1. These three appeals arise out of a common award dt. 7th July, 1979, passed by the Judicial Commissioner, Ranchi, in M.J.C (Motor Claims) case No. 123 of 1977 whereby and where under an application for claim filed on behalf of Smt. Sarda Devi, Pratibha Devi and Laxmi Narain Singh in terms of S. 110A of the Motor Vehicles Act (hereinafter called for brevity as ‘the Act’) for grant of compensation on account of the death of one Vidyadhar Singh was allowed.

Miscellaneous Appeal No. 73 of 1979 (R) has been filed by the New India Insurance Company Ltd. The appellant of the aforementioned appeal has mainly challenged the award, inter alia on the ground that the said Insurance Company is not liable to pay any amount of compensation as the truck in question was not insured with it. It has further been contended that the claim petition filed as against the said appellant is barred by limitation.

2. Miscellaneous Appeal No. 75 of 1979 (R) has been filed on behalf of the claimants. In the said appeal an award relating to the quantum of compensation granted by the learned tribunal below is in question. It has been contended inter alia, in the aforementioned appeal that appellant No. 1 Smt. Sarda Devi, who was the mother of the deceased, was also entitled to compensation. In the said appeal, the appellants have claimed compensation to the extent of Rs. 50,000/- besides the compensation awarded by the learned Tribunal below.

3. Miscellaneous Appeal No. 77 of 1979 (R) has been filed on behalf of Oriental Fire and General Insurance Company Ltd. In the said appeal, inter alia, it has been contended that the said company is not liable to pay any compensation in view of the fact that it has been found by the learned court below itself that the driver of the car in question which was insured with was not negligent but the driver of the truck with which the car collided was being driven rashly and negligently. It has been contended that the negligence on the part of the driver of the car has not been proved and as such the appellant company is not liable to pay any compensation in respect thereof. In this appeal, the amount of compensation granted to the claimants has also been questioned.

4. The facts of the case lie in a very narrow compass and the basic facts are not in dispute.

5. The appellants of Miscellaneous Appeal No. 75 of 1979 (R) filed an application purported to be under S. 110A of the Act in the court of the Judicial Commissioner at Ranchi which was registered as M.J.C No. 123 of 1977. In the said application, it was contended that the deceased Vidyadhar was a motor driver as also motor mechanic. The deceased at the time of his death was about 24 years old and was in service of one Shyam Narain Singh. He was one of the passengers travelling in a car bearing No. BHN 225 which met with an accident, as a truck bearing registration No. BRN 9304 dashed against it. It is alleged that the said truck was being driven rashly and negligently by the driver thereof.

The aforementioned accident took place on 2nd July, 1977, and the deceased having sustained grievous injuries succumbed thereto on 6th July, 1977.

According to the claimants, the deceased was having a monthly income of Rs. 500/-. It was further alleged that he was married in the year 1970 and the petitioner-appellant No. 2, the widow of the deceased, is a young girl and was pregnant at the material time. Owing to the shock caused to the petitioner appellant No. 2 she gave birth to a still born child.

In view of the prevailing custom, there is no chance for her re-marriage. According to the claimants, the deceased was the only earning member in the family and had he been alive he would have earned more than Rs. 1000/- per month. According to the claimants, he was not only earning his livelihood by doing his job as a driver but he was also a motor mechanic and was engaged in the said job in part-time.

6. The aforementioned claim petition appears to have been filed on 23rd Dec. 1977. The factum of the accident and the fact that Vidyadhar died as a result thereof are not in dispute. It is also not in dispute that the owner of the car was one Shayam Narain Singh, whereas the owner of the truck was Ratan Lal Suraj Mal. It is also not in dispute that the car was insured with the Oriental Fire and General Insurance Company Ltd. It is also not in dispute that the truck was insured with the New India Insurance Company Ltd.

7. However, New India Insurance Company Ltd. orginally was not impleaded as a party therein. In the claim petition, it was stated by the claimants that they were not aware as to which Company was the insurer in relation to the truck in question. On 27th Oct. 1977, the claimants sent a registered notice to Ratanlal Surajmal asking them to disclose the name of the Insurance Company with which the aforementioned truck bearing registration No. BRN 9034 was insured. The owner of the truck Ratanlal Surajmal, in his written statement however, stated that the truck in question was insured with the New India Insurance Company Ltd. The said written-statement was filed on the 15th May, 1979.

8. On or about 9th Feb. 1979, the claimants filed an application stating therein that they had come to learn that the New India Insurance Company Ltd. was the insurer in respect of the truck bearing registration No. BRN 9034, and, in the said application, it was prayed that the aforesaid company was being impleaded as a party therein. The said application was allowed by an order dt./- 17th Feb. 1979, whereafter the Insurance Company appeared and filed written statement.

