G.D. Saxena, J.Since both the appeals filed by the claimants of deceased driver-cum-owner and cleaner of ill-fated truck involved in train-truck accident have arisen out of the common Award dated 13th January, 2005 in Claim Case Nos. 58/04 and 59/04 passed by the Motor Accident Claims Tribunal, Chachoda, Camp Guna, they are taken up together for final disposal by this one order. At the outset, it may be mentioned here that Misc. Appeal No. 345/05 has been preferred by the claimants/legal heirs of the deceased Yusuf Khan who was a cleaner of the truck having registration No. MKM/1806 driven by deceased-driver Sadiq Khan, u/s 173 of the Motor Vehicles Act 1988 against the impugned Award rejecting thereby the claim petition filed by the appellants/claimants of the said Yusuf Khan who died in train-truck accident claiming compensation of Rs. 2,80,000/- against the Union of India as well as insurer, the Oriental Insurance Company (respondents No. 1 and 2 herein).

2. Another appeal (Misc. Appeal No. 365/2005) has been preferred by the claimants/legal heirs of the deceased driver Sadiq Khan of the truck having registration No. MKM/1806 against the impugned Award rejecting thereby the claim petition filed by the appellants/claimants of the said Sadiq Khan who died in train-truck accident claiming compensation of Rs. 13,50,000/- against the Union of India as well as insurer, the Oriental Insurance Company (respondents No. 1 and 2 herein).

3. Briefly narrated the facts of the cases are that on 15th August 1992 at about 6-7 p.m. just before night break, when the truck reached Gate No. 79/C at railway line of Maksi in between Kumbharaj-Vijaypur crossing, the railway gate was not closed and the vehicles were passing through the line, at that juncture, when the driver of the truck just started to cross the line, suddenly the passenger coming from Guna to Maksi came and by hitting caused damage to the truck. Resultantly, both the driver and cleaner of the truck died on the spot or during spot to the Hospital for treatment. After the incident, a Marg Intimation Report (Ex. P/10-C) was lodged on written report from Medical Officer posted in the Hospital Raghogarh. During inquiry, the spot map (Ex. P/9-C) was prepared. It is not disputed that the ill-fated truck which was driven by deceased Sadiq Khan and who was also the owner was insured with the respondent No. 2-Oriental Insurance Company. The claim petition u/s 166 of the Act seeking compensation of Rs. 2,80,000/- with interest @ Rs. 12% till full and final payment of the award amount is made from the non-petitioners Union of India and Insurance Company was submitted. Another claim petition was filed by the claimants of Sadiq Khan for compensation of Rs. 13,50,000/- against the defendants/respondents as mentioned above. Since the tribunal has dismissed the aforesaid claim petitions of the petitioners, they have come to this court.

4. It is contended on behalf of the learned counsel for the appellants in both the appeals that the accident was direct result of the railways employees, i.e., the railway gate man for not closing the railway gate and thereby allowing the road traffics just before passing the railway train at railway track. It is further submitted that equally the driver of the train was responsible for causing such accident because he did not blow the horn for alarming the vehicles passing through railway crossing. It is therefore contended that since the lapse was on the part of the railway employees, the railway authority is liable to pay the compensation to the heirs of the deceased. It is thus submitted that the tribunal was not justified in rejecting the claim of the claimants for compensation and directing to recover the amount of interim award u/s 140 of the Act on the very moment of rejection of the claim of the appellants. On the basis of aforesaid submissions, it is prayed that the appellants appeals deserve to be allowed and the amount as prayed for deserves to be granted.

5. On the other hand, the submission put forth by the learned counsel for the Union of India (Railway Administration) is that by adducing the cogent evidence the defendant/respondent UOI had proved that the truck by violating traffic rules and avoiding all signals, after breaking the chain of the gate and the pillar of the entrance travelled the railway track and resultantly collided with the Bina passenger train, which by that time was passing after getting the green signal and adopting all safety measurements. Hence, as per the learned Sr. Advocate the Railway Administration is not responsible for the casualties caused in accident. In view of the aforesaid, it is submitted that the learned tribunal has rightly rejected the claim petitions praying for awarding compensation by the railway authorities.

