of 2001 has challenged the award dated 15.01.2001 passed by the Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claims Petition No.
354 & 619 of 1993 so far as the Tribunal awarded Rs. 3,80,000/- and Rs. 7,00,000/- as compensation with interest respectively after holding the bus driver S.T. Corporation liable for the accident to the extent of 80%.
1.1 The appellant- Insurance Company by way of preferring First Appeals no. 3627 & 3628 of 2001 has challenged the award dated 15.01.2001 passed by the Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claims Petition No.
354 & 619 of 1993 so far as the Tribunal awarded Rs. 3,80,000/- and Rs. 7,00,000/- as compensation with interest respectively after holding the driver of the rickshaw insured with the insurance company liable for the accident to the extent of 20%.
2. It is the case of the claimants who are the legal heirs of the deceased Mahamadhusen Adamjibhai and Govindbhai Shivrambhai that on 26.07.1993 while they were travelling as owners of goods in Chhakda rickshaw bearing registration no. GJ 10 T 7224, an S.T. bus bearing registration no. GRU 8081 being driven in a rash and negligent manner hit the rickshaw as a result of which the both of them died. The claimants of therefore filed claim petitions. The Tribunal after hearing the parties passed the aforesaid award.
3. Ms. Roopal Patel, learned advocate appearing for the appellant-Corporation submitted that the Tribunal failed to take into consideration the entire facts of the case and evidence on record and thereby erred in awarding higher amount under various heads. She submitted that the Tribunal has wrongly assessed the contributory negligence on the part of S.T and rickshaw driver at 80%-20%. She submitted that the contributory negligence on the part of the bus driver could have been attributed at 50% only.
3.1 Ms. Patel submitted that the Tribunal has wrongly assessed the income of the deceased as well as the multiplier adopted is also on higher side in both the matters. She submitted that the interest awarded by the Tribunal is also on higher side and the same may be reduced.
4. Mr. Divyesh Sejpal, learned advocate appearing for the claimants has supported the award passed by the Tribunal and submitted that no interference is called for in the same. He submitted that infact the amount awarded by the Tribunal is on lower side and therefore the same may not be reduced.
5. Ms. Viraj Fozdar, learned advocate appearing for Ms. Jani for the insurance company – appellants of first appeal no. 3627 & 3628 of 2001 submitted that the Tribunal has wrongly assessed contributory negligence on the part of the rickshaw driver at 20%. She submitted that infact the insurance company ought to have been held not liable to pay the compensation amount as there is a specific condition in the policy not to use the vehicle (rickshaw) for hire or reward. She has further contended that the Tribunal failed to appreciate that the passengers carried in a goods vehicle can by no stretch of imagination be construed as third party.
5.1 Ms. Fozdar has placed reliance on the decision of the Apex Court in order to substantiate her contentions. She has relied upon the decision in the case of New India Assurance Co. Ltd v Asharani reported in 2003(2) SCC 223.
6. As a result of hearing and perusal of records, this court is of the view that considering the evidence on record and the facts and circumstances of the case, the Tribunal came to the conclusion that the accident happened as a result of the rash and negligent driving of both the drivers. The Tribunal observed that there was no collision between the vehicles but the bus had slightly brushed aside the rickshaw and if the driver had taken sufficient care to direct the deceased to sit properly keeping their legs properly and also driven the rickshaw on further left side of the road, the accident could have been avoided. Similarly, as the bus driver would have seen the oncoming rickshaw in which persons were sitting on the railing of the right side, it was his duty as a prudent driver to take sufficient care to keep his bus some distance away from the oncoming rickshaw. The driver of the bus did not stop his bus immediately after the accident. The Tribunal has rightly assessed contributory negligence of 80% on the bus driver and 20% on the rickshaw driver. This court is in complete agreement with the same.
7. However, as far as the quantum is concerned, the Tribunal has assessed the income of the deceased in Claim Petition No. 354 of 1993 (First Appeal No. 2787 of 2001) as Rs. 3000/- per month. On deducting personal expenses, loss of dependency benefits comes to Rs. 2000/- per month and Rs. 24000/- per annum. The multiplier of 15 adopted by the Tribunal is on higher side. The just and proper multiplier would be 13. Accordingly, the future loss of income shall come to Rs. 3,12,000/-. The Tribunal has awarded Rs. 3,60,000/- under this head and therefore Rs. 48000/- has been awarded in excess.
7.1 Similarly, the Tribunal has assessed the income of the deceased in Claim Petition No. 619 of 1993 (First Appeal No. 2788 of 2001) as Rs. 5000/- per month and Rs. 60000/- per annum. On deducting personal expenses, loss of dependency benefits comes to Rs. 40000/- per annum. The multiplier of 17 adopted by the Tribunal is on higher side. The just and proper multiplier would be 15. Accordingly, the future loss of income shall come to Rs. 6,00,000/-. The Tribunal has awarded Rs. 6,80,000/- under this head and therefore Rs. 80,000/- has been awarded in excess.
7.2 The interest of 15% imposed by the Tribunal is on a higher side. This court is of the view that interest of 12% ought to have been imposed by the Tribunal. The award is required to be modified to the aforesaid extent.
8. As far as First Appeals No. 3627 & 3628 of 2001 are concerned, from the perusal of the award, it is clear that the appellant – insurance company had strongly contended before the Tribunal that it is absolved from the liability of paying compensation in view of the fact that the insured had committed breach of the terms of the policy as also the provisions of the M.V. Act by carrying passengers on payment of hire or reward in the goods vehicle. The number of passengers were six including the driver in the rickshaw and the deceased persons were sitting on the railing of the rickshaw.
8.1 A perusal of the decision relied on by the learned counsel for the appellant is relevant at this stage. In the case of New India Assurance Co. Ltd (supra), keeping in view the provisions of the 1988 Act, the Apex Court has taken the view that as the provisions do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.
9. As a result of hearing and perusal of records and in view of the decision of the Apex Court, I am of the opinion that the contentions raised by the appellant – insurance company is required to be accepted. The fact that the rickshaw in question was a goods vehicle cannot be disputed and therefore the appellant cannot be held liable to undertake third party risk in a case where the vehicle is used for a purpose other than the one for which the policy is covered. In that view of the matter, the award of the Tribunal is required to be modified by not holding the appellant-insurance company of first appeals no. 3627 & 3628 of 2001 liable for the compensation payable to the original claimants.
10. Accordingly, appeals are partly allowed. The claimants of First Appeals No. 2787 & 2788 of 2001 shall be entitled to only Rs. 2,32,000/- & Rs. 6,20,000/- by way of total compensation respectively. The appellant shall be liable to pay interest @ 12% instead of 15% from the date of claim petition till realisation. The amount deposited by the appellants qua 3% interest shall be refunded. The balance amount along with proportionate interest shall be refunded to the appellant-Corporation.
10.1 The award of the Tribunal is quashed and set aside qua liability of the insurance company- appellant in First Appeals No. 3627 & 3628 of 2001. The amount deposited by the insurance company shall be refunded. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner and if the amount is not paid to the claimant it will be open for the claimants to recover the same from the owner. The award of the Tribunal impugned in these appeals is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//