1.0 This appeal is directed against the judgment and award dated 15.04.2005 passed by the Motor Accident Claims Tribunal (Aux.), Jamkhanbhaliya in Motor Accident Claim Petition No. 458 of 1997 whereby the Tribunal has awarded a sum of Rs.295000/ with interest at the rate of 9% per annum from the date of application till realization.
2.0 On 23.04.1997 at about 7.00 p.m., one Ketan was travelling in truck No. GTW 3757 along with the goods which he received. The truck was driven in full speed and in rash and negligent manner. When the truck reached near bridge on the river Gop, it turned turtle and Ketan died. The heirs of the deceased therefore, filed the aforesaid claim petition before the Tribunal, wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant contended that deceased was travelling in goods vehicle. Therefore, insurance company is not liable to pay compensation. He placed reliance on the decision in the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma & Ors. reported in 2005 (12) SCC 243 wherein in para 6 and 7 it is held as under:
“6. The learned counsel appearing for the appellant submitted that in view of the fact that the decision of this Court in Asha Rani the impugned judgement cannot be sustained. The learned counsel appears to be correct.
7. In Asha Rani this Court while overruling Satpal Singh has clearly held that the Insurance Company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle.”
4.0 Learned advocate for the appellant further placed reliance on the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd. versus Cholleti Bharatamma and others reported in (2008) 1 SCC 423 wherein in para 8 to 11 it is held as under:
“8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative.
9. Correctness of the decision in Satpal Singh (supra) came up for consideration before a three Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani and Others [(2003) 2 SCC 223].
10.0 In Asha Rani (supra), having regard to various definitions involving the legal question, it was held :
“23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. in this case must be considered keeping that aspect in view. Section 2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of “goods vehicle” in the 1939 Act and “goods carriage” in the 1988 Act is significant. By reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under the 1988 Act.
24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause ( ii ) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case must be held to have been rendered having regard to the aforementioned provisions.
25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
26. In view of the changes in the relevant provisions in the 1988 Act visavis the 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used i.e. 'a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof 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.
27. Furthermore, subclause (i) of clause (b) of subsection (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas subclause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
28. An owner of a passengercarrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court 's decision in New India Assurance Co. v. Satpal Singh is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid.'
11.0 The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur & Ors. [(2004) 2 SCC 1], wherein this court following Asha Rani (supra) opined that the words 'injury to any person' would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma & Ors. [(2005) 12 SCC 243] wherein upon taking into consideration a large number of decisions, the said view was reiterated.”
5.0 Learned advocate for the appellant further contended that in the written submission contention has been raised that the deceased was travelling in goods vehicle and in spite of the fact that specific contention has been raised that insurance company is not liable, the learned Tribunal has awarded the compensation to the claimants.
6.0 Learned advocate for the respondent submitted that the only contention in the written statement was that passengers were travelling in goods vehicle. He has supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
8.0 Heard learned advocates for the parties and perused the documents on record. By considering the evidence on record it is found that the learned Tribunal has committed error in not considering the written submission made by the learned advocate for the appellant regarding the goods vehicle. I am of the opinion, that the learned Tribunal has committed an error in not considering this aspect.
9.0 Even on merits, the claimants are parents and brother. As far as income is concerned, the learned Tribunal has considered the income at Rs. 1500/ per month and Rs. 2250/ as prospective income. Since the parents are the claimants, 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself as per the ratio laid down by the Hon'ble Apex Court in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121. Hence 50% benefit of the compensation should be computed by taking the monthly income of the deceased at Rs. 2250/ as base and the dependency benefits for the claimants would come to Rs. 1125/ per month and Rs. 13500/ per year ( Rs. 1125/ x 12). In the present case considering the age of the mother as 45 years, the multiplier of 14 would apply. On applying multiplier of 14 years the future loss of income would come to Rs. 189000/. Further, the claimants are entitled to Rs. 10000/ towards loss to the estate and Rs. 5000/ towards funeral expenses. The total compensation would come to Rs. 204000/.
10.0 In the result, the insurance company is liable to pay Rs. 2,04,000/ ( Rs. 189000/ towards future loss of income + Rs. 10000/ towards loss to the estate + Rs. 5000/ towards funeral expenses) as total compensation. However, the Tribunal has awarded Rs. 295000/ as total compensation. Therefore, the balance amount of Rs. 91000/ ( Rs. 295000/ Rs. 204000/) shall be refunded to the insurance company with the proportionate costs and interest. The award is modified accordingly. Appeal is allowed to the aforesaid extent with no order as to costs. It will be open to the insurance company to recover the balance amount from the owner of the vehicle if the amount deposited by the appellant has already been withdrawn by the claimants. If the claimants , have not withdrawn the amount, it will be open for them to recover the amount from the owner of the vehicle. Any amount lying with this Court shall be transmitted to the concerned Tribunal. No order as to costs.
(K.S.JHAVERI, J.) niru*