R.D. Shukla, J.

1. The common questions of fact and law (excepting the quantum) are involved in Misc. Appeal Nos. 296 of 1986, 297 of 1986, 298 of 1986, 325 of 1986, 326 of 1986, 331 of 1986 and 332 of 1986, hence, the same, excepting the quantum, are being decided by this order.

2. Misc. Appeal No. 296 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 93 of 1981; Misc. Appeal No. 298 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 89 of 1981; Misc. Appeal No. 325 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 90 of 1981; Misc. Appeal No. 326 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 95 of 1981; Misc. Appeal No. 330 of 1986 arises out of the judgment and award dated 12.8.1986, passed in Claim Case No. 1 of 14.8.1986, passed in Claim Case No. 3 of 1982; Misc. Appeal No. 297 of 1986 arises out of the judgment and award dated 1982; Misc. Appeal No. 331 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 97 of 1981 and Misc. Appeal No. 332 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 96, by Member, Motor Accidents Claims Tribunal, West Nimar (Mandleshwar), whereby various amounts have been awarded as compensation to the claimants with a further direction that the insurance company is not liable to make payments as the agreement of insurance was void.

3. Brief history of the case is that motor bus No. MPO 3142 was being taken from village Nanda to Katargaon by respondent Ishaque Khan, who was the driver. The motor bus was owned by one Kartar Singh. The respondent Nos. 2 (a), (b), (c) and (d) are legal representatives of Kartar Singh. The motor bus was insured with respondent No. 3, the New India Assurance Co. Ltd. The respondent No. 4 was managing the affairs and looking after the motor bus. The driver Ishaque Khan while taking the bus as above reached the bank of river Malan, which is a tributary of river Narmada, it had a culvert. The water was flowing over the bridge with strong current. Despite objections by the passengers the motor bus driver plunged the bus in the water. The moment bus reached almost in the middle it was swept away with strong current of water. Some of the passengers could swim across and were saved by Home Guard personnel. Many passengers were swept away by current of the water and their bodies could also not be recovered. Mangi Lal , the husband of claimant-appellant No. 1 and father of claimant-appellant Nos. 2 to 8 who was also related as son to claimant-appellant Nos. 9 and 10 was also swept away in that strong current of water. His body could not be recovered.

4. Mangi Lal was the bread-winner of the family. He was earning nearly Rs. 10/- per day and he was aged about 40 years. The claimants, therefore, prayed for a compensation of Rs. 85,500/-.

The respondents contested the claim and pleaded that there was no negligence of driver. It was vis major. The river Malan has a dam in the upper stream. The gates of the same were opened without notice to the residents of the area. The water current rose all of a sudden and took the bus in its grip and swept it away. The fact of Mangi Lal being a passenger in the bus was also denied. It was also contended that the bus was sold to respondent No. 4 without intimation to insurance company. It was also pleaded that the driver had no valid licence and the policy was purchased in the name of a dead person Kartar Singh and, therefore, the contract is void and company is not liable to make payment.

5. The learned Tribunal held that the accident happened due to negligent driving of the vehicle. Mangi Lal was a passenger in the bus, who died in the accident. Age of Mangi Lal was accepted to be 45 years. The dependency was assessed to Rs. 5/- per day, i.e., Rs. 1,800/- per year. By applying a multiplier of 10, Rs. 18,000/- was awarded as general damages and Rs. 3,000/- was awarded as damages for loss of consortium. As such a total of Rs: 21,000/- was awarded.

This accident occurred on 9.8.1981. Kartar Singh died somewhere in 1975. The premium was paid by the heirs of Kartar Singh, i.e., respondent Nos. 2 (a) to 2 (d), but taking it to be a contract with a dead person and that being void, the insurance company was exonerated of its liability. While granting awards of various amounts in all other cases referred above the insurance company was completely exonerated of its liability, as such, all the claimants have filed appeals contesting this finding of the Tribunal and further for enhancement of amount of compensation.

6. It appears no cross-appeal or cross-objections have been filed by respondents.

7. The contention of the learned Counsel for the appellants is that it is the motor bus that was insured. Insurance company having accepted the premium for all the years including for the year of accident cannot be allowed to raise this bogey of objection as to agreement with a dead person. The alternative contention of the learned Counsel for the appellants is that if any misrepresentation or concealment of fact has been done by respondent Nos. 2 (a) to 2 (d) and respondent No. 4, insurance company can recover the amount paid to claimants from these persons but the claimants cannot be deprived of their right of recovering the amount of compensation from the insurance company.

8. The third contention of the learned Counsel for the appellants is that the compensation has been estimated on the lower side as multiplier of 10 has been used and the same ought to have been of 15.

