P.K. Misra, J.
1. This is an appeal by the insurance company under Section 173 of the Motor Vehicles Act, 1988, challenging the award of the Second Motor Accidents Claims Tribunal, Cuttack, in Misc. Case No. 1285 of 1995, awarding a sum of Rs. 8,00,000 as compensation along with interest at the rate of 9 per cent per annum from the date of application, i.e., 22.12.95, till payment. The Tribunal gave directions regarding keeping Rs. 7,00,000 in fixed deposit out of the awarded amount.
2. The claimants are the widow and two minor children of deceased Purna Chandra Sahu. It is stated in the claim application that deceased Purna Chandra Sahu who was an employee under the National Aluminium Company (NALCO) was going on a scooter on Cuttack-Sambalpur National Highway. At that time, a bus bearing registration No. OR-04-0045 belonging to the owner (the respondent No. 4) came from behind in high speed and dashed against the scooter as a result of which the deceased fell down on the road and the bus ran over him causing several injuries on the left leg, waist, chest, right hand and head, etc. On the basis of the aforesaid allegations, compensation was claimed. It was stated that the present appellant was the insurer in respect of the bus in question.
3. The owner did not appear to contest the claim application. However, the insurance company which had been impleaded as a party from the very inception filed written statement denying the allegations made in the claim application.
4. The Tribunal on consideration of the evidence on record found that the accident occurred due to negligent driving of the bus driver. It further found that the deceased was an Engineer and was getting monthly salary of Rs. 11,513. Considering Rs. 5,000 to be the monthly contribution to the family members and applying the multiplier of 12, the Tribunal calculated that a sum of Rs. 7,20,000 shall be paid on that score. The Tribunal further held that a further consolidated amount of Rs. 80,000 should be paid towards loss of consortium, for mental agony et cetera and ultimately directed that a sum of Rs. 8,00,000 should be paid. The aforesaid award of the Tribunal is under challenge at the instance of the insurance company.
A cross-objection has been filed on behalf of the claimant-respondent Nos. 1 to 3 claiming higher compensation.
5. It has been contended on behalf of the insurance company appellant that the deceased himself was driving the scooter without having a driving licence and as such it must be taken that he was negligent and had contributed to the accident. It is further stated that the Tribunal should have framed an issue on this aspect. The appellant also contended that payment of compensation of Rs. 8,00,000 is not warranted in the facts and circumstances of the case and the amount should be reduced.
6. Learned counsel for the claimants-respondents submitted that since the deceased was aged about 41 years, the Tribunal should have applied the multiplier of 13. Moreover, the Tribunal had not considered about the future prospects of the deceased and monthly contribution to the family should not have been pegged at Rs. 5,000. It is, therefore, submitted by him that the compensation amount should be enhanced. The learned counsel for the respondents also challenges about the maintainability of the appeal at the instance of the insurance company relating to merits of the case, that is to say on the question of negligence and quantum of compensation.
7. In the present case, the Claims Tribunal found about the negligence of the bus driver on the basis of the evidence of the PWs. It is contended that PW 2 himself being the driver employed by the deceased was a highly interested witness and his evidence cannot be accepted as reliable. There is no dispute in the fact that the accident was caused involving the scooter and the bus. Even assuming that the evidence of PW 2 is not accepted, still then the doctrine of res ipsa loquitur is applicable. In such a situation, the owner of the bus should have examined the driver of the bus to explain the circumstances under which the accident occurred, as the other person involved in the accident having died cannot speak from the grave to explain the circumstances under which the accident had taken place. Of course, the bus owner has remained ex parte, but no attempt was made by the insurance company which was contesting the case even on merit (whether justifiably or not is immaterial), has not chosen to adduce any evidence to rebut the evidence of PW 2, nor has bothered to summon the bus driver to explain the circumstances under which the accident took place. In such a case, an adverse inference can be drawn against the owner/insurance company for not examining the bus driver who would have been the best witness to explain the circumstances under which the accident occurred. In such view of the matter, the finding of the Tribunal on the question of negligence cannot be assailed and the contention in this regard raised by the counsel for the appellant cannot be accepted.
