C. M. Nayar ( 1 ) THE present judgment will dispose of FAO No. 205 of 1981 filed by the New India Assurance Co Ltd as well as the Cross Objections (C. M. No. 1749/81) filed by the respondents-claimants. ( 2 ) THE respondents-claimants filed their Claim Petition under Section 110-A of the Motor Vehicles Act against the appellant Insurance Company as well as the driver and the owners for a sum of Rs. 2 lakhs as compensation for the death of Shri Hardev Singh caused in a motor accident alleged to have taken place on October 5, 1973 at about 6 A. M. at Ring Road, Near Britania Biscuit Factory. The respondents-claimants stated that the accident was caused due to rash and negligent driving of vehicle No. DLG 1598 on the part of the driver, Mata Din. The vehicle was owned by respondents 6 and 7 and was insured with Anand Insurance Company which subsequently merged with the appellant Insurance Company. The deceased and Smt. Rajinder Kaur were going from Moti Bagh to Punjabi Bagh in a car along with his father arid brother and when the car reached Punjabi Bagh near Britania Biscuit Factory, truck bearing No. DLG 1598 came from the opposite direction at a very fast speed, without headlights and dashed against the car after coming on the wrong side. The occupants of the car received injuries as a result of the impact of the accident. The said Shri Hardev Singh died on the spot. ( 3 ) THE Claim Petition was contested by the appellant Insurance Company as well as by respondent no. 6 and it proceeded ex parte against respondent no. 7 Brahm Singh and the driver was dropped by the counsel for the respondents vide his statement made before the Tribunal. The allegations made in the petition were denied. The factum of accident was admitted and negligence was pleaded on the part of the deceased who was driving the car. The appellant Insurance Company denied the averments made in the petition and took the plea that the insurance particulars supplied by the respondents-claimants were incomplete and incorrect and, therefore, the claim was denied. ( 4 ) ON the pleadings of the parties, the following issues were framed: 1. The appellant Insurance Company denied the averments made in the petition and took the plea that the insurance particulars supplied by the respondents-claimants were incomplete and incorrect and, therefore, the claim was denied. ( 4 ) ON the pleadings of the parties, the following issues were framed: 1. Whether the deceased Har Dev Singh received fatal injuries due to rash and negligent driving of Truck No. DLG 1598 on the part of respondent no. 1, as alleged? 2. Whether the accident took place due to negligence of the deceased himself as alleged by respondent no. 2? 3. Whether the petitioners are the LRs of the deceased? 4. To what amount of compensation, if any, are the petitioners entitled and from whom? 5. Whether the vehicle in question was insured with the Insurance Co. as alleged by the petitioners? 6. Relief ( 5 ) THE Tribunal recorded the findings on Issues No. 1 and 2 and came to the conclusion that it was fully proved that truck No. DLG 1598, which caused the accident, came from the wrong side at a fast and reckless speed and no negligence can be attributed to the deceased. The respondents-claimants were held to be the legal heirs of the deceased and issue no. 3 was decided accordingly. The quantum of compensation was considered and the Tribunal held that the statement of the widow that the deceased was earning Rs. 1500. 00 seemed to be exaggerated and could not be relied upon at its face value particularly in the absence of documentary evidence. The monthly income of the deceased was, accordingly, assessed at Rs. 900. 00. The amount of Rs. 300. 00 was fixed as a reasonable sum for wear and tear of the taxi which the deceased was expected to spend and after reducing the same by a further amount of one-third towards personal expenses, the dependency was worked out at Rs. 400. 00 per month. The learned Judge further reduced the same by a sum of Rs. 100. 00 on the basis of the statement of the widow that she had transferred the taxi in the name of her brother-in-law and was getting Rs. 100. 00 per month as rent. In this way the monthly dependency of the respondents-claimants was assessed at Rs. 300. 00 per month i. e. Rs. 3600. 00 per annum. 100. 00 on the basis of the statement of the widow that she had transferred the taxi in the name of her brother-in-law and was getting Rs. 100. 00 per month as rent. In this way the monthly dependency of the respondents-claimants was assessed at Rs. 300. 00 per month i. e. Rs. 3600. 00 per annum. The total amount of compensation and damages was calculated at Rs. 54,000. 00 by adopting a multiplier of 15 years. The learned Judge further made a deduction to the extent of 15 per cent for lump sum payment and the final amount which was awarded in favour of the respondents - claimants was assessed at Rs. 45,900. 