Krishan Lal vs Mohd. Din And Others
1993 Latest Caselaw 155 Del

JUDGMENT

Usha Mehra, J.

1. These three appeals filed under section 110D of the Motor Vehicles Act, 1939 (hereinafter called "the Act"), have arisen in the following circumstances.

2. On May 27, 1979, at about 11.45 p.m. Shri Sanjeev Kumar, Shiv Singh and Satpal were traveling in car No. HRH-24 from New Delhi to Ghaziabad and a truck No. DLL 5052 was being driven by Mohd. Din from the opposite direction in a rash and negligent manner and hit the car, as a result of which the car was badly damaged and all the three occupants received serious injuries but ultimately succumbed to the same. The legal heirs of all the deceased filed petitions for the grant of compensation before the Motor Accidents Claims Tribunal (hereinafter called "the Tribunal"). These were listed under the names of Neena Vashist v. Mohd. Din, Om Wati v. Mohd. Din and Krishan Lal v. Mohd. Din Neena. Vashist, widow of Sanjeev Kumar, alleged in her petition that the deceased was 35 years old. He was a flourishing businessman and had a bright future. He enjoyed a name in the social circle. He was elected Municipal Councillor in Ghaziabad and remained Councillor for six years. He was chairman of several committees. Neena was 30 years old when the accident took place. Besides the widow, the deceased left one son and three daughters who were minors. With the death of Sanjeev Kumar the family has been financially ruined. The deceased was giving Rs. 1,000 per month to her as household expenses, and, therefore, on that basis she claimed a compensation of Rs. 3,00,000.

3. Smt. Om Wati, widow of the deceased, Shiv Singh, has claimed compensation to the tune of Rs. 40 lakhs. According to her, the deceased was 40 years old at the time of his death. He was an agriculturist having 40 bighas of land and had taken two plots of 130 bighas of farm CT from Ghaziabad on lease for Rs. 2,43,000 for a period of 15 years. He was owning a tractor with which he was cultivating his land. He also had land in his name and in the name of his mother. He was earning Rs. 3,000 per month from the cultivation of these lands and thus entitled to a compensation of Rs. 40 lakhs.

4. Krishan Lal and Bhagwanti Devi claimed compensation to the tune of Rs. 3,00,000 being parents of the deceased, Satpal, who was 25 years old at the time of his death. Satpal was earning about Rs. 1,050 per month as per his income-tax return. He was unmarried at the time of his death.

5. A joint written statement on behalf of the driver and the owner of the truck was filed by counsel for the insurance company taking the plea that the entire negligence was that of the car driver. The driver of the car and the two occupants were under intoxication at the time of the accident. That the car was being driven on the wrong side of the road. It is in fact the car driver who hit the truck by coming on the wrong side of the road. That there was no negligence of the truck driver. Respondent No. 3, the insurance company, took the plea of limited liability to the extent of Rs. 50,000 for events. In the replication the petitioners denied all these allegations.

6. There are two eye witnesses to this accident, namely, constables, Nanu Ram and Rattan Lal, PW-4 and PW-7. They testified that the truck was being driven rashly and negligently. The respondent on the other hand adduced the evidence of the truck driver to prove that the negligence was that of the car driver. So far as the accident is concerned, it is not disputed. It is also not disputed that the truck was being driven by Mohd. Din, respondent No. 1. The Tribunal came to the conclusion that the accident was due to contributory negligence of the truck driver to the extent of 70 per cent. and of the car driver to the extent of 30 per cent. The Tribunal assessed the income of the deceased, Sanjeev Kumar, at Rs. 600 per month, out of which one-third deduction was made on account of personal expenses and dependency income assessed at Rs. 400 per month. So far as the age of the deceased, Sanjeev Kumar, it was admitted to be 35 years. The Tribunal applied the multiplier of 20 years on which basis the awarded amount came to Rs. 96,000. The liability of the insurance company was held limited to Rs. 50,000 and the truck owner's liability to the extent of 70 per cent. Thus, the awarded amount came to Rs. 67,200. As regards the case of Om Wati, the Tribunal accepted the age of the deceased, Shiv Singh, as 40 years. The deceased was earning Rs. 600 per. month out of which one-third was deducted for his personal expenses and dependency income assessed at Rs. 400, i.e., the loss suffered by the family. He applied the multiplier of 15 years and awarded a total sum of Rs. 72,000 out of which 70 per cent. was to be paid by the respondents. Thus, the amount of award came to Rs. 50,400. The insurance company's liability was held to be limited to Rs. 50,000. As regards Krishan Lal and Bhagwanti Devi, parents of the deceased, Sat Pal, the deceased's age accepted to be 25 years and his income at Rs. 1,029 per month. Deduction of one-third on account of his personal expenses amounting to Rs. 429 the dependency income or the financial loss suffered by parents assessed at Rs. 600 per month and adopted the multiplier of five years, and thus awarded the amount of Rs. 26,000. Out of this 70 per cent. was to be paid by the respondent which come to Rs. 25,200. The liability of the insurance company was limited to Rs. 50,000. These three petitions were consolidated and evidence recorded in the case of Neena Vashist was to be read in other two cases as well. On account of consolidation of the three cases, one common judgment has been delivered.

7. Against the award these three appellants have filed three separate appeals. Since common questions of fact and law arise in all the three appeals, therefore, these are disposed by one common judgment. The impugned award has been assailed, inter alia, on the ground, that the Tribunal's conclusion of contributory negligence is against the record. Secondly, even if it is held that there was contributory negligence still the occupants of the car cannot be held negligent and that the Tribunal fell in grave error in holding that the liability of the insurance company was limited to Rs. 50,000, finally the Tribunal applied the rule of thumb in arriving at the dependency income as well as the multiplier and thus inadequate quantum has been awarded which is against the record.

