Mrs Usha Mehara And Other vs Naresh Chand And Others
1988 Latest Caselaw 245 Del

JUDGMENT

Goswamy, J.

1. This appeal by the claimants for enhancement of competition is directed against the award dated July 26, 1980, passed by the Motor Accidents Claims Tribunal, Delhi, whereby the claimants were award a total compensation of Rs. 97,000 with interest and costs. The insurance company was held liable to the extent of Rs. 50,000 in view of the provisions of section 95 of the Motor Vehicles Act (hereinafter called "the Act"). Two sets of cross - objections have also been filed. One set is by the insurance company and the owned and the other by the owner and the driver. This judgment will dispose of the appeal so also the cross - objections.

2. It was alleged ion the petition under section 110A of the Act filed by the claimants that Mahiner Nath Mehara, argued 40 years, working as meaning director or Kem Metal power P. Ltd., Sahinanad, U. P., has gond in the morning of October 15, 1978, to the Holy Family Hospital to visit his ailing father. He had gone in his car which had been provide by the company. The said car developed some trouble and he managed to get a scooter which was the only other vehicle available with the company. The said Shri Mohinder Nath Mehra left the hospital at 11.1- a.m. and was proceeding to Sahibabad on the Ring Road from the side of the crossing of Ashram. When he wa reaching near the crossing of the Ring Road and Bala Sahib Road, he made sure that there was no traffic coming from his side and from right on the other side and thus he entered the crossing at a slow speed. Truck No. DHL 7036, driven by respondent No. 1, came from the opposite side, i.e., from I. P. Estate side on the Ring Road, at a rash speed. The truck did not slow down before reaching the crossing on Ring Road and Bala Sahib Road leasing to kilokri ass was the mandatory requirement an further without giving any horn or even proper look out took a turn to the right side at a sash speed for proceeding towards Kilokri on Bala Sahib Road at the time when the said Shri Mehra was almost on the crossing with the result that after taking the abrupt turn, the front side of the truck hit the scooter driven by Mr. Mehra. As a result thereof, the scooter was party hit and damaged by the impact and Shri Mehra was thrown off. He was hit by the surface of the road and received injuries which culminated in his death. It was pleaded that this accident was wholly caused due to the rash and negligent deriving by the driver of the offending truck, who was neither keeping any proper look out not did he blow any born. The manner in which he took the abrupt turn is conclusive proof to show that he was ignorant of the traffic rules.

3. It was further pleaded in the petition that the deceased was a brilliant engineer from the U. K. and had decided to come back to India because of the appeal made by the Government of India to the foreign engineers to return to the country. He, therefore, returned and set up a project which project now cannot be implemented or completed because the decreased was the only person who had the know - how. On account of the death of the decreased, the project has been left incomplete and the company cannot function/. It is further pleaded that the decreased stayed in the U. K. from 1956 to 1976 and thereafter, came to India and set up the present project at a considerable cost. The claimants incurred considerable expenditure on the treatment of the decreased. The mother of the deceased who had then one to the U. K. for treatment, had to leave the treatment midway and return to India on hearing of the ghastly accident. She had incurred an expenditure of Rs. 30,000 or so which has been rendered waste. The father of the deceased who was undergoing treatment in the Holy Family Hospital was making rapid progress but no hearing of the news of the accident and then the death, he could not bear the shock and died in the hospital. It is further polished. that the family of the decreased is known for longevity. The further of the decreased died at the age of 84 years and the mother of the decreased to aged 75 years and is alive. If the decreased had not been involved in this accident, he would have lived up to the age of 80 years. The decreased used to pay a sum of Rs. 400 per month to his mother who was dependent upon him. The monthly income of the decreased was stated to the Rs. 3,000 plus free house, free conveyance and other amenities. In the circumstances, a sum of Rs. 10,00,000 was claimed as compensation.

4. The petition was contested and two written statements, one on behalf of the owner and the driver and the other on behalf of the insurance company were filed. In both the written statements, the allegations about the age and monthly income of the deceased were denied for want of knowledge. The cause of the accident was stated to be the negligence of the deceased. It was further pleaded that the decreased did not have a driving license and he did not know how to driver the scooter and as such the claimants were not entitled to any competition. The insurance company, namely, respondent No. 3, had pleaded as a preliminary objection:

"That the liability of the insurance company is limited to the extent as drive in section 95 of the Motor Vehicles Act."

