IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL 508 OF 1985 APPEAL 508 OF 1985 APPEAL 508 OF 1985 WITH WITH WITH CROSS CROSS CROSS OBJECTION ST.NO.22181 OF 1985 OBJECTION ST.NO.22181 OF 1985 OBJECTION ST.NO.22181 OF 1985 The Oriental Insurance Co. Ltd. ] a Government Company, having ] its registered Office at A-25/27, ] Appellants Asaf Ali Road, New Delhi - 110 002. ] Vs. 1. Smt. Saralabai d/o Shantilal ] Jain, Age : 30 years ] ] 2. Kumar Mahendra S/o Shantilal ] Jain, Age : 12 years ] ] 3. Jimar Jitendra s/o Shantilal ] Jain, Age : 10 years ] ] 4. Kumari Jyotibala d/o Shantilal ] Jain, Age : 8 years ] ] Nos. 2 to 4 minors, through ] Respondents their natural guardian mother, ] respondent No. 1. ] ] Above all r/o Khare Wada, ] Near Ratan Talkies, Panvel, ] District Raigad. ] ] 5. Smt. Patasabai w/o Kacharulal ] Jain, Age : 60 years ] ] 6. Sadashiv Malhari Zarekar ] Age : 35 years, ] R/o : Jivdaya Co-op. Hsg. Soc. ] Sandesh Nagar, Bail Bazar, ] Kurla (E), Andheri Road, ] Mumbai - 400 070. ] ] (Nos. 1 to 5 original petitioners] and 6 respondent No. 1) ] Mr. J.S. Chandnani, Advocate for Appellants Mr. S.G. Surana, Advocate for Respondent Nos. 1 to 4 Mr. M.B. Kotak, Advocate for Respondent No. 6. 2 WITH WITH WITH FIRST FIRST FIRST APPEAL NO.563 OF 1985 APPEAL NO.563 OF 1985 APPEAL NO.563 OF 1985 1. Smt. Saralabai d/o Shantilal ] Jain, Age : 30 years ] ] 2. Kumar Mahendra S/o Shantilal ] Jain, Age : 12 years ] ] 3. Jimar Jitendra s/o Shantilal ] Jain, Age : 10 years ] ] 4. Kumari Jyotibala d/o Shantilal ] Appellants Jain, Age : 8 years ] ] Nos. 2 to 4 minors, through ] their natural guardian mother, ] Petitioner No. 1. ] ] Above all r/o Khare Wada, ] Near Ratan Talkies, Panvel, ] District Raigad. ] ] 5. Smt. Patasabai w/o Kacharulal ] Jain, Age : 60 years ] ] Vs. 1. Vithal Verrapan Kotian (deceased) ] by his heirs. : ] Smt. Bhavani Vithal Kotian ] Shri Bhaskar V.K. ] Shri Harish V.K. ] ] Respondents 21/1082, Sardar Nagar 1, Sion, ] Koliwada, Bombay - 400 022 ] (amended vide Court’s order dtd. ] 2/9/2002) ] ] 2. The Oriental Fire and General ] Insurance Co. Ltd., Bombay ] Mr. S.G. Surana, Advocate for the Appellants. Mr. M.B. Kotak, Advocate for Respondent No.2. Mr. J.S. Chandnani for Respondent No.3 3 CORAM CORAM CORAM : R.S. MOHITE, J : R.S. MOHITE, J : R.S. MOHITE, J. DATE DATE DATE : 4TH JULY, 2008 : 4TH JULY, 2008 : 4TH JULY, 2008 ORAL ORAL ORAL JUDGMENT (PER R.S. MOHITE, J.) :- JUDGMENT (PER R.S. MOHITE, J.) :- JUDGMENT (PER R.S. MOHITE, J.) :- 1. Since both these appeals impugn the same judgment and order dated 28th February,1985 passed by the learned Ex-officio Member, Motor Accidents Claims Tribunal, Raigad- A in Accident Claim Case No.93 of 1982, both are being disposed of by this common judgment and order. 2. First Appeal No.508 of 1985 is filed by the Oriental Insurance Company Limited which had insured the vehicle, whereas First Appeal No.563 of 1985 is filed by the original claimants. 3. By the impugned judgment and order, the Tribunal has directed the original Opponent Nos. 1 to 3 i.e. driver, owner and the Insurance Company to pay to the Petitioners a sum of Rs.2,55,000/-. It has held that out of this amount, the Oriental Fire & General Insurance Co. is liable to pay only Rs.1,50,000/-. The opponents were directed to pay costs of the application and also interest at the rate of Rs.6 per cent per annum to the claimants, from the date 4 of decision, if the amount is not paid within one month. The Tribunal has directed that out of that amount, Rs.15,000/- be paid to the claimant Patasabai Kacharula Jain and Rs.60,000/- be paid to each of claimant Nos. 1 to 4, Sarlabai, Mahendra, Jitendra and Jyotibala. The amounts were directed to be deposited in Bank of India, Alibag Branch. 4. The brief facts of the case are as under : (a) On 12th April, 1982, one Sadashiv Malhari Zarekar was driving a goods truck bearing No.MRR 967, owned by original opponent No. 1 on Mumbai-Pune Highway near Panvel. At about 12.15 pm., the said truck passed village Kalamboli and had gone about a furlong towards Panvel. There was a Petrol Pump and a Hotel on the left side of the Highway. While the truck was proceeding towards Pune, the deceased Shantilal Jain who was travelling on Pune-Mumbai side, cut across in order to go to the aforesaid Petrol Pump. The driver of the truck applied brakes, but he could not avoid collision and the truck 5 hit the side of the Moped. The front part of the truck came into contact of Moped and said Jain was killed on the spot. One Ramzan Abdul Rahiman was sitting in the Hotel situate behind the Petrol Pump cabin, on Pune side and apart from the driver who examined himself, he was the other eye witness to this accident. 