1 fa48-96-582-98j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO.48 OF 1996 ALONGWITH CIVIL APPLICATION NO. 1169 OF 1995 The Oriental Insurance Co. Ltd. Satara Branch, District – Satara. .. Appellant V/s. Mangala Rajendra Kataria & Others .. Respondents ..... Mrs. Anita A. Agarwal for the appellant. Mr. N. D. Deshpande for respondent Nos.1 to 5. Mr. P. J. Shinde for respondent Nos. 5A to 5D, 6, 8 and 9. Mr.S.M. Vidyarthi alongwith Mr. Rajan Tripathi for respondent No.9. ..... ALONGWITH FIRST APPEAL NO. 582 OF 1998 Mangala Rajendra Kataria & Others .. Appellants V/s. Deelip Namdeo Jadhav & Others .. Respondents ..... Mr. N. D. Deshpande for the appellants. Mr. P. J. Shinde for respondent No.2. Mrs. Anita A. Agarwal for respondent No.3. Mr.S.M. Vidyarthi alongwith Mr. Rajan Tripathi for respondent No.5. ..... CORAM : A.S.OKA, J. DATE : JULY 11, 2011. ORAL JUDGMENT : 2 fa48-96-582-98j These two Appeals can be disposed of by a common judgment in as much as the challenge in both the Appeals is to the Judgment and Award made in Motor Accidents Claims Tribunal case No. 35 of 1988 filed by the original claimants seeking compensation on account of death of one Rajendra Kataria in a motor accident. The first to fifth respondents in First Appeal No.58 of 1996 are the original claimants. The claimants are the appellants in First Appeal No.582 of 1998. The parties are hereinafter referred to with reference to their description in First Appeal No.48 of 1996. 2. The deceased Rajendra and others were travelling by a matador bearing registration No. MXV-7960 from Bombay towards Ahmednagar. The accident took place on 27th July, 1987 in the early morning at 1.30. A truck bearing No. MTL 6010 came from the opposite direction and gave a dash to the matador. The 7th respondent herein is the owner of the truck and the 6th respondent was driving the truck at the relevant time. The 8th respondent is the owner of the matador. The truck was insured with the appellant and the matador was insured with the 9th respondent. The Tribunal recorded a finding that drivers of both the vehicles were negligent. The Tribunal granted compensation of Rs.4,35,000/- with interest at the rate of 12 % per annum at the date of the claim petition till the realization of the amount. 3 fa48-96-582-98j 3. In support of First Appeal No.48 of 1996, the learned counsel appearing for the appellant insurer of the truck contended that though the truck was insured with the appellant, the liability of the appellant was restricted to Rs.1,50,000/-. The learned counsel submitted that a true copy of the policy was produced which shows the limited liability of the appellant to the extent of Rs.1,50,000/- only. The learned counsel appearing for the appellant invited attention of the Court to paragraph Nos.36 and 37 of the impugned judgment. The learned counsel relied upon a decision of the Apex Court in the case of National Insurance Company Limited V/s. Jugal Kishore & Others (1988 ACJ 270). She submitted that merely because there is a comprehensive policy, unless additional premium is paid, the liability of the insurance company for third party risks cannot be unlimited. The learned counsel therefore submitted that the impugned Award needs a modification to the effect that the liability of the appellant shall be limited to Rs.1,50,000/-. 3. The learned counsel appearing for the insured (7th respondent) submitted that in the present case, the appellant has not filed on record even an office copy of the policy and only an attested copy of the policy has been produced which has not been proved by examining the person who purported to attest the same. Reliance is placed on the decision in the case of Krishan Lal through L.Rs. and others V/s. Mohd. Din & Ors (AIR 1994 Delhi 10). He 4 fa48-96-582-98j submitted that only if a true copy of the policy would have been produced, the same would have shown whether any additional premium has been paid. Therefore, his submission is that contention of the appellant cannot be accepted. 4. The learned counsel appearing for the claimants in support of the First Appeal No.582 of 1998 pointed out that a very low multiplier of 10 has been applied though the age of the deceased was only 29 years. He submitted that only 1/4th amount should have been deducted on account of personal expenses of the deceased. He submitted that for calculating multiplicand the income of the deceased ought to be taken at Rs.5000/- per month. He submitted that a case for grant of enhancement is made out. The learned counsel appearing for the 7th respondent opposed the prayer for enhancement. The learned counsel appearing for the respondent No.9 has submitted that the liability of the insurer of matador is limited. 