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Case Number

S.B Civil Misc. Appeal No. 359 of 1985

Attorney(S)

B.P Gupta & G.C Mathur, for Appellant;
S.C Srivastava, for Respondents

Judges

Mr. Inder Sen Israni

Acts

Section 96(2) of the Motor Vehicles Act, 1939 (hereinafter called as "the Act").
provisions of Order 41 Rule 33 C.P.C.
provisions of Section 110-C(2-A)
provisions of Order 41 Rule 33
Order 41 Rule 22 CPC
Section 110-C(2-A),
Order 41 Rule 22
Order 41 Rule 33

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

These appeals arise out of the same award dated 24 August 1985 passed by the Motor Accident Claims Tribunal (MACT), Jaipur. The claim petition was filed on 29 May 1978 by claimants-respondents Nos. 1 to 3 for a sum of Rs. 9,10,000 against the appellant (an insurance company) and respondents Nos. 4 to 7 before the MACT. The underlying accident occurred on 27 December 1977 at about 3:00 P.M. An Ambassador car (No. WMC 7749) belonging to M/s Gold Spot Agencies, driven by Girdhari Lal, was travelling from Jaipur to Ludhiana. Near Chandwaji village a truck bearing No. HRR 8215 driven by Madanlal (respondent No. 2) dashed against the car. The collision resulted in the deaths of three persons: Uma Shanker, Kumari Meghna and Girdhari Lal (the driver) (and Smt. Tulsi Devi is recorded as one of the claimants). The Tribunal recorded evidence, heard the parties and passed an award (dated 24.8.1985). The Tribunal held certain parties (including the appellant insurer and some respondents) jointly and severally liable to pay compensation. Appeals were filed (by the insurer) and cross-objections were filed by the claimants seeking enhancement of awards; the present opinion disposes of those appeals and cross-objections.

Legal Issues Presented

Whether the insurer (appellant) was entitled to prefer the appeals on grounds other than those permitted by Section 96(2) of the Motor Vehicles Act, 1939, and whether it could invoke Section 110-C(2-A) to contest the claim on all grounds without the statutory enquiry and written reasons.
Whether the Insurance Company was liable to pay compensation to occupants of a private car (who were not carried for hire or reward) under the terms of the policy cited in the opinion.
Apportionment of liability where allegations of composite or contributory negligence were raised: whether the driver of the car should be held partly liable and, if so, to what extent.
Quantum-related issues framed via cross-objections: correct assessment of deceased's income, appropriate deduction for personal expenses, choice of multiplier, compensation for loss of consortium, loss of love and affection, funeral expenses, and the appropriate rate of interest on the award.
Whether, in the event of cross-objections and inter-mingled relief, the appellate court may direct enhanced liability against co-respondents (Order 41 Rules of the Civil Procedure Code being invoked).

Arguments of the Parties

Appellant (National Insurance Company) - Arguments

The claim petitions alleged rash and negligent driving only on the part of the truck driver (Madanlal); no rash or negligent driving was alleged against the deceased driver of the car in the original petition, so the insurer of the car should not be held liable.
The insurer was permitted by the Tribunal to cross-examine claimants' witnesses; this demonstrated (so the appellant contended) that the Tribunal allowed it to participate in the defence beyond the scope of Section 96(2) of the Motor Vehicles Act and effectively under the ambit of Section 110-C(2-A).
Relying on Section 110-C(2-A), the insurer argued that where impleaded it may contest the claim on all or any of the grounds available to the person against whom the claim is filed (subject to the Tribunal being satisfied after enquiry that collusion exists or the person failed to contest).
After amendment, the petition pleaded composite negligence by drivers of both vehicles; even if composite negligence existed, the truck driver should bear greater liability as the truck caused the collision.
Insurer argued passengers in a private car (borrowed car) are not covered by the policy, relying on authorities that the insurer is not liable to injured/deceased passengers of a private car where the policy does not cover such risk.
Relied on several precedents (cited in the text) to support these contentions.

Claimants-Respondents - Arguments

Preliminary objection: the insurer has no right to prefer appeals except on the limited defences enumerated in Section 96(2) of the Motor Vehicles Act.
Section 110-C(2-A) cannot be invoked by the insurer unless the Tribunal first holds an enquiry, is satisfied of collusion or non-contest and records reasons in writing; no such enquiry or written permission occurred in this case.
Permitting an insurer's counsel to cross-examine witnesses informally (to get a balanced view) does not amount to having given the insurer the statutory right under Section 110-C(2-A); evidence elicited beyond insurer's statutory power should be eschewed.
Insurer cannot be allowed to challenge the quantum of compensation in appeal (relying on precedent that in an appeal by an insurer only the defences under Section 96(2) are available; insurer cannot challenge quantum when insurer is to pay the award).
On cross-objections, the claimants argued that the deceased's income should be fixed at documented income-tax figures, the appropriate multipliers should be applied (higher than the Tribunal used), loss of consortium should be increased, awards for loss of love and affection should be made, and interest should be raised to 12% per annum.

