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2016 DIGILAW 149 (KER)

Indira Gopinatha Menon v. Arya Bhangy Motors

2016-02-08

C.T.RAVIKUMAR, MARY JOSEPH

body2016
JUDGMENT C.T. Ravi Kumar, J. 1. These appeals arise from the award dated 16.2.2011 passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(M.V) No. 1925 of 2005. The said claim petition was filed by the legal heirs of one Sibi. M.G. who met with a motor vehicle accident on 6.4.2005 and succumbed to the injuries sustained, on 7.4.2005. They are respectively the mother and sisters of the deceased. They claimed Rs.7,00,000/- as compensation for the death of Sibi and as per the impugned award in these appeals the Tribunal awarded an amount of Rs.2,56,500/- with interest at the rate of 8% per annum from the date of the petition till realisation. The former appeal has been preferred by the petitioners therein seeking enhancement of the compensation and the latter appeal has been preferred by the owner of the offending vehicle against the exoneration of the insurance company from the liability to indemnify him and seeking to set aside the impugned award to the extent it saddled him with the liability to pay the compensation to the appellants in the former appeal. In this judgment, for the sake of convenience, the parties are referred to hereinafter in accordance with their status before the Tribunal unless otherwise specifically mentioned. 2. The facts leading to the filing of these appeals are as follows:-- "On 6.4.2005 at about 11 p.m. the deceased Sibi @ Babu was travelling on motor cycle bearing registration No. KL-7/AT-6898 ridden by the second respondent, as a pillion rider, through Aluva-Chaiakkudy NH road from north to south. The vehicle belonged to the first respondent/the appellant in the latter appeal and it was insured with the 3rd respondent-United India Insurance Company Ltd., the common respondent in both these appeals. When the said motor cycle reached near an over bridge, owing to rash and negligent riding of the 2nd respondent, it hit against the handrail of the over bridge and the motor cycle along with the riders fell down to a depth of 10 metres, on a railway track. When the said motor cycle reached near an over bridge, owing to rash and negligent riding of the 2nd respondent, it hit against the handrail of the over bridge and the motor cycle along with the riders fell down to a depth of 10 metres, on a railway track. Sibi sustained severe injuries and succumbed to them on 7.4.2005 at about 1 a.m. It is in the said circumstances that the petitioners filed the aforementioned claim petition under Section 166 of the Motor Vehicles Act (for short' M.V. Act') alleging rashness and negligence against the 2nd respondent besides taking necessary averments to make the first respondent/the appellant in the latter appeal vicariously liable and also to make the third respondent, the insurer to indemnify the insured owner of the vehicle, viz., the first respondent. Before the Tribunal the 2nd respondent-rider of the motor cycle remained ex parte and the first respondent, the owner and the 3rd respondent, the insurer filed separate written statements. In their written statements both of them admitted the accident and also the insurance coverage of the offending motor cycle under a packaged policy, at the relevant period. Essentially, the contention of the first respondent was that since the vehicle in question had a valid packaged insurance policy at the time of the accident the insurer is liable to indemnify him. It was also stated in his written statement that the 2nd respondent took the aforesaid office vehicle after the office hours without his permission and had driven the motorcycle under the influence of alcohol. Going by the tenor of the written statement it is evident that the first respondent had, firstly, attempted to wriggle out of his vicarious liability by virtue of his being the owner of the offending vehicle by contending that the 2nd respondent used the vehicle not in relation with his official duty, that too without permission and in fact, he had driven the same sottish. Further, it was stated therein that there were three riders on the motor cycle at the time of the accident. The 3rd respondent, the insurer in its written statement admitted the insurance policy coverage viz., existence of a valid standard motor package policy in respect of the motor cycle In question, in the name of the first respondent, at the time of the accident. The 3rd respondent, the insurer in its written statement admitted the insurance policy coverage viz., existence of a valid standard motor package policy in respect of the motor cycle In question, in the name of the first respondent, at the time of the accident. Further, it was contended that the insurer had not received any additional premium to cover the risk of the pillion rider and the petitioners, being the legal heirs of the deceased pillion rider, are not entitled to claim compensation from the 3rd respondent by way of indemnification of the first respondent, the insured-owner of the motor cycle. Subsequently, the 3rd respondent filed an additional written statement, evidently after seeing the written statement of the first respondent contending that at the time of accident there were three persons on the motor cycle and thereby it was overloaded. Hence, it reiterated its lack of liability to indemnify the first respondent on that ground as well. It was also stated therein that the accident could not be said to be one strictly occurred in a traffic accident. Since Sibi sustained the injuries to which he succumbed later, not in a traffic accident they are not liable to pay the compensation, it was further stated therein. It was also contended that the amount of compensation sought for under different heads were highly exorbitant. Based on the rival pleadings the Tribunal framed the following issues:-- "1. Whether the accident took place due to the rash and negligent riding of motor cycle KL-7/AT-6898 by the second respondent ? 