R.K. Varma, J.
1. This is an appeal by the claimant against the award dated 21-10-1983 passed by the Member, Motor Accident Claims Tribunal, Jhabua in Claim Case No. 14/81 whereby the learned Tribunal has dismissed the claim petition of the claimants.
2. The facts giving rise to this appeal, briefly stated, are as follows:
The deceased Narvar Singh alongwith one Lokendra Singh had been to Dohad on 7-4-1981 for purchasing parts of motor-cycle. After making the desired purchases at Dohad, the deceased and Lokendra Singh were given a lift by the driver of the truck bearing registration No. CPF 8081 which was going to Bhabra where the deceased wanted to go. The truck-driver had agreed to carry the deceased and Lokendar Singh as passengers of the truck for hire charges of Rs. 5/-. On the way while the truck was going past Sejwada, it ran over the heap of Gitties and turned turtle and the cabin of the truck in which the driver and the deceased were sitting, got crushed resulting in the death of the deceased Narvar Singh. The driver of the truck also died. But Lokendra Singh (AW-1), however, survived with certain injuries on his person.
3. On a claim petition having been filed by the surviving dependants of the deceased Narvarsingh, the learned Tribunal, on appreciation of evidence adduced in the case, held that the truck driver was not rash and negligent in driving the truck in question and the death of the deceased was not as a result of rash and negligent driving of the truck. Consequently, the learned Tribunal has dismissed the claim petition.
4. Being aggrieved by the award dismissing the claim-petition, the claimants have filed this appeal.
5. The learned Counsel for the appellants has contended that the only witness examined in the case on the question of rash and negligent driving of the truck is Lokendra Singh (AW-1) who has stated that near Sejawada the truck suddenly ranover the heap of Gitties which was lying on one side of the road and the road was wide enough to allow two trucks to cross conveniently. This witness has stated that the truck came-over the heap of Gitties because the driver had lost balance. The sole testimony of this solitary witness of the accident clearly shows that the driver was driving the truck rashly and negligently. The evidence of this witness apart, there is no explanation given on behalf of the respondents as to how the truck had turned turtle. In the absence of any evidence to explain satisfactorily the over-turning of the truck inspite of reasonable care, the principles of res-ipsa-loquiter would apply giving rise to an inference that the truck-driver was rash and negligent in driving the truck which overturned. In the circumstances, the learned Tribunal was wrong in holding that an accident was not as a result of rash and negligent driving of the truck in question by its driver and we accordingly reverse the finding of the learned Tribunal in this regard.
6. As regards the quantum of compensation, learned Counsel for the appellants has submitted that the family of the deceased was engaged in agriculture and the deceased had a number of dependants to feed. As such, besides agriculture, the deceased was also running a fair price shop in the village. The claimants and examined Sur Singh (AW-2), who is a brother of the deceased Narwarsingh. This witness has stated that the deceased and his brothers jointly held agricultural lands. But he has also stated that deceased Narvar Singh was running a fair-price shop also in the village. The deceased is not shown to be an Income Tax payer and there is no documentary evidence to show what was the income of the deceased from the fair-price shop Running of a fair-price shop by an individual is almost a whole-time job and it would be reasonable to suppose that the contribution of earning of the deceased for his family was on account of his engagement in the fair-price shop. The shop was located in a village having a population of 400 as stated by Sursingh (AW-2). In the absence of any tangible evidence regarding income from the fair-price shop, we are left to make a guess-work. In our opinion, it would be reasonable to suppose that the deceased after meeting his own personal expenses was able to contribute an earning of Rs. 3,000/-, per year for his family members.
7. It has been stated by Sursingh (AW-2) that the deceased, at the time of his death by accident, was 30 years of age and there is nothing on record to dispute that position. Looking to the age of the deceased, it would be reasonable to adopt a multiplier of 15 years for assessing the total loss of dependency on account of the death of the deceased. Applying a multiplier of fifteen years for the purposes of computation of compensation which assuming the annual dependency to be Rs. 3,000/- the amount of compensation to which the claimants should be held entitled works out to be Rs. 45,000/-. The compensation amount of Rs. 45,000/- shall however, carry interest @ 9% per annum from the date of claim petition till realisation.
8. Next comes the question of determining the liability among the respondents interse. It has been submitted by the learned Counsel for the respondent-Insurance Company that as per insurance policy, the truck-driver was not supposed to take any passenger for hire and no liability on the insurer can arise on account of the accident resulting in the death of the deceased who was a passenger accepted by the driver unauthorizedly and in contravention of the terms of the insurance-agreement. The insurance-company consequently disowns its liability to pay any compensation in the circumstances.
