A. Civil Procedure Code, 1908, Order 41, Rule 22 - Cross-objection by driver - Finding of - Tribunal exonerated the Insurance Company - Sustainability of - Held, learner's licence with the driver 'C' - No material produced on record to prove that Rule 3 was violated - No cross-examination on the point - No ground to exonerate the Insurance Company - Impugned finding not sustainable - Appeal partly allowed. [Paras 11, 12 and 14] B. Motor Vehicles Act, 1988, Section 173 - Quantum of compensation - Prayer for enhancement of specific material regarding income of the deceased - Income of non-working lady assessed Rs. 1,800/- p.m. and deducted ?rd for personal expenses and multiplier of 18 applied - Compensation awarded Rs. 2,59,200/- - Rs. 20,000/- awarded for loss of consortium and love and affection - Held, claimants are entitled to compensation of Rs. 2,81,000/- - Impugned award modified - Appeal partly allowed. [Paras 18, 19 and 20] JUDGMENT : This appeal and cross-objections are directed against the judgment and award dated 07.09.2002 passed by the Motor Accident Claims Tribunal, Nagaur ('the Tribunal'), whereby the Tribunal has awarded a lump sum compensation of Rs. 75,000/- alongwith interest @ 9% per annum from the date of application i.e. 19.04.2000 and the Insurance Company has been exonerated. 2. The application for compensation was filed by the claimants, inter alia, with the allegations that their wife/mother Smt. Sanu Devi, had gone to the forest for collecting fodder/fuel and when at about 11.30 AM, she was returning back to the Village, Tractor, which was being rashly and negligently by its driver Chena Ram struck said Smt. Sanu Devi, which resulted in grievous injuries to her, to which, she succumbed. Compensation to the tune of Rs. 5,92,000/- was claimed. 3. Reply was filed by respondents No. 1 to 3 denying that any accident occurred from the Tractor and that the driver of the Tractor was Chena Ram. It was claimed that the vehicle was being driven by Mangla Ram and that the accident occurred on account of negligence of the deceased. The Insurance Company also filed its reply and disputed its liability. It was, inter alia, contended that the transfer of vehicle was not informed to the Insurance Company, the driver was not in possession of valid driving licence and, therefore, the Insurance Company is not liable. 4. The Insurance Company also filed its reply and disputed its liability. It was, inter alia, contended that the transfer of vehicle was not informed to the Insurance Company, the driver was not in possession of valid driving licence and, therefore, the Insurance Company is not liable. 4. Based on the pleadings, the Tribunal framed six issues. On behalf of the claimants, two witnesses were examined and ten documents were exhibited. On behalf of the non-claimants, three witnesses were examined and two documents were exhibited. 5. After hearing the parties, the Tribunal came to the conclusion that the Tractor was being driven by Chena Ram, which aspect was fortified from the statement of eye-witness AW-2 Chanda and that the accident occurred on account of rash and negligent driving by driver of the Tractor. The issue pertaining to the liability of the Insurance Company was decided in favour of the Insurance Company on the Tribunal coming to the conclusion that the driver Chena Ram was in possession of a learner's licence and in view of the provisions of the Motor Vehicles Act, 1988 ('the Act') and Central Motor Vehicles Rules, 1999 ('the Rules'), the Insurance Company cannot be held liable. 6. While determining the amount of compensation, the Tribunal came to the conclusion that there was no convincing evidence available on record for determining the income of the deceased, however, looking to the age of the deceased i.e. 25 years and of the daughter i.e. 3 years, a lump sum compensation of Rs. 75,000/- was awarded alongwith interest as indicated hereinbefore. 7. It is submitted by learned counsel for the appellants that the Tribunal committed error in awarding meager compensation to the appellants, inasmuch as, it was the specific case of the claimants that the deceased was involved in doing agriculture operations and had income of about Rs. 2,000/- per month and, therefore, the award of lump sum compensation in the facts and circumstances of the case deserves to be set aside. It was further submitted that the Tribunal committed error in exonerating the Insurance Company only on account of the fact that the licence of the driver was a learner's licence, which determination is contrary to the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors.: (2004) 3 SCC 297 . 8. Ltd. v. Swaran Singh and Ors.: (2004) 3 SCC 297 . 