2. Whether the petitioners are entitled to get any compensation? If so, what is the quantum? 3. Who are all liable to pay compensation ? 4. Reliefs and costs." 3. Before the Tribunal, the first petitioner was examined as PW1 and Exts.A1 to A6 were got marked on the side of the petitioners. One Mr. M.B. Chandrakshan Nair was examined as PW2. On the side of the respondents there was no evidence, either oral or documentary. Ext. XI is a court document which is the case diary in Crime No. 229/2005 of Angamaly Police Station registered in respect of the accident in question. After appreciating the evidence on record as also the arguments advanced the Tribunal arrived at the finding that the accident occurred due to the rash and negligent riding of the motor cycle bearing registration No. KL-7/AT-6898 by the second respondent. After appreciating the evidence on record as also the arguments advanced the Tribunal arrived at the finding that the accident occurred due to the rash and negligent riding of the motor cycle bearing registration No. KL-7/AT-6898 by the second respondent. The Tribunal assessed compensation under different heads and awarded a total compensation of Rs.2,56,500/- and directed the first respondent to pay the same to the petitioners. The 3rd respondent was exonerated from the liability to indemnify the first respondent holding that the 2nd respondent had violated the provisions under Section 128 of the M.V. Act which prohibits the rider of a motor cycle from taking more than one pillion rider on the motor cycle. As noticed hereinbefore, both the petitioners and the first respondent got grievances against the said judgment and award and they filed the captioned appeals in the said circumstances with the aforementioned prayers. 4. We have heard Sri. Anil. S. Raj, the learned counsel for the appellants in the former appeal, Sri. P. Radhakrishnan, the learned counsel appearing for the first respondent (the appellant in the latter appeal) and also Sri. M.A. George, the learned counsel appearing for the 3rd respondent - insurer. 5. Evidently, respondents 1 and 3 who contested the matter before the Tribunal admitted the accident and also the fact that the motor cycle Involved in the accident was having a valid packaged policy coverage during the relevant point of time. In the light of the arguments advanced before us we are of the view that it would only be appropriate that the inter se dispute between the first respondent (appellant in the latter appeal) and the 3rd respondent, the insurer be resolved first. As noticed hereinbefore, while admitting the fact that there was a valid packaged policy in respect of the vehicle in question during the relevant point of time the insurer virtually took up twin contentions to avoid its statutory liability. Firstly, it is contended that since the policy is only a packaged policy in the absence of payment of additional premium it would not cover the risk of pillion riders. Further it is contended that it is not liable to indemnify the first respondent owing to the violation of S. 128 of the M.V. Act and therefore, according to the third respondent-insurer the said point was rightly decided by the Tribunal. Further it is contended that it is not liable to indemnify the first respondent owing to the violation of S. 128 of the M.V. Act and therefore, according to the third respondent-insurer the said point was rightly decided by the Tribunal. According to the insurance company such violation would amount to violation of the conditions of policy as well. It is further contended that when the conditions of the policy have been violated the insurer is entitled to take contentions available by virtue of the provisions under S. 149(2) of the M.V. Act and also to avoid the liability to indemnify the insured. Per contra, the contention of the learned counsel for the first respondent - the insured owner is that when once the insurance coverage of the vehicle by a valid packaged policy is admitted and the cause of the accident is established as the rashness and negligence of the rider who was then having a valid driving licence the 3rd respondent is not legally entitled to avoid the statutory liability to indemnify the insured. The said contention is raised based on the indisputable position that the second respondent was having a valid driving licence at the time of the accident. It is further contended that, in such circumstances, the Tribunal had erred in exonerating the 3rd respondent, the insurer from the liability to indemnify the insured on the sole ground that the 2nd respondent, the rider of the motorcycle had violated the provisions under S. 128 of the M.V. Act. In the light of the admitted position that the motor cycle that involved in the accident was having a valid insurance coverage under a packaged policy and that the second respondent, its rider was then having a valid driving licence the question to be resolved is whether violation of the provisions under S. 128 of the M.V. Act by the rider by carrying more than one pillion rider could be the sole reason for exonerating the insurer from the liability to indemnify the insured. Before considering the said question it is only proper to consider the question whether the vehicle in question was covered by only a packaged policy can be a reason for avoiding the liability towards the insured - owner? Before considering the said question it is only proper to consider the question whether the vehicle in question was covered by only a packaged policy can be a reason for avoiding the liability towards the insured - owner? The contention of the third respondent -insurer is liable to fail in the light of a Division Bench decision of this Court in Francis K. T. v. Sabu Augustine & Anr. reported in (2015(4) KLTSN 80(C. No. 102) : 2015 (5) KHC 320 ) rendered, virtually, relying on the decision of the Hon'ble Apex Court in National Insurance Company Limited v. Balakrishnan & Anr. reported in (2012 (4) KLT SN 145 (C. No. 139) SC : AIR 2013 SC 473 ). In the case which was dealt with by the Division Bench the pillion rider sought for compensation for the injury sustained in an accident occurred due to the negligence on the part of the owner-cum-rider of the motor cycle. Evidently, the insurance company attempted to avoid the liability contending that the policy in question is only a Standard Motor Package Policy' and therefore, the insurance company is not liable to pay compensation and in fact, they are entitled to get exonerated from the liability. This Court considered the question whether such a standard motor package policy would cover the pillion rider as well? It was found that the policy in question was earlier a comprehensive policy which was subsequently renamed as "Standard Motor Package Policy". The circular dated 16.11.2009 was issued by the Insurance Regulatory and Development Authority (IRDA) to the effect that a standard motor package policy would also cover the pillion rider. In fact, the question whether a standard motor package policy would cover the case of pillion rider as well was considered by the Hon'ble Apex Court in Balakrishnan's case (supra). Evidently, it was held therein that a Standard Motor Package Policy/comprehensive policy in respect of a private car/two wheeler, by virtue of stipulated extent of premium payable and that it was given as a "package" while covering the risk in respect of the vehicle as well, it should cover the risk of occupants in the private car/pillion rider of the two wheeler. In the said circumstances, the contention that the insurer is not liable to indemnify the insured owner on the ground that the policy in question is a standard motor package policy cannot be sustained. In the said circumstances, the contention that the insurer is not liable to indemnify the insured owner on the ground that the policy in question is a standard motor package policy cannot be sustained. Now, coming to the next question in the context of the contentions it is worthy to extract S. 128 of the M.V. Act which reads thus:-- "128. Safety measures for drivers and pillion riders.-- (1) No driver of a two- wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon." A bare reading of the provisions under S. 128 of the M.V. Act would undoubtedly reveal that it is a provision relating safety measures for drivers and pillion riders. No doubt, in the light of the said provision carrying more than one person in addition to the rider himself in a motor bike would violate S. 128 of the M.V. Act. The learned counsel appearing for the 3rd respondent insurer contended that a Division Bench decision of this Court in Pournami v. Sandhya Sudheer reported in 2008 (4) KLT 817 issued direction for the seizure of two wheeled vehicles carrying more than one pillion rider and held further that in the maximum a small baby could be taken on the vehicle in addition to the permitted number of persons under S. 128 of the M.V. Act. Further, it was held therein that stern action should be initiated against those who committed violation of S. 128 of the M.V. Act. The learned counsel for the insurer, after drawing our attention to paragraph 5 of the said decision, contended that violation of the provisions under Section 128 of the M.V. Act would amount to violation of the conditions of the policy and in such circumstances, the insurer could legally avoid the liability to indemnify the insured. The learned counsel for the insurer, after drawing our attention to paragraph 5 of the said decision, contended that violation of the provisions under Section 128 of the M.V. Act would amount to violation of the conditions of the policy and in such circumstances, the insurer could legally avoid the liability to indemnify the insured. Per contra, the learned counsel appearing for the first respondent/appellant in the latter appeal contended, relying on paragraph 8 of the same decision, that even after finding that carrying more than one pillion rider by a rider of a two wheeled vehicle would violate Section 128 of the M.V. Act this Court held therein that such violation would not absolve the insurer from indemnifying the insured owner on that ground. True that, as per the said decision, even after holding that carrying more than one pillion rider would violate Section 128 of the M.V. Act this Court virtually held it as insufficient to claim for total exoneration of the liability against all the riders, after referring to a decision of the Hon'ble Apex Court in National Insurance Co. Ltd. v. Anjana Shyam (2007 (3) KLT 993(SC)). In Anjana Shyam's case (supra)the Hon'ble Apex Court held that liability under Section 149 of the M.V. Act even to third parties is not in excess of the seating capacity of the vehicle involved in the accident. In that case the insurance company was directed to deposit the amount covered by the number of higher awards equal to the number of permitted passengers and the Tribunal was directed to issue necessary direction to distribute the money so deposited proportionately to all the claimants including those who are not covered by the policy and all the claimants were given the right to recover the balance awarded amount from the insured owner of the vehicle. It is taking note of the said decision that this Court in Pournami's case held as aforesaid. It is only proper and profitable to extract paragraphs 5 and 8 of the decision in Pournami's case (supra) and they run as hereunder:-- "5. A motor bike with seating capacity for two is obviously designed to carry only two passengers. In the first place, there is no space in the bike to be shared by any other person. It is only proper and profitable to extract paragraphs 5 and 8 of the decision in Pournami's case (supra) and they run as