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Judgment
V. Kanagaraj, J.—This Appeal Suit is directed against the judgment and decree dated 29.10.1986 rendered in O.S.No.5 of 1982 by the Court of Subordinate Judge, Triuvannamalai. It is one Raju''s Gas Service, Indane Gas Distributions, the first defendant to the suit represented by Kasthuri and Subramanian, the defendants 3 and 4 to the suit as the legal representatives of the deceased Proprietor Tiruvannamalai, have preferred the above appeal suit against the plaintiff one Balambal. an individual, and the second defendant the United India Insurance Company Limited, Madras.
To trace the history of the case, it is a suit filed by the first respondent plaintiff as an indigent person praying to direct the defendants to pay a sum of Rs. 32,250/-towards compensation to the plaintiff and costs. On averments such as that the plaintiff is the mother of one Natarajan; that the first defendant is the Indane Gas distributors, wherein the said Natarajan was employed, that on 3.6.1980, when the said Natarajan was giving a new gas connection at D. No. 50, Avalkara Street, Tiruvannnamalai, an accident took place in which he sustained burn injuries; that he got admitted in the Government Hospital, Tiruvannamalai and then on the advice of the Doctors there, he was removed to Jipmer Hospital at Pondicherry that day itself, where he died on 10.7.1980; that the plaintiff, being the mother of the deceased Natarajan, incurred expenditure towards purchase of medicine, conveyance, funeral and for other ceremonies altogether a sum of Rs.4,500/-and that her son was earning a sum of Rs.300/- per month and he was 24 years old at the time of his death.
The further averments of the plaint are that the first defendant is liable to compensate the loss of the plaintiffs son under the Workmen''s Compensation Act since he died during the course of his employment; that the second defendant is the Insurance Company with which the first defendant insured for accident claims and for other loss incurred to the first defendant and hence the defendants are severally and jointly liable to pay the compensation to the plaintiff; that in spite of many demands made on the part of the plaintiff, the defendants did not come forward to pay the compensation and hence the plaintiff was prompted to issue a notice of demand dated 12.9.1980 for which they replied on 22.10.1980 with false and evasive replies and hence the suit praying for the relief''s extracted supra.
In the written statement filed by the first defendant, besides generally denying the claim of the plaintiff on the plaint allegations, they would also specifically allege that they do not know that the plaintiff is the mother of the deceased Natarajan, but would admit that the said Natarajan died due to accident. The first defendant would further allege that the plaintiff has no locus stand to file the present suit and they would also deny the claim of the plaintiff as false and without any basis and that it is not correct to claim the relief under the Workmen''s Compensation Act and this defendant is not liable to pay any amount. They would also claim the income of the deceased as Rs.200.90 ps. only but not Rs.300/- as claimed by the plaintiff and that the trial Court has no jurisdiction to entertain the suit.
The further allegations of the written statement filed by the first defendant are that it is the Tribunal which is competent to deal with such claims under the Workmen''s Compensation Act and not the Civil Court; that this defendant had taken the insurance policy with the second defendant, which was in force during the relevant period and it is only the second defendant, who has to pay the compensation as per the terms of the L.P.G. Traders Policy; that this defendant had already intimated the fact of the accident etc. to the second defendant and therefore the plaintiff ought to have filed the suit only against the second defendant and not against the first defendant, that even as per the terms of the insurance policy, it is only the second defendant, who is liable to pay the compensation and not this defendant and therefore under this short ground also, the suit as filed against the first defendant becomes liable to be dismissed; that the accident took place purely due to the negligence of the deceased Natarajan; that the compensation claimed at Rs.30,000/- is exorbitant, excess and disproportionate to the loss and that there is no cause of action against this defendant. On such grounds, the first defendant would ultimately pray to dismiss the suit with costs.
