Shri Krishan Lal Through L.Rs. And ... vs Shri Mohd. Din And Others
1993 Latest Caselaw 156 Del

ORDER

Usha Mehra, J.

1. These three ap-

peals filed under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter called the 'Act') have arisen in the following circumstances.

2. On 27th May, 1979, at about 11.45 p.m. S/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 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 Accident Claim Tribunal thereinafter 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 6 years. He was Chairman of several Committees. Neena was 30 years old when the accident took place. Beside the widow, the deceased left one son and three daughters who were minor. With the death of Sanjeev Kumar the family has been financially ruined. The deceased was giving Rs. 1,000/- p.m. 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 deceased Shiv Singh has claimed compensation to the tune of Rs. 40 lacs. 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/- p.m. from the cultivation of these lands and thus entitled to a compensation of Rs. 40 lacs.

4. Krishan Lal and Bhagwanti Devi claimed compensation to the tune of Rs. 3,00,000/- being parent of the deceased Satpal, who was 25 years old at the time of his death. Satpal was earning about Rs. 1050/-p.m. as per his Income-tax return. He was unmarried at the time of his death.

5. A joint written statement on behalf of Driver and owner of truck was filed by the counsel of 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 corning 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 petitioner denied all these allegations.

6. There are two eye-witnesses to this accident namely Constables Nanu Ram and Rattan Lal, P.W. 4 and P.W. 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% and of the driver to the extent of 30%. The Tribunal assessed the income of the deceased Sanjeev Kumar at Rs. 600/- p.m., out of which 1/3rd deduction was made on account of personal expenses and dependency income assessed at Rs. 400/-p.m. So far as the age of the deceased Sanjeev Kumar, it was admitted to be 35 years. Tribunal applied the multiplier of 20 years on which basis the awarded amount came to Rs. 96,000/ -. The liability of Insurance Company was held limited to Rs. 50,000/- and truck owner's liability to the extent of 70%, Thus the awarded amount came to Rs. 67,200/-. As regard the case of Om Wati, the Tribunal accepted the age of the deceased Shiv Singh as 40 years. Deceased was earning Rs.600/- p.m. out of which 1/3rd 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% was to be paid by the respondents, thus the amount of award came to Rs. 50,400/-. Insurance Company's liability was held to be limited to Rs.50,000/-. As regard Krishan Lal and Bhagwanti Devi, parents of the deceased Sat Pal, deceased's age accepted to be 25 years and his income at Rs. 1029/- p.m. Deduction of 1/3rd on account of his personal expenses amounting to Rs.429/- the dependency income or the financial loss suffered by parents assessed at Rs.600/- p.m. and adopted the Multiplier of 5 years, and this awarded the amount of Rs. 26,000/-. Out of this 70% 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 question of fact and law arises 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 the counsel for the parties.

9. So far as the question of contributory negligence is concerned, both the counsel advanced lengthy arguments by placing heavy reliance on the testimony of PW-4, PW-7 and of RW-3 i.e. driver of the truck as well as on the photographs Exs. P-l to P-6 and the site plan Ex. 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. Site plan does not support the oral testimony of petitioner's witnesses, a man can tell 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 direction 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 the 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 driver of the truck has appeared as R.W. 3. But his testimony does not inspire confidence. In such a 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 Court all the evidence. It is also 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 com-

pensation must be according to party's share of responsibility. Orissa High Court in the case of Sindhu Mohanty v. Gour Krushna 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". From the evidence which has come on record, it is apparent P.W. 4 Rattan Lal and P.W. 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 a 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 eyewitnesses. Beside 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 in a slow speed. On the contrary, as pointed out above, 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, 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 in a very slow speed, but the car was being driven in a rash and negligent manner and hit his truck by coming on wrong side. He nowhere stated that the truck was stationary. His testimony that he was driving the truck in a slow speed of 20-25 km. p.h. and the car was driven in fast speed of 60-70 km.p.h., appears to be an afterthought. This is neither in his pleading nor even suggested to PW-4 and PW-7, the eye-witnesses and 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 car being driven in a normal speed and that truck being driven in 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 Exs. PW-1 to PW-6. The perusal of Ex. PW-6/A shows that the width of the road on which both the vehicles were plying was 10 paces. The Tribunal has taken each pace to be three feet. Therefore, it can be presumed that this road was 30 feet. Ex. 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 these had a head on collusion. 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 it can 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 [he 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 Ex. PW-6/ A. The eyewitnesses have stated that the car was going on a normal speed, using dipper lights and was blowing horns. 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 site plan shows that the car had in fad slightly turned towards its right side, may be due to confusion. But the truck definitely took 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 Ex. PW-6/A, it cannot be said that there was no negligence on the part of the car driver at all. Counsel for 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% 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 a contributory negligence and I see no reason to interfere with the same.

