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Judgment
Sharad Kumar Sharma, J
An issue which crops up for consideration, in the present Bunch of Appeals, which arises out of the same accident is "As to whether the gratuitous passengers travelling in a commercial vehicles, covered under a comprehensive commercial vehicle policy, would be liable for damages when they are travelling in a vehicle which is registered as a goods carrier".
The factual backdrop which has emerged in the instant case from the perusal of the records and pleadings was that on 3rd April, 2014, at about 8:00 a.m., the vehicle, normally called as 'Utility', bearing Registration No. UK07CA-0375, while it was being driven by the respondent No. 4, had met with the accident resulting into the death of (1) Himanshu, aged 11 years, as in MACP Case No. 126 of 2014, (2) Mukesh Gaur, as in MACP Case No. 135 of 2014, (3) Ashish Gaur, as in MACP Case No. 136 of 2014 and (4) Jagdish Prasad Gaur, as in MACP Case No. 134 of 2014 and (5) Shanti Das, as in MACP Case No. 133 of 2014.
The dependents of the deceased of the accident for the purposes of grant of compensation had filed their respective MACP case numbered above and as consequence of the award rendered on 12th August, 2016, granting them compensation, the following appeal from order invoking Section 173 of the Motor Vehicles Act has been preferred before this Court.
(A) A.O. No. 604 of 2016 arises out of an award dated 12th August, 2016, rendered in MACP Case No. 126 of 2014, wherein, the Motor Accident Claims Tribunal has awarded a sum of Rs.6,30,000/- along with an interest @ 9%;
(B) in A.O. No. 605 of 2016, which arises out of the award dated 12th August, 2016, as rendered in MACP Case No. 135 of 2014, the Tribunal has rendered an award of Rs.11,73,000/- with interest at the rate of 9%;
(C) in A.O. No. 606 of 2016, it arises out of an award rendered in MACP Case No. 136 of 2014, wherein, the Tribunal by the award dated 12th August, 2016, has awarded a total sum of Rs.9,73,000/- along with an interest at the rate of 9% and;
(D) in A.O. No. 607 of 2016, which arises out of MACP Case No. 134 of 2014, the Tribunal by the award dated 12th August, 2016, has awarded a sum of Rs. 11,63,504/- with the interest at the rate of 9% and;
(E) lastly, in A.O. No. 608 of 2016, which arises out of the MACP Case No. 133 of 2014, the Tribunal by its award 12th August, 2016, has awarded a sum of Rs.8,29,000/- along with an interest at the rate of 9%.
As all the cases, there involves a common question of fact and law, and since they are arising from the same accident, hence, they are being decided together. The brief facts as narrated therein are that in an accident, which has chanced on 3rd April, 2014, the offending vehicle, i.e. the utility, the particular of which are, as detailed above, was being driven by the respondent No. 4 in a rash and negligent manner and it is contended that on account of which, the vehicle, in question, met with an accident resulting into the death of as many as five persons detailed above.
It has been mentioned in the respective claim petitions that when on the ill fated day, i.e. 3rd April, 2014, when the vehicle reached near Village Kandari and was moving towards Sahigad School, it met with an accident and as a consequent thereto, it fell into a ditch of about 500 meters deep resulting into the aforesaid casualties.
As far as A.O. No. 604 of 2016 is concerned, the deceased Himanshu was of 11 years of age and was the only son of the claimant parents. He was a student of class VI and was the only person in the family on whom they were depending for their old age assistance and support. It was also pleaded that looking to the past academic record of the deceased Himashu, he had extensive potential of excelling in his career, as a result of which, they have been deprived of the love and affection and probable future income which have been their source of dependency, apart from the fact that the sole successor of the claimants had met with the sad demise. Consequently, they have claimed a compensation due to untimely death of their only child to a total amount of Rs.25,15,5000/- and a multiplier of 15 was applied as per the Schedule under the Act.
