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Judgment
S.H. Sheth, J.—These two appeals arise out of claims made by the legal representatives of two persons who died in a motor accident.
The facts of the case, briefly stated, are as under:-
On 29th June, 1969 at about 5 p.m. original opponent No. 1 had been driving his truck No. G.T.D. 4025 from Balasan to Surendranagar on Viramgam-Panar Road. On that road there is a railway crossing near which the truck driver took a sharp turn as a result of which the truck was overturned. As a result of this accident Jafar Hussain, the cleaner of the truck and Manaji Narbhaji a labourer who was on duty on the truck died as both of them fell down and were crushed under the weight of the truck. It may be noted that they died instantaneously on the spot. The legal representatives of cleaner Jafar Hussain made an application under the Motor Vehicles Act to the Motor Accident Claims Tribunal at Narol claiming compensation on account of the accidental death of Jafar Hussain. To that application the driver of the truck was joined as opponent No. 1 and the owner of the truck was joined as opponent No. 2. Opponent No. 2 was a firm. Therefore, its two partners were joined as opponents Nos. 3 and 4. The hirer of the truck was joined as opponent No. 5. The financier of opponent No. 2 firm was joined as opponent No. 6. The insurance company with which the truck was insured was joined as opponent No. 7.
The legal representative of Manaji Narbhaji, the labourer who had met with the accidental death, filed Claim Petition being M.A.C.T. Application No. 10 of 1973. To that petition all the persons who were joined as opponents in M.A.C.T. Application No. 11 of 1972 were joined as opponents. However, there were three more opponents who were later on joined. They were the widow of Manaji, his father and mother.
The Tribunal heard both the petitions separately and in the Claim Petition filed by the legal representatives of cleaner, Jafar Hussain, the Tribunal awarded a compensation of Rs. 16,500/-and in the Claim Petition filed by the legal representative of Manaji Narbhaji, the labourer, the Tribunal made an award for Rs. 21,000/-. First Appeal No. 573 of 1973 has been filed against the award made in M.A.C.T. Application No. 11 of 1972 by opponent No. 2 (the owner of the truck), opponents Nos. 3, 4 and 5 who are the partners and financier of opponent No. 2. The hirer of that truck has also joined as an Appellant. In that appeal the claimants have filed cross-objections by which they want the compensation to be raised. Against the award made by the Tribunal in M.A.C.T. Application No. 10 of 1973 no appeal has been filed by the claimants. However, First Appeal No. 611 of 1974 has been filed by the insurance company against the award made by the Tribunal.
In First Appeal No. 573 of 1973 the only contention which has been raised by Mr. Shah is that the finding recorded by the Tribunal that the liability of the insurance company was limited to Rs. 7,000/- is incorrect.
In first Appeal No. 611 of 1974 the following contentions have been raised by Mr. Parekh on behalf of the insurance company:-
(1) The owner of the truck who had insured the truck with the insurance company had no vicarious liability at the time of the accident because the truck in question had been given by him on hire. Therefore, the insurance company is not liable to pay the compensation.
(2) The claim made by the claimants was barred by time.
(3) No award could have been passed by the Tribunal in favour of opponents Nos. 7, 8 and 9 the other legal representatives of the deceased because they had not made any claim.
(4) The liability of the insurance company was limited to the liability of the owner arising under the Workmen''s Compensation Act, 1923 and no more.
Against the maintainability of this appeal Mr. Shah has raised a preliminary contention. According to him, it is not open to the insurance company to raise several contentions which it has raised because Section 96 of the Motor Vehicles Act does not permit them to be raised.
The Tribunal decided both the petitions by separate judgments. However, we decide these appeals by a common judgment because both the claims arise out of the same accident and therefore evidence is common. There were two claim petitions because two persons met with death in a single accident.
