{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.394/1998 Smt. Jeti Devi & Ors. Vs. Major Singh & Ors. Date of order : 2.8.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. L.R.Choudhary., for the claimant-appellant. Mr. Jagdish Vyas, for the Insurance Company. Mr. B.N.Kalla, for the respondent-owner. BY THE COURT: The decision rendered in this appeal shall also govern disposal of other connected appeal being C.M.A. No. 136/99 because both the appeals arise out of one award and relate to one accident. So far as C.M.A. No. 394/98 is concerned, it is filed by claimants for enhancement in the compensation awarded to them by the Tribunal whereas C.M.A. No. 136/99 is filed by Insurance Company challenging that part of award passed by Tribunal which fasten liability on them arising out of accident. This is a misc. appeal filed by claimants under Section 173 of Motor Vehicles Act (for short hereinafter called “the Act”) against an award dt. 18.4.1998 passed by MACT, Phalodi in Claim Case No.154/1992(58/87). 2. By impugned award, the Claims Tribunal partly allowed the claim petition of claimants filed under Section 166 of { 2 } the Act for claiming compensation for the death of one Dhanna Ram who died in vehicular accident and in consequence awarded to them a total sum of Rs. 2,15,000/-. 3. So the question arises in this appeal (M.A. No. 394/98) is whether any case is made out for enhancement in the compensation and if so to what extent. It is a death case. On 11.10.86 one Dhanna Ram aged 34 years was going on his camel on the road when he was hit by the truck bearing no. P.B.X 4225. It was being driven by N.A. 1, owned by N.A. 2 and insured with N.A. 3. This gave rise to filing of claim petition by his legal representatives under Section 166 of the Act against the non applicants. It was only contested by owner whereas driver and insurance company did not file any written statement. 4. By impugned award the Tribunal partly allowed the claim petition. It was held that accident occurred on account of sole negligence of the driver of offending vehicle which hit the camel on which deceased was going. It was also held that deceased's monthly income was Rs. 2000/-. The Tribunal applied the multiplier of 12 and awarded a total sum of Rs. 2,15,000/-. However, the Insurance Company was not exonerated from the liability arising out of accident. It is against this award 2 appeals are filed. 5. Coming first to the appeal of claimants, which is filed essentially to claim enhancement in the compensation, having gone through the evidence, I find that the only area where I can interfere in this case is applicability of multiplier i.e. in place of 12 it should be 17. 6. It is for the reason that age of deceased was 34 years at the time of accident and hence as per schedule, the proper multiplier should be 17. So far as deceased's monthly income is concerned, it does not call for any enhancement from Rs. 2000/- to any more because it is assessed properly on evidence adduced. 7. In this way, I get a sum of Rs. 1300/- i.e. after { 3 } deducting 1/3rd, for determining the dependency. This makes yearly income of Rs. 1300 x 12= 15600/-. To this we apply the multiplier of 17 and accordingly get a sum of Rs. 15,600 x 17= Rs. 2,65,200/-. To this we add by awarding in lump sum a total sum of Rs. 25,000/- towards consortium such as loss of estate, love and affection, funeral expenses etc. and accordingly get a sum of Rs. 265200 + 25,000 = Rs. 2,90,200/-. 8. In other words, the claimants are held entitled for a total sum of Rs.2,90,200/- by way of compensation for the death of Dhanna Ram. The claimants' appeal is thus allowed in part to this extent. 9. The compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation. 10. Learned counsel for the appellants (claimants) cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. It is applied by me in this case to the extent applicable and then arrived at the fault of award. No cost. 11. This takes me to the appeal C.M.A. No. 136/99 filed by Insurance company. In this appeal, the Insurance company has raised 2 points. First is that their liability was { 4 } confined only upto Rs. 1,50,000/- and hence the Tribunal was not right in passing an award for whole amount. Second the Tribunal erred in awarding interest first at the rate of 9% and then at the rate of 12% in case of default in not depositing the awarded sum within two months and that too from the date of claim petition. 12. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to accept the second point and not the first one. 13. The reason for not accepting the first one is that Insurance company did not even file the written statement before the Tribunal. In the absence of any defence and evidence, it is difficult to decide the issue relating to liability much less in favour of Insurance Company. It is not a pure question of law as is being contended by the learned counsel for the appellant in this appeal but in my view it can be tried only when proper written statement is filed raising therein a proper defence along with contract of policy which govern the terms and conditions of the liability arising out of such policy. There may be a policy which contains more clauses than that of the usual one. There may yet be a policy which contains only usual clauses. In other words, the question relating to liability of Insurer can not be tried in abstract by simply referring to provisions of Motor Vehicles Act but it has to be tried in the first instance with reference to the terms of proved policy on record in the context of the relevant provisions of the Act and that too when the proper defense on facts and law is taken by the Insurance Company by filing a written statement. As observed supra, since the Insurance company despite affording them an adequate opportunity failed to even { 5 } file the written statement so also failed to file contract of policy issued in favour of insured much less proved, they can not be permitted to raise a plea regarding their liability for the first time in appeal simply by referring to provisions of Act. It is for this reason, the first point raised by appellant i.e. Insurance Company is rejected. 14. So far as second point is concerned, the same deserves acceptance despite the aforementioned infirmity in appellant's case before the Tribunal. It is for the reason that this issue relates to pure question of law and comes in operation at the time of passing of award by exercising the discretion in awarding interest on the awarded sum by Tribunal in the light of the provisions of Act. In this case, the Tribunal awarded 9% interest on the awarded sum to the claimants provided it is paid within two months from the date of award. It was also held that in case if the awarded sum is not paid within two months then respondents would have to pay interest at the rate of 12% on the expiry of two months on the awarded sum. It is this direction which is impugned in this appeal by the Insurance company contending that it is not in conformity with the law laid down in AIR 2004 SC-1581. It was also contended that in any event the Insurance Company is liable to pay interest on the awarded sum only from the date when they were joined in the claim petition i.e. 16.1.1998 because admittedly the claim petition was filed on 4.4.1987 without joining the Insurance Company in the first instance and they were joined on 16.1.1998 pursuant to a direction issued by this Court in an appeal arising in this very case. It was thus contended that liability to pay interest can not be fastened upon the Insurance Company from the date of filing { 6 } of claim petition i.e. 4.4.1987 but it has to be only from 16.1.1998 i.e. the date when they were joined in the claim petition. 15. In my considered view the Tribunal erred in awarding interest first at the rate of 9% and then at the rate of 12% in case of default in payment of awarded sum. The liability to pay interest in my view should not have been made conditional but should have been made by awarding only one rate of interest regardless of default. Similarly since the Insurance company was made party for the first time on 16.1.1998 and hence the liability to pay interest on the awarded sum so far as Insurance Company is concerned should have been from 16.1.1998 and not from any date prior to 16.1.1998. It is for the reason that proceedings against the Insurance Company would have been deemed to have commenced from the date of their joining but not prior to it. 16. In view of foregoing discussion, the appeal C.M.A. No. 136/99 is allowed. The impugned award is modified to the extent that claimants are held entitled to claim interest at the rate of 9% on the awarded sum by the Tribunal from the date of claim petition. However, liability to pay the interest at the rate of 9% by the Insurance Company would be only from the date of their joining in the claim petition i.e. 16.1.1998 whereas the claimants can recover the interest part from the other non applicants upto 16.1.1998. So far as enhanced awarded sum as has been awarded by this Court is concerned, the enhanced sum would carry interest @ 6% and the interest so awarded would be payable by the Insurance Company from 16.1.1998 whereas for the period prior to 16.1.1998 it would be by other non applicants. { 7 } 17. The impugned award stands modified to the extent indicated above partly in favour of claimants and partly in favour of Insurance Company. No cost. (A.M.SAPRE ),J. /Sushil/