6. The contention of the Insurance Company is that the alleged accident was direct result of the sole negligence on the part of the driver of the truck, therefore, on that ground the heirs of the deceased of the driver-cum-owner of the vehicle is not entitled for own defaults of the driver-cum-owner of the vehicle. Even other wise, the claimants are also not entitled to claim on account of the death of the driver-owner. It is also submitted that the claim of claimants of the deceased-cleaner does not cover under the law nor the terms of the policy, hence, the Insurance company is not liable for indemnifying the liabilities of payment of compensation for the death of deceased-cleaner to his heirs on behalf of deceased-owner-cum-driver, who was negligent for causing the accident. Hence, it is submitted that the learned tribunal rightly dismissed the claim petition filed by the heirs of the deceased-cleaner. Accordingly, the respondent No. 2/Insurance company prayed that by dismissing the appeals filed by appellants/claimants, the impugned Award passed by the learned tribunal may be affirmed.

7. Heard the learned counsel for the parties. Also perused the record the tribunal and the law applicable to the case.

8. The questions for consideration of these appeals are:-

(i) Whether the respondent No. 1/Union of India through Railway Administration on the basis of vicarious liability for negligence of the gate-man of railway where the accident in between truck and the running train took place, was liable to pay the compensation to the claimants of the deceased driver/owner and cleaner who died in accident or they are liable to pay the compensation on the basis of contributory/composite negligence on account of head on collision between the truck and the running train at Railway crossing

(ii) Whether, the Insurance company is liable to satisfy the compensation on behalf of insured truck to the claimants of the deceased-cum-driver-owner as well as the deceased-cleaner who was travelling in the truck at the time of accident

(iii) Whether, the interim award paid by the Insurance company can be directed to be recovered from the claimants under the facts and circumstances of the case

9. On perusal of the record, it appears that Smt. Raj Kumari Gurjar (AW-3) deposed that prior to the time of accident she with her mother were on evening walk towards the side of railway crossing. As she was returning and at a distance of 2025 ft. away from railway crossing gate, she heard the loud noise of dashing so she returned back to the railway crossing. She deposed that by that time, the railway gate-man was not available on the spot where the truck was thrown after dashing with train and one man and one boy were alive and were crying. She states that with help of one contractor she made an arrangement for sending the injured to the hospital. She also stated that on railway crossing gate, the chain was not put on other end. She also admitted that speed breakers from both sides of the railway crossing have recently been constructed. She also stated that at another side of crossing, near about 10-15 trucks were waiting for opening the railway gate. She categorically denied that the ill-fated truck entered into the railway track by breaking the chain pulled from one end to another end of the gate. On the other hand, Parsuram (NAW-1) gate-man of the railway crossing gate deposed that before passing the train he closed the gate for road traffics. The train was running by blowing horn and head lights of the engine were on and were visible from long distance. He was also showing the green lamp for safely passing the train through railway crossing. By that time, one truck entered suddenly and got dash with the engine of the train due to which the gate was broken and pillar of other end was also damaged. In cross-examination, he admitted that after inquiry, the Railway Authorities punished him for negligence. Kaluram Rai (NAW-3) is the train driver of the ill-fated train. He deposed that at the time of accident, the lights of engine were on from last station Kumbharaj near about 800 meters before crossing and as per direction the continuous horn was blowing for caution to the road crossers through gate. He stated that at the time of accident, the gates were closed and the gate-man was showing the green light signal for passing the train safely. As the engine of train reached on level crossing from gate No. 79-C, one truck with a high speed by breaking the chain locked on other end and level crossing gate, dashed the coming engine of train and was trapped with railway engine and thereafter was thrown into pit near railway line. The train by applying the emergency breaks was not possible to stop in order to avoid turning the passenger train and loss of great casualties. Thus, on the basis of the evidence on record, the negligence of railway employees, i.e., gate man and driver of the engine of passenger train is completely ruled out and the sole negligence on the part of deceased driver of the ill-fated truck is made out.