We first deal with the sole contention which has been raised by Mr. Shah in First Appeal No. 573 of 1973. The Tribunal has found that the liability of the insurance company was limited to what the owner of the truck was liable to pay to the claimants under the Workmen''s Compensation Act. It is difficult to realise how the Tribunal could record such a finding. Firstly, the insurance company did not produce the policy to show that its liability in respect of the claim made by the claimants was limited to the liability of the owner arising under the Workmen''s Compensation Act Secondly, de hors the policy the insurance company led no evidence whatsoever. It appears to us that the Tribunal recorded the finding in favour of the insurance company merely on the strength of the averment made by the insurance company in its written statement. It is needless for us to say that an averment made in a Written Statement is not the proof of it nor does it constitute any evidence. It merely shows what contention the Defendant is going to raise in order that the Plaintiff may meet it. After having raised the contention, if the insurance company did not prove that defence, no finding in favour of the insurance company could have been recorded by the Tribunal. It appears to us from the record of the case that without placing on record the insurance policy under which the truck in question was insured with the insurance company the insurance company baldly contended that its liability was limited. The Tribunal did not see through the game which the insurance company had been playing. In order to show that in a particular respect the insurance company in a motor accident claim is not liable the insurance policy which constitutes the first and foremost defence must be placed by the insurance company on record. It did not do so. In absence of any evidence from the insurance company on this aspect the only course which was open to the Tribunal was to ignore that defence and to decide the case on merits. However, the Tribunal committed an error in succumbing to the bare defence which the insurance company raised and in support of which it led no proof or evidence. In order that the insurance policy may be brought on record two Civil Applications have been made for additional evidence. Civil Application No. 2469 of 1975 has been made by the claimants. Similarly, Civil Application No. 2489 of 1975 has been made for additional evidence by the owner, the driver and the hirer.
Mr. Parekh has tried to argue that no additional evidence can be taken on record at this stage because Order 41, Rule 27 of the CPC does not help the applicants to bring additional evidence on record. Really speaking, the question whether Order 41, Rule 27 CPC is attracted to the present case or not does notarise. Such a question will arise if the claimants were under an obligation to prove the defence raised by the insurance company. They were under no such obligation. Therefore, these two Civil Applications have only been made out of abundant caution. It was the duty of the insurance company to produce the insurance policy on record in support of the contention which is raised in its written statement. Firstly, we are entitled to reject that contention and set aside the finding recorded by the Tribunal because the insurance company has neither produced the insurance policy nor led any other evidence in support of their contention. It is impossible for us to imagine that what has been averred can be elevated to the status of a finding even though no evidence has been led to prove it. However, in order to do complete justice to the parties we felt that nothing would be lost if we condone the default on the part of the insurance company to produce the insurance policy and look into it. Secondly, even if we are required to consider whether such an application for additional evidence is maintainable in law, we do not think we are wrong in taking the view that these two civil applications are within the scope of Order 41, Rule 27(1)(b) which inter alia provides as follows:
The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-
the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
Instead of rejecting the contention which the insurance company has raised in its written statement without any proof we thought we would do better justice and pronounce a better and more satisfactory judgment by taking on record the insurance policy. Such a course would leave no grievance for anyone to nurse. Read in that light we see no difficulty whatsoever in holding that our desire to do more satisfactory and complete justice is itself sufficient cause within the meaning of Clause (b) of Sub-rule (1) of Rule 27 of Order 41. In addition to the aforesaid provisions we are also entitled to rely upon Section 151 of the CPC to bring the policy on record. In our opinion, therefore, both the Civil Applications should be and are granted. Having granted those Applications we have taken on record the insurance policy produced in M.A.C.T. Application No. 10 of 1973 and looked into it in order to find out whether the defence raised by the insurance company is sustainable or not. Mr. Parekh has further argued that having allowed the production of additional evidence in the shape of insurance policy on record we must give the insurance company an opportunity to meet that additional evidence. This ordinary procedural requirement is not applicable to the instant case firstly because the insurance policy which we have taken on record was issued by the insurance company itself and secondly because it was the duty of the insurance company to produce the insurance policy on record and by granting these applications we are only condoning the default committed by the insurance company in not producing it. However, we were inclined to consider the arguments which Mr. Parekh might choose to advance on merits against this additional evidence. He however did not raise any argument on merits and confined his case to a narrow circumstance referred to by us above.