9. Mr. P.K Banerjee, learned counsel appearing on behalf of the appellants in Miscellaneous Appeal No. 73 of 1979 (R) and Mr. P.S Dayal, learned counsel appearing on behalf of the appellant in Miscellaneous Appeal No. 77 of 1979 (R) questioned the quantum of compensation awarded in favour of the claimants who were appellants in Miscellaneous Appeal No. 75 of 1979 (R). According to the learned counsel the learned court below in its award misdirected itself in computing the compensation at Rs. 50,000/- to claimant No. 2 out of which Rs. 25,000/- was to be paid by New India Insurance Company Ltd. and Rs. 25,000/- was to be paid by the Oriental Fire and General Insurance Company Ltd. According to the learned counsel, no yardstick has been adopted for the purpose of computing the compensation amount.

Mr. P.K Banerjee has further submitted that, as it has been found by the learned court below that no negligence on the part of the driver of the motor car in question nor there being any allegation to the same, the owner thereof was not liable to pay any compensation and consequently the insurer was also not liable to pay any compensation.

10. Mr. P.S Dayal, learned counsel appearing on behalf of the appellant in Miscellaneous Appeal No. 77 of 1979 (R), has drawn my attention to the statement of claim in para 17 of the application wherein it has been alleged that the claimants could not ascertain the name of the company with which the truck bearing registration No. BRN 9034 was insured in spite of the demand being made by the owner of the vehicle and in para 6 of the written statement filed on behalf of the New India Insurance Company to the effect that no details regarding the policy were available and, as such, the opposite parties be asked to place the said materials.

My attention has also been drawn to the written statement filed by Ratanlal Surajmal wherein it has been admitted that the truck bearing registration No. BRN 9304 was insured with the New India Insurance Company Ltd. having their branch office at Shahid Chowk in Ranchi being No. 434151355 which was valid for the period 4-10-1976 to 3-10-1977. The learned counsel contended that the fact that the truck in question was insured with New India Insurance Company has not been proved. It has further been contended that in any event the claim so far as the Insurance Company is concerned is barred by limitation.

10A. Mr. P.K Sinha, learned counsel appearing on behalf of the appellant in Miscellaneous Appeal no. 75 of 1979 (R) has submitted that the applicants are entitled to higher amount of compensation particularly in view of the fact that the claim of Smt. Sarda Devi, the mother of the deceased who was also a Class I heir has not been taken into consideration at all. The learned counsel further submitted that from the evidence on the record it would appear that the deceased at the time of his death was earning Rs. 500/- per month. In such event, it is contended that even assuming that he was in a position to spare Rs. 300/- per month to the family, the claimants were entitled to a higher amount by way of compensation. He has further submitted that the Tribunal ought to have allowed interest @12% from the date of the accident.

The learned counsel in this connection has placed strong reliance upon a decision of the Supreme Court in the case of Smt. Manjushri Raha v. B.L Gupta, AIR 1977 SC 1158.

11. Mr. P.K Banerjee, learned counsel appearing in Miscellaneous Appeal No. 73 of 1979 (R) has also placed strong reliance upon a decision of the Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan, AIR 1977 SC 1248; in the case of Bihar State Rajya Transport Corporation v. Chandreshwar Mishra, 1983 BBCJ 401 : (AIR 1983 NOC 211) and in the case of Om Prakash Dalmia v. Bina Saha, 1984 Acc CJ 224 : (AIR 1984 Patna 77). He has further relied upon a decision in the case of Madhya Pradesh State Road Transport Corpn. v. Sudhakar, AIR 1977 SC 1189 for the purpose of showing that compensation should be based on by adopting the method of multiplying the annual income by 15 or 16.

12. As mentioned hereinbefore, the factum of the accident is not in dispute. Before me, the relationship of the applicants-appellants with the deceased has also not been disputed. It has also not been disputed that the deceased died as a result of the aforementioned accident which took place on 2nd July, 1977. The applicants in Miscellaneous Appeal No. 75 of 1979 (R) have examined two witnesses. L.N Singh, father of the deceased examined himself as A.W 1. He stated that at the time of the accident the son of this witness was 24 years old and he was by profession a driver. In his deposition, he has further stated that at the material time, he was travelling in a car bearing registration No. BHN 225 which dashed against a truck bearing No. BRN 9034 which was coming from the opposite side. He has further stated that one year before his death the deceased married applicant No. 2 who became so much shocked that after hearing about the accident she gave birth to a still born child. According to his evidence, at the time of his death, he was getting a salary of Rs. 300/- plus food in support whereof a death certificate and a salary certificate have been proved in this case. He was not cross-examined on behalf of Oriental Fire and General Insurance Company. Although he was cross-examined on behalf of the owner of the truck but no material contradiction could be brought on record in respect of the aforementioned statements. A.W 2 was an eye-witness to the accident. According to the said witness, while he was waiting for a bus on the road for going to Ranchi, he saw a truck coming in a high speed from Ranchi side which dashed against a car which was going towards Ranchi. Respective insurance policies have also been proved apart from other documents which are not relevant for the purpose of disposal of these appeals.