In the written statement filed by the second defendant, Insurance Company, it would be urged that the suit is not maintainable and regarding all the allegations made in Para Nos.1 and 2 of the plaint, the plaintiff is put to strict proof. This defendant would not also admit the expenses incurred as narrated in the plaint and the salary of the deceased as stated by the plaintiff at Rs.300/ - per month; that the policy issued to the first defendant do not cover the employer''s liability u/s VI of the policy; that the relative clause in the policy has been specifically deleted and struck off and therefore this defendant is not at all liable to meet the plaintiffs claim; that on this short ground, the suit is liable to be dismissed so far as this defendant is concerned; that the employer''s liability having been specifically excluded under Clause VI of the policy from the terms of the policy, which was in force on the date of the alleged accident, this defendant is not liable to pay any amount much less the claim amount; that there is no cause of action against this defendant and the one alleged is false; that at any event, the claim is excess and exorbitant; that the trial Court will have no jurisdiction and that only an application before the Commissioner for Workmen''s Compensation will lie if at all the plaintiff has any claim against the other defendants. On such allegations, the second defendant would also pray to dismiss the suit with costs.
Based on these pleadings, the trial Court having framed ten issues originally and later modifying the 9th issue into two additional issues, has conducted a thorough trial into the subject matter, in which on the part of the plaintiff, her husband T.A. Subramani has been examined as the sole witness for oral evidence and on the part of the defendants, two witnesses including the 4th defendant would be examined as D.Ws.1 and 2. So far as the documentary evidence is concerned, the plaintiff has marked seven documents as Exs.A. 1 to A.7, Ex.A. 1 dated 3.6.1980 being the taxi rental receipt, Ex. A.2 series being the medical bills numbering 23, Ex. A.3 dated 10.7.1980 is the death certificate of Natarajan, Ex.A.4 dated 11.7.1980 is the taxi rental receipt, Ex. A.5 dated 12.9.1980 is the legal notice issued to the first and second defendants, Ex. A.6 dated 22.10.1980 is the reply by the first defendant and Ex.A.7 dated 24.9.1980 is the acknowledgment by the second defendant. Likewise, on the part of the defendants 8 documents would be marked as Exs. B.1 to B.8 for documentary evidence, Exs.B.1 to B.3 being the receipts and letters issued in favour of the first defendant by the second defendant respectively dated 1.4.1980, 21.4.1980 and 29.10.1980, Ex.B.4 dated 30.6.1980 is the insurance policy, Ex.B.5 dated 15.3.1980 is a letter written by the first defendant to the second defendant, Ex.B.6 dated 23.9.1980 is the circular issued by the second defendant, Ex.B.7 dated 29.9.1980 is the letter written by the second defendant to the first defendant and Ex.B.8 dated 2.5.1975 is the certified copy of the Suit Register Extract for O.S. No. 186/1975 on the file of the Court of District Munsif, Tiruvannamalai.
The lower Court, having discussed the facts and circumstances encircling the whole case adhering to the issues framed and in the light of the evidence, remarking that it is not the case registered against the first defendant alone but also against the second defendant Insurance Company since the first defendant firm is insured with the second defendant and in accordance with the policy conditions, the second defendant may also be made to pay the compensation sought for by the plaintiff and therefore it cannot be said that it is a case that is to be dealt with by the Deputy Commissioner, Workmen''s Compensation as it is argued on the part of the defendants and would ultimately arrive at the conclusion to hold that the lower Court has got jurisdiction to try the suit.
The lower Court would next assess the locus standi of the plaintiff to claim the compensation amount to her status as the mother of the deceased Natarajan and the deceased Natarajan having been employed under the first defendant on a monthly salary basis wherein he would come under the ambit and purview of a workman and further discussing who are all the dependents of the deceased workman, the learned trial Judge would find that u/s 2of the Workmen''s Compensation Act, a widow, a minor legitimate son and unmarried legitimate daughter or widowed mother are the dependents of a workman and since according to the Workmen''s Compensation Act, the mother/ the plaintiff is not a widow, the learned Judge would find that she is not a dependant as defined under the Act. But, the learned Judge also finds that under the definition clauses 2(1) (d) (iii) of the Workmen''s Compensation Act, a parent other than a widowed mother, if wholly, or in part dependent on the earning of the workmen, at the time of his death is a dependent for the purpose of compensation, and hence would remark that the plaintiff would be very easily brought under the purview of the dependent of the deceased Natarajan and would find that the plaintiff has the locus standi to claim the compensation on account of the death of her son in the accident.