So far as the insurance policy is concerned, Endorsement No. 16 attached to the policy is the most important one. It inter alia provides as follows:
In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the company shall indemnify the Insured against his legal liability under the Workmen''s Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading and/or unloading) whilst engaged in the service of the insured in such occupation in connection with the vehicle and will in addition be responsible for all costs and expenses incurred with its written consent.
This endorsement makes it clear beyond any doubt that the insurance company had rendered itself liable under the terms of the policy to indemnify the insured against his legal liability arising in respect of personal injury which may be caused to the cleaner or conductor or person employed in loading and/or unloading whilst engaged in the service of the insured. The facts of the case show that Jafar Hussain who met with the accidental death was a cleaner. Similarly, the facts of the case also show that Manaji Narbhaji, a labourer, who met with the accidental death was also a "person employed" within the meaning of that expression used in Endorsement No. 16. The insurance company was, therefore, liable to indemnify the insured against his legal liability in respect of personal injuries caused to cleaner Jafar Hussain and labourer Manaji Narbhaji. Secondly, the endorsement quoted above shows that the legal liability of the insurance company was not limited only to one arising under the Workmen''s Compensation Act, 1923 but also extended to the liability arising under the Fatal Accidents Act, 1655 or at Common Law. The expression "at Common Law" used in Endorsement No. 16 knocks the bottom of the insurance company''s defence down. It is only when we saw the policy that we realized why the insurance company did not produce it before the Tribunal and led the Tribunal to convert its averment without proof into a finding of the Court. The Tribunal, in our opinion, ought to have been more vigilant and ought not to have rushed to record a finding in favour of the insurance company without having had a look at the insurance policy or calling upon the insurance company to produce the insurance policy. The indemnity extended by the insurance company to the insured in respect of his legal liability at Common Law renders the insurance company liable to pay the entire claim awarded by the Tribunal or the Court to the claimants. In that view of the matter the Tribunal was in error in recording the finding that the legal liability of the insurance company was confined to one which arose under the Workmen''s Compensation Act. We set aside that finding and hold that the insurance company is liable to indemnify the insured against the entire claim which the Tribunal has awarded to the claimants. That is what we mean by the expression "at Common Law" used in Endorsement No. 16 attached to the insurance policy. In view of the finding which we have recorded the award made by the Tribunal will have to be modified.
In this appeal the claimants have filed cross objections in order to claim higher compensation than what has been awarded to them by the Tribunal. The Tribunal has made an award for Rs. 16,500/-. It is necessary to appreciate certain facts about which there is no dispute in order to examine the contention raised by Miss Shah that the amount of compensation awarded to the claimants should be enhanced. It is undisputed that the deceased Jafar Hussain when he met with the accidental death was a young boy of 21 years of age. The finding recorded by the Tribunal that his monthly income was Rs. 150/- per month has also not been disputed before us. There is nothing on record to show that he had been in poor or indifferent health. It is true that he was unmarried. Amongst his dependants his father and mother both of whom are fairly young are there. The father appears to be 48 and the mother appears to be 42. Jafar Hussain, a young boy of 21 years earning Rs. 150/- per month, would in normal course have had very good chances to earn more income in future. The Tribunal has recorded the conclusion that out of Rs 150/- which Jafar Hussain had been earning per month he should be assumed to have spent on himself Rs. 75/- per month and helped his parents with the remaining sum of Rs. 75/-. That, in our opinion, was an erroneous approach which the Tribunal adopted As between the two parents and Jafar Hussain there was no question of Jafar Hussain spending more on himself than on either of his parents. In a family of three consisting of two parents and a young earning boy everyone should ordinarily be spending on himself or herself an equal amount unless the evidence shows to the contrary. The Tribunal therefore should have found that Jafar Hussain had been spending on his parents a sum of Rs. 100/- out of his monthly income of Rs. 150/-. The Tribunal has applied the multiplier of 15 years'' income. Taking into account the age which Jafar Hussain met with his accidental death the Tribunal ought to have applied the multiplier of 16 years'' annual income. We are, therefore, inclined to uphold the contention raised by Miss Shah. In our opinion, on the basis that Jafar Hussain''s parents, the claimants were receiving from Jafar Hussain the benefit of Rs. 100/- per month, they would be entitled to a sum of Rs. 19,200/- as compensation on the basis of 16 years multiplier. To that we add usual compensation of Rs. 3,000/-. We are, therefore, of the opinion that the claimants-Jafar Hussain''s parents-are entitled to a sum of Rs. 22,200/-. The award made by the Tribunal is therefore, liable to be modified accordingly.
