JUDGMENT 1. - The Civil Misc. Appeals No. 162/92 and 154/92 pertaining to Claim Case No. 104/92 vide judgment and Award dated 23-1-1992. 2. Civil Misc. Appeal No. 153/92 pertaining to Claim Case No. 105/91 vide judgment and Award dated 23-1-1992; and 3. Civil Misc. Appeal No. 370/96 pertaining to Claim Case No. 108/91 vide judgment and Award dated 24-5-1996 delivered by the Motor Accident Claims Tribunal, Rajsamand whereby the learned Tribunal awarded a sum of Rs. 1,75,000/- in Claim Case No. 104/91, Rs. 20,000/- in Claim Case No. 105/91 and Rs. 1,60,000/- in Claim Case No. 108/91 with interest in all the cases in favour of the respective claimants inclusive of the amounts awarded under No Fault Liability. These claim cases have arisen out of a single accident occurred on 7-3-88, therefore, all the related appeals were heard together and are disposed of by this common judgment. 4. The facts of the case as stated in the petitions, in nut-shell, are that on 7-3-88 at about 8.30 AM, claimants Kailash Chandra (aged 32 years), his wife Smt. Krishna and his son Munna were going to Bhilwara in Bus No. RSE 647. The bus was being driven by Gani Mohammed rashly and negligently, as a result of which, the accident took place near 'Sure Ka Ghata' of village Jaswantpura Dist. Rajsamand. The bus over-turned in a 'ditch' whereby Smt. Krishna (aged 27 years old) and his son Munna (aged 4 years old) died in the accident on the spot due to severe injuries. She was a partner of Krishna Trading Company and was earning Rs. 1500/- per month. The claim petition was filed by her husband Kailash Chandra and minor son and daughter stating that due to her death, they suffered loss of income and mental shock. In the claim petition No. 104/91, the claimants claimed compensation of Rs. 5,33,000/- under various heads. 5. A separate claim case No. 105/91, was filed by Kailash Chandra and others for the death of his minor son Munna, aged 4 years in the same accident. It was stated that due to untimely death, the claimant has been deprived of the future earnings of his son and also suffered mental pain. The compensation of Rs. 1,20,000/- was claimed in the petition. 6. It was stated that due to untimely death, the claimant has been deprived of the future earnings of his son and also suffered mental pain. The compensation of Rs. 1,20,000/- was claimed in the petition. 6. A claim Case No. 108/91, was filed by the injured-claimant Ghewar Chand who was going from Beawar to Asind in the same Bus No. RSE 647. Ghewar Chand received injuries on the right side of the head, right knee and on hands. It was stated that at the time of accident, he was 45 years of age and his monthly income was Rs. 3000/-. It was further stated that due to accident, he sustained multiple injuries resulting into paralysis of leg, and hand. He cannot walk or talk. He suffered loss of income, therefore, he filed a claim petition for awarding of compensation of Rs. 6,60,000/- in his favour. 7. In the replies filed in Claim Case No. 104 and 105 of 1991 on behalf of the owner of the bus, it was denied that Smt. Krishna was 27 years old and was earning Rs. 1500/ - per month. The facts stated in the claim case No. 105/91 were also denied. It was stated that the accident cannot be attributed to rash and negligent driving of the bus but the driver lost control of the bus to circumstances of heavy traffic and a turn on the spot which were beyond his control, therefore, he cannot be made responsible for compensation. It was also stated that at the time of accident, the bus was insured hence if any liability of compensation created the insurance company would be liable. 8. In reply to the claim petition No. 104/ 91, and 105/91, the non-claimant-National Insurance Company Limited denied the fact that Smt. Krishna was aged 27 years old, was a partner of the Firm Krishna Trading Company and that she was earning Rs. 1500/- per month. The facts stated in Claim Case No. 105/91 were also denied. It was also stated that the bus No. RSE 647 was insured with the Insurance Company and the policy stood in the name of Saraswati Bus Service, Beawar and not in the name of Darshan Singh. 1500/- per month. The facts stated in Claim Case No. 105/91 were also denied. It was also stated that the bus No. RSE 647 was insured with the Insurance Company and the policy stood in the name of Saraswati Bus Service, Beawar and not in the name of Darshan Singh. It was further stated that according to the terms and conditions of the Insurance Policy, there was limited responsibility of Insurance Company under the provisions of Section 95 (2)(b)(ii) of the M.V. Act, and the maximum limit was upto Rs. 15,000/- per passenger. 