Respondent No. 6 (Oriental Fire and General Insurance Company) - Arguments

On the claimants' cross-objections for enhancement, this respondent argued it should not be saddled with any enhanced compensation for which it had no notice because no copy of cross-objections was served upon it.
Invoked Order 41 Rule 22 (CPC) as a general rule that a respondent's objection is ordinarily directed only against the appellant; relief against co-respondents should be exceptional.
Also relied on the proposition that Order 41 Rule 33 empowers the appellate court to make such orders as it deems fit between parties, but such powers should be used carefully and beneficial legislation should not be given overly technical readings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Bengard Insurance Company Ltd. v. Raghunath Patra and Ors (1976 ACJ 12)	Held that when an insurer does not contest before the Tribunal but cross-examines on damages and then alone appeals, the insurer can take pleas on merits on appeal.	Cited by the appellant; the opinion records the reliance but does not adopt it to permit the insurer to invoke broader appellate rights beyond statutory limits. The court rejected the insurer's wider appeal rights without the statutory enquiry required by s.110-C(2-A).
Kishan Srup Thapa v. Dr. Lakhbir Sood and Ors	Held that the Insurance Company is not liable to pay compensation to injured passengers in a private car because such risk need not be covered.	Cited by the appellant in support of non-liability of insurer to passengers; the court examined the policy wording and concluded the insurer's contention lacked force because the policy expressly covered occupants not carried for hire or reward.
Tarawati v. Gurmail Singh and Ors (1982 ACJ (Suppl.) 622)	Held that insurer is not required to cover risk of passengers travelling in a private car and is not liable even if the policy is comprehensive.	Relied upon by the appellant; court considered it but found the policy in the present case explicitly covered occupants (not carried for hire), so the precedent did not absolve the insurer here.
United Insurance Company Ltd. v. Nagamal and Ors (1983 ACJ 541)	Held insurer not liable to pay compensation to insured passengers where deceased passenger was not being carried pursuant to contract of employment.	Cited by appellant; court noted the precedent but rejected appellee's contention because the present policy language was different (policy covered occupants not carried for hire or reward).
Lajwanti and Anr. v. Keshav Prasad Soni (1984 ACJ 664)	Illustrates composite negligence and adverse inference when a driver is not produced.	Referenced by the court in discussing authorities on composite/contributory negligence; used to contextualize apportionment discussions though the court made its own apportionment findings based on facts of this case.
Bhagwant Devi v. Krishan Kumar Saini and Ors (1986 ACJ 331)	Similar view on drawing adverse inference when a party (driver) is not produced in composite negligence cases.	Cited as supporting authority on composite negligence principles; the court relied on composite negligence jurisprudence when addressing apportionment issues raised by the parties.
Sohun Lal and Anr. v. Bal Swarup Bhatnagar and Ors (1987 ACJ 113)	Held that when a vehicle is left on a road in a dangerous position it can amount to composite negligence; illustrates apportionment (example given 25% truck, 75% car).	Referred to for the principle of composite negligence and apportionment; court considered the general principles though apportioned contributory negligence in this case based on the facts (50% on car's driver in one claim).
Oriental Fire and General Insurance Company v. Hanunaka (1982 ACJ 372)	Held that allowing insurers' counsel to cross-examine witnesses does not imply Tribunal granted permission under s.110-C(2-A); evidence elicited beyond insurer's power must be eschewed.	Relied upon by the claimants and accepted by the Court to hold that cross-examination by the insurer did not constitute statutory permission under s.110-C(2-A) absent the required enquiry and written order.
Kantilal and Brothers v. Ramarani Bai and Ors (1980 ACJ 501)	Held that in an appeal filed by the Insurance Company only defences under s.96(2) are available and the insurer cannot challenge the quantum of compensation.	Relied upon by the claimants; the Court endorsed the limitation that the insurer's appellate rights are confined to defences under s.96(2) and cannot be extended without statutory procedure.
Bhawanimal Mathur v. Smt. Bhagwati (S.B. Civil Misc. Appeal No. 186/82)	Held that the owner was not an 'aggrieved person' under Section 110-D because the compensation was to be paid by the insurer; owner thus not entitled to appeal.	Referred to by claimants to support the proposition that the insurer (and not the owner) is the real payor and that ordinary owner has limited rights to appeal when insurer must pay; used in limiting appellate rights in this matter.
United India Fire and General Insurance Company v. Laxmi Shod Ganjoo and Anr (1982 ACJ 470)	Full Bench: insurer not entitled to resist award on grounds outside s.96(2) unless policy provides a right to defend in name of insured or Tribunal permits under s.110-C(2-A) after enquiry.	Relied upon to reinforce the legal limitations on insurer's appellate rights absent statutory procedure; the Court applied this principle to deny the insurer broader appellate rights here.
British India General Insurance Company v. Capt. Itbar Singh and Ors	Held that apart from statute the insurer has no right to be made party; s.96(2) creates the right and circumscribes the defences available to the insurer.	Referred to for the proposition that insurer's rights are statutory and limited; the Court repeated this constraint in deciding the insurer could not rely on grounds outside s.96(2).
Roop Narain and Ors. v. Avatar Singh and Ors (1987 ACJ 336)	Division Bench view consistent with limiting insurer's defences to those in s.96(2).	Used as supporting authority for the limitation on insurers' appellate rights; the Court cited it in support of its conclusion.
Murari Lal v. Gomati Devi (1985 ACC 158)	Held that Order 41 Rule 33 CPC should be applied where orders are inter-mixed; beneficial legislation should not be given an overly technical interpretation.	Relying on this, the Court applied Order 41 Rule 33 principles in determining that, given inter-mingled relief, the appellate court could direct enhanced liability against co-respondents.
Panna Lal (Full Bench / Apex Court decision, cited as "Panna Lal (supra)")	Discussed the power of appellate court to give relief to a respondent against other respondents even when cross-objections are or are not filed; supports departure from strict application of Order 41 Rule 22 in exceptional cases.	Applied by the Court to conclude that, given inter-mixed relief and the beneficial nature of the legislation, co-respondents (including the owner) could be saddled with enhanced liability.
Gunwant Kanwar v. Sardar Sadhu Singh (1987 (1) R.L.R. 1020)	Authority supporting use of a particular multiplier (used here as precedent for applying multiplier 24 for a 36-year-old deceased).	Adopted by the Court to justify applying a multiplier of 24 in the calculation for one set of claimants.
Smt. Phula Devi v. Inderjeet Singh (S.B. Civil Misc. Appeal No. 139/86, decided 7-12-87)	Similar authority supporting the chosen multiplier.	Relied upon along with Gunwant Kanwar to justify the Court's multiplier choice for calculation of dependency.
R.S.R.T.C. v. Kashtoori Devi (1986 ACJ 960)	Full Bench held that children are entitled to receive compensation for loss of love and affection.	Applied by the Court to award amounts for loss of love and affection to minor children in this case.
Jagbir Singh v. G.M. Punjab Roadways	Authority supporting award of interest at the rate of 12% per annum on awards of this nature.	Followed by the Court in raising interest from 10% (awarded by Tribunal) to 12% p.a. from the date of filing of the claim petition.
Parma Lai v. State of Bombay and Ors	Explains Order 41 Rule 22 (respondent ordinarily objects only against appellant) and the scope of Order 41 Rule 33 allowing wide powers to appellate courts.	Relied upon by respondent No. 6 and considered by the Court in analysing whether enhanced relief could be imposed on co-respondents; the Court applied the broader view permitting relief against co-respondents where orders are inter-mixed.

