JUDGMENT
K.C. Agrawal, C.J.
1. This Special Appeal has been preferred by the insurance company under Section 18 of the Rajasthan High Court Ordinance, 1949 against the judgment of the learned single Judge dated 23.9.1986 allowing the claims of the respondents and rejecting the appeal filed by the insurance company.
2. On 13.2.1979, at about 8 p.m. when Ram Bhai Patel and his wife Manjula Ben and daughter Chandrika Ben were on their way to Jaipur by car No. GJH 1472, they met with an accident as their car collided with a stationed vehicle No. RRM 3151. Due to severe injuries, Ram Bhai Patel died instantaneously whereas Manjula Ben received injuries and survived. Vehicle No. RRM 3151 was stationed by the driver carelessly and negligently without observing the rale of road as a result of which accident took place.
3. At the time of death, the deceased was 47 years of age. The claimants, Manjula Ben was of 40 years, two daughters, namely, Homaksha Ben and Chandani Ben were 24 and 18 years of age and the son Sunil was of 20 years.
4. Two claim petitions were filed before the Tribunal, one by Manjula Ben and her children for compensation on account of the death of Ram Bhai Patel and the other by Manjula Ben on account of injuries sustained by her. The Tribunal held that the driver of the vehicle which was stationed and parked without any light on rear side or without any indication, was negligent and, therefore, allowed compensation treating the earnings of the deceased to be Rs. 24,000/- per year. For the injuries sustained by Manjula Ben, compensation was also awarded. Dissatisfied, the claimants filed two appeals whereas the insurance company filed one, before the learned single Judge, who allowed the appeals of the claimants for enhancement of compensation and awarded a sum of Rs. 3,12,000/- to the claimants. Hence this appeal and cross-objection.
5. Learned counsel for the insurance company argued before us that the owner of the vehicle No. RRM 3151 including the driver colluded with the claimants and, therefore, the insurance company is entitled to the benefit of Section 110-C (2-A) of the Motor Vehicles Act, 1939 (hereinafter referred to as ‘the Act’) and to contest the claim on all or any of the grounds that were available to the persons against whom the claims had been preferred.
6. Sub-section (2) of the Section 96 of the Act restricts the pleas which are open to be taken by an insurance company. The reason behind enactment of Section 96(2) appears to be that the owner of the vehicle, responsible for accident, may come forward and contest the claim. But, to meet the exigencies where the owner colludes with the claimant, the legislature has made the provision of Section 110-C (2-A), which runs as under:
Where in the course of any inquiry, the Claims Tribunal is satisfied that-
(i) there is collusion between the person making the claim and the person against whom the claim is made, or
(ii) the person against whom the claim is made has failed to contest the claim,
it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding 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 made.
7. For applying the provisions of Section 110-C (2-A), it was necessary for the insurance company to have established collusion between the person making the claim and the person against whom the claim is made. This was a condition precedent and in the instant case, no such averment has been made by the insurance company either before the Tribunal or before the learned single Judge. Therefore, such plea of collusion cannot be accepted at this stage. The word ‘collusion’ has been defined in Webster’s Dictionary as under:
Secret agreement; secret co-operation for a fraudulent or deceitful purpose.
8. It is correct that collusion cannot be established by testimonial evidence but by circumstantial evidence. Circumstantial evidence has been explained in the book Evidence by Rupert Cross, at page 6 in the following words:
‘Circumstantial evidence’ has already been defined as a fact from which the judge or jury may infer the existence of a fact in issue. The evidentiary fact usually has to be proved by testimony, but it is an independent item of evidence because the witness’s assertion may be perfectly true and yet the inference from the fact asserted to the fact in issue may be incorrect. Circumstantial evidence is usually contrasted with ‘direct evidence’ -a term which is employed in two senses.
