JUDGMENT
Saldanha, J.
1. The appellants before us are the widow and daughters of one S. Bidakar, hereinafter referred to as ‘the deceased’. On 6.11.1980 he was driving motor car bearing No. MEL 3888 on the National Highway heading for Belgaum on his return from Kolhapur. At about 2.30 a.m. while he was approaching the Nippani Check-Post the car hit the rear of truck bearing No. MEI 4412. This truck was carrying iron rods and as a result of the collision Bidakar sustained serious injuries. He was taken to the hospital but he died soon thereafter. It is also alleged that the cleaner of the truck was in the process of tying the iron rods and that in the course of the same incident the car caused injuries of some seriousness to him. In respect of that incident he has lodged a claim which was adjudicated by the M.A.C.T. and was ultimately settled by the insurer of the car. We are here concerned with the claim for compensation that was preferred by the wife and minor daughters of Bidakar who claim an aggregate sum of Rs. 6,00,000. The M.A.C.T., Belgaum by judgment and order dated 19.6.1995 dismissed the claim in its entirety the reason being that the evidence indicated that the insurance policies which cover the truck had expired 4 days prior to the date of the accident and that consequently, no liability could be fastened on the insurance company. The policy in question had expired on 1.11.1980 whereas the incident in question had taken place on 6.11.1980 and there is no evidence before the court to indicate that this policy had either been renewed or that any other policy was in force as on the date of the accident. It is against the order of rejection of the claim that the present appeal has been preferred.
2. As far as the aspect of quantification of the compensation is concerned the appellant’s learned advocate submitted that the Tribunal was in error in having refused to quantify the same because even if the policy had expired it was open to claimants to recover the whole of the amount from the owner of the truck. The learned advocate submitted that the Tribunal had disqualified the claimant from compensation on one additional ground, viz., that the negligence had been attributed to the deceased, secondly, there is a finding that he was driving under the influence of alcohol and the Tribunal has held that having regard to this position in law, that there could be no question of any liability arising vis-a-vis any third party for the simple reason that the death of Bidakar has been attributed to his own negligence and the condition in which he was driving the car. It is this finding that has been assailed before us and we have heard the learned advocates with regard to this aspect of the case.
3. Respondents’ learned advocate did raise one contention which we need to deal with wherein he pointed out that two separate claims were preferred before Claims Tribunal, one on behalf of the heirs of the deceased Bidakar and second one by the injured cleaner of the truck and the Tribunal has disposed of both the claims through a common judgment though, it is really two judgments that have been linked up. Respondents’ learned advocate submitted that in these circumstances where a clear finding has been recorded, that the negligence is attributable to the deceased, that it was incumbent upon the present claimants to have challenged that finding through a separate appeal and if they have not done so that they would be estopped in law from agitating that issue in the present appeal. This submission is extremely involved and highly technical and we are not inclined to uphold it for the simple reason that both claims were disposed of through a common judgment though the respondents’ learned advocate may be right when he points out that the two judgments run one after the other. The appeal that has been preferred against that judgment can certainly call into question any of the findings contained therein and it would be too harsh and too technical to pin down the present appellant to the position that they were legally obliged to separately challenge the findings in the companion claim petitions. In our considered view, the claimants are within their rights to re-agitate the question of negligence dehors whatever may be the findings in the companion petition because after going through the record and having heard the learned advocates we do find that the circumstances under which the deceased sustained injuries and the circumstances under which the injured cleaner of the truck sustained injuries are not necessarily identical. The finding in one of the claim petitions does not necessarily bind the other one.
4. On a reappraisal of the record, we do find that the solitary evidence on which the Tribunal has recorded the findings against the deceased is the fact that the doctor who had examined him when he was taken to the hospital in an unconscious condition has stated that there was some smell of alcohol. From this evidence the learned member of the Tribunal has virtually jumped to a conclusion that the deceased was driving the car under the influence of alcohol. We have meticulously checked the record and more importantly, the postmortem notes which did not indicate the presence of any alcohol, the most important aspect being that when the post-mortem was being done the stomach contents were examined, there is no positive finding that any alcohol was detected. This is not a case in which any clear cut smell was detected and investigated nor was, the viscera sent for chemical analysis and the sum total of the record before us does not therefore justify the conclusion that the deceased was driving the vehicle under the influence of alcohol. The oral evidence of the doctor which emerges after a long period of time is not borne out by anything on record. Secondly, the oral evidence of the persons who were present when the incident took place appears to suggest that the truck in question had come rather fast and attempted to cross the check-post whereupon the whistle was blown and the driver was made to stop the truck and the truck stopped some distance ahead and was ordered to come back whereupon he started reversing the truck and it was at that point of time that the truck and the car collided. In this background, it would be extremely hazardous to record the findings that this evidence conclusively attributes negligence to the driver of the car. We do find sufficient material on record to indicate that the collision took place entirely due to negligence of the truck driver for the simple reason that he had started reversing a fully loaded truck at dead of night backwards on the highway and it was clear that it was in the course of this operation that the truck collided with the car. There is also evidence that the real damage was caused not by the truck but by the iron bars which were projecting well behind the body of the truck and in respect of which there are clear admissions on record. It is in this background, that we set aside the finding of the Tribunal and hold that the incident in question is attributable to the negligence of the truck driver.
