Kantabai W/O Sureshchandra Doshi ... vs Ahmed Khan Chand Khan (Deceased) ...
2006 Latest Caselaw 188 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This group of Appeals, involve common questions of law and fact, and therefore are heard and decided by this common judgment.

A) MACP. No. 221 of 1991, was filed by one Kantabai Wd/o Sureschandra Doshi and others 4, against Ahmed Khan s/o Chand Khan, deceased through Legal heirs and National Insurance, Company Ltd. This MACP. No. 221 of 1991 was filed for compensation to the tune of Rs. 5,00,000/-. In this MACP No. 221/1991, it was alleged that one Sureshchandra Doshi sustained injuries in vehicular accident and died. The learned Tribunal has awarded an amount of Rs. 3,00,000/- towards compensation along with interest @ 12% p.a. by judgment and award dated 13-1-1999. This judgment and award passed in MACP. No. 221/1991, is challenged by filing First Appeal No. 312/2000 for enhancement of the amount of compensation.

B) MACP No. 220/1991 was filed by one Smt. Pramodini wd/o Subhashchand Kasliwal and 4 others against legal heirs of deceased Ahmed Khan s/o Chand Khan and National Insurance Company Ltd. for compensation to the extent of Rs. 3,00,000/-. This was also a claim arising out of vehicular accidental death of Subhashchand Kasliwal. The learned Tribunal awarded an amount of Rs. 2,35,000/- towards compensation along with interest @12% p.a. This judgment and award is challenged by filing First Appeal No. 313 of 2000 by the original claimants, for enhancement in amount of compensation.

C) MACP No. 223 of 1991, was filed by one Ms. Preeti alias Doly Sureshchandra Doshi against legal heirs of deceased Ahmed Khan s/o Chand Khan and the National Insurance Company Ltd. for compensation of Rs. 1,00,000/-. It was a personal injury claim of Ms. Preeti. The learned Tribunal awarded an amount of Rs. 75,000/- along with 12% interest towards compensation in this MACP No. 223 of 1991. This judgment and order passed by the learned Tribunal is challenged by the original claimants by filing First Appeal No. 314 of 2000 in this High Court, for enhancement in the amount of compensation.

D) MACP. No. 222 of 1991, was filed by one Smt. Kanta wd/o Sureshchandra Doshi against legal heirs of deceased Ahmed Khan s/o Chand Khan and National Insurance Company Ltd. for compensation to the tune of Rs. 1,00,000/-. It was also a personal injury claim. The learned Tribunal awarded an amount of Rs. 75,000/- along with interest @ 12% p.a. This order is challenged by filing First Appeal No. 314 of 2000 by the original claimant Smt. Kantabai Wd/o Sureshchandra Doshi; for enhancement in amount of compensation.

E) MACP No. 219/1991 was filed by one Smt. Pramodini Wd/o Subhashchand Kasliwal against legal heirs of deceased Ahmed Khan Chand Khan to the extent of Rs. 2,00,000/- towards compensation. It was a persona! injury claim, The learned Tribunal awarded Rs. 1,00,000/- towards compensation along with 12% interest p.a. in favour of the original Claimants. This award is challenged by the original claimant by filing First Appeal No. 316 of 2000 in this High Court. MACP. Nos. 219 of 1991, 220/1991, 221/1991, 222/1991 and 223/1991, were decided by common judgment by the learned Member, Motor Accident Claims Tribunal at Dhule. As noted above, these original Claimants, have filed First Appeal Nos. 312/2000, 313/2000, 314/2000, 315/2000 and 316/2000 in this High Court, for enhancement in the amount of compensation. Undisputedly, the original opponents either legal heirs of deceased Ahrned Khan s/o Chand Khan or the National Insurance Company Ltd., have not filed the appeals challenging any part of the order passed by the learned Tribunal in all these MAC petitions. The original opponents have also not filed cross-objections in this First Appeal Nos. 312/2000, 313/2000, 314/2000, 315/2000 and 316/2000.

2. Background facts in nut shell may summarised as follows:

(i) Undisputedly, Ambassador Car bearing Registration No. MKU-31, was owned by the Opponent No. 2 Ahmed Khan s/o Chand Khan (deceased). The date of accident, undisputedly, is 11-6-1991 at about 12.00 noon. The accident in question occurred on Bombay-Agra Highway and in the vicinity of village Kharde Tq. Shirpur, Dist. Dhule. At the relevant time of the accident, Ambassador Car bearing No. MKU-31 was being driven by one Narendra Shivram Pachori. This Narendra Shivram Pachori was joined as Opponent No. 1 in all the claim petitions before the learned Tribunal at Dhule. However, subsequently he was deleted from the array of the respondents. The Ambassador Car bearing No. MKU-31 on the date of accident, was insured with the opponent No. 3-National Insurance Company Ltd. In this vehicular accident dated 11-6-1991, Subhashchand Balchand Kasliwal and Sureshchandra Nandlal Doshi sustained injuries and succumbed to injuries.

(ii) It is alleged by all the appellants in this group of appeals, that the vehicle in question Ambassador Car bearing No. MKU-31, owned by the deceased Ahmed Khan s/o Chand Khan, was taken by Subhashchand Kasliwal and Sureshchandra Doshi and they were travelling with other appellants in Appeal No. 312/2000, 313/2000, 314/2000, 315/2000 and 316/2000 for attending marriage at Aurangabad. While returning from Aurangabad to Indore, the accident noted above, occurred on 11-6-1991. Suffice it to state that deceased as well as appellants in all these appeals were occupants in the said vehicle i.e. Ambassador Car No. MKU-31 at the time of the accident.

