S.N Phukan, C.J:— By this common judgment and order, we dispose of five appeals along with the connected cross-objections, registered as F.A.O No. 19 of 1985 with Cross-Objection No. 153 of 1985, F.A.O No. 56 of 1985 with Cross-Objection No. 40 of 1986, F.A.O No. 57 of 1985 with Cross-Objection No. 188 of 1985, F.A.O No. 58 of 1985 with Cross-Objection No. 41 of 1986, F.A.O No. 59 of 1985 and F.A.O No. 60 of 1985.

2. F.A.O No. 56 of 1985 has been filed by the insurance company against the award. The claim petitioner-respondent Renu Acharya filed the claim petition under section 110-A of the Motor Vehicles Act, 1939 (hereinafter called as ‘the Act’), on the death of her husband Surendra Acharya, who died in the accident on 24.2.1980 The deceased was working as the Deputy Chief Officer, Reserve Bank of India, Chandigarh and was travelling with Bishan Swamp Maharishi, Sanjeev Kulkarni and K.C Dhawan. They were proceeding from Shimla to Dharamshala in car No. HPS 2166 belonging to the Himachal Pradesh Co-operative Bank Ltd. and insured with the present appellant, namely, Oriental Insurance Co. Ltd. The car was being driven, at the time of accident, by Mansha Ram, driver and on the way it met with an accident and the husband of the claimant-respondent died instantaneously. It may be stated that late Surendra Acharya left behind two wives and in this claim petition we are concerned with the second wife, Renu Acharya. Various pleas were taken in the written statement, including the plea of limitation and the extent of the liability of the insurance company. The pleas of the appellant insurance company were rejected by a speaking order. The Tribunal, inter alia, held that the co-operative bank was vicariously liable for the act of the servant and the accident took place due to the negligence on the part of the driver. The delay was also condoned. After considering the insurance policy, exhibited as Exh. RW-1.C, it was held that the insurance company is liable to the full extent to satisfy the award. The Tribunal held that the carry home pay of the deceased was Rs. 1,540.53 and the dependency of the claimant-respondent, being co-wife, was assessed at Rs. 513/- p.m Accordingly, by applying the multiplier of 7, a sum of Rs. 43,092/- was awarded in favour of the claimant-respondent and in addition a sum of Rs. 3,000/- was awarded by way of conventional figure of damages for loss of expectancy of life. Interest at the rate of 6 per cent per annum on the amount of compensation was awarded from the date of award till realisation of compensation.

3. In the cross-objections (Cross-Objection No. 40 of 1986), it has been urged that the Tribunal erred in law and facts in not awarding full claim of the respondent-claimant and that interest at the rate of 6 per cent per annum from the date of award is also not according to law. The multiplier adopted by the Tribunal has also been disputed, as according to the claimant-respondent, the longevity of the age of the family of the deceased was 80 to 85 years. It has also been stated that had the deceased continued in service, he would have reached the Grade (F) as a Deputy Chief Officer of the Reserve Bank of India and his maximum basic pay would have been Rs. 3,500/- per month, as the deceased was to retire after 8 years of service and he would have drawn Rs. 5,000/- as his monthly salary before retirement. The awarding of Rs. 3,000/- as the conventional figure of damages has also been disputed and according to the claimant-respondent, it should have been Rs. 5,000/-.

4. F.A.O (M.V.A) No. 58 of 1985 has been filed by the insurance company against the award of the Tribunal. In the appeal, Cross-Objection No. 41 of 1986 has been filed by Sarla alias Madhukanta, second wife of late Surendra Acharya. The facts stated above are similar and the respondent-claimant has claimed a sum of Rs. 3,00,000/- as compensation. She has also stated that she has no other means to maintain herself. According to her, the accident took place because of the rash and negligent driving of the driver. In this case also, appellant insurance company, namely, the Oriental Insurance Co. Ltd., has raised the point that the liability of the insurance company is limited under section 95 of the Act and that the deceased was travelling as a passenger in the car and the liability is not covered by the insurance policy. According to the insurance company, its liability is only limited to Rs. 10,000/-. The learned Tribunal, after considering all the facts, awarded a sum of Rs. 46,092/- in favour of the claimant-respondent and applying the doctrine of res ipsa loquitur held that the accident occurred due to the rash and negligent act of the driver of the car, who was in the employment of the co-operative bank and that the bank is liable to pay the compensation. Relying on the insurance policy, the learned Tribunal held that the insurance company is liable for the entire amount. It was also held that late Surendra Acharya was proceeding from Shimla to Dharamshala on official tour to participate in the meeting convened by the State Government. The income of the deceased was assessed at Rs. 1,540.53 per month as his carry-home salary and the personal expenditure of the deceased was worked out at Rs. 513/- per month. The annual dependency of the claimant-respondent was worked at Rs. 6,156/- and applying the multiplier of 7, a sum of Rs. 43,092/- was awarded to her. In addition, a sum of Rs. 3,000/- by way of conventional figure of damages for loss of expectancy of life was also awarded. In other words, a sum of Rs. 46,092/- in total was awarded in favour of the claimant-respondent and in addition interest at the rate of 6 per cent per annum was awarded from the date of the award till the date of realisation of compensation.

5. In Cross-Objection No. 41 of 1986, it has been urged that the Tribunal erred in law in not allowing full compensation and that the interest has been awarded from the date of award and not from the date of claim petition. It has also been urged that the learned Tribunal erred in adopting the multiplier. The expectancy of life of the deceased should have been taken into account as 80 to 85 years, due to the family history and that since the deceased had eight years of service still to be completed, he would have drawn at least Rs. 5,000/- as his monthly salary. The conventional figure of Rs. 3,000/- has also been disputed and the claimant-respondent claims a sum of Rs. 10,000/- on this count.

6. F.A.O (M.V.A) No. 60 of 1985 has been filed by the claimants-respondents against the award of the Tribunal. Late Bishan Swarup Maharishi, the husband and father of the claimants-respondents, died in the same accident. Late Bishan Swarup Maharishi, aged 45 years, was the Managing Director of Himachal Pradesh State Co-op. Bank Ltd. The claimants-appellants have claimed a compensation to the tune of Rs. 8,75,000/-. The facts are similar, as stated above. According to the claimants-appellants, the accident occurred due to the rash and negligent act on the part of the driver of the car. According to the Tribunal, the deceased was travelling in the car not for hire or reward but in connection with the employment. The learned Tribunal by a speaking order held that the total dependency worked out at Rs. 500/- per month. The learned Tribunal adopted the multiplier of 10 and assessed the compensation to be payable to the claimants at Rs. 1,50,720/- and he added a sum of Rs. 3,000/- to this amount by way of conventional figure of damages for loss of expectancy of life. In total, a sum of Rs. 1,53,720/- was awarded. Interest was awarded at the rate of 6 per cent per annum from the date of award till realisation of the compensation amount. All the claimants were held entitled to the amount of compensation in equal shares.

7. F.A.O (M.V.A) No. 19 of 1985 has been filed by the Himachal Pradesh State Co-operative Bank against the award of the Tribunal. Cross-Objection No. 153 of 1985 has been filed by the parents of Sanjeev Kulkarni, who also died in the same accident. At the time of the accident, the deceased was 18 years old and he had completed his training in TV Technology and had started working as T.V Technician at Chandigarh. It has been stated that the monthly income of the deceased was Rs. 700/-. The learned Tribunal awarded a sum of Rs. 99,000/- as compensation, after condoning delay of 42 days in filing the claim petition. It was also held that the accident took place due to the rash and negligent driving by the driver and following the doctrine of res ipsa loquitur, the appellant was held to be responsible for the claim. The liability of the insurance company was limited only to Rs. 15,000.

8. In this appeal cross-objection has been filed, which is registered as Cross-Objection No. 153 of 1985. It has been urged in the cross-objection that the learned Motor Accidents Claims Tribunal erred in law in awarding interest from the date of award instead of giving it from the date of claim petition and that the interest at the rate of 6 per cent is also not in accordance with law. The claimants claim that they are entitled to get interest at the rate of 12 per cent per annum. The further point taken in the cross-objection is that the learned Tribunal has not given any compensation on account of loss of consortium (Sic. company), as the deceased was the only son of the claimants-respondents. In respect of mental agony, the learned Tribunal awarded a sum of Rs. 3,000/- whereas the claimants have claimed a sum of Rs. 10,000/- on this count. The cost assessed by the Tribunal has also been disputed and so also the multiplier.

9. F.A.O (M.V.A) No. 59 of 1985 has been filed by the Oriental Insurance Co. Ltd. against the award passed by the Tribunal, which is the subject-matter of appeal No. F.A.O (M.V.A) No. 60 of 1985, in respect of the same accident. The facts of this case have already been dealt with by us, while dealing with F.A.O (M.V.A) No. 60 of 1985 and, therefore, it is not necessary to reiterate the facts again. There is no cross-objection in this appeal, as the claimants-respondents have filed the above independent appeal.

10. F.A.O (M.V.A) No. 57 of 1985 is also by the insurance company against the award of the Motor Accidents Claims Tribunal, in respect of injuries caused to K.C Dhawan, in the same accident. The claimant-respondent has filed a cross-objection, which is registered as Cross-Objection No. 188 of 1985, claiming a sum of Rs. 1,00,000/- on account of injuries caused to him and lifelong physical disablement reducing the earning capacity by 10 per cent as a result of the same accident. The claimant was also travelling in the same car, which met with the fatal accident. The learned Tribunal, after considering various decisions of the courts, held that the liability of the insurance company was limited to Rs. 15,000/- in view of the extra premium paid by the bank. After examining the entire aspect of the matter, a sum of Rs. 10,000/- was awarded as compensation to the claimant-respondent.

11. In the cross-objection, it has been submitted that while rightly holding that the accident had occurred owing to the rash and negligent driving of the driver, there is evidence on record to show that the claimant-respondent was confined to bed up to 11.5.1980 and as such he is entitled to compensation as claimed by him. It has also been urged that the learned Tribunal erred in law by not awarding interest from the date of the accident, together with future interest at the rate of 6 per cent per annum and accordingly it has been prayed that the sum of Rs. 10,000/- awarded as compensation may be enhanced to Rs. 1,00,000/-, with interest.

12. Heard learned counsel for the parties. It may be stated that after the arguments were heard in the appeals, Mr. Chhabil Dass, Advocate, died and as such his name has not been shown in the cause title but the name of his junior Mr. Anand Sharma has been shown in his place.

13. Now, let us take up the F.A.O (M.V.A) Nos. 56 and 58 of 1985, along with Cross-Objection Nos. 40 and 41 of 1986, respectively. Both the appeals have been filed by the insurance company and in view of the provisions of section 96 of the Act, the insurance company can file appeals against the award only on limited grounds.

14. Both the claimants-respondents are the widows of late Surendra Acharya, Deputy Chief Officer, Reserve Bank of India, who died instantaneously in the accident, which took place on 24.2.1980, while he was travelling in the car No. HPS 2166, along with Bishan Swarup Maharishi, Sanjeev Kulkarni and K.C Dhawan from Shimla to Dharamshala.

15. Though the insurance company can file appeals on limited grounds, but as a separate appeal has been filed by the Himachal Pradesh State Co-operative Bank Ltd., which was registered as F.A.O (M.V.A) No. 19 of 1985, being the owner of the car, and also cross-objections, we may consider all the pleas raised in the present appeals.

16. Renu Acharya, claimant, is the widow of Surendra Acharya, who filed her claim petition 42 days beyond the time prescribed for filing such petitions, along with an application with a prayer for condonation of delay. The learned Tribunal framed issue No. 4 on this point and by a reasoned order held that it was a fit case to condone the delay. That apart, it was also taken into consideration that the other wife, namely, Sarla alias Madhukanta, filed a separate claim petition within time and, therefore, Renu Acharya being the legal representative could have joined in the same petition. We agree with the reasoning given by the learned Tribunal and hold that the delay was rightly condoned.

17. The second point urged before us was that late Surendra Acharya was only a gratuitous passenger and was not travelling in the vehicle in the course of his employment. This point was also decided in favour of the claimants-respondents.

18. Renu Acharya, while appearing as AW 1-, deposed that her husband was travelling on official duty from Shimla to Dharamshala. The General Manager of the Himachal Pradesh State Co-op. Bank Ltd., who appeared as PW 3, categorically stated in his cross-examination that late Surendra Acharya was on official duty from the Reserve Bank of India. Therefore, the learned Tribunal rightly held that late Surendra Acharya was travelling in the vehicle in the course of his official duty.

19. Exh. RW 1.A is the letter issued by the Regional Office of the insurance company to all the Divisional Offices in Northern Region and the letter is dated 13.2.1981 It was sent from the Northern Regional Office, New Delhi. This letter refers to clause 1, section II(a) of motor car comprehensive policy. As per the decision of the Tariff Advisory Committee, all the insurers were asked to add the following words, after the words ‘death of or bodily injury to any person’:

“Including occupants carried in the motor car provided that such occupants are not carried for hire or reward.”

20. It was also directed that this amendment would come into force automatically from 17.2.1978 Therefore, in respect of the present accident, the insurance policy, namely, Exh. RW 1.C, which was valid from May, 1979 to May, 1980, the present clause will apply. In other words, even in respect of gratuitous passenger, insurance company shall be liable.

21. This question came up before a Bench of five Judges of the Gauhati High Court in New India Assurance Co. Ltd. v. Satyanath Hazarika, 1989 ACJ 685 (Gauhati), in which the above instructions of the Tariff Advisory Committee were considered and it was held that this clause will have a retrospective effect in all cases pending before the Claims Tribunals or the appellate authorities on or before 25.3.1977 We are in respectful agreement with the above law laid down. The same view was also expressed by the learned single Judge of the Orissa High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Sanatan Pradhan, 1988 ACJ 792 (Orissa) and also by the learned single Judge of the Delhi High Court in Sagar Chand Phool Chand Jain v. Santosh Gupta, 1985 ACJ 585 (Delhi).

22. Therefore, even if late Surendra Acharya or any other person was a gratuitous passenger, his legal representatives would be entitled to get compensation, in view of the above letter (Exh. RW 1.A) issued by the Regional Office of the insurance company. While considering the other appeals, this finding will be relevant.

23. The next question is whether the accident took place due to rash and negligent driving. The plea taken by the owner of the vehicle is that the accident occurred when the car was going on a zigzag road and all of a sudden the steering got jammed, with the result that the car went out of control and fell into the khud. The factum of the accident has been admitted. There is no eyewitness or any other evidence to show that the accident took place due to mechanical defect of the steering. Even K.C Dhawan, Deputy General Manager of the Himachal Pradesh State Co-operative Bank Ltd., the owner of the car, who appeared as PW 3, could not explain how the accident took place. It may be stated that though he was travelling in the same car, he was the only survivor. The learned Tribunal, after considering the entire evidence on record, rightly held that the burden of proving that the accident occurred due to the mechanical defect of the car was on the owner of the car and it was also his duty to show that he had taken all reasonable care but despite such care the defect remained hidden. There is absolutely no evidence on record to show that the steering of the car got jammed. As stated above, it has also not been denied that the car went into the khud. Therefore, we hold that the accident took place due to the rash and negligent act on the part of the driver.

24. Applying the doctrine of res ipsa loquitur, we hold that the owner of the car, namely, Himachal Pradesh State Co-op. Bank Ltd., is liable for compensation to be paid to the claimants.

25. We may now refer to the decision of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Company, 1977 ACJ 343 (SC). In that case, the car went to the extreme right of the road and dashed against the tree with violent force and as a result the occupants of the car died. The owner did not make any attempt to show that for the accident there was no negligence on his part. On these facts, the Apex Court held that the driver was negligent and applying the principle of vicarious liability held that as the car was driven by the Manager of the company, in the course of his employment, the master was liable. In the present case also, one of the employees of the co-operative bank was in the vehicle and admittedly the driver of the vehicle was the employee of the bank, the owner of the car, and he was driving the vehicle in the course of his employment. By applying the doctrine of res ipsa loquitur, we hold that the owner of the car, namely, the Himachal Pradesh State Co-operative Bank Ltd., shall be liable for the negligent act of the driver. This was also the finding of the learned Tribunal.

26. Now the question is as to what is the extent of liability of the insurance company. The Tribunal has held, relying on a decision of the Madras High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. V. Ganapathi Ramalingam, 1982 ACJ (Supp) 106 (Madras), that the insurance company is liable to the full extent to satisfy the award, as the policy was comprehensive one. The learned Tribunal also relied upon a decision in Gopibai Ghanshamdas Advani v. Food Corporation of India, Bombay, 1983 ACJ 340 (Bombay). On the other hand, learned counsel for the insurance company has urged that though the car in question was covered by the comprehensive insurance policy, the liability of the insurance company is only up to Rs. 15,000/-.

27. The question with regard to liability of the insurance company relating to payment of compensation in a motor accident on the basis of comprehensive insurance policy came up before the Apex Court in New India Assurance Co. Ltd. v. Shanti Bai, 1995 ACJ 470 (SC). Relying on the earlier decision of the Apex Court, in National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC), held that the comprehensive policy is issued on the basis of the estimated value of the vehicle and, therefore, the limit of liability with regard to the third party risk does not become unlimited or higher than the statutory liability, unless there is a specific agreement for this purpose and separate premium is paid.

28. From the insurance policy, Exh. RW 1.C, it appears that though it is a comprehensive policy qua the car in question, additional premium was paid for accident passengers and accordingly there was an agreement between the insured and the insurer and an additional clause was incorporated in the policy in question. Under the heading “Concession for cars laid up” under item No. I.M.T 5 accidents to unnamed passengers other than the insured and his paid driver or cleaners, the insurance company agreed to pay as per norms laid down in this clause. It was also provided that compensation shall be payable in case of death, etc., as stated in item Nos. (1) to (7) in respect of any such passengers out of any one occurrence and total liability of the company shall not in aggregate exceed a sum of Rs. 75,000/-. Therefore, the Apex Court held in Shanti Bai's case, 1995 ACJ 470 (SC), that merely because an insurance policy is a comprehensive one, the limit of liability with regard to the third party risk of the insurance company does not become unlimited or higher than the statutory limit unless there is a specific agreement for this purpose and separate premium is paid. In all these appeals, from the above insurance policy, it is clear that separate premium was paid and the maximum liability of the insurance company was Rs. 75,000/- in one case.

29. Let us now take up the cross-objections, namely, Cross-Objection Nos. 40 and 41 of 1986, respectively. The first point urged is that the learned Tribunal erred in law in giving interest from the date of the award and not from the date of the claim petition. The legal position in this behalf is well settled that claimants would be entitled to get interest from the date of the filing of the claim petition. Therefore, we hold that the claimants shall be entitled to get interest on the award amount from the date of the filing of the claim petition.

30. The next point urged is that had the deceased survived, he would have drawn pay at the rate of Rs. 5,000/- per month at the time of his retirement. It has been pleaded that the learned Tribunal erred in law in fixing the total emoluments of the deceased.

31. The deceased was aged 50 years at the time of his death. The learned Tribunal, on the basis of the evidence on record, assessed the net salary of the deceased as Rs. 1,540.53, after making various deductions towards provident fund, etc. The amount assessed by the Tribunal is on the basis of evidence of AW 2, Staff Officer, Reserve Bank of India, Chandigarh, who deposed with the record. Therefore, we hold that the assessment is justified. The learned Tribunal has also added a sum of Rs. 3,000/- by way of conventional figure of damages for loss of expectancy of life. After applying the multiplier of 7, the share of claimant Renu Acharya was fixed at Rs. 46,092/- and similar amount was awarded to the co-wife, namely, Sarla alias Madhukanta, who is respondent in F.A.O (M.V.A) No. 58 of 1985. Therefore, in our opinion, considering the age of the deceased, the multiplier of 7 is on the lower side and we hold that it is a fit case to use the multiplier of 10.

32. Now let us take the case of F.A.O (M.V.A) No. 60 of 1985 filed by the claimants-respondents against the award of the Tribunal on account of the death of Bishan Swarup Maharishi, husband and father of the claimants-respondents, who died in the same accident. At the time of death the deceased was 45 years of age and the Tribunal has held that the total dependency was Rs. 500/- per month. The Tribunal adopted a multiplier of 10 and assessed compensation at Rs. 1,50,720/- plus Rs. 3,000/- as conventional figure of damages for loss of expectancy of life. The total amount came to Rs. 1,53,720/- and interest at the rate of 6 per cent per annum from the date of the award till the payment of compensation.

33. It has come in evidence that late Bishan Swarup Maharishi was travelling in the car being the Manager of the bank in his official capacity. Considering his age and his carry-home pay, we are satisfied that multiplier of 10 was just and proper. However, the interest is payable from the date of application and not from the date of award. As F.A.O (M.V.A) No. 59 of 1985 has been filed by the insurance company against the same award, it is dismissed.

34. Regarding F.A.O (M.V.A) No. 19 of 1985 and Cross-Objection No. 153 of 1985, the learned Tribunal awarded a sum of Rs. 99,000/- as compensation as the deceased was a T.V Technician and considering his income, the compensation awarded cannot be faulted. Therefore, both the cross-objection and the appeal are dismissed. However, the interest shall be payable from the date of filing of the claim petition as per the settled law.

35. F.A.O (M.V.A) No. 57 of 1985 is regarding the award of the Tribunal in respect of injuries caused to K.C Dhawan. Though he claimed Rs. 1,00,000/- but we find that his earning capacity was lost only by 10 per cent. As he was serving as a Deputy General Manager, he has claimed this amount as stated above. The Tribunal awarded an amount of Rs. 10,000/-. We do not find any scope to interfere with the order of the Tribunal and we hold that the amount was properly assessed.

36. The net result of the aforesaid discussion is that the amount awarded as compensation does not exceed Rs. 75,000 except in two appeals, namely, F.A.O (M.V.A) No. 60 of 1985 where the amount awarded was Rs. 1,53,720/- and F.A.O (M.V.A) No. 19 of 1985 where the amount awarded was Rs. 99,000/-. For the reasons stated above, the appeals and the cross-objections are disposed of with the following modification in the award:

(1) In respect of F.A.O (M.V.A) Nos. 56 and 58 of 1985 and the connected cross-objections, the amount shall be calculated by using the multiplier of 10 and shall be paid equally to both the wives, namely, Renu Acharya and Sarla alias Madhukanta, who have filed the claim petitions separately in respect of the above two appeals. The amount shall be paid by the insurance company.

(2) In F.A.O (M.V.A) Nos. 60 and 19 of 1985, out of the total amount awarded, namely, Rs. 1,53,720/- and Rs. 99,000/- respectively, the liability of the insurance company shall be limited only to Rs. 75,000/- and the balance shall be paid by the owner of the vehicle, namely, Himachal Pradesh State Co-operative Bank Ltd.

(3) In F.A.O (M.V.A) No. 57 of 1985 and Cross-Objection No. 188 of 1985, the entire amount awarded, namely, Rs. 10,000/- shall be paid by the insurance company.

37. With the above modification in the impugned award, the appeals and the cross-objections are disposed of with no order as to costs.

38. Orders accordingly.