8. I have perused the record of the Tribunal and heard counsel for the parties.

9. So far as the question of contributory negligence is concerned, both counsel advanced lengthy arguments by placing heavy reliance on the testimony of PW-4, PW-7 and of RW-3, i.e., the driver of the truck, as well as on the photographs, exhibits P-1 to P-6, and the site plan, exhibit PW-6-A. Counsel for the insurance company contended that in view of the position of the vehicles as apparent from the site plan no reliance can be placed on the oral testimony of PW-4 and PW-7. The site plan does not support the oral testimony of the petitioner's witnesses, a man can tell a lie but not the circumstances as existed and depicted at the site.

10. In order to determine the contributory negligence, we have first to ask the question as to who contributed to the happening of the accident, it becomes relevant to ascertain as to who was driving his vehicle negligently and rashly and in case both the drivers were, then the question would arise who was more responsible for the position and who of the two had the last opportunity to avoid the accident. For determining these questions we have to ascertain, if there were eye witnesses, do they corroborate the position indicated in the site plan and the connected circumstances ? When the respective drivers saw each other for the first time as they were heading in opposite directions on the same road; the speed of the respective vehicles, the blowing of the horn, steps taken to control the respective vehicles; care and caution exercised for avoiding the collision and other material and relevant facts. These facts at the first instance can best be explained by the drivers of the concerned vehicles. In the instant case, unfortunately the driver of the car is dead. However, the driver of the truck has appeared as RW-3. But his testimony does not inspire confidence. In such situation, when the Tribunal is confronted with the vexed controversy of apportioning the blame amongst the two vehicles, it is the bounden duty of the parties to place before the court all the evidence. It is also a well-settled principle of law that if there is negligence on the part of the petitioner which contributed to the accident this cannot be ignored. However, the apportionment of compensation must be according to the party's share of responsibility. The Orissa High Court in the case of Sindhu Mohanty v. Gourhrushna Mohanty said : "Generally speaking, when two parties are so moving in relation to one another as to involve risk of collision, each one owes to the other a duty to move with due care and this is true whether they are both in control of vehicles or one is moving with a vehicle of automation and the other with a vehicle like a cycle."

11. From the evidence which has come on record, it is apparent PW-4, Rattan Lal, and PW-7, constable, Nanu Ram, were admittedly at the site patrolling the area when the accident took place. It happened in their presence hence they are the eye witnesses of the occurrence. According to them, the car was going on its right side in a normal speed. The driver of the car was blowing horn as well as using dipper lights in order to caution the traffic coming from the opposite direction. The accident took place at 11.45 p.m., therefore, the use of dipper lights. It is also in their testimony that the truck driver coming from the opposite side was driving the truck in fast speed. The truck driver hit the car on the front right side. The suggestion given to the petitioner's witnesses is contrary to the stand taken in the written statement by the owner and the driver of the truck. It was suggested to them that the truck was standing. It was in a stationary position. It was the car which hit the truck. This suggestion of course was denied by the eye witnesses. Besides this suggestion no other question was put to these witnesses by which any contradiction could be elicited. Their testimony that the car was going on its right side in a normal speed was not questioned. It was not put to them that the truck was moving at a slow speed. On the contrary, as pointed out above, the respondent took a totally new defense when it was suggested to PW-4 and PW-7 in the cross-examination that the truck was in a stationary position and it was the car which by coming on the wrong side hit the truck. In fact this suggestion put to the witnesses is contrary to the defense set up in the written statement filed by the respondents, the owner and the driver of the truck. In their written statement, it was pleaded that the car driver and the occupants were under intoxication. None of these pleas were even suggested to the witnesses. So far as the allegation regarding intoxication is concerned that is belied from the post mortem report of the deceased. The truck driver, Mohd. Din, appearing as RW-3 took a complete somersault when he stated that he was driving the truck at a very slow speed, but the car was being driven in a rash and negligent manner and hit his truck by coming on the wrong side. He nowhere stated that the truck was stationary. His testimony that he was driving the truck at a slow speed of 20-25 km. per hour and the car was driven at a fast speed of 60-70 km. per hour, appears to be an afterthought. This is neither in his pleading nor even suggested to PW-4 and PW-7, the eye witnesses who happened to be at the spot. They were the best persons to admit or deny the same. Hence, his testimony cannot be relied upon. His statement is in clear contradiction to the stand taken in the written statement as well as the suggestions put to the petitioner's witnesses, namely, PW-4 and PW-7. Therefore, no reliance can be placed on his testimony. I am now left with the statements of PW-4 and PW-7 which have been discussed above. Their version of the car being driven at a normal speed and the truck being driven at a fast speed has remained unrebutted and uncontroverter on record. But the site plan prepared by the investigating officer and proved as, PW-6-A, indicates negligence on the part of the car driver also. This site plan has been proved by the testimony of Rajesh Prasad, ASI. Appearing as PW-6, he testified that the marginal notes in PW-6-A are correct. He also got the scene of occurrence photographed. Photographs have been proved by the testimony of Om Prakash, head constable, as exhibits PW-1 to PW-6. The perusal of exhibit PW-6-A shows that the width of the road on which both the vehicles were paying was 10 paces. The Tribunal has taken each pace to be three feet. Therefore, it can be presumed that this road was 30 feet. Exhibit PW-6-A, further shows that the rear portion of the car was 3 paces, i.e., about 9 feet, from the corner of the road and the distance of the front portion of the car from the corner of the road was 9 1/2 feet. It also indicates that the rear portion of the truck was about 6 feet from the centre of the "Patri" dividing the two roads and the front portion of the truck was about 9 feet from the centre "Patri". On the basis of this site plan, the Tribunal came to the conclusion that both the vehicles instead of turning towards left, turned towards right and that is the reason they had a head-on collision. Mr. Goyal, appearing for the petitioner, contended that it was the duty of the driver of the heavy vehicle to take more precautions. There cannot be any quarrel with this argument nor can it be disputed that the width of the truck is about 10 or 11 feet and that of the car about 4 1/2 feet or 5 feet. So even if these measurements are added with the distance at which these vehicles were from the corner of the road, it is apparent that both the vehicles were at fault. Both the vehicles had an opportunity to turn towards the left side as pointed out by the Tribunal. The truck could have turned about 9 feet towards the left and so could the car. This inference is drawn on the basis of exhibit PW-6-A. The eye witnesses have stated that the car was going at a normal speed, using dipper lights and was blowing horn. There cannot be any dispute so far as this part of their statements is concerned. It may also be right that when the car crossed these witnesses, it was going on its right side. But when the accident took place, the side plan shows that the car had in fact slightly turned towards its right side, may be due to confusion. But the truck definitely took a right turn and came almost three feet towards the right side and hit the car. It is due to these circumstances that the Tribunal blamed the truck driver more than the driver of the car. From the site plan, exhibit PW-6-A, it cannot be said that there was no negligence on the part of the car driver at all Counsel for the insurance company rightly contended that the principle of res ipsa loquitur applies in the facts and circumstances of the case. The circumstances cannot tell lie and these are clear from the site plan. To my mind, the Tribunal rightly attributed more negligence to the truck driver than that of the car driver. It is not the case of the petitioner that the site plan has not been correctly prepared. Mr. Goyal, contended that the photographs show the velocity with which the truck hit the car and the car after accident could not move. Admittedly, the truck is a heavy vehicle and when it hit a lighter vehicle like the car, the impact is bound to be more. That is why the Tribunal attributed 70 per cent. of negligence to the truck driver. The photographs further show that the car after being hit did not move. This aspect also lend support to the theory of contributory negligence, because if the car had moved on account of this impact then of course the contention of Mr. Goyal would have been justified that the car was being driven on the right side because of the impact, but that is not the case of the petitioner. Therefore, taking into consideration the facts which have come on record, I am in agreement with the view expressed by the Tribunal that there was contributory negligence and I see no reason to interfere with the same.

