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PETITIONER: SMT. RAJENDRA KUMARI & ANR.

       Vs.

RESPONDENT: SMT. SHANTA TRIVEDI & ORS.

DATE OF JUDGMENT20/02/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) THOMMEN, T.K. (J)

CITATION:  1989 AIR 1074            1989 SCR  (1) 761  1989 SCC  (2) 140        JT 1989 (1)   353  1989 SCALE  (1)485

ACT:     Motor Vehicles Act, 1939: Sections 93, 94 and  95--Motor accident--Fatal--Claim--Reasonableness    of    compensation Computation    of--Insurance   Company’s  liability   admit- ted--Whether incumbent on Insurance Company to file policy.

HEADNOTE:     Appellants 1 and 2 are the wife and daughter respective- ly of the deceased who died in a road accident, while  trav- elling in a hired car, which collided with a truck. He  died on the spot. At the time of his death he was 25.     Appellants  filed a petition before the  Motor  Accident Claims  Tribunal  claiming a compensation of Rs.1  lac.  The Tribunal’s finding was that the accident was due to rash and negligent  driving of the car. Without giving  reasons,  the Tribunal awarded only Rs.10,000 against the owner of the car and the truck driver, and also assessed the liability of the Insurance Company to the extent of Rs.4,000.     Against the award the appellants filed an appeal to  the High  Court  challenging the adequacy  of  the  compensation awarded.  The owner of the car filed a cross-objection.  The High  Court affirmed the award and dismissed the appeal,  as also  the  cross-objection, stating  that  the  compensation awarded was just and proper.     This  appeal,  by  special leave, is  against  the  High Court’s  judgment affirming the Tribunal’s award. On  behalf of the appellants, it was contended that High Court was  not justified  in  affirming the Tribunal’s award  of  only  Rs. 10,000 as compensation. Allowing the appeal,     HELD:  1. The appellants are entitled to a sum  of  Rs.l lac  on  account  of compensation. Out of  this  amount  the Insurance  Company, i.e., Respondent No. 4 is liable to  pay Rs.4,000 and the other respondents are jointly and severally liable to pay to the appellants the remaining amount. [766C]  762     2.  It  is true that the deceased was a student  at  the time  of his death, but he was also looking after the  busi- ness of his father and earning about Rs.l,O00 a month.  Even at the modest computation, the contribution of the  deceased towards his family could not be less than Rs.500 per  month,

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i.e. Rs.6,000 per year. Taking the normal span of life to be 60  years, he would have lived for another 35 years.  It  is apparent that the appellants have been deprived of more than a lac of rupees and, accordingly their Claim for Rs.l lac on account  of  compensation  was quite  reasonable.  Both  the Tribunal and the High Court were not justified in  assessing the amount of compensation payable to the appellants at  Rs. 10,000 only. [765B-D]     3.  As the law stood at the material time,  the  maximum liability  of the Insurance Company in such a case was  only to  the  tune  of Rs.4,000. In the appeal  before  the  High Court,  the appellants did not challenge the finding of  the Tribunal  that  the  statutory liability  of  the  Insurance Company  was Rs.4,000 only as conceded to by the  appellants themselves. In the circumstances, it Was not incumbent  upon the Insurance Company to file the policy. [766A-B]     National  Insurance  Co. Ltd. v. Jugal Kishore  &  Ors., [1988] ACJ 270, distinguished.     [This Court directed that the decretal amount should  be paid within two mouths and in case of default, it will  bear interest  at  the rate of 12% per annum  till  realisation.] [766D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2086  (N) of 1978.     From  the  Judgment and Order dated  10.12.1976  of  the Rajasthan  High Court in D .B. Civil Misc. Appeal No. 73  of 1970. C.M. Lodha and H.M. Singh for the Appellants.     B.R.  Sabharwal, P.R. Ramasesh and H. Wahi for  the  Re- spondents. The Judgment of the Court was delivered by     DUTT,  J. This appeal is directed against  the  judgment and  decree of the Rajasthan High Court affirming the  award made by the Motor Accident Claims Tribunal, Udaipur. 763     In  the  night between the 3rd and 4th  December,  1966, Hari Singh, since deceased, the husband of the appellant No. 1 and the father of the appellant No. 2, hired an Ambassador car belonging to the. Rajasthan Mahila Parishad for going to his native village at ’Kangeti in Madhya Pradesh from  Udai- pur in Rajasthan. When the car had gone 21 miles from  Udai- pur,  it  collided  with a truck coming  from  the  opposite direction. It skidded and hit against a tree. As a result of the  accident, Hari Singh died on the spot and  one  Shanker Lal who was also travelling in the same car and happened  to be the friend of Hari Singh received some injuries.     At  the  time of his death, Hari Singh was only  25.  He left  behind him his wife, the appellant No. 1 who was  only 18 and the appellant No. 2, his daughter, then only a child.     The  appellants filed a petition before the Motor  Acci- dent  Claims Tribunal, Udaipur, claiming a sum of Rs. 1  lac as compensation.     The Tribunal came to the finding that the accident which resulted in the death of Hari Singh was due to the rash  and negligent  driving of the car. The Tribunal disposed of  the issue as to the claim of the appellants for compensation  of Rs. 1 lac as follows:               "Claimants of Case No. 3 of 1967 have  claimed               compensation of Rs. 1 lac which appears to  be               excessive.  In  my opinion an  amount  of  Rs.               10,000 would be adequate. The issue is decided