hereunder:-- "5. A motor bike with seating capacity for two is obviously designed to carry only two passengers. In the first place, there is no space in the bike to be shared by any other person. If the rider sacrifices his comfortable seat at least in part to accommodate a third passenger, certainly, he will not be able to control the bike. Besides this, since the bike is designed to carry only two passengers, additional weight on account of third passenger will affect its stability. However, in violation of S. 128 of the M.V. Act, three passengers and very often children are taken in two wheelers along with rider and pillion rider as in this case. The Supreme Court in the decision reported in National Insurance Co. Ltd. v. Aniana Shvam (2007 (3) KLT 993 (SC) held that the Insurance Company's liability under S. 149 of the M.V. Act even to third parties is not in excess of the seating capacity of the vehicle involved in the accident. So much so. under no circumstances more than two persons travelling in a bike involved in the accident are entitled to compensation. Even though S. 128 of the M.V. Act bars the driver of a motor bike from taking more than one pillion rider and though the provision is more often violated than observed, the Motor Vehicle and the police authorities do not take serious note of this. May be petty traffic cases are booked against such people and matter is settled on payment of paltry sum of fine. 8. So far as entitlement of compensation for the appellants is concerned, we agree with the view taken by the Tribunal that contributory negligence is presumed when the motor bike involved in the accident is overloaded with two additional passengers over and above the permitted two passengers. However, in this case we notice that the children travelling along with the parents in the bike were of tender age and their weight would not have made the vehicle unstable. Therefore, on facts we estimate contributory negligence at 25% and uphold entitlement of the appellants for getting the balance compensation fixed by the Tribunal from the insured and the insurer of the offending vehicle. Therefore, on facts we estimate contributory negligence at 25% and uphold entitlement of the appellants for getting the balance compensation fixed by the Tribunal from the insured and the insurer of the offending vehicle. Since the offending vehicle was the car and the driver remains charge sheeted and pleaded guilty, the insurer and insured are liable to pay compensation. Since the Supreme Court has held that third party claim has to be borne by the insurer even if the vehicle was carrying more than the permitted number of passengers, the insurer is liable to pay compensation to the appellant. The appellants are, therefore, entitled to 75% of the compensation which the Insurance Company is directed to deposit with 7.5% interest from the date of application till date of deposit." Paragraph 8 extracted above would thus make it clear that in the light of the decision of the Apex Court in Anjana Shyam's case this Court upheld the entitlement of the appellants for getting 75% of the compensation from the insurance company after estimating contributory negligence at 25% owing to the fact that the motorbike involved in the accident was overloaded with two additional passengers over and above the permitted two passengers. Evidently, for upholding the entitlement of the appellants-injured the facts that the two tender aged children were travelling along with their parents and their weight would not have made the vehicle unstable, were also noticed by this Court. 6. In the context of the facts and contentions the decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. K.M. Poonam & Ors. reported in 2011 (1) KLTSN 108 (C. No. 152) SC : 2011 (2) KLJ 426 (SC) becomes aptly applicable. 6. In the context of the facts and contentions the decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. K.M. Poonam & Ors. reported in 2011 (1) KLTSN 108 (C. No. 152) SC : 2011 (2) KLJ 426 (SC) becomes aptly applicable. Going by the said decision if accident is occurred to an overloaded vehicle violation of the statutory provision and conditions of insurance policy and permit cannot be a reason for the insurance company to disclaim liability in its entirety whereas in case of failure to establish that there is a fundamental breach of a condition which would enable it to disclaim liability, despite the fact that it is the insured owner's liability to compensate those who travelled in the vehicle in excess of the permitted number of persons to be carried and that the liability of the insurer is confined only to satisfy the highest awards equivalent to number of permitted passengers covered by the policy, the insurance company has to satisfy all awards with liberty to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons actually covered by the insurance policy, from the owner of the vehicle. Evidently, the Apex Court held so, in tune with its directions in an earlier decision of a three Judges Bench in National Insurance Co. Ltd. v. Baljit Kaur reported in 2004 (1) KLT 938 (SC) : (2004) 2 SCC 1 . We have gone through the decision in Poonam's case (supra). It is apposite to refer to paragraphs 18, 19, 24 to 26 of the said decision in the context of the contentions advanced in these appeals and they read thus:-- "18. The aforesaid issue once again surfaced in the case of National Insurance Co. Ltd. v. Swaran Singh (2004(1) KLT 781 (SC) : (2004) 3 SCC 297 ), where the provisions of Section 149 and also Section 147 fell for consideration. While considering the liability cast upon an insurer under Section 149(1) and the limited grounds of liability in the insurance contract and third party claims as envisaged in the Proviso to Section 149(4), this Court also had occasion to refer to Section 147 relating to the statutory liability and any contractual liability under the insurance