JUDGMENT
P.K. Mohanty, J.
1. In the above two appeals, challenge is made to the judgment and award of the learned Second Motor Accident Claims Tribunal, Cuttack dated 29th June, 1995 and as such on the prayer and consent of the learned counsel for the parties, they were heard analogous and disposed of by this common judgment.
2. Misc. Appeal No. 419 of 1995 is filed by the claimants seeking enhancement of compensation, whereas Misc. Appeal No. 491 of 1995 is by the Insurance Company challenging the award. Misc. Appeal No. 419 of 1995 by the claimants was heard and was dismissed by a learned Single Judge by order dated 19.9.1996 as against which the appellants preferred A.H.O. No. 79 of 1996. The Division Bench, keeping in view the fact that Misc. Appeal No. 491 of 1995 filed by the Insurance Company is still pending consideration and in case the A.H.O. is allowed, there is likelihood of conflicting decisions, allowed the A.H.O. and remitted it back for fresh consideration along with the appeal fled by the Insurance Company, in such circumstances, both the appeals were heard.
3. The brief fact of the case is that the claimants are the widow and children of deceased Bhikari Ch. Mahakud claiming compensation of Rs. 2,95,000.00. On 1.5.1992 while the deceased was coming to Bhadrak from Jajpur Road in a trekker bearing registration No. OR-04-0199, it dashed against a tree near A lia due to the rash and negligent driving of the driver of the trekker. The deceased sustained serious injuries and while being carried to the S.C.B. Medical College Hospital, succumbed to the injuries on the way. It is claimed that deceased Bhikari Ch. Mahakud was working as a Manager in a Private firm with an income of Rs. 1650.00 per month. Respondent No. 1, the owner of the vehicle was set ex parte before the Tribunal and the Insurance Company (Respondent No. 2) filed its written statement denying all the allegations and the claim made. A claim was made by the Insurance Company at one stage that the vehicle was having a private car Insurance and subsequently a stand appears to have been taken that since the deceased was a passenger in the goods carrying vehicle, no liability can be fixed on it. The Tribunal has framed the following issues :
ISSUES
(1) Is the case maintainable ?
(2) Whether the death of the deceased caused due to rash and negligent driving of the driver of the vehicle OR-04-0199 trekker?
(3) Is the Insurance Company liable to pay any compensation ?
(4) Is the claim excessive and arbitrary ?
(5) To what relief, if any, petitioners are entitled ?
4. The learned Tribunal taking note of and on consideration of the evidence of P.W. 2, an eye witness to the accident, the evidence of the widow (P.W. 1), came to the finding that the accident took place due to the rash and negligent driving of its driver, who lost control and dashed the vehicle against the tree causing death of the deceased. The Tribunal has taken into consideration of the certified copy of the FIR and the copy of the Charge Sheet against the driver of the vehicle under Section 304-A, IPC, the copy of the Post-mortem report (Ext. 3), to hold that the accident took place causing death of the deceased due to the rash and negligent driving of the driver of the trekker.
5. The insurer in its written statement took a conflicting stand that the deceased was travelling as a passenger in the trekker which was insured as a private car and as such, it has no liability, while otherwise it denied all the allegations in its written statement. The insurer however has not produced any Insurance Policy to substantiate its claim and, therefore, the Tribunal came to hold that the insurer is liable to indemnify the liability of the insured to satisfy the claim. On the question of quantum of compensation however, the claim with regard to salary earned by the deceased as a Manager of a private firm and from out of the private business as deposed to by P.W. 3, the employer, the Tribunal appears to have disbelieved his evidence on the ground that no document had been filed to show that the deceased was an employee of P.W. 3 and was getting a salary of Rs. 1650/- per month. The Tribunal however, assessed the income of the deceased at Rs. 750.00 per month, taking the minimum wage of a daily labourer and deducting Rs. 250.00 towards his personal expenses, assessed the contribution to the family at Rs. 500.00 per month and the age of the deceased as 35, in terms of the Post-mortem report, applied a multiplier of 16 determined a compensation of Rs. 96,000.00. The Tribunal added Rs. 4,000.00 towards consortium and awarded a sum of Rs. 1,00,000.00 as net compensation payable to the claimants along with an interest at the rate of 9% per annum from the date of filing of the claim on 16.5.1992.
6. The claimants assail the impugned award on the ground that the deceased having worked as a Manager in the private firm, the determination made by the Tribunal taking the minimum wages of a daily labourer was illegal, the multiplier 16 applied by the Tribunal was inapplicable and that the compensation for loss of consortium and the interest should have been much more.
7. The insurer, the National Insurance Co. Ltd., the appellant in Misc. Appeal No. 491 of 1995 assails the award made by the Tribunal mainly on the ground that the vehicle in question having been insured as a private car and the deceased admittedly being a passenger in violation of the terms of the policy, the insurer is not liable to indemnify the insured and that the primary burden is on the insured to show that the vehicle in question has been validly insured and no terms have been violated, the owner having not discharged such burden the liability ought to have been fastened on the owner. It is also contended that the finding of the Tribunal that since the insurer has not produced the policy, the stand taken by it could not be accepted is impermissible in law and the award is liable to be set aside. The application of multiplier 16 has also been challenged as impermissible in the facts of the case.
