K VARAMMA Vs. P RAMAKOTAIAH

JUDGEMENT

(1.) The three appeals can be disposed of by a common judgmentsince the three deceased died in an accident occurred on January 5, 1984 at about 11.00 A.M on the road between Chandralapadu and Bobbillapadu villages by the lorry bearing AAG 4352 belonging to the first respondent, driven by the second respondent and insured with the 3rd respondent. The case of the claimants is that the three deceased by names, K. John, Muttaiah alias Devadanam and Hussain, aged about 25, 25 and 30 years respectively, died in the accident due to the rash and negligent driving of the vehicle by the driver. The widow and minor children of K. John filed O.P. No. 191/85 against which CMA 259/86 arises claiming a sum of Rs. 50,000/- but a sum of Rs. 38,000/- was awarded by the Tribunal below. In O.P. 192/84 against which CMA 258/86 arises, the widow and three minor children of the deceased Muttaiah alias Devadanam laid a claim in a sum of Rs. 50,000/- but the Tribunal below awarded a sum of Rs. 38,000/-; and in O.P. 193/84 against which CMA 261/86 arises, the widow and two minor children and father of Hussain laid the claim in a sum of Rs. 50,000/- but the Tribunal awarded a sum ot Rs. 36,000/-. The Tribunal also awarded a sum of Rs. 6,000/- to each of the widows towards consortium. For the balance amount, the appeals have been filed. The finding that the driver-second respondent had driven the vehicle rashly and negligently as a result of which the accident bad occurred has not been challenged by the respondents. Therefore, I confirm the said finding. It is the contention of Sri Mangachary, learned counsel for the Insurance Company that the three deceased were only gratutious passengers and that they were not carried as owners of the goods nor for hire or reward, therefore, the legal representatives of the deceased are not entitled to any compensation. I find no force in the contention. The lorry was engaged for loading and unloading of the building material and the three deceased and other persons who were engaged as coolies were going in the lorry for the said purpose. Therefore, they are the persons carried for the purpose of carrying on bustness of the owner. Thereby, they are not gratuitous passengers. Hence the finding that they are the persons carried for loading and unloading is accordingly confirmed. It is contended by Sri Dharmarao, learned counsel for the appellants that the Tribunal below having accepted that the deceased would at least get Rs. 10/- per day, their dependency should be computed at Rs. 300/- per month and 1/3rd of it is deducated, it would come to Rs. 200/- and that would be the loss of dependency per month ; and for one year, it would be Rs. 2,400/-. The appropriate multiplier is 18 years and if it is so worked, it would come to Rs. 43,200/-. The Tribunal below has wrongly calculated. Thereby there is an arithmetical error required to be corrected. The award of a sum of Rs. 6,000/- to each of the widows towards solatium, has not been challenged. Accordingly it is confirmed.

(2.) The contention of Sri Mangachary is that Section 95 (2) of the Motor Vehicles Act (Act 4 of 1939) for short, "the Act", provides limits of the policy and the liability of the Insurance Company. Uader clause (a) thereof, where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in thevehicle. Therefore, the Insurance Company is not liable to pay to each of the parsons, damages as a reparation for the death of or bodily injury to the victims. The question, therefore, is what is the compensation to which the appellant? are entitled ? The defence taken in the Tribunal below is that Section 95 (2) (a) provides only for carriage of passengers upto six in number and if any passenger carried in excess thereof, the Insurance Company is not liable to pay damages for the death of or bodily injury to the victims and that therefore, there arises no liability. This contention was not found favour with the Tribunal below and was negatived, it is undoubted that Clause (a) of sub-section (2) of Section 95 provides the entitlement to cany persons not exceeding six in number excluding the driver and the cleaner. The Vehicle admittedly carried more than six persons for loading and unloading purpose. In a similar case, in Raghunath vs. Sharadabai (AIR 1986 Bombay 386), it was contended that since the vehicle carried persons in excess of the prescribed limit it is a contravention of the insurance policy and that therefore the insurer is absolved of its liability to pay the compensation. While considering that contention, Sawant, J. speaking for the Bench held :

(3.) It is next contended that it is necessary that every such person should be covered by a policy without which the Insurance Company is not liable. I find no force in the contention. It is not the requirement of law that for every person who meets with death cr sustains bodily injury must be covered by a policy. Therefore, this contention also is untenable.