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             accordingly."     The  Tribunal has not given any reason why the claim  of the  appellants for compensation of Rs. 1 lac could  not  be accepted.  At this stage, it may be stated that the case  of the  Insurance  Company which was the opposite party  No.  3 before the Tribunal was that its liability was only up to  a sum of Rs.4,000. Issue No. 7 that was framed by the Tribunal relating  to the liability of the Insurance Company  is  ex- tracted below:               "7.  Whether the liability  of  opposite-party               No. 3 cannot exceed Rs.4,000 in each case." The finding of the Tribunal on Issue No. 7 is as follows:               "The learned counsel for the claimants conced-               ed that the liability of the Insurance Company               could not exceed                764               Rs.4,000  in each case. Issue  is  accordingly               decided in favour of the Opposite Party No.3."     Upon  the said findings, the Tribunal made an award  for Rs. 10,000 in favour of the appellants against the  opposite parties  including  the Rajasthan Mahila  Parishad  and  the driver of the truck assessing the liability of the Insurance Company to the extent of Rs.4,000 only.     Being aggrieved by the award of the Tribunal, the appel- lants preferred an appeal to the Rajasthan High Court  chal- lenging  only the adequacy of the amount of compensation  as awarded by the Tribunal. A cross-objection was also filed by the  Rajasthan  Mahila Parishad, the owner of the  car.  The High  Court, as stated already, affirmed the award and  dis- missed the appeal and the cross-objection. Hence this appeal by special leave.     The  first  point  that has been  urged  by  Mr.  Lodha, learned  counsel appearing on behalf of the  appellants,  is that the High Court was not justified in affirming the award of  the  Tribunal for Rs. 10,000 only  as  compensation.  It appears  from the evidence of the appellant No. 1  that  the father  of the deceased had a dairy farm, a poultry farm,  a flour  mill and an agricultural farm. The deceased  used  to look after the business and his monthly income was about Rs. 1,000 and that out of the said income, about Rs.700 used  to be  spent and the total saving was only Rs.300 a  month.  As against  this evidence, no evidence was led by the  respond- ents  regarding the income of the deceased. The High  Court, in affirming the award of the Tribunal as to the quantum  of compensation observed as follows:               "It appears to us from the evidence so led  by               the  claimants that Hari Singh at the time  of               his  death  was in fact a student and  may  be               that  whenever he could spare time, he  looked               after  the various business activities of  his               father which according to Rajendra Kumari  are               still  running. He had devoted himself to  the               family business and had no prospects  whatever               dependent upon education. While estimating               the benefits derived from the various business               activities  one cannot lose sight of the  con-               tingencies  of  losses  and  fluctuations   in               income  that occur in such types of  business.               We do realise that the loss of a husband to  a               young Rajput girl is something which no amount               of  money can compensate, yet in  the  circum-               stances of the case, we do not find               765               that  the amount of compensation fixed by  the               Tribunal  was  too high or too low.  We  feel’