9. Learned counsel for the appellant urged that for the purpose of showing and establishing that the vehicle with which the car of the deceased collided, had been wrongly parked covering a portion of the rear side, the insurance company moved an application when it found that the owner of the vehicle was not prepared to press a similar application filed by him. The contention of the learned Counsel was that the collusion between the person making the claim and the person against whom the claim is made, had been established in view of the fact that the owner of the vehicle withdrew his application.
10. We are not inclined to accept the above submission of the learned Counsel for the appellant. This is not possible on the basis of mere fact that the application for site plan filed by the person against whom the claim was made, had been withdrawn, an inference can be drawn that he colluded with the person who preferred the claim petition. In this special appeal, the learned Counsel wanted the High Court to go into the evidence and to find out, on the basis of aforesaid circumstances, the requirement of Section 110-C (2-A) of the Act. This was neither argued before the Tribunal nor before the learned single Judge. Had this plea been taken before the Tribunal, it must have inquired into the same. On the basis of such inquiry, if it could have satisfied the Tribunal that insurance company was entitled to lead evidence on all the controversies, in the manner prescribed by Section 110-C (2-A) of the Act, the Tribunal must have permitted it to do so. But that was not done and, therefore, the insurance company is estopped from taking such a plea for the first time in special appeal.
11. Now we come to the cross-objection. Learned counsel for the respondents urged that interest awarded was inadequate and further contended that out of the sun. deposited or paid by the insurance company, the claimants were entitled to adjust the amount towards interest, to which they were found to be entitled. Generally awarding of interest in such a matter is discretionary and that discretion has been exercised by the learned single Judge taking into account the relevant facts and circumstances of the case. It is not open to us to change the same to the extent of 15 per cent. At the time of deciding appeals, the general trend is to confine awarding of interest to the percentage as awarded in the present case. Help has been sought by the learned Counsel for the claimants by referring a decision of the Supreme Court for getting interest at the rate of 15 per cent, but that cannot be done in the instant case.
12. Learned counsel for the respondents next relied on a case-law reported in Oriental Insurance Co. Ltd. v. Harku Devi 1991 ACJ 249 (Rajasthan), in which the learned single Judge permitted the amount of Rs. 25,000/- to be withdrawn by the claimants towards interest, which accrued to the tune of Rs. 49,550/- in that case. That was a case distinguishable from the one before us. In that case, as said above, the interest accrued to the tune of Rs. 49,550/- and, therefore, the learned single Judge permitted the amount of Rs. 25,000/- to be adjusted towards interest. This authority does not act as a guide for holding the claimants entitled to adjust the amount received by them towards interest and that the liability of the insurance company for payment of the same on account of damage would continue without deducting the same. We are of the view that the deposit was made towards the damages. Therefore, the respondents are not entitled to adjust the same towards interest.
13. So far as the argument of learned Counsel for the respondents that compensation for the injuries received by Manjula Ben is liable to be increased is concerned, we ourselves have examined the evidence and find that she has already been adequately compensated. There appears to be no justification for any further increase in the same.
14. As regards the claim for mental and physical agony or pain and sufferings on account of the death of Ram Bhai Patel, we would like to quote the following observations of the Full Bench of this Court in Rajasthan State Road Transport Corporation v. Kistoori Devi 1986 ACJ 960 (Rajasthan):
The claimants under the above head cannot claim any compensation for their own mental and physical agony or pain and sufferings on account of the death of a person in an accident. However, it would be a different case where the claimant himself suffers an injury in an accident and on that count, he claims compensation of his own injuries, in that case, the claimant would be entitled to compensation for the expenses incurred by him in connection with the medical treatment or any disability of temporary or permanent nature incurred by him. Similarly, if any amount is spent on the treatment of a person during the period he remained alive from the time of his accident till his death, compensation can also be awarded to the claimants on that count.
In the present case, the claimants have prayed for compensation for their own mental and physical agony due to the death of a third person, namely, Ram Bhai Patel. We are in respectful agreement with the aforesaid Full Bench decision and we reject the plea of the claimants, aforesaid.
15. For what has been said above, we find no force in this appeal as well as in the cross-objection and the same are dismissed without any order as to costs.