P. AZAD CHOUDHURY v. R. RATHANALU — 1997 DIGILAW 256 (ORI)

JUDGMENT : P.K. Misra, J. - Both the appeals have been filed by the owner of the vehicle challenging the award of compensation passed by the Second Motor Accidents Claims Tribunal (S.D.). Berhampur, in M.J.C. No. 12 of 1989 which is being impugned in M.A. No. 476 of 1992, the Tribunal has awarded Rs. 72,000/-, whereas in M.J.C. No. 11 of 1989 which is being impugned in M.A. No. 480 of 1992, the Tribunal has awarded Rs. 90,000/- to the respective claimants. Out of the aforesaid amounts, the Tribunal directed the insurance company to pay Rs. 15,000/- in each case and the balance was directed to be paid by the owner. Both the claim cases were heard and disposed of by a common judgment. Both the appeals were heard together and are being disposed of by this common judgment. 2. There is no dispute that the present appellant is the owner of a bus bearing registration No. ORK 4554 which was proceeding from Maniguda to Rayagada on 26.10.1988. The claimant-respondent in M.A. No. 476 of 1992, the widow of deceased R. Sriram Murthy claimed that the deceased was travelling in the said bus as a conductor on the fateful day. In M.A. No. 480 of 1992, the claimant-respondent claimed that she along with her deceased husband N. Narayana Rao were travelling in the said bus as passengers. It is alleged in both the claim applications that due to rash and negligent driving of the bus driver, the bus met with an accident and capsized near Danger Banka, as a result of which both the deceased died on the spot. The Tribunal found that both the deceased were in fact passengers in the bus and taking their monthly income to be Rs. 750 and annual contribution to be Rs, 6,000/-, it awarded a sum of Rs. 72,000/- and Rs. 90,000/- applying multiplier of 12 and 15 respectively, keeping in view the age of the claimants and other relevant factors. 3. In both the appeals it is contended that there was no negligence on the part of the driver of the bus and, as such, no compensation should have been paid. In support of such contention, the counsel for the appellant has relied upon the evidence of PW 2 (respondent No. 1 in M.A. No. 476 of 1992) who was also travelling in the bus. In support of such contention, the counsel for the appellant has relied upon the evidence of PW 2 (respondent No. 1 in M.A. No. 476 of 1992) who was also travelling in the bus. PW 2 has stated in para 2 of her examination-in-chief: ...At that time a truck was coming from the opposite side. In order to pass the truck the driver of the offending bus gave side. In that process the offending bus capsized as the driver could not control its speed.... On the basis of the aforesaid evidence, it is contended that since the driver of the bus tried to give pass to the truck which was coming from the opposite direction, it cannot be said that there was any negligence on the part of the driver of the bus. Such contention of the learned Counsel for the appellant is not sustainable. It is apparent from the evidence extracted above that the bus capsized as the driver could not control its speed. This evidence of PW 2 has not been challenged in any manner in cross-examination. That apart, the driver of the bus has not been examined as a witness to explain the circumstances relating to the accident. For non-examination of the driver of the bus, the Tribunal has rightly drawn adverse inference against the contention raised by the owner. I see no reason to differ from such finding of the Tribunal. 4. The learned Counsel for the appellant has next contended that the quantum of compensation assessed by the Tribunal is unreasonably excessive. The claimant in M.J.C. No. 12 of 1989 (M.A. No. 476 of 1992) had claimed that her husband was doing business and was earning Rs. 1,000 per month. Though the Tribunal has discarded such statement of the claimant that her husband, aged about 45, was earning Rs. 1,000/- per month, calculating on the basis of the income of an unskilled labourer, it held that the deceased in M.J.C. No. 12 of 1989 was earning Rs. 750/- per month. The accident had taken place in 1988 and the Tribunal decided the case in June, 1992. When the minimum wages had been increased to Rs. 25/- and possibly by that scale the Tribunal has calculated the monthly income to be Rs. 750. Taking Rs. 20/- to be the minimum wages in the year 1988, monthly income of the deceased would have been around Rs. When the minimum wages had been increased to Rs. 25/- and possibly by that scale the Tribunal has calculated the monthly income to be Rs. 750. Taking Rs. 20/- to be the minimum wages in the year 1988, monthly income of the deceased would have been around Rs. 600 and deducting Rs. 200/- towards his personal expenditure, a balance of Rs. 400/-would have been available for the benefit of family. The multiplier of 12 adopted by the Tribunal appears to be reasonable keeping in view the age of the deceased. Calculated on this basis and taking the annual dependency to be roughly a round figure of Rs. 5,000/-, a sum of Rs. 60,000 would represent a fair compensation so far as the claimant in M.J.C. No. 12 of 1989 is concerned. Since the deceased was admittedly a passenger, out of the amount of Rs. 60,000/-, a sum of Rs. 15,000/- is payable by the insurance company, as already directed by the Tribunal and the balance sum of Rs. 45,000/- is payable by the appellant. The direction of the learned Tribunal regarding the compensation and the method of deposit of the amount of Rs. 15,000/- payable by the insurance company is sustained. However, since the amount payable by the owner has been reduced, the direction regarding apportionment and the manner of deposit is required to be modified. Out of the sum of Rs. 45,000/- along with 6 per cent interest payable from the date of filing of the claim application, a sum of Rs. 11,000/- each be kept in fixed deposit in the name of the widow and her three children for a period of five years with provision for withdrawal of the quarterly interest and the balance amount along with the entire up-to-date interest be paid to the widow. The direction of the Tribunal regarding the payment of penal interest on account of the default is set aside. 5. So far as M.A. No. 480 of 1992 is concerned, the claimant had claimed that the deceased was working as a conductor of the bus and was getting Rs. 1,200/- per month. However, since the owner had pleaded that the deceased was not the conductor, the Tribunal held that the deceased was a passenger. The Tribunal found the monthly income of the deceased to be Rs. 750/-. 