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2018 DIGILAW 349 (CAL)

National Insurance Company Ltd. v. Shrabani Roy

2018-05-04

DIPANKAR DATTA, PROTIK PRAKASH BANERJEE

body2018
JUDGMENT : Dipankar Datta, J. 1. A member of the armed forces (hereafter the victim) lost his life in a motor vehicular accident on June 18, 2011, near his home town, while he was driving a motor cycle. A collision of the motor cycle with a Maruti Swift (hereafter the offending vehicle) coming from the opposite direction led to the victim being thrown off and suffer multiple injuries. For treatment, the local people shifted the victim to a nearby hospital. Ultimately, the victim succumbed to such multiple injuries. At the time of his death, the victim was 34 years old and had a monthly income of Rs. 22,364/-. He left behind him his widow, a minor son of 7 (seven) years and his mother. The widow of the victim was also at an advanced stage of pregnancy, when she lost her life-partner. 2. On August 5, 2011, the widow, minor son and mother of the victim (hereafter the claimants) approached the relevant motor accident claims tribunal (hereafter the tribunal) under section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) by presenting an application in the form prescribed by the West Bengal Motor Vehicles Rules, 1989 (hereafter the WBMV Rules) being Form COMP A. It was alleged therein that rash and negligent driving of the offending vehicle caused the accident and, therefore, the claimants prayed for compensation in a sum of Rs. 50,00,000/- plus interest and costs. 3. Form COMP A does not require any individual/entity to be impleaded as a respondent/opposite party in the claim application and hence there was no formal impleadment of the owner of the offending vehicle or its insurer as respondents/opposite parties. However, their respective particulars were mentioned against Sl. Nos. 16 and 17 of the claim application. 4. The tribunal treated the owner of the offending vehicle as opposite party No. 1 (hereafter the owner) and the insurer of the offending vehicle as the opposite party No. 2 (hereafter the insurance company) and issued notices. The owner, despite service, did not enter appearance and file her written statement; thus, the claim application proceeded ex parte against her. The insurance company upon notice being served, entered appearance, sought for leave under section 170 of the Act which was granted and filed a written statement countering the claim application. It was denied that the victim died because of the accident involving the offending vehicle. The insurance company upon notice being served, entered appearance, sought for leave under section 170 of the Act which was granted and filed a written statement countering the claim application. It was denied that the victim died because of the accident involving the offending vehicle. However, that the offending vehicle had been insured by it was not denied by the insurance company. It had also reserved its right to file an additional written statement, if the need therefor arises, but did not ultimately exercise that right. 5. Interestingly, apart from the denials, no specific case was set up by the insurance company in such written statement that the victim himself was at fault leading to the accident and his consequent untimely death. This point would assume significance having regard to the discussions that follow. 6. To prove the claim, the claimants adduced three witnesses. The widow was PW-1, whereas PWs 2 and 3 claimed to be eye-witnesses. The insurance company prayed before the tribunal that the owner and the driver of the offending vehicle be summoned to appear and tender evidence. The prayer was granted at the risk of the insurance company and notices were sent by registered post. Although the owner stepped into the box as OPW-1 and deposed that she was travelling in the offending vehicle when the accident occurred, that the victim while driving his motor bike was talking on a mobile phone, and that it was entirely due to his negligence that the accident occurred resulting in his loss of life, the driver did not appear. Hearing was adjourned on a couple of occasions but ultimately on January 14, 2016, the insurance company declined to "adduce further evidence". 7. The tribunal had framed four issues. Upon consideration of the evidence on record, both oral and documentary, the tribunal rendered its award dated January 30, 2016 answering all the issues in the affirmative. Hearing was adjourned on a couple of occasions but ultimately on January 14, 2016, the insurance company declined to "adduce further evidence". 7. The tribunal had framed four issues. Upon consideration of the evidence on record, both oral and documentary, the tribunal rendered its award dated January 30, 2016 answering all the issues in the affirmative. It arrived at a finding that the claim application was maintainable, that the victim died as a result of the injuries sustained by him in the accident in question, that the offending vehicle was being driven in a rash and negligent manner by its driver leading to the accident which, ultimately, resulted in the victim suffering a premature death, and that the claimants were entitled to compensation to be borne by the insurance company since the offending vehicle was covered by a valid insurance policy. Accordingly, it proceeded to assess compensation and ordered the insurer to compensate the claimants in a sum of Rs. 45,51,004/- (inclusive of Rs. 15,00,000/- on account of the future prospects of the victim, Rs. 5,000/- on account of loss of consortium, Rs. 2,500/- on account of loss of estate and Rs. 2,000/- on account of funeral expenses) together with interest @ 6% p.a. from the date of presentation of the claim application within sixty days failing which interest @ 9% p.a. would accrue on the compensation from the date of presentation of the claim application till realization. The award also contained directions for apportionment of the said sum amongst the three claimants. The claim, thus, succeeded before the tribunal. 8. It is the said award dated January 30, 2016 that is under challenge before us in this appeal under section 173 of the Act at the instance of the insurance company. The claimants have filed a cross-objection. While hearing an application for stay of the insurance company and an application for withdrawal of the claimants, we heard the parties on the merits of the appeal and the cross-objection. The applications, the appeal and the cross-objection are proposed to be disposed of by this common judgment and order. 