5. In the republication filed by the claimants, it was denied that the liability of the insurance company wa limited to Rs. 50,000 and it was pleased that the owner of the vehicle had taken a compressive policy and, therefore, the insurance company was liable to pay the entire awarded amount.

6. On the pleading of the parties, the following issued were framed:

1. Whether the decreased received fatal injuries on October 15, 1978, in the accident claused due to rash and negligent driving of the vehicles DHL 7036 on the part of the respondent No. 1?

2. Whether the petitioner are the petitioners are the legal representatives of the deceased?

3. Whether the accident in question was caused due to negligence of the decreased?

4. To what amount of compensation, if any, are the petitioner entitled and from which of the petitioners? (Instead of the petitioner it should have been which of the respondents).

5. Relief.

7. On consideration of the entire evidence [produced by the claimants, considering the site plan and the document, the Tribunal came to the conclusion that the sole responsibility for the tragic accident was of respondent No. 1 and the decreased was not guilty of any negligence which less contributory. It was not disputed that the claimants were the legal representative of the deceased. The Tribunal, on evidence, further found had the monthly income of the decreased was only Rs. 1,600 and he has aged about 45 years. Applying the multiplier of 15, he award Rs. 64,000 as compensation beside Rs. 1,000 on account of medicine and Rs. 2,000 for pain, again and fortune. Thus, a total sum of Rs 97,000 was awarded. It was further directed that the appellant - appellant - claimants would be entitled to interest on the awarded amount from the date of finding of the petition and costs of the suit. Dissatisfied with aforesaid award, the claimants have preferred the present appeal for enhancement of compensation. As I have already stated, the respondents have filed their cross - objections.

8. I have heard learned counsel for the parts and have also been taken through the entire evidence on record. The question of negligence need not detain me long, in view of the suit plan which was not disputed by learned counsel for the respondents. The sit plan is exhibit PW / 51. It clearly indicated that the accident took place in the middle of the crossing. The scooter driven by the deceased was obviously being driven on the court side of the road. The Ring Road at the relevant point is a double road and the pedestrian path divides the said road. The said plan further disclosed that the truck took a right turn at the crossing towards Kilokri. The two vehicles collided just in the center of the crossing. Regulations 6 and 7 of the Driving Regulations (X Schedule to the Motor Vehicles Act, 1939) are as under:

"6. The driver of a mother vehicles shall show down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection, a road junction until he has become aware that he may do so without endangering the safety of the person thereon.

7.The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road and in any other case give away to all traffic approaching the intersection on his right hands. "

9. It has not been disputed in the written statement filed on behalf of the owner and the driver that the truck has taken a turn, the scooter involved in the accident which was being driven recklessly and at a very high speed and n violation of the traffic rules, the accident took place. This plea of the respondents is clearly contrary to the site plan because, as I have already said, the accident had taken place in the middle o the crossing. It has not been disputed that the decreased was driving in his correct lane and had a right of way while the truck took a turn to the right. In the circumstances, the duty was obviously of the truck driver to make sure that he could get a clear way before turning of the right. In fact, this argument was not seriously passed by learned counsel for the respondents in view of the regulations ass the site plan. In the circumstances, it is not necessary to go into the oral evidence which also supports the case off the claimants. I may also mention that no evidence whatsoever has been produced by the respondents before the Tribunal.

10. Coming to the question of quorum of compensation, the case of the appellants was that the decreased was aged 40 years and had a monthly income of Rs. 3,000 besides free house, free conveyance and other amenities. Unfortunately, the only piece of evidence which been proved on recorded is the salary vouchers, exhibit PW 8/1, which shown that the deceased was getting Rs. 1,600 per month. The appellants have not proved any further document from the company in order to show that he was entitled to free conveyance or free house. The is in spit of the fact that appellant No. 1 took over as managing director of the same company after the death of the deceased and had complete access to the records of the company. Her case that the record was not available, has right not been delivered by the learned Tribunal and I can find no error with the said finding. As regards the age of the deceased, the best evidence against could be produced by the appellants by unfortunately there is absolutely no evidence except the bald statement of appellant No. 1. The Tribunal took into consideration various factors such as the qualifications of the deceased, his spending 20 years in U. K. and his having married in 1961 and has come to the conclusion that the age of the deceased should be take to be 45 years and not 40 years ass alleged. This finding, in my view, also cannot be disturbed.

