D. Jagannadha Raju, J.
1. This appeal is filed by the insurance company which is R-3 in the O.P. against the judgment and decree dated 29.6.1985 in O.P. No. 23 of 1985 on the file of the Motor Accidents Claims Tribunal, Vizianagaram-cum-Addl. District Judge, Vizianagaram. Dealing with a petition under Section 110-A of the Motor Vehicles Act, claiming a compensation of Rs. 3,00,000/- by the widow and three minor children of the deceased Dr. G. Krishna, a private homoeo practitioner, the Tribunal awarded a compensation of Rs. 2,17,500/- with interest at 6 per cent per annum. A joint and several decree was passed against respondent Nos. 1 to 3, the driver, the owner of the bus APS 1654 and the insurance company. The claimants filed cross-objections for the amount of the claim disallowed.
2. The cardinal facts which gave rise to this O.P. and the appeal are as follows: The deceased Dr. G. Krishna was going on his motor cycle along with his wife and child, a bus APS 1654 belonging to the 2nd respondent and driven by the 1st respondent came and dashed against the motor cycle at 10.30 a.m. on 19.8.1984. At the time of the accident petitioner No. 1 and the child, petitioner No. 4, were sitting on the pillion of the motor cycle. The Tribunal accepted the evidence of PWs 2 and 3 who were travelling in the bus and the evidence of PW 1, the 1st petitioner and came to the conclusion that the accident is the direct result of rash and negligent driving of the bus by R-1. Though it was claimed that the deceased was earning Rs. 4,000/- p.m. and though PW 1 gave evidence to the effect that her husband was earning Rs. 3,000/- per month as homoeo practitioner with dispensaries at two places, the court came to the conclusion that the net loss of support to the petitioners is Rs. 750/- p.m. out of a monthly income of Rs. 1,500/- p.m. and hence the loss of annual support is Rs. 9,000/-. On that basis it arrived at a total loss of dependency at Rs. 2,70,000/-and after deducting 25 per cent for the advantages of lump sum payment and possibility of premature death due to natural causes it fixed the amount as Rs. 2,02,500/-. Then it granted Rs. 10,000/- for loss of consortium and Rs. 5,000/- for mental agony and suffering and thus fixed the total compensation payable at Rs. 2,17,500/-.
3. In this appeal the insurance company contends that the Tribunal should have restricted the liability of the insurance company to Rs. 50,000/- as per the provisions of Section 95 (2) of the Motor Vehicles Act (hereinafter referred to as the 'Act') and the Tribunal committed a mistake in passing a joint and several liability decree against all the respondents for Rs. 2,17,500/-. Some grounds have also been taken to indicate that the Tribunal has granted highly exaggerated claims and that the Tribunal should not have fixed the income per month at Rs. 1,500/-. Similarly granting Rs. 10,000/- for loss of consortium and Rs. 5,000/- for mental agony and suffering to the 1st petitioner is highly excessive.
4. In the cross-objections the petitioners claim that the Tribunal is not correct in fixing the monthly income at Rs. 1,500/- when in fact the deceased was a very popular doctor earning Rs. 4,000/- p.m. with dispensaries at two different places with good establishment. It is claimed that the entire amount of Rs. 3,00,000/-claimed in the O.P. should have been awarded.
5. In this appeal the insurance company filed C.M.P. No. 7710 of 1989 on 13.6.1989 when the appeal came up for hearing. In this petition it is claimed that the insurance policy copy is now produced and the policy clearly establishes that the extent of liability of the insurance company is only Rs. 50,000/-. The policy is now produced as additional evidence. The policy could not be filed earlier before the Tribunal as it could not be traced in time. Recently the policy was traced. Hence it should be received as additional evidence. This additional evidence is essential for proper decision of this appeal. The petition is heavily opposed by the contesting respondents-claimants. Though the accident took place on 19.8.1984 and the O.P. was filed on 29.1.1985, no effort was made to file the policy along with the counter. The O.P. was decided on 29.6.1985 and the appeal itself was filed on 28.9.1985. Only at the time when the appeal is taken up for hearing, the present petition for additional evidence is filed. Such a delayed petition cannot be allowed and it should be rejected.
6. I shall first deal with the petition for additional evidence, viz., C.M.P. No. 7710 of 1989. In the present O.P. the insurance company (R-3) filed a separate counter denying the various claims and it also denied rash and negligent driving on the part of the driver of the bus. Then it took a specific plea to the following effect: 'At any rate the liability of this respondent cannot exceed Rs. 50,000/- as provided under Section 95 (2) of the Act.' In spite of taking this plea, R-3 never made any effort to file the copy of the insurance policy to show its liability is restricted to Rs. 50,000/-. In fact no issue was framed in the O.P. regarding the limit of liability of R-3.
