JUDGMENT
P.K. Misra, J.
1. The owner of the vehicle is in appeal against the award of the Second Motor Accidents Claims Tribunal, Berhampur.
2. The claimants are the parents of the deceased who had died on account of an accident caused by the truck bearing registration No. ORG 6949. As per the case of the claimants, the deceased was going on a cycle towards Kathamentu Chhak, when the truck which was being driven in a rash and negligent manner dashed against him resulting in his death. The claimants claimed that the deceased who was aged about 20 years was working as a mason and was getting about Rs. 60/- to Rs. 70/- per day. Accordingly, they claimed an amount of Rs. 3,00,000/-.
The owner filed objection denying the allegations in the claim application. It was pleaded that there was no rash and negligent driving on the part of the truck driver. The claim of the claimants that the deceased was a mason was also specifically denied. The owner also took the plea that the truck had been validly insured with present respondent No. 1 and the liability, if any, should be borne by the insurance company.
The insurance company in its written statement while generally denying about the allegations made in the claim application had not taken any specific plea.
3. The Tribunal found that the death was on account of the accident caused due to rash and negligent driving of the truck driver. It was further found that deceased was a labourer and not a mason and his daily income was Rs. 25/-. Calculating Rs. 750/- to be monthly wages and deducting one-third towards own expenditure of the deceased, the Tribunal held that the annual dependency of the parents was Rs. 6,000/- and applying multiplier of 16, it calculated Rs. 96,000/- on that head. It further awarded Rs. 10,000/- towards pain and grief suffered by the parents and further sum of Rs. 10,000/- towards loss to estate. Accordingly, in all, it directed that a sum of Rs. 1,16,000/- is payable to the claimants. The Tribunal further held that since the driver was only holding a learner’s licence and since the truck was loaded with chips, there was a violation of the conditions of the insurance policy and accordingly fastened the liability on the owner.
4. The owner in this appeal has challenged the award on the ground that there was no rash and negligent driving. He has also challenged the quantum assessed by the Tribunal and has submitted that even assuming that the claimants are entitled to get compensation, the liability should be borne by the insurance company.
Though a cross-objection had been filed on behalf of the claimants claiming higher compensation, the same has been dismissed as not pressed. Counsel for the claimants while supporting the findings of the Tribunal regarding negligence on the part of the truck driver and the quantum assessed by the Tribunal has submitted that the liability should be borne by the insurance company.
The learned Counsel appearing for the respondent No. 1, the insurance company, while supporting the arguments of the appellant on the questions of negligence and quantum, has submitted that the liability was rightly saddled on the owner, as there was violation of the policy.
5. Coming to the question of negligence, the Tribunal has placed reliance upon the evidence of PWs 2 and 3 who claim to have seen the accident. It is contended by the counsel for the appellant that PW 2 had not been examined by the police in the connected G.R. case and had not been named to be a person present at the time of accident in the charge-sheet and it is, therefore, submitted that his evidence should be discarded. It is further submitted that in view of the evidence of OPW 1, the driver, it should be held that there was no negligence on the part of the truck driver. From the evidence of PWs 2 and 3 it is apparent that while the deceased was travelling on a cycle, the truck came from the front and dashed against the cyclist. As against such evidence of PWs 2 and 3, OPW 1, the driver of the truck, has stated that the deceased came on a cycle from the front and dashed against the vehicle. The evidence of the truck driver that the cyclist dashed against the truck is too far-fetched to deserve any credence. The driver should have kept the truck under controllable speed and if he found somebody coming in front, he should have applied brakes to bring the truck to a sudden stop. It is not the case of the driver that the deceased suddenly came out from some corner or suddenly changed sides. Having regard to the materials on record, the finding of the Tribunal that the accident occurred due to negligent driving of the truck driver cannot be disturbed.