Court's Reasoning and Analysis

The Court proceeded in two broad strands of analysis: (A) procedural/limitation issues concerning insurance-company's rights to appeal and to contest on grounds outside Section 96(2); and (B) the merits/quantum issues raised in cross-objections by the claimants.

(A) Insurer's Right to Appeal and the Effect of Cross-Examination

The Court accepted the well-established statutory principle that an insurer's substantive right to be heard and to defend claims is created and limited by statute (Section 96(2) of the Motor Vehicles Act). The insurer is generally entitled only to the defences enumerated in that provision.
Section 110-C(2-A) may permit an insurer to be impleaded and then to contest claims on all grounds available to the person against whom the claim is made, but only after the Tribunal conducts an enquiry, is satisfied of collusion or failure to contest, and records reasons in writing. The Court emphasized that the statutory requirements for such an enquiry and written reasons are prerequisite and mandatory.
Merely permitting an insurer's counsel to cross-examine witnesses before the Tribunal does not amount to judicially recorded permission under Section 110-C(2-A). Relying on precedent (e.g., Oriental Fire v. Hanunaka), the Court held that permitting cross-examination informally does not validate the insurer's invocation of broader contesting rights; evidence or parts of evidence elicited beyond insurer's statutory power may have to be ignored.
Because no s.110-C(2-A) enquiry was held and no written permission recorded in the present case, the insurer could not rely on that provision to expand its appellate rights. Therefore the insurer could not take advantage of broader grounds in appeal beyond s.96(2).
On the question of whether occupants of a private car are covered by the policy, the Court examined the policy wording presented in Section 2 and found that the policy expressly covered death or bodily injury to any person including occupants carried in the motor car provided they were not carried for hire or reward. Consequently, the insurer's argument of non-liability to occupants lacked force in this factual-policy context.
As a result of these conclusions, the Court held that the appellant insurer had no right to file the appeal on grounds outside Section 96(2) and could not resile from liability on the bases it attempted on appeal.