7. In the counter filed by R-1 and R-2 a specific plea was taken to the effect that APS 1654 is insured with R-3 and that the insurance policy is current and that the said insurance is unlimited. Hence even if there is any liability the insurance company is liable to pay the same, as the insurance company undertook such a liability under the contract of insurance. It is also noticed that the counter of R-1 and R-2 was filed on 15th March, 1985 and nearly 25 days later, i.e., on 10.4.1985, R-3 filed a counter claiming that the liability of the insurance company cannot exceed Rs. 50,000/-and relied upon Section 95 (2) of the Act. One fails to understand why the advocate representing the insurance company did not bother to file the policy and why he did not have a specific issue framed when the respondents took conflicting defences regarding the limit of liability of the insurance company. It should also be remembered that it is the claim of R-1 and R-2 that the liability is unlimited.
8. Assuming for a moment that at the initial stage the counsel and the court did not realise the significance of the policy being produced one fails to understand why during the course of trial R-3 did not produce the insurance policy. In paragraph No. 12 of the order, it was specifically remarked by the Tribunal that R-1 and R-2 admitted that the liability of the 3rd respondent, insurance company, is unlimited, still the 3rd respondent, insurance company, did not choose to file the copy of the insurance policy to show that it has only limited liability. The Tribunal rightly held that in view of the policy not being produced in spite of the specific plea taken by respondent Nos. 1 and 2, the liability of R-3 is unlimited.
9. One fails to understand why the insurance policy was not filed along with the appeal, when the appeal was filed in September 1985, especially when the Tribunal recorded a finding to the effect that the liability of R-3 is unlimited. The crucial question is, whether in this background the insurance company can be permitted to adduce by way of additional evidence a copy of the insurance policy at the stage of hearing of the appeal.
10. Mr. Gopalakrishna contends that the petition for additional evidence should be rejected as it does not satisfy the requirements of Order 41, Rule 27, Civil Procedure Code. He specifically pleads that under Rule 27, the parties to an appeal shall not be entitled to produce additional evidence in the appellate court except under specified circumstances mentioned in the rule. Clause (a) of Sub-rule(1) contemplates the cases where the trial court refused to admit the evidence which is sought to be produced as additional evidence. Clause (aa) deals with cases where the party establishes that notwithstanding the exercise of due diligence, such evidence could not be produced at the time when the decree appealed against was passed. The third contingency as given in Clause (b) is that the appellate court requires any document to be produced to enable it to pronounce judgment. None of these three contingencies are present in the present application for adducing additional evidence. In fact the reason given in the affidavit filed along with C.M.P. No. 7710 of 1989 is that they could trace the policy recently. Not a word is said that in spite of exercising diligence and that in spite of searching for it they were unable to produce it before the trial of the O.P. concluded. The decision reported in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), clearly lays down the duty of the insurance company to produce the policy and at what stage it should have been produced. In para 9 at page 274 the court observed as follows:
Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.
In view of the weighty pronouncement of the Supreme Court it would be unjust and improper to allow the petition for additional evidence filed at this belated stage. The petition does not satisfy the requirements of Order 41, Rule 27, Civil Procedure Code. The petition also does not explain why the policy could not be filed in the Tribunal and what steps have been taken to search for the policy and to produce it at the time of filing of the counter by R-3. The petition for additional evidence is accordingly dismissed.
11. The further questions that arise for consideration in this appeal and the cross-objections are:
(1) Whether the insurance company is entitled to claim that its liability is restricted to Rs. 50,000/- as contemplated under Section 95 (2) of the Act?
(2) Whether the insurance company is entitled to question the quantum of compensation awarded by the Tribunal?
(3) Whether the cross-objections filed by the claimants are liable to be allowed?
POINTS 1 AND 2
12. Mr. Hanumaiah appearing for the appellant contends that as the liability is fixed under the Act at Rs. 50,000/-, it is open to the appellant-insurance company to question the quantum of compensation awarded and it is entitled to do so when the quantum of compensation awarded is in excess of the statutory liability.
13. Mr. Gopalakrishna appearing for the claimants contends that having not produced the policy in view of the plea taken by respondent Nos. 1 and 2 that the liability of the insurance company is unlimited, it is not open to the insurance company to question the quantum of compensation awarded even if it is in excess of the statutory liability. He claims that if the insurance company feels that it has been made to pay more than what it is statutorily liable to pay, then the duty of the insurance company is to pay the amount decreed as contemplated under Section 96 (1) and then proceed against the owner of the vehicle and recover the excess amount paid by it as contemplated under Section 96 (4). He places reliance upon a decision reported in United India Fire & General Ins. Co. Ltd. v. Pallamparty Indiramma 1982 ACT 521 (AP). In reply to Mr. Gopalakrishna, the advocate for the appellant relies upon a number of decisions of the different High Courts to show that it is a well settled law that the liability of the insurance company is limited to the amounts specified under Section 95 (2) of the Act.
