S.K.Garg, J. - (1.) This misc. appeal has been filed by the appellant United India Insurance Co, Ltd. (for short 'insurance company') against the judgment and award dated 27.8.1996 passed by the learned Judge, Motor Accidents Claims Tribunal, Bhilwara, by which he passed an award of Rs. 1,73,200 in favour of the claimant- respondent Nos. 1 and 2, who are LRs. of deceased Kela Ram, along with interest at the rate of 12 per cent per annum. In this appeal, the claimant-respondent Nos. 1 and 2 have also filed the cross- objections on 2.4.1997 and the same would be considered at appropriate place.
(2.) It arises in the following circumstances: On 27.7.1993 at about 6 p.m., Kela Ram (hereinafter referred to as 'the deceased') aged about 43 years sat along with his goods in mini truck No. RJ 06-G 459 and was going towards village, Ghati-Ka-Bada and that truck was being driven by one Heera Lal (respondent No. 3 in this appeal) and the owner of that truck was Vijay Kumar (respondent No. 4 in this appeal) and when the truck in question reached near the village Amarwasi, it capsized, as a result of which, the deceased Kela Ram received grievous as well as simple injuries and he succumbed to his injuries on 28.7.1993 in Mahatma Gandhi Hospital, Bhilwara. Thereafter, claimant-respondent Nos. 1 and 2, whq are legal representatives of deceased Kela Ram, filed a claim petition before Motor Accidents Claims Tribunal, Bhilwara (hereinafter referred to as 'the Claims Tribunal') on 18.9.1993 and claimed a sum of Rs. 25,77,000 as compensation on account of death of deceased. A reply to the claim petition was filed by the appellant insurance company as well as the respondent No. 4 Vijay Kumar, owner of the truck in question and it was pleaded by them that since the deceased was gratuitous passenger, therefore, appellant insurance company as well as owner were not liable to pay compensation to the claimant-respondent Nos. 1 and 2. Hence, the claim petition filed by the claimant- respondent Nos. 1 and 2 be dismissed. Thereafter, the Claims Tribunal framed the following five issues on 6.12.1994: (Omitted as in vernacular) Thereafter, both parties led evidence in support of their respective cases. After hearing both the parties and after considering the entire evidence and material available on record, the learned Claims Tribunal through the judgment and award dated 27.8.1996 decided the issue Nos. 1 and 3 in favour of the claimant-respondent Nos. 1 and 2 holding inter alia: (i) That at the time of alleged accident, the truck in question was being driven by the driver Heera Lal (respondent No. 3) rashly and negligently. (ii) That deceased was sitting in the truck in question along with his goods. (iii) That deceased paid Rs. 10 to the driver of the truck in question (Heera Lal, respondent No. 3) as a rent for table and chair and fare for himself. (iv) That deceased was not travelling in the truck in question as gratuitous passenger and, therefore, the appellant insurance company as well as the owner of truck in question (Vijay Kumar, respondent No. 4) were responsible to pay compensation to claimant-respondent Nos. 1 and 2. The issue No. 4 was decided by learned Claims Tribunal in the following manner: (i) That at the time of the alleged accident, age of the deceased was about 43 years. (ii) That at the time of the accident, the deceased was in the employment of military services and he was getting Rs. 3,546 per month as salary and out of that amount, he was spending Rs. 1,746 on himself and Rs. 1,800 were being spent on his family members and after multiplying the amount of Rs. 1,800 by 12 months, the annual dependency was assessed at Rs. 21,600 and a multiplier of 7 years was applied by the learned Claims Tribunal and thus, after applying multiplier of 7 years, the learned Claims Tribunal came to the conclusion that the claimant-respondent Nos. 1 and 2 were entitled to Rs. 1,51,200 as compensation. Apart from that amount, learned Claims Tribunal has further awarded Rs. 2,000 as medical expenses, Rs. 5,000 on account of mental agony, Rs. 5,000 as cremation expenses and Rs. 10,000 to the wife of the deceased on account of loss of consortium and loss to estate. Thus, Rs. 1,73,200 in all were awarded as compensation to the claimant-respondent Nos. 1 and 2. Aggrieved from the said judgment and award dated 27.8.1996 passed by learned Claims Tribunal, this appeal has been filed by the appellant insurance company.
(3.) In this appeal, the following submissions have been made by the learned counsel appearing for the appellant insurance company: (i) That since the deceased was gratuitous passenger, therefore, the appellant insurance company was not liable to make payment of compensation to the LRs. of deceased. (ii) That since the contract of insurance between the appellant insurance company and the insured (Vijay Kumar, respondent No. 4 owner of the vehicle in question) was for the purpose of goods being taken in a goods vehicle and, therefore, by carrying passenger in a goods vehicle, breach of the terms of the policy was made by the owner of the vehicle in question and, therefore, in these circumstances the appellant insurance company cannot be held liable. (iii) That since the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Shanta Devi [Sic. Asha Rani, 2001 ACJ 1847 (SC)], felt that the law laid down in earlier judgment in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC), requires re-consideration by a larger Bench of the Hon'ble Apex Court and that matter has been now placed before the larger Bench of the Hon'ble Apex Court, therefore, the law laid down in the case of Satpal (supra), cannot be said to be a settled law and in such circumstances, appellant insurance company cannot be held liable or this appeal be kept pending till the decision by the larger Bench of Hon'ble Supreme Court.;