(B) Cross-Objections and Quantum Calculations

The Court considered documentary evidence (income-tax certificate Ex. 5) regarding the income of a deceased (in the claim by Tulsi Devi and others). The Tribunal had reduced the deceased's income to Rs. 30,000 per year despite income-tax figures showing Rs. 34,670. The Court accepted the income-tax certificate and fixed annual income at Rs. 34,670.
The Court deducted one-third for personal expenses (Rs. 11,556) and fixed dependency at Rs. 23,114, rounded to Rs. 23,000 per year. For a deceased aged 36, the Court considered it reasonable to apply a multiplier of 24 years (relying on local precedent like Gunwant Kanwar and Smt. Phula Devi). This resulted in a dependency award of Rs. 23,000 x 24 = Rs. 5,52,000 under that head.
For loss of consortium to the widow (Smt. Tulsi), the Court followed precedents and awarded Rs. 15,000. For loss of love and affection to two children, the Court awarded Rs. 2,000 each.
The Court increased interest to 12% per annum from the date of filing of the claim petition (following Jagbir Singh), payable until payment or deposit of amounts.
In relation to claimants Shanti Devi and her son (dependants of deceased driver Girdhari Lal): evidence supported a net monthly dependency of Rs. 250. The driver was 29 years old; the Court considered 60 years as reasonable earning age and applied a multiplier of 31 years (as adjusted for a driver’s expected working span), yielding 250 x 12 x 31 = Rs. 93,000 as dependency compensation.
The Court increased loss of consortium for the young widow Smt. Shanti Devi from the Tribunal's Rs. 5,000 to Rs. 15,000; awarded Rs. 2,000 for loss of love and affection to minor son Raj Kumar and Rs. 2,000 for funeral expenses.
Importantly, the Court observed that the deceased driver Girdhari Lal was held responsible for contributory negligence to the extent of 50%; consequently, any enhanced amount awarded on cross-objections in respect of claims where he was held contributory would be payable only to the extent of 50% (i.e., the awarders receive 50% of the enhanced portion because of the driver's contributory negligence).
On the contention that co-respondents (including other insurers or owners) should not be saddled with enhanced liability where they lacked service of cross-objections, the Court applied Order 41 Rule 33 principles (and cited Parma Lai, Murari Lal, Panna Lal) and held that because the relief in the appeals was inter-mixed and because the legislation is beneficial and designed for quick relief to victims, the appellate court may direct enhanced liability against co-respondents. Thus, owners (e.g., Gold-Spot Agency) and other respondents would be liable so far as enhanced amounts are concerned.

Holding and Implications

Holding: Both appeals are dismissed and the cross-objections filed by the claimants are allowed as indicated in the judgment.

Direct Consequences and Practical Implications (as set out in the opinion):

The appellant insurer was denied the right to pursue appellate defences beyond those permitted under Section 96(2) of the Motor Vehicles Act because no enquiry and written reasons were recorded under Section 110-C(2-A); the insurer's informal participation (cross-examination) did not validate broader statutory rights.
The insurer's contention that it was not liable to occupants of the private car was rejected on the facts because the insurance policy before the Court explicitly covered occupants carried in the motor car provided they were not carried for hire or reward.
On quantum, the Court increased several heads of compensation: dependency calculations (based on accepted documentary income), multipliers (24 and 31 applied as appropriate), loss of consortium awards (raised in specified cases to Rs. 15,000), awards for love and affection, funeral expenses, and raised interest from 10% to 12% p.a. from the date of filing of the claim petition (subject to abatement upon payment/deposit).
Because the driver of the car (Girdhari Lal) was held to be 50% contributorily negligent in respect of certain claims, enhanced sums attributable to his death/claims are recoverable only to the extent of 50%.
The appellate court concluded that, given inter-mingled relief and the beneficial object of the legislation, enhanced liability may be apportioned among respondents including co-respondents (e.g., the car owner), notwithstanding technical objections based on non-service of cross-objections; Order 41 Rule 33 CPC was applied insofar as necessary to achieve substantive justice for claimants.
There will be no order as to costs.

Note: The summary above is confined strictly to the statements and findings contained in the provided opinion. It does not add facts or infer outcomes beyond those expressly stated by the Court in the opinion text.

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National Insurance Co. Ltd. Jaipur v. Smt. Tulsi Devi

1. These two appeals arise out of the same award dated August 24, 1985 passed by the Motor Accident Claims Tribunal, Jaipur, therefore, they are decided by this one judgment.

2. It will suffice for the purposes of these appeals to state that on May 29, 1978, the claimants-respondents No. 1 to 3 filed a claim petition for sum of Rs. 9,10,000/- against the appellant and the respondents No. 4 to 7, before the Motor Accident Claims Tribunal, Jaipur. On December 27, 1977 at about 3-00 P.M. deceased Uma Shanker, deceased Kumari Meghna alongwith Smt. Tulsi Devi one of the claimants, were going to Ludhiana from Jaipur via Delhi in a Ambassador Car No. WMC 7749 of M/s Gold Spot Agencies. The car was driven by deceased Girdhari Lal. When the car reached near Chandwaji village, a truck bearing No. HRR 8215 driven by Madanlal, respondent No. 2 dashed against the car, which resulted in death of the above 3 persons. The Tribunal, after recording evidence and bearing all the parties, passed an award for the amount mentioned above and two appellant and respondents No. 3, 4 and 5 to be liable for payment of compensation amount jointly and severally.