5. On the question of quantification, we do not need to enter into any elaborate discussion because we have scrutinized the material that is on record, the wife of the deceased has been examined, 11 documents have been produced and it is indicated that the deceased was earning a sum of Rs. 2,000 per month. Making allowances for the 1/3rd deduction we arrive at a figure of Rs. 1,300 and applying multiplier of 16 that was required to be done in keeping with the law at that point of time in force, we arrive at Rs. 2,49,600. We have added on 3 additional heads, consortium Rs. 10,000, loss to estate Rs. 25,000, funeral expenses of Rs. 3,000, totalling in all Rs. 2,87,600. Interest awardable would be at the rate of 6 per cent per annum.
6. The real question is as to on whom does this liability devolve. In view of the fact that the insurers of the truck have disclaimed their liability since the insurance policy in question was not in force on the date of the accident, the liability in question would have to devolve entirely on the owner of the truck. The fact that he had not renewed the insurance policy is an aspect of which this court takes a serious view and since he is guilty of this negligence, he will have to pay for it by meeting the whole of the liability. A serious attempt was made by the appellant’s learned advocate to contend that the insurer of the car would be liable, the reason being that undoubtedly the insurance policy in question was very much valid and furthermore, under the policy in question an additional premium of Rs. 8 had been paid to cover the liability of the driver. The appellant’s learned advocate contended that even though the insurance policy cover third party liabilities but the additional premium would extend the cover to the driver and that consequently the insurance company is liable.
7. The insurance company is represented by its learned counsel and he has submitted that the policy that was issued by his client was limited to reimbursement for third party liabilities. His submission is that the third party liabilities did not cover the death or injury to the insured himself and that this cover is totally excluded from the ambit of the contract. Learned counsel was at pains to demonstrate to us that additional premium was, as is specified in the policy, limited to the liabilities created or attributable to a paid driver alone and that this cover would still not be good enough to bring the present case within the ambit of his client’s liability. He has relied on the following judgments in support of his contention that where the injury or death of the owner/driver takes place, the insurer who has covered only third party risks, cannot be held liable under any circumstances though the courts have often observed that if the insurer obtains a separate premium and obtains a specific cover for the driver and passengers then the liability could be extended. Admittedly, no such cover had been taken out as far as the present case is concerned:
(1) New India Assurance Co. Ltd. v. Susamma Varghese, 1990 ACJ 521 (Kerala); (2) United India Insurance Co. Ltd. v. Kantabai, 1991 ACJ 22 (Bombay); (3) Oriental Fire and Genl. Ins. Co. Ltd. v. Shakuntala Devi, 1991 ACJ 177 (Allahabad); (4) United India Insurance Co. Ltd. v. Valliammal, 1998 ACJ 1336 (Madras) and (5) National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC).
8. Undoubtedly, the position that now emerges in this case is an unfortunate one and even though the appellant’s learned advocate made a very strong plea to the court that where the insurer of the car has been held liable for the compensation payable to the cleaner of the truck, similarly the insurance company must be directed to meet the present claim also, what we need to observe is that the complexion of the present claim is entirely different. Respondents’ learned counsel is right when he points out that vis-a-vis the injuries caused to the cleaner of the truck where the car was held to be the offending vehicle, it was a third party liability vis-a-vis his client and that there was no ambiguity with regard to the insurance cover. In the present instance, the fundamental objection pleaded was that the present liability is totally and completely outside the ambit of the insurance cover as far as the car was concerned, and that in view of the findings of this court the liability would be that of the insurer of the truck. To this extent the respondents’ learned advocate is right and it would not be permissible in law for this court to hold the respondent insurance company in any manner liable for the payment of the present claim. We have already observed that since the owner of the truck who is obliged under law to ensure that at all times the vehicle is covered by the insurance policy, has defaulted in respect of this legal obligation, that consequently, he would be wholly liable to satisfy the claim in question.
9. Having regard to the aforesaid position, the appeal succeeds. The order passed by the M.A.C.T., Belgaum, as far as the present claim is concerned is set aside. The owner of the truck is directed to deposit the amount awarded by this court with the Tribunal within an outer limit of 4 months from today. On receipt of the amount in question the same to be released to the appellant No. 1 who shall ensure that the compensation received is duly apportioned between herself and the minor children. With these findings the appeal succeeds and stands disposed of with costs.