MILAP CHANDRA JAIN,J. - (1.) THESE appeals have been filed against the awards of the Motor Accidents Claims Tribunal (Addl. District Judge), Banner, dated October 18, 1989, by which it has partly allowed claim petitions arising out of same accident and has awarded various amounts as compensation to the claimants as noted below: JUDGEMENT_452_TLRAJ0_1993.htm
(2.) THE facts of the cases giving rise to these appeals may be summarised thus. On November 27, 1986, truck No. RRN 1145 was going from Jodhpur to Ahmedabad via Balotra. It was loaded with stone slabs. The deceased Bagga Ram, Gopa Ram, Bagta Ram and Gordhan and injured Amra Ram, Mala Ram, Rekha Ram, Dama Ram and Kana Ram boarded it. Each one of them paid Rs. 6/ - as fare to its driver Pokar Ram (non -petitioner -respondent). It was being driven rashly and negligently by him. As a result thereof, the driver lost his control and the truck got turtled in between Loharia and Nakoda on Sindhari Road. The passengers Bagga Ram, Gopa Ram, Bagta Ram and Gordhan died on the spot and Amra Ram, Mala Ram, Rekha Ram and Dama Ram (claimants) and Kana Ram received serious injuries. The truck was owned by Mohd. Rafiq (non -petitioner -respondent) and it was insured with the United India Insurance Co. Ltd. (non -petitioner -appellant) at the time of the accident. The claim petitions were filed by the legal representatives of the aforesaid deceased persons and also by the injured persons. After holding necessary trial, the Tribunal awarded the said amounts as compensation against the appellant insurance company only. It has been contended by the learned counsel for the appellant that rule 133, Rajasthan Motor Vehicles Rules, 1951, did not permit any passenger to travel in a goods vehicle, there was thus a breach of the terms of the policy and as such the insurance company was not liable. He further contended that the Tribunal has passed awards only against the insurance company without making the insured liable to pay a single paisa in any case and as such no award could be passed against the insurance company. He lastly contended that the liability of the insurance company was to the extent of Rs. 15,000/ - under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 (hereinafter to be called 'the Act'). He relied upon National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC) and decision of this court given in National Insurance Co. Ltd. v. Paras Kanwar 1994 ACJ 563 (Rajasthan).
(3.) IN reply, it has been contended by the learned counsel for claimants -respondents that insurance company has utterly failed to prove that there had been a breach of terms of the policy, the said defence is not open to it and the insurance company cannot avoid its liability on the plea that the truck was used for carrying passengers against the provisions of rule 133, Rajasthan Motor Vehicles Rules, 1951. He further contended that liability under tort arises out of a wrongful act including an illegal act. He also contended that this court has power to modify the awards making the owner and driver of the offending truck liable to make payment of the amounts of compensation. He lastly contended that the interest should have been awarded at the rate of 15 per cent per annum. He placed reliance upon Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC), New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat), Badri Narain v. Chotu Ram 1986 ACJ 1062 (Rajasthan) and United India Insurance Co. Ltd. v. Dhali 1992 ACJ 1057 (Rajasthan).;