9. It has been contended on behalf of the respondent-Insurance Company that as per the terms of the Insurance Policy, the Company shall not be liable in respect of the death of any person being carried in or upon the vehicle at the time of the occurrence of the accident out of which, any claim has arisen.
10. Learned Counsel for the appellant-claimants on the other hand has placed reliance on a Full Bench dscision of this Court in Harishankar Tiwari v. Jagru and Ors. : 1981 A.C.J. 1 in which it has been held that the Insurance Company is liable to cover the risk of a hirer/agent or his employees travelling with the goods in a goods vehicle under proviso (ii) of Clause (b) of Section 95(1) as a passenger carried for reward or by reason of or in pursuance of a contract of employment. But that decision, in our opinion, is not applicable in the facts and circumstances of the present case. In the instant case, it is not possible to hold on the basis of the evidence adduced that the deceased was travelling in the truck for safe carriage of the goods in the vehicle. It has not been proved that (he truck was hired for carrying the goods belonging to the deceased. The deceased and Lokendra Singh travelled in the truck consequent upon the driver agreeing to give them a lift on charging Rs. 5/-. In Miscellaneous Appeal No. 124/81, which was also disposed of by the Full Bench decision aforesaid, the policy itself has specified that six persons can be carried in the vehicle in question apart from the driver. No such stipulation is made in the policy pertaining to the instant case. On the contrary, it has been stated therein that the policy does not cover use for the conveyance of passengers for hire or reward. The truck in question, therefore, cannot be termed as a vehicle in which the passengers are carried for hire or reward within the meaning of the provision (ii) of Clause (b) of Section 95t (1) and, therefore, no statutory requirement of coverage of risk of the passenger like the deceased travelling in the truck in question can be presumed.
11. Learned Counsel for the appellant-claimants submitted that whether or not the driver was authorised to give lift to the deceased, the owner of the truck shall be vicariously liable. There is, however, no evidence to suggest that the driver of the truck was prohibited by the owner from giving lift to anyone in the truck while driving it on his masters business. In support of his contention, learned Counsel has placed reliance on a Full Bench decision of this Court in Narayanlal and Anr. v. Rukminibai and Anr. reported in : 1979 ACJ 261 [LQ/MPHC/1978/278] , in which it has been held that the act of a servant employed to drive a vehicle in giving lift to a person in disregard of the statutory rule or prohibition while driving the vehicle in execution of the owners business, is an act for which the owner is vicariously liable.
12. In the light of the view taken by us, the respondent-Insurance Company shall not be liable for payment of any compensation. But the owner and the driver of the truck in question are held jointly and severally liable to pay compensation amount as determined hereinabove.
13. Now remains the question as to whom the compensation amount is payable and in what proportion. The deceased Narvar Singh had as his dependants his father Nana who died during the pendency of this appeal, his mother Smt. Kadkibai, his three widows Smt. Kali, Smt. Jaita and Smt. Malki and eight minors children namely, Ku. Sagri, Sharda, Bhupendra, Saieda, Surendra, Virendra, Charan Singh and Ku. Kusum through their respective natural guardian-mothers. All these dependants are claimants who are held entitled to get compensation. Besides them, one Sursingh and Kantilal who are brothers of the deceased are also among the array of the claimants, but they are not entitled to be dependants of the deceased and as such not entitled to any compensation amount Learned Counsel for the appellant-claimants has submitted that the deceased Narvarsingh was a member of Scheduled Tribe, being a Bheel of District Jhabua and as such nothing contained in the Hindu Marriage Act could apply to the deceased Narvarsingh as per Sub-section (2) of Section 2 of that Act. Therefore, all the three widows of the deceased would be legal dependants and entitled to compensation in equal proportion.
14. In the result, this appeal succeeds and is hereby allowed. The award dismissing the claim is set aside. The appellant-claimants with the exception of the brother of the deceased as aforesaid, are held entitled to receive a compensation amount of Rs. 45,000/-, from the respondents excepting the Insurance-Company together with interest @ 9% per annum from the date of filing the claim-petition till realisation For an equitable distribution of the compensation amount, it is ordered that out of the compensation amount of Rs. 45,000/-, an amount of Rs. 21,000/- shall be payable to the three widows in equal proportion and Rs. 4,000/- shall be payable to the mother of the deceased Smt. Ladkibai. The balance amount of Rs. 20,000/- shall be equally divided in eight minor children of the deceased each getting Rs. 2,500/-. The interest @ 9% per annum accruing till the date of payment shall be added to the respective shares rateably. It is further directed that the amount payable to the children with interest shall be deposited in separate Fixed Deposits in the State Bank of India, or any other nationalised Bank convenient to the minor-claimants in their respective names which would become payable to them respectively on their attaining majority. The liability of the respondents excepting the Insurance Company shall be joint and several.
15. There shall, however, be no order as to costs of this appeal.
