1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO.280 OF 1992 WITH CROSS OBJECTIONS STAMP NO.14571 OF 1992 The Oriental Fire and General insurance Co. Ltd. Divisional Office at 415, Gokhale Road, Naupada, Thane 400 602, through the Manager, BRO II, The Oriental Insurance Co. Ltd., No.7, J. Tata Road, Bombay 400 020. .. Appellant Versus 1. Shri Bhiwa Shidawa Wayada, Age 50 years, Occupation – labour, Residing at Lansai, Tal. Wada, Dist. Thane. ..Original Applicant 2. Popal Shankar Mangare, Adult, Occupation Service, Residing presently at Samrat Ashok Nagar, Behind Gurukrupa Hotel, Majiwade, Thane. 3. Balkrishna Nana Bhoir, Age 55 years, Occupation – Business, Residing at House No.536, at Balkum Pada No.3, Thane. .. Respondents -- Mrs. A.A. Agarwal for the Appellant. Shri T.J. Mendon for the Respondents. -- CORAM : A.S. OKA, J DATE : 19TH JANUARY, 2010. 2 ORAL JUDGMENT :: . The Appellant Company which is the insurer of the vehicle involved in the accident has challenged an award made by the Learned Member of the Motor Accident Claims Tribunal, Thane, on a Claim Petition filed by the 1st Respondent under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the said Act”). The claim is made on account of demise of the son of the 1st Respondent. The age of the deceased Sudhakar Bhiwa Wayada was 30 years and according to the 1st Respondent, the monthly earnings of the deceased was Rs.600/- and he was working as a labourer. The vehicle involved in the accident was owned by the 3rd Respondent and was driven by the 2nd Respondent. The vehicle involved is a Truck. The accident took place at Wada -Bhiwandi Highway. The deceased and certain other persons boarded the said Truck at village Kudus. The said truck was loaded with cargo of asbestos sheets. As a result of the accident, the death occurred of the deceased Sudhakar. The claim was contested by the Appellant contending that the deceased was traveling for hire and reward in the said truck and, therefore, the 3rd Respondent has committed a breach of terms and conditions of the relevant policy. 3 2. The Tribunal came to the conclusion that the deceased persons were carrying goods in the truck and they had hired the truck for carrying goods for a consideration. The Tribunal held that the Certificate issued by the Regional Transport Officer (RTO) produced and proved by the Claimant establishes that on the relevant time the truck was insured with the Appellant. The Tribunal granted compensation of Rs.50,000/- with interest thereon at the rate of 12% per annum. 3. The learned counsel appearing for the Appellant submitted that the office copy of the cover note was produced on record by the Appellant shows that the policy referred to in the RTO certificate relates to a Rajdoot Motor Vehicle. She submitted that it is therefore obvious that the truck was not insured with the Appellant. She pointed out that the 3rd Respondent who stepped into the witness box stated that the deceased persons were taken in the truck as they had offered to work as coolies. She pointed out that the said case has not been accepted and an inference has been drawn that the deceased were carrying goods in the vehicle by paying hire charges. She submitted that the said conclusion has no basis as it is nobody’s case that the deceased had hired the truck for carrying the passengers. The learned counsel appearing for the 1st Respondent opposed the Appeal and submitted that in fact a case 4 is made out for grant of enhanced compensation. He prayed for enhancement in compensation as prayed in the cross-objection. 4. I have given careful consideration to the submissions. The first submission is as regards the existence of the insurance. The original claimant relied upon a certificate issued by the RTO, Thane, recording that the 3rd Respondent was the owner of the offending truck. The certificate records that the truck was insured with the Appellant vide Certificate No. 846631 valid for the period from 22nd October, 1984 to 31st March, 1985. 5. The Claimants examined one Suresh Dalvi, a Junior Clerk working in the office of RTO at Thane. He brought before the Court the Registration Book and Cash Book Register. He showed that as per the Registration Book, the truck in question was owned by the 3rd Respondent and was insured with the Appellant under the Policy No. 846631 valid for the period 22nd October, 1984 to 31st August, 1985. He proved the certificate issued by the RTO. In the cross-examination, he stated that the truck in question has been registered as a goods vehicle. Thus, the RTO certificate clearly mentions that the certificate number of the policy was 846631, which is reiterated by the witness Suresh Dalvi. Even the registration book shows the said policy number. 