The judgment established the principle that the insurance company is liable to pay compensation unless the insured is at fault and guilty of a breach of the condition, as per legal precedents.

SUBHASH SAMVATSAR, J.

( 1 ) THIS appeal is filed by the claimants under section 173 of Motor vehicles Act challenging the award dated 13. 7. 1999 passed by the Motor Accidents claims Tribunal, Gohad, District Bhind, in claim Case No. 14 of 1995.

( 2 ) THE brief facts of the case are that the claimants have filed this claim petition alleging that Govind Singh, husband of claimant No. 1 and father of claimant Nos. 2 and 3 died in the motor accident on 20. 3. 1995. At the time of the accident he was travelling in jeep No. MP 9-A 0963. Tempo No. MP 06-9994 which was coming from opposite side dashed against the jeep which has resulted in the accident. According to the claimants both jeep as well as tempo were driven rashly and negligently by the drivers which has resulted in the accident in which Govind Singh died. The tribunal after recording the evidence and appreciating the same has passed the award of Rs. 1,24,388 in favour of the present appellants with interest at the rate of 12 per cent per annum. At the time of passing of award the Tribunal exonerated Oriental insurance Co. Ltd. , the respondent No. 4, from its liability. Tempo was not insured. Hence, the owner and driver of the said vehicle were also held jointly responsible for the said accident.

( 3 ) THE contention raised by the counsel for the appellants is that the insurance company, respondent No. 4, is wrongly exonerated by the Claims Tribunal and amount of compensation is also on the lower side.

( 4 ) AS regards the amount of compensation is concerned, as per finding of the court below, Govind Singh died in the said accident. The accident has taken place due to rash and negligent driving of the drivers of both the vehicles. Govind Singh was aged about 42 years. The Claims Tribunal has assessed his income at Rs. 1,200 per month. The accident has taken place after amendment of 1994 in the Motor Vehicles act. Hence, for assessing the dependency of the deceased his income will have to be calculated on the basis of notional income which is Rs. 15,000 per annum. Thus, the dependency of the deceased will come to rs. 10,000 per annum. Deceased was 42 years of age as per finding of the Tribunal. Hence the multiplier 15 will be applicable. Thus, the total compensation comes to rs. 1,50,000. Apart from this amount the claimants are entitled to other amount for funeral expenses, pain and suffering, loss of consortium, Claims Tribunal awarded rs. 10,000 towards these heads. Thus, the total compensation comes to Rs. 1,60,000.

( 5 ) AS regards, question of liability is concerned, the contention of the insurance company is that the jeep which was private vehicle was used as taxi on hire and reward which is contrary to the terms of the policy, exh. Dl. On this plea the court below has framed issue No. 7 which is decided in para 16 of the judgment. The Claims Tribunal on the basis of statement of Bhupendra, aw 2, in his cross-examination has come to the conclusion that the deceased and other passengers were travelling in the jeep after paying fare. Bhupendra in para 4 of his statement has admitted the fact that 8 to 9 persons were travelling in the vehicle and they have paid the fare of Rs. 2 each. Considering this fact, the court below has held that the vehicle was used as taxi and, therefore, the insurance company is not liable.

( 6 ) ON this question the contention of the learned counsel for appellants is that there is no evidence on record to show that the vehicle was used as taxi for commercial purpose. The counsel for the appellants has relied on the Division Bench judgment reported in New India Assurance Co. Ltd. v. Bafatbai, 1996 ACJ 336 (MP ). The division Bench of this court has held that the occasional use of the vehicle for commercial purpose does not absolve insurance company from payment of its liability. However, from the perusal of the policy, exh. Dl, which is admitted by claimants, I find that there is clause under section II (1)to the effect that insurance company

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