12. So far as the question of contributory negligence of the occupants is concerned, the legal heirs of the occupants of the car ought to have imp leaded the owner of the car as well as the insurance company as party. In the absence of the joint tortfeasors before the court, the amount which has been awarded has to be apportioned to the extent of the negligence that may be found by the party who is before the court. If the legal representatives of the deceased occupants had pleaded the other joint tortfeasor then of course the argument of Mr. Goyal would have held ground. But in the absence of the other joint tortfeasor, i.e., the owner of the car and its insurance company, it cannot be said that the occupants of the car would become entitled to recover full compensation from the respondents who are before the court. They may not have contributed to this accident or acted negligently, but since they did not implead the owner of the car and its insurance company, therefore, they have to forgo 30 per cent. of their share of compensation from the tortfeasors who are before the court. If the legal representatives of the occupants of the car are allowed to recover the entire amount of compensation then the joint tortfeasor who is before the court would not be able to realise the extent of the amount from the other joint tortfeasors, in case it is made liable to pay the entire amount. If the joint tortfeasors had been before the court then in that case it was up to the claimant to realise the entire amount awarded from anyone of the joint tortfeasors, because in that case the liability would have been joint and several. In the absence of the other joint tortfeasor, who is not bound by the judgment or the award and consequently the party which is before the court cannot be made to pay for the other party which is not before the court. For these reasons, the deceased occupant's legal representatives will have to suffer for not impleading the owner of the car and its insurance company.

13. The third challenge to the award is with regard to the fixing of dependency income and the multiplier. Bhagwanti Devi and the deceased, Krishan Lal, are the parents of the deceased, Satpal, the evidence of PW-5, Gulshan Rai, proprietor of Electro photo Max, L-38, Con. Place, New Delhi, is very relevant to prove the income of the deceased and his future business prospects. He deposed that he was a partner in the business with the deceased since April, 1977, and the partnership continued till the death of Satpal. He placed on record the written partnership deed. He also produced on record the assessment order in respect of individual income of the deceased, Satpal, for the year 1978-79 which is exhibit PW-5-A. According to him, after the death of Satpal, this business is being carried on by him as sole proprietor. In the year ending March 31, 1982, the gross income shown by the firm was to the tune of Rs. 3.48,574.63 and the net profit was to the tune of Rs. 58,557.16. He further testified that the progress of the business has been consistent since its inception. He had not to put further capital after the dissolution of the partnership. Coupled with the testimony of Mr. Gulshan Rai, is the statement of Smt. Bhagwanti Devi, the mother of the deceased (PW-12), who corroborated the testimony of Gulshan Rai (PW-5) and stated that her son used to give her a sum of Rs. 1,000 per month and sometimes more as household expenses. She also testified that her husband, Krishan Lal, died during the pendency of the petition and at the time of his death he was 67 years old. On the day she made this deposition, i.e., August 2, 1985, she was 65 years. In her cross-examination, not even a suggestion was given that her son was not giving her Rs. 1,000 per month or that he was not running the photostat business. Her testimony to this effect has remained un assailed on record and similarly the testimony of Gulshan Rai that their business has been making profit consistently. The income-tax assessment order, exhibit PW-5-A, shows that the individual income of the deceased from the firm was assessed at Rs. 13,536 per annum. This was after making all the deductions. It is not on record as to what were the deductions allowed but apparently all his permissible expenditure had been allowed as deduction and the net income which came in his hand was to the tune of Rs. 1,030 per month. From this he was giving Rs. 1,000 per month to his mother, He must have had a deduction for his personal expenses from the business. Therefore, the Tribunal was not justified in deducting Rs. 429 out of the net expenses the deceased used to give to his mother. To my mind, the dependency income or the financial loss suffered by the parents has to be reckoned at Rs. 1,000 per month and not Rs. 600 per month as computed by the Tribunal. The Tribunal has mechanically assessed the financial loss at Rs. 600 per month. This he did in spite of the fact that there was uncontroverter and unrebutted evidence of the mother (PW-12) that the deceased used to give her Rs. 1,000 per month. The Tribunal fell in grave error in allowing deduction from this amount. This was the actual financial loss suffered by the family and the Tribunal ought to have assessed the dependency income at Rs. 1,000 per month.