8. Learned counsel appearing for respondents-cross objectors Heera Lal and Mangla Ram, the owners of the Tractor also supported the submissions of counsel for the appellants in so far as the exoneration of the Insurance Company is concerned. However, it was submitted that the compensation awarded is adequate and does not call for any interference. 9. Learned counsel appearing for the Insurance Company supported the award impugned. It was submitted that from the material available on record, it is apparent that the driver was in possession of a learner's licence and in view of violation of provisions of Rule 3 of the Rules, the Insurance Company cannot be held liable and, therefore, the finding in this regard deserves to be upheld. It was further submitted that the Tribunal was justified in awarding lump sum compensation to the appellants as there is no material available on record to support the claim of the appellant and, therefore, on that count also, no interference is called for. It is further submitted that the Tractor has capacity of only one driver and, therefore, there was no possibility of any instructor being on the vehicle for controlling or stopping the vehicle in terms of provisions of Rule 3 of the Rules and on that count also, the finding of the Tribunal does not call for any interference. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. A perusal of the material indicates that it was the case of the claimants that the vehicle was being driven by Chena Ram and the eye-witness Chanda in her statement not only stated that the vehicle was being driven by Chena Ram, she also recognised said Chena Ram, who was available in the Court and, therefore, to the said extent, the finding of the Tribunal regarding the vehicle being driven by Chena Ram does not call for any interference. 12. So far as the issue of liability of the Insurance Company is concerned, it is also not in dispute that Chena Ram had a learner's licence, which was produced by him as Ex.-6. 12. So far as the issue of liability of the Insurance Company is concerned, it is also not in dispute that Chena Ram had a learner's licence, which was produced by him as Ex.-6. As to the aspect whether the provisions of Rule 3 of the Rules were complied with or violated, there is no material available on record to indicate that the said provision was violated, inasmuch as, both the drivers i.e. Chena Ram as claimed by the claimants and Mangla Ram as claimed by respondents appeared in the witness-box, however, no question was put to them seeking to indicate that the provisions of Rule 3 of the Rules was violated. 13. This Court in the case of Narayan Singh and Anr. v. Smt. Kala and Ors., S.B. Civil Misc. Appeal No. 498/01, decided on 08.09.2016, considering a similar aspect held as under :- "A learner's licence is an effective licence as laid down by Hon'ble Supreme Court in the case of National Insurance Company Limited v. Swaran Singh and Ors., (2004) 3 SCC 297 , wherein, it has been held that if a vehicle at the time of accident was driven by a person having a learner's licence, the Insurance Company would be liable to satisfy the decree. So far as the finding recorded by the Tribunal is concerned, the conditions of learner's licence, which under Rule 3 of the Central Motor Vehicles Rules, 1989 ('the Rules') require a person holding a learner's licence to be accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle has been found to have been violated. A bare look at the entire evidence and the pleadings of the parties reveal that it was not the case of the Insurance Company that Rule 3 of the Rules has been violated by the driver of the insured vehicle. The driver appeared in the witness box and not a question was put to him regarding the fact that he was not accompanied by an instructor holding an effective driving licence to drive the tractor (vehicle). Further, in the statement of NAW-1 Bardi Chand, the Assistant Administrative Officer of the Insurance Company also except for making a bald statement that the policy conditions were violated, no assertion was made regarding violation of Rule 3 of the Rules. Further, in the statement of NAW-1 Bardi Chand, the Assistant Administrative Officer of the Insurance Company also except for making a bald statement that the policy conditions were violated, no assertion was made regarding violation of Rule 3 of the Rules. It is no doubt true that in case of violation of Rule 3 of the Rules, the Insurance Company can avoid its liability to pay compensation, however, the said aspect has to be proved as a fact that the person driving the vehicle with a learner's licence was not accompanied by a instructor and on failure of the Insurance Company to prove the said fact either by positive evidence and/or by cross-examining the driver, who has entered the witness box, it cannot be assumed that provisions of Rule 3 of the Rules has been violated and the appellant Insurance Company cannot seek exoneration on that basis. As already noticed even in the pleadings the Insurance Company had taken omnibus plea regarding the violation of the policy conditions and had not come out with a specific case regarding violation of Rule 3 of the Rules. In view thereof, the finding of the Tribunal being beyond the record is wholly perverse and the same cannot be sustained and is, therefore, set aside. The Insurance Company is held liable for making payment of the amount of compensation to the claimants." 