In A.O. No. 605 of 2016, the deceased Mukesh Gaur was a married man and after his death, as a consequence of the said accident, there were 6 persons of his family who were dependent on him, thus the dependents who were left after his death which included the widow Kavita, a daughter and two sons and an aged mother Kala Devi. As per the case, which was raised in the claim petition, it was contended by the claimants that late Mr. Mukesh Gaur, who was travelling in the utility, he was of 32 years of age, a hale and hearty person and he was the only source of earning in the family and as per the claim raised in the petition preferred before the Tribunal, it was pleaded that the deceased was engaged in the business of catering at Nagpur, Maharashtra and was having a sufficient earning to take care of the family and consequently, the claimants have raised a demand of compensation of Rs.50,25,000/-on account of the untimely death of the only bread winner of the family. The multiplier of 16 was made applicable as per the Schedule under the Act.
In A.O. No. 606 of 2016, which relates to the deceased Ashish Gaur, it was pleaded by the claimants that at the time of the death, the deceased was 23 years of age was a hale and hearty person, who was engaged as a Painter and had an earning of about Rs.4,500/- per month and looking to the life expectancy, due to the untimely death, the family has been deprived of the bread earner and as a result thereby, they have claimed compensation of Rs. 45,25,000/-. The Tribunal while calculating the award had applied the multiplier of 18 as per the schedule under the Motor Vehicles Act.
In A.O. No. 607 of 2017, the deceased Jagdish Prasad, who was travelling in the offending vehicle, who succumbed to the injuries suffered on account of the accident, was aged about 50 years and on the date of the accident, he was working with the Postal Department and was earning about Rs.7,819/- per month. Out of the income which accrued to him, the claimant widow and two children, i.e. claimant Nos. 2 and 3 were entirely depending upon him and thus they have claimed for the compensation to the tune of Rs.40,25,000/-. The Tribunal, while calculating the award had applied the multiplier of 13 as per the schedule under the Motor Vehicles Act.
Lastly, in A.O. No. 608 of 2016, the deceased Shanti Das, who was aged about 40 years was hale and hearty person. Though at the time of the accident, he was still pursuing his study and unemployed and was a Dhol player and used to earn about Rs.12,000/- per month. But on account of any such proof of income being brought on record, the Tribunal determined the income of the deceased as to be Rs.4,500/- per month as the basis of the judgment of Hon'ble Apex Court in Basanti Devi's case. But on account of untimely death, the parents of the deceased Shanti Das, i.e. clamant No. 1 and 2 had suffered mental agony and has been deprived of love and affection. They have further contended in the claim petition that despite the fact, that the deceased was unemployed and was not permanently engaged but from time to time, he used to perform the work of Draughtsman as well as Masson and if, the accident would not have occurred, he would have a long age and, thus, would earn enough for the parents and, consequently, apart from the fact that they have been deprived of the bread winner of the family, they have sought compensation for the loss of love and affection and claimed an amount Rs. 45,25,000/- from the respondents. The Tribunal while calculating the award had applied the multiplier of 13 as per the schedule of the Motor Vehicles Act.
The arguments of the learned counsel for the appellant is that in one of the Appeal from Order, i.e. AO No. 607 of 2017, there is a wrongful determination of the compensation for the reason that the entire income which has been determined to have accrued to the deceased that has been taken as to be the dependency of the claimants without considering or making any deduction towards 1/3rd of the amount, which is presumed that the deceased must have utilized the same for himself and thus even the award so far it relates to AO No. 607 of 2017, suffers from a wrongful determination of the compensation, owing to the said apparent error.
On the issuance of the notice by the Tribunal to the opposite parties to the claim petitions, i.e. O.P. No. 1, i.e. Shyam Lal, owner of the offending of the vehicle, OP No. 2, i.e. Kamlesh, driver of the vehicle and OP No. 3, i.e. the appellants before this Court, Shriram General Insurance Company, the insurer of the vehicle, in question. Before the Motor Accidents Claim Tribunal, the Insurance Company contested the proceedings based on their pleadings regarding their liability as per the terms of the Insurance Policy of vehicle.
On receipt of the notices, OP Nos. 1 and 2, i.e. the owner and the driver of the vehicle, apart from denying the plaint allegation, they have accepted the facts of occurrence of the accident which has occurred on 3rd April, 2014, resulting into the death as detailed in respective claim petitions. Further, they have also admitted that though the Utility fell down in a ditch about 500 meter deep at about 8:00 a.m. morning but the accident has been caused because of the felling of rocks, being fallen down rocks from the hills and one of a big chunk of the rocks fell on the offending vehicle in, question, due to which, the driver of the vehicle had lost control over it and the Utility fell down into the ditch. Thus, the accident was due to the natural phenomenon and not due to rash or negligent driving of Utility by opposite party No. 2, the driver.