3. The contention of Shri B.P. Gupta, learned Counsel for the appellant National Insurance Company is that in the claim petitions, it was mentioned by the claimants that the accident took place on account of rash and negligent driving of the truck by driver Madan Lal. It is, therefore, submitted that no liability could be fixed on the appellant Company with which the car was insured for the simple reason that no rash or negligent driving on the part of the deceased driver of the car was alleged in the petition. It is given out that the appellant-company was permitted to cross examine the witnesses produced on behalf of the claimants, which shows that it was allowed to participate by the Tribunal on defence out side the scope of Section 96(2) of the Motor Vehicles Act, 1939 (hereinafter called as "the Act"). It is stated that the driver of the car expired in the accident and the owner of the car did not appear inspite of the notice given by the Tribunal. It is further contended by the learned Counsel that under the amended provisions of Section 110-C(2-A) of the Act, the Tribunal has been empowered to allow the insurer who may be liable in respect of such claims to be impleaded as party to the proceedings and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been filed, provided the Tribunal after enquiry is satisfied that there is collusion between the person making claim and the person against whom the claim is made or the persons against whom the claim is made has failed to contest the claim. It is, therefore, submitted that keeping in view the above provision of the Act, the Tribunal allowed the appellant, Insurance Company to cross-examine the witnesses of the claimants on all grounds which are usually available to a person against whom the claim is filed. It is submitted by the learned Counsel that subsequently the claim petition was amended and it was pleaded in the amended claim petition that the accident was result of composite negligence by drivers of both the vehicles. It is also contended that since the occupants of the car who died, were travelling in the borrowed car, therefore, the Insurance Company is not liable for payment of any compensation as awarded by the Tribunal. It is, therefore, contended that even if it is held that the accident was result of composite negligence of drivers of both the vehicles, the driver of the truck should have been placed with greater liability as the accident resulted on account of negligence of the driver of the truck. Therefore, the Tribunal has erred in keeping the negligence of driver Girdhari of the Car at 50% in the claim filed by Mst. Shanti Devi and others, the legal representatives of the driver of the car, Girdhari Lal. Reliance has been placed on Bengard Insurance Company Ltd. v. Raghunath Patra and Ors. 1976 ACJ 12 in which it was held that when insurer does not contest the claim before the Tribunal and the claimants did not raise any objection at the time when the insurer cross-examine the claimant's witnesses on the question of damages and the appeal has been filed by the Insurance Company alone against the award, the appellant Insurance Company can take the pleas on merits.

4. Regarding the contention that the insurer shall not be liable for payment of claim amount to the occupants of the car, reliance has been placed on Kishan Srup Thapa v. Dr. Lakhbir Sood and Ors. in which it was held that the Insurance Company is not liable to pay compensation to the injured passengers in a private car because no such risk is required to be covered. In the case of Tarawati v. Gurmail Singh and Ors. 1982 ACJ (Suppl.) 622 it was held that the Insurance Company is not required to cover the risk of passengers travelling in private car and is, therefore, not liable to pay compensation even though the policy may be comprehensive. United Insurance Company Ltd. v. Nagamal and Ors. 1983 ACJ 541 was a case in which a passenger of the car died due to the negligence of the owner-driver of the car. The deceased was not carried in the car by reason of or in pursuance of a contract of employment. It was held that in such circumstances the Insurance Company was not liable to pay any compensation to the insured passengers.

5. As regards the allegations of composite negligence, reliance has been placed on the case of Lajwanti and Anr. v. Keshav Prasad Soni 1984 ACJ 664. This was a case in which at the inter-section of two roads, there was an accident between truck and a tempo. The driver of the truck was not produced, hence adverse inference was drawn. In the matter of Bhagwant Devi v. Krishan Kumar Saini and Ors. 1986 ACJ 331 the same view was taken. In Sohun Lal and Anr. v. Bal Swarup Bhatnagar and Ors. 1987 ACJ 113 it was held by this Court that when a vehicle is left on a road in dangerous position, it becomes case of composite negligence. In such matters the liability of the truck on the road, which was standing without any signal, was aportioned at 25% and that of the car which dashed the truck was kept at 75%.