9. In reply to the Claim Petition No. 108 of 1991, the owner of the bus Darshan Singh stated that the claimant Ghewarchand was engaged in the ordinary trade of grocery and his monthly income was not more than Rs. 500/- further he did not suffer and disability. The accident happened due to circumstances beyond the control of the driver of the bus as such he was not responsible for any damages. It was also alleged that the bus was insured at the time of accident, therefore, if any liability with regard to compensation arose then the insurance company would be responsible. The insurance company also denied the allegations made against them and stated that as per the terms and conditions of the policy, the liability of the Company was limited upto the maximum limit of Rs. 15,000/- only. 10. On the pleadings of the parties, the learned Tribunal framed the issues in each case. Issue No. 1 was with regard to rash and negligent driving of the Bus No. RSE 647 whereby the accident was alleged to be caused, issue No. 2 was with regard to the quantum of compensation awardable if any and issue No. 3 was framed with regard to the plea of payment of liability of the Insurance Company. Vide order dated 28-9-89. Claim Cases No. 104/91 and 105/91 were consolidated and evidence was taken in claim case No. 104/91. 11. During trial, in Claim Cases No. 104/ 91 and 105/91 claimant Kailash Chandra examined himself as AW.1 and Ved Prakash was examined as AW-1. Documents Ex.1 FIR, Ex.2 Parcha Kaymi Mukadma dated 7-3-88, Ex. 3 Seizure Memo of Bus, Ex.4 Site plan, Ex.5 Post-mortem Report, Ex.6 Panchayatname Lash, Ex.9 Sale Certificate Ex. 10 Last Tax Settlement Order were produced. In defence, DW-1 Rakesh Suthwal was examined on behalf of the Insurance Company. Documents Ex.1 FIR, Ex.2 Parcha Kaymi Mukadma dated 7-3-88, Ex. 3 Seizure Memo of Bus, Ex.4 Site plan, Ex.5 Post-mortem Report, Ex.6 Panchayatname Lash, Ex.9 Sale Certificate Ex. 10 Last Tax Settlement Order were produced. In defence, DW-1 Rakesh Suthwal was examined on behalf of the Insurance Company. Document Ex.D/ 1 Insurance Policy was produced. In Claim Case No. 108/91 Smt. Kamla Devi examined herself as AW 1 and Samarth Singh was examined as AW 2. The Documents were produced and got exhibited, defence DW 1 Rakesh Suthwal was examined on behalf of Insurance Company and NAW No. 1 Suresh Kumar was examined on behalf of the Bus-owner. The documents were produced and got exhibited. 12. As the claim cases No. 104 and 105 of 1991 were filed by the same claimants, the learned Tribunal decided both the cases by common judgment and Award dated 23-1-1992. The learned Tribunal held that the accident was caused due to rash and negligent driving of the bus resulting into the death of Smt. Krishna and Master Munna in the accident. After discussing the material on record, awarded compensation in Claim Case No. 104/91 to the sum of Rs. 1,75,000/- and in Claim Case No. 105/91 a sum of Rs. 20,000/-. The learned Tribunal further held that the Insurance Company was not able to prove their stand of limited liability upto Rs. 15,000/-. Thus, the Insurance Company was also made responsible for the payment of compensation along with interest @ 15% per annum from the date of application to the claimants. The learned Tribunal further awarded compensation in Claim Case No. 108/91 vide judgment and award dated 24-5-96 to the sum of Rs. 1,60,000/- along with interest @ 10% per annum from the date of filing of the claim application. The learned Tribunal further held that the liability of the Insurance Company to pay compensation was up to Rs. 15,000/-. 13. Being aggrieved by the judgments and Award dated 23-1-92 passed in Claim Case No. 104/91 and 105/91 the owner of the bus and the Insurance Company filed appeals. The owner of the bus also filed an appeal against the judgment and Award Case No. 108 of 1991. The claimant filed cross-objection in this appeal. 14. I have heard the learned counsel for the parties and perused the record of the claim cases. 15. The owner of the bus also filed an appeal against the judgment and Award Case No. 108 of 1991. The claimant filed cross-objection in this appeal. 14. I have heard the learned counsel for the parties and perused the record of the claim cases. 