Then the learned trial Judge enters into discussion as to what is the quantum of compensation that the plaintiff is entitled to and would remark that the plaintiff claims the monthly salary of the deceased as Rs.300/ - but the first defendant pleaded that it is only Rs. 200/-. The trial Court also finds that within ten days of joining the service of the first defendant, the deceased Natarajan passed away in the accident and therefore there is no possibility for all the documents including the salary register to have been opened in his case and therefore would observe that there is no documentary evidence available so far as the monthly salary that was fixed for the deceased and would arrive at the conclusion to fix the monthly salary of the deceased at.Rs.200/- per month, taking the same for the purpose of calculating the compensation which is the admitted salary of the deceased per month.
Entering into the dispute between the first defendant and the second defendant and to decide the question whether it is the first defendant or the second defendant on behalf of the first defendant to pay the compensation awarded, the trial Court would find that under the Workmen''s Compensation Act and under the General Act, the plaintiff is entitled to claim the compensation. The trial Court would then note the rival contentions that on the part of the defendants 1,3 and 4 it would be argued that since they have insured the business with the second defendant, it is only the second defendant which is to pay the compensation and not themselves; that on the contrary, on the part of the second defendant, it would be argued that though it was not the general insurance coverage, there was no coverage for employer''s liability, which has been specifically excluded from the terms of policy, which was in force on the date of alleged accident and therefore the second defendant is not liable to pay any amount as sought for by the plaintiff.
The lower Court would then dissect the exhibits as deposed by the 4th defendant as D. W. 1. The lower Court would then observe that under Ex. B.1, it is the general insurance that has been taken and accepted by the second defendant under Exs. B.2 and B.3 and therefore Ex.B.4 insurance policy has been issued : that u/s VI of the Ex.B.4 policy, the entire amount has been paid but not under the specific provision of VI-A which is covering the employer''s liability; that unless under both these headings the insurance policy is taken, for employer''s liability, the second defendant cannot be made liable to pay the compensation, that since for employer''s liability, no insurance policy has been taken nor any premium paid, they cannot be held liable to pay any compensation to the plaintiff and therefore accepting the version of the second defendant, the tower Court would arrive at the conclusion that the second defendant is not liable to pay any compensation.
Ultimately, the lower Court would find that the plaintiff has not come forward to assign any tangible reason for claiming Rs.30,000/- as the compensation and therefore at its own estimate, it would arrive at the figures of Rs 10,000/- as the compensation amount and for transport and medical expenses, adding Rs. 1,005/- more, would ultimately pass a decree against the defendants 1,3 and 4 to pay the total amount of Rs. 11,005/- with interest at 6% p.a. from the date of suit further dismissing the suit against the second defendant with proportionate costs.
Aggrieved, it is the first, third and fourth defendants to the suit, who have come forward to prefer the above appeal as against the plaintiff and the second defendant on certain grounds as brought forth in the memorandum of grounds of appeal.
During arguments, the learned counsel appearing on behalf of the appellants would submit that the first defendant is the firm Raju''s Gas Service, wherein the deceased was employed; that the second defendant is the Insurance Company and the third defendant is the proprietrix of the first defendant firm and the fourth defendant is the husband of the third defendant; that the lower Court decreed the suit for Rs.l1,005/ - with interest at 6% p.a. from the date of filing of the suit with proportionate costs; that Ex. B.4 is the insurance policy taken up with the second defendant and Ex. B.5 dated 15.3.1980 is the letter written by the first defendant to the second defendant that under Ex.B.5, the first defendant paid an amount of Rs.500/- by cheque towards premium to the second defendant for the year 1980-81 covering the period from 1.4.1980 to 31.3.1981; that Ex.B.4 insurance policy is vital; that the question is whether the policy covers the liability of the employer or not; that there is no controversy that the deceased as the employee of the first defendant, while carrying the Indane Gas Cylinders, met with the accident and got injured and died later and that the premium received was for public liability alone.
The learned counsel would point out that so far as Ex.B.3 letter is concerned, it does not restrict the premium to only Section VI-A of the policy and hence it should be construed that it is applicable for both VI-A and VI-B for which alone a premium of Rs.1507- has been demanded.