contract and whether the contractual exclusion of liability in respect of third party claim was permissible. The three Judge Bench held that such a condition in the insurance policy, whereby the right of the third party Is taken away would be void and that except under the situation provided for by Section 149(2)(b). the insurer would not be entitled to avoid its statutory liability, since its rights of recovery were preserved against the insured under the Proviso to Section 149(4) of the 1988 Act. 19. While the aforesaid judgment was delivered on 5th January, 2004, on the very next day, another three-Judge Bench of this Court rendered a decision in National Insurance Co. Ltd. v. Baljit Kaur (2004 (1) KLT 938 (SC): (2004) 2 SCC 1 ), in the context of the provisions of Section 147(1)(b) of the 1988 Act after its amendment in 1994. While referring to the earlier decision in the reference decided in Asha Rani's case (supra), their Lordships held that inspite of the amendment effected to Section 147 (1)(b) in 1994, the position remained the same in respect of persons other than the owner of the goods and his authorized representative being carried in the goods vehicle. It was held that it was not the intention of the legislature to provide for the liability of the insurer with respect to passenger, especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. It was, therefore, felt that the interest of justice would be subserved if the Insurance Company satisfied the awarded amount and recovered the same from the owner of the vehicle and for the said purpose it would not be necessary for the Insurance Company to file a separate suit, but to initiate a proceeding before the executing Court as if the dispute between insurer and the owner was the subject matter of the determination before the Tribunal which had decided in favour of the insurer and against the owner of the vehicle. 24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. 24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liabilty of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 25. As mentioned hereinbefore, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, travelling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal. 26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam's case (supra). 26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam's case (supra). The number of persons to be compensated being in excess of the number of persons who could validity be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case." It is to be noted that the decision of the Hon'ble Apex Court in Anjana Shyam's case (supra) which was relied on by this Court in Pournami's case (supra), was also referred to by the Hon'ble Apex Court in Poonam's case (supra). As has been done by a Division Bench of this Court in Pournami's case by relying on Anjana Shyam's case we wean it only appropriate, to follow the dictum laid down in Poonam's case (supra) despite the fact that the vehicle involved in this case is only a two wheeled motor cycle unlike in Anjana Shyam's case and there is violation of Section 128 of the M.V. Act. In fact, we are bound to follow the dictum laid down in Anjana Shyam's case in the light of the constitutional mandate under Article 141 of the Constitution of India. 7. It is a fact borne out from the pleadings in the written statement filed by the first respondent that at the time of the accident the 2nd respondent besides himself was carrying two pillion riders on the motorcycle. 7. It is a fact borne out from the pleadings in the written statement filed by the first respondent that at the time of the accident the 2nd respondent besides himself was carrying two pillion riders on the motorcycle. In fact, it was thereafter that the 3rd respondent filed additional written statement taking up the contention of violation of Section 128 of M.V. Act and consequently the entitlement of the insurance company to disclaim liability. The police records would also reveal that the second respondent was riding the motorcycle in question with two pillion riders. PW2 is the Circle Inspector of Police, Agamaly who laid Ext. A4 charge sheet in Crime No. 229 of 2005 of Angamaly Police Station after the investigation of the said crime registered in connection with the accident. In fact, Ext. A1 F.I.R. was registered based on the F.I. Statement of one Venugopal who is the younger brother of one Mr. Manoj, the other pillion rider who also lost life in the very accident in question. The second respondent remained ex parte. In the circumstances, in the light of Exts.A1 F.I.R., Ext. A4 charge sheet and the evidence of PW2 together with Ext. X1, the case diary in Crime No. 229 of 2005 of Angamaly Police Station the factual finding of the Tribunal based on the case of the first and third respondents that there were two pillion riders viz., Messrs. Sibi @ Babu and Manoj on the motor cycle ridden by the 2nd respondent can only be taken as the outcome of proper appreciation of evidence. As noticed hereinbefore, by virtue of the decision in Pournami's case (supra) carrying two pillion riders by the rider of a two wheeled vehicle will amount to overloading and such an action will also be violative of Section 128 of the M.V. Act. But then, in the light of the decisions referred (supra) that cannot certainly be a reason for exonerating the insurer of the statutory liability to indemnify the insured owner in respect of the permitted number of riders. In all the aforementioned decisions it was categorically held that even in the case of overloading the insurer is liable to indemnify the insured owner in respect of the number of passengers/riders permitted to be carried in the vehicle concerned. In all the aforementioned decisions it was categorically held that even in the case of overloading the insurer is liable to indemnify the insured owner in respect of the number of passengers/riders permitted