13. From the evidence of A.W 2, it is evident that the truck was being driven rashly and negligently. The nature of the injuries sustained by the occupants of the car is also important which is indicated in the death certificate (Ext. 1) wherefrom it appears that such injuries could be caused on account of a terrifice impact.

14. In the facts and in the circumstances of this case, in my opinion, the following questions arise for consideration:

(1) Whether Oriental Fire and General Insurance Company Ltd. is liable to pay any compensation in view of the fact that there is nothing on the record to show that because of the negligence of the driver of the ear the accident took place?

(2) Whether the application filed against the New India Insurance Company is barred by limitation?

(3) What should be the amount of compensation payable to the applicants owing to the death of Vidyadhar Singh as a result of the accident?

(4) Whether the applicant-appellants are entitled to interest at the rate of 12% per annum.

15. Re-Questions Nos. 1 and 2: In terms of S. 110-A of the Act, an application for compensation arising out of an accident may be filed before the Motor Accidents Claims Tribunal for adjudicating the claims for compensation in respect of the accidents involving the death of, or bodily, injury to a person arising out of the use of motor vehicles, or damages to any property of a third party so arising or both. Such application can be filed where the death has resulted from an accident by all or any legal representative of the deceased. In terms of sub-sec. (3) of S. 110A an application for such compensation cannot be entertained unless the same is made within six months of the occurrence of the accident. Under the proviso to the aforementioned sub-section, however, the Claims Tribunal has been empowered to entertain the application after the expiry of the said period of six months, if it is satisfied that the applicant was prevented from sufficient cause from making the application in time.

16. In Minu B. Mehta's case, it was held that the proof of negligence is necessary before the owner or the insurance Company could be held to be liable for payment of compensation in a motor accident claim case. The said decision, however, has been referred to in a recent decision of the Supreme Court in the case of Gujarat State Road Transport Corpn. v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690. It has been held in Gujarat State Road Transport Corporation's (supra) that the observations of the Supreme Court in Minu B. Mehta's case was merely an obiter dicta since there was no necessity to go into the question whether proof of negligence on the part of the driver of the motor vehicle was necessary or not in that case. In the case of Minu B. Mehta, there had been a finding of fact by both the Tribunal as also the High Court that the accident took place on account of the negligence of the driver of the truck in question. In the said decision, the Supreme Court further found that the applicant thereto was entitled to compensation owing to rash and negligent driving on the part of the driver of the vehicle in question. However, the Supreme Court proceeded to discuss the question as to whether the proof of negligence is sine qua non for grant of compensation in view of the observations of the High Court that owing to changed conditions of modern society where a large number of motor vehicles were put on road thus exposing innocent third parties to grave accidents very often resulting in injuries to their lives and limbs, it was necessary in public interest to take the view that proof of negligence was unnecessary on the part of the drivers of the motor vehicles before claiming compensation.

17. The Supreme Court in the case of Gujarat State Road Transport Corpn., (AIR 1987 SC 1690) (supra) having held that the decision in Minu B. Mehta's case (AIR 1977 SC 1248) is merely an obiter dicta proceeded to hold that in terms of various provisions contained in the Motor Vehicles Act that negligence on the part of the owner or the driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of the motor vehicles accident is not necessary to be proved inter alia, in view of S. 92A of the Act.

18. Section 92-A of the Motor Vehicles Act reads as follows:

“92-A. Liability to pay compensation in certain cases on the principle of no fault:—

(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-sec. (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.

(3) In any claim for compensation under sub-sec. (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-sec. (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.”

19. The Supreme Court in the aforementioned case, inter alia observed as follows:—

“……. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault.”

20. Further, from a perusal of S. 110-A of the Act, it is evident that compensation is payable in relation to an accident causing death or bodily injury by reason of use of motor vehicles. In terms of S. 92-A of the Act, a person is entitled to compensation whether the death or the permanent disablement occurs from an accident arising out of use of the motor vehicles which cannot be defeated by reason of the wrongful act or negligence in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. Further, in such claim of compensation, the claimant is not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, negelect or default of the owner of the vehicle or vehicles concerned or of any other person.