00. ( 6 ) THE issue with regard to the insurance of the offending vehicle (issue no. 5) was disposed of by holding that the Insurance Company failed to discharge the onus placed on them and it was held that the truck in question was insured with M/s Anand Insurance Co. which subsequently merged with New India Assurance Co. Ltd. , appellant herein. The Insurance Company as well as the respondents-claimants have filed the appeal and the Cross Objections to impugn the award. ( 7 ) THE learned counsel for Insurance Company has vehemently argued that the offending truck was not insured with Anand Insurance Co. which subsequently merged with the appellant Insurance Company. The appellant Insurance Company was only made a party on October 10. 1980 and no notice was given prior to that date. Therefore, no liability can be fastened on the appellant company. It has been further argued that in any case; the liability of the appellant Insurance Company is limited to asum of Rs. 50,000. 00 in accordance with law as prevailing at the relevant time and no further liability can be fastened on the appellant Company. The policy has not been produced on the plea that the record has been destroyed. The counsel, however, has referred me to paragraph 19 of the impugned judgment with regard to the supply of particulars by the respondents-claimants to indicate that the premium paid on the policy was Rs. 140. 25 which will show that the liability was limited to a sum of Rs. 50,000. 00. The counsel, however, has referred me to paragraph 19 of the impugned judgment with regard to the supply of particulars by the respondents-claimants to indicate that the premium paid on the policy was Rs. 140. 25 which will show that the liability was limited to a sum of Rs. 50,000. 00. He has then referred me to Ground VI of the Cross Objections to reiterate that even the respondents-claimants have accepted that the liability of the insurers, as required to be covered under the policy of insurance was in the sum of Rs. 50,000. 00 and they have only asked for award of the remaining amount in case their plea for enhancement succeeds against the owners and driver of the vehicle respectively. ( 8 ) THE learned counsel for the appellant has not seriously assailed the findings on issues 1 and 2. 1 have also perused the record and the evidence produced before the Tribunal. The truck was being driven at a fast speed and in negligent manner. There is, therefore, no infirmity in the finding that the offending truck caused the accident aftergoing over the wrong side and no satisfactory evidence had been led to form an opinion to the contrary. The driver of the truck was not even examined. The findings of the Tribunal that the accident was caused by the truck after going over the wrong side at fast and reckless speed and no negligence could be attributed to the deceased are based on cogent reasons and the evidence on record. These findings are, accordingly, affirmed. ( 9 ) THE Tribunal referred to the statement of RW1 Shri H. D. Biswas, Assistant Administrative Officer of the appellant Insurance Company who stated that Anand Insurance Co. was merged into New India Assurance Co. Ltd. on January 1, 1973, and he was Divisional Manager of Anand Insurance Co. before its merger. The record was destroyed before the service of summons in this case on New India Assurance Co. Ltd. and so far as this witness recollected the insurance policy was incomplete and the certificate of insurance was not traceable and the record of the policy had since been destroyed although at the same time this witness stated that the other record concerning Anand Insurance Co. was very much available with the Company. Ltd. and so far as this witness recollected the insurance policy was incomplete and the certificate of insurance was not traceable and the record of the policy had since been destroyed although at the same time this witness stated that the other record concerning Anand Insurance Co. was very much available with the Company. It may be relevant to reproduce his testimony, which reads as follows: "r. W. 1 Shri H. D. Biswas, Assistant Administrative Officer, New India Assurance Co. Ltd. New Delhi on SA: Anand Insurance Co. has merged into New India Insurance Co. on 1. 1. 73 I was Divisional Manager of Anand Insurance Co. before its merger. Record was destroyed before the service of the summons in this case on New India. So far as I recollect Insurance Policy No. T-DL-39182 is incomplete. Moreover, the Certificate No. 11009 as mentioned is not traceable. XXN: Some papers in respect of this Insurance Co. i. e. Anand Insurance Co. were available but they never concerned with the policy given by the petitioner. I only traced the Certificate No. 11009 but it could not be traced out. At the time when I traced the certificate record was also not available. It is correct that since the record was not available, it was not possible to trace the certificate. I recollect that policy No. T-DL-39182 is incomplete. I say because the year has not been given. Since the date of issuance of policy mentioned in the application was not known to me. therefore, I have not been able to trace out the policy as the complete record has since been destroyed. It is correct that the date of the issuance of the policy i. e. 27. 10. 