Kantabai Tulsiram Thorat vs National Insurance Co. Ltd. and Others

H.D. Patel, J.—A claim of Rs. 1,00,000/- was set up by the appellant on account of death of Tulsiram Bhagwan Thorat in an accident that occurred on 17.8.1982 at 7.00 a.m. while he was proceeding on foot towards the factory for work. The Motor Accidents Claims Tribunal (hereinafter referred to as ''the Tribunal'') awarded only Rs. 37,500/-with interest at 6 per cent per annum from the date of application and proportionate costs. Feeling aggrieved by the judgment dated 26th September, 1984, the appellant has preferred this appeal.

The appellant is the widow of the deceased Tulsiram Thorat. She claimed Rs. 1,00,000/- for herself and four minor children who were dependent on the deceased. While the deceased was walking down to his factory, one bus bearing No. MTT 4437, driven by respondent No. 3, Pandurang, came from behind, knocked him down and thereafter proceeded further to collide with the car passing in the same direction ahead of it. Tulsiram fell down and received severe injuries. He was rushed to the hospital but he died on the same day. The said vehicle was owned by respondent No. 2, Umesh Desai. While setting up her claim it is alleged by the appellant that the bus was insured with respondent No. 1, National Insurance Co. Ltd.

The respondents, owner and the driver, resisted the claim chiefly on the ground that there was no negligence on the part of the driver of the bus. They also disputed the compensation claimed.

The respondent No. 1 also joined the other respondents in denying the allegation that the driver of the bus was negligent. They further defended the action that they are immune to and exempted from any liability that might possibly be fastened upon other respondents because of the non-coverage of the vehicle in question by the insurance policy No. 561/6300433 issued by it and renewed only with effect from 18.8.1982, that is, a day after the accident.

On the basis of evidence adduced the Claims Tribunal found that the bus was negligently driven and the appellant was only entitled to Rs. 37,500/- by way of compensation. The amount was directed to be paid by the owner and the driver holding them directly and vicariously responsible for the accident. The respondent insurance company was not held liable on the ground that there was no coverage of insurance as there was no premium paid for the relevant period. Not satisfied with the findings the appellant has preferred this appeal.

Three points are raised on behalf of the appellants and they are as follows:

(1) Is National Insurance Co. Ltd. liable?

(2) Whether compensation awarded was adequate? and

(3) At what rate the interest should be made payable?

The learned Claims Tribunal exonerated the respondent insurance company, observing that there was no coverage of insurance in the absence of premium paid for the relevant period. We must observe that there is no evidence on record to substantiate this finding. The insurance company, besides filing the written statement, took no further step in the case. No counsel represented it at the time of evidence. It is in these circumstances that the liability of the insurance company is to be determined.

It is now a settled principle of law that the claimants for compensation under the Motor Vehicles Act are not possessed of either the insurance policy or copy thereof and it has been consistently emphasized that it is the duty of the" party which is in possession of the document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentality of the State such as the insurance companies which are under the obligation to act fairly. In many cases even the owner of the vehicle does not choose to produce the policy or a copy thereof. Therefore, it is incumbent upon the insurance company which enters into a defence stating that it is not liable should file a copy of the insurance policy along with its defence. In this connection the latest judgment is reported in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, .

The respondent National Insurance Co. Ltd. has taken a defence that there was no coverage of insurance on the date of the accident. It, however, accepted that the vehicle was insured under policy No. 561/ 6300433 from 18.8.1982, that is, from the day immediately after the accident. Except a bald statement made in the written statement, no further steps were taken to support the defence. The appellant is not even cross-examined on this aspect though she has categorically deposed that the vehicle stands insured with respondent No. 1. In fact, no counsel appeared for insurance company. Even insurance policy referred to by it is not to be found on record. The respondent No. 1 is not even represented before this Court. In these circumstances, we have no option left but to hold that the respondent No. 1, the National Insurance Company Ltd., is also responsible for payment of the compensation to the appellant and is jointly and severally liable along with other respondents. The finding given by the Claims Tribunal that there was no coverage of insurance was without any evidence on record, which we cannot accept.