The owner and the driver of the vehicle also admitted the fact that as a result of the accident, the deceased, who were travelling in the vehicle, in question, have met with the sad demise and they breathed their last on the spot. Further, in defence, they have contended that apart from the fact that the deceased, who were travelling in the Utility, in question, there were other villagers also who too got injured due to the falling of the rocks from the mountain who too had met with the sad demise.
Another reason which has been attributed by the owner and driver of the offending vehicle, which was cause for the accident was the bad road condition which has contributed to the accident / incident of 3rd April, 2014. In order to defend and to safeguard their liability, the owner of the vehicle and the driver contended that the driver was driving the vehicle with extreme caution, coupled with the fact that at the time of the accident, the driver was having a valid driving licence, which was valid from 17th April, 2012 to 17th April, 2015. Besides this, the vehicle, in question, was insured with the O.P. No. 3 and was being driven with all valid and essential documents required under the policy of Insurance and the provisions of Motor Vehicles Act.
The owner of the vehicle submitted that the reason for the accident cannot be shifted or burdened upon the driver, because it has happened on account of the act of God, due to felling of the rocks from the mountain, for which, it cannot be said that the driver was negligent in driving the vehicle. Hence, if at all, any compensation was required to be paid, it was to be paid by the Insurance Company with whom the vehicle, in question, was insured on the date of accident, i.e. 3rd April, 2014.
The respective claim petitions, as preferred by the claimants, was also opposed by the Insurance Company, who filed their independent written statement by way of objection and they have contended that the Insurance Company cannot be harnessed with the liability of the compensation for the reasons being that the vehicle, in question, was insured with OP No. 3, as a pubic goods carrier, and once a vehicle is insured as a public goods carrier, the parameters of the insurance policy and the norms governing it are entirely distinct and if the deceased, who were travelling in the vehicle, once they were not falling to be within the definition of the employees working on the Utility, they would not be covered by the policy, in question, and hence, if at all, the liability was to be harnessed, it was to be harnessed upon the owner of the vehicle, as the vehicle was being driven in contravention to the terms of the Insurance Policy, which reads as under :-
"Limitation as to Use
Use Only For Carriage Of Goods Within The Meaning Of The Motor Vehicles Act. The Policy Does Not Cover: 1) Use For Organised Racing, Pace-Making, Reliability Trial Or Speed Testing, (2) Use Whilst Drawing A Trailer Except The Towing (Other Than For Reward) Of Any One Disabled Mechanically Propelled Vehicle. (3) Use For Carrying Passengers In The Vehicles; Except Employees (Other Than The Driver) Not Exceeding The Number Permitted In the Registration Document And Coming Under The Purview Of Workmen's Compensation Act 1923.
The Policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act, 1988.
The Insurance under this policy is subject to conditions, clauses, warrantees, endorsements as per forms attached. Warranted that in case of dishonour of premium cheque(s) the Company shall not be liable under the policy and the policy shall be void ab initio (from inception). I/We hereby certify that the policy to which the certificate relates as well as this certificate of insurance are issued in accordance with the provision of Chapter X and Chapter XI of Motor Vehicles Act, 1988.
In witness whereof the undersigned being authorized by and on behalf of the company has / have herein to set his/their hands at Head Office-III."
In support of his contention, the learned counsel for the appellant, had placed before this Court as well as before the Court below, a Certificate Cum Policy Schedule, called as "GCCV Public Carriers other than three wheeler package policy-Zone-B". In fact, this certificate of Insurance, as per the argument, which has been extended by the learned counsel for the appellant was that it was exclusively for the goods carrier and not for the vehicles which under the aforesaid policy were not entitled to carry the passenger from one place to another. Though the fact that the vehicle was insured on the date of the accident is not disputed fact by the appellant's counsel.