14. The decision in United India Fire & Genl. Ins. Co. Ltd. v. Pallamparty Indiramma 1982 ACJ 521 (AP), deals with a case where the claimant was awarded Rs. 1,35,000/-towards compensation for loss to the estate and another Rs. 5,000/- for loss of consortium, and another case of Rs. 17,160/- being awarded as compensation for the injured claimant in O.P. No. 141 of 1977. In the O.Ps. no plea was raised regarding the limited liability of the insurance company nor was an issue framed. Dealing with such a situation the court observed in para 15 at page 526 as follows:
But the insurer never raised this plea before the Tribunal in the written statement; no issue was framed and no evidence was recorded. The insurance policy was not produced to show that the policy did not cover higher risks than the prescribed compulsory insurable risks. Section 95 only prescribes the minimum requirements of an insurance policy and the limits of liability of the insurer thereunder. It does not preclude and prohibit a party from covering higher risks, In the absence of any pleading, issue or evidence on the question of limit of liability of the insurer, we cannot properly permit the insurer to raise the said question for the first time in this court. This view of ours finds support from the decision of the Allahabad High Court in National Insurance Co. Ltd. v. Narendra Kumar 1981 ACJ 93 (Allahabad), and of the Madhya Pradesh High Court in Shyam Lal v. New India Assurance Co. Ltd. 1979 ACJ 208 (MP).
15. On behalf of the appellant, Mr. S. Hanumaiah relies upon a decision reported in New India Assurance Co, Ltd. v. Meka Kamanamma 1982 ACJ (Supp) 267 (AP). The learned Judge referred to the decision in United India Fire & General Ins. Co. Ltd. v. Pallamparty Indiramma 1982 ACJ 521 (AP) and observed in para 8 that it is a case in which no plea was raised by the insurer that its liability was limited and the insurance policy was not produced to show that the policy did not cover higher risks than the prescribed compulsory insurable risks and no evidence was let in by the insurer in support of its plea that the liability should be restricted. Then dealing with the judgment of PA. Choudary, J. in United India Fire & Genl. Ins. Co. Ltd. v. Pogaku Parvathamma 1982 ACJ (Supp) 293 (AP), the learned Judge remarked that Justice Choudary construed Section 96 (2) of the Motor Vehicles Act in isolation and held that the insurer cannot be permitted to raise the ground that the liability as may be fixed by the Tribunal exceeded the amount payable by the insurer in terms of the policy. Then referring to the decision in British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC), the learned Judge observed at page 271 as follows:
The Supreme Court case cannot, therefore, be construed as having decided that the insurer cannot question the quantum of compensation even when it exceeded the limits of the liability for which insurance has been effected.
The learned Judge also observed at page 271 as follows:
It is now settled law that the insurer cannot challenge the quantum of compensation. ... Section 96 (2) has to be read with Section 96 (1) of the Motor Vehicles Act, Section 96 (1) restricts the liability of the insurer to pay only such sums not exceeding the sum assured payable under the policy of insurance. Reading the two sub-sections together, the conclusion is inescapable that the insurer cannot avoid his liability if the amount granted as compensation falls within the limits of the insurer's liability in terms of the policy. Is the insurer to be barred also from stating that he,has no liability to satisfy a decree for an amount which is in excess of the amounts covered by the insurance policy? Neither in Indiramma's case, 1982 ACJ 521 (AP), nor in the two decisions referred to by the Division Bench of this court, the insurer's right to question the quantum of compensation in excess of the monetary limits was doubted. The insurer was made liable for the amount in excess of the statutory liability in those cases because the insurer did not raise any such plea and the insurance policy was not produced to show that the policy did not cover a higher risk.
The decision reported in M.K. Kunhi-mohammed v. P.A. Ahmedkutty 1987 ACJ 872 (SC), lays down that the limit of liability of the insurance company is limited to the amounts specified in Section 95 (2) (b). The court observed at page 876 as follows:
We find it difficult to hold that the limit prescribed in Section 95 (2) (b) (ii) (4) was only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of the accident. This appears to us to be a fair construction of Section 95 (2) of the Act as it existed at the time when the accident took place.
