1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T UNITED INDIA INSURANCE CO. LTD. Vs. SMT. RUKMANI & ORS. S.B. CIVIL MISC. APPEAL NO. 92 OF 1997 against the judgment and award dated 02.11.95 passed by the learned Judge, Motor Accident Claims Tribunal, Ratangarh, District Churu in Claim Case No.31/94. DATE OF JUDGMENT :: 14th JULY, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. G.Vaishnav for the appellant. Mr. S.L.Jain ] for the respondents. Mr. G.L.Khatri ] BY THE COURT : This appeal has been filed by the United India Insurance Company Ltd. against the judgment and award dated 02.11.1995 passed by the learned Judge, Motor Accident Claims Tribunal, Ratangarh, District Churu (in short 'the Tribunal') in Claim Case No.31/1994 whereby the learned 2 Judge has allowed the claim petition and has awarded compensation of Rs.1,83,000/- with interest @ 12% per annum in favour of the claimants. This claim petition by Smt.Rukmani Devi & Ors. was originally filed before the District & Sessions Judge, Churu on 28.04.88 from where it was transferred to the court of Motor Accidents Claims Tribunal, Churu. Briefly stated, the facts of the case are that on 24.12.1987 at 11.00 PM Dharamchand (deceased) and several other passengers were going from Sujangarh to Bodasar by travelling in Jeep No.RRT.3104 which was being driven by Jeevanmal owner of the said jeep. It was submitted that Dharamchand (deceased) was sitting in the front seat. When the jeep reached about four Kms. from Gopalpura Dungar, it was being driven with a high speed and near a turn, the driver of the jeep lost his control as a result of that the jeep overturned and fell into a pit resulting into causing grievous injuries to the head of Dharamchand, who was immediately admitted in the Government Hospital, Sujangarh where he was declared dead due to brain hemorrhage caused in said 3 accident. An FIR of this incident was lodged at P.S. Sujangarh. The claimants, Smt. Rukmani, wife of Dharamchand (deceased), and Mamta, Manisha, Seema, minor daughters of Dharamchand filed claim petition under Section 110-A of the Motor Vehicle Act 1939 (in short 'the Act'). It was stated that Dharamchand (deceased),was at the time of accident aged 32 years and was plying his own taxi thereby was making an earning of Rs.1500-1600/- per month. The claimants were dependent on his income it was submitted that due to untimely death of Dharamchand in motor accident they have suffered loss of income and loss of love and affection. Thus, the claimants claimed a total compensation of Rs.6,34,000/- on various heads. Non-claimant No.1 Jeevanmal, owner cum driver of offending jeep, though was served with the notice, neither he filed any reply nor appeared before the Tribunal, therefore, ex parte proceedings was initiated against him. Non-claimant No.2 insurer of jeep United India Insurance Co. in its reply stated that their liability for the payment of compensation was limited upto Rs.15,000/- only and further denied all other the 4 averments made in the claim petition. It was also stated that the offending Jeep was being driven by vehicle-owner Jeevanmal (non-claimant No.1) but at the time of accident he was not having a valid and effective driving licence, as such, the Insurance Company cannot be held responsible for the payment of compensation and it was prayed that the claim petition may be dismissed. On the basis of pleadings of the parties, relevant issues with regard to responsibility of causing accident and quantum of compensation were framed. During trial, on behalf of claimants AW/1 Rukmani Devi, (claimant No.1), AW/2 Bhagwanaram, AW/3 Hanumanmal, AW/4 Bhanwarlal and AW/5 Girdhari were examined and certain documents were produced and got exhibited . No evidence was led from the side of non-claimant. After hearing both the parties, the learned Tribunal on the basis of material available on record, held non-appellant No.1 responsible for causing accident and further held that the non-claimants are jointly and severally liable for the 5 payment of compensation to the claimants and as the vehicle was found insured with appellant Insurance Company at that time, therefore, has directed the Insurance Company to make payment of compensation amount of Rs.1,83,000/- to the claimants with interest @ 12% per annum. Being aggrieved and dis-satisfied by the judgment and award dated 02.11.1995, the instant appeal has been preferred by the appellant-United India Insurance Co. Limited, before this Court. Notice of the appeal was issued, record was called. In the meanwhile, the claimant-respondents also filed