72 is mentioned in the notice of the application served on the company. " The averments with regard to destruction of the record was, therefore, viewed with suspicion by the Tribunal and it was held that the appellant Company could not escape the liability merely on the plea that the relevant record was not traceable as no rules were quoted under which the record was destroyed. The Tribunal, accordingly, held that the appellant Insurance Company failed to discharge the onus heavily placed upon them when the insurance particulars were supplied to them. There is no denial of fact that the offending vehicle was insured with Anand Insurance Co. The Tribunal, accordingly, held that the appellant Insurance Company failed to discharge the onus heavily placed upon them when the insurance particulars were supplied to them. There is no denial of fact that the offending vehicle was insured with Anand Insurance Co. which subsequently merged with the appellant Insurance Company. The appellant Company being the successor of the Company is liable to pay the awarded money as a insurer. ( 10 ) THE deceased at the time of his death was 28 years of age. He has left behind his widow, two minor children and his aged parents. The multiplier adopted by the Tribunal in the facts of the present case is very much on the lower side particularly in view of the fact that the expectancy of life can now be assessed at 60-65 years of age. The recent decision of the Supreme Court as reported in Urmilla Pandey and others v. Khalil Ahmad and others 1994 ACJ 805 is of great relevance as the facts seem to be common. In that case the deceased was aged 29 years and was getting Rs. 259. 00 per month. He left behind his widow and two minor children. The Tribunal assessed the dependency at Rs. 175. 00 per month and by using a multiplier of 29, calculated the amount of compensation at Rs. 60,900. 00. The deduction to the extent of 33 per cent on account of lump sum payment was made and the total amount awarded was Rs. 40,600. 00 as compared to the claim of Rs. 1,17,748. 00. The learned Judges of the Supreme Court dealt with the matter in paragraph 11 of the judgment, which reads as follows: "the Tribunal has grossly erred in computing the compensation amount. The Tribunal was not justified in assuming the life expectancy to be 58. It could not be less than 65 even at that point of time. The Tribunal also fell into error in making 33 per cent deduction for the lump sum payment. As a matter of fact, no payment till date has been received by the unfortunate family. The amount of Rs. 40,600. 00 awarded by the Tribunal is quite low. Without going into various heads under which the appellants could be compensated, we are of the view that in order to do complete justice between the parties, the appellantsbe awarded Rs. 1,20,000. The amount of Rs. 40,600. 00 awarded by the Tribunal is quite low. Without going into various heads under which the appellants could be compensated, we are of the view that in order to do complete justice between the parties, the appellantsbe awarded Rs. 1,20,000. 00 (rounding off the figure of Rs. 1,17,747. 70 as claimed by appellants ). We order accordingly. On the amount of Rs. 1,20,000. 00 the appellants shall be entitled to 12 per cent per annum interest from the date of the application before the Tribunal. The total amount shall be paid by the insurance company to Urmilla Pandey, the widow, on her behalf and on behalf of her two children within three months from today. In case the amount is not paid within the period of three months/the insurance company shall be liable to pay interest at the rate of 18 per cent per annum thereafter. The amount shall be paid by way of a demand draft in the name of Urmilla Pandey. " The deceased on the facts of the present case could be easily expected to contribute as Rs. 1000. 00 per month for the family and the amount does not seem to be exaggerated. In view of the settled position of law, it will not be necessary for me to go any further but to hold that the respondents-claimants are entitled to the sum of Rs. 2 lakhs as claimed in their petition before the Tribunal. The amount will be much higher even if the same multiplier is adopted as in Urmilla Pandey s case. ( 11 ) THE next question which now arises is with regard to the liability of the Insurance Company. It is argued that the Insurance Company is not liable to pay more than Rs. 50,000. 