JUDGMENT
1. The two appeals have been filed against the award dated 24-12-1991 passed in [CASE NUMBER], by the Member, Motor Accidents Claim Tribunal, Datia (for short, the 'Tribunal').
2. [CASE NUMBER] is of the claimants for enhancement of compensation and for setting aside the award so far it relates to apportionment of the liability of payment of compensation in equal proportion by the insurer and owners of the two offending vehicles.
3. [CASE NUMBER] is by the owner and driver of the passenger bus No. CPW 6790, involved in the accident, which challenges the award as excessive and also the award specifying the amount 'of compensation payable by the Insurance Company limiting to Rs. 50,000/- of its statutory liability under [SECTION] of the [ACT] as amended (for short, the 'Act of 1939')
4. Claimant No. 1 is the widow and claimant No. 2 is the daughter of the deceased [ENTITY], who died because of the motor accident, occurred on 23-9-1988. On the day of accident the deceased as a pillion-rider on scooter No. MPI 8656 driven by [ENTITY] who going from Bhander side to Datia; a passenger bus driven by respondent No. 2, owned by respondent No. 1 and in sured by respondent No. 3 (in [CASE NUMBER]) was coming from the side of Datia. Near the Octroi post, on the left side of the turning of the road, the bus dashed against the scooter, as a result of which the accident occurred, wherein the deceased received severe multiple injuries. The deceased was taken to the hospital and from there to J.A. Group of Hospital, Gwalior, but ultimately could not be survived. The claimants in their petition claimed the compensation of Rupees 5,95,000/- from the owner driver and the Insurance Company of the passanger bus without impleading owner, driver and Insurance Company of scooter as parties to the petition. The Tribunal after appreciating evidence adduced by the parties, held that the accident occurred due to rash and negligent driving, of the two drivers, i.e., the drivers of the bus and scooter, who equally contributed to the accident.
5. While dealing with issues No. 4 to 10, relating to compensation, the Tribunal held that the deceased, who was a law graduate and was entering into legal profession, could have earned at least Rs. 1,000/- per month initially and gradually he would have earned much more by the passage of time and experience. Taking minimum monthly income of Rs. 1,000/- into consideration, the Tribunal calculated the dependency at the rate of Rs. 500/- per month, yearly, Rs. 6,000/-, and by applying the multiplier of 20, determined the dependency of Rs. 1,20,000/-. Out of the amount so determined, the tribunal made a deduction of 15 per cent for uncertainties of life and lump sum payment. In the head of loss of company and love and affection, the tribunal awarded Rs. 10,000/s for consortium to the widow Rs. 10,000/-; for loss of estate Rs. 20,000/-; Rs. 500/- were awarded as the cost of the wrist watch; Rs. 500/- towards funeral expenses; Rs. 1,500/ - for performing rites of the thirteenth day; and Rs. 2,000/ - in the head of medical expenses and transportation charges incurred in treatment of the deceased.
6. Though, the Tribunal held that it was a case of composite negligence, as the driver owner of the scooter and insurer were not made parties, apportioned the compensation in equal proportion and specified the amount of Rs. 74,500/-, payable by the owner, driver and the insurer of the bus with interest at the rate of 12 per cent per annum and costs. Out of the said amount, the tribunal further made a direction fixing the liability of the Insurance Company to the extent of Rs. 50,000/- to meet the statutory liability under [SECTION] of the Act of 1939 with its interest and costs. It is this award, out of which the two appeals arise, as aforesaid.
7. We heard Shri [ENTITY], counsel for the claimants/ appellants, Shri [ENTITY], counsel for appellants, owner and driver, and Shri [ENTITY], counsel for the Insurance Company.
8. Before we deal with the contention relating to award of compensation, we deal with the question regarding liability of the Insurance company. The vehicles involved in the accident is a passenger bus, its liability has to be considered in view of the provisions of [SECTION] of the Act of 1939, relevant portion of which we quote thus:
"95. Requirement of policies and limits of liability. (1) xxx xxx xxx (2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely -
(a) xxx xxx xxx
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuances of a contract of employment,
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c)-(d) xxx xxx xxx"
9. It is not a case of the owner of the vehicle that for covering the unlimited risk of a third party the "additional premium was paid. Though the policy is not placed on record, the cover note is exhibited as Ex. D/2 by the insurer, therefore, non-production of the policy of insurance will not make any difference, as it is settled that cover note follows the policy. In the cover note, in the heading of 'Schedule of Premium', the premium paid is shown as below :
"Liability to public risk Rs. 240.00 Add for L. L. to Passengers as per Rs. 624.00 SSD IMT 13 Add for L. L. to paid"
driver and/or cleaner as per SSD IMT. 16 Rs. 16.00 Rs. 680.00"
A perusal of the premium paid do not indicate that any additional premium was paid to cover the unlimited liability of a third party or higher than the statutory liability fixed by [SECTION]. The appellant insured has also not placed any material before this Court that any additional premium was paid to cover the risk of unlimited liability, therefore, in the absence of the payment of any additional premium for covering the risk of unlimited liability of a third party, the liability of the Insurance Company shall be in accordance with [SECTION] of the Act 1939.