11. he Tribunal came to the conclusion that the deceased was a technical men and would have worked up to the age of 60 years and, therefore, he applied a multiplier of 15. It is true that the deceased had a history of family longevity and he might have continued to work even after the age of 60 years as determined by the Tribunal. Since the compensation is being paid in lump sum and no deduction is being made on account of the payment in lump sum, that factor will take care of the income of the decreased beyond the age of 60 years. In the circumstance, I would also uphold the multiplier of 15 as applier of 15 as applied by the Tribunal. However, the question for consideration is whether the Tribunal was justified in considering that half of the earnings of the deceased were being spent on himself. It is not necessary to refer to various authorities on this question because each case has been decided on its own facts. What has to be taken into consideration is the status of the family, the number of dependents and their age and the expenses required for them. In the present case, the deceased left behind his window, tow school - going children and his mother. In view of the children being school - going and the status of the family being good, it cannot be assumed that the deceased would have spent 50% of his income on himself, particularly when we know that the deceased had at least the benefit of company's vehicle for his official work. He was not having any vehicle of his own. He was admittedly going by the car belonging to the company and the scooter involved in the accident was also owned by the company. Considering all these circumstances, I am of the opinion that the deceased would not be spending more than 25 per cent of his income on himself and the remaining income went for his dependents. Consequently, I hold that the claimants are entitled to 75 per cent of Rs. 1,88,000 ass determined by the Tribunal. The award is modified to the extent that thee claimants would be entitled s. 2,000 for to Rs. 1,44,000 in addition to Rs. 3,000 instead of Rs. 97,000 as awarded by the Tribunal. The compensation is enhanced accordingly.

12. The next question for determination is regarding the liability of the insurance company. The learned Tribunal took into consideration that the insurance company had pleased in its written statement that its utility was limited as provided under section 95 of the Act. Therefore, he held that the insurance company was liable only to the extent of Rs. 50,000. It is true that section 95(2)(b) makes it obligatory for the insurance company to cover the risk up to the extent of Rs.50,000. That, however, does not mean that there cannot be a contract to the contrary. The Supreme Court in Sheikhupura Transport Co. Leaf. v. Northern India Transporters' Insurance Co. Ltd. . observed that the limit of insurance prescribed under section 95(2)(b) of the Motor Vehicles Act can be enhanced by any contract to the contrary. In view of this, the Supreme Court went into the terms of the policy and came to the conclusion that in than particular case the policy was strictly in accordance with the provisions of section 95(2) and as such the liability of the insurance company was found to be to the extent of Rs. 2,000 for each of the persons involved in the accident. However, in the present case, it appears for the record that the owner was also being defended by counsel engaged by the insurance company. All the witnesses produced by the claimants have been cross - examined by only one counsel, i.e., the counsel engaged by the insurance company. Some of the pleadings have also been pointy filed on behalf of the respondents and are singed by only one counsel. This fact leads to the conclusion that the insurance company has taken over defenses company has not pleased the policy of insurance on record. Even in the written statement filed by the insurance company, it has not been pleaded that policy of insurance was strictly in accordance with section 95(2) of the Act. The plea of limited liability was specifically defined by the claimants in their replication wherein was statement that the insurance company has issued a comprehensive policy and was thus liable for the entire awarded amount. In spite of all these pleadings, the insurance company did not choose to place the policy on record and this could be obviously for the reason that the policy must have contained the extra liability.

13. In Ajit Singh v. Sham Lal [199984] ACJ 255; [1986] 59 Comp Cass 946 (P & H), a Division Bench of the Punjab and Hernia High Court held (at page 956 of 59 Comp Cas):

Here the statutory provision is question merely indicated the requirement about the policy and does not prohibit covering of greater risk by the insures company which could show the extent risk that the insurer had sought to cover. Where the insurance company for the whatever reasons fails to bring on the record the policy of insurance, it cannot be heard to say that it has agreed to indemnify the insured only to the extent indicated in the statutory provision in question."

14. Same view was taken by a Division Beach of the Allahabad High Court in National Insurance Co. Ltd. v. Narendra Kumar [1981] ACJ 93 (ALL) and by a single judge of this court in Jugle Kishore v. Rai Sogn [1982} ACJ 503 (Delhi).