14. The second question which arises is the adoption of the multiplier. The Tribunal has adopted the multiplier of five years without assigning the reason. The contention of Mr. Goyal is that the Tribunal applied the rule of thumb, appears to be convincing in the facts and circumstances of this case. The deceased, Sat Pal, was unmarried, his parents have claimed the compensation. Krishan Lal, father of the deceased, died during the pendency of the petition. The mother, Bhagwanti Devi, is still alive, therefore, the question of applying the multiplier of five years could not arise. The incident is of May 27, 1979. The mother appeared as witness on August 2, 1985, on which date she was 65 years old. She made the statement after six years of the incident. The Tribunal erroneously applied the multiplier of five years. It is stated at the Bar that the mother of the deceased, Smt. Bhagwanti Devi, is still alive. She being alive even after 14 years of the accident, therefore, the multiplier of five years is completely inadequate. If she has lived for almost 14 years and now being 73 years old, one can expect she would live at least 2-3 years more. Therefore, the multiplier of 20 years should have been applied in her case or alternatively the Tribunal should have held that till such time the mother is alive the insurance company should pay her monthly expenses, but having not done so, to my mind, the Tribunal committed an error by applying the multiplier of five years. Thus, calculating the dependency income at Rs. 1,000, multiplied by 12, the annual income would come to Rs. 12,000. Applying the multiplier of 20 years the income would come to Rs. 2,40,000. This amount was to be divided half and half between the parents of the deceased. Now, since Krishnan Lal is dead, the awarded amount will go to Bhagwanti Devi as the sole surviving heir of the deceased, Sat Pal. The other legal representatives brought on record after the death of Krishan Lal are not entitled to any amount of the award because they are not dependent on the mother. As regards deductions on account of personal expenses of the deceased or on any other account, I am of the view that no deduction ought to have been allowed. In support, reliance can be placed on the decision of the Supreme Court in the case of Concord of India Insurance Co. Ltd. v. Nirmala Devi [1980] ACJ 55, where it was held that the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country on generous scales.

15. In a recent judgment of Hardeo Kaur v. Rajasthan State Road Transport Corporation [1992] 1 ACJ 300, the Supreme Court has observed (at page 303) :

"We are of the view that deduction of one-third out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977, and the litigation has come to an end, hopefully, today, 15 years thereafter. This court in Motor owners' Insurance Co. Ltd. v. J. K. Modi [1981] ACJ 507; [1982] 52 Comp Case 454 (SC), held that the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes the sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago less than a quarter of its value when it is received after such a long time. In Manjushri Raha. v. B. L. Gupta [1977] ACJ 134 (SC), this court awarded compensation by multiplying the life expectancy without making any deductions. With the value of the rupee dwindling due to high rates of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the courts below were not justified in making lump sum deduction in this case."

16. Therefore, relying on the observation of the Supreme Court, I am of the considered view that the Tribunal ought not to have allowed deduction on any account. Of course, adjustment of the amount already received has to be made from this compensation. The respondents shall be liable only to the extent of 70 per cent. 30 per cent. share of the compensation shall have to be forgone by the petitioners as they had not imp leaded the joint tortfeasors, i.e., the car owner and the insurance company of the car.

