Punjab-Haryana High Court
Piara Singh And Anr. vs Gian Kaur Widow And Ors. on 31 October, 1992
Equivalent citations: I(1993)ACC538, 1993ACJ554, (1993)103PLR352
JUDGMENT G.C. Garg, J.
1. On August 27, 1973, an accident took place between a motor-cycle driven by Jaswant Singh-deceased and a truck driven by Piara Singh at a crossing in the Industrial Area, Chandigarh The motor-cyclist sustained injuries in the accident and as a result of which died lateron. His widow, sons and daughters filed a claim petition under Section 110-A of the Motor Vehicles Act (for short 'the Act') against the driver, the owner of the truck and the insurer-the United India Fire and General Insurance Company Limited.
2. The Motor Accident Claims Tribunal, Chandigarh by order dated January 24, 1977, awarded a sum of Rs. 44,000/- by way of compensation to the claimants holding the owner, the driver and the insurer jointly and severally liable. Interest at the rate of six per cent per annum from the date of presentation of the claim petition was also granted.
3. The claimants feeling aggrieved against the award of compensation preferred an appeal being F. A. O. No. 201 of 1977 for enhancement of compensation. The driver and the owner of the truck as also the insurer filed an appeal being F. A. O. No. 169 of 1977 seeking to challenge their liability for payment of compensation The appeal filed by the claimants was allowed by the learned Single Judge and they were held entitled to Rs. 80,000/- being 2/3rd of the amount of Rs. 1,20,000/- along with interest at the rate of 12 per cent per annum from the date of application to the date of payment of the amount awarded In the appeal filed by the driver, the owner and the insurer, the finding recorded by the Tribunal was modified and the contributory negligence of the deceased was assessed at 33% and that of the driver of the truck at 67%. It was on this count that after holding that the heirs were entitled to compensation of Rs. 1,20,000/-, a sum of Rs. 80,000/- was in fact awarded.
4. Four appeals have been filed against the order of the learned Single Judge. One by the claimants seeking further enhancement and also claiming that no cut could be applied on account of contributory negligence of the deceased as he was not at all negligent. Second appeal has been filed by the driver and the owner of the truck. The other two appeals have been filed by the insurer, one against that part of the order of the learned Single Judge whereby the claimants were held entitled to a higher amount of compensation and the other against the other part of the judgment, whereby it was held that the deceased was negligent only to the extent of 33%. According to the insurer, it was the deceased who was entirely negligent in not observing the traffic rules and by not applying the brakes.
5. Learned counsel for the insurer vehemently argued that the accident took plate at the crossing and the deceased having come to the crossing from the right hand side of the truck driver it was for the motor cyclist to stop and apply brakes and in the circumstances, the driver of the truck could not be held to be negligent The contention is without merit Learned Single Judge has discussed" the entire evidence brought on the record and thereafter concluded that it was the truck which hit the motor cycle after the motor cycle had virtually crossed the crossing Once it is found that the motor cyclist had come to the crossing before the truck driver and had almost crossed it, it cannot in the circumstances be concluded that the motor cyclist was totally negligent. Learned Single Judge has attributed to the motor cyclist to the extent of 33%. Nothing has been brought to our notice by the learned counsel to hold and conclude that the driver of the truck was not at all negligent. The finding recorded by the learned Single Judge is a pure finding of fact based on apparaisal of evidence brought on the record. The finding that contributory negligence, of the deceased to the extent of 33% and that . of the driver of 6 % is thus upheld,
6. Faced with this situation, learned counsel for the insurer argued that the liability of the insurance company is limited to the extent of Rs. 50,000/- under the terms of the policy and it could not be held liable beyond the said amount and thus, the conclusion that the owner, driver and the insurer are liable jointly and severally for the entire amount, deserves to be modified The contention is not based on any evidence on the record. There is no pleading to the effect that the liability of the insurance company is limited to the extent of Rs. 50,000/-. The insurance policy has not been produced on record either by the owner or by the insurer, either before the Tribunal or before this Court This copy was not produced even in this appeal. It has been consistently emphasised that it is the duty of the party in possession of a document to produce the same rather than taking shelter behind the abstract doctrine of burden of proof This responsibility is greater in the case of instrumentalities of State who are under an obligation to act fairly. Where the insurer takes a defence that its liability is not in excess of the statutory liability, it should file a copy of the policy of insurance along with the defence so that the owner of the vehicle or the third party is put at guard. It is then for them to produce evidence to show that the liability was not so limited. The argument of limited liability in this case has been raised without any basis There is no pleadings in that behalf. The written statement of the insurer does not say even a word on this aspect. There is no issue. The insurer in the absence of any document cannot be permitted to raise a plea that its liability is limited in terms of the statutory provisions, especially when the claimants had no occasion to show to the contrary and the insurance policy is not on the record.
7. Turning to the amount of compensation, it may be noticed that the deceased was aged 33 years at the time of his death A multiplier of 16 has been applied. Learned counsel for the claimants submitted that a higher multiplier ought to have been applied. He referred to Jyotsna Dey and Ors. v. The State of Assam, (1987-1) 91 P. L.R. 646 (S. C). where a multiplier of 25 in respect of a deceased aged 45 years was applied ; Smt Urmila Devi and Ors. v. Baljit Singh, (1989-1) 95 P. L. R. 562 where the deceased was 39 years of age and a multiplier of 20 was applied ; Smt. Kiran Watt and Ors. v. Hari Singh, (1991-2) 100 P. L. R. 555 where the deceased was aged 29/30 year-and a multiplier of 25 was applied and lastly, Hardeo Kaur and Ors. v. Rajasthan State Transport, 1992 (J. T.) 409 S. C. where the deceased was aged 36 years and a multiplier of 24 was applied In the circumstances, it would be most appropriate to apply a multiplier of 20 in this case.
8. The deceased aged 33 years was at the time of his death running his own business of manufacture of rolling shutters and fabrication of steel articles in an industrial plot awned by him He left behind a widow and five minor children. The income-tax returns for the assessment year 1972-73 show that the deceased returned an income of Rs. 14,988/- and during the relevant assessment year 1974-75, an income of Rs. 14,950/- was returned. Obviously, the income would be less as the assessee died in the month of August, 1973, This income undisputedly includes some income from the property, say Rs. 5,000/- per year. The returned income from business during the accounting year 1971-72 comes to about Rs. 10 000/- per year. The income of the assessee, two years thereafter, having regard to the relaties of life, would be more than the income during the accounting year 1971-72. Inspite of death, and income of about Rs. 10,000/- from business was returned though the deceased contributed to the income for less than five months during this period. In the circumstances and having regard to the number of dependants and the income returned during the accounting year 1973-74, it would be just and proper to conclude the dependency at the rate of Rs. 9,000/- per year after allowing an allowance in respect of rental income and personal expenses of the deceased. The compensation payable to the claimants thus, work out to Rs. 1,80,000/- After making deductions on account of contributory negligence of the deceased i. e, to the extent of 1/3rd, the claimants are held entitled to Rs. 1,20,000/- along with interest at the rate of 12% per annum from the date of application to the date of payment. The amount of compensation shall be shared and payable to the claimants in the same manner as already determined by the learned Single Judge.
9. As a result of the above discussion, the appeals filed by the insurer, owner and the driver are dismissed and the appeal filed by the claimants is allowed to the extent indicated above. The parties shall bear their own costs in these appeals.