1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.47 OF 1996 United India Insurance Co.Ltd. ...Appellant vs. 1 Vishnu Bhausaheb Yadav 2 Sou. Kantabai Vishnu Yadav 3 Vidhya Vilas Teli 4 Krishna Shivram Teli 5 The Oriental Insurance Co.Ltd. Branch at Zadgaon, Ratnagiri 6 Sanjay Dadasaheb Yadav ...Respondents Mr.S.R.Singh for the appellant Mr.Bhushan Walimbe for respondent no.1 Mr.I.R.Kulkarni for respondent no.5 Ms Archana Pise i/b Mr.A.J.Chougule for respondent no.6 Mr.Nilesh Masurkar i/b Mr.N.V.Gangal for respondent no.4 CORAM :A.S.OKA,J. DATE : FEBRUARY 10, 2010 JUDGMENT : 1 Heard the learned counsel for the parties. The appellant is the opponent no.6 in a claim petition filed by the 1 st and 2 nd respondents. For the sake of convenience the parties to the Appeal shall be referred to with reference to their status before the Tribunal. A claim has been made on account of death of one Uvraj in a motor accident. The claimants are the parents of the deceased. 2 The case of the claimants is that the deceased was proceeding to Goa along with opponent no.5 and nine others by a Jeep. On the fateful day, they had gone to Malwan to see Fort Sindhudurg. At 10.00 a.m they left Malwan for Kankavli via Achara. There were 11 persons in the jeep. When their jeep reach near Palsam at about 2 1.30 p.m, one autoricksha came from the opposite direction. The auto rickshaw was being driven by the deceased husband of the 1 st opponent. The case of the claimants is that auto rickshaw came from the wrong side of the road and gave a dash against the bumper of the jeep. There was a can full of petrol kept in the auto rickshaw which burst. As a result of the impact, both the vehicles caught fire. Due to burn injuries, the deceased as well as the husband of the 1 st opponent died. The husband of the 1 st opponent is the owner of the auto rickshaw. The 2 nd and 3 rd opponent are the in-laws of the 1 st opponent. The 4 th respondent is the insurer of the auto rickshaw and the 5 th respondent is the owner of the jeep involved in the accident. The 6 th opponent is the insurer of the jeep who is the appellant. The claim was contested by the opponents. The Tribunal recorded a finding that the opponent no.5 was driving the jeep at the time of accident. The tribunal found that the accident occurred due to rash and negligent driving on the part of the opponent no.5. The Tribunal awarded compensation of Rs.77,000/- with interest thereon at the rate of 9% p.a. 3 The learned counsel for the appellant-opponent no.6 submitted that the deceased himself was driving the jeep. He submitted that the policy of insurance was Act only policy and therefore, the appellant was not liable to pay compensation. Thirdly, the negligence was on the part of the driver of the auto rickshaw especially when there was a can full of petrol in the auto rickshaw and the deceased died due to burn injuries. He submitted that the compensation awarded is exorbitant. 4 The learned counsel for the original claimant supported the impugned Judgment and Award. The learned 3 counsel for the original opponent nos. 4 and 5 also supported the Award. 5 I have carefully considered the submissions. The finding of the tribunal is that the 5 th opponent who was the owner of the jeep was driving the jeep. In the claim petition, a case is made out by the claimants was that the deceased was employed by the 5 th opponent as a driver. In the deposition, the father of the deceased stated that the deceased was employed with the 5 th opponent as a driver. In the cross examination made by the Advocate for the opponent nos.1 to 4 a suggestion was given that the jeep was being driven by the opponent no. 5. The father of the deceased stated that he was unable to say whether the opponent no.5 was driving the jeep. There is no cross examination by the present appellant on the aspect of the name of the driver who was driving the jeep. The Tribunal found that it was the opponent no.5 who was prosecuted by the police in his capacity as a driver of the jeep. The Tribunal noted that the opponent no.5 pleaded guilty and he did not challenge the case of the prosecution that he was driving the jeep. The Tribunal observed that if he was not the driver of the jeep at the relevant time, he would have stepped into witness box and stated that it was the deceased who was driving the jeep. In fact a suggestion has been given by the Advocate for the opponent no.6 to opponent no.5 in the cross-examination that accident took place due to his mistake and that he was driving the said jeep at the time of accident. Thus, even the opponent no.6 who is the appellant came out with a case that it was the opponent no.5 who was driving the jeep. Therefore, now in the Appeal, the appellant cannot come out with a total contrary case that it was the deceased who was driving the jeep. It is true that in the claim petition the 4 claimants made out a case that the deceased was driving the jeep. However, the claimants have no personal knowledge as they were not present at the time of accident. The fact remains that the opponent no.5 has been prosecuted on the ground that he was driving the jeep in negligent manner. Therefore, the said contention raised by the Advocate for the Appellant that it was the deceased who was driving the jeep cannot be accepted. The second contention is as regards the liability under the policy. Perusal of the written statement of the appellant at Exh.37 shows that the contention raised in paragraph 3 is that there is no negligence on the part of the driver of the jeep. There is no specific defence raised that the policy was Act Only policy. However, it is contended that the liability of the occupants was not covered. 6 Perusal of the record shows that along with the application at Exh.63, a xerox copy of the policy was produced by the appellant. A xerox copy is produced along with the list at Exh.64. However, no attempt is made to prove the policy by producing a true copy and by examining a witness. In fact, in the application at Exh. 63 it is contended by the appellant that a xerox copy may be verified from the true copy and the true copy may be returned to the appellant. Perusal of the xerox copy of the policy on record at Exh.64/1 does not show that there is any endorsement made by the Officer of the Tribunal that the same is compared with the authenticated true copy. Thus, the appellant did not produce a true copy of the policy and no attempt was made to prove the xerox copy of the policy. Hence, the defence based on the terms and conditions of the policy cannot be accepted. 7 Now turning to the quantum of the compensation, 5 though the case of the claimants was that the income of the deceased was Rs.1200/- to Rs.1500/- per month, the dependancy is taken by the tribunal only at Rs.500/- per month which cannot be said to be unreasonable. It is true that the multiplier will have to be determined on the basis of the age of the claimants as their respective ages were much more than the age of the deceased at the time of accident. The age of the father of the deceased is stated to be 50 years. Therefore, even if the multiplier of 13 is applied, the compensation will be Rs. 78000/- which is more than the amount granted. 8 In the circumstances, no interference is called for. The Appeal is accordingly dismissed. The amount, if any, deposited by the appellant with interest accrued thereon pending with this Court shall be transferred to the concerned Tribunal and the concerned Tribunal will pass an appropriate order regarding disbursement/withdrawal of the same. JUDGE