9. Mr. Bhowmik, learned advocate appearing for the appellant/insurance company contended that the tribunal committed gross error in returning a finding of rash and negligent driving of the offending vehicle being the cause of the accident which took away the life of the victim. 10. First, Mr. 9. Mr. Bhowmik, learned advocate appearing for the appellant/insurance company contended that the tribunal committed gross error in returning a finding of rash and negligent driving of the offending vehicle being the cause of the accident which took away the life of the victim. 10. First, Mr. Bhowmik referred to the cross-examination of PWs 2 and 3 to establish that though they could, at best, be held to have proved the accident, but the burden of proof of rash and negligent driving being the cause of the accident, which is a sine qua non for a claim under section 166 of the Act to succeed, was not discharged. Referring to the version of PW 2 in cross-examination, it was contended that he did not witness the accident but had only heard "the sound of accident" and later saw "that the accident occurred in between a motor cycle and Maruti Van". Inviting our attention to the cross-examination of PW 3, it was contended that although PW 3 stated to have witnessed the accident, he could not "say as to whose fault the accident occurred". According to him, this being the oral evidence of PWs 2 and 3, the tribunal could not have recorded the finding that "the oral testimony of P.W-2 and P.W-3 that they saw the accident cannot be disbelieved" and foist the liability of compensating the claimants on the insurance company. According to him, the tribunal's finding that rash and negligent driving of the offending vehicle being the cause of the accident is utterly perverse. The decision in Surinder Kumar Arora v. Dr. Manoj Bisla, reported in AIR 2012 SC 1918 , was relied on for the proposition that onus to prove rash and negligent driving by the driver of the offending vehicle by adducing cogent evidence was on the claimants which they failed to discharge and for such reason the claim application should have been rejected. 11. Secondly, it was argued by Mr. Bhowmik that the oral testimony of OPW 1, i.e. the owner, was inappropriately discarded from consideration by the tribunal. Referring to the version of the owner in the cross-examination, to which she was subjected by the insurance company, he contended that the victim himself was to be blamed for talking on the mobile phone while driving resulting in a head-on collision and it was not the driver of the offending vehicle who was at fault. Referring to the version of the owner in the cross-examination, to which she was subjected by the insurance company, he contended that the victim himself was to be blamed for talking on the mobile phone while driving resulting in a head-on collision and it was not the driver of the offending vehicle who was at fault. According to him, strict rules of pleadings are not applicable in enquiries conducted under section 166 read with section 168 of the Act and the tribunal by not relying on the oral evidence of the owner in the absence of "swearing affidavit as per provisions of C.P.C." totally misdirected itself. Reliance was placed by him on the decision in United India Insurance Company Limited v. Shila Datta [ (2011) 10 SCC 509 ]. 12. It was further contended by Mr. Bhowmik that the claim application ought to have been rejected by the tribunal on the ground that the driver of the offending vehicle had not been arrayed as a respondent/opposite party although he was a necessary party. According to him, the driver was in the best position to explain how the accident occurred but in his absence and particularly in view of the oral testimony of PWs 2 and 3, rash and negligent driving of the offending vehicle being the cause of the accident could not have been said to be proved. In this regard, it was also his contention that the scheme of Chapter XII of the Act as well as Chapter X of the WBMV Rules was not appreciated in the proper perspective by the tribunal. To impress upon us that the driver was a necessary party and in his absence the claim application ought not to have been decided, the decisions in Oriental Insurance Co. Ltd. v. Meena Variyal [ AIR 2007 SC 1609 ], Machindranath Kernath Kasar v. D.S. Mylarappa [ AIR 2008 SC 2545 ] and Shila Datta (supra) were placed for our consideration. 13. The fourth contention of Mr. Bhowmik was that no adverse order and/or finding could have been made and/or returned by the tribunal against a necessary party in his absence and the entire exercise of holding the driver of the offending vehicle, who is primarily liable, to be rash and negligent while driving, violated the principles of natural justice. 14. Next, Mr. Bhowmik was that no adverse order and/or finding could have been made and/or returned by the tribunal against a necessary party in his absence and the entire exercise of holding the driver of the offending vehicle, who is primarily liable, to be rash and negligent while driving, violated the principles of natural justice. 14. Next, Mr. Bhowmik argued without prejudice to his earlier contentions that even if the driver of the offending vehicle were held not to have exercised due diligence, the tribunal clearly fell in error in not appreciating the factor of contributory negligence of the victim. Relying once again on the deposition of OPW 1, it was contended that the victim had no business to talk on his mobile phone while driving and by his own negligence having contributed to his untimely death, the entire quantum of compensation awarded ought not to have been directed to be borne by the insurance company. 15. Finally, Mr. Bhowmik attacked the determination of compensation made by the tribunal. According to him, the tribunal awarded Rs. 15,00,000/- on account of future prospect without there being any legal basis therefor. He also contended, referring to the table in paragraph 40 of the decision in Sarla Verma v. Delhi Transport Corporation [ (2009) 6 SCC 121 ], that the tribunal having regard to the age of the victim erroneously selected the multiplier of 17 instead of 16. He, therefore, urged us to re-assess compensation payable to the claimants, if at all his other contentions do not appeal to us to be worthy of interference with the award under challenge. 