The appellant's counsel thus has heavily relied upon the Clause as mentioned in the policy, pertaining to "the limitation to the use of the vehicle", thus insured under the said policy. As per the limitation enshrined therein, in the said policy as was made applicable for those vehicle, which were exclusively meant for carrying the goods, as it has been defined under Sub-section (14) of Section 2 of the Motor Vehicles Act, which is quoted hereunder:-
"(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods:"
On a simple interpretation of the definition of the goods carriage as defined under the Motor Vehicle Act, it contemplates that to be a vehicle constructed and adopted to the circumstances for the carriage of the goods only and on it being insured by the OP No. 3. It couldn't be used to carry human being as passengers. Except that it was entitled to carry goods only from one place to another and not the passengers and, thus, owing to the definition clause of goods carriage as provided under the Motor Vehicles Act, the appellant's case is yet again is that the Insurance Company would not be liable to pay the damages to the dependents of the deceased persons, as the offending vehicle was being driven in contravention of the terms of the Insurance Policy, prevailing at the relevant time, i.e. on the date of accident, i.e. 3rd April, 2014. Hence, the appellant would not be liable to pay the compensation as determined by the Tribunal in each case.
He has contended that as per the conditions of the limitation of the use under the policy, it further stipulated certain exceptions in it, i.e. :
The vehicle, thus insured as goods carrier is not to be used for the organizing, racing, pace making, reliability trial or speed trials.
The goods carrier thus insured under the policy is not to be used for whilst drawing a trailer except for towing (other than for a reward) of any vehicle which has been mechanically disabled to be propelled for use.
The Clauses contained under the Insurance Policy, it specifically in Clause (3) prohibited that the goods carriage vehicle covered by the policy, as issued by OP No. 3, it cannot be used for carrying passengers in the vehicle except the employees 'other than the driver, whose number was not to exceed beyond the permissible limits as provided in their document of registration, i.e. four persons plus a driver.
It is no ones case nor disputed by any party in the present bunch of Appeals from Orders, that the ill fated vehicle, bearing registration No. UK07CA0375, which was registered and insured as a commercial vehicle and it had the permission to carry 4 + 1 persons but subject to the limitation provided in Clause (3) that the persons thus permitted to be carried are to be only the employees engaged in the utility and not the passengers. Owing to these conditions, the Insurance Company contends that the liability could not have been harnessed upon the appellants, when the deceased persons were travelling as gratuitous passengers on the date of the accident, i.e. 03.04.2014 .
After the exchange of the pleadings, the Motor Accidents Claims Tribunal on 26th November, 2014, had framed the following issues :
"1. क्या यह दुर्धटना दिनांक 3.04.2014 को समय करीब 8 बजे प्रात स्थान ग्राम कण्डारी से 500 मीटर की दूरी पर सारीगाड कंडारी मोटर मार्ग, पटवारी चौकी कण्डारी, राजस्व क्षेत्र चौकी कण्डारी, जिला उत्तरकाशी में विपक्षी ममलेश द्वारा यूटीलिटी वाहन संख्या यू.के.07सीए-0375 को तेजी एवं लापरवाही से चलाया गया, जिससे कि उक्त वाहन अनियन्त्रित होकर खाई में गिर गया और परिणामस्वरूप उसमें बैठे हिमांशु को गम्भीर चोटें आयी और परिणामस्वरूप उसकी मृत्यु हो गयी ?
क्या दुर्धटना के समय यूटीलिटी वाहन संख्या यू.के.07सीए-0375 को चलाने हेतु उसके चालक के पास वैध एवं प्रभारी ड्राइविग लाईसेंस मौजूद नहीं था ? यदि हां तो प्रभाव ?
क्या दुर्धटना के समय यूटीलिटी वाहन संख्या यू.के.07सीए-0375 पंजीकृत स्वामी के पास उक्त वाहन से सम्बन्धित वैध दस्तावेज नहीं थे, यदि हां तो प्रभाव ?
क्या याचीगण प्रतिकर की कोई धनराशि प्राप्त करने के अधिकारी हैं यदि हां तो कितनी व किस विपक्षी से ?
In support of their respective contentions, pleaded in the claim petitions or in the objection filed by OP No. 1, 2 and 3, apart from the fact that they have produced themselves as PW1 and PW2 respectively, being owner and the driver of the vehicle respectively, apart from the fact they have also placed on record, paper No. 7 Ga, i.e. death certificate, post mortem report, i.e. 8-Ga, family register of the dependent, paper no. 9 Ga and such other documents in support of their respective claims.