to be carried in the vehicle concerned. When the position of law is that in respect of the number of persons actually covered by the policy the insurance company is bound to indemnify the insured owner and in respect of the compensation payable in excess of the permitted number of persons to be carried in the vehicle after effecting the payment it could recover the amount from the owner of the vehicle the question to be looked into is how many claim petitions were filed in respect of the aforesaid occurrence involving the motor cycle in question? There is nothing on record suggesting that the insurer had already indemnified the insured-owner viz., the first respondent in respect of the permitted number of riders in relation to the accident in question. In fact, none of the respondents got any such case. We have already found that the contention of the insurance company that the policy covering the offending vehicle is a packaged policy and therefore, would not cover the risk of the pillion rider of the motor cycle involved in the accident cannot be upheld. At the same time, in view of the decisions in Poonam's case and Pournami's case (supra) even if the number of claimants exceeds the number of persons permitted to be carried in an insured vehicle rather, the number of persons actually covered by the policy the insurance company is bound to indemnify such number of persons actually covered by the policy and in respect of those who are in excess of the permitted number the insurer has to pay the awarded amount and to recover the amount paid in excess. Now, the position obtained in this case that claim of only one pillion rider is to be satisfied at present and in the absence of anything on record to show that the insurance company would be called upon to pay compensation in excess of the number of permitted passengers (riders) at present the insurance company cannot be permitted to wriggle out the statutory liability solely because the offending motor cycle was overloaded at the time of the accident. In other words, in the light of the aforesaid decisions and in view of the factual position obtained in this case solely because of the violation of the provisions under Section 128 of the Act the insurer cannot either seek exoneration from the liability to indemnify the insured/the first respondent or claim liberty to pay and recover by virtue of the provisions under Section 149(4) of the Act. In the light of the discussion as above, we are of the view that the appeal preferred by the insured/the first respondent is liable to succeed and the finding of the Tribunal to the effect that the 3rd respondent insurance company is not liable to indemnify the first respondent is liable to be vacated. Accordingly, it is set aside. We make it clear that we are not foreclosing the right of the insurer to take up appropriate contentions in the light of the aforesaid cases in case it is to resist any cairn petition if filed/pending in respect of the same occurrence. In the result, M.A.C.A. No. 1022 of 2012 filed by the first respondent, the owner of the vehicle in question who insured the vehicle with the 3rd respondent, is allowed holding that the 3rd respondent is liable to indemnify the first respondent in respect of the compensation payable to the petitioners/appellants in the former appeal as he was found vicariously liable for the act of the second respondent. 8. Now, we will consider the former appeal filed by the claimants. The question is whether or not they are entitled to get enhanced compensation? The learned counsel appearing for the appellants contended that the amounts of compensation awarded by the Tribunal under various heads are inadequate and it resulted in denial of just compensation. Towards funeral expenses the Tribunal granted only an amount of Rs.2,500/-. In the light of the decision of the Hon'ble Apex Court in Rajesh v. Rajbir Singh (2013 (3) KLT 89 (SC)) an amount of Rs.25,000/- has to be the minimum amount to be awarded under the said head in the absence of evidence for higher expenses. In this case, no evidence of having incurred more than Rs.25,000/- is tendered by the appellants. Thus, the appellants are entitled to get an amount of Rs.25,000/- under that head in terms of the said decision. In this case, no evidence of having incurred more than Rs.25,000/- is tendered by the appellants. Thus, the appellants are entitled to get an amount of Rs.25,000/- under that head in terms of the said decision. After deducting the amount already awarded by the Tribunal the appellants are entitled to get an additional amount of Rs.22,500/-. Towards pain and suffering the appellants claimed an amount of Rs.20,000/- and the Tribunal granted only Rs.5,000/-. The indisputable facts in this case would reveal that the accident occurred at 11 p.m. on 6.4.2005 and Sibi breathed his last at 1 a.m. on 7.4.2005. Ext. A5 wound certificate would reveal the injuries sustained by the deceased in the accident as follows: "Patient conscious disoriented. Lacerated wound (L) forehead 7 x 1 cm. Parietal scalp 5x1 cm. # Coracoid (L) #(L) frontal bone # Anterior skull loss." It would also reveal that Sibi was brought in a conscious stage to the hospital. Taking into account the said circumstances it is evident that he suffered excruciating pain owing to the injuries for about two hours. In the said circumstances, we are inclined to grant Rs.10,000/- towards pain and suffering. In other words, the appellants are entitled to get Rs.5,000/- more under the said head and it is awarded. The learned counsel for the appellants contended that an amount of Rs.5,000/- was claimed under the head ' loss of estate' but, the Tribunal granted only an amount of Rs.2,500/-. Going by the decision of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation reported in 2010 (2) KLT 802 (SC) under the head loss of estate an amount ranging between Rs.5,000/- to Rs.10,000 could be