16. Mr. Bhowmik, in fine, prayed that the appeal be allowed by setting aside the impugned award, or in the alternative, it be suitably modified. 17. Appearing for the claimants, Mr. Banik, learned advocate contended that the insurance company in its attempt to evade liability has carried the award in appeal without raising any ground worthy of acceptance and hence the appeal warranted outright rejection. 18. Inviting our attention to the written statement filed by the insurance company before the tribunal, Mr. Banik endeavoured to impress upon us the total absence of the plea of rash and negligent driving by the victim as well as contributory negligence. 18. Inviting our attention to the written statement filed by the insurance company before the tribunal, Mr. Banik endeavoured to impress upon us the total absence of the plea of rash and negligent driving by the victim as well as contributory negligence. It was contended that the point of non-joinder was pleaded in a very casual manner in the written statement without reference to any party whose presence, according to the insurance company, was necessary and in whose absence the claim application could not have been decided. He also contended that such point was not pressed at the time of hearing. According to him, the appeal of the insurance company merits dismissal bearing in mind the lacunae pointed out by him. 19. Secondly, Mr. Banik argued that from the materials on record the accident between the motor cycle and the offending vehicle was clearly established and it was through the version of PWs 2 and 3 that the claimants sought to establish who was at fault. A submission was made that if the versions of the PWs 2 and 3 were not credit worthy to arrive at a conclusion who was at fault, the principle of res ipsa loquitur out to be applied. It was shown from the records that the insurance company obtained the leave under section 170 of the Act to raise all defences which it was permissible for the owner of the vehicle to raise, yet, appropriate defence was not raised. Not only that, the insurance company prayed for a direction from the tribunal to summon the driver but ultimately declined to take the process to its logical conclusion. The driver being the best witness to explain how the accident occurred (the other party to the accident having died), the insurance company did not discharge the onus required of it. Relying on the decisions in Pushpabai Purushottam Udeshi v. M/s. Ranjit Ginning and Pressing Co. [AIR 1977 SC 1785], Basthi Masim Sahem (Dead) by Legal Reps v. Mysore State Road Transport Corporation [1991 (1) TAC 715], Krishna Bus Service Ltd. v. Smt. Mangli [1976 ACJ 184] and Jamshed Ali v. United India Insurance Co. Ltd. [III (2017) ACC 258 (Cal)], Mr. [AIR 1977 SC 1785], Basthi Masim Sahem (Dead) by Legal Reps v. Mysore State Road Transport Corporation [1991 (1) TAC 715], Krishna Bus Service Ltd. v. Smt. Mangli [1976 ACJ 184] and Jamshed Ali v. United India Insurance Co. Ltd. [III (2017) ACC 258 (Cal)], Mr. Banik contended that it was sufficient for the claimants to prove the accident and nothing more and it was for the insurance company to establish that the accident happened due to some other reason than the own negligence of the driver/owner of the offending vehicle. Since no such explanation is forthcoming, the insurance company failed to show that the driver was not negligent and considering that the motor cycle was involved in an accident with a bigger vehicle, based on preponderance of probabilities it ought to be held that the accident did not happen in a manner owing to the negligence of the victim. Inspiration was sought to be drawn from the decision in Kumari Kiran v. Sajjan Singh & ors. [2014 (4) TAC 684 (SC)] in this regard. The decision in Yerramma v. G. Krishnamurthy [ 2014 ACJ 2161 ] was further placed to drive home the point that based on the materials on record, particularly in view of the driver abstaining from tendering evidence, it ought to be held that the accident was caused on account of negligence of the driver of the offending vehicle. The decision in Minu Routh v. Satya Praddyumna Mahapatra [ 2013 ACJ 2544 ] was relied on for the proposition that the insurer having contested the proceedings by availing the defence that the owner could have raised but having chosen not to examine the driver of the offending vehicle, it ought to be held that the driver of the offending vehicle was solely responsible for the accident and there was no contributory negligence of the victim. 20. Repelling the contention of Mr. Bhowmik that the proceedings should fail only on the ground that the driver of the offending vehicle was not a necessary party, Mr. Banik took pains to take us through the scheme of the WBMV Rules and contended that insofar as claim applications filed thereunder are concerned, law does not require the driver of a vehicle causing the accident to be made a party in the proceedings. Banik took pains to take us through the scheme of the WBMV Rules and contended that insofar as claim applications filed thereunder are concerned, law does not require the driver of a vehicle causing the accident to be made a party in the proceedings. The decisions in Vaddepalli Rajesham v. A.P. S.R.T. Corporation [2002 (2) TAC 503 (AP)] and State of Maharashtra v. Golabi Sudha [1994 (2) TAC 340] were relied on for drawing support. 21. Additionally, it was contended by Mr. Banik that upon dismissal of the appeal, the cross-objection should be allowed bearing in mind the Constitution Bench decision in National Insurance Co. Ltd. v. Pranay Sethi [(2017) 6 WBLR (SC) 308]. Particularly, reliance was placed by him on the conclusions recorded in paragraph 61 thereof to contend that the claimants are entitled to higher amounts on account of future prospects of the victim, loss of estate, loss of consortium and funeral expenses. 22. We have learned advocates for the parties at sufficient length and perused the materials on record. 