Vijayalakshmi v. Rajasekharan Nair — 1994 DIGILAW 425 (KER)

Judgment :- Pareed Pillay, ag. CJ. Appellants, petitioners in O.P.(M.V.) 857 of 1986 dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Alleppey have filed the appeal. As against the claim of compensation limited to Rs. 5,00,000/-, the Tribunal awarded compensation of Rs. 1,99,650/- and directed the second respondent (National Insurance Company) to deposit Rs. 50,000/- and held that the first respondent is liable to pay the balance amount. 2. The application is filed by the legal heirs of Deva Kumar who met with a road traffic accident on 26-9-1986. The case of the appellants is that the deceased Deva Kumar was riding a motor cycle from Ernakulam to Quilon, that when he reached in front of Masjidul Amam Mosque at Chandiroor Ambassador Car KLA-9707 driven by the first respondent hit the motor cycle and caused him serious injuries, that he was taken to the Medical Trust Hospital, Ernakulam and that he succumbed to the injuries on 29-9-1986. 3. The Tribunal on analysis of the evidence held that the motor cycle in which the deceased was travelling was on its proper side and the accident occurred due to the rashness and negligence of the first respondent. The Tribunal held that there is absolutely no contributory negligence on the part of the deceased. 4. Contention of the appellants is that the Tribunal having been appraised of the evidence with regard to the income earned by the deceased did not bestow proper attention to the same and the possibility of he earning substantial income in view of his qualification was ignored. Counsel for the appellants contended that the Tribunal's quantification of the compensation cannot be justified as average income of the deceased was taken only as Rs. 1,500/- per month. Counsel further contended that the documentary evidence in the case unfolds the fact that the deceased was very well employed in the United Arab Emirates earning 2000 Dirhams over and above his basic salary. 5. Wife of the deceased (PW.1) has produced number of documents to prove the occupation and income of the deceased. Deceased was a skilled welder. It is in evidence that he had worked as a Welder in Bombay during 1975 to 1977 (vide Ext A2). Ext. A-3 proves that he had completed welding operator qualification test in 1978. Ext. A-4 is the identity card issued from Simon Carves (I) Limited, Bombay. Deceased was a skilled welder. It is in evidence that he had worked as a Welder in Bombay during 1975 to 1977 (vide Ext A2). Ext. A-3 proves that he had completed welding operator qualification test in 1978. Ext. A-4 is the identity card issued from Simon Carves (I) Limited, Bombay. It shows that he had worked in that Company as a welder. Ext. A-5 discloses that the deceased has passed welder test in the Gulf country. Exts. A6, A-11, A-12 and A-12(a) disclose the fact that he was working in different companies in U.A.E. as a welder. Exts. A8 and A-9 are identity cards issued by two different companies in favour of the deceased. Ext. A-13 is the salary certificate issued by the International Oilfield General Services, U.A.E. This shows that when the deceased was employed in that company he earned 3600 Dirhams with average over-time amount of 2000 Dirhams over and above the basic salary. Ext. A-13 also shows that the deceased had worked in that Organisation as a welder from 14-6-1983 to 18-5-1986. The Tribunal held that even if the housing allowance is not accounted, on average deceased was getting Rs. 16,000/- (equivalent to 5000 Dirhams). 6. In view of the overwhelming documentary evidence, Tribunal held that the deceased was getting huge salary while he was in U.A.E. The Tribunal did not place any reliance on the documentary evidence in the case chiefly holding that at the time of accident deceased was not earning any amount. Despite the finding of the Tribunal that he being a skilled welder would have attained position in life as a good welder as certified by different employers, it fixed his monthly average income as Rs. 1,500/- only. Appellants' contention is that the Tribunal ought not to have come to such a conclusion overlooking the weighty documentary evidence in the case which unfolds the potentialities of the deceased. 7. As the Tribunal itself has accepted that there is clear evidence to hold that the deceased was earning fairly good salary in U.A.E. and that he was a qualified welder possibility that he could have secured job with high salary should not have been lost sight of. Tribunal's finding that at the time of accident he had no job and so the evidence with regard to his earning capacity cannot have any significance in quantifying the compensation is without justification. Tribunal's finding that at the time of accident he had no job and so the evidence with regard to his earning capacity cannot have any significance in quantifying the compensation is without justification. Merely because deceased on the date of accident happened to be out of employment, the attendant circumstances in which he was earning high salary could not have been ignored outright. As there is evidence that the deceased was well qualified and was having jobs with good salary, the fact that at the time of accident he happened to be unemployed cannot be taken as a circumstance to ignore the potentialities and possibilities of he securing job later. In Taff Vale Railway Company v. Jenkins (1913 A.C. 1) The Judicial Committee observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. In the above judgment, Lord Atkinson stated: "I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the existence of this expectation is an inference of fact-there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them." We have no hesitation to hold that in a compensation claim under S.110-A of the Motor Vehicles Act it is not necessary to establish always that the deceased was actually earning money