1. This appeal and the cross objections arise out of the order of the Tribunal established under the Motor Vehicles Act dated 27.5.1964 awarding a sum of Rs. 5,000/- by way of compensation to the legal representatives of Bihari Lal who is alleged to have died in a motor accident on 15.6.1959 The appeal is filed by the Vanguard Insurance Company with which the vehicle involved in the accident was insured against the award of compensation in favour of the legal representatives of Bihari Lai. The cross objections are filed by these legal representatives for enhancement of the compensation awarded by the Learned Tribunal. The legal representatives of Bihari Lal, who will be hereinafter referred to as the respondents, filed an application under section 110-A of the Motor Vehicles Act hereinafter referred to as the Act claiming compensation of Rs. 20,000/- from the driver and owner of the motor vehicle and also from the Insurance Company with which the said vehicle was insured. According to the averments in this application the deceased Bihari Lal along with 3 other persons was sitting on the back of the motor vehicle No. DLP-1804 which was a truck and that the driver of the truck while reversing the vehicle struck against a tree with the result that deceased Bihari Lal was crushed between the trunk of the tree and the body of the truck. Deceased Bihari Lal was removed to the Irwin Hospital where he succumbed to the injuries on the next day. According to the respondents the accident occurred due to the negligence and carelessness on the part of the driver of the truck. The deceased was earning Rs. 4/- per day. The respondents estimated the pecuniary loss sustained by them by the untimely death of the deceased at Rs. 20,000/- and claimed this amount from the driver and the owner of the motor vehicle as well as from the appellant.

2. The driver and the owner of the motor vehicle did not contest the claim of the respondents but the Insurance Company resisted the claim on various grounds. It was contended firstly that the Tribunal had no jurisdiction to entertain the application and that it was only the commissioner appointed under the Workmen's Compensation Act who had jurisdiction to enquire into the petition. It was also contended that the accident was not caused by the negligence or carelessness of the driver of the truck as alleged in the petition. On these pleadings the following issues were framed:—

(1) Whether the accident was caused due to rash and negligent driving by respondent No. 1 in the course of employment and control of respondent No. 2?

(ii) Whether the applicants are legal representatives of the deceased?

(iii) To what amount of damages are the petitioners entitled.

(iv) Whether this Tribunal has no jurisdiction to try the present claim on the ground taken in Paragraphs 1 and 2 of the preliminary objections of the written statement of respondent No. 3?

3. The learned Tribunal held all these issues in favour of the respondents herein and awarded compensation of Rs. 5,000/- to them and made the Insurance Company liable to pay the said compensation.

4. The learned counsel for the appellant, Mr. H.S Dhir challenged the jurisdiction of the Tribunal to entertain the claim put forward by the respondents. His contention is that the deceased Bihari Lal was a workman as defined in section 2(1)(n) of the Workmen's Compensation Act and that the accident occurred in the course of his employment and the claim for compensation if any ought to be made under the Workmen's Compensation Act. This contention however, is not supported by the evidence in this case. According to A.W 2 and 3 who are said to be the other persons who were in the truck at the time of the accident, they as well as the deceased had undertaken the work of loading and unloading manure in the truck on contract basis and further that they had been engaged for this work by the driver of the truck. The truck owner himself is not carrying on any business in manure. His business consists only for plying the truck on hire for other persons. The truck had been engaged by a third person for the carrying of manure and it was for the work of the said third person that the deceased and his companions were engaged by the driver of the truck on contract basis. There was thus no relationship of employer and workman between the deceased and the owner of the truck. The deceased might or might not be workman vis-a-vis the third person who had engaged the truck on hire for the purpose of carrying manure but so far as the owner of the truck is concerned the deceased was not a workman employed by him. Therefore, the claim for compensation for the death of the deceased in the motor accident does not come within the scope of the Workmen's Compensation Act.

5. Secondly, the claim for compensation has been made against the Insurance Company also. There is no provision in the Workmen's Compensation Act for a claim against an Insurance Company. Such a claim arising out of a motor accident can be made only under sections 95 and 96 of the Motor Vehicles Act. If it is proved that the deceased was a workman vis-a-vis the owner of the truck then of course under the first proviso to sub-section (1) of section 95 the liability of the Insurance Company is restricted to the amount of compensation which was payable to the workman or to his legal representatives under the Workmen's Compensation Act. But in this case it has not been proved that the deceased was a workman vis-a-vis the owner of the truck. Therefore, the liability of the Insurance Company to pay compensation is in no way different than its liability to pay compensation in respect of claims which do not come within the scope of the Workmen's Compensation Act.

6. The next question for consideration is whether the accident occurred due to the negligence or carelessness of the driver of the truck. Normally, under section 96 of the Act it would not be open to the Insurance Company to resist the claim for compensation on the ground that the accident did not occur due to the rashness or negligence of the driver of the motor vehicle. But there is an exception to this general rule namely when under the Insurance policy itself the Insurance Company had reserved a right to resist such a claim on all the grounds on which such a claim could be resisted by the owner of the vehicle, it would be open to the Insurance Company to resist the claim on the ground that the accident did not occur due to the negligence of the driver of the vehicle. In this case the Insurance Company obtained the permission of the learned Tribunal to resist the claim of the respondents on the above grounds.