cross objections under Order 41 Rule 22 CPC, for the enhancement of compensation amount. Thus, both were heard together, and are being disposed of by this judgment. During the course of arguments, learned counsel for the appellant, insurer, submitted that in this case the learned tribunal has not properly considered the facts and the material available on record and passed erroneous judgment. It was contended that no proper opportunity even was given to appellant to lead evidence in defence. Thus, the appellant has been deprived from putting his case. It was urged that on this 6 ground, the judgment is liable to be set aside. It was further contended that during trial, cover note Ex.4 was produced by owner of the vehicle and as per terms of the cover note, the liability of the Insurance Company was limited upto 15,000/- but the learned tribunal has ignored to peruse the terms of the policy and held responsible for the payment of entire amount of compensation. It was stated that in this way, issue No.4 should have been decided in favour of the appellant. It was also contended that learned tribunal has awarded compensation on higher side. It was urged that without any basis, the learned tribunal has totally assessed income and on that basis, loss of dependency has been determined. Thus, that is not sustainable. It was also agitated that likewise 12% rate of interest has been awarded, that is on higher side, thus, the awarded compensation is not sustainable. On the basis of these submissions, it was prayed that the appeal may be allowed and the judgment and award, holding responsibility of Insurance Company, be quashed. On the other hand, the learned counsel for the claimant respondents, refuted the contentions and submitted that the appellant raised contentions with regard to limited liability but 7 later on they have not been able to prove their contentions. In this respect, a specific issue No.4 was framed and the burden of proving limited liability was on them, but they failed. It was also contended that from mere perusal of the cover note, this contention cannot be treated to be proved. The learned tribunal has rightly rejected their contentions, there is no scope for interference in this respect. It was also contended that the awarded compensation is not just and reasonable. It was also contended on behalf of claimant-widow of the deceased that her husband was, by profession, a driver and he used to earn Rs.1500/- 1600/- per month, but the learned tribunal has not accepted her version. As there were no rebuttal from the other side, therefore, the income of the deceased should have been determined accordingly. But the learned tribunal has first assessed monthly income of Rs,1000/- and after deducting expenses for his personal use, Rs.700/- has been determined as his monthly income, this requires to be modified . It was further contended that learned tribunal has taken into consideration the future prospect of job . Thus, to this extent has rightly doubled the loss of dependency. In the meanwhile, it was also contended that the learned tribunal has not properly applied multiplier, looking to the age of the deceased that is 8 32 years, the multiplier of at least 17 should have been applied. Thus, the awarded loss of dependency of Rs.1,68,000/- be enhanced reasonably. It was also contended, while making submissions with regard to the cross objection filed on behalf of respondent-claimants, that learned tribunal has granted a meagre amount of compensation , first the compensation under the head of loss of dependency has not been properly determined. Further, the claimants are the widow and three daughters of tender age of deceased. Therefore, looking to the peculiar facts of the case, appropriate amount should have been granted with regard to loss of love and affection and loss of guardianship and loss of consortium. But the learned tribunal has awarded only Rs.15,000/- in all. On the basis of these submissions it was prayed that the appeal filed by the Insurance Company may be dismissed and the cross objection filed by the claimant respondents be allowed and the awarded compensation may be enhanced. I have considered the rival submissions and perused the findings and the conclusion drawn thereon. The main questions arise for consideration in dealing 9 with the appeal and the cross-objection are that whether the Insurance Company has been wrongly held responsible for the payment of compensation ?. Secondly, the awarded compensation is not just and reasonable and it requires to be enhanced, while considering the cross objection ? So