6. Shri G.C. Mathur, learned Counsel appearing for the claimants-respondents, who has also filed cross objections on their behalf regarding enhancement of the claim, has raised preliminary objection that in view of the provisions of Section 96(2) of the Act, the appellant Insurance Company has no right to prefer the appeals. It is contended by the learned Counsel that the Insurance company can raise only such defences which are allowed in the above mentioned section. It is pointed out that Section 110 C(2-A) of the Act is of no help to the appellant Insurance Company. Under this section, it is submitted that an enquiry is essential to be held by the Tribunal and only when the Tribunal is satisfied that there is collusion between a person making claim and the person against whom the claim is made or the person against whom the claim is made, has failed to contest the claim, then alone the Tribunal after recording reasons in writing direct that the Insurer shall be pleaded as party and may be given right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. It is pointed out that in the present case the facts are totally different, in as much as the owner of the truck and the driver filed reply to the claim petition and were through out represented by a, lawyer. The driver of the car unfortunately lost his life in the accident, therefore, mere appearance of the owner of the car would not throw any light on the circumstances in which the accident took place. It is therefore, contended that even if the owner of the car did not put any appearance, it shall not make any difference evidently because he had no personal knowledge of the accident and the driver of the car was already killed in the accident It is also contended that many a times the courts including the tribunals permit the counsel for Insurance Companies to cross examine the witnesses only with a view to get a balanced view on the issues to be decided in the claims filed by the claimants. In this respect reliance has been placed on Oriental Fire and General Insurance Company v. Hanunaka 1982 ACJ 372 in which it was held that merely because counsel for the Insurance Company was permitted to cross-examine the witnesses examined on behalf of the claimants and contested the case on all grounds available to the owner it cannot be implied that the Tribunal had granted permission under the provisions of Section 110-C(2-A)of the Act. It was, therefore, held that this only means that the insurer has done something beyond its rights and it is not supported on any legal basis for this act. It was, therefore, held that this part of the evidence which is ill-cited in the cross examination by the insurer going beyond its power has to be eschewed. It is pointed out that in such circumstances when the Insurance Company wants to invoke the provisions of Section 110-C(2-A) the application is necessarily given in the Tribunal to enable it to have an enquiry and come to a conclusion regarding any collusion etc. and pass an order in writing stating reasons thereof. No such enquiry has been done in this case. It is, therefore, contended that such part of the evidence, in which cross-examination has been done by the appellant Insurance Company shall not be read while considering the appeal filed by the Insurance Company or the cross-objections filed by the claimants. In the case of Kantilal and Brothers v. Ramarani Bai and Ors. 1980 ACJ 501 it was held that in an appeal filed by the Insurance Company, only the defences as per the provisions of Section 96(2) of the Act were available to it and it cannot be allowed to challenge the quantum of the compensation. This was a case in which an appeal was Sled by Kantilal and others alongwith Woolcon Insurance Company Ltd. against the award made by the Tribunal. It was further held that since the amount of compensation has to be paid by the Insurance Company, even the owner cannot file an appeal as there had been no legal or practical injury to the owner. Reliance has also been placed on the case of Bhawanimal Mathur v. Smt. Bhagwati S.B. Civil Misc. Appeal No. 186/82, decided on October 7, 1986, in which it was held by this Court that the owner of the car was not an aggrieved person within the meaning of Section 110-D of the Act as the compensation amount had to be paid by the Insurance Company and, therefore, was not entitled to prefer any appeal against the award passed by the Tribunal. Another appeal was also filed against the same award by Yad Ram and Insurance Company jointly (SB. Civil Misc. Appeal No. 7/83), which was also decided by the same judgment and it was held that the Insurance Company is not entitled to file appeal except on the grounds mentioned under the provisions of Section 96(2) of the Act. In the case of United India Fire and General Insurance Company v. Laxmi Shod Ganjoo and Anr. 1982 ACJ 470, the Full Bench of Jammu and Kashmir High Court held that the insurer is not entitled to resist the award where the insurer has been found liable, oh the grounds not enumerated under Section 96(2) of the Act, except in cases where the terms of the policy of the Insurance provides that the insurer has a right to defend the action in the name of insurer and if it appears that the claimant and the insurer have colluded, then after receiving permission of the Tribunal under Section 110-C(2-A), the insurer can defend the claim as well as the award on all grounds, which are available to the insurer. It is, therefore, pointed out by the learned Counsel that none of the grounds specified above exist in the appeal filed by the Insurance Company. In the case of British India General Insurance Company v. Capt. Itbar Singh and Ors. , it was held that apart from the statute the insurer has no right to be made a party to the action by the insured against the insurer causing injury. Section 96(2) of the Act however gives him right to be made a party to the suit and to defend it. The right, therefore, is created by the statute and its contents necessarily depends on the provisions of the statute. Sub-section (2) clearly provides that the insurer in a defence to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The same view was taken by the Division Bench of this Court in the case of Roop Narain and Ors. v. Avatar Singh and Ors. 1987 ACJ 336. It is, therefore, pointed out by the learned Counsel that the appellant Insurance Company did not raise any objection in the reply filed before the Tribunal that it was not liable for payment of compensation as the occupants of the car who lost their lives in the accident. It is contended that such defences was not taken in the Tribunal and the Insurance Company cannot be now permitted to raise such a defence.

7. Learned Counsel Shri S.C. Srivastava, appearing on behalf of respondent No. 6 Oriental Fire and General Insurance Company submits that so far as cross-objections filed by the claimants are concerned, even if the amount of compensation is enhanced, the respondent No. 6 should not be made liable for any enhanced compensation as such a liability cannot be fashioned on a co-respondent as the objections have been filed by some of the respondents in the appeals filed by the Insurance Company. It is contended that no copy of the cross-objections was given to the respondent No. 6, therefore, they had no knowledge of any such cross-objections having been filed by the claimants/co-respondents. Reliance has been placed on Parma Lai v. State of Bombay and Ors. , in which it was pointed out that Order 41 Rule 22 permits, as a general rule, a respondent to prefer an objection directing only against the appellant and it is only in exceptional cases that the relief may also be granted against the co-respondents. It was Further pointed out that wide wording of Order 41 Rule 33 was intended to empower the appellate court to make whatever order, it thinks fit, but only as between the appellant and the respondents but also as between the respondents and a respondent. In the case of Murari Lal v. Gomati Devi 2 (1985) ACC 158, it was held by this Court that the provisions of Order 41 Rule 33 C.P.C. should be applied when the order is inconsistent or contrary or unequitable or so much inter-mixed that the application of rule is necessary and in a beneficial legislation, a very technical meaning should not be given to the law.