11. 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 L.Rs. of the deceased occupants had pleaded the other joint tortfeasor then of course the argument of Mr. Goyal would have held around. 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 forego 30% of their share of compensation from the tortfeasors who are before the Court. If L.Rs. of the occupants of the car are allowed to recover the entire amount of compensation then the joint tortfeasors 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 L.Rs. will have to suffer for not impleading the owner of the car and its Insurance Company.

12. The third challenge to the award is with regard to the fixing of dependency income and the multiplier. Bhagwanti Devi and deceased Krishan Lal are the parents of deceased Satpal, the evidence of P.W. 5, Gulshan Rai, Proprietor of M/s. 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 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 deceased Satpal for the year 1978-79 which is Ex. P.W. 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 31st March, 1982 the gross income shown by the firm was to the tune of Rs. 3,48,574.63 p. and the net profit waste the tune of Rs. 58,557.16 p. 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 (P.W. 12), who corroborated the testimony of Gulshan Rai (P.W. 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. 2nd August, 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 Ex. P.W. 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. 1030/- p.m. From this he was giving Rs. 1,000/- p.m. to his mother. He must have had a deduction from 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 atRs. 1,000/- p.m. and not Rs.600/- p.m. as computed by the Tribunal. The Tribunal has mechanically assessed the financial loss at Rs. 600/- p.m. This he did in spite of the fact that there was uncontroverter and un rebutted evidence of the mother (PW-12) that the deceased used to give her Rs. 1,000/- p.m. 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/- p.m.

13. 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. 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 27th May, 1979. The mother appeared as witness on 2nd August, 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 Rupees 2,40,000/-. This amount was to be divided half and half between the parents of the deceased. Now since Krishan Lal is dead, the awarded amount will go to Bhagwanti Devi as the sole surviving heir of the deceased Sat Pal. The other L.Rs. 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 regard 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 Supreme Court in the case of Concord of India Insurance Company Ltd. v. Nirmala Devi, , 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 in generous scales.

14. In a recent judgment of Hardeo Kaur v. Rajasthan State Road Transport Corporation, , the Supreme Court has observed (at page 1262 of AIR):--

"We are of the view that deduction of 1 / 3rd 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, held that the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes a 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 quarter of its value when it is received after such a long time. In Manjushri Raha v. B. L. Gupta, , this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate 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."

15. 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 foregone by the petitioner as they had not imp leaded the joint tort feasors i.e. the car owner and the insurance company of the car.

16. Now coming to the question of financial loss or the dependency income of Smt. Neena Vashist wife of late Sanjeev Kumar. Deceased left his wife Neena, three daughters namely Megha, Nidhi and Parul and one son Amit. Beside wife, son and daughters, he also left his mother. As per the Hindu Succession Act they are L.Rs. 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/-p.m. Neena Vashist in her statement testified that her husband was running a printing press, photostat machine and was having photo studio. He employed one Shiv Kumar as Photographer to whom he used to pay Rs. 500/- per month beside two persons were employed for the work of photostat in a rented shop. She further testified that her husband used to give her Rs. 1500/- 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 be 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. 1500/- 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. 1500/- per month. Her statement is very clear and unambiguous that her husband used to pay her Rs. 1500/-p.m. for household expenses. This shows he must be earning more than Rs. 1500/- p.m. This statement rather stands corroborated by the testimony of Shiv Kumar, the employee when he testified that deceased was earning more than Rs. 2,000/-p.m. 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 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. 1500/- was the household expenses which according to Neena the deceased used to give her. This is not disputed on the record. The mere fact that after his death wife is earning Rs. 800/- to Rs. 900/-p.m. from this business does not mean that the deceased was earning Rs. 600/- at the relevant time. The deceased being a businessman knowing the trick 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 assistance 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 this 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 lie. There could be numerous reasons and circumstances because of which deceased might have not 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 Rupees 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 minor, therefore, the multiplier ought to have been of 25 years. So applying the multiplier of 25 years (i.e. 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 tort feasors 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 Supreme Court Judgment in the case of Hardeo Kaur (supra).