23. The points emerging for decision by us may now be summarized. They are: (i) Whether non-joinder of the driver of the offending vehicle as a party to the proceedings before the tribunal is fatal to the maintainability of the claim application presented by the claimants? (ii) Whether the victim was responsible for the accident and to what extent, if at all, is the testimony of the owner of the offending vehicle admissible in evidence? (iii) Whether rash and negligent driving of the offending vehicle causing the accident that took away the life of the victim was proved by the claimants? (iv) Whether the tribunal was justified in its determination of the compensation payable to the claimants? Point (i) 24. Treading an easy path to answer the first point is available to us, but we are inclined to tread the difficult path too. 25. The insurance company in its written statement had objected to the maintainability of the claim application on various grounds. One of them was that the claim application "is bad for non-joinder and mis-joinder of necessary party". However, it is found on perusal of the impugned award that objections to the maintainability of the claim application had not been pressed by the learned advocate representing the insurance company before the tribunal. One of them was that the claim application "is bad for non-joinder and mis-joinder of necessary party". However, it is found on perusal of the impugned award that objections to the maintainability of the claim application had not been pressed by the learned advocate representing the insurance company before the tribunal. It is noted that the tribunal found the claim application to be maintainable, even otherwise. In the memorandum of appeal, no ground has been urged that the tribunal was in error in recording that objections on the point of maintainability had not been pressed. Although law is well-settled that determination of compensation by a Claims Tribunal under the Act does not partake the character of an adversarial adjudication but is largely an inquisitorial exercise, the rules of procedure prescribed by the Code of Civil Procedure, as far as may be, are made applicable to proceedings before Claims Tribunals by rule 343 of the WBMV Rules. Defendants in a suit are those against whom any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions, is alleged to exist whether jointly, severally or in the alternative. A suit is not defeated merely by reason of non-joinder of a party, although non-joinder of a necessary party could be fatal. It is seen that the point of non-joinder was raised by the insurer but subsequently it was abandoned. Having waived the point of maintainability before the tribunal, we are of the view that it is too late in the day for the insurer to contend before us that the claim application ought to have been rejected for not impleading the driver of the offending vehicle as a respondent/opposite party. The decisions in Lakhi Choudhry v. Akloo Jha [16 C.W.N. 639] and Obhoy Govind v. Hurrychuran [I.L.R. 8 Cal 277] are authorities for the proposition that an objection as to non-joinder of parties cannot be taken for the first time in appeal. We may safely rely on the said decisions to negate Mr. Bhowmik's contention. 26. We, however, do not wish to rest our conclusion on point (i) (supra) based on the discussion in the preceding paragraph. We may safely rely on the said decisions to negate Mr. Bhowmik's contention. 26. We, however, do not wish to rest our conclusion on point (i) (supra) based on the discussion in the preceding paragraph. Since the point in question is of substantial importance and may arise in future cases in this State, we wish to embark upon a detailed exercise to answer it bearing in mind sections 165(1), 166(1) & (2), 168(1) and 170 of the Act as well as the rules contained in Chapter X of the WBMV Rules. 27. Section 166(1)[(a) to (d)] of the Act identifies at whose instance a claim application arising out of an accident of the nature specified in section 165(1) thereof would lie before a Claims Tribunal. Sub-section (2) of section 166, inter alia, provides that the claim application shall be in such form and contain such particulars as may be prescribed. Neither section speaks of any requirement to array the driver of the offending vehicle as a party to the proceedings. 28. Section 170 requires that if the person against whom the claim is made does not contest the claim or if there is any collusion between the person claiming and the one against whom the claim is made, the insurer who may be liable in respect of such claim shall be impleaded whereupon such insurer shall have the right to contest the claim on all the grounds that are available to the person against whom the claim has been made. Therefore, the identity of the person against whom the claim has been made must necessarily be inferred from the claim application itself that is presented by filling up the particulars in the prescribed form. If the tribunal finds either of the two clauses referred to in section 170 to be satisfied, leave would follow as a matter of course if sought for by the insurer. 29. If the tribunal finds either of the two clauses referred to in section 170 to be satisfied, leave would follow as a matter of course if sought for by the insurer. 29. Section 168(1) ordains the Claims Tribunal (i) to serve notice on the insurer, (ii) hold an inquiry into the claim after extending opportunity of hearing to all the parties (including the insurer), (iii) determine the amount of compensation which appears to it to be just, (iv) specify the person/persons to whom the compensation shall be paid and (v) also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. 30. So read, section 168 of the Act is not a provision throwing light on who should be made respondent/opposite party in proceedings before a Claims Tribunal. Section 168 mainly governs 'the procedure' to be followed by a Claims Tribunal in determining a claim, upon ascertaining entitlement and fixing liability. 