granted. Since the appellants claimed an amount of Rs.5,000/- we are of the view that the appellants are entitled to get Rs.2,500/- more under the said head and accordingly, it is awarded. The main grievance of the appellants lies with respect to the manner in which the loss of dependency was arrived at by the Tribunal. It is contended by the learned counsel that the Tribunal has wrongly fixed the multiplicand as also the multiplier. It is specifically asserted in the claim petition that the deceased was working as a sales executive under the HDFC Bank and was earning Rs.6,0007-per month. It is contended by the learned counsel that the Tribunal has wrongly fixed the multiplicand as also the multiplier. It is specifically asserted in the claim petition that the deceased was working as a sales executive under the HDFC Bank and was earning Rs.6,0007-per month. But, at the same time, it is to be noted that no material whatsoever was produced by the appellants in support of the contention that the deceased was working with HDFC Bank and that he was drawing an amount of Rs.6,000/- as monthly salary. In such circumstances, it cannot be said that the Tribunal had committed an error in fixing the monthly income nationally. But, the question is whether its fixation as Rs.3,000/- invites interference. While considering the said question the decision of the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited (2011 (3) KLT Suppl.80 (SC) : (2011) 13 SCC 236 ) has to be borne in mind. The accident involved in that case had occurred in the year 2004 and the Hon'ble Apex Court fixed the monthly income of the claimant as coolie, notionally at Rs.4,500/-. In the case on hand, the accident occurred in the year 2005 and deceased Sibi was then aged 24 years only. In the said circumstances, we are of the view that it is proper and just to fix his monthly income notionally at Rs.4,500/- for calculation purpose. The learned counsel for the appellants contended that in the light of the decisions in Sarla Verma's case as also in Rajesh v. Rajbir Singh (2013 (3) KLT 89 (SC)) while considering the compensation payable under the head 'loss of dependency' and for that purpose for arriving at the multiplicand, an addition of 50% has to be made to the actual income of the deceased taking into account the fact that the deceased was aged only 24 years at the time of the accident and would have had bright prospects but for the untimely death. Per contra, the learned counsel for the insurer contended that the decisions in Sarla Verma's case and Rajesh's case (supra) cannot be made applicable in the case on hand as, the deceased was neither a salaried person nor a self employed person or person with fixed wages. Per contra, the learned counsel for the insurer contended that the decisions in Sarla Verma's case and Rajesh's case (supra) cannot be made applicable in the case on hand as, the deceased was neither a salaried person nor a self employed person or person with fixed wages. True that in Rajesh's case (supra), the Hon'ble Apex Court held that even in the case of self employed persons or persons with fixed wages under the age of 40 years they are entitled to get 50% of the actual income added as future prospects to the income for the purpose of deciding the multiplicand while computing the compensation to be awarded under the head loss of dependency. As noticed hereinbefore, though the petitioners - appellants made a specific assertion regarding occupation and income they had failed to establish the same. At any rate, in such circumstances, he cannot be said to be a salaried person. The learned counsel for the petitioners-appellants contended that a cookie worker also has to be treated as a self employed person. For the purpose of delving into the said question deeper it is only apposite to refer to paragraphs 10 and 11 of Rajesh's case (supra):-- "10. Consequently, it has been held at Paragraphs 14 to 18, as follows: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be have to say that the wages or total emoluments/income of a person who is self - employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living effects everyone. 15. The rise in the cost of living effects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. 15. The rise in the cost of living effects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their facilities. 16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. 17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up. it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like-barber, blacksmith, cobbler, mason etc. 18. If the cost of living increases and the prices of essentials go up. it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like-barber, blacksmith, cobbler, mason etc. 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who say that a person who is self - employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." 11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years." The aforequoted paragraph 17 of the decision in Santosh Devi v. National Insurance Company Ltd. & Ors. (2012(2)KLTSN 100(C. No. 94) SC : AIR 2012 SC 2185 ) which was extracted in Rajesh's case would reveal that to exemplify the entitlement of self employed persons forgetting addition to the income reckoning future prospects the case of a tailor who earns his livelihood by stitching cloths was taken by the Hon'ble Apex Court. (2012(2)KLTSN 100(C. No. 94) SC : AIR 2012 SC 2185 ) which was extracted in Rajesh's case would reveal that to exemplify the entitlement of self employed persons forgetting addition to the income reckoning future prospects the case of a tailor who earns his livelihood by stitching cloths was taken by the Hon'ble Apex Court. It was also held:-- "If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour." What is more relevant to note is the observation "so will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc." Thus, a