17. Now, coming to the question of Financial loss or the dependency income of Smt. Neena Vashist, wife of late Sanjeev Kumar. The deceased left his wife Neena, three daughters, namely, Megha, Nidhi and Parul and one son, Amit. Besides wife, son and daughters, he also left his mother. As per the Hindu Succession Act they are legal representatives of the deceased and entitled to compensation. Now, the question for consideration is what was the income of Sanjeev Kumar and what amount he was giving to his family members ? It has come in the testimony of Mr. P. K. Aggarwal that income of the deceased was Rs. 1,000 per month. Neena Vashist in her statement testified that her husband was running a printing press, photostat machine and was having a photo studio. He employed one Shiv Kumar as photographer to whom he used to pay Rs. 500 per month besides two persons were employed for the work of photostat in a rented shop. She further testified that her husband used to give her Rs. 1,500 per month for meeting the household expenses. Had her husband been alive he would have been earning Rs. 4,000 to Rs. 5,000 per month. After his death she started running the said business. She was earning about Rs. 800 to Rs. 900 per month. Shiv Kumar, the employee employed by her husband appearing as witness testified that he was being paid a salary of Rs. 550 per month by the deceased. He also testified that the deceased was earning more than Rs. 2,000 per month. From his cross-examination except giving suggestion what he deposed was wrong, nothing has been elicited from which it could he proved that his testimony was not worthy of credence. Similarly, Neena Vashist was not subjected to any cross-examination with regard to her statement that her husband used to give her Rs. 1,500 per month for household expenses. The Tribunal, to my mind, grossly erred in reaching a finding that there was contradiction in the statement of Neena Vashist and that of Shiv Kumar. Neena Vashist has nowhere stated that her husband was earning Rs. 1,500 per month. Her statement is very clear and unambiguous that her husband used to pay her Rs. 1,500 per month for household expenses. This shows he must be earning more than Rs. 1,500 per month. This statement rather stood corroborated by the testimony of Shiv Kumar, the employee when he testified that deceased was earning more than Rs. 2,000 per month. There appears to be no contradiction at all in the statement of these two witnesses. It is an admitted fact on record that the deceased was running a photo studio and photostat machine as well as the printing press. There is no suggestion to Neena Vashist that her husband did not employ any worker at the photostat machine or for photography or that he was not paying a salary as stated by her. There is nothing on the record by which it could be inferred that Neena and Shiv Kumar's testimony are not trustworthy or they were deposing falsely. Therefore, to my mind, the Tribunal without any justification disbelieved their statement regarding dependency income. Rs. 1,500 was the household expenses which according to Neena the deceased used to give to her. This is not disputed on the record. The mere fact that after his death his wife is earning Rs. 800 to Rs. 900 per month from this business does not mean that the deceased was earning Rs. 600 at the relevant time. The deceased being a business man knowing the tricks of the trade, must be earning more than Neena Vashist could earn. If without the help of a male member she could earn Rs. 800 to Rs. 900 per month, this itself indicates that the deceased's income must be more, particularly when he had engaged an expert photographer like Shiv Kumar and assistants to help him in his business. These factors, the Tribunal ought to have taken into consideration for arriving at the income of the deceased. My conclusion is based on the unrebutted evidence which has come on record. The mere fact that the policy lapsed after one year of its issuance does not lead to the inference that Neena and Shiv Kumar were telling lies. There could be numerous reasons and circumstances because of which the deceased might not have paid the insurance premium. The dependency income of the deceased, therefore, has to be assessed at Rs. 1,000 per month, i.e., what is claimed in the petition and not at Rs. 1,500 stated by Neena. Thus, annual income would come to Rs. 12,000 (i.e., Rs. 1,000 x 12 = Rs. 12,000). The admitted age of the deceased at the time of his death was 35 years. The Supreme Court has held the life expectancy to be 70 years. Since all the children in this case were minors, therefore, the multiplier ought to have been of 25 years. So applying the multiplier of 25 years (i.e., Rs. 12,000 x 25), the award amount would come to Rs. 3,00,000. Of course the adjustment of the amount already received by the claimants has to be given. The liability of the respondents will be up to the extent of 70 per cent. and 30 per cent. share of the compensation shall have to be forgone by the claimants, since the joint tortfeasors, i.e., the car owner and the insurance company of the car had not been imp leaded as party. No deduction is permissible in view of the Supreme Court judgment in the case of Hardeo Kaur [1992] 1 ACJ 300.

18. Om Wati is the widow of Shri Shiv Singh, driver of the car. The deceased, Shiv Singh, left behind his wife, three children and his mother. He was 40 years old at the time of the death. He was an agriculturist. It is in the testimony of Om Wati that he used to cultivate the land and owned a tractor. He had been paying Rs. 3,000 per month to her as household expenses and his monthly income was between Rs. 10,000 to Rs. 12,000. Chattar Singh Tyagi, appearing as PW-15, has corroborated the testimony of Om Wati that the deceased was cultivating the land in village Dhoonda Hera and had been taking lands on thekka and was maintaining sullage farm in Ghaziabad. He was owning a tractor. At the time of his death he was earning Rs. 3,000 to Rs. 4,000 per month. In the cross-examination, Chattar Singh Tyagi (PW-15) clarified that the 80 bighas of land was a joint family property which the deceased was cultivating. He also owned 25 acre of sullage farm. Harbans Singh (PW-16) testified that the deceased had his own land. He was having a tubewell. He was saving Rs. 3,000 per month after meeting the expenses of cultivation. He was maintaining a scooter. This 25 acre of sullage firm was his exclusive land. (PW-16) Harbans Singh is the brother of the deceased. He testified that out of 80 bighas of land, the deceased had fifty per cent. share and remaining fifty per cent. was his share in that land. Chatter Singh Tyagi is the pradhan of the village. From the testimony of these witnesses read with the evidence of Om Wati it is clear that the deceased, Shiv Singh, was having a substantial source of income from cultivation and his income can be assessed at Rs. 3,000 per month. The observation of the Tribunal that the insurance was not paid does not prove that the deceased was financially hard pressed or was not earning Rs. 3,000 per month. Om Wati appearing as PW-22, stated that for household expenses the deceased used to give her Rs. 3,000 per month. Even though this part of her testimony has not been challenged, but from the evidence produced by her it is established that deceased's monthly income was approximately Rs. 3,000. He could not have given the whole amount to his wife. The dependency income, therefore, cannot be assessed at Rs. 3,000 per month. It can be safely assessed at Rs. 2,000 per month. The deceased was 40 years old. Taking into consideration the longevity in the family of the deceased the multiplier of 20 years would meet the ends of justice. Applying the multiplier of 20 years, the net amount would come to Rs. 4,80,000. Of course adjustment of the amount already received by the petitioners has to be given and the extent of the liability of the respondents would be to the extent of 70 per cent. 30 per cent. share of the compensation shall have to be forgone by the petitioner. No deductions as discussed above.

