P.D. Mulye, J.
1. This judgment shall also govern the disposal of Misc. Appeal No. 131 of 84 (National insurance Co. Ltd. v. Ramniwas and Ors.) as both these appeals are directed against the same award dated 20th January, 1984 passed by the Member of Motor Accidents Claims Tribunal, Ujjain in claim Case No. 42 of 82, whereby be has awarded a total compensation of Rs. 96,000/- plus costs and interest.
2. Misc. Appeal No. 63 of 84 has been filed by the owner of the vehicle for reduction of the amount of compensation on the ground that it is heavy and inflated.
3. Misc. Appeal No. 131 of 84 has been filed by the Insurance Company on the ground that the liability of the Insurance Company under the insurance policy Ex.D-1 being limited to the tune of Rs. 50,000/- only the learned Member of the Tribunal has committed an error of law in holding the Insurance Company also jointly and severally liable for the entire claim awarded.
4. The facts of the case leading to these appeals may be stated, in brief, thus: Ramniwas s/o Tiratbram is the owner of truck No. MPI-3189 of which on the relevant day of the accident, which took place on 1-2-82, Motilal s/o Prema was its driver. The said truck was insured with the National Insurance Co. Ltd. claimant Surajbai is the mother of the deceased Mansingh. claimant Sumitra Bai is his widow and claimants Dilip Singh, Mamta and Mahendra are his minor children. Antar Singh (A.W. 4) is the brother of deceased Mansingh.
5. On 1-2-82 at about 10.30 p.m. the deceased along with his brother Antar Singh was going on foot on the Makshi road near the naka towards bis place in village Pawasa. At that time the driver of the truck Motilal, who was driving truck No. MPI 3189 drove it in such a rash and negligent manner that it dashed against the deceased Mansingh, who as a result of the accident died on the spot and his brother Antar Singh also sustained injuries. The claimants of deceased Mansingh, therefore, filed the claim petition under Section 110-A of the Motor Vehicles Act. whereby they claimed a total compensation of Rs. 4,68,050/-.
6. According to the claimants the deceased, who at the time of his accidental death was aged 24 years, was carrying on the business of hotel in village Pawasa from which his average monthly income was to the tune of Rs. 1000/-; that the deceased was in good health and there was longevity in his family. The claimants, therefore, as the dependants of the deceased filed the claim petition.
7. The owner and the driver by a joint written statement denied that the accident occurred on account of rash and negligent driving of the truck by the truck driver. They also denied that the deceased Mansingh died on the spot or that his brother Antar Singh also received injuries as a result of the said accident. According to them though they did not dispute the factum of accident, the accident occurred because of the mechanical failure of the brakes all of a sudden on account of which the truck driver was helpless and could not stop the vehicle even though it was being driven at the normal speed. Further according to them the accident occurred because of the mistake and negligence of the deceased and his brother.
8. The Insurance Company by a separate written statement did not dispute this fact that the said truck was insured with them, though it also disputed the factum of accident. Further according to the Insurance Company their liability is limited to the tune of Rs. 50,000/- according to the terms of the Insurance Policy.
9. The claimants in support of their case examined P.W.I. Dr. V.P. Pendharkar, who conducted the autopsy on the dead body of Mansingh, who opined that Mansingh died of cyncope as a result of injury to vital organs. A.W.2 Sumitra Bai is the widow of the deceased; A.W.3 Suraj Bai is the mother of the deceased; A.W.4 Antar Singh is the brother of the deceased; A.W.5 Samandar Singh is an eye witness to the accident; A.W.6 is Dr. Maheshchandra who had examined injured Antar Singh who had also filed a separate claim petition and he has been awarded compensation of Rs. 6,000/- plus cost and interest, but there is no dispute about that raised either by the owner and driver of the truck or by the Insurance Company. So the award, so far as compensation given to Antar Singh is concerned, has become final. A.W.7 Ramesh Singh is the witness who had prepared the spot map.
