N.N. Goswamy, J.
(1) This appeal by the claimants for enhancement of compensation is directed against the award dated 26th July, 1980 passed by the Motor Accident Claims Tribunal Delhi whereby the claimants were awarded a total compensation of Rs. 97,000.00 with interest and costs. The Insurance Company was held liable to the extent of Rs. 50.000.00 in view of the provisions of section 95 of the Motor Vehicles Act (here-in-after called 'the Act'). Two sets of cross objections have also been filed. One set is by the Insurance company and the owner and the other by the owner and the driver. This judgment will dispose of the appeals as also the cross-objections.
(2) It was alleged in the petition under section 110-A of the Act filed by the claimants that Mahinder Nath Mehra aged 40 years working as Managing Director of Kem Metal Powder Private Ltd. Sahibabad, U.P. had gone in the morning of 15th October, 1978 to the Holy Family Hospital to visit his ailing father. He had gone in his car which had been provided by the company. The said car developed some trouble and he managed to get a scooter which was the only other vehicle available with the company. The said Shri Mahinder Nath Mehra left the hospital at 11.10 a.m. and was proceeding to Sahibabad on the Ring Road from the side of the crossing of Ashram. When he was reaching near the crossing of Ring Road and Bala Sahib Road, he made sure that there was no traffic coming from his side and from right on the other side and thus he entered the crossing on a slow speed. Truck No. Dhl 7036 driven by respondent No. I came from the opposite side i.e. from I.P. Estate side on the Ring Road at a rash speed. The truck did not slow down before reaching the crossing on Ring Road and Bala Sahib Road leading to Kilokri as was the mandatory requirement and further without giving and horn or even proper look out took a turn to the right side at a rash speed for proceeding towards Kilokri on Bala Sahib Road at a time when the said Shri Mehra was almost on the crossing with the result that after taking the abrupt turn the front side of the truck hit the scooter driver by Mehra. As a result thereof, the scooter was partly hit and damaged by the impact and Shri Mehra was thrown off. He was hit by the surface of the road and receiver injuries which culminated in his death. It was pleaded that this accident was wholly caused due to the rash and negligent driving by the driver of the offending truck, who was neither keeping any proper look out nor did he blow any horn. The manner in which he took the abrupt turn is conclusive proof to show that he was ignorant of the traffic rules.
(3) It was further pleaded in the petition that the deceased was a brilliant engineer from U.K.. and had decided to come back to India because of the appeal made by the Government of India to the foreign engineers to return to the country. He, thereforee, returned and set up project which project now cannot be implemented or completed because the deceased was the only person who had the know how. On account of the death of the deceased, the project has been left incomplete and the company cannot function. It is further pleaded that the deceased stayed in U.K. from 1956 to 1976 and thereafter came to India and set up the present project at a considerable cost. The claimants incurred considerable expenditure on the treatment of the deceased. The mother of the deceased who had recently gone to U.K. for treatment, had to leave the treatment midway and returned to India on hearing of the ghastly accident. She had incurred an expenditure of Rs. 30.000.00 or so which has been rendered waste. The father of the deceased who was undergoing treatment in the Holy Family hospital was making rapid progress but on hearing of the news of the accident and then the death he could not bear the shock and died in the hospital. It is further pleaded that the family of the deceased is known for longevity. The father of the deceased died at the age of 84 years and the mother of the deceased is aged 75 years and is alive. If the deceased had not been involved in this accident, he would have lived up to the age of 80 years. The deceased used to pay a sum of Rs. 400.00 per month to his mother who was dependent upon him The monthly income of the deceased was stated to be Rs. 3,000.00 plus free house, free conveyance and the other amenities. In the circumstances, a sum of Rs. 10,00,000.00 ' was claim as compensation.
(4) The petition was contested and two written statements, one on behalf of the owner and the driver and the other on behalf of the Insurance company were filed, In both the written statements, the allegations about the age and monthly income of the deceased were denied for want of knowledge. The cause of the accident was stated to be the negligence of the deceased. It was further pleaded that the deceased did not have a driving license and he did not know how to drive the scooter and as such the claimants were not entitled to any compensation. The insurance company namely respondent no. 3 bad pleaded as a preliminary objection : 'That the liability of the insurance company is limited to the extent as provided in section 95 of the Motor Vehicles Act.' In the replication filed by the claimants it was denied that the liability of the insurance company was limited to Rs. 50,000.00 and it was pleaded that the owner of the vehicle had taken a comprehensive policy and thereforee the insurance company was liable to pay the entire awarded amount.
(5) On the pleadings of the parties, the following issues were framed :
1. Whether the deceased received fatal injuries on 15-10-1978 in accident caused due to rash and negligent driving of the vehicle DHL-7036 on the part of respondent No. 1 ?
2.Whether the petitioners are the legal representatives of the deceased ?
3.Whether the accident in question was caused due to negligence of the deceased ?
4.To what amount of compensation, if any, are the petitioners entitled and from which of the petitioners? (Instead of which of the petitioner it should have been which of the respondents).
On consideration of the entire evidence produced by the claimants, considering the side plan and the documents, the Tribunal came to the conclusion that the sole responsibility for the tragic accident was of the respondent no. I and the deceased was not guilty of any negligence much less contributory. It was not disputed that the claimants were the legal representatives of the deceased. The Tribunal, on evidence, further found that the monthly income of the deceased was only Rs. l,600.00 and be was aged about 45 years. Applying the multiplier of 15, he awarded Rs. 94.000.00 as compensation besides Rs. 1,000.00 on account of medicines and Rs. 2,000.00 for pain, agony and torture. Thus a total sum of Rs. 97.000.00 was awarded. It was further directed that the appellant-claimants would be entitled to interest on the awarded amount from the date of filing of the petition and costs of the suit. Dissatisfied with the aforesaid award, the claimants have preferred the present appeal for enhancement of compensation. As I have already stated that the respondents have filed their cross-objections.
(6) I have heard the learned counsel, for the parties and have also been taken through the entire evidence on record. The question of negligence need not detain me long, in view of the site plan which was not disputed by the learned counsel, for the respondents, The site plan is Ex. Public Witness 5/1. It clearly indicates that the accident took place in the middle of the crossing. The scooter driven by the deceased was obviously being driven on the correct side of the road. The Ring Road at the relevant point is a double road and pedestrian path divides the said road. The said plan further disclosed that the truck took a right turn at the crossing towards Kilokri. The two vehicles collided just in the centre of the crossing. Regulations 6 and 7 of the Driving Regulations (X Schedule to the Motor Vehicles Act, 1939) are as under :
'6.The driver of a motor vehicle shall slow down when approaching a road inter-section, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of the persons thereon.
7.The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road and in any other case give way to all traffic approaching intersection on his right hand.'
(7) It has not been disputed in the written statement filed on behalf of the owner and the driver that the truck had taken a turn to the right. It has been pleaded that when the truck had nearly taken the turn the scooter involved in the accident which was being driven recklessly and at a very fast speed and in violation of the Traffic Rules, the accident took place. This plea of the respondents is clearly contrary to the site plan because as I have already said the accident has taken place in the middle of the crossing. It has not been disputed that the deceased was driving in his correct lane and had a right of way while the truck took turn to the right. In the circumstances, the duty was obviously of the truck driver to make sure that he could get a clear way before turning to the right. In fact, this argument was not seriously pressed by the learned counsel, for the respondents in view of the Regulations and the site plan. In the circumstances, it is not necessary to go into the oral evidence which also supports the case of the claimants. I may also mention that no evidence whatsoever has been produced by the respondents before the Tribunal.
(8) Coming to the question of quantum of compensation, the case of the appellants was that the deceased was aged 40 years and had a monthly income of Rs. 3.000.00 besides the free house, free conveyance and other amenities. Unfortunately the only piece of evidence which has been proved on record is the salary voucher Ex. Public Witness 8/1 which shows that the deceased was getting Rs. 1.600.00 per month. The appellants have not proved any further document from the company in order to show that he was entitled to free conveyance or free house. This is in spite of the fact that appellant No. I took over as managing director of same company after the death of the deceased and had complete access to the records of the company. Her case that the record was not available, has rightly not been believed by the learned Tribunal and I can find no error with the said finding. As regards the age of the deceased, the best evidence again could be produced by the appellants but unfortunately there is absolutely no evidence except the bald statement of appellant no. 1. The Tribunal took into consideration various factors such as the qualifications of the deceased, his spending 20 years in U.K. and his having married in 1961 and has come to the conclusion that the age of the deceased should be taken to be 45 years and not 40 years as alleged. This finding, in my view also cannot be disturbed.
(9) The Tribunal came to the conclusion that the deceased was a technical man and would have worked up to the age of 60 years and thereforee he applied a multiplier of 15. It is true that the deceased had a history of family longevity and he might have continued to work even after the age of 60 years as determined by the Tribunal. Since the compensation is being paid in lump- sum and no deduction is being made on account of the payment in lump sum, that factor will take care of the income of the deceased beyond the age of 60 years. In the circumstances, I would also uphold the multiplier of 15 as applied by the Tribunal. However, the question for consideration is whether Tribunal was justified in considering that half of the earnings of the deceased were being spent on himself. It is not necessary to refer to various authorities on this question because each case has been decided on its own facts. What has to be taken into consideration is the status of the family, the number of dependents and their ages and the expenses required for them. In the present case, the deceased left behind his widow, two school going children and his mother. In view of the children being school going and status of the family being good, it cannot be assumed that the decease would have spent 50% of his income on himself, particularly when we know that the deceased had at least the benefit of company's vehicle for his official work. He was not having any vehicle of his own. He was admittedly going by car belonging to the company and the scooter involved in the accident was also owned by the company. Considering all these circumstances, I am of the opinion that the deceased would not be spending more than 25% of his income on himself and the remaining income went for his dependents. Consequently I hold that the claimants are entitled to 75% of Rs. l,88,000.00 as determined by the Tribunal. The award is modified to the extent that the claimants would be entitled to Rs.1,44,000.00 in addition to Rs. 3.000.00 instead of Rs. 97.000.00 as awarded by the Tribunal. The compensation is enhanced accordingly.
(10) The next question for determination is regarding the liability of the insurance company. The learned Tribunal took into consideration that the insurance company had pleaded in the written statement that its liability was limited as provided under section 95 of the Act. thereforee, he held that the insurance company was liable only to the extent of Rs. 50,000.00 . It is true that section 95(2)(b) makes it obligatory for the insurance company to cover the risk up to the extent of Rs. 50.300.00 . That, however, does not mean that there cannot be contract to the contrary. The Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporter's Insurance Co. Ltd, 1971 Acj 206 observed that limit of insurance prescribed under section 95(2)(b) of the Motor Vehicles Act can be enhanced by any contract to the contrary. In view of this, the Supreme Court went into the terms of the policy and came to the conclusion that in that particular case the policy was strictly in accordance with the provisions of section 95(2) and as such the liability of the insurance company was found to be to the extent of Rs. 2,000.00 for each of the persons involved in the accident. However, in the present case, it appears from the record that the owner was also being defended by the counsel engaged by the insurance company. All the witnesses produced by the claimants have been cross-examined by only one counsel i.e. the counsel engaged by the insurance company. Some of the pleadings have also been jointly filed on behalf of the respondents and are signed by only one counsel. This fact leads to the conclusion that the insurance company had taken over the defense of the owner and the driver as well. In spite of that the insurance company has not placed the policy of insurance on record. Even in the written statement filed by the insurance company, it has not been pleaded that policy of insurance was strictly in accordance with section 95(2) of the Act. The plea of limited liability was specifically denied by the claimants in their replication wherein it was stated that the insurance company had issued a comprehensive policy and was thus liable for the entire awarded amount. In spite of all these pleadings, the insurance company did not choose to place the policy on record and this could be obviously for the reason that the policy must have contained the extra liability.
(11) In Ajit Sing v. Sham Lal and others, 1984 Acj 255 a Division Bench of Punjab and Haryana High Court held :
'WHERE the statutory provision in question merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company for whatever reasons fails to bring on the record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provision in question.'
Same view was taken by a Division Bench of Allahabad High Court in National Insurance Co. v. Narendra Kumar and others, 1981 Acj 93 and by a Single Judge of this Court in Jugal Kishore v. Rai Singh and others, 1982 Acj 503.
(12) Reliance was placed by the learned counsel for the Insurance Co. on a Division Bench judgment of Orissa High Court in Sabita Pali and others v. Rameshwar Singh and another, 1973 Acj 319 and Full Bench judgment of Madras High Court in Jayalakshmi v. Ruby General Insurance Co. Ltd., 1970 Acj 451 It is true that in both these cases it was held that the liability of the insurance company was limited to Rs. 20,000.00 as were the provisions at the relevant time. However, there could be no dispute about the correctness of these decisions because in both these cases the policy of insurance had been produced and proved. A perusal of the policies clearly indicated that the policies were drawn up strictly in accordance with the provisions of section 95(2)(b) of the Act and there was no provision for any additional indemnity. These judgments can be of no help to the insurance company in the present case, for the simple reason that the policy has not been produced and it cannot be said that the insurance company had not covered the additional risk.
(13) The next contention of the learned counsel for the insurance company was that it was for the claimants or the owner to produce the policy since the burden of proof was on them to prove that the insurance company had taken additional liability. This contention has also no merit. In Ch. Razik Ram v. Ch. J.S. Chouhan and others, 1975 Sup C 667 it was held by their lordships of the Supreme Court that the principle underlying section 106 of the evidence Act which is an exception to the general rule governing burden of proof applies only to such matters of defense which are supposed to be especially within the knowledge of the party concerned. It cannot apply when the fact is such as to be capable of being known also by persons other than the party. In the present case, obviously the insurance company was in a position to produce and prove the policy, particularly, when the defense of the owner had been taken over by the insurance company and the petition was being contested by a counsel engaged by the insurance company. It was obviously for the insurance company to produce and prove the policy if the same is in any way helpful to the company. That having not been done, the obvious result is that the insurance company is liable to pay the entire amount awarded in the present case.
(14) For the reasons recorded above, the claim is allowed to the extent that the amount of compensation is enhanced from Rs. 94,000.00 to Rs. 1,41,000.00 . Rs. 3,000.00 as awarded for mental agony and medicines is also maintained. Thus the appellant-claimants will be entitled to Rs. 1,44,000.00 in all instead of Rs 97,000.00 . The claimants will be entitled to interest and costs as awarded by the Tribunal and costs in this Court also. The entire amount will be payable by the respondent No. 3 namely New India Insurance Co. Ltd. In view of these findings, the cross objections, filed by the respondents, shall stand dismissed.