JUDGMENT
M.F. Saldanha, J.
1. We have heard learned Counsel representing the respective parties. Having regard to the decision of the Supreme Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, , the insurance company which was the original appellant No. 1 applied for transposition as the respondent No. 5 and the original insured remained as the sole appellant. Mr. Bhagavan, learned Counsel who represents the original claimants, viz., respondent Nos. 1 to 4 raised a preliminary objection wherein he has pointed out to us that as far as the sole surviving appellant is concerned who was the original insured, that no objections had been filed before the Tribunal nor was the proceeding contested by this party and it is his submission therefore that having regard to the fact that the present appellant has virtually been treated as ex pane before the Claims Tribunal, that the present appeal should be straightaway dismissed and that no interference with the original order is competent. There are two reasons why we have not upheld this submission, the first one being that Mr. Raju who represents respondent No. 5 submits that irrespective of the fact that the insurance company has been transposed as a party-respondent, that the law still gives the respondent No. 5 an independent right to support the appellant and to contest the appeal in question, which undoubtedly is confined to the question of quantum alone. His submission is that if it can be demonstrated that insurance company is seriously aggrieved by the decision in question that the challenge would not be academic for the simple reason that the insurance company is in fact the party who is monetarily affected by this decision, that the damage is real and that consequently, the insurance company should be permitted to support the appellant. Also what is pointed out to us is that in several decisions while considering the concept of vicarious liability that the High Courts and the Apex Court have taken cognizance of one important fact, viz., that since in the majority of this category of cases the insurance company is required to fully indemnify the insured for the full extent of the liability that the insured does not take any interest in either filing or contesting the proceeding and that this factor has weighed with the courts while considering the locus standi of the insurance company. In the decision cited by us supra, the Supreme Court was really concerned with the aspect as to whether the insurance company can independently prefer an appeal on the question of quantum and the issue has been answered in the negative. In the present case, there is no such handicap because the insured is very much an appellant and all that has happened is that having regard to the law as is now interpreted the insurance company has gone over as a party respondent. This being the position, merely because the appellant had not contested the proceeding before the Claims Tribunal would not be good enough ground to dismiss the appeal. Also, what we need to take into account is that there were a small category of cases in which despite the fact that a proceeding might have been decided ex pane or a particular party has not contested before the trial court, that there is no bar to the party filing an appeal against the judgment or order, if it turns out that the party is aggrieved and desires to appeal against it. For all these reasons, we have entertained the appeal and propose to dispose it of on merits.
2. Coming to the debate with regard to the question of quantum, what is vehemently contended against the claimants is the fact that the wife had stated that the deceased Ali was a building contractor by profession, that he used to undertake contract work for construction of houses and that he had undertaken several such contracts and average earning was Rs. 10,000 per month. She has been supported by PW 2 who is a journalist and who states that he knew the deceased. This witness has also stated that he was personally aware of the nature and volume of his work and that his estimation of earning of the deceased being Rs. 10,000 per month, is a fair and realistic estimate. While Mr. Bhagavan submitted that if the cross-examination is to be scrutinised it will be seen that in the first instance respondents have not brought on record any material to indicate that these two witnesses required to be totally disbelieved. Secondly, he points out that the respondents have not been able to produce any counter or parallel material on the basis of which the estimation of income figures will have to be discredited. His sub-mission is that the learned member of the Claims Tribunal has discounted the figure of Rs. 10,000 as being on the higher side and has on the basis of the limited material available reduced it to Rs. 7,500 per month and that this figure is correct and ought not to be altered. As far as the remaining computations are concerned, viz., the multiplier, etc., the learned Counsel submits before us that there is no ground on which the calculation can be held to be erroneous.