5 6. The Appellant examined one Manohar Raut, Junior Assistant in the Thane Divisional Office of the Appellant. He stated that the contention of the 1st Respondent is that the vehicle was insured with the Appellant under Cover No.846631. It must be noted here that reliance has been placed by the Appellant on a letter dated 24th July, 1991 at Exhibit 25/1 sent by its Branch Manager, The said letter refers to Cover Note No.846631 and records that docket of the said cover note number was being forwarded which shows that the cover note was issued in respect of a Rajdoot Motor Cycle owned by one Dattatraya Nivrutti Thorat. A corresponding policy in respect of the said Rajdoot Motor Cycle was produced. Both, the said cover note and the policy show that the period of policy was from 30th December, 1985 to 29th December, 1986. Though the RTO records show that the policy number of the policy issued by the Appellant to the 3rd Respondent was 846631, the deposition of the witness of the appellant as well as the letter at Exhibit 21 show that the Appellant proceeded on the footing that 846631 was the Cover Note number. In fact, the case of the Claimant was that it was the number of the policy and not the number of the cover note. The Appellant has not chosen to produce an office copy of the Policy No. 846631. It is not the case of the witness examined by the Appellant that there is no policy bearing the said number. Therefore, the said evidence 6 is not at all useful for the Appellant to prove that the vehicle was not insured as the Appellant as the witness was under the impression that in the RTO certificate, Cover Note No.846631 was mentioned. In fact, the RTO certificate clearly shows that the certificate number of the Policy is 846631 which was valid from 22nd October, 1984 to 31st August, 1985. Apart from the fact that a copy of the Policy bearing the said Policy number is not produced, the policy which is produced is of a different number which shows that it is valid from 30th December, 1985 to 29th December, 1986. As state earlier, it is not the case of the Appellant that there is no policy bearing the said policy number mentioned in the RTO certificate. In the circumstances, the learned Trial Judge has rightly discarded the case made out by the Appellant that the vehicle was not insured with it. 7. Now turning to the second contention raised by the learned counsel appearing for the Appellant, the burden of proving the breach of terms and conditions of the policy was on the Appellant. The 3rd Respondent/owner was examined by the Claimant who came out with the case that when the truck halted at village Kudus, some persons boarded the truck and he appointed them for unloading the cargo. The said case was not accepted as it was not consistent with pleadings. In absence of any evidence adduced by the Appellant on this aspect, the 7 learned Member of the Tribunal accepted the case made out by the Claimant that the truck was hired by the deceased and others for carrying the goods. There is no attempt made by the Appellant to adduce any evidence on this aspect for discharging the burden. 8. On the basis of available evidence on record, the Tribunal has come to the conclusion that the deceased was carrying goods by the truck and had paid hire charges for the goods. Considering the fact that the Appellant has not discharged its burden, it must be stated that the inference drawn is not inconsistent with the evidence on record. Thus, the contention regarding breach of the terms and conditions of the policy has not been proved. 9. As far as quantum is concerned, 1st Respondent claimed that at the time of accident his age was 50 years and the age of the deceased was 30 years. He stated that the deceased was the only earning member. The widow of the deceased is residing with her parents. However, whereabouts of the widow are not disclosed. The widow has not come forward before the Tribunal. The Tribunal, however, has taken the earnings of the deceased as Rs.450/- per month and held that he was contributing to the family at Rs.300/- per month. The Tribunal applied multiplier of 10. Considering the age of the father, multiplier of 11 ought 8 to have been applied. However, the income of Rs.450/- per month taken into consideration by the learned Member of the Tribunal is certainly on a higher side considering the fact that the Tribunal was ascertaining the income of a person working on a daily wages in the year 1985. As stated earlier, the whereabouts of the widow of the deceased have not been disclosed. Even if higher multiplier of 11 is applied, the multiplicand will have to be reduced. The compensation of Rs.50,000/- awarded by the Tribunal is reasonable and no interference is called for. 10. Hence, I pass following order: (a) The Appeal is dismissed with no order as to costs. (b) The cross objection is dismissed with no order as to costs. (c) The record and proceedings be sent back immediately. JUDGE ash/