31. Based on our understanding of the relevant sections, we conclude that upon receipt of an application in the prescribed form, it is the duty of the tribunal to ascertain against whom the claim has been made. If the claim is against the owner on the principle of vicarious liability, the owner has to be put on notice. If claim has been made against the driver too, he too is entitled to notice. Should any of the clauses of section 170 be attracted, the insurer has to be put on notice. The insurer may be put on notice even if the claim is found to be contested by the person against whom claim has been made, to ensure fairness. Next, if the Claims Tribunal on appreciation and analysis of the evidence before it directs compensation to be paid by the insurer, the owner and the driver jointly, it must as a pre-condition extend opportunity of hearing to all of them notwithstanding that the driver may not have been arrayed as respondent/opposite party. If compensation is determined to be payable by the insurer only, which by reason of the indemnity clause in the insurance policy issued by it covering the vehicle involved in the accident owned by the insured is found liable, the insurer should also be heard prior to the determination. If compensation is determined to be payable by the insurer only, which by reason of the indemnity clause in the insurance policy issued by it covering the vehicle involved in the accident owned by the insured is found liable, the insurer should also be heard prior to the determination. Failure to hear the owner or the driver would not render the award of the Claims Tribunal vulnerable, in such a case, unless of course there is doubt as to how the accident had occurred which could best be explained by the driver. Should the owner be found vicariously liable and also that there is no valid insurance cover, the owner would obviously be liable but such determination must be preceded by granting hearing to him. In such an eventuality, necessity to hear the driver may not be imperative in all cases. Extending opportunity of hearing to the driver is a procedural safeguard to be followed in every case wherein such driver, to the exclusion of the owner and the insurer, is ultimately found liable to pay compensation. 32. We are conscious that the summary of our understanding of section 166 read with section 168 could be viewed as inconsistent with what the Supreme Court has laid down in Meena Variyal (supra), Machindra Kernath Kasar (supra) and Shila Datta (supra). However, it has to be remembered that rules framed by State Governments under section 176 of the Act are not uniform and with utmost respect, we say that the aforesaid decisions not having been rendered on consideration of the WBMV Rules, are not authorities that can safely be relied upon and followed for motor accident claim cases arising upon invocation of the WBMV Rules. 33. At this stage, it would be useful to refer to some of the provisions in the WBMV Rules, which were not under consideration in Meena Variyal (supra), Machindra Kernath Kasar (supra) and Shila Datta (supra). In our view, such provisions have a bearing on our thought process not to blindly follow what is laid down in the said decisions. In fact, Meena Variyal (supra) reminds us that "mere going by some decision or other, without appreciating the facts in a given case, in the light of the law, if any, declared by this court, does not lead a court or tribunal to a correct conclusion in the normal course". 34. In fact, Meena Variyal (supra) reminds us that "mere going by some decision or other, without appreciating the facts in a given case, in the light of the law, if any, declared by this court, does not lead a court or tribunal to a correct conclusion in the normal course". 34. The relevant provisions of the WBMV Rules are quoted below: 334. Notice to the parties involved. - (1) If the application is not dismissed under rule 333 of these rules, the Claims Tribunal shall, on an application made to it by the applicant, send to the owner or the driver of the vehicle or from whom the applicant claims relief and to the Insurer a copy of the application, together with the notice of the date on which it will dispose of the application and may call upon the parties to produce on that date any evidence which they wish to tender. (2) Where the application makes a claim for compensation under section 140 of the Act, the Claims Tribunal shall give notice to the owner and Insurer if any, of the vehicle involved in the accident directing them to appear on the date not later than 10 (ten) days from the date of issue of such notice. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claim application filed by the claimant. The Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date, the Tribunal shall proceed ex parte on the presumption that they have not contention to make against the award of compensation. 338. Judgment and award of compensation. - (1) The Claims Tribunal in passing orders, shall record concisely in a judgment the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and also the person or persons to whom compensation shall be paid. (2) Where Compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them. (underlining for emphasis by us) 35. (2) Where Compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them. (underlining for emphasis by us) 35. In terms of rule 334, notice along with copy of the claim application is not required to be served on the driver in every case; it is only in such cases where relief is claimed against the driver that the Claims Tribunal is required to put him on notice. Also, as can be seen, rule 338 contemplates an award against the insurers and none else. It is, however, not the law that an award cannot be made making the owner and/or the driver liable. That an award could be made specifying compensation payable by the owner and/or the driver, in our opinion, has to be read into rule 338 to make it compatible with section 168. There is, however, no such apparent infirmity in rule 334 and it appears to be in sync with the text of section 168. 36. Thus, the position is clear that unless relief is claimed against the driver (not being the owner of the vehicle involved in the accident), law does not enjoin that in the absence of such driver no relief can be granted even against the owner or the insurer. 37. Let us now apply our conclusions here. That the offending vehicle was covered by a valid insurance policy issued by the insurance company in favour of the owner is not in dispute. The law on 'vicarious liability' is pretty well laid down and elaborate discussion in respect thereof is considered unnecessary. Suffice it to record that the owner of the offending vehicle having admitted in her evidence that on the fateful day the offending vehicle (owned by her) was being driven by the driver employed by her, she is vicariously liable for any act of negligence of her driver in the course of employment as such driver. The master is bound by the wrongful acts of his servant, performed in the course of employment. When it is so established that the owner is liable to pay compensation but it is also equally established that the insurer has agreed to indemnify the owner, the insurance company cannot escape liability on the specious ground that the driver was not arrayed as a respondent/opposite party. 