RASTOGI, J. - (1.) THE claimant has filed this appeal for the enhancement of compensation awarded by Motor Accident Claims Tribunal, Ajmer (Tribunal) vide award dated 18. 12. 2000 in M. A. C. T. Case No. 381/1999 (50/1994 ).
(2.) CLAIMANTS are father and minor brother of deceased Vijay Singh aged 16 years, who was student of Class Xth. On 14. 5. 1993 at 6. 45 a. m. , while deceased was going to Ajmer by travelling in offending Bus No. RSE-375 being driven rashly and negligently by its driver (respondent No. 1) with a high speed in a zigzag manner, when reached near Birma Rawat's agricultural farm, the bus got uncontrolled, thereby overturned Railway Fatak, causing multiple injuries to bus passengers including deceased, who succumbed to injuries while taking him to hospital and died. Rs. 7,72,300/- were claimed as compensation under different heads, as per claim petition. After taking into consideration evidence led by either parties on record, the Tribunal recorded in finding that the deceased sustained injuries from the offending truck and died in the accident. So far as pecuniary and non-pecuniary losses are concerned, the Tribunal awarded lumpsum compensation of Rs. 80,000/- with interest @ 12% per annum from the date of filing of claim petition till its actual payment, but Insurance Company was exonerated of liability to pay awarded compensation on premises that as per statement of Nanu Singh (AW. 2), who was one of co-passengers deposed that there were almost 100 passengers sitting in the bus, which was considered by the Tribunal that it was a case of breach of insurance policy. Claimants have assailed findings recorded of breach of insurance policy and quantum of compensation. Shri Vinay Mathur, counsel for claimants contends that merely on the basis of statement recorded of Nanu Singh (AW. 2) co-passenger, finding recorded of breach of policy, is not legally sustainable and for which claimants cannot be saddled. Counsel for claimants also urged that compensation awarded vide impugned award is also on lower side requiring enhancement on the premises also that after 1994 amendment in the Schedule to the Act, in case of non-earning members, for whom Rs. 15,000/- per annum has been considered to be financial dependency of the family as held by the Apex Court in Manjudevi vs. Musafir Paswan (2005 (1) TAC (SC) 609), wherein after applying multiplier of 15, compensation of Rs. 2. 25 lacs was awarded to young boy who was non-earning member. Per contra, Shri Satyendra Sharma counsel for respondent urged that the Tribunal after a comprehensive appreciation of evidence on record recorded a finding of fact exonerating Insurance Company of liability to indemnify compensation awarded, because of the evidence of claimant's witness Nanu Singh (AW. 2) who deposed that there were 100 passengers sitting in the offending vehicle while it was insured for 40 passengers which clearly goes to establish breach of insurance policy and hence, no error has been committed by Tribunal, and in such circumstances, what has been awarded by Tribunal is just and reasonable, requires no interference by this Court. Counsel further urged that even if at all, this court concludes that claimants are to be indemnified by Insurance Company, then the Company be provided with rights of recovery from owner of vehicle.
(3.) I have pondered over contentions of the parties and with their assistance, perused material on record. It is not in dispute that offending bus was insured and from the pleadings and proceedings before the Tribunal it is clear that despite or owner of the offending bus neither choose to appear, produce any reply to claim petition, nor thought of adducing any evidence in support of their defence while they were best persons who could be able to show circumstances about cause of accident and terms of insurance policy. That apart, from material on record, it is consistent case rather rightly held by Tribunal, itself that the accident took place as a result of rash and negligent act on the part of driver (employee) of the insured (owner) of the insurer to the offending bus. It was nobody's case that passengers were sitting either on the roof of hanging over the gates of the offending bus or that as a result of overloading and crowd of passengers in the bus, the accident took place. Be that as it may be, even though the deceased is a third party to the accident and not an employee of the owner of the vehicle, Insurance Company cannot escape from its liability only on the ground that there has been casual statement of one of co- passengers that about 100 passengers were sitting in the bus, and that apart, there was no specific pleading or objection by Insurance Company is reply to the claim petition that there was breach of insurance policy or contract about overloading of passengers in the insured vehicle. The Insurance Company developed his case merely because a casual statement was made by nanu Singh (AW. 2) but that too was in order to show that there was rash negligent Act on the part of the driver and conductor to overload passengers in the bus, that will not construe that 100 passengers were travelling in the bus. Therefore, Insurance Company cannot escape from its liability to pay compensation. Third parties to the Company cannot be made to suffer because of violation of breach of insurance policy or the contract by one of the parties thereto. Hence, finding recorded by Tribunal that it was a case of breach of insurance policy is not legally sustained and the Company is liable to pay compensation awarded by the Tribunal. As regards quantum of compensation, after the amendment made in November, 1994 in Section 163-A of the Act, has provided Schedule for guidance. As per 2nd Schedule to the Act, even for non-earning members, annual income of Rs. 15,000/- has been assessed with no deduction for their personal expenses and in recent decision of this Court in Shreelal vs. Surya Kant (2005 (3) WLC 707) while following the decision of Apex Court in Manju Devi vs. Musafir Paswan (supra), observed that up to the age of 15 years, multiplier of 15 is to be applied and when the legislature in 2nd Schedule has not made any difference in application of multiplier for the death of non-earning member. The Apex Court in Manju Devi vs. Musafir Paswan (supra), wherein the deceased way a body of 13 years, the Apex Court took his annual income of Rs. 15,000/- being a non-earning member as per Second Schedule and therefrom no amount has been deducted for his personal expenses and after applying multiplier of 15, awarded compensation to a sum of Rs. 2,25,000/- under the head of loss of economic dependency to the family. ;