15. During the course of argument in Appeal No. 162 of 1992, mainly it was contended by the learned counsel for the appellant that the compensation awarded by the learned Tribunal was excessive. It was argued that income of the deceased Smt. Krishna has not been proved but the learned Tribunal has assessed the loss of income Rs. 1,50,000/- without basis. It was also disputed that the learned Tribunal has also awarded 15% per annum interest. The learned counsel also urgued that the compensation awarded in respect of death of a boy of 4 years old is excessive. It was contended that the amounts of compensation ware not sustainable. They may be quashed and set aside. The learned counsel for the appellant placed reliance on U.P. State Road Transport Corporation v. Trilok Chandra, reported in 1996 ACJ (SC) 831 , in support of his contentions. 16. The learned counsel for the Insurance Company with regard to Appeals No. 154/92 and 153/92 submitted that the learned Tribunal has totally ignored the provisions of Section 95 of the M.V. Act and gave an erroneous finding with regard to payment of compensation amounts. It was urged that both the deceased Smt. Krishna and Munna were travelling in the bus. In that case, the maximum responsibility of the Insurance Company can be determined upto Rs. 15,000/- per passenger. It was also contended that the Insurance Policy Ex.D/1 was admitted by then learned counsel for the claimants, still, the learned Tribunal has not considered this important fact and made responsible Insurance Company for the whole payment of compensation to the claimants. The rate of interest awarded by the learned Tribunal was also agitated, that was said to be illegal and prayed to be set aside. The learned counsel for the claimants supported the judgments and Awards of the learned Tribunal. 17. I have considered the contentions raised by the learned counsel for the parties and have carefully gone through the judgments and Awards passed in Claim Cases No. 104/91 and 105/91 and perused the authorities cited by the learned counsel for the appellant Darshan Singh. 18. 17. I have considered the contentions raised by the learned counsel for the parties and have carefully gone through the judgments and Awards passed in Claim Cases No. 104/91 and 105/91 and perused the authorities cited by the learned counsel for the appellant Darshan Singh. 18. The learned Tribunal on the basis of the material available on record came to the conclusion that the accident occurred due to rash and negligent driving of the bus No. RSE 647. In this respect along with the statement of claimant Kailash Chandra, statement of AW 2 Ved Prakash, who was also travelling in the same bus, is on record. They have stated how accident occurred and there was no rebuttal from the side of the appellant neither the driver of the bus nor any witness in this respect has been produced from the opposite side. In this way, the finding of the learned Tribunal is to be maintained. During the course of argument also, nothing was said about this issue. 19. With regard to the quantum of compensation, the contentions were raised that it was excessive. It has been stated by the claimant that his wife was a partner of the firm M/s Krishna Trading Company and she was earning Rs. 1500/- per month. Documentary evidence was also produced in this respect before the learned Tribunal that also support the contentions. The age of the deceased was 27 years old has not been rebutted. The learned Tribunal, on the basis of the material, on record, looking to the age of the deceased awarded loss of income to the claimants Rs. 1,50,000/- and loss of company of wife and mental shock Rs. 25,000/- total Rs. 1,75,000/-. The deceased Smt. Krishna was an earning member and she was maintaining the family. The learned Tribunal assessed the loss of income Rs. 1000/- per month even on that basis after deducting 1 /3rd of income for personal use and taking the multiplier of 18, the amount of compensation comes out 1,44,072/- (667 x 12 x 18) and the learned Tribunal has assessed the loss of income Rs. 1,50,000/- . In this way, the authority cited by the learned counsel for the appellant does not support his contentions. In my opinion, this amount of compensation cannot be said to be excessive. Likewise, with regard to the death of Munna, the learned Tribunal has awarded amount of Rs. 1,50,000/- . In this way, the authority cited by the learned counsel for the appellant does not support his contentions. In my opinion, this amount of compensation cannot be said to be excessive. Likewise, with regard to the death of Munna, the learned Tribunal has awarded amount of Rs. 20,000/- for mental shock and suffering. Looking to the finding of the learned Tribunal with regard to the awarded amount is not excessive and deserves to be maintained. The learned Tribunal further awarded interest @ 15% p.a. to that extent it requires modification and instead of that 12% per annum will be suitable. 