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1998 Supreme(MP) 563
High Court Of Madhya Pradesh
B. A. KHAN, SHAMBHOO SINGH
NATIONAL INSURANCE CO.LTD. - Appellant
Versus
NAUSHAD - Respondents
M. A. 402 Of 1994
Decided On : 07/30/1998
V.V.Dandwate
The liability of an insurance company for compensation in a motor vehicle accident case is unlimited unless the insurance company can prove that its liability is limited by the terms of the insurance policy.
Headnote:
MOTOR VEHICLE ACCIDENT - INSURANCE POLICY - LIABILITY OF INSURANCE COMPANY - UNLIMITED LIABILITY - BURDEN OF PROOF - EVIDENCE ACT, SECTION 64, 65 - COMPENSATION - ASSESSMENT - PERSONAL EXPENSES - MULTIPLIER - LOSS OF CONSORTIUM - LOSS OF LOVE AND AFFECTION.
Fact of the Case:
In a motor vehicle accident case, the deceased's family filed a claim for compensation against the insurance company. The insurance company contested the claim, arguing that its liability was limited to Rs. 50,000 as per the insurance policy. The Tribunal awarded compensation of Rs. 7,70,000 to the claimants, holding that the insurance company's liability was unlimited.
Finding of the Court:
The High Court held that the insurance company failed to prove that its liability was limited to Rs. 50,000. The copy of the insurance policy filed by the insurance company was not admissible in evidence as it was not a primary evidence and the insurance company failed to give notice to the owner to produce the original policy. The High Court also held that the Tribunal erred in deducting Rs. 800 for the personal expenses of the deceased and in selecting a multiplier of 25 in assessing the dependency of the deceased's family.
Issues: 1. Whether the insurance company's liability was limited to Rs. 50,000? 2. Whether the Tribunal erred in deducting Rs. 800 for the personal expenses of the deceased? 3. Whether the Tribunal erred in selecting a multiplier of 25 in assessing the dependency of the deceased's family?
Ratio Decidendi: 1. The burden of proving that the insurance company's liability was limited to Rs. 50,000 lay on the insurance company. The insurance company failed to discharge this burden as it failed to produce the original insurance policy or a certified copy thereof. The copy of the insurance policy filed by the insurance company was not admissible in evidence as it was not a primary evidence and the insurance company failed to give notice to the owner to produce the original policy. 2. The personal expenses of the deceased are generally taken to be 1/3rd of his earning. In this case, the deceased was earning Rs. 3,300 per month. Therefore, 1/3rd of his salary, i.e., Rs. 1,100 should be deducted for his personal expenses. 3. The multiplier to be applied in assessing the dependency of the deceased's family should be based on the facts and circumstances of each case. In this case, the deceased was 29 years old at the time of his death and was the sole breadwinner of his family. Therefore, a multiplier of 16 was appropriate.
Final Decision: The High Court modified the award passed by the Tribunal and reduced the compensation from Rs. 7,70,000 to Rs. 4,42,400. The insurance company was directed to pay the compensation amount to the claimants with interest at the rate of 12% per annum from the date of filing of the claim petition.
( 1 ) THIS appeal is directed by the non-applicant insurance company against the award dated 17. 6. 94 passed by 12th Additional Motor Accidents Claims Tribunal, Indore, in Claim case No. 5 of 1993 whereby compensation of Rs. 7,70,000 was awarded with interest at the rate of 12 per cent per annum.
( 2 ) IT was not in dispute that in the night of 3/4. 9. 1989, a Tempo bearing registration No. MBF 2433 met with an accident resulting in the death of Shelendra, the husband of respondent-claimant No. 3 and father of respondent No. 4 and son of respondent-claimant Nos. 5 and 6.
( 3 ) THE case of the claimants was that in the night intervening 3/4. 9. 1989, the deceased Shelendra Gupta was going on his scooter. When he reached M. G. Road near Gurudwara (Indore), the respondent no. 2 came there driving the aforesaid tempo rashly and negligently and hit shelendra Gupta, as a result of which he died on the spot. At the time of incident the age of the deceased Shelendra was 29 years. He was serving in Drug India Private Limited, Ghata-Billore, on the salary of Rs. 3,300 per month. The claimants filed claim case for award of compensation of Rs. 21,80,000 as under: for the loss caused to claimant Nos. 2 and 3 for loss to claimant nos. 3 and 4 for loss of consortium for mental agony-and pain rs. 18,00,000 rs. 3,00,000 rs. 30,000 rs. 50,000 the claimant Nos. 2 and 3 absented themselves and were proceeded ex pane. The appellant-respondent No. 3 resisted the claim and averred that the accident occurred due to rash and negligent driving of the scooter by the deceased himself. It was also pleaded that the liability of the insurance company was limited to Rs. 50,000. The Tribunal after recording evidence held that the accident occurred due to rash and negligent driving of the aforesaid Tempo. It negatived the plea of the appellant that its liability was limited up to Rs. 50,000 and awarded Rs. 7,70,000 and directed the appellant to pay the same with interest at the rate of 12 per cent per annum. Hence, this appeal by insurance company.
( 4 ) MR. Dandwate, learned counsel for the appellant insurance company, submitted that the Tribunal committed error in holding that the liability of the insurance company was unlimited. He submitted that the insurance policy, Exh. D-3, makes it clear that the liability of the insurance company was limited to Rs. 50,000. Mr. Sharma, the learned counsel for the respondentsclaimants, submitted that the appellant did not file the insurance policy with its reply before the Tribunal. A carbon copy of the policy, Exh. D-3 was filed after recording of the evidence of parties. He contended that Exh. D-3 is not an original policy. The insurance company failed to lead secondary evidence for proving the same and under these circumstances, the learned tribunal rightly held that the appellant failed to prove that its liability was limited up to Rs. 50,000.
( 5 ) WE considered the arguments advanced by counsel for both sides. From the perusal of the record of the Tribunal, it appears that the copy of policy was filed before the Tribunal and was marked as Exh. D-3. The appellant also examined Sandeep, its official, who deposed that Exh. D-3 was carbon copy of the original insurance policy. But when we peruse Exh. D-3 we find that it is not carbon copy of the original. It does not appear to be a copy made from the original. It also does not contain the signature of authorised person. The portion C to C 11 passengers' and D to D 'a driver' are written with ink and bear no initial or signature of the writer. It is not proved that Exh. D-3, the alleged carbon copy was made by one uniform process and, therefore, the same is not primary evidence. The appellant failed to examine the officer who prepared this document. It is true that Exh. D-3 bears the endorsement 'certified copy' but the officer who compared it with its original and attested it as certified copy, has not been examined. A Division Bench of Punjab and
