1 FA.1194.98 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1194 OF 1998 WITH CROSS OBJECTION (stamp) NO. 34987 OF 2000 The Oriental Insurance Company Limited. ... Appellant Versus Smt. Vinita Vithal Ambetkar and others. ... Respondents ----- Mrs. Anita A. Agarwal for the Appellant. Mr. Sagar Joshi for Respondent Nos.1 to 3. Mr. V.N. Sagare for Respondent No.6. ----- CORAM : A.S.OKA, J. DATE : 05 th July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for The Appellant and the learned counsel appearing for Respondent Nos.1 to 3. 2 The challenge in this appeal is to the judgment and award dated 30 th July, 1998 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed by the Respondent Nos.1 to 3 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter 2 FA.1194.98 referred to as “the said Act”). The claim petition was filed on account of a fatal accident. The Appellant is the Insurer of the offending vehicle. One of the contentions raised by the Appellant was that the liability of the Appellant under the policy of insurance was limited to Rs.50,000/-. That contention was rejected by the Tribunal and an award in the sum of Rs. 2,60,000/- with interest at the rate of 12% per annum has been made. 3 The submission of the learned counsel appearing for the Appellant is that a true copy of the policy was placed on record and was admitted in evidence (marked as Exhibit – 49). Her submission is that the policy shows that the liability was limited to Rs.50,000/-. She pointed out the evidence of the officer of the Appellant examined at Exhibit – 44. She pointed out that the notice to produce the policy was given to the Insurer, who was a party to the claim petition. Notwithstanding the said notice, the original policy was not produced by the Insurer. She pointed out that the premium register was also placed on record to show that there was no premium paid to cover unlimited liability. Her submission is that in absence of any evidence showing unlimited liability of the 3 FA.1194.98 Appellant, the Tribunal ought to have accepted the defence of the Appellant. The learned counsel appearing for Respondent Nos.1 to 3 supported the impugned judgment and award. The learned counsel in support of the cross-examination submitted that the multiplicand taken and multiplier applied is both on the lower side. 4 I have given careful consideration to the submissions. I have perused the record. The only issue is to be decided is whether the liability of the Appellant was limited. The Appellant examined one Anitalaxmi Murti, who was at the relevant time working as Assistant Divisional Manager of the Appellant. In her evidence, she stated that the notice was issued by the Insurance Company to the second opponent (Insured) to produce the relevant policy, but the same was not produced. The witness stated that an investigator was appointed who traced out the police number and accordingly, a copy of the policy and a copy of the premium register was being produced on record. 5 In the cross-examination, the witness stated that the policy was issued by Ulhasnagar Office of the Appellant and the premium was 4 FA.1194.98 recovered by the Ulhasnagar Office. She admitted that though a proposal form was submitted by the Insured, she has not produced the said proposal form. She admitted that the postal acknowledgment signed by the Appellant No.2 of having received the notice to produce the documents is not produced on record. She admitted that the copy of the policy produced by her was not prepared from bound book, but it was prepared from docket. She stated that she was not aware as to who has prepared the copy of the policy produced before the Court. She stated that a copy of the policy was given by the office of the Appellant to its advocate at the time of filing of the written statement. 6 Thus, the Appellant did not examine the member of the staff, who prepared the copy of the policy from the docket. The witness has not stated that she has perused the docket and the contents of the policy are as per the original. The said policy is not prepared on the basis of office copy of the policy. The acknowledgment signed by the Respondent No.2 of having received notice to produce the documents issued by the Appellant is also not placed on record. 5 FA.1194.98 7 Thus, there is no evidence on record to show that the copy produced by the Appellant is the true copy of the original policy. The person who prepared the copy has not been examined. Moreover, there is nothing on record to show that the notice to produce the insurance policy allegedly issued by the Appellant to the Insured was duly received by the Insured. The defence of limited liability could have been proved only by proving the copy of the policy. The copy of policy produced was not proved to be the true copy of the original. Considering the aforesaid aspects, the learned Member of the Tribunal has rejected the defence of the Appellant of limited liability. There is no error in the view taken by the Tribunal. 8 Now turning to the cross-objection filed by the Respondent Nos.1 to 3, on the basis of the salary certificate at Exhibit – 27, the salary has been taken at Rs.2,700/- per month. After making a deduction of 1/3 rd, the yearly dependency taken at Rs.21,600/-. Multiplier of 10 has been applied. 6 FA.1194.98 9 On the basis of the school leaving certificate of the deceased, it is found that the age of the deceased at the time of death was 40 years. Hence, in terms of the decision of the Apex Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another [(2009) 6 Supreme Court Cases 121], multiplier of 15 ought to have been applied. By applying multiplier of 15, the compensation amount will be Rs.3,24,000/- to which usual amount of Rs.10,000/- will have to be added. Thus, the total amount of the compensation will be Rs.3,34,000/-. On the enhanced amount, interest will be payable at the rate of 7.5% per annum. 10 Hence, I pass the following order: i. The appeal is dismissed with no order as to costs ; ii. Cross Objection (stamp) No.34987 of 2000 is partly allowed and the compensation amount is enhanced to Rs.3,34,000/- instead of 2,60,000/-; iii. On the additional amount of Rs.74,000/-, interest will be payable at the rate of 7.5% from 7 FA.1194.98 the date of filing of the claim application till realization and/ or deposit of the amount ; iv. Time of three months is granted to the Appellant to deposit the excess amount with the Tribunal ; and v. Rest award is maintained as it is. [ A.S.OKA, J ]