5. In due course, the claimants filed an Accident Claim Petition in the Motor Accidents Claims Tribunal seeking compensation of an amount of Rs.4,50,000/- for the death of Shantilal Jain. The claimant No.1, Sarlabai was the widow of Shantilal, claimant No. 2 Mahendra and claimant No. 3 Jitendra were his sons and claimant no. 4 Jyotibala was his daughter. At that time, claimant Nos. 2 to 4 were the minors and they filed the claim through their natural guardian i.e. their mother claimant No. 1. 6. Before the Tribunal, a joint Written Statement dated 21st July, 1983 came to be filed on behalf of the original Opponent Nos. 1 and 2. They denied that the truck was being driven in a rash and negligent manner by the driver and 6 contended that the driver was driving the goods truck at a moderate speed with care and caution. 7. A separate Written Statement dated 21/7/1983 came to be filed on behalf of the Insurance Company. The negligence of the driver was denied. Though the insurance was not specifically denied, it was denied that the truck driven by the Opponent No. 1 was insured with Insurance Company for third party risk only to the limited extent of a liability of Rs.50,000/-. In para 16 of the Written Statement, the Insurance Company took up the following defence. "16 Without prejudice to the above and in any event this opponent submits that the limit of liability of this opponent is Rs.50,000/- in all in terms of the policy of insurance in respect of the said motor truck under the provisions of Section 95(2)(b) of the M.V. Act,1939. This opponent states that this opponent is not liable and could not be held liable to satisfy the award that may be passed against the opponent No.1 and 2 exceeding Rs.50,000." 8) In due course, the issues were framed by the Tribunal as under : (1) Do Petitioners prove that the 7 deceased died on account of the injuries received by him in accident which was caused on account of collision between Truck No. MRR 967 and Moped No. MXT 8869 on 12th April,1982 near Panvel on Bombay-Pune Highway ? (2) Is it proved by the Petitioners that the said accident was caused on account of negligent driving or rash and negligent use of the Truck No. MRR 967, as alleged by Respondent No.1 ? (3) Are the Petitioners entitled to claim compensation and from what Respondent ? (4) What amount of compensation ? . Ultimately by considering the evidence led by the parties which consisted of four witnesses on behalf of the claimants and one witness on behalf of driver - opponent No. 1, the trial Court passed the impugned judgment and order, partly allowing the claim awarding the amounts as aforesaid. 8 9. Being aggrieved and dis-satisfied by the judgment and order passed by the Tribunal, the aforesaid First Appeals have been filed in this Court. 10) On behalf of the Insurance Company, it was contended that the accident took place on 1st April, 1982 and on that day the liability of the Insurance Company was limited by statute to a sum of Rs.50,000/-. It was contended that the Tribunal had wrongly extended the liability of the Company to an amount of Rs.1,50,000/-. It was brought to my notice that the amendment about extending the limited liability to Rs.1,50,000/- was brought by the Motor Vehicles (Amendment Act, 1982) which received the assent of the President on 31/9/1982 and was published in the Gazette of India on 1/9/1983. This legal submission on behalf of the Insurance company appears to be on a sound footing. As the dates when the Motor Vehicles Act, 1982 came into force are not disputed. 