8. Learned counsel for the appellant, however, raised an interesting question relating to lack of driving licence on the part of the deceased. He has submitted that since the driving licence of the deceased had not been produced, it must be taken that he had no driving licence and since he was not authorised to drive a scooter and was driving the scooter without a valid driving licence, it must be taken that the accident occurred due to the negligence of the deceased. On going through the written statement of the insurance company, it appears that the question of negligence or contributory negligence on the part of the deceased has not at all been raised therein. Even it had not been categorically stated that the deceased had not possessed a driving licence, though it had been stated that the claimants-petitioners may be directed to produce the relevant and valid particulars of this case, in the absence of which the insurance company is unable to meet the charges. In such a situation, it cannot be said that the Tribunal has committed any illegality in not framing an issue on the question of existence of the driving licence on the part of the deceased.
9. Even otherwise, the question as to whether the deceased had a driving licence or not, is immaterial. Even assuming that the deceased did not have a driving licence and was driving the scooter on public road in contravention of the provisions contained in the Motor Vehicles Act, merely on such finding it cannot be assumed that the accident must have occurred due to negligence of the deceased. There cannot be any presumption that a person driving a vehicle on a public road without a driving licence is negligent though for such a lapse the person could be liable to be prosecuted. A person without a driving licence can drive a vehicle perfectly without any negligence and a person having a driving licence can drive a vehicle negligently. No presumption can be raised that a person driving a vehicle without a driving licence must be driving the vehicle in a negligent manner. Therefore, in the absence of any specific plea regarding the alleged contributory negligence, such a contention of the counsel raised for the first time in appeal cannot be accepted.
10. The next question relates to the quantum. Assuming that the question of quantum cannot be raised by the insurance company, the said question has to be considered in view of the cross-objection filed by the claimants-respondents. In such a situation, it is better to notice the contentions raised by both parties.
11. It is contended on behalf of the appellant that there is no acceptable evidence on record relating to the income of the deceased. The widow of the deceased, examined as PW 1, in her examination stated that the deceased, her husband, was working as a Deputy Manager in NALCO, Angul. He was a Mechanical Engineer getting monthly salary of Rs. 11,513 on the date of his death. She also filed the certificate of income which has been marked as Exh. 6. Though the insurance company has cross-examined her, not a single question has been put regarding such aspect. In the present appeal, it is contended by the counsel for the appellant that the salary income certificate produced by the claimant had not been properly proved. The claimant had produced the income certificate which has been marked as an exhibit without any objection being raised. That apart, not a single question has been put relating to the authenticity of the income certificate. It is too late in the day for the appellant to contend that such document was inadmissible. Even otherwise, the oral evidence of the claimant to the effect that her husband was getting monthly salary of Rs. 11,513 on the date of his death has not been challenged in any manner. In such view of the matter, the finding of the Tribunal that the deceased was getting monthly salary of Rs. 11,513 cannot be assailed, even assuming that such a question can be permitted to be raised by the insurance company in appeal.
12. As evident from Exh. 7, the certificate of High School Certificate Examination, the date of birth of the deceased was 2.4.1954, and as such he was aged about 41 years at the time of death on account of the accident. The Tribunal has held that the deceased must have been contributing a sum of Rs. 5,000 towards the maintenance of family consisting of his wife and minor children. Though the counsel for both parties challenge this finding, one contending that the contribution must have been less and other contending that the contribution must have been more, I consider the assessment by the Tribunal to be fair in the facts and circumstances of the case. Of course, prima facie, the consolidated sum of Rs. 80,000 granted by the Tribunal on account of loss of consortium and mental agony may appear to be slightly on the higher side. On the other hand, keeping in view the age of the deceased to be 41 years, instead of multiplier of 12, one could have even applied the multiplier of 13. Taking an overall view of the matter, I do not consider the compensation of Rs. 8,00,000 in the facts and circumstances of the case to be grossly excessive or grossly low so as to warrant interference in appeal by the appellate court. The overall assessment being fair, there is no scope for interference with such assessment by the Tribunal. Accordingly, there is no scope for interference in the appeal or the cross-objection, as the case may be.