19. The other limb of the controversy is with regard to the liability of G the insurance company. Mr. Goyal, counsel for appellant, contended that the petitioner had claimed the compensation against the three respondents, namely, the truck owner, the driver and the insurance company. The offending truck was insured with the New India Assurance Company Ltd. at the time of the accident. All the three respondents were represented by one counsel and written statements were also filed by him. In its written statement, the insurance company took the plea of limited liability. In replication, the petitioner had asserted that the insurance company was liable to pay the entire amount of compensation as per the terms of the insurance policy, as the said policy was in the special knowledge of the insurance company. On the ground of limited liability, no issue was claimed by the insurance company nor was the insurance policy produced along with the written statement. It was only through the testimony of RW-1, Shri R. K. Khanna, branch manager, that an alleged attested copy of the insurance policy was produced indicating that the risk covered against third party was up to the extent of Rs. 50,000. The said copy was not exhibited by the Tribunal because it was neither the original nor the office copy of the original. Still relying on mark "A" the Tribunal held that the liability of the insurance company was limited to Rs. 50,000. Challenging the decision of the Tribunal, counsel further contended that as neither the original nor the office copy of the insurance policy was produced, the Tribunal ought not to have relied on mark "A". Even otherwise the owner of the truck appearing as RW-1 had testified that his truck was fully insured and the insurance company was completely liable against third party risks. The Tribunal has not discussed this part of RW-1's statement nor has the Tribunal given any reason to discard his testimony. In the absence of the insurance policy, the statement of RW-1 becomes very relevant. The insurance company had in fact no clash of interest with the owner of the truck that is the reason insurance company's counsel represented the owner and the driver before the Tribunal.

20. Counsel for the insurance company on the other hand contended that even though no issue was claimed, the question of limited liability was covered under issues Nos. 3 and 4 which read as under :

"Issue No. 3 : Whether the accident took place due to the negligence of the car driver ?

Issue No. 4 : To what amount of compensation, if any, are petitioners entitled and from whom ?"

21. Counsel for the insurance company further contended that under section 110A of the Act, the Tribunal holds an enquiry which is summary in nature. The production of attested copy of policy marked "A" was rightly relied on by the Tribunal. R. K. Khanna had stated that he had prepared the original policy, therefore, knew the contents of the original and was competent to attest the true copy mark "A". Hence the Tribunal correctly placed reliance on the same. Even otherwise strict principles of the Evidence Act are not applicable to cases tried under this Act. Moreover, the onus of proving that it was an unlimited coverage rested on the claimants. In the written statement, the insurance company had taken the plea that it was a limited cover policy. It was for the owner to prove that he had paid extra premium for covering extra risk. The policy does not become unlimited by using the words "comprehensive insurance". In fact the special contract had to be proved in order to cover unlimited risk. But, RW-2 nowhere stated that he paid extra premium. Section 95(2) of the Act as it stood in 1979 clearly indicates the liability of the insurance company to be limited to the extent of Rs. 50,000.

22. Merely because RW-2 stated that it was a comprehensive insurance policy will not make it unlimited as held by the Supreme Court in the case of National Insurance Co. Ltd. v. Jugal Kishore [1988] 63 Comp Case 847; [1988] ACJ at page 270 when it observed (at page 851 of 63 Comp Cas) :

"Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub-section (2) of section 95 of the Act. For this purpose, a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature for instance, with regard to the driver or passengers, etc., in excess of statutory liability, if any, is sought to be covered, it has to be clearly specified in the policy and separate premium paid therefore. This is the requirement of the tariff regulations framed for the purpose."

23. Relying on this judgment it was contended that the mere use of the word comprehensive insurance by the owner will not make the liability unlimited. Further, reliance was placed on the decision of this court in Geeta Devi v. Amrik Singh [1990] ACJ 484. This court, in Geeta Devi's case [1990] ACJ 484 placed reliance on the Supreme Court decision in National Insurance Co. Ltd. v. Jugal Kishore [1988] 63 Comp Case 847 held that the mere use of the words "comprehensive policy" will not make it unlimited unless a special agreement is entered into covering liability beyond the statutory limit and in the absence of the special contract unlimited liability cannot be inferred.

24. For argument's sake, even if it is presumed that issues Nos. 3 and 4 cover the question of the insurance company's liabilities, still it remains to be proved as to whether the insurance company's liability was limited to be Rs. 50,000 only. As observed above, when the insurance company, respondent No. 3 herein, filed the written statement no policy either in the original or copy thereof was produced. It was only an attested true copy which was produced through RW-1, Shri R. K. Khanna. But, when subjected to cross-examination he had to admit that the original policy was on a different form. The true copy was not prepared from the original or from the office copy as the office copy was not available in his office. As per his version, the record had since been destroyed after five years. He also could not produce the premium receipt book, the office copy of the certificate of the insurance policy or the proposal costs. All these records according to him were kept at the Aasaf Ali Road branch of the company, whereas he was working at the Karol Bagh branch and hence he was not aware whether those records were available or not. He could not tell what was the premium charged in this case nor could he tell what was the premium for an "Act only" policy in the year 1979. He, however, could not deny that in 1979 the premium for covering section 95 risk policy was Rs. 84 for one year and for comprehensive risk Rs. 125.