17. 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/-. Chatar Singh Tyagi, appearing as P.W. 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. cross-examination Chattar Singh Tyagi (P.W. 15) clarified that the 80 bighas of land was a joint family property which deceased was cultivating. He also owned 25 acre of Sullage Farm. Harbans Singh (P.W. 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 Farm was his exclusive land. (P.W. 16) Harbans Singh is the brother of the deceased. He testified that out of 80 bighas of land, deceased had fifty percent share and remaining fifty percent was his share in the land. Chattar 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 house-

hold expenses 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 end 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%. 30% share of the compensation shall have to be foregone by the petitioner. No deductions as discussed above.

18. The other limb of the controversy is with regard to the liability of the insurance company. Mr. Goyal counsel for appellant contended that the petitioner had claimed the compensation against the three respondents namely truck owner, driver and Insurance Company. The offending truck was insured with 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 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 the insurance policy was produced along with the written stattement. It was only through the testimony of R.W. 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 original nor office copy of the original. Still relying on Mark 'A' the Tribunal held that the liability of the insurance company was limited to Rupees 50,000/-. Challenging the decision of the Tribunal, counsel further contended that as neither the original nor 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 R.W. 1 had testified that his truck was fully insured and the insurance company was completely liable against third party risk. The Tribunal has not discussed this part of R.W. 1's statement nor the Tribunal has given any reason to discard his testimony. In the absence of insurance policy, statement of R.W. 1 becomes very relevant. 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.

19. The 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 No. 3 and 4 which read as under :

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

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

20. Counsel for the Insurance Company further contended that under Section 110-A of the Act, the Tribunal holds an enquiry which is summary in nature. Production of attested copy of policy marked "A" was rightly relied 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 Evidence Act are not applicable to cases tried under this Act. Moreover, onus of proving that it was an unlimited coverage rested on the claimants. In the written statement 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 word '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 indicate the liability of the insurance company to be limited to the extent of Rs. 50,000/-.

21. Merely because R.W. 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 Company Ltd. v. Jugal Kishore, , when it observed (at page 721 of AIR):--

"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."

22. 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 Gita Devi v. Amrik Singh, reported in 1990 ACJ 484. This Court, in Gita Devi's case placed reliance on the Supreme Court decision in National Insurance Company Ltd. v. Jugal Kishore (supra) held that mere use of the word "comprehensive policy will not make it unlimited unless special agreement is entered into covering beyond statutory limit and in the absence of the special contract unlimited liability cannot be inferred.

23. For arguments sake, even if it is presumed that issues Nos. 3 and 4 cover the question of Insurance Company's liabilities, still it remains to be proved as to whether the Insurance Company's liability was limited to Rs.50,000/- only. As observed above, the Insurance Company, respondent No. 3 herein, when filed the written statement no policy either in original or copy thereof was produced. It was only an attested true copy which was produced through R.W. I, Shri R. K. Khanna. But when subjected to cross-examination he had to admit that the original policy was on a different form. True copy was not prepared from the original or from office copy as the office copy was not available in his office. As per his version the record had since been destroyed after 5 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 Asaf Ali Road Branch of the company, whereas he was working at Karol Bagh Branch hence was not aware whether those records were available or not. He could not tell what was the premium charged in this case nor could tell what was the premium for "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/-.