1,200/- per month. However, since the owner had pleaded that the deceased was not the conductor, the Tribunal held that the deceased was a passenger. The Tribunal found the monthly income of the deceased to be Rs. 750/-. The learned Counsel for the appellant contended that it should have been held that the deceased was a conductor, whereas the learned Counsel for the insurance company (respondent No. 2) has contended that since the appellant has pleaded that the deceased was not a conductor, he is estopped from challenging the finding of the Tribunal. It. is true that the owner had denied the allegation of the claimant in M.J.C. No. 11 of 1989 that the deceased was the conductor. However, merely on the basis of such plea, the Tribunal should not have held that the deceased was a mere passenger. PW 1, the widow of the deceased, had stated in her evidence that her husband N. Narayana Rao was serving as a conductor-cum-cleaner in the bus. In her cross-examination by the owner, it was elicited that her husband was getting work for 15 days in a month. However, there is no suggestion that the deceased was not the conductor. Similarly, PW 2 who was admittedly travelling in the bus had deposed that the husband of N. Narsaiamma Rao (claimant in this case) was the conductor of the bus. There is no cross-examination by the owner on this aspect. The insurance company also has not cross-examined these witnesses at all. In other words, the unchallenged evidence of both the witnesses indicated that the deceased late N. Narayana Rao was the conductor of the bus. Since the claimant-respondent has not appeared, nor challenged the assessment of compensation by filing any independent appeal or cross-objection, the question of enhancing the amount awarded may not arise. However, since the deceased N. Narayana Rao has been found to be the conductor, the assessment of monthly income of Rs. 750/-cannot be said to be unreasonably high. Accordingly, taking the annual dependency to be Rs. 6,000/- and applying multiplier 15, as has been rightly done by the Tribunal, his assessment of Rs. 90,000/-does not appear to be high. 6. The Tribunal had directed that the insurance company was to pay a sum of Rs. 750/-cannot be said to be unreasonably high. Accordingly, taking the annual dependency to be Rs. 6,000/- and applying multiplier 15, as has been rightly done by the Tribunal, his assessment of Rs. 90,000/-does not appear to be high. 6. The Tribunal had directed that the insurance company was to pay a sum of Rs. 15,000/- considering the deceased to be a passenger of the bus and now that the deceased has been found to be a conductor of the bus, the question arises regarding the extent of liability of the insurance company. The learned Counsel appealing for the appellant submits that since a comprehensive policy was there, the entire liability should be met by the insurance company. He contended that since no issue had been framed, the parties had no scope to lead evidence on that score. He further contended that the insurer had not taken a specific stand regarding the limited liability. It is, therefore, contended that the matter may be remanded for fresh disposal. He has placed reliance upon the decision of the Supreme Court in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, in support of his contention that the insurer has to plead and prove regarding the limited liability. He has also placed reliance upon an unreported judgment of this Court in M.A. No. 87 of 1990, disposed of on 17.8.1993. In the decision in Jugal Kishore's case (supra), the Supreme Court deprecated the practice of insurance company not producing a copy of the policy. It was observed in the said case: ...We accordingly wish to emphasise 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.... The learned Counsel for the appellant is not correct in saying that in the present case the insurance company had not pleaded about its limited liability. In fact, the insurance company has produced the xerox copy of the certificate of insurance. The schedule of payment as indicated in the said document marked as Exh. A before the Tribunal indicates about the schedule of premium paid. From the said schedule it appears that Rs. 16/- had been paid for 'LL' which obviously meant 'limited liability' towards paid driver and/ or cleaner as per End. The schedule of payment as indicated in the said document marked as Exh. A before the Tribunal indicates about the schedule of premium paid. From the said schedule it appears that Rs. 16/- had been paid for 'LL' which obviously meant 'limited liability' towards paid driver and/ or cleaner as per End. IMT 16. From the aforesaid schedule of premium, it appears that the insurance company had covered the liability of the conductor. There is nothing to indicate that any unlimited liability in respect of the conductor had been undertaken. Thus, I am unable to accept the contention of the appellant that the entire liability should be borne by the insurance company. However, since limited liability in respect of the conductor had been taken, it must be concluded that the liability as required u/s 95(1) proviso (i)(b) had been undertaken. In other words, the liability of the insurance company was limited to the extent of compensation payable under the Workmen's Compensation Act. Keeping in view the relevant provision and the Schedule of the Workmen's Compensation Act in force at the relevant time, calculating the monthly wages to be Rs. 750/- and the age of the deceased to be 35 years, as found by the Tribunal, it is found that the insurance company is liable to cover the liability of the owner to an extent of Rs. 59,118. Therefore, to the above extent the award is required to be modified and out of the sum of Rs. 90,000/-, a sum of Rs. 59,118/- along with proportionate interest at the rate of 6 per cent from the date of filing the claim application may be paid by the insurance company and the balance amount of Rs. 30,882/- with proportionate interest at the rate of 6 per cent has to be paid by the appellant. The amount payable by the insurance company along with the proportionate interest may be kept in a fixed deposit for five years with provision for withdrawal of quarterly interest. The amount now found payable by the owner-appellant along with the proportionate interest be paid to the claimant-respondent immediately. 7. In the result, both the appeals are allowed in part to the extent indicated above. There will, however, be no order as to costs.