3. On the other hand, what is contended on behalf of the contesting parties is that where the income is of the magnitude of Rs. 10,000 per month that it is absolutely essential to have produced the income tax returns as this income would undoubtedly have been taxable. This has not been done. Secondly, when the wife was asked in the cross-examination as to whether any accounts or any other documents are in her possession to substantiate this figure, she has answered in the negative and furthermore, she has stated that the deceased did not possess a contractor’s licence and furthermore that he was only educated up to the 4th standard. The learned Counsel submitted that having regard to all of this material the court will have to seriously discount the claims made that the volume of the business was so high as to yield Rs. 10,000 per month and it is therefore his submission that it will have to be scaled down by at least 30 per cent to 40 per cent of the original claim made.
4. After carefully evaluating the sub-missions canvassed on both sides what we find is that as happens in the majority of cases before the Claims Tribunal the claimants have not produced possibly the best and most reliable evidence but on the other hand there is some duty cast on the respondents on whom the liability ultimately devolves to demonstrate to the court that the evidence is required to be discredited or substantially watered down. From this point of view it is necessary to have asked for all the particulars in relation to the building contracts, it is necessary to have verified them and it is also necessary to put many other searching questions on the basis of which claimants evidence could have been either discarded or substantially discredited. As the record stands the challenge is relatively weak, and it is for this reason that Mr. Bhagavan, learned Counsel who represents the claimants submits that if the evidence has hardly been shaken that it will have to be acted upon. We have done a comparative evaluation of the entire record, and in our considered view, on the material before us it would be difficult to substantially discount the evidence that has been produced. We, however, feel that the estimation done by the Tribunal was on the high side and consequently, we reduce the base figure from Rs. 7,500 to Rs. 6,000 per month. Applying the requisite 1/3rd deduction we have arrived with the figure of Rs. 4,000 and we have thereafter proceeded on the basis of this figure, applied the multiplier of 15 and arrived at the correct figure of Rs. 7,20,000 under the main head, viz., loss of dependency. The figure of Rs. 9,00,000 arrived at by the Tribunal is accordingly reduced to Rs. 7,20,000. This is the only modification that we propose with regard to the order in question. The Claims Tribunal shall proportionately work out the variation as far as the shares that accrue to the wife and to the 3 dependent children are concerned. Secondly, we direct that as far as the head of interest is concerned that the whole of this amount will accrue to the share of the wife and that there will be no pro rata division as far as the 3 minor children are concerned.
5. For a variety of reasons, we also propose to vary the direction with regard to the. investments. In modification of the Tribunal’s directions, we direct that the amounts accruing to the 3 minor children which were directed to be deposited in a nationalised bank as fixed deposits and which obviously have not been done because the amount was not deposited so far, will now be deposited in the Post Office Savings Bank account as this investment will be tax free. The amounts to be deposited in the monthly income scheme so that the interest on the capital flows into the respective SB accounts which shall be in the joint names of the minors and the mother. The mother shall be entitled to withdraw the interest which shall be used for the benefit of the minor children. The scheme under which the deposits/investments are made is for a period of 6 years on the expiry of which the capital will stand slightly enhanced with the addition of the bonus amount. At the time of renewal, which will have to be done until a period of two years after which each child attains majority or until that particular scheme expires, whichever is later, will have to be done on the basis of the enhanced amount.
6. We are informed that a certain sum has been deposited by the insurance company and we assume that since no conditions were applied that this amount has been withdrawn by the claimant No. 4 who is the mother. If that has not been done, she is permitted to withdraw that amount along with whatever interest that has been accrued. We however desire that sufficient provision must be made for the respondent No. 4 wife for her future and secondly, out of the balance amount accruing to her share which is substantial having regard to the interest which is added on to the principal, we direct that a sum of Rs. 3,00,000 be invested on her behalf in the same manner, i.e., with the Post Office SB monthly income scheme for 5 periods of 6 years each in order to ensure that she has a regular income hereinafter. The Tribunal shall ensure that these investments are made in a Post Office closest to where the claimants reside. On expiry of the periods in question the amount to be released to the respective claimants. The balance amount in question to be deposited in the Tribunal within an outer limit of 12 weeks from today. On receipt of the amount the Tribunal to act as indicated above.
7. With these directions the appeal which partly succeeds and stand disposed of. Parties to bear their own costs.