13. Though I have disposed of the appeal on merit, the question of maintainability of the appeal on questions of merit at the instance of the insurance company, as raised by the counsel for claimants-respondents, requires to be answered. In the present case, the owner had remained ex parte and the insurance company had been impleaded as a party from the very inception. The insurance company had contested the matter including the compensation claimed on merit by filing written statement and by cross-examining witnesses on merit. In such a situation, the learned counsel for the appellant states that since the owner was ex parte, keeping in view the principles decided by this court in several cases, the insurance company could contest the claim application on merit even without taking resort to Section 170 of the Motor Vehicles Act. The learned counsel for the claimants-respondents, however, relied upon the decision of the Supreme Court in Shankarayya v. United India Insurance Co. Ltd. 1998 ACJ 513 (SC) and contended that even when the owner is ex parte and the insurance company is impleaded from the beginning and files written statement challenging on merit and allowed to cross-examine witnesses even on questions relating to merit, the insurance company does not have any right to resist a claim application on merit (that is to say, on the question of negligence and quantum), unless such insurance company is specifically permitted under Section 170 of the Act. Such contention of the counsel for the respondents appears to be fully supported by the aforesaid Supreme Court decision. In the said case, the owner was ex parte and the insurance company had contested on merit and the appeal of the insurance company on merit was allowed by the High Court. While allowing the appeal of the claimant against such decision of the High Court, the Supreme Court observed that the insurance company cannot be permitted to contest a case either during trial or in appeal on merit unless it is specifically permitted under Section 170 of the Motor Vehicle Act.
14. The learned counsel for the appellant, however, submitted that certain situations have not been contemplated by the Supreme Court decision and the decision is distinguishable. It has been contended that where the insurance company itself is made a party and is permitted to file written statement and also permitted to cross-examine the witnesses on merit, no particular order need be passed by the Tribunal and it must be implied that the insurance company is permitted to contest on merit. Though in the face of it the argument seems to be attractive, in view of the decision of the Supreme Court referred to supra, I negative such a contention. In view of the specific language contained in Section 170 of the Act, there can hardly be any scope for contending that the insurance company can be impliedly permitted to contest the case on merit. Section 170 Itself contemplates that a reasoned order is to be passed by the Tribunal permitting the insurance company to contest the case on merit, and in the absence of any such order, the insurance company cannot contest on the question of merit. In such view of the matter, the contention on behalf of the appellant cannot be accepted and it must be taken that the insurance company had no right to challenge the decision of the Tribunal on the question of merit, that is to say, on the questions of negligence and quantum.
15. Though a sum of Rs. 25,000 had been deposited by way of cheque, it seems that the cheque has already expired. As such the said expired cheque may be returned to the appellant. The appellant is required to deposit the entire awarded amount along with interest as directed by the Tribunal within a period of two months from today before the Tribunal. Out of the awarded amount, a sum of Rs. 1,00,000 along with interest on the entire amount of compensation shall be paid to claimant-respondent No. 1 in cash and out of the balance amount of Rs. 7,00,000, a sum of Rs. 2,00,000 each shall be kept in cumulative fixed deposit in the name of claimant-respondent Nos. 2 and 3 for a period of five years and seven years respectively. The balance amount of Rs. 3,00,000 shall be kept in fixed deposit in the name of claimant-respondent No. 1 for a period of five years with permission to withdraw quarterly interest accrued from the fixed deposit.
16. Subject to the aforesaid modification and direction, the appeal and the cross-objection are dismissed. There will be no order as to costs. The lower court records may be sent back immediately.