By way of filing these appeals under Section 173 of the Motor Vehicles Act, 1988 the appellants have challenged the judgment and order dated 7th June 1997 passed by the learned Motor Accident Claims Tribunal (Main) at Kheda in MAC Petition No.500 of 1987 whereby the Tribunal has awarded Rs.1,07,000/- to the claimants along with interest of 12% per cent from the date of application till realisation. 2 The short facts of the present appeals are that appellants of First Appeal No.4501 of 1997 are the original claimants being widow and children of the deceased Jesingbhai Shanabhai Padhiyar. It is the case of the claimants that deceased Jesingbhai was travelling in Tractor bearing No.GJN 8926 with Trolley bearing No.GTJ 4493 as a labourer. That on 9th September 1986 while he was working as a labourer on the said vehicle, because of excessive speed and rash and negligent driving on the part of the driver, the said tractor turned turtle at about 11.30 PM near Jitodiya village and wheels of tractor/trolley had run over the body of the deceased. In the said accident deceased sustained grievous injuries due to which he died before he could be removed to the hospital.
3. Wife and children of the deceased filed claim petition claiming compensation of Rs.3,00,000 from the original opponents jointly and severally under various heads. The Tribunal after considering the evidence adduced on record has awarded Rs.1,07,000 to the claimants along with interest at the rate of 12% per annum against which appeal being First Appeal No.4501 of 1997 is filed by the original claimants while First Appeal No.4889 of 1997 is filed by the driver and owner of the tractor.
4. Since both the appeals arise out of common incident and out of common judgement, the same are heard together and decided together by this common judgment and order. Heard learned counsel for the parties and perused the record.
5. Mr Munshi, learned counsel for the appellants – driver and owner of the offending vehicle, has, inter-alia, submitted that in view of the evidence of the claimants at Exhibit 39, 40, 74 and 75 the Tribunal has committed an error in holding that the insurance company is not liable for making the compensation as the person travelling in the tractor was not travelling as a labourer.
6 He further pointed out that in view of the fact that the tractor was covered by the insurance and the use of the tractor was for agriculture purpose and the premium was also paid for the said purpose, the Tribunal has committed an error in exonerating the insurance company.
7. Mr Nalin Thakkar, learned counsel for the appellants - original claimants in First Appeal No.4501 of 1997 has submitted that the Tribunal has committed an error in not considering the prospective income of the deceased. He submitted that as the income of the deceased was Rs.650 per month, there should have been 50% addition towards prospective income in which case the income could have been Rs.975 per month. If 1/3rd amount is deducted therefrom the dependency loss would come to Rs.650 per month, Rs.7800 per year. Considering the age of the deceased, the multiplier should have been 18 and therefore the claimants are entitled to receive Rs.1,40,400/- towards future loss of income. He further submitted that the claimants are also entitled to get Rs.10,000 towards loss of consortium, Rs.10,000/- towards loss of estate and Rs.5,000 towards funeral expenses. Thus, in all, the claimants are entitled to get Rs.1,65,400 whereas the Tribunal has awarded Rs.1,07,000/-. Therefore, the original claimants are entitled to additional amount of Rs.33,400/-.
8. Learned Advocate for the insurance company submitted that in view of the decision of the Supreme Court in the case of National Insurance Co. v. Prembai Patel and others, reported in 2005(6) SCC 172 and in the case of Mallawwa and others v Oriental Insurance Co. Ltd. and others reported in 1999 ACJ 1 even if the insurance is there, the insurance company is not liable to pay the compensation. He further submitted that the Tractor is not registered as a passenger carrier vehicle and on the Tractor except the Driver no other person is permitted to travel either as a Passenger or as an employee of the insured or as a Mechanic. He further submitted that at the time of the accident, the Tractor was not doing any agriculture work and on the contrary the Tractor was used for carrying timber or wood, which cannot be said to be used for agriculture purpose. He, therefore, supported the judgment of the Tribunal and prayed that no interference be made.
9. I have heard the learned counsel for the parties and perused the record. The fact remains that the vehicle involved in the accident is a tractor and as per the insurance policy it should have been used for agricultural purpose only. In the instant case the tractor was used for carrying firewood and as there was change of usage from agriculture to other purpose, the conditions of the insurance policy were breached and the Tribunal has rightly exonerated the insurance company. Mr Munshi has made an attempt to submit that it is a common knowledge that carrying of firewood is a part of agricultural activity and the same could not have been termed as non-agricultural activity. I am in complete agreement with the view taken by the Tribunal and the insurance company is rightly exonerated.
10. On the point of quantum, the Tribunal ought to have considered future economic prospects of the deceased. The deceased was earning Rs.650 per month and there should have been 50% addition towards prospective income in which case the income would come to Rs.975 per month. If 1/3rd amount is deducted therefrom the dependency loss would come to Rs.650 per month, Rs.7800 per year. Considering the age of the deceased, the multiplier should have been 18 and therefore the claimants are entitled to receive Rs.1,40,400/- towards future loss of income. Therefore, the original claimants are entitled to additional amount of Rs.33,400/-. along with interest at the rate of 7½ per cent per annum from the date of application till realization.
In the result, First Appeal No.4889 of 1997 is dismissed while First Appeal No.4501 of 1997 is partly allowed with no order as to costs.
(K.S.Jhaveri, J.) *mohd