JUDGMENT
1. Motor Accidents Claims Tribunal, Gulbarga has while allowing MVC No. 335 of 1989 in part determined an amount of Rs. 36,800/- with interest at 6% per annum as compensation payable to the claimants-appellants in this appeal for the death of late Smt. Ratna Bai who died in a road accident. Dissatisfied with the amount of compensation awarded, the appellants have appealed to this Court for a suitable enhancement.
2. On 29-6-1989, late Smt. Ratna Bai accompanied by her son Sri Vishwanath were in Gulbarga for medical treatment. While they were walking along the main road in front of the KSRTC Guest House, an autorickshaw bearing registration No. CNP-4163 and being driven by respondent 1 in a rash and negligent manner dashed against the deceased who sustained multiple injuries. She was shifted to a local hospital where she succumbed to the injuries the same day in the evening. A claim petition for payment of a sum of Rs. 4,15,000/- towards compensation was in due course filed by the husband and son of the deceased before MACT at Gulbarga. The claim was contested by the respondents giving rise to three precise issues which the Tribunal formulated in the following words:
“1. Whether the claimants proves that Ratna Bai, W/o. Veerabhadrappa Gundappagol died in the motor accident on 29-5-1989 at about 12.45 p.m. on the road in front of KSRTC Guest House, Gulbarga due to rash and negligent driving of autorickshaw bearing No. CNP-4163 by respondent 1-driver, as alleged in the petition?
2. To what compensation, if any, are the claimants entitled,
and from whom?
3. What order or award?”
3. In support of the claim, the claimants appeared as P.Ws. 1 and 2 apart from placing reliance upon certain documents marked as Exhibits
P. 1 to P. 3. The respondents however did not adduce any evidence, oral or otherwise. On the material placed before it, the Tribunal recorded a finding to the effect that the accident in question had taken place on account of the rash and negligent driving of the autorickshaw by its driver. Issue 1 was accordingly found in the affirmative. As regards issue 2, the Tribunal held that in the absence of any material to show that the deceased was engaged in tailoring work and earning Rs. 50/-per day, her monthly income could not be more than Rs. 500/-. Deducting a sum of Rs. 200/- per month towards her personal expenses, contribution of the deceased towards the family was taken as Rs. 300/- per month and using a multiplier of 10, a sum of Rs. 36,000/- determined towards loss of dependency. A further amount of Rs. 3,000/- towards loss of love and affection, Rs. 5,000/- towards mental shock and agony and Rs. 2,000/- towards funeral expenses and transport were awarded taking the total amount of compensation due to the claimants to Rs. 46,000/-. After the deduction of 20% towards uncertainty of life, and the payment of a lump sum amount, the actual amount of compensation was brought down to a princely figure of Rs. 36,800/- which as seen earlier was made payable with interest at 6% per annum from the date of the petition till realisation.
4. Learned Counsel for the appellants argued that the Tribunal had fallen in error in treating the income of the deceased to be at Rs. 500/-per month only and applying the multiplier of 10 to the same. He urged that the material on record sufficiently established that the deceased was engaged in tailoring work and was earning a sum of Rs. 50/- per day i.e., Rs. 1,500/- per month. Even after the deduction of one-third of the said amount towards her personal expenses, the monthly income of the deceased could not be less than Rs. 1,000/- or Rs. 12,000/- per year. A multiplier of 12 would according to the learned Counsel be appropriate keeping in view the age of the deceased and the claimants, one of whom namely, Sri Vishwanath was as on the date of the claim petition nearly 25 years old. The amount of compensation payable to the claimants could therefore, argued the learned Counsel, come to Rs. 1,000 x 12 x 12 = Rs. 1,44,000/- excluding the amount towards loss of consortium and funeral expenses etc.
5. Mr. Seetharama Rao, learned Counsel appearing for respondent 4-insurance company, on the other hand, submitted that there was no material to establish that the offending autorickshaw was insured with the 4th respondent-insurance company. Alternatively he contended that the material placed on record did not justify any enhancement. He urged that the claimants’ version that the deceased was working as a tailor was unsupported by any evidence except the self-serving statement made by the claimants. He urged that the liability of the insurance company could not go beyond the statutory minimum of Rs. 50,000/-. He also drew our attention to the order passed by the Division Bench of this Court dated 7-4-2000 whereby this appeal had been allowed to the limited extent of enhancing the compensation to a sum of Rs. 70,000/- only with interest at the rate of 6% per annum on the said amount. It was argued by Mr. Rao contended that although the said order has been recalled, a Bench of co-ordinate jurisdiction ought not to alter the basis on which the said amount had been determined.
6. The 4th respondent-insurance company had in the objections filed on its behalf disputed the allegation that the offending vehicle was insured with it. That plea was negatived by the Tribunal and the liability fastened on the insurance company. Since no appeal or cross-objections have been preferred against that view of the Tribunal, the same has attained finality. It is therefore no longer open to the respondent-insurance company to argue that the vehicle in question was not insured with it or that the liability to pay compensation does not rest upon them. We shall therefore proceed on the premise that the offending vehicle was duly insured with the 4th respondent-insurance company as held by the Tribunal.