24. Shri Riazuddin, appearing as R.W. 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 tbe insurance company, and that the truck was financed with a financer. 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 uncontroversial 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 took any steps to call for the original policy from the financer with whom the truck was financed. A purported true copy of the office copy cannot be relied upon because copy of a copy is not admissible in law. Even though strict principles of Evidence Act are not applicable but at the same time one cannot loose sight of the fact that the document which the insurance company wants the court to rely must be either original or photocopy or at least office copy. Mark-A is prepared on a totally different form, therefore, it cannot be called true copy of the original or of 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 company's possession and the office copy stood destroyed. Therefore, in the absence of the original as well as of 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 was "act only" policy then nothing prevented the insurance company from calling the original or produce the office copy. No record has been produced to show that office copy has been destroyed nor the premium receipt book and the proposal cost application had 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 motor tarrif. 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 insurance was limited.

25. 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. Inference can be drawn that since one lawyer was representing all the three parties he must be in possession of all the record. In the replication, the petitioners had taken a specific plea that they were entitled to full compensation from insurance company and that the terms and condition of the policy were in the special knowledge of the insurer and insured. The owner having testified that the agent of insurance company assured him that the entire liability was that of the insurance company, it was for the insurance company to have led a 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.

26. On failure to produce original policy or 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 "only act" policy.

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

iii) That there was no special contract.

These facts are supposed to be in the special knowledge of the insurance company. If 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 adverse inference against the insurance company in view of the decision of the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif, , where it was observed thus :

"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."

27. 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 the term of the insurance policy. Hence it became necessary for the insurance company to produce relevant record. Having not done so, the Tribunal should have held that the insurance company withheld the best evidence.

28. I am afraid, reliance on the Supreme Court decision in National Insurance Company Ltd. (supra) is misplaced. In the facts of this case, the law laid down in National Insurance Company Ltd. (supra) would not apply. Section 95 of the Act 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 by insured and the insurer.

29. The word "third party" has 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'.

30. 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 condition 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. 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 what condition.

31. 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. Gujarat High Court in the case of Punjabhai Prabhudas and Co. v. Sakinaben Mohamdbhai, reported in 1977 ACJ 44 : (AIR 1977 Guj 179) 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 in 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 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 R.W. 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.

32. In the case of National Insurance Company the photo copy of the policy was produced in the Supreme Court and the 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, but 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 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/-. The 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 the 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 Gita Devi (supra). 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 Supreme Court in the case of National Insurance Co. (supra) does not apply to the facts of this case. The owner of the truck on the other hand testified that it was 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 27th February, 1979. The accident took place on 27th May, 1979 and the petition was instituted in January, 1980. The written statement was filed by the Insurance Co. in the March, 1980. Hence the statement of R.W. 1 that documents pertaining to insurance were destroyed after five years does not appeal to reasons. This proves that Mr. R. K. Khanna was not telling the truth. Once the case is pending in the court, no party 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 Asaf Ali Road branch.

If these were available, why were these not produced, there is no explanation to 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. (supra) emphasised to the insurance company to produce the insurance policy at the first available opportunity, it was observed that (at page 723 of AIR 1988) :

"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 alt 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 its defense."

33. In view of these repeated observations of the Supreme Court, it was incumbent on the insurance company to have properly proved insurance policy and filed it with the written statement which was filed way back in March, 1980. Having not done so, the only irresistable 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 party 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 (DB) page 246 : (AIR 1992 Delhi 329), 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 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 the counsel for 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 word of Desai, J. in the case of Narcinva Kamat v. Alfredo Antonio Doe Martins it can be said that a monopoly successfully avoided its legally incurred liability on the wholly untenable ground. 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 insurance company observed that:--

"If a breach of a term of 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."

34. 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.

35. For the reasons stated above 1 set aside the award of the Tribunal and hold that the appellants Smt. Neena Vashist would be entitled to 70% of Rs. 3,00,000/- which conies to Rs. 2,10,000/-. Similarly Smt. Om Wati would be entitled to 70% of Rs. 4,80,000/-which comes to Rs. 3,36,000/-. As regards Smt. Bhagwami Devi she will also be entitled to 70% 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 severely. 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% from the date of application till realisation, on the awarded amount. The amount, if any, already paid will be adjusted.

36. Order accordingly.