(iii) The opponent No. 2 owner of the Ambassador Car No. MKU-31, though served, did not participate in the proceedings i.e. MACP. No. 219/1991, 220/1991, 221/1991, 222/1991 and 223/1991. Even no written statement was filed by the original owner Ahmed Khan s/o Chand Khan in all these claim petitions/appeals.

(iv) The National Insurance Company Ltd. who was opponent No. 3 in all the claim petitions bearing No. 219/1991 to 223/1991, after entering appearance filed it's written statement. It is denied by the National Insurance Company Ltd. (hereinafter referred to as the Insurer for short) that deceased Surechandra Doshi who is brother-in-law of Subhashchand Kasliwal, had taken a car bearing No. MKU-31 on a friendly tour from the Original Opponent No. 2 namely Ahmed Khan s/o Chand Khan. It is also denied that deceased Sureshchandra Doshi was friend of original opponent No. 2 Ahmed Khan s/o Chand Khan. It is pleaded that the Car No. MKU-31, was taken on rental basis from owner Ahmed Khan s/o Chand Khan and therefore, Insurer is not liable to pay any compensation to the petitioners. Age of deceased Subhashchand Kasliwal as well as Sureshchandra Doshi as claimed by the claimants, was denied. Income as alleged of the deceased persons, was also denied by the Insurer. The Car driver original opponent No. 1, was driving the car MKU-31 in a moderate speed with care and caution and observing vehicular traffic rules. Claim made by the petitioners in all these petitions is very excessive and exorbitant. By amending paragraph 12A, it was pleaded by the Insurer that the liability of the Insurer is limited to the extent of Rs. 20,000/- per passenger. The opponent No. 2 has paid premium of Rs. 50/-for five passengers only. In other words, the risk of five passengers is covered under the policy. Therefore, if at all, the Hon'ble Tribunal come to the conclusion that the opponent No. 3 is liable to pay compensation to the petitioner, in that behalf, its liability is restricted to Rs. 20,000/- only per passenger, restricted to five passengers only.

(v) The learned Tribunal, considering the pleadings of the party, framed four issues. Issue No. 1 framed by the learned Tribunal was in respect of death of Sureshchandra Doshi due to rash and negligent driving of the original opponent No. 1 on 11-6-1991. Issue No. 2, was in respect of quantum of the compensation. Issue No. 3 was in respect of liability for payment of the compensation and thus in other words rash and negligent driving by the original opponent No. 1 on 11-6-1991 was the vital and important issue. Claim of the compensation was also subject-matter of the issue before the learned Tribunal. These issues were framed by the learned Tribunal on 12-6-1995.

3. I have heard the learned Counsel Mr. P.F. Patni for the appellants, the learned Counsel Mr. A.A. Joshi instructed by Mr. K M. Loya for the respondent No. 1A to 1C and the learned Counsel Mr. D.V. Soman for the respondent No. 2 in all these appeals. Undisputedly, Insured or the owner of the vehicle-legal heirs of Ahmed Khan s/o Chand Khan, did not file any appeal in this High Court, challenging any part of the award passed by the trial Court in all these claim petitions filed by the respective appellants. The Insurer or the Original owner of the vehicle namely Ahmed Khan s/o Chand Khan, or his legal heirs did not file any cross-objection in all these First Appeal Nos. 312/2000 to 316/2000. In this view of the matter, scope of these appeals, is limited, to the extent of enhancement of the amount of compensation as claimed by the appellants and apportionment regarding the amount of compensation inter-se between the respondent No. 1 and 2 before this Court, who are legal heirs of owner of the vehicle.

4. Finding on the issue of rash and negligent driving of the original opponent No. 1 on the date of the accident, recorded by the learned Tribunal has attributed finality. The death of two persons in this vehicular accident namely Subhashchand Kasliwal and Sureshchandra Doshi, is also undisputed fact. The sustainance of personal injuries by the appellants in Appeal Nos. 314/2000, 315/2000 and 316/2000, is also not seriously challenged by the Insurer. After having heard the learned Counsel for the parties, and considering these facts and circumstances, following are the points arise for my consideration:

Points for Consideration:

(i) Whether the appellant(s) is/are entitled for enhancement in amount of compensation?

(ii) Whether the order passed by the learned Tribunal, in relation to apportionment of the amount of compensation inter se between the respondent No. 1 and 2 is legal and proper?

(iii) What order?

Reasons:

(I) First Appeal No. 312/2000:

5. The learned Tribunal, has awarded an amount of Rs. 3,00,000/- towards compensation, on account of death of Sureshchandra Doshi. Deceased Sureshchandra Doshi was Advocate by profession. According to the appellants, he was about 40 years old on the date of the accident. It is alleged that Sureshchandra Doshi was earning Rs. 8,000/- to Rs. 10,000/- as an Advocate from his profession and was earning Rs. 1,00,000/- to Rs. 1,50,000/- from the agriculture. The appellants No. 2 to 5, were dependent on the earning of deceased Sureshchandra Doshi.

6. The learned Tribunal, has observed, that the appellants have not placed on record any age proof and proof relating to the income of the deceased Sureschandra Doshi. The learned Tribunal has noted the fact that deceased Sureshchandra Doshi had joined the Bar as an Advocate in the year 1971. The learned Tribunal considered the annual income of the deceased Sureshchandra Doshi, to the tune of Rs. 36,000/- per annum. Contribution of deceased Sureshchandra Doshi to the family was considered to be Rs. 24,000/- per annum and with the multiplier of 12, having regard to the age of deceased Sureshchandra Doshi, an amount of Rs. 2,88,000/- was determined towards dependency of the appellants. The learned Tribunal has awarded an amount of Rs. 12,000/- towards loss of consortium, love and affection, totalling to Rs. 3,00,000/-.