The learned counsel would further. point out that the accident took place on 3.6.1980; that though the proposal was made in March, 1980 under Ex.B.5, the insurance policy was issued on 30.6.1980 i.e. only after the death of the deceased; that according to Ex.B.5 proposal, the learned counsel would see only the public liability and by scoring out the employer''s liability subsequently, on coming to know of the death of the deceased in the accident, the second defendant cannot escape the liability. With such arguments, the learned counsel would pray to allow the appeal.
So far as the second respondent/ second defendant is concerned, the learned counsel appearing on their behalf would submit that whether it is the first defendant or the second defendant/ Insurance Company which is liable to compensate the plaintiff is the question for determination; that the contract of insurance is an insurance on policy; that Ex.B.5 is the offer given by the first defendant; that what are all the items that are enumerated are only for a comprehensive policy; that it is a simple question of offer and acceptance; that D. W. 1 in the cross-examination by the second defendant would admit that it was he who wrote Ex.B.5 giving what are all the items for which the insurance has to be made and that he has not offered for the employer''s liability. Citing from the judgment of the lower Court, the learned counsel would submit that Ex.B.4 policy was assured only in accordance with Ex.B.5; that the employer''s insurance policy comes into effect only from the date when the receipt was issued; that on 30.6.1980, when Ex.B.4 policy was issued, there was no coverage for employer''s liability, even though the, policy came into effect from 1.4.1980; that under Ex.B.7 reminder, the second defendant has informed the insured that it is not covered for employees. At this juncture, the learned counsel would cite a judgment of the Division Bench of this Court delivered in M/ s. Rajeswari Transports (Firm), Theni v M.G. Rajan and Others reported in 1982 (supp.) A.C.J. 118 wherein in a case of policy restricting the liability of insurer to Rs.50,000/- it has been held that " the terms and conditions in the policy restrict the liability of insurer to Rs.50,000/- and if the insurer wanted a policy with unlimited liability, then he should have bargained for such a policy and paid the requisite premium."
Regarding the arguments of the learned counsel for the appellant that after coming to know of the death of the deceased, the Insurance Company has scored off the column pertaining to employer''s liability in the insurance policy, the learned counsel for the second respondent/second defendant would cite a Division Bench Judgment of this Court delivered in Oriental Insurance Co. Ltd. Vs. Jalaja and Others, wherein it has been held:
An Insurance Company which is carrying on business of insurance is not expected to fabricate documents. Unless some material is produced before the Court to suspect the bona fides of the Insurance Company, the Court cannot readily draw an inference that the copy of the policy produced by it as a true copy is not a genuine one...
With this, the learned counsel for the second respondent would conclude his arguments praying to dismiss the appeal with costs.
On the part of the first respondent/ plaintiff, the learned counsel appearing on her behalf would submit that the plaintiff chimed a sum of Rs. 32,250/- but the lower Court has unreasonably decreed the suit only to the extent of Rs. 11.005/- and for arriving at such a low sum, there is absolutely no basis for the lower Court nor has it assigned any tangible reason in an acceptable manner. Citing Order 41 Rule 33of C.P.C., the learned counsel would exhort that there is absolutely no restriction for the appellate Court to exercise its jurisdiction under this provision of law to enhance the decree amount in spite of there being no cross-appeal filed on the part of the plaintiff seeking enhancement of the decree amount and would cite a judgment of the Rajasthan High Court delivered in Municipal Board and Another v Harilal reported in AIR 1988 Rajasthan 7. Since this provision of law needs attention wherein an inadequate decree could be redressed, I extract not only the provision of law itself but also the relevant passage from the judgment cited.
Order 41 Rule 33: Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.
In para Nos. 40 and 43 of the judgment of the Rajasthan High Court, cited above, it has been held:
Now the crucial question which emerges for decision, is that in spite of the fact that the claimant has not filed an appeal for such an increase, the Court suo motu should grant the decree in favour of the claimant.
It is expected in the sphere of social welfare legislation and an era in judicial activism for providing benefit to the bereaved family, I am firmly of the opinion that the Courts should not only suo motu act in such matters but provide relief.