25. Shri Riazuddin, appearing as RW-2, testified that at the time the truck was insured, the representative of the insurance company assured him that the entire liability of the third party risk will be borne by the insurance company, and that the truck was financed with a financier. It was comprehensive insurance policy of which the entire liability of the third party risk was that of the insurance company. This part of his testimony remained unchallenged, unrebutted and uncontroverter on the record. In view of this statement of the owner of the truck, there is nothing on the record by which it could be inferred that it was an "Act only" policy. RW-1 could not produce the office copy of the insurance policy nor did he take any steps to call for the original policy from the financier with whom the truck was financed. A purported true copy of the office copy cannot be relied upon because a copy of a copy is not admissible in law. Even though strict principles of the Evidence Act are not applicable but at the same time one cannot lose sight of the fact that the document which the insurance company wants the court to rely on must be either the original or a photocopy or at least the office copy. Mark "A" is prepared on a totally different form, therefore, it cannot be called a true copy of the original or of the office copy. In the absence of the original or the office copy, no reliance can be placed on this attested copy of the insurance policy. It has not been explained as to from which document mark "A" was compared. In the absence of any-explanation, to my mind, mark "A" must have been prepared from imagination. Mr. R. K. Khanna, RW-1, has not explained as to from where and when this attested copy was prepared, because the original was not in the company's possession and the office copy stood destroyed. Therefore, in the absence of the original as well as the office copy, how could he prepare mark "A" and attest it unless he was doing it from his imagination. The owner of the truck has categorically stated that the vehicle was fully insured and the entire liability of the third party was that of the insurance company in the event of the accident. If the liability was limited or the policy was an "Act only" policy then nothing prevented the insurance company from calling for the original or producing the office copy. No record has been produced to show that the office copy has been destroyed nor had the premium receipt book and the proposal cost application been produced. RW-1 could not deny the suggestion that these records were available in the office at Asaf Ali Road. This shows that the insurance company withheld the best evidence from the court deliberately. Had the original or the office copy of the policy and other record been produced, it would have belied the plea of limited liability. The premium for covering section 95 risk policy at the relevant time was Rs. 84 and for third party liability Rs. 125 per year as per the motor tariff. The premium receipt register if produced could have clinched the whole issue. It was a very relevant record to prove whether extra premium was paid to cover unlimited liability as alleged by the owner of the truck. In the absence of the original policy or the office copy and the premium receipt book, to my mind, the Tribunal fell in grave error in relying on mark "A" and coming to the conclusion that the liability of the insurance company was limited.

26. As observed above, Mr. Tyagi advocate represented all the three respondents before the Tribunal and filed written statements on their behalf. This shows that there was no clash of interest between the owner, and the insurance company. An inference can be drawn that since one lawyer was representing all the three parties he must be in possession of all the records, In the replication, the petitioners had taken a specific plea that they were entitled to full compensation from the insurance company and that the terms and conditions of the policy were in the special knowledge of the insurer and insured. The owner having testified that the agent of the insurance company assured him that the entire liability was that of the insurance company, it was for the insurance company to have led cogent and reliable evidence to rebut the same. But there is not an iota of evidence to disprove this part of the testimony of RW-2.

27. On its failure to produce the original policy or the office copy as well as other documentary evidence, a presumption against the insurance company would be raised. The insurer in order to successfully disclaim its liability beyond the statutory limit has to establish :

(i) That the insurance policy was an "only Act" policy.

(ii) That the amount of premium charged was not extra.

(iii) That there was no special contract.

28. These facts are supposed to be in the special knowledge of the insurance company. If the insurance company fails to establish by producing relevant documents and cogent evidence then the benefit of statutory liability will not be available to it. The Tribunal ought to have drawn an adverse inference against the insurance company in view of the decision of the Supreme Court in the case of Gopal Krishnaji Kethar v. Mohamed Haji Latif , where it was observed that (at page 1416) :

"Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue."

29. These observations are very relevant in view of the specific stand taken by the claimants before the Tribunal that the liability of the insurance company was unlimited in terms of the insurance policy. Hence, it became necessary for the insurance company to produce the relevant record. The insurance company having not done so, the Tribunal should have held that the insurance company withheld the best evidence.

30. I am afraid, reliance on the Supreme Court decision in National Insurance Co. Ltd.'s case [1988] 63 Comp Case 847 is misplaced. In the facts of this case, the law laid down in National Insurance Co. Ltd.'s case [1988] 63 Comp Case 847 would not apply. Section 95 of the Art. provides for compulsory coverage in certain specified cases. As it provides for a compulsory coverage, it fixes the minimum limits of such compulsory coverage. But, it thereby does not say that the minimum limits of compulsory coverage must always remain unchanged even by a mutual contract between the insured and the insurer.

31. The words "third party" have not been defined under the Act. According to Stroud's Judicial Dictionary, this word connotes insurer as one party, insured another, and claimant of the claim on account of negligent use of vehicle would be "third party".

32. Sub-section (2) of section 95 of the Act provides for the coverage of the liability undertaken under the policy of insurance. Hence what are the terms and conditions of the policy are very relevant for determining the limits of the insurer. In a contract of insurance there is an implied condition that each party must disclose every material fact known to him.

33. These facts would embrace every circumstance which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would take the risk and, if so, at what premium and on what condition.

34. If full and accurate disclosure of the material facts had been made to the insurer's agent and if that agent assured the policy holder that his interest would not be adversely affected and that risk and full liabilities of all risk would be that of the insurer, then this would amount to promise held out by the principal. The Gujarat High Court in the case of Punjabhai Prabhudas and Co. v. Sakinaben Mohamadbhai [1977] ACJ 44 held that if the insurer agrees to indemnify the insured in respect of all liabilities including those arising under the Fatal Accidents Act or at common law, it would be bound to reimburse him for the entire amount of compensation which may be awarded to a claimant against him, and not limited to the extent of the liability. In the case on hand, the production of the original or its copy was very essential, that would have depicted the exact terms and conditions and the actual premium paid. Per truck owner's version, the agent of the insurance company held out a promise that third party risk was fully covered. The insurance company being the principal, is therefore, liable for the promise made by its agent to RW-2, i.e., owner of the truck. This assertion has not been refuted nor rebutted by the insurance company by the testimony of Mr. Khanna or by calling the said agent as witness.