11. In this regard, learned Advocate appearing for the original opponent Nos. 1 and 2, however, 9 contended that before the Tribunal, a single Advocate appeared on behalf of the owner, the driver as well as on behalf of the Insurance Company. He contended that said Advocate did not put the owner and driver of the vehicle to notice that there would be a limited liability of the Insurance Company and that if in such circumstances, the owner and driver were found to be liable for any amount over and above any limited liability, then the Insurance Company would be liable to pay such excess amount. He strongly argued that the acts of the Advocate in appearing for the Insurance Company, owner and the accused without putting owner and the driver to the notice of the fact that there was a conflict of interest amounted to committing a fraud on the owner and the driver. In such circumstances, in view of such fraud committed, notwithstanding the limitation of liability in so far as the Insurance Company was concerned, the Insurance Company would be liable to pay full amount as awarded against the Opponent No.1 and 2. 12. To buttress his contention, learned Advocate appearing for Opponent Nos. 1 and 2 placed strong reliance on an unreported Division 10 Bench judgment of this Court in the case of Pal Pal Pal India India India Shipping Agency Vs. Ramkaran Pherai Pasi Shipping Agency Vs. Ramkaran Pherai Pasi Shipping Agency Vs. Ramkaran Pherai Pasi and and and another, delivered on 23rd October 1974 in another, delivered on 23rd October 1974 in another, delivered on 23rd October 1974 in Appeal Appeal Appeal No.616 of 1974 No.616 of 1974 No.616 of 1974. The Facts of that case were that a firm by name Pal India Shipping Agency had entered into an Insurance Agreement with Oriental Fire and General Insurance Company in respect of their Motor Car bearing No.BMH 4027. On 17th October,1967, an accident took place, in which the father of one Ramkaran Pasi was lost his life. The son of Mr. Pasi filed a claim for compensation before the Tribunal. As the relevant policy of insurance contained a condition by which the Insurance Company had reserved the right to defend the action in the name of insured, the Insurance Company nominated M/s Ardeshir Hormusji Dinshaw & Company, a Firm of Solicitors, to appear for the insured in the said proceeding against the insured. The Insurance Company was not a party to the said proceeding. At the request of the Insurance Company, the insured signed a Vakalatnama in favour of the said Solicitors and the insured was asked to sign the written statement as prepared by the aforesaid Solicitors. Evidence was then recorded by the Tribunal and when the evidence was closed, matter was fixed for 11 arguments. Again an application was made by the said firm of Solicitors styling themselves as the "Attorneys for the Opposite Party No.2 and also the Oriental Fire and General Insurance Company Limited, the insurers above-named,", in which it was contended that it was essential that the Original Insurance Policy be exhibited in the matter. Ultimately consent terms were filed in the said matter signed by the applicant and the Advocates acting as Attorneys for the Insurance company alone. By these terms, the liability of the Insurance Company was limited to Rs.10,000/- and it was provided that on deposit of said sum, the Insurance Company was to be discharged. The settlement further provided that the applicant may proceed against the other opposite parties and the settlement was without prejudice to the applicants rights against the opposite parties." On such facts, the Division Bench of this Court held that the attorney who was also appearing for the insured had committed a grave impropriety in so far he had settled the matter, in relation to the Insurance Company by keeping the insured in a dark. 13. In my view, the facts of the case are 12 completely different. As mentioned in the impugned judgment and order in the present case, the Insurance policy contemplated that the liability of the Insurance Company would be as provided in Motor Vehicles Act. At the relevant time, the Motor Vehicles Act provided for limited liability of Rs.50,000/- in so far as Insurance Company was concerned. The Insurance Company was party to the proceedings, filed written statement clearly taking up defence that their liability was limited. The owner and the driver of the vehicle had also filed a separate written statement and had themselves voluntarily chosen to engage the same