We now turn to First Appeal No. 611 of 1974 which the insurance company has filed against the claimants and others in MACT. Application No 10 of 1973. Mr. C.A. Shah has argued that it is not open to the insurance company to raise the contentions which Mr. Parekh has raised because the insurance company can raise only such contentions as the provisions of Sub-section (2) of Section 96 of the Motor Vehicles Act, 1939 permit. The limited. defences which the insurance company is entitled to raise are as follows:-
(1) That the policy was cancelled by mutual consent or that it had ceased to operate on account of any provision contained therein.
(2) That the certificate of insurance was surrendered by the insured to the insurance company or that it was lost or destroyed.
(3) That there was a breach of a specified condition of the policy. Amongst these conditions are (a) a condition excluding the use of the vehicle for hire or reward not permitted under the policy, (b) a condition excluding the use of the vehicle for organised racing and speed testing (c) in case of a transport vehicle, a condition excluding the purpose not allowed by the permit under which the vehicle is used.
Condition (d) is applicable only to a motorcycle and is not attracted to the instant case. It is also open under Sub-section (2) of Section 96 to the insurance company to raise the defence based on a condition excluding driving by a named person or persons or by any person who is not duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification and a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. Lastly, it is open to the insurance company to raise the defence that the policy was void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. These are the defences which the insurance company is entitled to raise. In the light of the provisions of Sub-section (2) of Section 96 we are of the opinion that it is not open to the insurance company to raise the contention that the owner of the truck in question had no vicarious liability because the truck in question was given by the owner on hire. It is also not open to the insurance company to raise the contention that the award could not have been passed in favour of opponents Nos. 7,8 and 9. One of them is the widow of the deceased who is a legal representative. If she herself did not make the claim but if other legal representatives of the deceased made the claim she is entitled to her share in the compensation. Similary, the contention as to the liability of the insurance company being limited to one arising under the Workmen''s Compensation Act must also fail on account of the finding which we have recorded herein above.
The policy under which the truck in question was insured was produced on the record of this case by the insurance company before the Tribunal. By that policy the insurance company had undertaken to indemnify the insured''s legal liability at common law arising out of an accidental death or personal injury caused to a driver or a paid labourer. We are, therefore, of the opinion that the - contentions which Mr. Parekh has raised either cannot be allowed to be raised or that they are without any substance. In taking the view which we are taking on the provisions of Sub-section (2) of Section 96 we are fortified by the decision of a Division Bench of this Court in First Appeal No. 739 of 1973 decided on 19th March, 1974 by Mr. Justice J.M. Sheth and Mr. Justice A.A. Dave.
Turning to the last contention as to limitation raised by Mr. Parekh we find that the accident occurred on 29th June, 1969 and the claim petition was instituted on 23rd November, 1972. The period of limitation prescribed for making the claim petition was 60 days u/s 110A(3) as it was before it was amended by Act No. 56 of 1969. Prima facie, the application was barred by time. However, in the instant case, the claimants were all minors. We have, therefore, considered the effect of Sections 6 and 7 of the Limitation Act, 1963. Section 6 will not apply to the instant case because amongst the legal representatives of deceased labourer Manaji Narbhaji are not only the minor claimant but also his widow who is the mother and who has been joined as an opponent to the claim petition. Therefore, the case would be governed by Section 7 of the Limitation Act. It provides as under:-
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and discharge can be given, without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such without the concurrence of the others or until the disability has ceased.