or money's worth or contributing to the support of his parents at the time of accident. In view of the evidence in the case that he was a skilled welder, the reasonable conclusion is that he could have attained higher positions in life. Had his life not been snuffed out by the accident, that eventuality cannot be affirmatively ruled out. 8. As the Tribunal has to determine the compensation in a claim petition filed. by the legal heirs of the deceased, it cannot over emphasise the fact that the deceased at the time of accident was unemployed when there is cogent evidence to hold that he had the qualifications for earning fairly good salary. In the back-drop of evidence that the deceased was well employed and was getting Rs. 16,000/- on an average per month, Tribunal's finding that only Rs. 1,500/- can be taken as his monthly income is without any justification. The Tribunal ought to have evaluated the entire evidence and considering his qualification as a skilled welder it ought to have taken into consideration the fact that he was getting Rs. 16,000/- per month. Ext. A13 shows that shortly before his death he was getting the aforesaid amount. This piece of evidence should not have been brushed aside by the Tribunal. As there is evidence in the case to hold that the deceased was a competent and expert welder, merely because for a temporary period he was out of employment, the Tribunal cannot jump to the conclusion that at the time of accident he was out of employment and so his competence and skill.as a welder and possibility of he securing job earning good income cannot have any significance. 9. In view of the evidence that deceased was getting Rs. 16,000/- per month, we hold that his monthly contribution to the family can be fixed at Rs. 5,000/-. That would come to Rs. 60,000/- per annum. Deducting 1/3 towards lumpsum payment and imponderables in life and adopting the multiplier 15, the compensation would come to Rs. 6,00,000/-. As the claim in the petition is limited to Rs. 5,00,000/-, we hold that the appellants are entitled to the said amount. 10. The next question to be considered is regarding the liability of the second respondent (National Insurance Company). The second respondent did not produce the insurance policy when the written statement was filed before the Tribunal. P.W.I was examined on 20-4-1989. It is thereafter that a memo with the alleged policy was produced. 10. The next question to be considered is regarding the liability of the second respondent (National Insurance Company). The second respondent did not produce the insurance policy when the written statement was filed before the Tribunal. P.W.I was examined on 20-4-1989. It is thereafter that a memo with the alleged policy was produced. The policy was not produced with a petition with notice to the appellants. In view of first respondent's contention that his vehicle was having valid insurance policy at the time of accident the car being insured with the second respondent, the latter (second respondent) ought to have produced the policy and got it marked before the Tribunal. Mere production of policy without getting it admitted in evidence in the legally recognised manner would not enable the Insurance Company to place any reliance on it. In National Insurance Company Ltd, New Delhi v. Jugal Kishore ( A.I.R 1988 SC 719) the Supreme Court held that the duty is greater in the case of instrumentalities of the State such as the Insurance Company who is under an obligation to act fairly to produce the insurance policy before the Tribunal. The Supreme Court emphasised that in all such cases where the Insurance' Company concerned wishes to take a defence in the claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. In the case in hand, no officer of the second respondent was examined before the Tribunal to vindicate its stand that its liability is limited. No attempt was made to get the insurance policy marked. It is not seen that the memo was produced before the Tribunal with notice to the appellants. As the policy was not produced before the Tribunal along with written statement, second respondent ought to have produced it before the Tribunal only with a petition with notice to the appellants. As already noted, no attempt was made to get the policy marked before the Tribunal. That being the position, the Tribunal should not have relied on the alleged copy of the policy which was not admitted in evidence. 11. As the Insurance Company has admitted the existence of the valid insurance policy at the time of accident and as there is no evidence to hold that its liability is limited to Rs. That being the position, the Tribunal should not have relied on the alleged copy of the policy which was not admitted in evidence. 11. As the Insurance Company has admitted the existence of the valid insurance policy at the time of accident and as there is no evidence to hold that its liability is limited to Rs. 50,000/- as contended by it, we hold that it has the liability to pay the compensation awarded in the case to the appellants. 12. The award of the Tribunal is modified as we hold that the appellants are entitled to the compensation of RS. 5,00,000/- with 12% interest per annum from 18-12-1986 till realisation. 13. Out of the compensation amount, second appellant (father of the deceased) is allowed to draw Rs. 30,000/- with proportionate interest and first appellant (wife of the deceased) is allowed to draw Rs. 30,000/- and its interest. The balance amount with proportionate interest would be deposited in the minor third appellant's name in any nationalised bank as fixed deposit till she attains majority. The fixed deposit receipts shall be kept in the safe custody of the Motor Accidents Claims Tribunal, Alleppey. First appellant is allowed to draw interest on the fixed deposit amount for utilisation of the same for the welfare of the minor. M.F.A. is allowed as stated above.