Learned counsel for the respondent, on the other hand, first tried to assail the fact of negligence in driving and thereafter submitted that since the agreement with dead person is void and, therefore, the insurance company is not liable to make payments. It has also been submitted that the primary responsibility of payment of compensation is on the owner of the vehicle and the insurer is liable to make good the loss to the insured, but the contract being void the same cannot be directed to be done by the insurance company.

9. There is no dispute that Kartar Singh died somewhere in 1975 and the accident occurred in 1981. The premium of insurance policy was being paid all along by the respondent Nos. 2 (a) to 2 (d), i.e., heirs of Kartar Singh. Respondent No. 4 was looking after and managing the affairs after the death of Kartar Singh. Insurance company accepted the premium all along and issued valid insurance policy for the year of accident.

10. So far as the fact of negligent driving is concerned, the same has not been seriously challenged as taking the vehicle through a culvert overflowing with the water itself shows that the driver took the risk with the expectation that nothing untoward shall happen and if in that situation the bus was swept away by strong current of water, the natural inference would be that driver acted rashly and drove the vehicle negligently without caring for the safety of passengers in the vehicle. In such a situation respondents cannot be allowed to say that it was a vis major. Thus, the finding about rash and negligent driving has rightly been arrived at. We also confirm the same.

11. Now, so far as the liability of the insurance company is concerned, Section 94 (new Section 146) of the Motor Vehicles Act, 1939, makes a provision of compulsory insurance for covering the third party risk, which reads as follows:

146. No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.

12. From the plain reading of the section it is apparent that third party insurance in all cases of use of vehicle is necessary. Admittedly Kartar Singh died somewhere in the year 1975. The insurance company had all along been accepting the premium for the insurance of motor bus and it had accepted the premium for the year of accident also. The accident occurred on 9.8.1981. The insurance company had collected premium for the period 11.6.1981 to 10.6.1982. The insurance company has got a number of officers and employees to check and verify the vehicle and the owner of the vehicle. Now having accepted the premium for the insurance of the vehicle the insurance company cannot be allowed to say that it is not liable to compensate the persons who have been injured or who died in the accident. The contention of the learned Counsel for the respondents who was supporting the finding of the Tribunal submitted that the vehicle was owned by Kartar Singh and since he had died there is end of liability of the insurer in respect of the motor bus.

13. We are not persuaded to uphold this argument though the Tribunal was. There is nothing in the policy issued in the name of Kartar Singh stating that it is purely personal to him. On the other hand, on plain reading of the condition of the policy it is clear that the coverage is that of the motor bus and not the insured. Section 94 of the Motor Vehicles Act insists for the compulsory insurance against the third party risk and prohibits user of vehicle in a public place unless there is a policy of insurance. The words "unless there is in force in relation to the use of the vehicle of that person.. .a policy of insurance" go to show that it is the vehicle that is required to be insured and not the person or the owner of the vehicle and in such a situation the insurance company cannot escape its liability. A similar argument was advanced before the High Court of Andhra Pradesh in a case reported in Haji Zakaria v. Naoshir Cama 1976 ACT 320 (AP), but the same was repelled and it was held that the insurance company is liable to compensate third party.

14. Vehicular accidents have increased and the question that arises is as to whether sufferers from vehicular accident are entitled under law to get something for their survival or should be left without redress. The following observations of Lord Denning, M.R., in the case on Launchbury v. Morgans (1971) 2 QB 245, are equally relevant for our case:

A motor vehicle is a powerful engine of death and destruction. It is capable of doing much damage to persons and to property unless it is driven with due care and attention. As the number of cars increases and as their speeds get faster, so the danger grows. More and more people are killed. More and more are injured. More and more property is damaged. The sufferers ought not to be left without redress. So Parliament and Judges have done their best to see that they are compensated for their loss.

(Emphasis added)

15. The benevolent object of the legislation has been considered by the Supreme Court in a number of cases. We would refer to the decision of the Supreme Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan : AIR 1987 SC 1184 (H.N.): : 1987 ACJ 411 (SC), which reads as follows:

In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Section 94 requiring the owner of the motor vehicle using it in a public place has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered from the person held liable who may not have the recources. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risks.

16. In our considered opinion, therefore, despite the fact that Kartar Singh was dead at the time of accident and the premium was paid by his legal heirs, the insurance company is liable to pay compensation to the heirs of the deceased and to the injured in the accident. If they are aggrieved by the concealment of fact or misrepresentation or fraud, if any, they can make a grievance before the appropriate forum separately, but they cannot escape their liability of payment of compensation by raising this bogey of agreement being void.