00 as on their own admission, the respondents-claimants have accepted that position even in the cross objections. It is admitted that the policy of insurance is not available as the original Insurance Company M/s Anand Insurance Co. , with whom the offending truck was insured was merged with the appellant New India Assurance Co. Ltd and the same has since been destroyed. It is admitted that the policy of insurance is not available as the original Insurance Company M/s Anand Insurance Co. , with whom the offending truck was insured was merged with the appellant New India Assurance Co. Ltd and the same has since been destroyed. The learned counsel for the appellant, however, argues that it was not necessary to produce the policy in view of the averments of the respondents-claimants in paragraph VI of the grounds of their cross objections that the learned Tribunal ought to have awarded the remaining amount claimed as payable by the owner and the driver of the vehicle respectively. The question now arises as to whether this averment of the particulars of the policy supplied by the respondents-claimants will amount to an admission. Reliance is placed on the judgment of the Supreme Court as reported in Smt. Rajendra Kumari and another v. Smt. Shanta Trivedi and others (1989) 2 Supreme Court Cases 140. In that case, the relevant issue on the question of limited liability was framed and the counsel appearing for the claimants conceded that the liability of the Insurance Company could not exceed the sum of Rs. 4,000. 00. The issue was decided on those facts. In the present case, there was no issue framed, as to whether the liability of the Insurance Company was limited to the extent of Rs. 50,000. 00. The mere supply of particulars by the respondents-claimants and the averment in the claim petition that while awarding the full amount of Rs. 50,000. 00 as liability of the Insurance Company, as required to be covered by the policy of insurance and that the Tribunal ought to have awarded the remaining amount as payable by the owner and driver of the vehicle respectively, will be of no consequence in the facts of the present case. The policy has not been produced on the plea that since the original company merged with the appellant company, the same has been destroyed. The issue was not framed and no evidence was led in this regard. The Tribunal did not believe the witness of the company and failed to appreciate the contentions of the appellant that when the entire record of the company was destroyed and some record had been kept intact why the same was not destroyed. In that situation, it was held that the Company could not escape their liability. The Tribunal did not believe the witness of the company and failed to appreciate the contentions of the appellant that when the entire record of the company was destroyed and some record had been kept intact why the same was not destroyed. In that situation, it was held that the Company could not escape their liability. The record, if it was destroyed, will not absolve the appellant company of its responsibility and it has been rightly held by the Tribunal that the insurance company failed to discharge the onus after the necessary particulars were supplied. ( 12 ) THE initial claim was filed by making Oriental General Insurance Co. as the insurer of the vehicle. That was in March, 1974. The appellant, New India Insurance Co. Ltd. came in the picture subsequently and filed its written statement. Paragraph 1 under the head of Preliminary Objection may be reproduced as follows: "that the alleged accident took place on 6. 10. 1973 and notice was served in 1978 on the New India Assurance Co. Ltd. in which Anand Insurance Co. Ltd. has merged in December, 1973. The record regarding Anand Insurance Co. Ltd. has been destroyed since long before the service of notice on New India Assurance Co. Ltd. From the enquiries from the Officer concerned with Anand Insurance Co. Ltd. before merger, it is revealed that the particulars of the insurance policy are incomplete and incorrect and so the answering respondent does not admit that New India Assurance Co. Ltd. (Anand Insurance Co. Ltd) is the insurer of truck No. DLG-1598. In case correct insurance particulars are provided and it found that Anand Insurance Co. Ltd. was the insurer, New India Assurance Co. Ltd. reserves the right to file a detailed written statement. Legally regarding insurance of truck, the liability of the insurer is upto Rs. 50,000. 00 (Rupees Fifty thousand) but in this case correct insurance particulars are not provided, it is submitted that New India Assurance Co. Ltd. (Anand Insurance Co. Ltd.) is not liable and claim against New India Assurance Co. Ltd. (Anand Insurance Co. Ltd.) be dismissed," ( 13 ) THE blame for delay in impleading the New India Assurance Co. 50,000. 00 (Rupees Fifty thousand) but in this case correct insurance particulars are not provided, it is submitted that New India Assurance Co. Ltd. (Anand Insurance Co. Ltd.) is not liable and claim against New India Assurance Co. Ltd. (Anand Insurance Co. Ltd.) be dismissed," ( 13 ) THE blame for delay in impleading the New India Assurance Co. , the appellant herein, cannot be fastened on the respondents-claimants as owners of the truck and the driver were impleaded as parties to the same and in case any blame is to be placed, the same has to be duly apportioned between the owner of the offending vehicle and M/s Anand Insurance Co. Ltd which merged with M/s New India Assurance Co. Ltd. in December, 1973. ( 14 ) THE next question which has been agitated before me by learned counsel for Insurance Company is that the respondents-claimants have already admitted that the liability of the insurance company is limited to the extent of Rs. 50,000. 