Even the framers of the CPC who hardly had any concept of social justice in that age, had enacted under O.41, R.33 that even if the appellant may not have made a prefect claim but the Courts should not become silent spectators and should not feel impotent to give relief to one who deserves. The potentiality of the Courts to deliver justice according to the needs of the litigants has been recognized by O.41, R.33 even in 1908 when CPC was framed.
In clarification, on the part of the learned counsel for the appellant, the learned counsel would submit that under Ex.B.3 a receipt had been issued in its favour on payment of an amount of Rs.500/- and this receipt when compared with Section VI of the policy would show that the liability of the second defendant is not restricted to public liability alone and it is for the whole of Section VI covering not only the ''public liability'' but the employer''s liability as well. The learned counsel would exhort that scoring off Section VI-A by the Insurance Company is a clumsy attempt to wriggle out the appellants from out of the contract especially in view of the fact that the policy has been issued on 30.6.1980 i.e. after the death of the deceased; that as a pool, it is construed that the policy had come into effect as early as on 1.4.1980; that the accident having occurred on 3.6.1980, definitely the Insurance Company is liable to compensate the plaintiff, since there was a full coverage of the insurance; that the head notes of Ex.B.5 proposal indicating public liability is misleading; that nowhere it is stated therein that the insured is restricting his claim to public liability alone; that in Ex.B.3, their own documents, in Section VI, the second respondent do not say that the policy is restricted to public liability alone; that they take Rs.1507- for this purpose; that Ex.B.4 policy is the copy produced, which cannot be relied upon in the circumstances of the case, as it is prepared on the part of the Insurance Company, after coming to know of the death of the deceased. With such arguments, the learned counsel would ultimately pray to allow the appeal in full.
In consideration of the facts and circumstances as brought forth in the pleadings having regard to the materials placed on record and upon hearing the learned counsel for both what comes to be known is that it is an appeal preferred by the insured against the Insurance Company and against the claimant. The claimant is the mother of the deceased who was hardly 25 years of age at the time of his death and he was employed only for a short while of ten days in the first defendant firm as a cylinder supplier and died in the accident that occurred during the course of his employment under the first defendant. It is not only the first defendant but also the Insurance Company who have been made parties to the suit since the first defendant has insured with the second defendant. The plaintiff as the mother and dependent of the deceased has come forward to file the suit claiming compensation of Rs.30,000/- and interest altogether for a sum of Rs. 32,250/ - and the lower Court having crossed all the hurdles of maintainability of the suit before the civil forum, has suo-motu fixed the compensation amount at Rs. 10,000/-and allowing a little more sum of Rs. 1,005/- for the transport, medical and funeral expenses, for which the claim is Rs.3,500/- ultimately has passed a decree for a sum of Rs. 11,005/ - with interest at 6% p.a from the date of filing of the suit till the date of payment as against the first defendant further dismissing the suit against the second defendant Insurance Company on ground that in Ex.B.4, insurance policy, in the printed format, the employer''s liability is scored off.
Though no appeal has been preferred on the part of the plaintiff to the suit, it is the first defendant firm, which has come forward to prefer the above appeal suit not testifying the validity of the decree passed by the lower Court in favour of the plaintiff but in silent agreement of such decree passed by the trial Court in favour of the plaintiff, but testifying the validity of the judgment and decree so far as it has been passed against the first defendant leaving the second defendant insurance company on ground that the first defendant insured only to cover up such contingency as one that has occurred in the case connecting the suit that is the death of the deceased Natarajan, the son of the plaintiff, mainly on ground that in spite of having taken a general policy covering all the liabilities, just for the simple reason that in Ex.B.4, which has been issued after the accident had occurred that was on 30.6.1980, wherein the date of accident was 3.6.1980, though the policy was effective from 1.4.1980 itself, wherein the terms employer''s liability has been scored off, the second defendant cannot escape the statutory liability. In these circumstances, the strong case that is put up on the part of the appellants as against the insurance company is that even though the policy was covering all risks, it had been manipulated to appear to be only the public liability and not the employer''s liability, particularly which was a result of afterthought, after coming to know of the accident and taking advantage of the position that the policy was not yet issued to the appellants, thereby scoring off deliberately the necessary column in the form of Ex.B.4 that is employer''s liability.