While on the contrary, the OP No. 1 and 2, i.e. owner and the driver of the vehicle had placed on record, various documents, i.e. paper No. 14 Ga, the driving licence, paper No. 15 Ga, the permit, issued for the vehicle under the Act, paper No. 16 Ga, the fitness certificate of the vehicle, and 17 Ga, i.e. the registration, paper No. 18 Ga, the insurance policy and such other documents which were essentially required for the vehicle to be plied as goods carrier.
After the exchange of the pleadings and after giving an ample opportunity to record the statement and cross examination and after considering the rival contentions raised by the counsel for the parities, the learned Motor Accident Claim Tribunal has rendered the impugned award, whereby, the liability to pay the compensation as determined by the Motor Accident Claim Tribunal has been fastened upon the Insurance Company on the ground that under the Insurance policy and certificate, on which, the reliance was placed since it was a comprehensive policy, it would include within its ambit even the passengers, which has been carried by the vehicle as gratuitous passengers, irrespective of the conditions of the insurance and the limitation which has been imposed and agreed to be followed by the owner of the vehicle as per the conditions of the insurance policy.
The counsel for the respondents claimants, in support of his contention, had submitted that in view of the judicial pronouncement as reported in (2015) 1 UAD 179, Shri Devender Kumar Vs. Smt. Savita & Others, the liability to pay the compensation ought to be shouldered by the insurance company in view of the ratio as propounded therein by the aforesaid judgment in para 5 and 6. Para 5 and 6 of the aforesaid judgment reads as under :-
"5. It is the settled legal position that the offending vehicle, being a utility one, could carry the weight of 2750 kilograms including five passengers and one driver. There was no need for having the route permit for such vehicle. Vehicle was comprehensively insured with the insurance company at the time of accident and the driver, who also lost his life in this accident, was having the valid licence as has been available on the record.
Hence, in the given facts and circumstances, stated above, the appeal is hereby allowed. The liability, which has been fastened on the owner of the vehicle i.e. the appellant Devender Kumar to compensate the legal heirs of the deceased, is extinguished."
With all profound reverence to the argument of the appellant's counsel in the light of the judgment, this Court is not in agreement with the reasoning which has been assigned in the said judgment. For the reason that in the said judgment, it was the impact of the insurance policy of vehicle carrying the comprehensive policy, would also include within its purview the passengers, which has been carried by it, that has been interpreted in the light of the provisions contained under Section 66 (3) (i) of the Motor Vehicles Act, which contemplates that the vehicle which under the registration, can carry a load upto 3000 kgs., it carry the five passengers excluding the passenger. The reasoning which has been assigned by this Court is that since offending utility which was registered, had a capacity to carry 2750 kgs, inclusive of four passenger and one driver and hence there was no necessity for having the route permission of the vehicle as the vehicle was comprehensively insured with the Insurance Company at the time of the accident.
This judgment is altogether based on a different parameters and set of circumstances, it does not make any reference as to whether the insurance policy contained any restriction as it happens to be in the present case, where the permission was to carry four persons, including one driver, was a condition when the persons travelling in the vehicles, which has met with the accident, were have to be its employees. The policy of insurance of the vehicle and the conditions contained therein would fall to be in the shape of contract which is executed between the insurer and the insured and its terms and conditions would equally bind the two contracting parties for the purposes of extension of the benefit or denial of the benefit which is accruing from the terms of the said policy.
Admittedly, the policy, in question and as argued by the learned counsel for the appellant, in its specific terms executed and its applicability on the goods carrying vehicles, under those circumstances in which it could carry passengers, which happens to be in the instant case that the vehicle was carrying the deceased persons gratuitously and it is no one's case even the case of the claimants or the owner or the driver of the vehicle that the deceased persons were ever employed by them in the utility.
In such eventuality, the burden of payment of insurance liability arising out of the awarded amount in pursuance to the impugned award dated 12th August, 2016, ought not to be harnessed upon the insurer of the vehicle for the reason that on the date of the accident, i.e. 3rd April, 2014, the vehicle was carrying the passengers in contravention to the terms of the insurance policy.