7. In MACP No. 221 of 1991, it seems that deceased Sureshchandra Doshi is survived by two daughters and two sons and applicant No. 1 widow as well. The learned Tribunal has justifiably referred to the dependency of the parents in Appeal No. 312 of 2000. The income of the deceased Sureshchandra Doshi, as an advocate and from the agriculture land, is considered to be Rs. 36,000/- per annum. It comes to about Rs. 3,000/- per month. In the absence of any proof for this income, the learned Tribunal has justifiably arrived at conclusion with little guess work. The learned Tribunal however, while working out the amount of compensation, on account of death of Sureshchandra Doshi, applied the multiplier of 12. It is pertinent to note that there is no age proof placed on record by the appellants, except the oral evidence. However, the learned Judge seems to have chosen multiplier as 12 without any explanation. While applying the multiplier, the Tribunal/Court has to arrive at a conclusion, regarding the age of deceased person, on the basis of evidence and or the facts circumstances, and other material on record. On the basis of material on record, in the present case, in my opinion, it is difficult to record any finding regarding the specific age of deceased Sureshchandra Doshi. However, it can be considered that deceased Sureshchandra Doshi, must be above 40 years of age and below 45 years, on the date of the accident. To choose the multiplier, reference, can be made to IInd Schedule of Section 163A of the Motor Vehicles Act, 1988, by way of guideline. In that case, help of II Schedule referred to under Section 163A, can be taken for working out compensation as well. The learned Counsel Mr. Patni has relied on judgment of the Apex Court in the matter of United India Insurance Company Ltd. and Ors. v. Patricia Jean Mahajan and Ors. . The Apex Court in the matter United India Insurance (supra) held that -

12. It thus makes it clear that it is for the Tribunal to arrive at an amount of compensation, which it may consider to be just in the facts and circumstances of the case. This Court however has been of the view that structured formula as provided under the Second Schedule would be a safe guide to calculate the amount of just compensation. Deviation though permissible, may only be resorted to for some special reasons to do so. So far as structured formula is concerned, it provides for a maximum multiplier of 18. The application of the multiplier depends upon the age of the deceased, etc. Again we find that the structured formula relates to a victim whose income is up to a sum of Rs. 40,000/-per annum. It may be clarified that in the accepted and prevalent method, would be applicable and has been applied. The question of setting apart 1/3rd of the income on account of expenditure on self by the deceased is also not in dispute that is to say that the amount of multiplicand shall be 2/3rds of the annual income of the deceased. The annual income of the deceased, as found by the learned Single Judge and the Division Bench, namely, 3,39,445 dollars is also not in dispute, nor the amount of dependency, 2,26,297 US dollars. The only dispute is about application of 13 as multiplier as applied by a Division Bench of the High Court following the Second Schedule to the Act.

In this view of the matter, in my view, multiplier of 15 for the age group in between 40 to 45, as mentioned in Schedule II of Section 163A of the Motor Vehicles Act can safely be accepted. Thus, the amount of compensation with multiplier of 15 would be as follows, after deducting 1/3 for personal expenses:

24000 x 15 = 3,60,000/-

The learned Tribunal has awarded an amount of Rs. 2,88,000/- towards loss of dependency, thus the claimants are entitled for enhancement of amount of Rs. 72,000/- for non-pecuniary head of the compensation. The learned Tribunal, has awarded an amount of Rs. 12,000/- towards loss of consortium and life and affection, justifiably. In other words, appellants are entitled to seek enhancement of compensation to the tune of Rs. 3,72,000/- in it's totality in this appeal, filed for the enhancement in the amount of compensation.

II) First Appeal No. 313 of 2000

This First Appeal No. 313 of 2000, is arising out of MACP No. 220 of 1991 for enhancement of the amount of Compensation. The learned Tribunal has awarded an amount of Rs. 2,35,000/- towards compensation. The learned Counsel Mr. Patni conceded of this amount of compensation as fair and proper amount of compensation awarded by the learned Tribunal. In this view of the matter, interference in the order passed by the Tribunal in MACP No. 220 of 1991, Appeal No. 313 of 2000, is not necessary. This appeal to tha: extent needs to be dismissed. The finding in respect of apportionment, is being separately recorded.

III) First Appeal No. 314 of 2000

As noted above, this is a case of personal injury. The appellant Preeti has adduced her evidence before the Tribunal. The appellant has sustained fracture to her left hand and right leg. She has also bleeding injury to her abdomen. Initially the appellant was admitted to the Cottage hospital, Shirpur, however, subsequently, was shifted to the Hospital at Indore.

Appellant was required to take treatment for the period of 15 days. The appellant was also required to incur the expenses of Rs. 40,000/-, Rs. 45,000/- towards medical treatment and other incidental expenses. Having regard to the facts and circumstances on record, the learned Tribunal awarded an amount of Rs. 5,000/- towards medical expenses, an amount of Rs. 45,000/- towards permanent disability, an amount of Rs. 15,000/- towards pain and suffering and amount of Rs. 10,000/- towards loss of future prospects and education.

10. I have perused the finding recorded by the learned Tribunal, with reference to the evidence on record. Undisputedly, the certificate showing the permanent disability to the extent of 45% is on record. In my view, the learned Tribunal has justifiably awarded compensation, on account of medical expenses, permanent disability sustained by the appellant and loss of future prospects and education. An amount of Rs. 15,000/-, which is awarded towards pain and sufferings, in my view, needs to be enhanced. From the evidence on record, it appears that the appellant is not in a position to sit on the ground with cross legs. Appellant, after accident, is also unable to lift articles. In other words, the appellant is suffering physical infirmity, in her day-to-day activities. Such physical infirmity/disability, has occurred to the applicant on account of injuries suffered by the applicant in the vehicular accident as alleged by the applicant. This physical disability, shall be borne by the applicant throughout her life. It is very difficult to work out the amount of compensation on account of pains and sufferings. However, in my view, the amount of Rs. 15,000/- awarded by the learned Tribunal, on account of pains and sufferings, needs to be moderately increased to the tune of Rs. 40,000/- considering her age, on the date of the accident. With this, the applicant shall be entitled to claim and get an amount of Rs. 1,00,000/- towards compensation. The learned Tribunal has already awarded an amount of Rs. 75,000/-, which has, attributed finality. In this view of the matter, the finding on this issue, is answered in favour of the appellant and by way of increase in amount of compensation to the tune of Rs. 25,000/- is awarded to the applicant.