38. When it is so established that the owner is liable to pay compensation but it is also equally established that the insurer has agreed to indemnify the owner, the insurance company cannot escape liability on the specious ground that the driver was not arrayed as a respondent/opposite party. 38. We, therefore, proceed to answer point (i) by holding that no claim having been raised against the driver of the offending vehicle and/or no relief having been claimed by the claimants against the driver thereof and there being no cessation of the owner's vicarious liability owing to omission of the claimants to array the driver as a respondent/opposite party, the claim application was well-nigh maintainable before the tribunal. Point (ii) 39. The written statement of the insurance company does not set up a case in defence that the victim himself was responsible for the accident and/or that the driver was diligent and had taken reasonable care, and not rash or negligent, while driving the offending vehicle. The owner of the offending vehicle having not filed any written statement either, there is absolutely no pleading of contributory negligence of the victim and/or lack of diligence of the driver, at least from the side of the insurance company and the owner. However, such defence appears to have surfaced for the first time from the testimony of the owner upon being summoned by the tribunal after acceptance of the prayer of the insurance company. 40. Shila Datta (supra) is an authority for the proposition that the rules of pleadings do not strictly apply as the claimant is required to apply in a form prescribed under the Act and in fact, there is no pleading at all where the proceedings are suo motu initiated by the Claims Tribunal. Does this immunity extend to a respondent/opposite party in the proceedings who chooses to obtain leave under section 170 of the Act to contest the claim on all available grounds, yet, fails or neglects to build up its case in defence either by setting up a case of contributory negligence or no lack of due diligence and reasonable care by the driver of the vehicle involved in the accident? We think not. We think not. Provisions in Chapter XII of the Act being beneficent legislation and it being permissible to file a claim application in a prescribed form or even for the Claims Tribunal to suo motu initiate proceedings, insistence on strict pleadings by the claimants might have the effect of defeating the object of award of compensation by the Claims Tribunal. That is the reason some amount of latitude is reserved for the claimants. However, when a party on the face of rule 334 permitting production of evidence coupled with absence of even a formal provision envisaging filing of written statement takes the opportunity to file such statement, the same latitude as is available to the claimants cannot be extended to it. We are ad idem with the decision of the coordinate Bench of this Court in Saheli Sarkar (supra) and are also of the considered opinion that the tribunal was right in discarding the testimony of the owner on the ground that her oral evidence was beyond the pleadings and hence could not have been looked into. 41. Even otherwise, the testimony of the owner has not appealed to us to be believable. It appears from the evidence on record that she is in her family way, more than half a century old, a resident of Kolkata and is a service-holder. She was allegedly travelling to Digha in the offending vehicle when the accident occurred. She said: "On the way of my journey when I crossed Nachinda Temple, then at a little distance a motor cycle was coming from the opposite direction and the driver of that motor cycle was talking through mobile phone and for that reason he dashed my car. Thereafter I left my car at the place of accident and returned back to Kolkata. Due to the accident my car was damaged. To get compensation for damage of the car I claimed before the Insurance Company. This is the photo copy of the claim intimation duly signed by me. (The signature of the witness on the claim intimation form is marked X for identification)". 42. In course of cross-examination by the insurer, she said: "I cannot produce any document to show that I was in the car at the time of accident. I did not file any complaint before the local police station just after the occurrence of the accident. 42. In course of cross-examination by the insurer, she said: "I cannot produce any document to show that I was in the car at the time of accident. I did not file any complaint before the local police station just after the occurrence of the accident. It is fact that in spite of knowing the fact that due to the accident the driver of the motor bike sustained injuries I did not inform the local police station and I returned back to my house at Kolkata. Thereafter I met with the police at Marishda police station. I did not produce any document to the police at Marisda P.S to show that I was in the car at the time of accident. I know that a case was filed due to that accident and my driver was accused in that case. I also know that C.s has been submitted by the I.O. I am not a witness in that case... The said accident took place on 18.06.2011. I have filed claim application in the month of August, 2011. The name of my driver was Jamal Punjab Asraf. The middle portion of the body of the claim intimation form was written by one person and the lower part of the said form has been written by my husband.