On the part of the plaintiff, though no separate appeal or cross-objection has been filed, still, since being made a party to the proceeding in the above appeal suit, it would be argued on the part of the plaintiff that a meagre sum of Rs. 11,005/- has been decreed by the lower Court for the death of her son in spite of the claim being a sum of Rs.32,250/-. The learned counsel appearing on behalf of the plaintiff would not only seek resort to Order 41 Rule 33of the C.P.C., but also would heavily depend upon the judgment of the Rajasthan High Court reported in AIR 1988 Rajasthan 7 (supra), which has been rendered adhering the principles enunciated under Order 41 Rule 33thereby empowering the Court to redress the grievances of the claimant party acting suo-motu where inadequate award or decree is made to enhance the same in the interest of justice, even in the absence of any specific appeal preferred on the part of the claimant/ plaintiff.
On the part of the insurance company, they would stick to their stand as they did before the trial Court that there was no insurance coverage for employer''s risk and therefore the lower Court was right in passing the decree only against the first defendant and dismissing the suit against the insurance company.
In these circumstances, the points that arise for consideration of the above appeal suit are :
Whether the policy as taken on the part of the appellants has coverage for employer''s risk also and whether deleting the employer''s risk as seen in the policy is genuine and acceptable?
Whether this appellate Court is competent to enhance the decree amount within the meaning of Order 41 Rule 33C.P.C. and that of the judgment reported in AIR 1988 Rajasthan 7 and if so to what extent ?
So far as the first point regarding the policy coverage pertaining to the insurance policy taken on the part of the appellants with the second respondent/ insurance company is concerned, it is the firm case of the appellants that nowhere they requested the insurance company nor is any evidence produced or made available on the part of the second respondent/ insurance company or otherwise to the effect that the insurance company is restricted with only the ''public liability'' and they are not for the coverage of ''employer''s liability''. Secondly, their contention is that even though the policy is effective from 1.4.1980 and in spite of the accident having taken place on 3.6.1980 since the insurance company in the meantime was intimated the accident besides lodging a police complaint, they have manipulated the records to suit their convenience sure of being mulcted with the compensation or damages, and issued Ex.B.4 policy deliberately scoring off the necessary column u/s VI for ''employer''s liability'' and therefore taking Ex.B.4 as the yardstick especially giving importance to the scoring off the column concerned with employer''s liability and nothing else in the whole of the insurance policy, the same had been delivered only on 30.6.1980. Therefore, it was a deliberate act perpetrated on the part of the insurance company to escape from the liability and to make the appellants wholly liable for the payment of compensation for the death of the deceased Natarajan, their employee. On the part of the insurance company there is no denying of the fact that the policy is effective from 1.4.1980; that the accident took place on 3.6.1980 and that the policy had been issued on 30.6.1980. But, clinging to Ex.B.4 policy, they would come forward to establish that there was no coverage for the employer''s liability and therefore they are not liable to pay the compensation. The lower Court also having taken Ex.B.4 as the gospel, has passed the decree only as against the appellants and not against the insurance company/the second respondent.
The circumstances encircling the whole case regarding the insurance policy and coverage, which is restricted to public liability alone and specifically not covering employer''s liability, creates substantial doubt especially in view of the fact that after 27 days of the accident having occurred and to the knowledge of accident, the policy was handed over and there has been chances for the manipulation to occur in the policy not only in deleting the necessary column affording coverage to employer''s liability but also in passing the other orders adjusting the amount of Rs.500/- under various heads. In these circumstances, the lower Court should have been more cautious in its approach in deciding Issue No.9 and Additional Issues.