10. In the case of National Insurance Co. Ltd. v. [ENTITY], 1988 ACJ 270, the Supreme Court, while considering the question has observed that comprehensive insurance of the vehicle entitles the owner to claim reimbursement of damages suffered by the vehicle. It does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under [SECTION] of the Act of 1939. 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 the 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 therefor, which is the requirement of the tariff regulations framed for the purpose.
11. A Division Bench of this Court in the case of [ENTITY] v. Brijmohan Parihar , 1990 ACJ 399, following the decision in the case of [ENTITY] (supra), in case where the death of scooterist occurred in an accident with the mini-bus, has held that as the policy provided liability of Insurance Company, limited to Rs. 50,000/-, the liability of the Insurance Company under a comprehensive Policy does not mean that the limit of liability for third party risk becomes unlimited or higher than the statutory limit in the absence of a specific agreement.
12. The same is the view of the Kerala High Court (FB), Karnataka High Court (DB) and Andhra Pradesh High Court (SB) in the cases of National Insurance Co. Ltd. v. [ENTITY], 1993 ACJ 343; [PRECEDENT]; and, [PRECEDENT], respectively.
13. The contention of Shri [ENTITY], learned counsel for the owner, that enforcement of the [ACT] (for short, the 'New Act'), in view of [SECTION] which is corresponding to [SECTION] of the Act of 1939, the liability of the insurer does not remain limited in view of [SECTION] of the New Act and [SECTION] of the [ACT], in our opinion, has no merit. Exactly, the same contention was raised in the case of [ENTITY] (supra), wherein the Division Bench of this Court, after referring to the provisions of [SECTION], [SECTION] of the New Act, and [SECTION] of the [ACT], observed that [SECTION] of the New Act does not speak of any liability incurred under the Act of 1939 and does not also deal with adjudication thereunder in respect thereof. It has an entirely different purpose of dealing with cases other than those of tortious liability despite its wide sweep covering penalty or fine imposed and other action taken under the repealed enactment. It does not have the effect of imparting retrospective operation to [SECTION] so as to enlarge the scope of insurer's liability thereunder in regard to accidents occurring, and claims lodged and decided, under the Act of 1939. It has not kept alive for adjudication under the New Act the liability with respect to which, as per [SECTION], [ACT], legal proceeding or remedy contemplated under the Act of 1939 has to be continued or enforced. Clauses (b) and (c) of [SECTION] are clear and categorical in that regard.
14. The Full Bench of Kerala High Court in the case of [ENTITY] (supra) has also considered the provisions of [SECTION] and [SECTION] of the New Act, and held that [SECTION], relating to unlimited liability, has no retrospective application, though the provisions are introduced in the New Act, it does not automatically lead to the inference that such provisions arc retrospective in nature altering the liability of the Insurance Company as it stood on the date of accident.
15. In our opinion, the view taken by this Court in [ENTITY]'s case (supra) and the view of Kerala High Court in [ENTITY]'s case (supra) are correct, we respectfully agreeing with the views, are not inclined I to delve into the question any further.
Re.: Conspection
16. The deceased at the relevant time was in late twenties and was a law graduate, who was to enter into legal profession. True, at the time of accident his income was nill by the profession, but it is also a fact that he was maintaining his wife and the young daughter, therefore, it cannot be said that the dependents of the deceased are not entitled to any compensation. However, on guess work the tribunal has determined the monthly dependency at the rate of Rs. 500 and yearly, Rs. 6,000/-, multiplied it by 20, and, thereafter deducted 15 per cent out of the total amount of dependency so determined, to-
wards lump sum payment and for uncerlain-ties of life. Now, it is well-settled that appropriate method of assessment of compensation is the method of capitalization of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependents, whichever multiplier in lower. This method of calculating the compensation is not only appropriate but is more scientific method of capitalization of the loss of dependency. See a decision of the Supreme Court in the case of National Insurance Co. Ltd. v. [ENTITY], 1993 ACJ 748: (AIR 1993 SC 1259) and, a decision of this Court in the case of .State of M. P. v. [ENTITY], 1989 JLJ 541 : (AIR 1989 MP 93). This Court in case of [ENTITY] (supra), observed that if the deceased is in threshold of his career between twenties, multiplier should be chosen of 16, while in case of death of the deceased between 30s to 40s, multiplier of 15 years should be adopted. In case of [ENTITY] (supra), wherein the deceased was of 26 years of age, for determining the dependency and calculating the compensation, the Supreme Court applied the multiplier of fifteen.
