The compensation for the death of an elephant should be treated on par with human beings, and the specific permission is required for the Insurance Company to contest the claim under Section 170 of the Act.

Vineet Kothari, J.-Since these two appeals are arising out of the same award dated 16.08.1993 passed by the Motor Accident Claims Tribunal, Jaipur District, Jaipur (hereinafter referred to as ‘the Tribunal’), therefore, the same are being disposed of by this common Judgment .

2. The Tribunal while deciding claim case No. 819 of 1991 vide its award dated 16.08.1993 awarded a compensation of Rs. 2,90,000/-alongwith interest @ 12% per annum in favour of the claimant on account of death of his elephant named Babli, who died upon being hit by offending jeep bearing Registration No. RNX-9550, which was driven in rash and negligent manner by Respondent No. 1, Saddiq Khan, on 110.1998. The said jeep while coming from the opposite side on Amer Fort Road, Jaipur hit the said elephant, which was carrying the tourists over it and as a result of the said hitting, the said elephant suffered injuries and died after three days.

3. The Tribunal decided Issue No. 1 in favour of the claimant and held that the death of the elephant was on account of the said accident only, therefore, the owner of the elephant was entitled for the compensation. The Tribunal awarded Rs. 1 lac towards the cost of the elephant, which was aged about 35 years at the time of said accident. The Tribunal has also awarded Rs. 1,80,000/- towards the loss of income to the owner which the said elephant would have earned for the owner by being engaged in the tourist activities and Rs. 10,000/-for the funeral expenses. Thus, the Tribunal awarded a total compensation of Rs. 2,90,000/-, which was directed to be paid with 12% interest from the date of filing of the claim petition i.e. 211.1998 within a period of two weeks, failing which the rate of interest would be increased from 12% of 15%.

4. Learned Counsel for the Insurance Company, Mr. Ram Singh Rathore, submits that the compensation awarded by the Tribunal, is excessive and since the cost of the elephant was awarded by the Tribunal the owner thereof could have purchased a new elephant and, therefore, nothing should have been awarded by the Tribunal under the head of loss of income. He also assails the higher rate of interest of 12% particularly the penal rate of interest of 15%. He informs this Court that the Insurance Company has deposited Rs. 80,000/

- as directed by this Court vide order dated 21.01.1994.

5. Mr. G.K. Bhartiya, learned Counsel for the owner of the elephant, firstly submits that the Insurance Company cannot raise the ground of quantum of compensation since the owner and driver of the offending jeep were represented before the learned Tribunal and had contested the claim and no permission has granted by the Tribunal to the Insurance Company under Section 170 of the Act and, therefore, grounds relating to quantum of the compensation cannot be raised. Secondly, relying on the Judgment of Karnataka High Court in the case of New India Assurance Company Ltd. vs. Kalappa Channappa Hanchimani & Anr., reported in 2005 (3) ACC 104, he submits that the elephants have to be treated as living being at par with human beings within the meaning of Section 147(2)(b) of the Act and, therefore, the compensation even on account of loss of income which the owner of such living elephant suffers, can be awarded by the Tribunal. In the said Judgment , the Hon’ble Karnataka High Court has upheld the award of the Tribunal to the extent of Rs. 26,000/-for the loss of one bullock and Rs. 5,000/-towards injury to another bullock and Rs. 6,000/-towards damage of bullock cart in a road accident. He further submits that the claim deserves to be enhanced as the income earned by the said owner of the elephant would have increased over the period and the age of the elephant is normally 90 and 100 years and, therefore, number of working years for the said elephant would have been more.

6. Mr. Ashutosh Bhatiya, learned Counsel for the driver submits that the Insurance Company would be liable to pay the compensation, if any and the dr