Advocate, who was representing the Insurance Company. The said limited liability must be deemed to have been known to the applicants when they executed Insurance agreement which fixed the liability of Insurance Company in accordance with the Motor Vehicles Act. It ought to have been clear to the applicants while entering into this agreement that the liability of the Insurance Company would never exceed Rs.50,000/-, which was the statutory limit existing on the date when the contract of Insurance was entered into. In this fact situation, there is no question of any fraud. Nothing has been done by the Advocate behind the 13 back of the owner and the driver and they were all along aware of the factual position and must be deemed to be in the knowledge of the legal position i.e. that the liability of the Insurance Company was limited by statute. Therefore, no substance is seen in the first contention as raised by Mr.Kotak. 14. It is then contended by Shri Kotak that this issue of limited liability could not have been raised, as there was no proper pleadings or evidence led by the Insurance Company. The submission is factually erroneous in so far as the pleading is concerned. On behalf of the Insurance Company, there is categorical pleading that their liability is limited to Rs.50,000/-. In the written statement, the section relied upon to invoke the limited liability was wrongly quoted, as Section 95(2)(b), but it is clear that the limited liability existed in view of Section 95(2)(a) of the Motor Vehicles Act and merely quoting a wrong section of the statute would not nullify this fact. 15. In so far as lack of evidence on the question of the existence of limited liability is 14 concerned, I find that once the date of the accident was not disputed, then the only thing that was required for recording a finding regarding the limited liability of the Insurance Company was the applicable provision of law and therefore lack of any evidence on the part of Insurance Company cannot be fatal to their defence. 16. On behalf of the Insurance Company, respondent No. 6 and the heirs of owners Vitthal Kotian and the driver Sadashiv Zarekar, it was contended that there was insufficient evidence for arriving at the conclusion that the driver of the truck was negligent. It was contended that accident was only witnessed by claimants’ witness No.5 - Ramzan Abdul Rahiman. . My attention is drawn to his cross-examination, in which he stated that his hotel was behind the cabin of Petrol Pump towards Pune side. He looked towards the road when he heard sound of impact. He did not remember if any person had come to his hotel for water immediately after the accident. Even after the accident, he was sitting on the counter. I find that it is 15 possible that this witness may have heard the sound of impact and thereafter looked towards the accident site. This witness has admitted that cabin of petrol pump was about 30 to 40 feet from his hotel. This witness was therefore about 60 to 70 feet away from the road. In view of this admission that he looked towards the road when he heard sound of impact, it may not be safe to give much weightage to the evidence of this witness. However, the driver Sadashiv Malhari Zarekar has examined himself as witness of Opponent No.1. It was his version that he was driving towards Pune side and as the moped which was behind big vehicle suddenly turned right, he applied his brakes. As he applied emergency brakes, the engine suddenly stopped and the truck went towards the culvert. As the truck was pushed ahead about 7 to 8 feet, the Moped was also pushed ahead. . In the cross-examination, however, the witness was confronted with his written statement in which he had not stated the version given by him in the evidence to the effect that moped suddenly turned right and came in front of his truck from behind a truck and so he could not see it. He could not give any explanation as to why 16 this version was missing in his written statement. He had contended in his evidence that when he applied brakes, his brake pipe broke. In the cross-examination, he admitted that if the brake pipe had not broken, the truck would have stopped and there would not have been any accident. He further admitted that as the brake pipe broke and started leaking, the truck did not stop and dashed the moped. It was impossible for the driver to have known as to when his brake failed. His version that the brakes were failed, when he applied emergency brakes has rightly not been believed. 