20. I have carefully considered the contentions of the Insurance Company. It was contended that the Policy was admitted by the then learned counsel for the party, therefore, it was not necessary to prove the policy but from the record, it is revealed that the Insurance Company has produced DW 1 Rakesh to prove the policy. In this way admission made on the policy by the then advocate was not of any Importance and later on, the counsel was changed. The burden of proving this issue that their liability was limited on the insurance Company but they have failed to prove. The statement of Rakesh is not supporting the contentions placed by the Insurance Company. He has stated that "The Policy Ex.D/ 1 was prepared with the help of carbon copy. The duplicate policy has been issued on the basis of carbon copy. Today I have not brought the said carbon copy of the policy. It is correct to state that we did not give notice to the insured person to produce the original policy in the Court". In this way, the Insurance Company failed to prove the terms and conditions of the policy before the learned Tribunal. The learned Tribunal has dealt with this issue and conclusion drawn by the learned Tribunal is not perverse and does not suffer from any infirmity. The authority cited by the learned counsel for the insurance Company 1995 ACJ 200: (1995 AIHC 1536), Oriental Insurance Company v. Verda Ram does not help his contentions. On the contrary, the authority cited by the learned counsel for the appellant, (2001) 1 ACJ 435 (Cal) is more relevant. Thus, the contentions of the Insurance Company are having no legal force. On the contrary, the authority cited by the learned counsel for the appellant, (2001) 1 ACJ 435 (Cal) is more relevant. Thus, the contentions of the Insurance Company are having no legal force. With change of the rate of interest, the judgments and Awards passed in Claim Cases No. 104 and 105 of 1991 are to be maintained. Rest of the contemns of the learned counsel for the appellant are liable to be rejected. 21. I have considered the contentions raised by the learned counsel for the appellant-owner of the Bus in respect of Appeal No. 370/96. It was mainly contended that the learned Tribunal while the responsibility of payment of compensation amount has committed grave error in fixing the limited liability of Insurance Company upto Rs. 15,000/-. It was urged that the burden of proving this issue was on the Insurance Company but have totally failed to prove this issue, the Insurance Policy was not produced. The terms and conditions were not proved. The material terms were not mentioned in the copy produced by the party, still, the learned Tribunal decided this issue in favour of the Insurance Company. In support of his contentions, the learned counsel for the appellant placed reliance on the authority cited in 2001 ACJ 435 . It was further argued that with reference to same Accident in Claim Cases No. 104/91 and 105/91, the learned Tribunal has decided the responsibility of the Insurance Company to the full extent, but in Claim Case No. 108/91, the learned Tribunal has taken a different view without any basis. It was also contended that the amount of compensation awarded was excessive. It was prayed that the judgment and Award is not maintainable and may be set aside. 22. The learned counsel for the Insurance Company supported the judgments and Awards passed by the learned Tribunal. The learned counsel for the claimants argued that the compensation awarded by the learned Tribunal is not adequate. While supporting his cross-objection, he prayed for enhancement of the amount of compensation. It was further contended that due to accident, the claimant became permanently disable. His disability has been certified by the doctor upto 80%. He has to remain dependent on others. It was also submitted that he suffered heavy loss of income and mental shock. While supporting his cross-objection, he prayed for enhancement of the amount of compensation. It was further contended that due to accident, the claimant became permanently disable. His disability has been certified by the doctor upto 80%. He has to remain dependent on others. It was also submitted that he suffered heavy loss of income and mental shock. It was also stated that the learned Tribunal awarded 10% per annum interest it should be atleast 12% per annum. 