15. Reliance was placed by learned counsel for the insurance company on a Division Bench Judgment of the Orissa High Court in Sabita Pati v. Rameshwar Singh [1973] ACJ 319 and the Full Bench judgment of the Madras High Court in Jayalakshmi v. General Insurance Co. Ltd. [197141 Comp Case 194. It is true that in both these cases it was held that the liability of the insurance company was limited to Rs. 20,000 as were the provisions at the relevant time. However, there could be no dispute about the correctness of these decision because in both these cases the policy of insures gad been produced and proved. A perusal of the policies clearly indicated that the policies were drawn up strictly in accordance with the provisions of section 95(5)(b) of thee Act and there were no provisions for any additional indemnity. These judgment can be of no help to the insurance company in the present case, for the simple reason that the policy has not been produced and it cannot be said that the insurance had not covered the additional risk.

16. The next contention of learned counsel for the insurance company was that it was for the claimants or the owner to produce the policy since the burden of proof was on them to prove that the insurance company had taken additional liability. This contention also has no merit. In Ch. Ranik Ram v. Ch.J.S. Chouhan, , it was held by their Lordships of the Supreme Court that the principle underlying section 106 of the Evidence Act which is an exception to the general rule governing burden of proof applies only to such matters of defense which are supposed to be especially within the knowledge of the party concern-ed. It cannot apply when the fact is such as to be capable of being known also be persons other than the party. In the present case, obviously, the insurance company was a position to produce and prove the policy, particularly, when the defense of the owner had been taken over by the insurance company and the petition was being contested by a counsel engaged by the insurance company. It was obviously for the insurance company to produce and prove the policy if the same is in any way helpful to the company. That having not been done, the obvious result is that the insurance company is liable to pay the entire amount awarded in the present case.

17. For the reasons recorded above, the claim is allowed to the extent that the amount of compensation is enhanced from Rs.94,000 to Rs. 1,41,000. Rs.3,000 as awarded for mental agony and medicines is also maintained. Thus, the appellant-claimants will be entitled to Rs.1,44,000 in all instead of Rs.97,000. The claimants will be entitled to interest and costs as awarded by the Tribunal and costs in this court also. The entire amount will be payable by respondent No.3, namely, New India Insurance Co. Ltd. I view of these findings, the costs-objections filed by the respondents shall stand dismissed.

C.M. 1970 of 1985.

18. This application under section 152 read with section 151 of the Code of Civil Procedure has been filed by the appellant-claimants for correcting the arithmetical/clerical mistake in my judgment dated May 24, 1985.

19. The Tribunal had determined the monthly income of the deceased at Rs. 1,600 and had applied a multiplier of 15. While calculation the amount, it came to the conclusion that the claimants were entitled to Rs. 1,88,000. Thereafter, the Tribunal further held that 50% of the said amount was to be disallowed on the ground that the deceased would have spent that much amount on himself. Therefore, the award was restricted to Rs.94,000, i.e. 50% of Rs. 1,88,000. In appeal before me, I upheld the finding of the Tribunal regarding the monthly income of the decease and also agreed that the multiplier of 15 was reasonable. However, I was of the opinion that in the circumstance in which the family was placed, the personal requirement of the deceased could not be said to be beyond 25%. The award was modified to that extent. However, I also adopted the calculation by the Tribunal and awarded Rs. 1,41,000 instead of Rs. 94,000 allowed by the Tribunal besides Rs.3,000 awarded for mental agony and medicines. By this application, it has been pointed out that the Tribunal had committed an error in arriving at the calculation and the same error had crept in in may judgment. After hearings learned counsel for the parties and on recalculation, I find that the contention of learned for the appellant is correct. What has been awarded to the claimants is Rs. 1,200 per month for 15 years. That comes to Rs.2,16,000 and not Rs.1,41,000 as calculated in the judgment. This error is apparently an arithmetical error and can be corrected under section 152 of the Cod of Civil Procedure. I, therefore, direct that the last paragraph of my judgment will read as under:

"For the reasons recorded above, the claim us allowed to the extent that the amount of compensation is enchanced from Rs. 94,000 to Rs. 2,16,000. Rs.3000 as awarded for mental agony and medicines is also maintained. Thus, the appellant-claimants will be entitled to Rs. 2,19,000in all instead of Rs. 97,000 as awarded by the Tribunal. The claimants will be entitled and costs as awarded by the Tribunal and costs in this court also. The entire amount will be payable by respondent No.3, namely, New India Assurance Co. Ltd. In view of these findings, the cross-objections filed by the respondents shall stand dismissed."

20. Consequential correction will also be made in the earlier paragraph wherein it is stated that the claimants would be entitled to Rs.1,44,000in addition to Rs.3,000 instead of Rs. 97,000 as awarded by the Tribunal.