IV) First Appeal No. 315 of 2000

This appeal is arising out of MACP No. 222 of 1991. The learned Tribunal, considering the documentary, as well as oral evidence on record, justifiably awarded an amount of Rs. 25,000/- towards medical expenses, Rs. 3,000/- towards loss of earning upto the date of petition and the amount of Rs. 35,000/- towards permanent disability sustained by the appellant/petitioner. The petitioner was about 50 years old as mentioned in the claim petition on the date of accident. The learned Tribunal has awarded an amount of Rs. 12,000/-towards pains and sufferings. In my view, this amount needs to be increased to Rs. 32,000/-. The learned Tribunal has referred to the certificate Exhibit 67, filed on record by the appellant. It seems that the appellant Kantabai had sustained contour lacerated wound over Rt. temporal region with fracture. Fracture was over spinal cord, Medical Officer who has examined the appellant, also found tenderness of spinal cord. Permanent disability is endorsed to the extent of 35% by the Civil Surgeon and Bhausaheb Hire Government Medical College and Hospital at Dhule. The learned Judge, as noted above, has awarded an amount of Rs. 12,000/- towards pain and sufferings. Having regard to the injuries alleged to have been sustained by the appellant Kanta, and the period of hospitalization, in my view, this amount needs to be increased to the tune of Rs. 32,000/- in it's totality.

The amount of compensation, in favour of the appellant, in it's totality, therefore would be Rs. 95,000/-.

V) First Appeal No. 316 of 2000

This appeal is arising out of MACP No. 219 of 1991. The appellant had claimed amount of Rs. 2,00,000/- towards compensation. It is personal injury claim. The learned Tribunal, has considered the claim and evidence on record. The appellant claims to have incurred an expenses of Rs. 50,000/- towards medical treatment, however, subsequently adduced documentary evidence of Rs. 22,276/-, Having regard to the evidence on record, the facts and circumstances, the learned Trial Judge has justifiably awarded an amount of Rs. 25,000/-towards medical expenditure. Loss of earning upto the date of filing of the petition is awarded to the tune of Rs. 10,000/- by the learned Tribunal. The permanent disability, according to the appellant is sustained by the appellant to the extent of 40%. The learned Tribunal has awarded an amount of Rs. 40,000/-towards permanent disability. The learned Tribunal has awarded an amount of Rs. 25,000/- for pain and sufferings. In my opinion, grant of compensation to the tune of Rs. 25,000/- for medical bills, Rs. 10,000/- towards loss of earning upto the date of filing of the petition and Rs. 40,000/- for permanent disability, is legal, proper and in accordance with the evidence led on benalf of the applicant. The disability alleged to have been suffered by the appellant is to the extent of 40%. Medical certificate is on record along with list Exhibit 58. Appellant Pramodini, as noted above has sustained injuries in vehicular accident. The injury certificate is on record, issued by the Medical Officer, Cottage Hospital, Shirpur, Dist. Dhule. Appellant Pramodini seems to have suffered five injuries as noted in the injury certificate on record along with the list Exhibit 42. Out of these five injuries, appellant has sustained two grievous injuries and a fracture. From the evidence of the appellant Pramodini, it appears that she is suffering from backache and head-ache. According to the appellant Pramodini, it is difficult for her after the accident to perform her normal routine work as she was performing prior to the accident True it is that no medical officer is examined or any other evidence is brought on record. However, having regard to the medical certificates, which are placed on record, and the oral evidence of Pramodini, in my view, grant of amount of Rs. 25,000/- towards pain and suffering, needs to be increased to Rs. 36,000/-. In other words, increase will be of Rs. 11,000/-. Thus, appellant is entitled for enhancement of Rs. 11,000/- on account of amount of compensation.

13. Point No. 2:

First Appeal Nos. 312/2000; 313/2000.314/2000 and 315/2000.

The learned Tribunal in paragraph No. 25 of the judgment, has recorded a finding regarding apportionment of the amount of compensation. The learned Tribunal has referred to the Indian Tariff and observed that risk of five passengers was covered and the premium of Rs. 10/- per passenger was collected by the Insurer. According to the learned Tribunal, the liability of the original opponent No. 3, Insurance Company, therefore, is limited to Rs. 20,000/- per passenger as per the said Indian tariff. Accordingly, the learned Tribunal has directed to make payment of Rs. 20,000/- per passenger towards amount of compensation by the original opponent No. 3 Insurer and rest of the amount, i.e. 80% amount was directed to be paid by the owner of the vehicle in all the claim petitions.