Now coming to the next point, that is the question of compensation. The learned Claims Tribunal determined the dependency of the family at Rs. 250/- per month or Rs. 3,000/- per annum. The basis for determination of the dependency was the salary statement filed on record. It indicates that though the gross salary was Rs. 829/-the net amount received by the deceased was Rs. 642/- only. From this amount the learned Claims Tribunal deducted the amount required for his personal needs. Taking Rs. 400/- per month as the amount paid by him for the family a further deduction was made on the ground that this payment included his share as well. The dependency was hence computed by the Claims Tribunal at Rs. 250/- per month or Rs. 3,000/- per year. We do not think that the Tribunal was right in computing the dependency in the manner in which it is done.

It is a settled principle by now that one-third of the amount is deducted from the amount which is received by the deceased as his personal expenses. Therefore, it is proper to hold that the dependency would be Rs. 400/- per month. It may be proper to observe here that the salary statement also shows the deductions made towards canteen charges and, therefore, some expense which the deceased incurred is already deducted from his gross salary. It is also to be seen that the deceased had to support not only his wife but also four minor children. Therefore, the dependency could not be lesser than Rs. 400/- per month or Rs. 4,800/- per year.

The next question is the determination of the multiplier. The deceased was 30 years old at the time of his death and he would have served for at least 30 years more. It will be reasonable and proper that the deceased would have supported the family for 30 years. Therefore, full 30 years should have been taken into consideration by the learned Judge below. Instead, he assumed the figure of 15 years which, in our opinion, has no basis whatsoever and cannot be accepted.

After having determined the dependency and the multiplier it is not difficult to calculate the compensation. The amount compensation would be Rs. 4,800 x 30, that is, Rs. 1,44,000/-. Since lump sum amount is being paid, a cut of 20 per cent would be reasonable. The 20 per cent would be Rs. 28,800/-. Deducting the said amount from Rs. 1,44,000/- would be the compensation which the appellant is entitled to receive and that amount would be Rs. 1,15,200/-. To this add a sum of Rs. 5,000/- for the loss of love and affection or in other words by way of consortium. The appellant is thus entitled to receive Rs. 1,20,000/- as compensation from the respondents. However, the claim as set up by the appellant is only to the extent of Rs. 1,00,000/-. We, therefore, hold that all the three respondents are jointly and severally responsible to pay Rs. 1,00,000/- to the appellant.

One more point remains to be decided and that is relating to interest. The learned Member of the Claims Tribunal awarded interest at the rate of six per cent per annum from the date of application. The proper rate of interest should be 12 per cent per annum. The Supreme Court in Jagbir Singh and Others Vs. General Manager Punjab Roadways and Others, , has granted interest at that rate.

The appellant is hence entitled to receive from the respondents who are liable to pay Rs. 1,00,000/- with interest at 12 per cent per annum from the date of application and proportionate costs as awarded by the learned Claims Tribunal. The respondents are directed to deposit the amount of compensation with interest within eight weeks from the date of the judgment. Upon deposit of the amount, the learned Judge of the Claims Tribunal is directed as follows:

(a) The appellant Kantabai be paid Rs. 20,000/- and interest amount with proportionate costs after deducting the amount already received by her.

(b) A sum of Rs. 15,000/- shall be deposited in the name of Suresh s/o Tulsiram Thorat under the guardianship of his mother Kantabai for a period of 3 years as soon as possible in a nationalised bank.

(c) A sum of Rs. 15,000/- shall be deposited in the name of minor Madhavi under the guardianship of the mother Kantabai for a period of 5 years in reinvestment scheme in a nationalised bank.

(d) A sum of Rs. 15,000/- shall be deposited in the name of minor Anil under the guardianship of the mother Kantabai for a period of 7 years in reinvestment scheme in a nationalised bank.

(e) A sum of Rs. 15,000/- shall be deposited in the name of minor Bhagyashree under the guardianship of the mother Kantabai for a period of 8 years in reinvestment scheme in a nationalised bank.

(f) A deposit of Rs. 5,000/- each in the names of four minor children which must have been already made in terms of the judgment of the Claims Tribunal shall not be disturbed.

(g) It is open for the p1ies to apply to the learned Judge of the Claims Tribunal for further and other directions as regards the deposit and payment of money and the Judge concerned is at liberty to grant such directions as may be just and proper in the circumstances keeping in view the interest of the minors.

In the result, the appeal is allowed but without any order as to costs.