17. The next point that arises for determination in this case is that as to whether Mangi Lal died in the accident Learned Tribunal, on the basis of evidence of Mangi Lal s/o Dharmya, AW 2, has held that deceased Mangi Lal was also travelling along with him in that bus which was swept away with the current of water. He has further stated that the body of Mangi Lal could not be found. There is nothing to disbelieve this witness. It has, therefore, rightly been held by the Tribunal that Mangi Lal died in the accident.

18. Now, the point that arises for determination in the case is that what would be the just compensation in the case and as to whether the amount deserves to be enhanced

Normally for determining the compensation either the method of capitalisation of net income or choosing the multiplier appropriate to the age of the deceased will be the appropriate method. But, the method of aggregating the total expected income for the remainder of the life-expectancy with appropriate deductions towards uncertainties of life and for lump sum payments is now considered unscientific and is virtually obsolete and, therefore, taking the yearly income and the loss of the dependency of the claimants and its capitalisation by using a multiplier having regard to the age of the deceased will be the appropriate method for estimating the compensation. [National Insurance Co. Ltd. v. Swaranlata Das (SC)].

19. Learned Tribunal has, on the basis of statement of Mangi Lal and the averments in the petition, held that Mangi Lal was earning Rs. 10/- per day. However, the dependency has been assessed to Rs. 5/- per day only on the ground that Nani Bai was also earning as a labourer. Looking to the number of the family members, specially as the claimant-appellant Nos. 3 to 8 are minors and Nos. 9 and 10 parents of deceased as also the father Onkar (claimant No. 9) is a person aged about 75 years, who may not be able to work, the dependency ought to have been assessed to Rs. 6/- per day (in the special facts and circumstances of this case). Thus, the dependency of the claimants would come to Rs. ISO/- per month and Rs. 2,160/- per year. The age of the deceased Mangi Lal has been accepted to be 45 years. The learned Tribunal has adopted multiplier of 10. Mangi Lal , being a labourer, would have worked upto the age of 60 years and in such a situation a multiplier of 13 ought to have been applied [Learned Tribunal itself had applied multiplier of 13 in other case, that is, in Claim Case No. 89 of 1981 (new No. 66 of 1986)]. Thus, the general damages payable to the claimant would come to Rs. 28,080/-, which may be rounded to Rs. 28,000/-. The learned Tribunal awarded Rs. 3,000/- for loss of consortium to Nani Bai, but nothing has been awarded for the loss of love and affection to other claimants, i.e., son, daughters and parents. A separate amount of Rs. 5,000/- deserves to be awarded on that count as well. Thus, the claimants would be entitled to a total compensation of Rs. 28,000/- + Rs. 3,000/-+ Rs. 5,000/- = Rs. 36,000/- in all, with interest at the rate of 12 per cent per annum from the date of application till realisation of the same, which shall be recovered from the respondents jointly and severally.

20. As to the mode of payment, we would like to observe that Section 168 of Motor Vehicles Act specifically empowers the Tribunal to award just compensation. Just compensation would include payment of compensation by periodical instalments.

In fact all the insurance companies are paying compensations from the money collected from the public, i.e., policy holders. This is a public money owned by the society. Thus, it is the society who is giving protection to the injured persons and in such a situation while directing the mode of payment the Tribunals are required to see that the compensation, specially the compensation awarded in favour of the minors, are secured in such a way so that the minors may get payments periodically till they gain majority. Apart from the aforesaid aspects, it should be noted that because of the death of the bread-earner of the family the entire family suffers. The task of approaching the law courts by engaging lawyers for filing the application for compensation may also sometimes add to their miseries. The following observations of their Lordships of the Supreme Court in a case of Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 501 (SC), gives a guideline in this respect, which reads as under:

We are, therefore, of the opinion that the ambiguity in the language used by the legislature in the opening part of Section 95 (2) and the doubt arising out of the correlation of that language with the words in all which occur in Clause (a) must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the which deals with third party risks. That is a sensitive process which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately not receding, that courts have to fill gaps, clear doubts and mitigate hardships.

21. In our opinion, therefore, instead of giving lump sum compensation it would be in the interest of victims and the society to evolve a formula or mode for paying compensation periodically. The following observation made in a decision in New India Assurance Co. Ltd. v. Kamlaben (Gujarat), is quoted with approval:

(5) .. .This method may, to some extent, alleviate the serious prevailing drawbacks, because it is stated that before the compensation reaches the hands of the victims or their heirs, the lions share of the compensation is pocketed by the middlemen or so-called power of attorney holders who trade in their miseries. It may also save to some extent the huge expenses including advocates fees which are required for litigation before getting compensation and may ensure safe custody of compensation amount awarded to the victims which, ultimately, would be in the interest of the society.