5. I have given careful consideration to the submissions. The first issue is regarding the quantum of compensation. One Surendra Gatariya, the brother of the deceased was examined as a witness. He stated that the annual income of the deceased from his business was about Rs.20,000/- to Rs.30,000/-. He stated that the deceased had paid income tax of about Rs. 5,000/- to 6,000/- in the year 5 fa48-96-582-98j 1987-88. Thus, even if the said evidence is accepted as correct, the income of the deceased could be taken as Rs.30,000/- per year. There is no evidence adduced to show that they were prospects of increase in the earnings of the deceased. It is true that the multiplier of 10 was on the lower side and multiplier of 17 ought to have been applied as the age of the deceased was 29 years. An amount of equivalent to ¼ of the total income ought to have been deducted on account of personal expenses of the deceased as the number of dependents were 5. 6. By taking the income at Rs.30,000/-, after deducting the 1/4th, the multiplicand comes to Rs.22,500/-. Even if multiplier of 17 is applied, the compensation will not exceed Rs.4,00,000/-. Hence, it is not possible to find fault with the quantum of compensation of Rs.4,35,000/-. 7. There is no Appeal or Cross Objection preferred by the insurer of the matador and hence, the submission made by the advocate for insurer of the matador about the limited liability cannot be considered. 8. Now turning to the plea of limited liability of the insurer of the truck i.e. the appellant,, it must be noted that the plea of limited liability of the appellant has been specifically taken in the written statement. It is an admitted position that the 7th respondent who is 6 fa48-96-582-98j the insured did not produce the original policy of the insurance. In paragraph No.36 of the Judgment, the learned Member of the Tribunal has recored a finding that the appellant had given a notice to produce the original policy of the truck, but the insured has failed to produce the same. Thereafter, the appellant produced a carbon copy of the same. The insured did not dispute the correctness of the said copy. 9. As far as Judgment of the Delhi High Court in the case of Krishan Lal is concerned, the Delhi High Court found that the attested copy of the policy which was produced was in a different form and therefore, an adverse inference was drawn against the insurance company. In the present case, as the 7th respondent did not produce the original policy which was in his custody, an attested copy of the policy was produced by the appellant insurer. The Tribunal is not bound by the strict rules of evidence. Hence, the attested copy could have been read in evidence. The attested copy showed that the upper limit of the liability of the appellant was Rs. 1,50,000/-. In paragraph No.36 of the Judgment, the learned Member of the Tribunal observed that the amount of Rs.240/- towards premium was found to be accepted and no more amount was accepted by the appellant. The learned Judge has relied upon the case of National Insurance Co. (Supra) in which the Apex Court held thus: 7 fa48-96-582-98j “Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the risk becomes unlimited or higher than the statutory liability fixed under sub-section (2) of section 95 of the said Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf.” 10. The copy of policy on record does not show that the liability to third parties exceeded the statutory limit fixed under Sub Section (2) of Section 95 of the said Act which in the present case was Rs. 1,50,000/-. 11. In the present case, as the insured did not produce the original policy, an adverse inference ought to have been drawn against him for not producing the original policy. Hence, the case of the appellant that its third party liability was limited to Rs. 1,50,000/- will have to be accepted. 12. To that extent, the impugned Award will have to be modified. Hence, I pass the following order: :: O R D E R :: i. The impugned Award in First Appeal No.48 of 1996 is modified to the extent that the liability of the opponent No.3 (The Oriental Insurance Co. Ltd.) shall be limited to a sum of Rs.1,50,000/- together with 8 fa48-96-582-98j interest thereon as awarded under the impugned Judgment and Award. ii. The First Appeal No.48 of 1996 is partly allowed to that extent. Rest of the Award is not disturbed. iii. First Appeal No.582 of 1998 is dismissed with no order as to costs. iv. Civil Application No.1169 of 1995 does not survive and the same is dismissed. (A.S.OKA, J.)