far as the finding with regard to factum of accident is concerned, I have perused the finding of learned tribunal, that is not suffering from any infirmity and has not been disputed, thus that is maintained. Now first of all, I have considered the contentions placed by the appellant insurer. On the pleading of parties , a specific issue No.4, was framed and the burden of proving that issue was on the insurer on the point of limited liability. But they have not led any evidence in that respect. Neither they have made submissions before the learned tribunal for producing any evidence in this respect nor any specific material was placed, therefore, the contention placed by the insurer are not sustainable in this respect. In the alternative, it was also contended that, from the perusal of the cover note, the plea of limited liability was found proved. In this respect, I have perused Ex. 6. From the perusal of the cover note, it seems that they have received the premium of 10 passengers, thus no such adverse inference can be drawn. Thus, the contentions raised in this appeal are not sustainable. The appellant has also raised contentions with regard to quantum of compensation. But considering their status and contentions, they are not sustainable. Therefore, the appeal filed by the Insurance Company is liable to be dismissed. Now I have considered the contentions raised by the claimant-respondents, with regard to enhancement of the awarded compensation. In this respect, I have perused the statement of AW/1 Rukmani Devi, widow of the deceased. In her statement, she has stated that her husband was by profession, driver and he used to earn Rs.1500/- - 1600/- per month. To this extent, neither there is cross examination from the insurer's side, nor any material has been placed in rebuttal. The income shown by the widow of the deceased does not seem to be excessive. But the learned tribunal, without any base, has determined monthly income of the deceased as Rs.1000/- and thereafter, considering the future prospect had determined compensation, considering the net loss of dependency of Rs.1400/- and again the learned 11 tribunal has taken the multiplier of 10 and determined loss of dependency as Rs.1,68,000/-. But considering the submissions, the amount determined by the tribunal under this head, is not found proper and adequate. It is established on record that at the time of accident, the age of the deceased was 32 years, that is also corroborated by the age shown in the post mortem report. Thus, suitable multiplier of 17 should have been taken. Therefore, taking into consideration the income shown by the widow of the deceased, Rs.1500/- per month, and after taking 1/3 for personal use, atleast Rs.1,000/- per month can safely be assessed as loss of dependency to the claimants, looking to the nature of job, there are no ground for doubling the income of deceased. Thus, compensation comes to 1000x12x17= Rs.2,04,000/-. Thus, the awarded amount of compensation under this head, is enhanced by Rs.36,000/-. Further, learned tribunal has awarded total Rs.15,000/- for loss of consortium, love and affection to the claimants. Taking into consideration the age of widow, and the tender age of three female children that is ranged between 4 to 10, at the time of filing of application, the amount of Rs.15,000/- is further added in the amount awarded by the 12 tribunal. Thus, total amount of Rs.51,000/- is enhanced and that comes to Rs.2,34,000/-. The claimant respondents, further will be entitled to get interest on the enhanced amount at the rate of 7.5% from the date of filing of the appeal. In this way, the cross-objection filed by the claimant respondents, deserves to be partly allowed. On the basis of the aforesaid discussion, the appeal filed by the insurer, is hereby disallowed and the cross objection filed by the claimant respondents are partly allowed. The awarded compensation of Rs.1,83,000/- is enhanced by Rs.51,000/-, that comes to Rs.2,34,000/-. Further on the enhanced amount , claimants respondents will be entitled to receive interest @ 7.5% per annum from the date of filing of the claim application. For payment of enhanced compensation, owner as well as the insurer of the vehicle are held jointly and severally responsible. In the interest of justice, the Insurance Company is directed to make the payment within two months from the date of order, or deposit the same with the learned Tribunal, failing which claimants will be free to start recovery proceedings. Rest of the judgment is maintained. 13 No order as to costs. ( MANAK MOHTA ),J. l.george