8. I have considered the various arguments advanced at the bar regarding the preliminary objection raised against filing of the appeal by the Insurance Company. Admittedly, the Insurance Company is permitted by the statute to raise only such defences, which are permitted under the provisions of Section 96(2) of the Act and nothing more can be added to the same. I have already discussed the law above on this point. This Court as well as the Apex Court have consistently taken this view. So far as the contention of learned Counsel for the appellant regarding having cross examining the witnesses of the claimants is concerned, merely because the Tribunal permitted the appellant to cross-examine the witnesses, it cannot be said that the Tribunal granted permission to the appellant within the provisions of Section 110-C(2-A) of the Act. An application may or may not be filed by either of the parties, but it is necessary that the Tribunal must held an enquiry and in the course of enquiry if satisfied, that there exists collusion between the person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim and it must recorded reasons in writing for reaching this conclusion before the Insurance Company can be allowed the right to contest the claim on all or any of the grounds available to the person against whom the claim has been filed. Admittedly, no such enquiry was made by the Tribunal and no such permission in writing allowing the Insurance Company was recorded by the Tribunal. I, therefore, hold that the appellant cannot take any advantage of the provisions of Section 110-C(2-A) of the Act to enable it to file an appeal against the award before this Court.

9. As regards the contention of learned Counsel for the appellant that the Insurance Company is not liable for payment of any compensation to the passengers who lost their lives while travelling in the car, it may be mentioned to make the things clear that the policy of the Insurance Company itself mentions in Section 2 regarding liability to 3rd party that it shall be liable to pay in respect of death or bodily injury to any person including occupants carried in the motor car, provided they are not carried for hire or reward. This contention of the learned Counsel for the appellant has, therefore, no force. Since I have held that the appellant Insurance Company has no night to file this appeal, I K therefore, do not deem it necessary to deal with some of the other contentions raised by the learned Counsel for the appellant.

10. Coming to the cross objections, filed by the claimants-respondents, it is contended that claim No. 61/76 filed by Tulsi Devi and others has been wrongly shown as claim No. 164/81. It is pointed out that the age of the deceased was 36 years, who was doing business. Ex. 5 is the certificate of income-tax department, which shows the income of the deceased for the years 1976-77, 1977-78 and 1978-79. In the last year the income of the deceased is stated to be 34670/- per year. However, the Tribunal in its own wisdom took the yearly income at Rs. 30,000/- only and after deducting l/3rd for the personal expenses of the deceased, kept the dependency amount at Rs. 20,000/- per year. It is contended that when the certificates of income tax are on record, there is no reason for the Tribunal to have reduced the income.

11. The next contention of the learned Counsel is that the deceased was 36 years old, but the Tribunal has applied the multiplier of 20 years only. It is, therefore, contended that usual span of life in India by various courts is now kept at 70 years and this should be taken to be the age for earning of the deceased also as he was doing his private business. It is contended that Smt. Tulsi Devi was a young lady of 34 years when she lost her husband in this unfortunate accident. This Court has been awarding in such unfortunate circumstances the amount of Rs. 15000/- for loss of consortium and the same may be awarded to her also. The Tribunal has awarded Rs. 10,000/- as loss of consortium. It is also contended that nothing has been awarded on account of loss of love and affection to respondents No. 2 and 3, the children of the deceased. It is contended that Rs. 4000/- each may be awarded as loss of love and affection to the children. It is further pointed out that the Tribunal has awarded interest at the rate of 10% p a. from the date of filing of the petition, which in view of the decision of the Apex Court in Jagbir Singh v. G.M. Punjab Roadways, , should be raised to 12% p.a.

12. Keeping the documentary evidence produced by the claimants in view, there is no reason to reduce the income of the deceased, on which he was paying income-tax at the time of his death. I therefore, hold that the income of the deceased as certified in Ex. 5 be kept at Rs. 34670/- per year and after deducting 1/3rd amount i.e. 11556/- the amount of dependency comes to Rs. 23114/-, which is rounded at Rs. 23000/- for the purposes of calculation.

13. As regards the multiplier, the deceased was 36 years old at the time of death and there is no reason why the age of life be kept less than 60 years. I, therefore, hold that it will be reasonable to apply the multiplier of 24 years to the income. The same view was taken by this Court in Gunwant Kanwar v. Sardar Sadhu Singh 1987 (1) R.L.R. 1020 and Smt. Phula Devi v. Inderjeet Singh S.B. Civil Misc. Appeal No. 139/86 decided on 7-12-87. This view has been taken by this Court in several other decisions also. The claimants-respondents shall, therefore, be entitled to receive Rs. 23,000/- x 24 = Rs. 5,52,000/- as compensation under this head.

14. Regarding loss of consortium, it is evident that the life of unfortunate widow suddenly became dark on account of this accident. It has been held by this Court in several decisions that in such circumstances, amount of Rs. 15,000/- be awarded to the widow as loss of consortium. It is, therefore, held that Smt. Tulsi shall be entitled to receive Rs. 15000/- as loss of consortium. The Full Bench of this Court in the case of R.S.R.T.C. v. Kashtoori Devi 1986 ACJ 960 has held that the children are entitled to receive compensation on account of loss of love and affection. I, therefore, award Rs. 2,000/- each to the respondent No. 2 Kumari Ismita and respondent No. 3 Ravi Shanker on account of loss of love and affection.