*** " 43. Digha is a popular tourist destination in West Bengal. It is highly unlikely that a 53 years old lady would visit Digha alone. She did not say that anyone from her family or otherwise was accompanying her. However, for the sake of argument, we shall accept that she was travelling alone and had witnessed the accident. As the registered owner of the offending vehicle, she was definitely a 'person in charge of the vehicle' as referred to in section 134 of the Act. In such capacity, it was her duty [as per clause (a), section 134] to take reasonable steps for securing medical attention for the victim. She did not do so. She also did not speak of any mob-fury or any other reason beyond control scuttling her intention to secure such medical attention for the victim. It is difficult to believe that in such a situation the owner had the scope to flee leaving the driver to fend for himself. She did not do so. She also did not speak of any mob-fury or any other reason beyond control scuttling her intention to secure such medical attention for the victim. It is difficult to believe that in such a situation the owner had the scope to flee leaving the driver to fend for himself. Again, assuming that reasons beyond her control prevented her from securing medical attention for the victim and she could somehow flee the accident spot, there is no cogent evidence on record that the owner did report, as required by clause (b), section 134, the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a) thereof, within twenty-four hours of the occurrence to the nearest police station. No light was also shed by her why she fled from the site of accident, how she proceeded to Kolkata, and the time period within which she informed the police of the occurrence. There are 3 (three) seizure lists in the records. The offending vehicle and the motor cycle were seized on the date of the accident, i.e. June 18, 2011, by the police. The papers relating to the offending vehicle were seized on July 4, 2011, when the owner produced it at the police station. The remaining seizure list pertains to seizure of the documents in respect of the motor cycle. It is, therefore, clear that the owner did not comply with the mandate of section 134 of the Act. That intimation was lodged with the insurance company two months after the accident and that too without giving particulars of the date, time and place of accident, which is apparent from the claim intimation form, is also significant. Taking an overall view of the matter, preponderance of probability is that that the owner was not travelling in the offending vehicle when it was involved in the accident and she is not an eye-witness of the accident. Her version of the circumstances related to the accident not having satisfied us, we hold it to be wholly unreliable. 44. We, therefore, see no reason to uphold the contention of Mr. Bhowmik that based on the version of the owner, the victim himself had to be blamed for the accident. Point (iii) 45. We are in agreement with Mr. Her version of the circumstances related to the accident not having satisfied us, we hold it to be wholly unreliable. 44. We, therefore, see no reason to uphold the contention of Mr. Bhowmik that based on the version of the owner, the victim himself had to be blamed for the accident. Point (iii) 45. We are in agreement with Mr. Bhowmik that the version of PW 2 should not impress us to hold that he is an eye-witness and based on the versions of such witness and PW 3 in course of cross-examination, no finding should be recorded that the offending vehicle was being driven rashly and negligently by its driver. At best, PW 2 is a post occurrence witness while PW 3 could not say exactly who was at fault between the victim and the driver of the offending vehicle. 46. In such circumstances, it was the driver of the offending vehicle who could have led the best evidence. Since determination of compensation under section 168 of the Act is to be preceded by an inquiry by the tribunal, in the fitness of things the tribunal could have taken steps in accordance with law for securing the presence of the driver. Presumably, such step was not taken since the insurance company itself invoked rule 336 of the Rules by filing a written application. 47. Rule 336 of the Rules reads as follows: 336. Summons to witness. - If an application is presented by any party to the proceeding for citation of witnesses, the Claims Tribunal shall, on payment of the expenses involved, if any, issue summons for the appearance of such witnesses, unless it considers that their appearance is not necessary for a just decision of the case. 48. The insurance company having sought for orders for summoning the owner and the driver of the vehicle, the tribunal in its wisdom allowed the prayer entirely at the risk of the insurance company. The owner appeared and deposed but the driver did not. Hearing was adjourned on a couple of occasions, whereafter the insurance company declined to adduce further evidence. 49. The best evidence of how the accident occurred could have been adduced by the victim as well as by the driver of the offending vehicle. The owner appeared and deposed but the driver did not. Hearing was adjourned on a couple of occasions, whereafter the insurance company declined to adduce further evidence. 49. The best evidence of how the accident occurred could have been adduced by the victim as well as by the driver of the offending vehicle. Since the victim died, it is the driver who could have entered the box and deposed that it was not he but the victim who was on the wrong side of the law. For reasons unknown, the driver did not appear. The insurance company having successfully prayed before the tribunal to summon the driver, the tribunal was not under any obligation to secure his presence once the insurance company declined to adduce further evidence. The insurance company had to suffer the consequences of its failure to secure the presence of the driver, having sought for an order for summoning him. An adverse inference could be drawn that had the driver appeared, his testimony would have suited the convenience of the claimants instead of the insurance company and hence his presence was not insisted upon. This is one aspect of the matter, sight of which cannot be lost. 50. Let us now view the problem from a different perspective. 51. In the words of the Supreme Court, negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Since negligence cannot be precisely measured, whether negligence per se exists or not, or whether a particular act would amount to negligence normally depends upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one ought to do can constitute negligence. 