14. The learned Counsel Mr. Soman, has invited my attention to the document, which is placed on record. The learned Tribunal, has in paragraph No. 25 of the judgment, has observed that "The opponent No. 3 has placed on record, a copy of the policy of the insurance along with list Exhibit 98. I find from the record that Exhibit 98 is an application for production made by the advocate for the original opponent No. 3 (Insurer). In this application, it is mentioned that at. the time of the accident, policy of vehicle i.e. MKU-31, was bearing No. 320102/6100954/90. The period of policy is mentioned in the said application Exhibit 98 with effect from 11-12-1990 or 10-12-1991. It is further mentioned in the said application that certified copy of the said policy and Tariff Advisory Committee rate list (Government Regulations), are being filed with this application Exhibit-98, and is dated 18-11-1999. The learned Tribunal has allowed the production of documents filed along with this application Exhibit 98 filed on behalf of the advocate for original opponent No. 3 (Insurer). I have also perused the list of documents along with application Exhibit 98. List is Exhibited as Exhibit 99. In the list, it is referred that certified copy of the insurance policy of MKU-31 for the period of 11-12-1990 to 10-11-1991 is being produced. At serial number 2 is another document, which is referred to as Tariff Advisory Committee's rate list dated 1-8-1999. Along with this application Exhibit 98 and list Exhibit 99. I find on the top of document, endorsement as "Certified Copy". It is not mentioned on this document that it is cover note and/or Insurance policy in relation to the said vehicle Ambassador Car bearing No. MKU-31. According to the learned Counsel Mr. Soman, this document is a cover note. The learned Counsel Mr. Patni also admits that this document is a cover note. This document is not Exhibited in the trial Court. However, the learned Tribunal as noted above, in paragraph No. 25, observed that "the opponent No. 3 has placed on record copy of the policy of insurance along with list at Exhibit 98". In my opinion, this document cannot be said to be insurance policy. Secondly, this document is not Exhibited. Thirdly, the learned Tribunal has not considered the necessity of Exhibition of this document. However, I find that copy of the cover note is also placed on record on behalf of the claimants. This document obviously is not Exhibited and marked as Article "D". From this document it appears that it is a cover note No. ARO/MO/TC/98516. This document as noted above, is not Exhibited. However, since it is filed on behalf of the claimants, in my view, this document can be read in evidence without formal proof. In this view of the matter, I would prefer to consider this document, which is marked as Article "D" in relation to the submission of the learned Advocate Mr. Soman for the Insurance Company and Mr. Patni for the appellant. The document marked as Article "D" (hereinafter referred to as Cover note), undisputedly is a cover note. Fact remains that contract of insurance between the insurer and insured is not brought on record by the insurer or the insured. According to Mr. Soman, this policy is third party policy and the amount of Rs. 160/- towards third party insurance premium and amount of Rs. 15/- towards premium of insurance of five passengers along with some payment of premium towards one driver totalling to Rs. 225/-, was paid by the insured. Policy period is also Exhibited from this cover note.

According to the learned Counsel Mr. Soman, Sureshchandra Doshi and Subhashchanda Kasliwal and three appellants, namely Kantabai, Pramodini and Preeti were the occupants of this vehicle i.e. Ambassador Car No. MKU-31. According to Mr. Soman, the Indian Motor Tariff, dated 1-8-1999, is applicable. He has placed on record the said tariff along with application Exhibit 98. He has pointed from the said tariff that in case of payment of Rs. 5/- per passenger, travelling in the private car, an amount of Rs. 10,000/- can be said to have been insured. Mr. Soman, referring to the cover note and the tariff, submits that since Rs. 10/- was the payment of premium per person made by the Insurer, these occupants/passengers, are entitled for Rs. 20,000/- each from the Insurance Company and owner of the vehicle is liable and responsible to make payment of remaining amount of compensation, if awarded by the learned Tribunal. In other words, according to the learned Counsel Mr. Soman, liability of the Insurance Company is limited to Rs. 20,000/- per occupant/per passenger travelling in the said vehicle at the time of the accident. This argument on behalf of the Insurer was also advanced before the learned Tribunal and has been accepted and accordingly, order for apportionment of the amount of compensation as noted above, is made by the Tribunal.

15. The insurance is a matter of contract between the Insurance Company and the insured. Parties to the contract may agree upon variety of terms and conditions. Insurance Company may offer different policies to the insured namely, comprehensive insurance policy, third party insurance policy and Act policy. The owner of the vehicle in a given case, may have an insurance of his vehicle either comprehensively or third party, and along with it, insurance of the driver of the vehicle if employed by the owner even in relation to the responsibility of the employer arising out of the provisions of Workmen's Compensation Act. The owner of the vehicle similarly, may opt for the insurance of the passengers of vehicle, It also depends upon nature of the vehicle and use of the vehicle. If it is a goods carrier, owner of the vehicle may insure his regular employees, employed for transportation, loading, unloading or any other incidental work allotted to these workers and who are supposed to travel with the vehicle. Thus, the policy of the vehicle, may differ from vehicle to vehicle and owner to owner. Needless to say that the parties i.e. insurer and insured are bound down by the terms and conditions of the policy for the relevant period.

16. According to the contention of Mr. Patni, the learned Counsel for the appellant, the deceased Sureshchandra Doshi and Subhashchand Kasliwal and three other injured appellants were travelling in the said ambassador car. Even accepting the document Exhibit D Cover note, it shows that premium of Rs. 10/-per passenger was accepted by the Insurance Company. With this, the learned Counsel Mr. Patni submits that once the premium towards five passengers was accepted, by the Insurance Company, the liability cannot be claimed to be limited liability to pay any sum of money. According to him, considering the provision laid down under Section 147 after amendment, that limited liability becomes full liability of the Insurance Company. Therefore, according to the learned Counsel Mr. Patni, the applicant/appellants are entitled to seek compensation jointly and severally against the owner and Insurance Company, in its entirety.

17. The learned Counsel Mr. Soman, submits that the persons travelling in the vehicle/occupants, were five in number. The document cover note Article "D", shows endorsement as third party policy and payment of Rs. 10/- per passenger. The liability on account of death or bodily injury to such passengers to the extent of Rs. 20,000/- can be saddled upon the insurer. Mr. Soman also submits that third party policy means the deceased or injured person, who was not travelling in the vehicle and who has suffered accident and injured or succumb to such injuries.