7. The next question then is whether the insurance company can argue that its liability was restricted to the minimum prescribed by the statute? The answer to that has to be in the negative. Having acknowledged the existence of an insurance policy by accepting the finding recorded by the Tribunal and by paying the amount of compensation determined thereunder, it is not open to the insurance company to argue that its liability was limited to a sum of Rs. 50,000/-. That is because the extent of liability would depend upon the contents of insurance policy which ought to have been produced by the driver/owner of the vehicle or by the insurance company who has issued the same. The insurance company did not however choose to have the policy placed on record or a copy thereof produced. It did not adduce any other evidence to show that the liability was limited to Rs. 50,OOOA. If the insurance company intended to avoid its liability beyond the statutory minimum, it ought to have placed on record the best evidence in support of that plea. The best evidence to substantiate its plea would undoubtedly be the policy of insurance itself which could be produced either by the driver/owner of the vehicle or the insurance company. That is so especially when the claimants had disclosed the particulars of the cover note under which the vehicle had been insured by the 4th respondent. If the insurance company denied the contents or the issue of the cover note and wished to argue that the same related to some other vehicle, it ought to have adduced evidence to that effect. No serious effort was however made by the insurance company in this regard. The non-production of the policy which was available with the insurance company would therefore attract the well-known maxim “omnia praesumiintur contra spoliatorem” and give rise to an adverse inference to the effect that if the material had been produced, it would have gone against the respondent. Illustration (g) to Section 114 of the Indian Evidence Act, 1872, would squarely apply to support an inference that if it had produced the relevant evidence, the same would have gone against it. See (1) A Raghavamma and Anr. v. A. Chenchamma and Anr., ; (2) Mohd. Shafi and Anr. v. State of Jammu and Kashmir, ; and (3) Gurnam Singh and Ors. v. Surjit Singh and Ors.,
8. That brings us to the crucial question as to what would be the reasonable amount of compensation that can be awarded to the claimants. Two factors are in this regard relevant namely, the contribution which the deceased was making towards the family and the multiplier applicable having regard to the age of the deceased and the age of the claimants. The evidence comprising the depositions of the claimants suggests that the deceased was working as a tailor earning between Rs. 40/- to Rs. 50/- per day. The Tribunal has not while rejecting that version given any cogent reason in support of its conclusion. What is important is that the statement made by the witnesses that the deceased was working as a tailor and earning Rs. 50/- per day has not been challenged in cross-examination. The respondents it appears did not avail the right of cross-examination, with the result that the testimony of the witnesses remains unshattered. If a statement remains unchallenged in cross-examination, the inference is that its correctness is not disputed by the party against whom the same is made. That being so, the version that the deceased was working as a tailor and earning Rs. 40/- to Rs. 50/- per day could not be brushed aside as it was done by the Tribunal. It is also noteworthy that the notional income of the non-earning member is after the 1994 amendment taken to be Rs. 15,000/- per annum which works out to Rs. 1,250/- per month. It would, therefore, be reasonable to hold that the income of the deceased was around Rs. 40/- per day or Rs. 15,000/- per annum. If one-third of the said amount is deducted towards her personal expenses, the contribution of the deceased towards the family would come to Rs. 10,000/- per annum.
9. The next question then is as to what should be the multiplier applicable in the instant case. The deceased was around 50 years old. One of the claimants was as on the date of the accident 25 years of age although the second claimant was around 55 years old. Having regard to the circumstances therefore, a multiplier of 12 should in our opinion suffice. The compensation payable to the claimants would accordingly work out to Rs. 10,000/- x 12 = Rs. 1,20,000/-. To this can be added a sum of Rs. 10,000/- towards loss of consortium for the claimant-husband besides a sum of Rs. 5,000/- towards funeral expenses and transportation charges etc., taking the total to Rs. 1,35,000/-. This amount, in our opinion, represents a just and reasonable compensation which the claimants must receive with interest at the rate of 8% per annum from the date of the claim petition till its payment less the amount already paid. The fact that the Division Bench which had earlier heard and disposed of this appeal had determined a sum of Rs. 70,000/- only towards compensation does not in our opinion prevent this Court from determining a just compensation especially when the order passed by the Division Bench stands recalled in Review Petition No. 1055 of 2001 disposed of on 25-9-2001.
10. This appeal accordingly succeeds in part and is hereby allowed. The judgment and award of the Tribunal shall stand modified to the extent that the claimants shall instead of Rs. 36,800/- determined by the Tribunal be entitled to receive compensation of Rs. 1,35,000/- with interest at the rate of 8% per annum from the date of the petition till realisation. The amount of compensation shall be shared by the claimants, equally except the amount of Rs. 10,000/- awarded towards consortium which shall go to claimant 1 alone. No costs.