The learned counsel for the respondent claimants had placed on the judgment as reported in (2019) 1 SCC (Cri) 850, Jagtar Singh alia Jagder Singh Vs. Sanjeev Kumar and others. For the purposes to support his contention that if a vehicle is insured and is covered by a comprehensive package policy, it would include the liability payable towards the passengers even if they are being carried in a goods carrier. This judgment, on which reliance has been placed for the purpose of interpreting the term 'comprehensive package policy', would not be applicable in the present case for the reasons :
(1). The ratio as propounded by the Hon'ble Apex Court in relation to the comprehensive policy and its effect was in relation to a car which will not fall to be within the definition of a goods carriage as provided under Sub-section (14) of Section 2 of the Act. (2) Even, it is an admitted case by the claimants that the deceased persons and those were travelling as passenger in the utility belonging to the respondent No. 1 and since the same was being driven in violation of the terms of the licence, it would be entirely the responsibility of the owner of the vehicle to meet the award as determined by the Motor Accidents Claim Tribunal in the case at hand as the vehicle was plied in contravention to the specific terms of the contract of the insurance.
In response to it, another argument which has been extended by the learned counsel for the claimants is in the light of the ratio as propounded by the judgment of the Hon'ble Apex Court in the judgment reported in (2019) 1 (Cri) 863, Shamanna and others Vs. Divisional Manager, Oriental Insurance Company Ltd. And others, the reliance has been placed on the said judgment by the counsel for the claimants from the limited view point that the ratio as propounded thereof is irrespective of the terms and conditions of the insurance policy, which exclusively governs the relationship between the insurer and insured, at least the claimants cannot be made to suffer due to the time, which is likely to be involved in interpreting the liabilities by the Courts of law and, thus, it has been held out that the Insurance Company would first meet out the awarded liability and pay the compensation awarded to the claimants and subsequently recover the same from the owner of the vehicle.
The said ratio has been propounded by the Hon'ble Apex Court, after considering the ratio as laid down in a judgment reported in (2004) 13 SCC 224, Oriental Insurance Co. Ltd. Vs. Nanjappan. Para 8 of the judgment of Shamanna (Supra) reads as under:-
"8. The same principle was reiterated in Premkumari Vs. Prahlad Dev, (2008) 3 SCC 193."
It has been held that the insurance company once it is made liable to pay the amount and when the courts grants a recoverable rights to the insurance company, the insurance company is not required to file a suit for the recovery of the amount, it may initiate the proceedings before the Executing Court concerned.
The Counsel for the claimants had relied upon another judgment rendered by the Hon'ble Apex Court as reported in (2017) 4 SCC 796, Manuara Khatun & others Vs. Rajesh Kumar Singh and others. This Court is not dealing with the said case in details for the reason being that the said judgment too propounds the same ratio that as a consequence of the accident the claimants is not to suffer because of the delayed adjudication of rights between the insurer and the insured, rights and liability between the insured and insurer rather it was the Insurance Company who would first be responsible to disburse the amount and then recover the same from the owner of the vehicle, who if is held to be plying the vehicle in contravention to the provisions of the insurance policy.
The argument, as extended by the counsel for the owner of the vehicle is rather a reiteration of a fact which has been said to be settled by the impugned award where the Motor Accident Claim Tribunal has already interpreted the word 'comprehensive policy' as if to include and to meet the liability even if the loss or damage is caused to the passengers who are being carried by the goods carrier in contravention to the policy.
In view of the what has been stated above, this Court is of the view that the term gratuitous cannot be expanded in a fashion to overcome the terms of the insurance contract between the insurer and the insured and it would not include carrying of the gratuitous passengers for the purpose of payment of compensation under Section 140 read with 166 of the Motor Vehicles Act.
In view of what has been observed above, this Court holds that the offending vehicle was being driven by OP No. 2, which was owned by OP No. 1, in contravention to its policy of insurance and the deceased persons travelling in it, since were not the employees, who were working or employed on the utility, the entire liability to pay the damages as determined by the Motor Accidents Claim Tribunal ought to be borne by the owner of the vehicle.
However, looking to the wider interest of claimants, it is directed that in the light of the judgment as reported in (2017) 4 SCC 796, Manuara Khatun & others Vs. Rajesh Kumar Singh and others, the Insurance Company would first disburse the amount of damages to the claimants and then later on recover the same from the owner of the vehicles.
Subject to the above observations, the impugned award is modified to that extent. The appeals are disposed of accordingly.
However, there would be no order as to costs.