18. The learned Counsel Mr. Patni also relies upon the judgment of the Apex Court in the matter of National Insurance Company v. Behari Lal and Ors. 2000 AIR SCW 3352. The Apex Court held in paragraph 13:

13. From the above discussion, it follows that the proviso to Sub-section (2) of Section 147 does not limit the liability of Insurance Companies to payment of compensation to the extent specified in the policy of insurance in terms of Section 95(2) of the Old Act which is in force before the commencement of the New Act for a period of four months after commencement of the New Act or till the date of expiry of such a policy, whichever is earlier, In this view of the matter, we endorse the view taken by the Division Bench of the High Court of Gujarat in Kacharabhai L. Limbachia v. Ratansinh J. Rathod-Patelia and by the Division Bench of the Punjab and Haryana High Court in National Insurance Company Ltd. v. Puja Roller Flour Mills (Pvt.) Ltd. 1997(116) Pun L R 199.

19. Mr. Patni, the learned Counsel also relied on judgment of the Apex Court in the matter of New India Assurance Company v. Satpal Singh and Ors. . The Apex Court held in paragraph No. 10:

10. The proviso to the said sub-section is not relevant here as it pertains to death or bodily injury to the employee mentioned therein. Sub-section (2) provides that a policy of insurance shall cover any liability incurred in respect of any accident, up to the following limits, namely:

(a) save as provided in Clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

Hence, under Sub-section (2), there is no upper limitation for the insurer regarding the amount of compensation awarded in respect of death or bodily injury of a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle. The legislature has also taken care of even the policies which were in force on the date of commencement of the Act by specifically providing that any policy of insurance containing any limit regarding the insurer's liability shall continue to be effective for a period of four months from commencement of the Act or till the date of expiry of such policy, whichever is earlier. This means, after the said period of four months, a new insurance policy consistent with the new Act is required to be obtained.

20. Mr. Patni, also relied on a Division Bench judgment of this Court in the matter of Ajay Ramesh Bhoir petitioner v. Avinash Shantaram Jadial Shiravane and Anr. respondents reported in 2004(2) Mh.L.J. 725 : 2004(2) BCR 36. The Division Bench of this Court held in paragraph 3:

3. The position has completely been changed when the new M.V. Act, 1988 came into force. In Section 147 of the new Act there is no limit in certain cases as contained in Clause (ii) of the old Act. The corresponding provision in the old Act contains three clauses whereas now there are only two clauses. What was dropped in the new Act is the clause which excluded the coverage for death or bodily injury to persons carried in or upon the vehicle. That means such liability cannot now be excluded from the policy. Therefore when the policy of insurance is an "Act policy" the Insurance Company will not stand absolved from the liability in respect of the pillion rider of the motor cycle.

21. The learned Counsel Mr. D.V. Soman relied on judgment of the Apex Court in the matter of Dr. T.V. Jose v. Chacko P.M. alias Thankachan and Ors. reported in 2001(3) ICC 259 (SC).

22. In the matter of National Insurance Company (2000) AIR SCW 3352, the date of accident, was October, 27, 1989 and it was a case of driving negligently by the respondent No. 2 met with the accident, which resulted in the death of one passenger. From the judgment in the matter of National Insurance (supra), it is not clear as to whether the said bus was a public transport vehicle or otherwise. The contention was raised on behalf of the Insurance Company, that policy was issued under the old Act and from the provision of new Act, liability was limited only to Rs. 15,000/- for the passenger travelling in the bus. In the facts and circumstances of this case, the Apex Court, as noted above, considered the provisions laid down under Section 95(2) of the old Act and 147 of the new Act. Undisputedly, facts in this reported judgment and the case on hand are different.

23. Another judgment relied on by Advocate Mr. Patni, is in the matter of New India Assurance Company v. Satpal Singh , facts were that a ten year old girl met with the death with a truck accident, which occurred on 11-3-1990. The learned Tribunal awarded an amount of Rs. 25,000/- to the claimants holding of the truck liable to pay the compensation amount. New India Assurance Company has been directed to make the payment good as the vehicle was within the insurance cover by the insurance policy issued by the Company. Claimants and Insurance Company challenged the award. The Apex Court interpreting the provision laid down under Section 147 Sub-section (2), held that under Sub-section (2) there is no limit for the insured regarding the amount of compensation awarded in respect of death or bodily injury of the victim of the accident. It is, therefore apparent that the limited liability contained in the old Act has been removed and the liability incurred to any person including the owner or his authorised representative carried in the vehicle.

24. Mr. Patni, the learned Counsel for the appellant has relied on Division Bench Judgment of this Court in the matter or Ajay Ramesh Bhoir petitioner v. Avinash Shantaram Jadial Shiravane and Anr. respondent reported in 2004(2) Mh.LJ. 725 : 2004(2) BCR 36. Date of accident is September 7, 2002. The petitioner, therein, was travelling on a pillion on motorcycle MH-04 AV-7790, being driven by the respondent No. 1. The petitioner fell down from motorcycle and sustained fracture of skull (right parietal) and fracture and dislocation of maxillary zygmoid joint. The motorcycle was insured with the National Insurance Company, The contention raised on behalf of the Insurance Company was that under the insurance policy, the pillion rider was not covered. The learned Tribunal after hearing the parties, in application under Section 140 of the Motor Vehicles Act, directed the respondent No. 1 (owner of the vehicle) to pay the compensation of Rs. 25,000/- to the petitioner with interest @ 9% p.a. but rejected the application as against the Insurance Company holding that the owner has not paid premium to cover the pillion rider. In this premise, the Division Bench of this Court, in paragraph 3 of the judgment, considered the provision laid down under Section 147 of the Motor Vehicles Act, 1988 and held that "since such liability cannot now be excluded from the policy, therefore, when the policy of insurance is an Act policy, the Insurance Company will not stand absolved from the liability in respect of the pillion rider of the motor cycle." In relation to facts, there is similarity upto some extent, in the facts of the cited judgment, 2004(2) BCR 36 and the case on hand. In the case on hand, five persons were occupants travelling in the vehicle. In the cited judgment, injured was the pillion rider of motor bike.