14. In view thereof, merely on account of the fact that Chena Ram was in possession of a learner's licence is not sufficient for exonerating the Insurance Company. 15. So far as the submissions made by learned counsel for the Insurance Company that the Tractor has sitting capacity of one driver and, therefore, there is no possibility of any instructor sitting in the Tractor is concerned, the submission is contrary to the provisions of Rule 3 of the Rules, which does not make any distinction between any vehicle in so far as the issuing of leaner's licence is concerned and/or the requirement of the rule being complied with is concerned, except of course providing that so far as the motor cycle is concerned, the person having learner's licence shall not carry any other person on the motor cycle except the instructor. 16. 16. In view thereof, once the learner's licence is required even for a Tractor, it cannot be said that on account of the fact that there is sitting capacity of only one person as driver, no other person can accompany and, therefore, in case of Tractor, it will always be assumed that there was violation of Rule 3 of the Rules. Consequently, the submissions made in this regard cannot be accepted. 17. So far as the award of compensation is concerned, it was claimed by the claimants in the application for compensation that the deceased alongwith her husband was involved in agriculture operations and used to do work as a labour at other fields as well and used to earn about Rs. 2,000/- per month, which she used to spend on the applicants i.e. husband and daughter and based on the said submissions and the age of the deceased, compensation of Rs. 4,32,000/- was claimed. 18. In the witness-box Shankerlal appeared and except for indicating that for loss suffered by him, he has filed the claim, did not indicate anything in the examination-in-chief. In the cross-examination also, only cross-examination was made pertaining to the fact as to whether at all she was involved in manual labour and that whether she was a housewife only. Chanda, eye-witness, who was with Sanu Devi at the time of accident as both of them were returning from the forest after collecting fodder/fuel, claimed that they used to earn Rs. 40-70-80 per day. 19. In the above state of evidence, it is apparent that there was no specific material available on record to indicate the income of the deceased. However, keeping in view the fact that at time of accident, the deceased had gone to the forest for collecting fodder/fuel, it cannot be said that besides doing household work she was not doing anything else, in those circumstances, the income of the deceased though cannot be determined based on the material available on record keeping in view the income even of a non-working person as per II Schedule of the Act, the income of the deceased is in the circumstances of the case assessed at Rs. 1,800/- per month and after deducting ?rd towards personal expenses and applying multiplier of 18 in view of the age of the deceased, a compensation of (Rs.1,800 - 600) = Rs. 1,200 X 12 X 18 = Rs. 1,800/- per month and after deducting ?rd towards personal expenses and applying multiplier of 18 in view of the age of the deceased, a compensation of (Rs.1,800 - 600) = Rs. 1,200 X 12 X 18 = Rs. 2,59,200/- is awarded to the claimants. Further, the claimants would also be entitled to compensation toward funeral expense of Rs. 2,000/- and Rs. 10,000/- each towards loss of consortium and loss of love and affection respectively. 20. Consequently, the appeal filed by the claimants is partly allowed and in view of the finding regarding the exoneration of Insurance Company having been reversed, the cross-objections to the extent of the liability of the Insurance Company is also allowed. The claimants would be entitled to compensation to the tune of Rs. 2,81,200/- instead of lump sum compensation of Rs. 75,000/- as awarded by the Tribunal. On the enhanced amount of compensation i.e. Rs. 2,06,200/- (Rs.2,81,200 - Rs. 75,000), the claimants would be entitled interest @ 7% per annum from the date of application i.e. 19.04.2000 to the date of actual payment. The compensation be paid to the claimants in equal proportion in their saving bank account. The respondent-Insurance Company is directed to make payment of the compensation within a period of six weeks from the date of this judgment. Appeal partly allowed/Cross-objection allowed.