10. The owner of the truck or the driver did not step into the witness box nor have they led any evidence.
11. The learned Member of the Tribunal, on consideration of the evidence and material on record came to the conclusion that the accident did not occur because of any sudden mechanical failure of the brakes, but he found that the accident occurred because of the rash and negligent driving of the truck by the truck driver. He also found that the claimants are entitled to a total compensation of only Rs. 96,000/- plus cost and interest, out of which he awarded Rs. 6000/- in favour of the mother Surajbai and the rest of the claimants were awarded each Rs. 23,500/-. He further ordered that the amount payable to the minors shall be kept in fixed deposit for a period of ten years and the interest accruing there on shall be paid to Sumitra Bai the mother of the minor children. Hence these appeals.
12. It is not disputed that the said truck was insured as per insurance policy Ex.D-1. The learned Counsel for the Insurance Company, therefore, submitted that according to the terms of the insurance policy the maximum liability of the Insurance Company on account of the death of Mansingh in the said accident was limited to the tune of Rs. 50,000/- only and therefore, the learned Member of the Tribunal by ignoring this material fact has committed an error in holding the Insurance Company also jointly and severally liable to pay the entire compensation of Rs. 96,000/- as awarded by him. The learned Counsel, therefore, submitted that in no case, on the basis of Ex.D-1, the Insurance Company can be held liable to pay any sum in excess of Rs. 50,000/- by way of compensation.
13. The learned Counsel for the claimants in fairness did not dispute this fact and he frankly submitted that he was not in a position to support the finding of the learned Member of the Tribunal, whereby he was held the Insurance Company also jointly and severally liable for the entire amount of compensation of Rs. 96,000/-. He, therefore, did not dispute that the liability of the Insurance Company in the present case cannot exceed Rs. 50,000/-. Therefore, we are of opinion that the learned Member of the Tribunal was not justified in putting the entire liability of Rs. 96,000/- on the Insurance Company also. We, therefore, find that the finding of the learned Member of the Tribunal on this point therefore, cannot be upheld and that under the insurance policy the maximum liability of the Insurance Company has to be and is hereby held to be to the tune of Rs. 50,000/- only and to that extent the award of the Tribunal against the Insurance Company in excess of the amount of compensation of Rs. 50,000/- is set aside.
14. The learned Counsel for the owner of the truck Ramniwas, after taking us through the evidence and material on record submitted that the learned Member has committed an error in awarding Rs. 96,000/-by way of compensation which is highly inflated and excessive as the claimants have not led any positive, convincing and satisfactory evidence regarding the actual monthly income of the deceased as also the dependency of the claimants upon him. He submitted that the deceased was admittedly having a small tea shop in a village, though on the main road, but the evidence regarding his monthly income is exaggerated and not convincing. He also submitted that no account books have been filed to prove the monthly income and expenditure of the hotel business as also the saving from that business. He also urged that the learned Member has committed an error in applying a multiplier of sixteen.
15. Further according to the learned Counsel for the owner of the truck, the wife of the deceased, Sumitra Bai. has merely deposed that the deceased was giving her Rs. 1000/- to Rs. 1200/- per month; that his mother Suraj Bai has deposed that Mansingh was giving Rs. 800/- to Rs. 900/- per month. Antar Singh the brother of the deceased has deposed that his brother Mansingh was having a small hotel by the side of the road which was covered with tins, that in his hotel there were two or three benches and one or two tables; that in that hotel only tea was being served for which purpose the deceased had employed two servants and in that vicinity there are about 15 to 25 such hotels; that A.W.5 Samandar Singh has deposed that be is also having his hotel near the hotel of Mansingh; that Mansingh's daily sale was to the tune of about Rs. 125/- out of which daily savings was to the tune of Rs. 25/-to Rs. 30/-and thus he used to earn Rs. 10/- to Rs. 12/- per day. The learned Counsel for the owner, therefore, submitted that from this evidence it has not been proved that in fact the income of the deceased was so much that the dependency of the claimants per month was to the tune of Rs. 500/- per month. He, therefore, submitted that in this case the compensation awarded is neither just nor proper nor reasonable and, therefore, deserves to be reduced.
16. According to the learned Counsel for the owner of the truck at best the dependency of the claimants could be to the tune of Rs. 250/- per month and in no case multiplier of sixteen should have been applied. He, therefore, submitted that considering the facts and circumstances of the case as also the young age of the deceased, the loss of company by the wife and also considering the present value of money, a total compensation of Rs. 50,000/-would be proper, just and reasonable. He further submitted that this being a lump sum payment the learned Member of the Tribunal has not deducted any amount on account of the uncertainties of life and in support of his submissions he placed reliance on the decisions reported in 1985 ACJ 44 Geetabai v. Hussainkhan and 1984 ACJ. 556.
17. On the other hand the learned Counsel for the claimants submitted that in the present case the other side has not led any evidence to controvert the evidence of the claimants. He therefore, submitted that there is no reason to disbelieve the evidence adduced on behalf of the claimants and consequently no interference with the award is necessary. He also submitted that it is not necessary to make any deduction even in case of lump sum payment and in support of this submission he placed reliance on the decisions reported in 83 ACJ, 629 and 85 ACJ 138.
18. As the learned Counsel for the parties did not dispute the factum of accident as also did not challenge the finding of the learned Member that the accident occurred on account of the rash and negligent driving by the truck driver as a result of which Mansingh died, it is not necessary to reconsider that evidence and, therefore, the finding of the learned Member of the Tribunal on this point is upheld.
19. So far as the quantum of compensation is concerned, after hearing the learned Counsel and after going through the record as also through the case law cited, we are of opinion that the compensation awarded in this case appears to be excessive and is not supported by any positive and satisfactory evidence. It is no doubt true that the deceased Mansingh at the time of his death was a young man aged about 35 years, and the dependants have suffered loss of company. But while awarding the compensation the same must be just and reasonable and should not be inflated or excessive merely because the claimants have put up a big claim. In the present case the learned Member of the Tribunal felt that the average income of the deceased was Rs. 800/- out of which he was spending about Rs. 250/- upon himself and the rest was being spent on his family. Even if this figure is taken for the purpose of calculation, in our opinion, after applying the multiplier of ten, the total compensation comes to Rs. 60,000/- and on account of lump sum payment because of uncertainties of life, 15 per cent has to be deducted there from considering the facts and circumstances of the present case and thus the total amount of compensation comes to Rs. 51,000/-, which in our opinion, is just, proper and reasonable. Consequently the claimants are entitled to claim Rs. 51,000/- only.
20. In the result both these appeals succeed partly. It is ordered that the claimants are entitled to a total compensation of Rs. 51,000/- only. Out of the said amount the Insurance Company is held jointly and severally liable to the tune of Rs. 50,000/- only along with the owner and the driver of the truck. The liability to pay the balance of Rs. 1000/- shall be jointly and severally with the owner and driver of the truck. To that extent the award of the learned Member of the Tribunal is modified and the rest of the award regarding the interest and costs is maintained. Out of the amount of Rs. 51,000/-, Rs. 6000/- shall be paid to the mother Suraj Bai in person. A sum of Rs. 30,000/- be paid to the widow Sumitra Bai in person and the rest of the amount of Rs. 15,000/- shall be equally paid to the minor claimants Dilipsingh, Ku. Mamta and Mahendra. The amount of Rs. 15,000/-payable to these minors shall be kept in fixed deposit for a period of 10(ten) years in a Nationalised Bank in the name of these minor children through their guardian mother Sumitra Bai and the interest accruing thereon from time to time shall be paid to the mother Sumitra Bai for the maintenance of these minor children, and the minor children on attaining majority shall be entitled to receive Rs. 5000/- each. Considering the facts and circumstances of the case, parties are directed to bear their respective costs of these appeals.
21. The learned Counsel for the Insurance Company, Shri A.H. Khan, states that as per order passed by this Court on 23-6-84 in Misc. Appeal No. 131 of 84, the Insurance Company has already deposited Rs. 50,000/-before the Tribunal.