23. I have considered the rival conten tions raised by the parties and the submissions made in respect of cross-objection by the claimant. The finding of the learned Tribunal on issue that the accident took place due to rash and negligent driving of the bus is based on the material available on record. From the side of the claimant P W 2 Samarth Singh has been.produced. He was also travelling in the same bus and he has stated how the accident occurred. From the record, it revealed that if the driver of the bus would have taken proper precautions, the accident could have been avoided. There is no rebuttal from other side. This fact was not disputed by the claimant during the course of argument. Thus, the finding is to be maintained. From the side of the claimant, the documentary evidence has been produced. The wife of the claimant AW 1 Smt. Kamla Devi stated that her husband suffered severe injuries in accident. From the record, it is revealed that the claimant suffered permanent disability. T:ie claimant cannot move freely and cannot speak freely. He suffered from paralysis of leg and hand. AW 1 Smt. Kamla further stated that her husband was earning Rs. 3000/- per month and was maintaining the family. Due to accident, he became incapable. At the time of accident, he was 45 years old. The learned Tribunal, on the basis of the material, assessed the loss of income Rs. 1,00,000/- and under the other heads of compensation. Rs. 10,000/- for medicine and further treatment, Rs. 40.000/- for mental shock and suffering Rs. 10,000/- for other like losses Total Rs. 1,60,000/-. Looking to the total material available on record and the injuries sustained by him in accident, the total compensation calculated by the learned Tribunal is not excessive. The contentions of the appellant in this respect are having no force. 40.000/- for mental shock and suffering Rs. 10,000/- for other like losses Total Rs. 1,60,000/-. Looking to the total material available on record and the injuries sustained by him in accident, the total compensation calculated by the learned Tribunal is not excessive. The contentions of the appellant in this respect are having no force. I have also considered the contentions made in respect of cross-objection by the claimant and the compensation awarded by the learned Tribunal, I do not find any scope to enhance the compensation. Looking to the age of the claimant and other material on record, the compensation calculated by the learned Tribunal is just and reasonable. The contentions of the claimant are hereby rejected. 24. The learned Tribunal further held the liability of the Insurance Company upto Rs. 15,000/- only. The burden of proving this issue was on the Insurance Company, the terms and conditions of the policy have not been admitted by the owner of the bus-appellant. The Insurance Company produced DW 1 Rakesh Suthwal. In evidence, a carbon copy of the policy has been placed. The original policy was not produced. The material terms with regard to limited liability were lying blank. In my opinion, the terms and conditions of the policy have not been proved. DW 1 Rakesh Suthwal, in his statement, stated that "I have not brought the Policy Register with me. It is correct that there is no reference of limited liability of Rs. 15,000/-." Merely on the basis of charges received by the Insurance Company, the issue of limited liability of Insurance Company can be deemed to be proved. The authority cited by the learned counsel for the Insurance Company 1995 ACJ 200: (1995 AIHC 1536) (Raj) does not help the contentions. In this respect, the learned counsel for the appellant also cited the authority 2001 ACJ 435 is relevant. In that authority, it was held that the terms and conditions of the policy have to be proved. In this way, the contentions of the appellant are accepted and the finding of the learned Tribunal in this respect is liable to be quashed and set aside and further it is held that the owner of the bus and the Insurance Company both jointly and severally will be responsible for the payment of compensation amount with interest as determined by the learned Tribunal. With these modification, judgment and Award of the learned Tribunal is maintained. 25. In the result, Appeal Nos. 162/92, 154/92 and 153/92 filed by the owner as well as Insurance Company are partly allowed only to the extent of rate of interest in place of 15% per annum, it is modified to 12% per annum. The rest of the contentions are hereby disallowed. 26. With the above modifications, the judgments and Awards passed by the learned Tribunal are affirmed. Appeal No. 370/96 filed by the owner of the Bus No. RSE 647 is partly allowed with this modification that the owner and Insurance Company are jointly and severally responsible for the payment of compensation amount to the claimants as determined by the learned Tribunal. The cross-objections filed by the claimants are hereby rejected. 27. With the above modifications, the judgment and Award dated 24-5-1992 passed in Claim Cases No. 108 of 1991 is hereby affirmed. No order as to cost.Order accordingly. *******