17. It is also settled that when principle of multiplier is applied in determining the compensation, no amount can be deducted towards lump sum payment or for uncertainties of life, as the reduced figure itself takes care of imponderables. It is also well-known circumstance that with rising inflation year after year the value of money goes on getting eroded. There is, therefore, no scope for making any kind of deduction while working out the figure of loss of dependency by applying the principle of Multiplier, See, the decisions of this Court in cases of [PRECEDENT]; [ENTITY]'s case (supra); and, [ENTITY]'s case, [PRECEDENT]. Therefore, in our opinion, the tribunal committed an error in making deduction towards lump sum payment, hence, we are of the view that the claimants are entitled to compensation of Rs. 96,000 in the head of dependency by applying multiplier of 16. As regards amounts of compensation awarded in the heads of loss of company and love and affection, Rs. 10,000/-, and loss of estate Rs. 20,000/-, they are proper; however, in the! head of consortium to the young widow award of Rs. 10.000/ - is on lower side, which in our opinion should be Rs. 15,000/-. While, in the head of special damages, i.e., cost of walch, Rs. 500/-; fineral expenses Rs. 500/-; medical and travelling expenses, Rs. 2,000/-; and, expenses of thirteenth day, Rs. 1,500/-, the amounts as awarded are not on higher side but low, therefore, we do not express any opinion in that regard. Hence, after itemising the award in different heads, the total amount of compensation comes to Rs. 1,45,500/-, which, in our opinion, is just, fair and reasonable, to which the claimants are entitled. ' Re.: Apportionment
18. On evidence adduced by the parties, the'Tribunal has recorded a categorical finding that the drivers of both the vehicles, i.e., bus and scooter, equally contributed to the accident which, ultimately, resulted in the death of the deceased, as the deceased was a pillion-rider and was not driving the scooter, such type of case cannot be of contributory negligence but of composite negligence. In such a situation, both the drivers are jointly and severally liable for whole of the loss and rule of apportionment cannot be applied, which applies only in cases of contributory negligence. If any authority is needed, see, a Division Bench decision of this Court in case of [PRECEDENT].
19. However, to avoid further delay in payment of compensation to the claimants, particularly when the owner, driver and insurer of scooter are not parties to the claim petition, a clear and specific direction for making payment was made by the tribunal. A Division Bench of this Court in [CASE NUMBER], decided on 19-2-90, in between [PRECEDENT], wherein both the drivers of the offending vehicles were held to be equally liable for the accident, apportioned the liability between the two tort-feasers equally. There is yet another unreported decision of this Court, wherein the Division Bench of this Court in [CASE NUMBER], decided on 2-3-1993, in between [PRECEDENT], specified the interse liability in between the two offending vehicles.
20. Therefore, as both the drivers having been found equal responsible for the accident, which finding is unassailable, it would be just and proper in the circumstances of this case also to specify the amount, which shall be paid by the insurer, owner and driver of the vehicle involved in the accident. Out of the total amount of compensation, i. e., Rs. 1,45,500/-, the owner, insurer and driver shall be liable to pay 50 per cent of this amount with interest at the rate of 12 per cent per annum from the date of application till payment. Out of this 50 per cent amount and interest, as the liability of the Insurance Company has been held to be fixed to its statutory limit, i.e., up to Rs. 50,000/-, the Insurance Company shall pay the amount of Rs. 50,000/- with accrued interest at the rate of 12 per cent, per annum till its payment to deposit and the costs awarded by the Tribunal. The balance amount of the compensation shall be payable by the .owner and driver of the bus with its accrued interest at the rate of 12 per cent per annum from the date of application till payment. Of course, the owner, insurer and driver shall be entitled to adjust all the payment deposited with their proportionate interest.
21. In the result, [CASE NUMBER] of owner and driver and [CASE NUMBER] filed by the claimants are partly allowed by modifying the award of the Tribunal in the manner as aforesaid in para 20 in relation to the determination of the compensation. In the circumstances of the case, we leave the parlies to bear their own costs of this Court in these two appeals. Record of the Tribunal be sent posthaste with the copy of this order.