6. The next challenge is to the quantum of compensation assessed by the Tribunal. The Tribunal has applied the multiplier of 16. The claimants, who are parents of the deceased, were aged 50 and 45 years, as indicated in the claim application itself. The possibility of the deceased contributing less to the parents after marriage was very much there. Having regard to the uncertainties of life, the age of the claimants and future contingencies in the shape of less contribution after marriage, I think multiplier of 12 would be more appropriate. Taking into account multiplier of 12 and adding a sum of Rs. 3,000/- towards the funeral expenses, the amount of compensation comes to Rs. 95,000/- in all. Therefore, I assess the total compensation payable to the claimants to be Rs. 95,000 which is payable to the claimants with interest from the date of application.
7. The next question is relating to the liability of the insurance company. The Tribunal saddled the liability on the owner on the ground that the driver had only a learner’s licence and as such a loaded truck should not have been driven by him. For arriving at such conclusion, the Tribunal has placed reliance on the evidence of PW 3, who stated in his cross-examination that the truck was loaded with chips. In the present case, the insurance company had not taken a specific plea of being exempted from meeting the liability on the ground that the driver had merely a learner’s licence and was not authorised to drive a loaded vehicle. The two witnesses examined on behalf of the owner have specifically stated that the truck was empty which was being brought after being cleaned. The certified copy of the seizure list which had been filed before the Claims Tribunal did not indicate that the truck was loaded with chips. In the absence of any specific plea by the insurance company which ought to have raised the point in order to avoid its liability, the stray statement of PW 3 that the truck was loaded with chips should not outweigh the statement of the driver as well as OPW 2 that the truck was not loaded with chips. The counsel for the appellant as well as the claimants-respondents are correct in stating that in the absence of any specific plea and issue to that effect, no amount of evidence could have been looked into. As has been observed in the decision in Oriental Insurance Co. Ltd. v. Abdul Sahid Khan 1995 ACJ 624 (Orissa), in order to escape from the liability on any of the exceptions, it is obligatory for the insurer to plead exemption specifically and to prove it. In absence of any specific plea, the insurer could not have been permitted to adduce any evidence. In the present case, the stray statement of a witness regarding the truck being loaded with chips had been sufficiently countered by the specific evidence of the driver and OPW 2. Keeping in view the aforesaid aspect, I am unable to accept the finding of the Tribunal that the driver having a learner’s licence had, in fact, driven the loaded truck in contravention of the provisions of the policy. The learned Counsel for the insurance company also submitted that even if such a driver having learner’s licence is permitted to drive an empty truck, he could do so in the company of a driver having valid licence. Such submission raised for the first time cannot be countenanced in the absence of any specific plea and issue to that effect. As has been observed in the decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), the insurer will have to establish that the insured is guilty of an infringement of the conditions of the policy. As already indicated, in the present case, there is singular lack of pleading on the part of the insurance company and, therefore, it is not open to the insurance company to raise the question at this stage. For the aforesaid reasons, I hold that the liability of the owner has to be met by the insurance company.
8. During the pendency of the appeal, the owner has filed an application under Order 41, Rule 27, Code of Civil Procedure, seeking permission to adduce additional evidence in the shape of statements of two witnesses in a connected G.R. case indicating that the truck was empty at the time of accident. Having regard to the finding already recorded by me on this score, I do not consider it necessary to admit additional evidence and accordingly, the said application is rejected.
9. In the result, the appeal is allowed to the extent indicated above. The insurance company should pay a sum of Rs. 95,000 with 9 per cent interest from the date of application. During the pendency of the appeal, the owner-appellant had deposited a sum of Rs. 25,000/- out of which a sum of Rs. 10,000/- has been paid to the claimants-respondents and the balance amount has been kept in fixed deposit. From out of the amount of Rs. 95,000/- with interest at 9 per cent to be paid by the insurance company, a sum of Rs. 10,000/- be reimbursed to the owner-appellant and the rest amount along with interest should be paid to the claimants-respondents. Out of the amount payable to the claimants-respondents, a sum of Rs. 60,000/- be kept in fixed deposit jointly in the names of the claimants-respondents for a period of five years with provision for withdrawal of quarterly interest and the balance amount along with interest should be paid to them jointly by way of account payee cheque. The amount of Rs. 15,000 lying in deposit in this Court along with accrued interest be refunded to owner-appellant by way of account payee cheque.
There will be no order as to costs of this appeal.