scanning of the said decisions would reveal that even in the case of self employed persons with a view to meet the challenges posed by the hike in the cost of living, price index etc., they would also make periodical increase to cost of their labour. Obviously, the services of such self employed persons would not be available all the times at the same rate and to cope up with such situations they would also make an increase to the cost of their labour. Such situation that is almost certain and bound to happen cannot be ignored while fixing the multiplicand for the aforesaid purpose. The observations of the Hon'ble Apex Court in paragraphs 14 and 15 in Santosh Devi's case (supra) virtually quoted with approval in Rajesh's case (supra) would also applicable in the case of persons who earn their livelihood by doing coolie activities. The examples given in paragraph 17 with respect to the category of persons who may fall under the category in self employed persons' would undoubtedly reveal that in regard to the nature of their work there is certainty or definiteness. In other words, they took to a particular nature of work. But, in the case of persons doing coolie works at no stretch of imagination one can say there is certainty and definiteness in the nature of their works. Depending upon the demand by persons who require their services they may engage in a particular activity on a day and another activity on another day. There can also be no definite place of work in their case. Depending upon the demand by persons who require their services they may engage in a particular activity on a day and another activity on another day. There can also be no definite place of work in their case. The availability of opportunity to do work, in their case, would depend upon requirement of their service by somebody or in other words, it cannot be said that they are self employed. Taking into account such aspects, one can find a subtle distinction in the nature of status of self employed persons or persons with fixed wages and coolie workers. The increase in the cost of their work is not steady as in the case of other types of work. True that it cannot be said that the increase in the cost of living as also the price hike would not have any reflection in the cost of their labour. It is also true that as in the case of self employed persons there is no retirement age for them. Taking into account all such circumstances, all the aforesaid aspects should be taken into account even in the case of coolie workers for the purpose of deciding the multiplicand in a claim for compensation for death in a petition filed under Section 166 of the M.V. Act. We are of the view that, in such circumstances, 30% enhancement to the income fixed could be granted reckoning future prospects in the matter of fixation of multiplicand even in the case of such persons. Admittedly, the deceased was a bachelor. In the said circumstances, going by the decision of the Hon'ble Apex Court in Sarla Verma's case (supra) 50% has to be deducted towards the personal expenses of the deceased. With respect to the multiplier to be applied there can be no dispute. With reference to the age of the deceased viz., 24 years, it has to be taken as 18' going by Sarla Verma's case (supra). Computing the amount to which the appellants-petitioners are entitled to get under the head loss of dependency by applying the aforesaid factors the appellants are entitled to get an amount of Rs.6,31,8007-(2925 x 12x18). Deducting the amount already awarded by the Tribunal viz., Rs.2,34,000/- the appellants are entitled to get an additional amount of Rs.3,97,800/- under that head. Computing the amount to which the appellants-petitioners are entitled to get under the head loss of dependency by applying the aforesaid factors the appellants are entitled to get an amount of Rs.6,31,8007-(2925 x 12x18). Deducting the amount already awarded by the Tribunal viz., Rs.2,34,000/- the appellants are entitled to get an additional amount of Rs.3,97,800/- under that head. Towards loss of love and affection the appellants - petitioners claimed an amount of Rs.30,000/- and the Tribunal granted only Rs.10,000/-. Taking into account the fact that the deceased was the only son of the first appellant and the only brother of appellants 2 and 3 we are of the view that under the head of loss of love and affection they are entitled to get the amount as claimed. Therefore, they would be entitled to get an additional amount of Rs.20,000/- under that head. By virtue of the estimation and enhancement of compensation made as above, the appellants - petitioners are entitled to get an additional amount of Rs.4,47,800/-. 9. In the result: M.A.C.A. No. 999 of 2011 This appeal is allowed. The 3rd respondent is directed to deposit the entire awarded amount viz., the amount covered by the impugned award and also the enhanced amount granted by us viz., Rs.4,47,800/-, with interest at the rate of 8% per annum from the date of petition till realisation. This shall be deposited within three months from the date of receipt of copy of this judgment. In case of failure to deposit the amount in terms of this judgment the amount remaining to be paid will carry interest at the rate of 9% from the date of petition. M.A.C.A. No. 1022 of 2012 This appeal is allowed to the extent sought for. Since the third respondent is liable to indemnify the first respondent who is the insured owner the first respondent/the appellant is entitled to get the amount already deposited to satisfy the award dated 16.2.2011 in O.P.(M.V.) No. 1925 of 2005 refunded, on application. The learned counsel appearing for the insurer submitted that an amount of Rs.50,000/- was already deposited by the insurer under s. 140 of M.V. Act. Needless to say that the insurer need only to deposit the balance amount to satisfy the award within three months. There will be no order as to costs in both the appeals.