Excepting to cause the production of Ex.B.4 and to adduce oral evidence adhering the same through a witness, no concrete evidence has been placed on the part of the insurance company to ward off the doubt and in proof of the crucial question whether there had been manipulation in the given circumstances that have arisen in the case and the lower Court has not at all focussed its attention on such vital aspects of the case but has bluntly accepted the recitals and figures in the Exhibit ''B'' series and has arrived at the conclusion that the insurance company is not liable to pay the decree sum. Even otherwise, Exs.B.4 and B.5, especially Ex.B.5 does not indicate that Section VI of the policy is restricted to the public liability alone and under Ex.B.5 proposal, though the public liability is indicated, no indication is there that the insurance policy is not covering the employer''s liability or the employee''s liability etc. It does not in any manner say that it is restricting its claim to public liability alone. Though from out of the amount of Rs.500/-no distinction has been brought forth between the public liability and the employer''s liability, whether public liability would normally include employer''s liability and these are all being documents particularly Ex.B.3 indicating u/s VI an amount of Rs.150/-, what is this amount taken for has not been explained as it is pointed out on the part of the learned counsel for the appellants and therefore it is always safe to conclude that on the date of the accident since Ex.B.4 did not at all come into existence, based on the other documents, no conclusion could be arrived at to the effect that the policy was restricted to public liability and not employer''s liability wherein the necessary column employer''s liability is quoted only in Ex.B.4 which came into existence after the accident and therefore barring this unreasonable evidence there no strong reason to suggest that the policy that was taken as a whole on the part of the appellants was not covering the employer''s liability and it should be mentioned that on the part of the insurance company, they have miserably failed to establish this aspect otherwise than by Ex.B.4. Therefore, it is prudent to conclude regarding point No. 1 that the policy was having the employer''s liability also and therefore the insurance company is also liable to pay the decree amount awarded in the suit.
Coming to the second point regarding the meagre sum of Rs. 11,005/- decreed by the lower Court, there is no doubt that this Court has got ample powers, within the meaning of Order 41 Rule 33, as propounded by the judgment of the Rajasthan High Court (supra) also, and therefore, it has become necessary on the part of this Court to consider whether adequate amount has been granted in the suit for the claim made by the plaintiff.
The total amount for which the suit was filed is Rs. 32,250/- of which Rs.30,000/ - has been claimed on the part of the plaintiff for the death of her son in the accident. The lower Court accepting monthly income of the deceased as Rs.200/-, has approximately awarded Rs.l0,000/- for the loss of life without any calculation or discussion held. Moreover ,according to the plaintiff, the expenses involved on transportation, medicines, funeral and other ceremonies is Rs.3,500/- and the lower Court has restrained the same to Rs. 1,005/- without proper reason assigned for reducing the expenses also. Even accepting the amount of Rs.200/- as the monthly salary of the deceased since there is no controversy regarding the age of the deceased, being 24 years at the time of his death, moderately fixing the salary for another 20 years, it comes about Rs. 48,000/- and minimising even Rs. 18,000/- for his upkeep and maintenance, the sum of Rs. 30,000/- that is claimed by the plaintiff as the compensation is reasonable and there was absolutely no restriction on the part of the lower Court to pass a decree to that effect since it is the loss of life that is the subject matter of the suit. With this amount, the claim amount of Rs.3,500/- for expenses could be reduced to Rs. 2,000/- and ultimately the decree could have been passed for a sum of Rs. 32,000/-thus keeping the figures within the claim made on the part of the plaintiff in the suit. Therefore, this Court is of the view that a decree passed for a sum of Rs. 32,000/- in the suit would justify all requirements of the plaintiff and serve the ends of justice too and therefore the decree is passed to an amount of Rs.32,000/- with interest at 6% p.a from the date of filing of the suit till the date of realisation of the said amount. The first respondent being the employer and the second respondent being its insurer having full coverage of the insurance policy, so as to cover the death of the deceased employee of the first respondent also, they both are severally and jointly liable to pay the decree amount in favour of the first respondent/ plaintiff. Both the points framed for determination having been answered in the aforesaid manner, this Court is inclined to pass the decree as under : In result,
(i) the above appeal suit succeeds and the same is allowed;
(ii) the decree passed by the lower Court is modified and enhanced from Rs. 11,005/- to Rs. 32,000/- (Rupees Thirty Two Thousand Only) and the same is to be paid with interest at 6% p.a. from the date of suit till the date of realisation in favour of the first respondent/ plaintiff;
(iii) since it is held that the insurance company is liable for the employer''s liability also, both the appellants and the second respondent are jointly and severally liable to pay the decree amount in favour of the first respondent/plaintiff within 60 days from the date of either receipt by them or service of this judgment.
(iv) both the appellants and the second respondent i.e. the defendants before the lower Court are liable to pay the costs of the first respondent/ plaintiff both in the suit and the appeal.