15. As regards interest, I hold that the claimants shall be entitled to receive interest at the rate of 12% p.a. from the date of filing of the claim petition. If any amount has been deposited or paid, the interest shall be paid only till the date of such payment or deposit on such amount. The award as passed by the Tribunal is maintained in all other respects.

16. Taking the cross objections filed on behalf of Shanti Devi and her son Raj Kumar, the deceased Girdhari Lal driver of the car was 29 years old when he lost his life in this accident. Smt. Shanti Devi was 22 years old at that time. The contention of learned Counsel Shri Mathur is that the Tribunal has accepted the monthly income of the deceased driver to be at Rs. 250/-, but has not taken into consideration that he was drawing Rs. 20/- per day as out side allowance and was also getting food, clothes and accommodation in his employment. Thus there were hardly any expenses on his ownself, which were taken care of by the employer. The contention of learned Counsel is that in view of the fact that deceased was earning Rs. 20/- per day apart from his salary of Rs. 250/- and was also getting food, clothes and accommodation, his net income should be kept at Rs. 250/- and not at Rs. 200/-. AW/4 Shanti Devi has also stated in her statement that her husband gave her Rs. 250/- p.m. and clothes etc. whenever he came home. AW/3 Babu Lal has also supported the statement of Shanti Devi on the emoluments earned by the deceased. I, therefore, hold that it will be reasonable to keep the amount of dependency at Rs. 250/- per month.

17. The next contention of the learned Counsel is that the age of the deceased was 29 years at the time of accident and, therefore, there is no reason to keep his earning age at less than 60 years. Therefore, it is submitted that accordingly multiplier of 36 years be applied to calculate the amount of compensation to be paid.

18. Keeping in view the hard life a driver has to live, I hold that it will be reasonable to keep 60 years as the age of earning of the deceased. Therefore, it will be reasonable to apply the multiplier of 31 years to calculate the compensation under this head. The claimants shall, therefore, be entitled to receive 250 x 12 x 31 = Rs. 93,000/- under this head.

19. The next contention of the learned Counsel is that Smt. Shanti Devi was a young lady of 22 years at the time when she lost her husband. The Tribunal has awarded Rs. 5000/- on account of loss of consortium, which should be raised to at-least Rs. 15000/-, if not more keeping in view the age of widow. There is no doubt that the life of the young widow suddenly became dark on account of this accident and she deserves to be given some reasonable compensation on this account. I, therefore, award Rs. 15,000/- as loss of consortium to her.

20. Learned Counsel contends that the Tribunal has awarded nothing for loss of love and affection. The amount of Rs. 4000/- be awarded to the child, respondent No. 2. It is contended that nothing has been awarded on account of funeral and Rs. 4000/- may also be awarded under this head. The interest has been awarded @ 10% p.a. from the date of filing of the claim petition, which also needs to be raised to 12% p.a.

21. I have already discussed the relevant law above and I award the amount of Rs. 2000/- to the minor son Raj Kumar on account of loss of love and affection. There is no doubt that some expenses have to be made on funeral and other connected ceremonies and I award Rs. 2000/- on this account to the claimants. The claimants shall also be entitled to receive interest @ 12% pa. from the date of claim petition. If any amount has been deposited or paid to the claimants, the interest shall not be payable after the date of such payment or deposit of the amount. It is made clear that since deceased Girdhari Lal, driver of the car has also been held to be responsible for contributory negligence to the extent of 50%, therefore the claimants shall be entitled to receive the enhanced amount to the extent of 50% only.

22. Regarding the contention of Shri S.C. Srivastava, appearing on behalf of Oriental Fire and General Insurance Company, the matter becomes quite clear from the decision of the Apax Court in the case of Panna Lal (supra) etc. It has been held in this decision that the appellate court can give relief to a respondent as against other respondents also when cross objections are filed or not filed by the respondent. The contention of the learned Counsel is that in view of Order 41 Rule 22 CPC since the cross objections have been filed, therefore, co-respondent should not be saddled with the liability of enhanced compensation. In this case the relief granted is inter-mixed regarding all respondents. In the appeals, the owner of the car viz. Gold-spot agency shall also be liable so far as the enhanced amount is concerned. This act is a beneficial legislation inacted with a view to give quick and substantial relief to the claimants who suffer on account of unfortunate accidents for none of their fault. In the case of Murari Lal (supra), this Court had held that when order is inter-mixed, the provisions of Order 41 Rule 33 can be made applicable as this act is a beneficial legislation and technical meaning should not be given to the law. I, therefore, hold that in the facts and circumstances, all the respondents shall be liable to pay the enhanced amount to the claimants.

23. In the result, both the appeals are dismissed and the cross objections filed by the claimants are allowed as indicated above. There will be no order as to costs.

National Insurance Co. Ltd. Jaipur v. Smt. Tulsi Devi

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (National Insurance Company) - Arguments

Claimants-Respondents - Arguments

Respondent No. 6 (Oriental Fire and General Insurance Company) - Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

National Insurance Co. Ltd. Jaipur v. Smt. Tulsi Devi

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