21. In that view of the matter, there cannot be any doubt that the Oriental Fire and General Insurance Company Ltd. is jointly and severally liable to pay a sum of Rs. 15,000/- to the deceased in terms of sub-sec. (2) of S. 92-A of the Act, although there may not be any negligence on the part of the driver of the car in question.

22. So far as the liability of New India Insurance Company Ltd. is concerned the same in my opinion is beyond the dispute. In terms of the proviso to sub-sec. (3) of S. 110A of the Act, the Tribunal has an unfettered jurisdiction to condone the delay. From the facts enumerated hereinbefore, it is evident that such condonation of the delay has been prayed for and the said prayer was expressly and/or by necessary implication granted. The applicants were not aware of the name of the insurer with which the truck in question was insured. They had, therefore, no means of knowledge as to who the insurer is. Only for that purpose, the applicants served a registered notice upon the owner of the truck in question and after having come to learn about the name of the insurer they filed an application for impleading the New India Insurance Company as a party thereof which was allowed.

23. In my opinion, therefore, the learned Tribunal has rightly found that there appears to be a sufficient cause for filing a claim petition as against the New India Insurance Company Ltd. after the prescribed period of limitation. Further, it is a well known principle of law that the appellate court normally does not interfere with the discretionary power exercised by the trial court unless the exercise of such discretion has been made arbitrarily or in a cavalier fashion. Reliance in this connection may be made to the case of Charles Osenton & Co. v. Johnston, (1941) 2 All ER 245, the case of Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros., AIR 1967 SC 249; Union of India v. Hakim Chand & Co., AIR 1979 J & K 82); and Rangamma v. Krishnappa, (1968) 1 Mys LJ 552.

24. In that view of the matter, I hold that the court below has rightly exercised its jurisdiction. So far as the plea of the appellant in Miscellaneous Appeal No. 77 of 1979 (R) to the effect that the policy has not been proved is concerned, the same is wholly untenable, the policy in question has clearly been brought on the record. Nothing has been brought on the record to show that the said insurer was in any way prejudiced because at the intitial stage, it was not impleaded as a party.

25. Taking into consideration the aforementioned facts and circumstances of this case, I am of opinion that the truck in question being insured with the New India Insurance Company Ltd. it is liable to indemnify the owner thereof in terms of the insurance policy as also in terms of the Motor Vehicles Act.

26. Re: Questions Nos. 3 and 4:— So far as the question raised by Mr. R.K Sinha in Miscellaneous Appeal No. 75 of 1979 (R) is concerned, the same relates to the quantum of compensation payable to the appellants. In view of the recent decision of the Supreme Court of India in the case of Gujarat State Road Transport Corporation, (AIR 1987 SC 1690) (supra), it is evident that the words ‘legal representative’ have got to be given a wide meaning. In the aforementioned decision, it has been held that every legal representative who suffers on account of death of a person due to motor vehicle accident, should have a remedy for realisation of compensation and that is provided by Ss. 110A to 110F and the said provisions are in consonance with the principles of Law of Torts that every injury must have a remedy. The learned Motor Accident Claims Tribunal in its award has held that the deceased at the time of his death was having an income of not less than Rs. 300/- per month. He, however, failed to take into consideration that the deceased at the material time was getting a salary of Rs. 300/- besides food.

In this view of the matter, there is no doubt that the deceased was in a position to spend a sum of Rs. 250/- over his family. Further, it has come in evidence that the deceased at the time of his death besides being a motor driver was also a motor mechanic. For the purpose of considering the quantum of compensation, one should not lose sight of the fact of the potential in a man to earn more which depends upon the capacity he possesses therefor. In my opinion, taking into consideration that the deceased as a motor driver who was also a mechanic was capable of earning in future at least a sum of Rs. 1,000/- per month.

27. Further, for the purpose of grant of compensation the mental agony suffered by the claimants owing to the death of their kith and kin must also be taken into consideration.

28. Taking all these factors into consideration, I am of the view that the claimants-appellants were reasonably entitled to a sum of Rs. 60,000/- by way of compensation.

29. In the case of Jagbir Singh v. General Manager, Punjab Roadways, AIR 1987 SC 70 the Supreme Court has awarded interest at the rate of 12% per annum from the date of the application for compensation to the date of payment. In this view of the matter, it is held that the appellants are also entitled to interest calculated at the rate of 12% per annum from the date of application for compensation to the date of payment.

30. In the result, Miscellaneous Appeal No. 75 of 1979 (R) and Miscellaneous Appeal No. 77 of 1979 (R) are allowed in part to the extent mentioned hereinbefore but Miscellaneous Appeal No. 73 of 1979 (R) is dismissed. However, regard being had to the facts and circumstances of these cases, the parties shall bear their respective costs in these appeals.

Order accordingly.