17. The trial Court held that it was the duty of driver and the owner to ensure that brakes of such a heavy vehicle were in order. The trial Court has observed that the panchanama of scene of offence indicated that the brake marks were about 15 feet in length and this indicates that the truck was being driven in a high speed. The evidence of the driver indicates that he was aware that there was a petrol pump on his left and was therefore he required to take extra care while passing the point of entry to the Petrol pump. 17 18. Taking into account the aforesaid facts, I am not inclined to accept that there is insufficient evidence to indicate lack of negligence on the part of driver. This submission made on behalf of the Insurance company, the heirs of the original owner and the driver is therefore rejected. 19. On behalf of the Insurance Company, it was then contended that the multiplier of 22 was granted by the trial Court on the erroneous footing that the deceased being only 38 years of age would have continued to work till the age of 60 years and would have earned during the next 22 years. He placed reliance on a judgment of Apex Court in the case of General Manager, Kerala State General Manager, Kerala State General Manager, Kerala State Road Road Road Transport Corporation Vs. Susamma Thomas and Transport Corporation Vs. Susamma Thomas and Transport Corporation Vs. Susamma Thomas and others, others, others, reported in 1994 ACJ 1 reported in 1994 ACJ 1 reported in 1994 ACJ 1. In paragraph no. 8 of the said judgment, the Apex Court observed that there were two methods adopted for determination and calculation of compensation in fatal accident actions. One of the method was known as the multiplier method. The Apex Court observed as follows : "The multiplier method involves the ascertainment of the loss of dependency or 18 the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last." . In the said case before the Apex Court, the deceased was aged 38 years and the Court adopted the multiplier of 12. It is contended that in the present case deceased was exactly 38 years of age. I have no hesitation in accepting this contention on behalf of the Insurance Company which is based upon aforesaid Apex Court judgment. I hold that the correct multiplier to be applied in the present case was 12 and not 22. 20. On behalf of the claimants, it was contended that the Tribunal had wrongly awarded interest at the rate of 6 per cent per annum from the date of the decision, if the amount was not paid within one month. As seen from the judgment of the aforesaid Apex Court. The proper rate of interest to be awarded to the claimants in this 19 regard was 12 per cent from the date of the application. 21. It was also contended on behalf of the claimants that certain deductions had wrongly been made by the Tribunal while calculating the ultimate compensation. It was contended that no deduction ought not to have been made on behalf of the amounts received in lieu of life insurance. Reliance was placed upon the judgment of the Apex Court in the case of Helen C. Rebello and others Helen C. Rebello and others Helen C. Rebello and others vs. vs. vs. Maharashtra State Road Transport Corporation Maharashtra State Road Transport Corporation Maharashtra State Road Transport Corporation and and and another, reported in 1999 ACJ 10 another, reported in 1999 ACJ 10 another, reported in 1999 ACJ 10. 22. In paragraph no.35 of the said judgment, the Apex Court interalia examined the question as to whether life insurance policy amount is received either by the insured or by the heirs of the insured was deductible. The Apex Court observed and gave its finding in the following words. "Similarly, life insurance policy amount is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the 20 insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured’s death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits etc., though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery