S.K Chattopadhyaya, J.:— The appellant is the New India Insurance Company Limited (shortly ‘the Insurance Company’). It has challenged the judgment dated 29.7.87 and the award dated 10.8.87 by reason of which the Claims-Tribunal has awarded a sum of Rs. 1,12,000/- to the claimants as compensation under Section 110A of the Motor Vehicles Act.
2. The claimants (respondents 1 and 2) filed a claim case for grant of compensation on account of death of their son Zasikuddin Ansari. According to the claimants the deceased was the driver of a taxi bearing registration no. BHM 9039 belonging to respondent no. 3. While returning to his house on 26.1.82 the said vehicle dashed against a tree by the side of the road as a result of which the deceased succumbed to his injuries. It is the case of the claimants that the deceased was getting salary of Rs. 1100/- per month and the vehicle was insured with the Insurance Company. The Insurance Company as well as the owner filed their respective statements. The stand of the owner of the vehicle was that though the deceased was his employee but as the vehicle was insured with the Insurance Company, it was the Insurance Company which was liable to pay the compensation. The Insurance Company, on the other hand, had taken a stand that as the details of the accident have not been given in the claim petition and the circumstances under which the deceased died, the claim petition itself was not maintainable.
3. On consideration of the evidence on record, the Claims-Tribunal came to the conclusion that the factum of accident is not in dispute and at the time of accident the deceased was driving the vehicle. Taking into consideration the evidence of one Md. Azim, A.W 4, a motor mechanic the Tribunal arrived at a conclusion that on account of the negligence on the part of the owner to maintain the vehicle properly, the said vehicle met with an accident resulting in the death of the victim driver. The Motor Vehicle Inspector, A.W 5, has also found certain mechanical defects in the vehicle and according to him the accident was caused due to failure of the hydraulic foot-break which failed due to leakage of break oil from either pipes, wheels or motor cylinder cups.
4. As regards compensation, the Tribunal has taken note of the fact that in spite of calling for the original policy, the Insurance Company did not file the same in the court and, as such, the insurer was liable to cover the entire risk and the liability of the insured. After coming to the aforesaid conclusion regarding the liability of the Insurance Company, the Tribunal has computed the compensation taking into consideration the monthly salary of the deceased after deducting Rs. 500/- as the personal expenditure of the deceased. The Tribunal has found that the deceased used to contribute Rs. 600/- per month to the family. According to the Tribunal the yearly income of the family from the deceased comes to Rs. 7000/- per year and he applied multiplier method i.e Rs. 7000 × 16 and, as such, awarded a sum of Rs. 1,12000/- as compensation to the claimants.
5. It appears that by order dated 10.5.88 this court permitted the appellant to file the certificate of insurance policy issued to respondent no. 1 with regard to the vehicle in question.
6. Mr. Eqbal, learned advocate appearing on behalf of the appellant, submitted that as because it was an admitted fact that the vehicle was comprehensively insured, the liability of the Company is limited to Rs. 50,000/- only. Secondly, it is contended that the deceased-driver being an employee/workman of the owner (respondent no. 3), he could have filed a claim under the Workmen Compensation Act. Even assuming, it is asserted, that instead of filing the claim under the Workmans Compensation Act, the claimants have filed the claim petition before the Claims Tribunal, the compensation has to be calculated in accordance with the provisions laid down under the Workmen Compensation Act. Mr. Eqbal further submits that there are three types of policies, namely, (i) Act policy which is covered under Section 95(2) of the Motor Vehicles Act, (ii) comperhensive insurance policy i.e apart from compensation under Section 95A the compensation to be paid for the damage to the vehicle and (iii) unlimited compensation if the policy covers as such. For the Act policy, a separate policy has to be entered into and unless the owner files the documents to show that there was a policy for unlimited amount of compensation by paying the premium from time to time, the same cannot be taken into account for computing the compensation.
7. Continuing his argument Mr. Eqbal says that the owner in this case admittedly did not file any document to show that the vehicle was insured by a policy which would compel the Insurance Company to pay unlimited amount of compensation. According to Mr. Eqbal in such cases, the owner has to prove that there was an extra policy by payment of extra premium. In this case, however, it has not been done. Lastly, it is submitted on behalf of the appellant that the Tribunal has erred in law in not computing the compensation in view of the recent decision of the Supreme Court reported in (1994) 2 SCC 176 : AIR 1994 SC 1631.
8. Mr. P.C Roy appearing on behalf of respondents 1 and 2 on the other hand, has contended that only because the deceased-driver was an employee of respondent no. 3 and, as such, the claimants could have filed the claim petition under the Workmen Compensation Act, it does not debar the Tribunal to award compensation under the provisions of the Motor Vehicles Act when the claim petition was filed under the M.V Act. Mr. Roy further submits that the argument of the appellant that as the driver was an employee/workman and as such, the Tribunal should have computed the compensation in accordance with the provisions laid down under the Workmen Compensation Act, cannot be said to be reasonable. Mr. Roy further asserted that though this Court by order dated 10.5.88 permitted the appellant to file the certificate of insurance but the appellant has not filed a true copy of the policy in question.
9. Having noticed the submissions of the learned counsel, I am of the view that as because the deceased-driver was an employee/workman under respondent no. 3 and the claimants could have filed a claim petition under the Workmen Compensation Act, it does not seem very reasonable that when a Tribunal constituted under the Motor Vehicles Act entertains the claim petition, the Tribunal was bound to assess the compensation under the Workmen Compensation Act. My aforesaid view is supported by the decisions reported in 1988 ACJ 307 and 1987 ACJ, 584.
10. The Apex court in a recent decision in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susmma Thomas reported in (1994) 2 SCC 176 : AIR, 1994 Supreme Court, 1631, has laid down certain procedures which the Claims Tribunal is required to follow. The Supreme Court has reiterated once more that the multiplier method is logically sound and legally well established. In the aforesaid decision their lordships have held that the multiplier represents the number of years' purchase on which the loss of dependency is capitalized. On the basis of the guidelines given in the reported decision, in the instant case, in my opinion, the amount of compensation should be calculated taking into account the admitted salary of the deceased i.e Rs. 1100/- per month deducting one third of the gross income towards his personal living expenses and the balance should be treated as the amount likely to have been spent on the members of the family and the dependants which, will come approximately to Rs. 740/- per month or Rs. 8,880/- per year as the loss of dependency. This amount of 1,880/- can be taken to be a round figure of Rs. 9000/- per year. If a total sum of Rs. 85000/- is kept in a fixed deposit account at the rate of 12% interest per annum, the claimants-dependants will get the same amount which the deceased used to spend on them. To this amount of award for loss of consortium and the loss of estate each comes to Rs. 15,000/-. The total amount thus comes to Rs. 1,00,000/- which in view of the aforesaid decision of the Supreme Court the claimants are entitled to get.
11. The Tribunal has found that the owner as well as the Insurance Company admitted that the vehicle in question was covered by a comprehensive insurance. The policy filed in this court on behalf of the appellant also shows that the vehicle was covered by a comprehensive insurance. Taking into consideration this fact, the liability of the appellant Company is upto Rs. 50,000/-. In my opinion, therefore, the Tribunal has committed an error of law in fixing the whole liability on the appellant-company and illegally directed it to pay the total sum of Rs. 1,12,000/- to the claimants.
12. In the case of New India Assurance Co. Ltd. v. Anil Mathew, their lordships by order dated 9.5.94 passed in SLP (C) 1359/94, directed that the Insurance Company will be liable up to Rs. 50,000/- with interest and proportionate costs. In view of the aforesaid order, I direct that the company-appellant is liable to pay a sum of Rs. 50,000/- (Fifty thousand) and interest at the rate of 12% p.a out of the total amount of Rs. 1,00,000/- (One lakh) which has been assessed in this case. The rest of the amount will be deposited by respondent no. 3 who, even after service of notice did not appear to contest the appeal. Respondent no. 3 will deposit the balance amount of compensation with interest at the rate of 12% p.a from the date of filing of the claim petition before the Claims-Tribunal.
13. In the result, this appeal is allowed and the award is modified to the extent indicated above.
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