In the instant case, the minor claimant and his brother are the legal representatives of the deceased. The question, therefore, which has arisen is whether the mother could have given discharge without the concurrence of the minor claimant. If she could give such a discharge, the claim petition would be barred by time because in that case time would run against all. If the mother of the minor claimant?the widow of the deceased could not give a valid discharge, time would not run against any of them unless and until the minor attained majority. The question which therefore has been raised before us whether the mother of the minor claimant could give a valid discharge within the meaning of Section 7 of the Limitation Act, 1963. In order to appreciate the contention which has been raised it is necessary to turn to explanation II to Section 7. It provides as follows:-
For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara Law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
We apply the provisions of explanation II only by analogy. A manager of a Hindu undivided family governed by Mitakshara Law who has otherwise wide powers in matters of joint family property can also not give a valid discharge within the meaning of Section 7 without the concurrence of other members of the family if he was not in management of the joint family property. So far as the mother of the minor claimant is concerned, she cannot be elevated to the status of a manager. It is difficult, therefore, for us to think that the mother of the minor claimant could have, within the meaning of Section 7, given a valid discharge in respect of the claim. In taking this view we are supported by two decisions one of which is of the Madhya Pradesh High Court and the other of the Delhi High Court.
In Amalgamated Coal Fields Ltd. Vs. Mst. Chhotibai and Others, a Division Bench of the Madhya Pradesh High Court considered Section 7 of the Limitation Act and observed that the first requisite of that section is that there must be more than one person who are jointly entitled to institute the suit and that, if a discharge can be given by a claimant who is free from disability without the concurrence of those who are under disability, then time runs against all of them and, therefore, limitation is not extended with reference to any of the joint claimants. It has next been observed that, if such discharge cannot be given, the second part of the section comes into play and limitation will be extended with reference to all the joint claimants. In paragraph 11 of the report it has been observed that the discharge contemplated by Section 7 of the Limitation Act is one which can be given by a joint claimant in his own right as such joint claimant. Therefore, according to the learned Judges, the power which a joint claimant has, as a guardian of another claimant, to give a discharge on the latter''s behalf is not sufficient for the purpose of Section 7. After having analysed the provisions of Section 7 of the Limitation Act, it has been further observed that the co-heirs are tenants-in-common having distinct shares and that, therefore, one cannot give a valid discharge in his or her own right in respect of the rights of his or her daughter. Therefore, in such a case limitation is extended in favour of the entire body of the Plaintiffs who have a joint right to sue.
The next decision is that of a learned Single Judge of the Delhi High Court. In Bishan Dass and Others Vs. Ramesh and Others, , it has been observed by the learned Single Judge in that decision that a claim which is made in an application filed u/s 110A of the Motor Vehicles Act is an indeterminate claim and that, therefore, the mother of the minor claimant is in no position to give a valid discharge in the case of such a claim. It has been next observed that each one of the legal representative has a separate cause of action and each one of them is entitled to the separate award of compensation by reasons of his or her status and by reason of his or her relationship to the deceased. The reasons which have weighed with the learned single judge in that decision are, in our opinion, quite valid. We agree with the principle laid down by the Madhya Pradesh High Court and the Delhi High Court in the decisions referred to above.
The claim petition M.A.C.T. Application No. 10 of 1973 was, therefore, in our opinion not barred by time because at the date of its institution the claimant was minor. The last contention which Mr. Parekh has raised, therefore, fails and is rejected.
In the result, we allow First Appeal No. 573 of 1973, modify the award made by the Tribunal and direct that the claimants shall be entitled to recover a sum of Rs. 22,200/- and that the liability of the insurance company, original opponent No. 7, extends to the entire amount awarded by us. The additional amount awarded by us shall carry the same rate of interest from the date of the institution of the application which the learned Tribunal has ordered in regard to the claim awarded by him. The cross-objections are also accordingly partly allowed. The insurance company shall pay the costs of the appeal to the Appellants and shall also pay the costs of the Respondents who have filed the cross-objections.
First Appeal No. 611 of 1974 filed by the insurance company fails and is dismissed. The Appellant insurance company shall pay the costs of the appeal to Respondents Nos. 1, 7, 8 and 9. There shall be no order as to costs for other Respondents.
Both the Civil Applications are granted.