00. The same has been refuted by learned counsel appearing for the respondents. He has explained that the particulars of the policy, as given by the respondents-claimants before the Tribunal as well as the averments made in the cross-objections are of no relevance and no adverse consequences follow. The prayer was only made in the alternative that in case the liability was held to be limited, the remaining amount should be awarded against the owners of the offending vehicle. There is force in the contention of learned counsel for the respondents as the appellant Insurance Company was not able to produce the policy and their own witness has given evasive and vague reply to the averments in this regard. The policy, admittedly, has not been produced. The only source of information for the respondents-claimants was the owners/driver of the offending vehicle. They have not cooperated and it can not, therefore, be said that the blame lies with the respondents-claimants. ( 15 ) THE position which, therefore, emerges is that the appellant Insurance Company was keeping back the details of the policy and the certificate issued in respect of the same. Assuming if the papers were destroyed, an adverse conclusion cannot be drawn against respondents-claimants to their detriment. Admittedly, the vehicle was insured with Anand Insurance Co. which merged with the appellant Insurance Company on 1. 1. Assuming if the papers were destroyed, an adverse conclusion cannot be drawn against respondents-claimants to their detriment. Admittedly, the vehicle was insured with Anand Insurance Co. which merged with the appellant Insurance Company on 1. 1. 1973 and it is not explained as to why the papers, particularly in respect to the concerned policy, were destroyed and were not available. The evidence of RW 1 does not inspire confidence and it seems that he was keeping back the crucial information from the Court. The appellant Company also did not press for any issue to be framed with regard to their liability which is stated to be limited to the extent of Rs. 50,000. 00. The judgment of the Supreme Court \nsmt. Rajendrakumari and another v. Smt. Shantatrivedi and others (supra) is of no consequence and help to the contentions of the appellant on the present facts. In these circumstances, it cannot be said that the liability of the Insurance Company is limited and they are not liable to pay any amount to the respondents- claimants beyond a sum of Rs. 50,000. 00. ( 16 ) THE Insurance Company, however, is amply protected by the provisions of Section 149 (5) of the Motor Vehicles Act, 1988 which is in pari materia to the earlier provisions as contained in Section 96 (4) of the 1939 Act. The same reads as follows: "if the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the. excess from that person. " I have dealt with similar point in The National Insurance Co. Ltd. v. Smt. Harjeet Kaur and others FAO No. 268 of 1987 decided on January 16,1995. The judgment of this Court as reported in The oriental Fire and General Insurance Co. Ltd. v. Mrs. Lee/a Wati R. Adyanthaya and others (1976) 12 DLT 163 has also been referred. On the same basis the appellant Insurance Company in this case is given liberty to recover the money from the insurers and this judgment will not stand in the way provided the company is able to establish that their liability is not unlimited. Ltd. v. Mrs. Lee/a Wati R. Adyanthaya and others (1976) 12 DLT 163 has also been referred. On the same basis the appellant Insurance Company in this case is given liberty to recover the money from the insurers and this judgment will not stand in the way provided the company is able to establish that their liability is not unlimited. ( 17 ) THE Tribunal has awarded interest at the rate of 6 per cent per annum from the date of award till realisation only on the condition that in case the amount was not paid within 60 days, the same shall be payable along with interest. The accident took place on October 6,1973. The deceased was 28 years of age and he left behind his widow and two minor children aged 2 1/2 years and 1 1/2 years as well as his old parents. The appeal and the cross objections are being disposed of in the year 1995. It cannot be said that this will finally conclude the matter between the parties. The respondents-claimants shall be entitled to interest at the rate of 12 per cent per annum on the amount of Rs. 2 lakhs from the date of institution of the petition till realisation. The amount which has already been paid shall be taken into consideration to work out the amount of interest which is now held payable. The total amount excluding 10 per cent of the same shall be paid by the Insurance Company to the widow of the deceased Smt. Manjit Kaur along with interest on her behalf and on behalf of her two children within three months from today. The remaining 10 percent shall be equally distributed between respondents 4 and 5 who are parents of the deceased. The appeal is dismissed and the cross objections are allowed in the above terms. Respondents-claimants shall also be entitled to costs, which are assessed at Rs. 5,000. 00. --- *** --- .