8. The insurer has filed an application under Order 41, Rule 27, CPC, Misc. Case No. 587 of 1997 for adducing additional evidence is that the appellant could not file the copy of the policy before the Tribunal, but however, called upon the owner of the vehicle and the claimants to cause production of the policy which is supposed to be with the owner and that the terms of the policy embodied therein and are relevant for complete and proper adjudication of the dispute as to whether the appellant is liable to indemnify the owner and pay the awarded amount. It is the settled position of law that a party seeking to produce additional evidence must prima facie establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the appellate Court requires any such document to be produced, for pronouncing a judgment in a fair manner. A bare reading of the application under Order 41, Rule 27, CPC makes it clear that neither of these grounds are urged by the insurer-appellant seeking permission for adducing additional evidence. Even there is no whisper as to why or the circumstance in which the Insurance policy could not be produced before the Tribunal by the insurer who was claiming immunity from the liability because of alleged violation of the terms of the policy. In such circumstances, I am not inclined to allow the application for additional evidence to admit the Insurance policy as an additional evidence at this appellate stage.
9. In view of the pleadings of the parties and contentions raised, the question that needs consideration is as to whether in view of the admitted position that the deceased was travelling in a trekker which had a comprehensive Insurance policy covering the date of accident, the insurer will be liable to cover the liability of the insured of the vehicle and as to whether the compensation awarded by the Claims Tribunal is just and proper.
10. The Apex Court in Smt. Mallawwa etc. v. Oriental Insurance Co. Ltd. and Ors., AIR 1999 SC 589 has upheld the view taken by the Full Bench of this Court in New India Assurance Co. Ltd. v. Kanchan Bewa, 1994 ACJ 138 and observed that for the purpose of construing the provision like proviso (ii) to Section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. To find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods or an employee of such an owner, and then, whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy. In Pushabai Parshottam Udeshi and Ors. v. Ranjit Ginning & Pressing Co. Pvt. Ltd. and Anr.; AIR 1977 SC 1735 the Apex Court while considering the case of a passenger travelling in a motor car observed that the plea that the words “third party” are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers is made clear by the proviso to Sub-section which provides that a policy shall not be required, except where the vehicle is a vehicle in which passengers are carried for hire or reward or by a reason of or in pursuance of a contract of employment, to cover liability in respect of the death or bodily injury to persons being carried in or upon or entering or mouting or alighting from the vehicle at the time of the occurrence of the event out of which claim arises. Therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured. Thus, in absence of any evidence that the trekker in question was carrying passengers regularly and that the deceased was a passenger for hire or reward the liability of the Insurance Company cannot be avoided.
11. At this stage the stand taken by the insurer in its written statement may be taken note of :
“That the Opposite Party is at present unable to admit whether the Vehicle No. OR-04-0199 (Trekker) as stage in paragraph 16 of the petition, was insured with this Opposite Party. The petitioners may cause the owner of the vehicle to produce and prove the policy of Insurance, failing which the name of this Opposite Party be expunged from the case.”
However, in paragraph-8 it is specifically averred that the deceased being a passenger in a goods carrying private vehicle as has been alleged in the petition the petitioners are not liable to get any compensation as per the terms of the policy. The accident took place in the year 1992 when the amendment of 1994 had not come into force and it was necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. In view of the specific plea taken in the written statement which has also not been proved by producing the Insurance Policy or the evidence to that effect the present plea that the deceased was travelling as a passenger in a private car is inconsistent inasmuch as the insurer having not adduced any materials in support of that statement it is of no use. Accordingly, I am of the considered opinion that the insurer is liable to pay the compensation.
12. Now coming to the question of quantum of compensation and the income of the deceased at the time of death. It appears that the Tribunal has not believed the statement of P.W. 3, the purported, owner of the business where the deceased was alleged to have been working as a Manager for a salary of Rs. 1650.00 per month on the ground that no document was adduced. In the claim application it has been specifically averred that the deceased at the time of accident was working as a Manager in a private Marwadi firm and was earning Rs. 1650.00 consolidated salary per month and contributing Rs. 1250.00 per month to the family. The owner of the Marwadi firm as P.W. 3 has deposed that the deceased was working as a Manager in his firm and was being paid Rs. 1650.00 per month. The widow of the deceased Mukta as P.W. 1 has stated that the deceased was working as a Manager of Jagdish Marwadi of Bhadrak and was getting Rs. 1650.00 per month and was contributing a sum of Rs. 1250.00. In such view of the matter, the learned Tribunal could not have discarded the evidence altogether in absence of any contrary evidence and to assess the income at the minimum wage the deceased could be said to have earned which was Rs. 750.00 per month. In absence of any contrary evidence adduced by the insurer or the owner of the vehicle such a finding cannot be sustained in law. However, taking the over all fact situation of the case, the tenor of evidence of P.Ws. 2 and 3, I am of the opinion that the earnings of the deceased could be determined at Rs. 1350.00 per month and so determined the net contribution of the family can be assessed at Rs. 900.00 deducting 1/3rd towards his personal expenses. In view of my finding that the net contribution of the deceased to the family Rs. 900.00 taking the age at 35, and keeping in view the age of the widow and the other dependants the proper multiplier in terms of the Schedule can be appropriately fixed as 16, as determined by the learned Tribunal, the amount of compensation comes to Rs. 1,75,600.00. The claimants shall however, not entitled to any other amount as determined by the Tribunal. The aforesaid amount shall carry the interest at the rate of 9% per annum from 16.5.1992 as determined by the learned Tribunal. The judgment and award of the Tribunal shall stand modified accordingly.
Both the appeals are disposed of in the aforesaid terms, but however, there shall be no order as to cost.