25. The judgment cited by Mr. Soman, the learned Counsel for the Insurance Company, refers to the word "passenger". In this matter, of Dr. T.V. Jose (supra). It was a car bearing No. KLO 4828 driven by the first respondent met with accident on 9-4-1987. One of the passenger Anthony was seriously injured in the said accident. In this case also, the first sheet of policy is on record. Mr. Soman explains that first sheet means cover note. Ultimately, the Apex Court held that the passenger Anthony, being not third party, was not covered in the Act policy and ultimately, therefore, Insurance Company was absolved. Status of Anthony Alexender as passenger, is not clarified. However, as noted above, the Apex Court, has held that it was a third party policy and said passenger Anthony was not covered.

The learned Counsel Mr. Soman has referred to the judgment of the Apex Court in the matter of New India Assurance Company Ltd. v. Asha Rani and Ors. 2003 ACJ 1. The Apex Court held that "The judgment of this Court in Satpal Singh's case, therefore, must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly, are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury." The question before the Apex Court in this case was whether the insurer is liable to pay the compensation to the dependent of the deceased, while the deceased passenger was travelling in a goods vehicle and on account of the accident, passenger died or suffered bodily injury. As noted above, the Apex Court, ultimately held that the judgment of the Apex Court in the matter of Satpal Singh's case must be held to have not been correctly decided.

26. Mr. Soman, the learned Counsel has also referred to the judgment of this Court in the matter of National Insurance Company Ltd. v. Prakash Sakharam Dudhankar and Ors. reported in 2006(1) Mh.L.J. 601 : 2006(1) BCR 412. From paragraph 2 of this judgment, it appears that the accident in question, occurred on 9-10-1992. Deceased person namely Narayan has sustained injuries arising out of use of motor vehicle i.e. tipper bearing Registration No. MH-31/6526. Deceased Narayan was travelling in the aforesaid goods vehicle i.e. tipper truck on the date of the accident. Insurance Company had raised a plea that Insurance Company would not be liable to pay compensation for such gratuitous person travelling in goods vehicle. It was contended on behalf of the Insurance Company that it is the owner of the motor vehicle involved in the accident, who is liable to pay compensation since, it was admittedly a gratuitous passenger in goods vehicle. Ultimately, the learned Single Judge has accepted the contention raised on behalf of the Insurance Company and excluded the insurance company. Facts being different, in my opinion, this judgment is not helpful to the respondent Insurance Company in the present case.

27. Persons travelling in the car, can be said to be occupants of the said vehicle at the time of the accident. Article "D" cover note, which is on record, do indicate that it is a third party insurance policy. This cover note Article "D" policy shows that premium for five passengers, Rs. 10/- each was paid by the insured to the insurer. The fact remains that premium to the extent of Rs. 10/-was accepted by the Insurance Company and claim of limited liability to the extent of Rs. 20,000/- per passenger, was only admitted by the Insurance Company. Thus, it is a case after amendment to the Motor Vehicles Act, 1988. In other words, earlier Section 95 has been substituted by Section 147 in the said Motor Vehicles Act, 1988. As held by the Apex Court, Section 147, has now raised the limited liability. This is not disputed by the learned Counsel Mr. Soman for the Insurance Company. His only argument is that since, it is a third party insurance policy, and the occupants, were not third party, Insurance Company is not liable. In my view, it is difficult to accept this argument for two reasons, i) That contract of insurance is not on record. Apart from that, cover note is led in evidence and from cover note payment of premium of Rs. 10/- per passenger is accepted by the Insurance Company. In this view of the matter, once additional premium is accepted by the Insurance Company, especially for the passengers, in my view, the Insurance Company cannot claim restricted or limited liability. Provision laid down under Section 147, if read in it's entirety, it cannot be said that occupants, are left out of consideration. Reason according to me, is that a vehicle or car privately owned by any person, in a given fact situation, may be used by some other person, than the owner of the said vehicle. In such case, if such vehicle is being used not by the owner, but by some other person, authorisedly and with the permission of the owner, in that circumstance, status of the said person, can be said to be a passenger, travelling in the said vehicle. Such person(s) i.e. passenger or passengers, cannot be left out of the coverage of insurance. Precisely, therefore, the Insurance Company has accepted and charged the extra premium for five passengers. The clause of limited liability, which was available under Section 95 of the old Act, is no more available; in Motor Vehicle Act, 1988, applicable on the date of the accident.

28. In these facts and circumstances, in my opinion, the acceptance of premium for passengers, cast a responsibility upon the Insurance Company to make payment of compensation. Since I have accepted the status of the injured and deceased as passengers, in my view, they cannot be treated as "third parties". However, though there was a third party policy, still, in my opinion, Insurance Company is liable and responsible to make the payment of compensation for acceptance of premium of Rs. 50/- for five passengers. The Division Bench judgment of this Court, to this extent and on the similarity of the fact that injured in that case was a pillion rider and injured in the present case are occupant of the vehicle, according to me has the application to some extent to the facts of the present case. In this view of the matter, apportionment made by the learned Tribunal directing the Insurance Company to make payment of Rs. 20,000/- per passenger only and payment of rest of the amount of compensation to be made by the respondent No. 1, needs to be quashed and set aside. The insured and insurer are jointly and severally liable to make the payment of entire amount of compensation in all these appeals.