7. The evidence of AWs. 2 and 3 is to the effect that while they as well as the deceased were sitting in the back of the vehicle, the driver of the truck reversed it and that as there was a slope at that place the vehicle went down the slope and struck against a tree. This evidence has not been controverted by any evidence in rebuttal. As a matter of fact no evidence at all was adduced on behalf of the driver and owner of the truck or on behalf of the Insurance Company. The evidence of these witnesses proves that the accident occurred while the driver of the truck was reversing it. A duty is cast upon the driver of the motor vehicle while he was reversing it to see that it is quite safe for him to reverse the vehicle. In this case the driver of the truck ought to have satisfied himself about the nature of the ground where he was reversing the vehicle. He ought not to have reversed the truck at a place where there was a slope. Even if there was no other place for reversing the vehicle, he ought to have asked the persons who were sitting in the back of the vehicle to get down before he started reversing the vehicle. The act of the motor driver in reversing the vehicle on such a place without taking proper precautions to avoid the accident clearly amounts to culpable rashness or negligence.

8. The last question for consideration is the quantum of compensation. Before considering this question I have to consider the objections raised by the learned counsel for the appellant against the maintainability of the cross objections filed by the respondents. His objection is two fold namely (1) that the Act does not provide for the filing of the cross objections and (2) that the cross objections filed by the respondents are time barred. With regard to the objection on the ground that the Act does not provide for the filing of cross objections, I have taken the view in two earlier cases that even though there is no specific provision in the Act for filing cross objections, they are maintainable by virtue of the provisions of Order 41 Rule 22 Code of Civil Procedure. One of the cases in which I have taken this view is Bhag Singh & Sons v. Om Parkash Kaiyasth . 1971 A.C.J 324.. The other case in which I have discussed this question in greater detail is Delhi Transport Undertaking v. Raj Kumari etc . 1972 A.C.J 403.. It has been stated by the learned counsel for the appellant that this question has been referred to a Division Bench in another case by Mr. Justice V.D Misra and it has been suggested that either the present case should also be referred to the same Division Bench or that it should await the decision of the Division Bench. I do not wish to adopt either course. There are other remedies open to the aggrieved party to challenge the view I have taken. I do not wish to block this case and probably a large number of other cases till the disposal of the appeal by the Division Bench.

9. The cross objections have also been challenged on the ground that they have been filed beyond the time permitted under Order 41 Rule 22 C.P.C The notice in the appeal was served upon the respondents on 13-10-64 and the cross objections should have been filed within one month from the said date, but the cross objections have been filed on 26-11-1964. There is thus a delay of about 10 days in filing the cross-objections. The learned counsel for the respondents has orally pleaded for the condonation of the delay on the ground that the respondents who have filed the cross objections are illiterate persons and also on the ground that the rights of minor are also involved. I am not satisfied with the explanation offered on the basis of the illiteracy of the respondents. But I am impressed with the plea that the rights of minor are involved in this case. Therefore, the delay in filing the cross objections is condoned.

10. The learned counsel for the respondents Mr. G.R Chopra challenges the finding of the Learned Tribunal on the quantum of compensation on two grounds namely—

1. that the learned Tribunal has wrongly inferred that the deceased was making available only a sum of rupee 1/- per day for the maintenance of his wife mother and chidren, and

2. that the Tribunal had also mistakenly assumed that the deceased was aged about 35 years at the time of his death.

11. According to the evidence adduced on behalf of the respondents the deceased was earning Rs. 4/- per day by way of wages. According to the wife of the deceased who has been examined as A.W 5 the deceased was spending rupee one or rupee 1.25 on tea and 3 to 4 annas on cigarettes. It is also in evidence that the deceased himself consumed about 10 annas worth of bread per day and that he used to give only 10 annas or one rupee or 1.25 np per day to his wife for house hold expenses. On the basis of this evidence the learned Tribunal estimated the amount which deceased was making available to his children for their maintenance at rupee 1/- per day. I do not see any fallacy in the computation made by the learned Tribunal regarding the amount which the deceased was making available to his wife and children for their maintenance. But where the learned Tribunal has clearly gone wrong is in estimating the life expectancy of the deceased. The learned Tribunal has come to the conclusion that the deceased was over 35 years of age at the time of his death. I am afraid that this is not supported by the evidence in this case. All the witnesses including A.W 5 have stated that the deceased was about 22 or 23 years old at the time of his death and this evidence has been corroborated by the evidence of the Doctor, A.W 4 who conducted the post-mortem examination on the body of the deceased. The learned Tribunal in my view has based its conclusion regarding the age of the deceased on the entirely solitary statement of A.W 5 to the effect that her marriage with the deceased took place about 18 or 19 years prior to the date of her deposition. This statement is obviously based on misconception as is obvious from the other portion of the statement of A.W 5 where A.W 5 gave her own age on the date of her statement before the Tribunal as 21 years. If this was her correct age then she would be about 3 or 4 years old at the time of her marriage which is obviously not a fact. Further A.W 5 after stating that her marriage took place about 18 or 19 years prior to the date of her deposition also stated immediately that she was 15 years old at the time of her marriage. It is, therefore, obvious that A.W 5 has no clear conception of time. The learned Tribunal therefore is wrong in its conclusion that the deceased was not of the age of 22 years but was aged about 35 years at the time his death. The computation of the period of life expectancy of the deceased must be based upon the age of the deceased being 22 or 23 years at the time of his death. Taking the normal span of life to be 55 years the life expectancy of the deceased was thus cut short by about 33 years. But taking into consideration the uncertainties of life and also the fact that the deceased was an unskilled labourer whose employment was not secure, I am of the view that an amount of Rs. 7,500/- would represent the proper amount of compensation which could be awarded in favour of the respondents. The amount of compensation awarded by the learned Tribunal is therefore, enhanced to Rs. 7,500/-. In the result the appeal filed by Insurance Company is dismissed and the cross-objections filed by the legal representatives are partly allowed. There shall however be no orders as to costs either in the appeal or in the cross objections.

12. Appeal dismissed/cross-objections allowed.