22. In our opinion, therefore, the award of Rs. 36,000/- be paid in following manner: Rs. 20,000/- be kept in a fixed deposit in some nationalised bank with a condition that the interest accruing on the sum would be paid quarterly, i.e., at the expiry of three months to Nani Bai and other members of the family for the welfare of claimant Nos. 3 to 8. The deposit shall initially be made for three years and shall be renewable thereafter every three years and such a process shall continue for 15 years. Thereafter, claimant Nos. 3 to 8 may be allowed to withdraw the amount in toto. [Almost a similar direction was made by their Lordships of the Supreme Court in National Insurance Co. Ltd. v. Swaranlata Das (SC)]. The rest 2/3rd of the amount including the interest accruing on the compensation amount be paid in cash to Nani Bai for herself and claimant No. 2 and the 1/3rd amount be paid to the parents of the deceased, i.e., claimant Nos. 9 and 10.

23. As a result, the appeal (M. A. No. 296 of 1986) is allowed with costs. The award granted by the Tribunal is modified as above and further subject to the mode of payment as above. The amount of compensation mentioned above shall carry interest at the rate of 12 per cent per annum from the date of claim petition till realisation.

24. M.A. No. 297 of 1986 arises out of Claim Petition No. 93 of 1981 which has been filed by the heirs of Nisar Ahmad who died in the accident referred above. Learned Tribunal has held in para 14 of its award that Nisar Ahmad died in the accident. This fact has been corroborated by Mangi Lal s/o Dharmya, AW 2, who has stated that many passengers were swept away with the current of the water including Nisar Ahmad whose dead body could not be found. Similar statement has been given by Saida Bano wd/o deceased and Mohammad Naimkhan, AW 4, brother-in-law of deceased Nisar Ahmad. Both of them have stated that after hearing about the accident they went to the spot, but the body of Nisar Ahmad could not be recovered. We find nothing to differ with the finding of Tribunal about the death of Nisar Ahmad in the accident and we also affirm the same.

25. As stated by AW 3 and AW 4, Nisar Ahmad was working as village postman and was getting Rs. 150/- p.m. and was looking after agriculture work also. The learned Tribunal has estimated age of Nisar Ahmad to be about 36 years and accepted the multiplier of 15. Saida Bano, AW 3, stated that they were earning nearly Rs. 8,000/- to Rs. 10,000/- per year from their agricultural land, but now after the death of Nisar Ahmad the land has been given on lease and they get nearly Rs. 4,000/- to Rs. 5,000/- per year. There is no effective cross-examination on this point. Even otherwise, the work of village postman is a part-time job and in order to maintain and run a large family like his, Nisar Ahmad must have been working in his field and must have been carrying on some other work also. In such a situation, we are inclined to accept his income to be at least Rs. 250/- per month, which comes to Rs. 3,000/- per year.

In our opinion, looking to the size of the family he must have been spending Rs. 150 per month on them. Thus, the dependency of family comes to Rs. 1,800/- per year. The learned Tribunal has applied a multiplier of 15 by accepting age to be 36 years. Nisar Ahmad could have worked up to the age of 60 and, therefore, in such a situation at least multiplier of 18 ought to have been applied. The claimants are, therefore, entitled for a compensation on the heading of general damages to the extent of Rs. 32,400/-, which may be rounded as Rs. 32,000/-. Learned Tribunal has awarded Rs. 3,000/- for loss of consortium to Saida Bano and nothing to the children and the mother for loss of love and affection. As such a separate amount of Rs. 4,000/- is awarded on that heading. Thus, the claimants in the case are entitled to a compensation of Rs. 32,000/- + Rs. 3,000/- + Rs. 4,000/- = Rs. 39,000/- in all with interest at the rate of 12 per cent per annum from the date of application till realisation of the same. Since claimant Nos. 2, 3 and 4 are minors and, therefore, an amount of Rs. 25,000/- be deposited in an interest paying annuity deposit in some nationalised bank. The interest thereon shall be paid to the claimant No. 1, Saida Bano, for the welfare of claimant Nos. 2 and 3 on a quarterly basis. Since claimant Nos. 2 and 3 are shown to be aged 5 years and 3 years the amount shall remain in fixed deposit for 15 years and thereafter whole amount can be withdrawn and paid to the minors. The rest of the amount including the interest accruing thereon shall be paid to claimant No. 1 and claimant No. 5 jointly. The compensation would be recoverable jointly and severally from all the respondents.