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             that it represents the just and proper compen-               sation."     We  are  unable to understand the reasons given  by  the High  Court  in finding that the amount of  compensation  as awarded  by the Tribunal was quite adequate. The High  Court has not disbelieved the evidence of the appellant No. 1 that her  husband had an income of Rs. 1,000 a month. It is  true that Hari Singh was a student at the time of his death,  but he  was  also looking after the business of his  father  and earning  a sum of Rs. 1,000 a month. There is no  reason  to disbelieve  the  evidence of the appellant No. 1  about  the income of Hari Singh.     Even at the modest computation, the contribution of Hari Singh  towards his family could not he less than Rs.500  per month, that is, Rs.6,000 per year. Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35  years.  It  is apparent that the  appellants  have  been deprived  of  more than a lac of  rupees  and,  accordingly, their  claim  for Rs. 1 lac on account of  compensation  was quite reasonable. Both the Tribunal and the High Court  were not  justified in assessing the amount of compensation  pay- able to the appellants at Rs. 10,000 only.     The  next question is as to the liability of the  Insur- ance  Company,  the  respondent No. 4 herein.  It  has  been already  noticed  that the appellants  conceded  before  the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4,’000. Indeed, as the law stood at the material time, the maximum liability of the Insurance Compa- ny  in such a case was only to the tune of Rs.4,000. In  the appeal  before the High Court, the appellants did not  chal- lenge the finding of the Tribunal that the statutory liabil- ity  of the Insurance Company was Rs.4,000 Only as  conceded to  by the appellants. For the first time in this Court,  it is  submitted  that the respondent No. 4 is liable  for  the entire  amount  of compensation. It is urged  by  Mr.  Lodha appearing for the appellants that it was incumbent upon  the respondent  No. 4 to file before the Tribunal the policy  of Insurance  in  order to show that apart from  the  statutory liability  up to Rs.4,000, the respondent No. 4 had no  fur- ther  liability under the policy in excess of the  statutory liability.  In support of the contention, much reliance  has been  placed  by the learned counsel on a decision  of  this Court  in  National Insurance Co. Ltd. v.  Jugal  Kishore  & Ors.,  [1988]  ACJ 270. In that case, it has  been  observed that where the Insurance Company concerned wishes to take  a defence in a claim petition that its liability  766 is  not  in excess of the statutory liability,  it.  should’ file a copy of the Insurance policy along with its  defence. This  decision,  in our opinion, is not  applicable  to  the facts of the instant case. It has been already noticed  that before the Tribunal the appellants had categorically  admit- ted that the liability of the Insurance Company extended  to Rs.4,000 only.. In the circumstances, we do not  think  that it  was  incumbent upon the Insurance Company  to  file  the policy. The contention made on behalf of the appellants  is, accordingly, rejected.     In  the result, we direct that the appellants are  enti- tled to a sum of Rs. 1 lac (Rupees one lac only) on  account of compensation. Out of the said sum, the Insurance Company, the respondent No. 4, is liable to pay Rs.4,000 only and the respondent  Nos. 1, 2 and 3 including the  Rajasthan  Mahila Parishad  are  jointly and severally liable to  pay  to  the appellants the remaining amount. The respondent shall depos- it  the  decretal amount to the extent of  their  respective

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liabilities in the Motor Accident Claims Tribunal,  Udaipur, within  two  months  .from date; in  default,  the  decretal amount  or so much thereof as will remain  outstanding  will bear interest at twelve per cent per annum till realisation.     The  appeal is allowed. The judgment and decree  of  the High Court are modified to the extent indicated above, There will be no order as to costs. G.N.                                            Appeal   al- lowed. 767