35. In the case of National Insurance Company [1988] 63 Comp Case 847 the photo copy of the policy was produced in the Supreme Court and counsel for the respondent admitted the same. After perusing the insurance policy, the court came to the conclusion that the word "commercial vehicle comprehensive" printed on the policy did not mean that it was not an "Act only" policy. Even though it is not permissible to use a vehicle unless it is covered at least under an Act only policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured a higher premium than for an Act only policy is payable depending on the estimated value of the vehicle. It was after perusal of the policy that the Supreme Court came to the conclusion that the liability undertaken with regard to the death or bodily injury to a person was limited to the extent of Rs. 20,000. Perusal of that policy before Supreme Court showed that no additional premium was paid by the owner. It was in view of those facts the court came to the conclusion that unlimited liability did not arise. The liability under the policy was the same as the statutory liability contemplated under clause (b) of sub-section (2) of section 95 of the Act. To the same effect are the observations of our own High Court in the case of Geeta Devi [1990] ACJ 484. But, the facts in this case are totally different. Here neither the original policy nor the photo copy nor even the office copy has been produced . The copy produced is on a totally different form, prepared when and from where not explained, who prepared the attested copy not stated, hence the observation of the Supreme Court in the case of National Insurance Co. [1988] 63 Comp Case 847 does not apply to the facts of this case. The owner of the truck on the other hand testified that it was an unlimited liability policy. His statement is a pointer towards the fact that excess premium must have been charged by the agent of the insurance company in order to cover unlimited risk. Had it not been so, the insurance company would have produced its agent to rebut his statement. It cannot be believed that the office copy of the policy was destroyed after five years. This policy was issued for one year on February 27, 1979. The accident took place on May 27, 1979, and the petition was instituted in January, 1980. The written statement was filed by the insurance company in March, 1980. Hence, the statement of RW-1 that documents pertaining to insurance were destroyed after five years does not appeal to reason. This proves that Mr. R. K. Khanna was not telling the truth. Once the case is pending in the court, no party would destroy its record particularly when it had taken a plea in the written statement that its liability was limited. He even did not produce the premium receipt book. These documents, according to him, were available in the Asaf Ali Road branch. If these were available, why were these not produced, there is no explanation for the same. This shows a casual attitude on the part of the insurance company. I will not hesitate to observe that had he produced the premium receipt book, it would have proved that the owner of the truck had paid extra premium to cover unlimited liability. The Supreme Court, in the case of National Insurance Co. Ltd. [1988] 63 Comp Case 847 emphasised the duty of the insurance company to produce the insurance policy at the first available opportunity, it was observed that (at page 853) :

"This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We, accordingly, wish to emphasise that in all such cases where the insurance company concerned wishes to take a defense in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with has defense."

36. In view of these repeated observations of the Supreme Court, it was incumbent on the insurance company to have properly proved the insurance policy and filed it with the written statement which was filed way back in March, 1980. Having not done so, the only irresistible conclusion which can be drawn is that had the insurance policy been produced, it would have proved that there was a special contract covering the third part risk to an unlimited extent. The Division Bench of this court in the case of New India Assurance Co. v. Darshan Singh [1992] Rajdhani Law Reporter 246, observed that a printed copy of the policy brought on record by a witness of the insurance company cannot inspire confidence; hence in the absence of the original policy the liability of the insurance company remains unlimited. Similarly in the present case also, not even the office copy has been produced. Therefore, taking into consideration the totality of the circumstances and the facts, which have come on record, I have no hesitation to conclude that the liability of the insurance company is unlimited. Looking from another angle also I can say that the arguments of counsel for the respondent insurance company are wholly untenable, that it was for the owner to prove that extra premium was paid to cover unlimited liability. Borrowing the words of Desai J. in the case of Narcinva. V. Kamat v. Alfredo Alfredo Antonio Doe Martino [1985] 58 Comp Case 383; [1985] ACJ 397 it can be said that a monopoly successfully avoided its legally incurred liability on wholly untenable grounds. That is the scenario in these appeals. The insurance company having the monopoly of general insurance cannot avoid its liability particularly when it has failed to substantiate its plea raised in the written statement. The Supreme Court, in the above noted case, while negating the contention of the insurance company observed that (at page 388) :

"If a breach of a term of a contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. . . Further, the burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. . . Once the insurance company failed to prove that aspect its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance."

37. Applying these observations to the facts of this case, it can safely be said that the burden was on the insurance company to prove that there was no special contract, covering the risk of the third party, as had been stated by the owner of the truck. Instead, it took the case so lightly that it destroyed the office copy and other relevant record, during the pendency of the petition. This act clearly shows that the insurance company either was very negligent or deliberately did not produce the record, because had it been produced, it would have proved that the liability of the insurance company was unlimited. In the instant case, the insurance company was in a better position to produce and prove the policy, particularly, when the defense of the owner of the truck had also been taken over by it. The petition was contested by a counsel, engaged by the insurance company. It was obviously for the insurance company to produce and prove the original policy or the office copy, if the same was, in any manner, helpful to the company. That having not been done, the obvious result is that the insurance company's liability is unlimited.

38. For the reasons stated above, I set aside the award of the Tribunal and hold that the appellants, Smt. Neena Vashist and others, would be entitled to 70 per cent. of Rs. 3,00,000 which comes to Rs. 2,10,000. Similarly, Smt. Om Wati and others would be entitled to 70 per cent. of Rs. 4,80,000 which comes to Rs. 3,36,000. As regards Smt. Bhagwanti Devi, she will also be entitled to 70 per cent. of Rs. 3,00,000, awarded to her, which comes to Rs. 2,10,000. These amounts the claimants will be entitled to recover from the respondents jointly and severally. Besides the awarded amount they would also be entitled to interest. The Tribunal has held that there was a delay on the part of the claimants, therefore, they will not be entitled to interest. I have perused the record, which does not support this version of the Tribunal. Therefore, the Tribunal was not justified in not awarding the interest. However, the record indicated that there was some delay on the part of the claimants, but not the whole of it, therefore, they cannot be penalised. Keeping these factors into consideration I hold that they will be entitled to interest at the rate of 6 per cent. from the date of application till realisation, on the awarded amount. The amount, if any, already paid will be adjusted.