29. The learned Counsel for the parties are heard on the point of interest also. The order impugned in all these appeals, is identical in it's nature except change in amount of compensation. The learned Tribunal in all these matters, held jointly and severally liable the respondent No. 2(A) to 2(C) and 3 for payment of compensation. The liability of respondent No. 3 in the claim petition is limited to Rs. 20,000/-. According to the learned Counsel Mr. Soman, this operative part in all the matters has to be read in it's entirety. In that case, in the absence of any cross-objection or appeal on behalf of the Insurance Company, he urged to reduce the rate of interest awarded by the Tribunal @ 12% p.a. on the amount of compensation awarded by the Tribunal. Mr. Patni, the learned Counsel for the appellant in all these appeals, submits that first two parts of the orders, i.e. operative part of the judgment in all these claim petitions, speaks about the award of compensation with interest and payment of the cost; third is separable part of the operative order, which restricts the liability of the Insurance Company to Rs. 20,000/-. His challenge is only to this part of the order. Interest awarded by the Tribunal is @ 12% p.a. Mr. Patni, has also referred to the judgment of the Apex Court reported in Choudhary Sahu (dead) by LRs. v. State of Bihar, , under Order 41, Rule 33 of the Code of Civil Procedure.

30. After hearing the learned Counsel for the parties, and having regard to the text of the operative part of the order in all these claim petitions made by the Tribunal, in my view, order cannot be separately read as contended by the learned Counsel Mr. Patni. Though, the original claim was filed by the appellants, for enhancement, it is because of the text of the order, rate of the interest can be considered by this Court. In my view, therefore, Mr. Soman is justified in saying that order needs to be read in its entirety and in that situation, according to me, his request for reducing the rate of interest can be considered.

31. In this view of the matter, following is the order in all these matters:

I) F.A. 312/2000:

First Appeal No. 312 of 2000 is partly allowed. Compensation by way of enhancement to the extent of Rs. 72,000/- is granted in favour of the appellant/claimant. The interest on the entire amount of compensation i.e. Rs. 3,00,000/- awarded by the learned Tribunal and enhancement of Rs. 72,000/-made by this Court, shall be at the rate of @ 9% p.a. from the date of the claim petition till the deposit of the amount of compensation in the Court. The entire amount of compensation of Rs. 3,72,000/- shall be paid jointly and severally by the respondent No. 1 and 2 in the appeal.

The learned Counsel Mr. Patni admits the contention of Mr. Soman, the learned Counsel for the Insurance Company that claimants have received an amount of Rs. 20,000/-. This shall be considered by the learned Tribunal/Executing Court while considering the Executing proceedings. Looking to the nature of the proceedings, no order as to costs, so far this appeal is concerned.

II) F.A. 313/2000:

First Appeal No. 313 of 2000, an appeal for enhancement of the amount of compensation is partly dismissed. The learned Tribunal has awarded an amount of Rs. 2,35,000/- with 12% interest p.a. from the date of application. This order is modified to the extent that the respondent No. 1 and 2 in this appeal shall make the payment of amount of compensation to the tune of Rs. 2,35,000/- jointly and severally with interest @ 9% p.a. from the date of petition till the deposit of amount. No order as to costs in this appeal.

III) F.A. 314/2000

This appeal is also partly allowed. Amount of compensation to the extent of Rs. 25,000/- by way of enhancement is awarded. The entire amount of compensation i.e. to the extent of Rs. 1,00,000/- shall be paid by the respondent Nos. 1 and 2 jointly and severally to the claimants. The entire amount of compensation shall carry simple interest @ 9% p.a. from the date of petition till realisation of the amount. Parties shall bear their own costs in this appeal.

IV) F.A. 315/2000

This appeal is also partly allowed. By way of enhancement, an amount of Rs. 20,000/- is directed to be paid by the respondent Nos. 1 and 2 jointly and severally to the claimants. Thus total amount of compensation to the tune of Rs.. 95,000/- to be paid by the respondent Nos. 1 and 2 jointly and severally to the claimants. This entire amount of compensation to the tune of Rs. 95,000/- shall carry interest @ 9% p.a. from the date of filing of the claim petition till realisation. Parties shall bear their own costs in this appeal.

V) F.A. 316/2000

This appeal is also partly allowed. Amount of Rs. 11,000/- is enhanced on account of compensation to be paid by the respondent Nos. 1 and 2 jointly and severally. Thus, entire amount of compensation to the tune of Rs. 1,11,000/- shall be paid by the respondent Nos. 1 and 2 jointly and severally to the claimants. This amount of compensation shall carry simple interest @ 9% p.a. from the date of filing of the application till realisation. The parties shall bear their own costs in this appeal.

32. Both the learned Counsel Mr. Patni and Mr. Soman submit that in some appeals, insurance company has deposited a sum on account of No Fault liability or an amount of Rs. 20,000/-, a limited liability as held by the learned Tribunal. Both of them are not sure regarding the number of claim petition or appeals. Suffice it to note that the executing Court, shall on satisfaction regarding payment/deposit of such amount of No Fault Liability, or on account of passing of the award by the Tribunal, shall adjust such amount towards the final award passed by this Court.

33. Mr. Soman, the learned Counsel, for Insurer, seeks 3 months time to deposit the amount and prays for suspension of the order in all these matters. Both the learned Counsel are heard on this point. Mr. Patni has referred to Section 168 of the Motor Vehicles Act, 1988. He also submits that claimants have not received the amount of compensation since 1991. In these facts, I am inclined to grant stay to the order passed by this Court, in all these appeals for a period of 8 weeks. This common judgment, therefore, shall remain suspended, for eight weeks from today.