52. In the light of the above settled principle of law, we may look into the evidence once again. We find no evidence of worth to reach a conclusion that the driver took all reasonable care by swerving to the left, yet, could not avert the accident. 53. Cases are also not rare where the claimants are in a position to prove the accident but unable to prove the manner in which the accident occurred. We find no evidence of worth to reach a conclusion that the driver took all reasonable care by swerving to the left, yet, could not avert the accident. 53. Cases are also not rare where the claimants are in a position to prove the accident but unable to prove the manner in which the accident occurred. In such an appropriate case, it is open to the court to apply the doctrine of res ipsa loquitur providing for a reverse burden and to cast the burden of proving that there was no negligence on the respondent/opposite party. According to the Supreme Court, this doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimants are able to prove the accident but cannot prove how the accident occurred. It has also been applied in cases where no direct evidence was brought on record. 54. Having regard to the evidence on record, we can safely hold that the insurance company and/or the owner failed to rebut the presumption that the offending vehicle was being driven in a rash and negligent manner, and we are convinced that it is an appropriate case for invoking the said doctrine to rule in favour of the claimants. 55. In such circumstances, we answer point (iii) by holding that the victim succumbed to the multiple injuries suffered in the accident, which was caused by the rash and negligent driving of the driver of the offending vehicle. Point (iv) 56. The victim was aged 34 years when he passed away. In terms of the decision in Sarla Verma (supra), the multiplier of 16 should have been selected. The tribunal, we hold, was in error in selecting 17 as the multiplier. The grievance of Mr. Bhowmik is well-founded and the infirmity in the award, in this regard, deserves to be removed. 57. We also hold that the tribunal by awarding a lump-sum amount towards future prospect without lawful basis, as contended, may have acted irregularly but in the long run, nothing much turns on it in view of the decision in Pranay Sethi (supra). Bhowmik is well-founded and the infirmity in the award, in this regard, deserves to be removed. 57. We also hold that the tribunal by awarding a lump-sum amount towards future prospect without lawful basis, as contended, may have acted irregularly but in the long run, nothing much turns on it in view of the decision in Pranay Sethi (supra). In terms thereof, the victim being in permanent employment and being less than 40 years of age, an addition of 50% of his salary for determining compensation is called for. The decision in Pranay Sethi (supra) cannot be overlooked while re-assessing compensation payable to the claimants, for the simple reason that proceedings before the appellate forum being continuation of trial proceedings, a party is entitled to derive advantage of any change in law during appellate proceedings. In re-assessing compensation, the claimants are entitled to seek enhanced amounts on account of loss of consortium, loss of estate, future prospects, etc. 58. In paragraph 61 of the decision in Pranay Sethi (supra), the Supreme Court has recorded its conclusions. Sub-paragraphs (iii), (iv) & (viii) being relevant, are quoted below : (iii) While determining the income an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (viii) Reasonable figures on conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 59. The established income means the income minus the tax component. (viii) Reasonable figures on conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 59. We have found from the pay slip for June, 2011 issued by the victim's employer (Assam Rifles) that his take home pay was Rs. 15,614.00, while Rs. 750.00 and Rs. 6,000.00 were deducted on account of Group Insurance and General Provident Fund, respectively. It has not been shown by Mr. Bhowmik by referring to the tax laws that the victim was liable to pay income tax. In view thereof, it is clear as crystal that compensation has to be re-assessed taking into consideration Rs. 22,364.00 + Rs. 11,182.00 [being 50% of the victim's salary in terms of Pranay Sethi (supra)]. 60. Bearing in mind the above, we proceed to re-assess compensation as follows :- Sl.No. Heads Calculation i. National yearly income Rs.33,546.00/-x12 = Rs.4,02,552.00/- ii. Less 1/3 rd on account of personal and living expenses Rs.2,68,368.00/- iii. Multiplier of 16 applied Rs.42,93,888.00/- iv. Loss of estate Rs.18,150.00/- v. Funeral expenses Rs.18,150.00/- vi. Loss of consortium Rs.48,400.00/- Total Compensation Rs.43,78,588.00/- 61. Therefore, the claimants shall be entitled to Rs. 43,78,588.00 on account of compensation together with interest @ 7.5% per annum from the date of filing of the claim application till realization. 62. We have been informed that the insurance company in compliance with an earlier direction passed at the stage of admission of the appeal, had deposited Rs. 69,00,000/- with the Registrar General. 63. In view thereof, the insurance company shall calculate the interest payable on Rs. 43,78,588.00 and place it before the Registrar General for verification. If the Registrar General is satisfied that the calculation is appropriately made and since it is likely that the amount to be paid would be in excess of Rs. 69,00,000/-, the differential sum shall be deposited with the Registrar General within a month from date, whereupon the Registrar General shall take steps for releasing the same in favour of the claimants in equal shares in accordance with law. 64. The statutory amount of Rs. 25,000/- deposited by the insurance company shall, however, be returned to it by the Registrar General together with accrued interest, if any. 65. 64. The statutory amount of Rs. 25,000/- deposited by the insurance company shall, however, be returned to it by the Registrar General together with accrued interest, if any. 65. With the aforesaid modification of the impugned award, the appeal as well as the connected applications (CAN 6466 of 2016 and CAN 233 of 2017) and the cross-objection (C.O.T. 1 of 2017) stand disposed of. 66. Lower court records shall be sent to the tribunal immediately.