10. So far as the claim of heirs of deceased Sadiq Khan, the driver-cum-owner of the vehicle (Misc. Appeal No. 365/2002) filed by Mumtajbai and others is concerned, as stated earlier, the deceased Sadiq Khan was driver/owner of the truck involved in accident. He himself insured the truck under compressive package. It is also born out that driver Sadiq Khan was responsible for causing accident due to non-following the common traffic rules. While crossing the railway line, the speed of the vehicle should be under control. In this view of the matter, the claimants claiming themselves to be dependents on the deceased-driver-cum-owner cannot claim for damages for the deceaseds own negligence nor the Insurance company can be held to indemnify the liability of the insured for his own negligent acts contributing to accident.

11. In Dhanraj Vs. New India Assurance Co. Ltd. and Another, : the Hon. Apex court has considered and observed as follows: -

8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

9. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, : it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also.

12. On perusal of the insurance policy (Ex. D/1) of the truck issued by the Oriental Insurance company, it appears that the insurance of the ill-fated truck was for own damage of the vehicle covering liability to public risk for carriage of own goods, liability to the non-paying passenger, liability to persons employed in connection with operation and or maintenance and/or loading or unloading of motor vehicle and in any other heads no premium was charged. It clearly indicates that no premium for owners personal risk or injury or death was recovered. Thus, risk of the cleaner travelling in truck for maintenance or operation of the truck is covered under policy but the risk of the owner/driver of the truck was not covered under the policy. As per statutory provisions, the risk of the owner is not covered. As a consequence, the heirs of deceased Sadiq Khan driver of the ill-fated truck would not be entitled for compensation.

13. Now, coming to the evidence as adduced in claim petition (Claim Case No. 59/2002) in order to decide the question as to what would be appropriate amount of compensation which would be payable to the claimants of the deceased, it is noted that Sharif Khan (AW-1) father of deceased Yusuf Khan deposed that Yusuf Khan aged 20 years, the cleaner of the truck, who died in accident was getting Rs. 750/- monthly salary with allowance of Rs. 25/- to meet out the daily expenses during employment while travelling on the truck. In future, he may drive the truck and in that situation he may get Rs. 5000/- monthly. Parents of the deceased are old and ailing besides younger brothers and sisters who are also dependents on the income of the deceased. So for calculation of the dependency of the heirs on the income of the deceased, the basis of monthly income of Rs. 750/- of the deceased shall be taken which was paid to the cleaner at the relevant time by the owner of the vehicle, which annually comes to Rs. 9,000/-. Since the deceased was unmarried at the time of death in that case dependency of the heirs would be 3/4th part of the income of the deceased. As regards multiplier applied in determination of compensation, taking into consideration the law laid down in the case of New India Assurance Co. Ltd. Vs. Charlie and Another, wherein it held that choice of multiplier is determined by the age of the deceased or the claimant whichever age is higher, it would be appropriate to apply multiplier of 11, looking to the age in between 50 to 55 years of the parents, who are heirs of the deceased. Thus, the total dependency will be Rs. 66,000/-. In addition to it, claimants are also entitled to Rs. 50,000/- for love and affection, Rs. 10,000/- towards funeral expenses, Rs. 10,000/- as cost of transportation of the dead-body and Rs. 10,000/- for loss of estate. Thus, in this way, the claimants are entitled to receive total compensation of Rs. 1,46,000/- (Rs. One lac forty six thousand only) with 9% interest on the awarded amount from the date of filing of the petition dated 3rd December 1992 till date of payment of the award amount. The award mount shall be paid by the Insurance company by deducting the amount deposited before tribunal for payment to the claimants, within three months from the date of passing of this order.

14. As a result, Misc. Appeal No. 345/2005 filed by heirs of deceased Yusuf khan who was cleaner of the truck and died in accident stands hereby allowed in the manner indicated above whereas other Misc. Appeal No. 365/2005 filed by heirs of Sadiq Khan who was driver-cum-owner of the truck and died in accident is hereby dismissed.

15. The parties shall bear their own expenses. Counsel fee Rs. 1,000/-, if certified, be added in the costs.