The main legal point established in the judgment is the interpretation of the liability of the insurance company in a motor vehicle accident case under Section 149 of the Motor Vehicles Act, and the attribution of contributory negligence to the deceased.

AMIT RAWAL J.

1. This order of mine shall dispose of two appeals bearing Nos.5232 of 2010 filed by the State of Haryana and another is FAO No.123 of 2011. The former is challenging the liability and the latter is for enhancement of compensation by the claimants.

2. The case stated before the Tribunal is that the deceased-Shamsher Singh @ Raju, aged 17-18 years, being a student and was allegedly working as helper with a Carpenter, had boarded a bus bearing registration No.HR-57/1384 owned by Haryana Roadways insured with ICICI Lombard indemnifying the owner. The Tribunal had absolved the liability of the insurance company on the ground of alleged breach of terms and conditions of the insurance company and awarded a compensation to the tune of Rs. 3,09,000/- by taking the income of the deceased as Rs. 3600/- per month, applying a multiplier of 16 and deduction of 1/3rd.

3. Mr. Sandeep Moudgil, Addl. A.G., Haryana appearing on behalf of the State in FAO No.5232 of 2010 submits that the insurance company had failed to prove on record the insurance policy except by tendering insurance policy by suffering a statement dated 08.03.2010 as reflected in the zimni order dated 08.03.2010 of the Tribunal.

4. He further submits that students sat on the roof of the bus driven by the driver, though in examination-in-chief it has been categorically stated that the driver and conductor did not permit them to sit on the roof and even request was made to come down but they did not alight the bus and therefore, all preventive measures which the driver could take, had been taken and in this respect, the insurance company cannot be absolved from the liability. In support of his contention relies upon judgment of Division Bench of this Court in The Oriental Insurance Co. Ltd. Vs. Smt. Meena Devi and others 2014 ACJ 17.

5. He further submits that vide order dated 08.03.2010, the insurance company had only appended the policy i.e. first page and not the other pages. The first page of the policy had mentioned about the carrying capacity of the vehicle insured as 52 passengers. This aspect has not been noticed by the Tribunal and therefore, finding on issue No.1 is liable to be modified and the liability should have been fastened on the insurance company. The Tribunal has grossly erred in granting the recovery rights to the insurance company.

6. In the appeal bearing No.123 of 2011, the claimants have sought enhancement of compensation on the premise that admittedly, the deceased was 17-18 years old and instead of multiplier of 16, it should have been 18. No compensation has been assessed for loss of love and affection, much less, the funeral expenses are also very meager, therefore, the amount of compensation is required to be increased. The Tribunal should have taken the income of the deceased more than Rs. 3600/- as he was a Helper with the Carpenter.

7. Ms. Vandana Malhotra, learned counsel appearing on behalf of the insurance company submits that there is breach of terms and conditions of the insurance policy as in case of any passenger found sitting outside the bus i.e. atop the bus, the insurance company is required to be absolved. In support of her contention, relies upon the judgment of Division Bench of Karnataka High Court in Karnataka State Road Transport Corporation Vs. Lakkappa Hiremanappa Lamani and others 2005 ACJ 1981 whereby the liability to the extent of 80:20 i.e. contributory negligence viz-a-viz the claimant had been apportioned. However, in the other judgment rendered by the Himachal High Court in HRTC Vs. Rajesh Kumar and others 2006 (41) AIC 733, the contributory negligence was apportioned to the extent of 50%.

8. In order to lend support to her contention, she has drawn attention of the Court to the statement of driver, RW-1 Harbans Singh that once passengers were repeatedly requested to come down and refused, they have taken the risk of travelling and travelled on the roof of the bus at their own peril.

9. I have heard learned