The decision reported in Jaddoo Singh v. Malti Devi 1983 ACJ 747 (Allahabad), deals with a case where a motor-cyclist was killed in an accident with a bus. The Tribunal awarded a compensation of Rs. 78,000/- and in appeal it was held that the insurer is liable to indemnify the owner only to the extent of Rs. 50,000/-. The decision reported in British Indian General Ins. Co. Ltd. v. Maya Banerjee 1986 ACJ 946 (SC), is a decision of the Supreme Court in which the court held that when the Motor Vehicles Act fixes the limit of the insurance company to Rs. 20,000/- its liability is restricted to Rs. 20,000/- only and the High Court was in error in fixing the liability of the insurer at a sum above Rs. 20,000/-. But in the peculiar circumstances of that case the award was not interfered with in view of the long lapse of time, and the insurance company was directed to satisfy the entire award amount. The decision in New India Assurance Co. Ltd. v. Laxmi Devi 1986 ACJ 947 (MP), is another decision where a single Judge of the Madhya Pradesh High Court held that the liability of the insurance company is restricted to the amount mentioned in the policy. The decision in Krishna Rani v. Ram Sarup 1988 ACJ 795 (Delhi), deals with a case where a bus taking a sharp turn at fast speed knocked down a pedestrian and killed him and a compensation of Rs. 2,10,000/- was awarded to the dependants of the deceased, the court held that the liability of the insurance company is limited to Rs. 50,000/-as no additional premium was paid for unlimited liability. The insurance company was directed to pay Rs. 50,000/- and proportionate interest while the owner of the bus was asked to pay Rs. 1,60,000/- with proportionate interest. The decision in Mahipal Co-op. Society Ltd. v. Prabhati 1986 ACJ 46 (Delhi), lays down that in the case of death of a pedestrian in an accident by a bus liability of the insurer is restricted to Rs. 50,000/-. Though the compensation was enhanced to Rs. 1,68,000/- with interest at 12 per cent per annum, the insurance company's liability was restricted to Rs. 50,000/-.
16. We find in all the decisions which have been considered that the courts have restricted the liability of the insurance company to the statutory limits of liability only when the policy is produced and when the policy showed that unlimited liability is not covered by the policy. In the cases where the insurance company failed to produce the policy no notice is taken of the fact that it should be presumed that the policy covers only the statutory liability. The law does not prohibit an insurance company from issuing a policy for higher risks. In the present case on hand it is the specific plea of R-1 and R-2 that the policy is of unlimited liability. The insurance company though has taken a plea in the counter to the effect that the policy is restricted to Rs. 50,000/- as contemplated under Section 95 (2) still it has not chosen to produce the policy. The petition for additional evidence has been dismissed. In fact in a recent judgment of our High Court in New India Assurance Co. Ltd. v. Pamula Bala Prabhavathamma 1990 ACJ 547 (AP), his Lordship K. Ramaswamy, J. held that it is for the insurance company to fill up the relevant columns pleading the extent of its liability and in its absence the limitation prescribed under Section 95 (2) cannot be applied and the entire liability has to be borne by the insurance company. His Lordship also remarked that 'in this case for well over 2 years proceedings were pending before the court below and no attempt was made to produce the policy in the Tribunal below. The insurance policy was produced only for the first time after the liability was mulcted by the Tribunal below to the entire extent. In those circumstances the appellant has not established the requirements mentioned in Order 41, Rule 27, Civil Procedure Code. Therefore, the document cannot be received as additional evidence.' The present case is almost identical with the case dealt with by his Lordship K. Ramaswamy, J. In these circumstances I hold that the insurance company for its failure to produce the policy and prove that the policy is not for unlimited liability and that it is for a limited liability has necessarily to pay the full amount of the award. If it feels that it has been made to pay more than what it is liable to pay as per the statute and the policy it can proceed against the owner of the bus, R-2 and recover the excess amount paid by it.
17. For the various reasons given above I hold on point No. 1 that the insurance company is entitled to claim that its liability is restricted to Rs. 50,000/- as contemplated under Section 95 (2) provided it produces the policy along with its counter in the Tribunal and leads evidence to the effect that the policy does not cover higher risks. I hold on point No. 2 that the insurance company is not entitled to question the quantum of compensation awarded by the Tribunal if it falls within the statutory limit and only in cases where it produces the document at the earliest stage, it would be entitled to question the quantum of compensation which exceeds statutory liability limit.
POINT NO. 3
18. Cross-objections have been filed for the amount disallowed by the Tribunal. Mr. Gopalakrishna contends that the full amount of Rs. 3,00,000/- claimed in the O.P. should have been awarded. I find that there is no justification for this claim for several reasons. There is no proof of the fact that the deceased was having a net income of Rs. 3,000/- from his medical practice. There is no proof of his paying any taxes on that income. He was maintaining two establishments at two different places. That means he must have been incurring a lot of expenditure for maintaining two different dispensaries. The court came to the conclusion that his monthly income may be fixed at Rs. 1,500/- and the loss of dependency to the family can be fixed at Rs. 750/-. I feel the Tribunal has taken a very reasonable attitude. Considering the fact that the doctor will have to incur a lot of expenditure for his shuttling between the two places and for his establishments at two places, in my considered opinion the compensation awarded for loss of dependency is perfectly reasonable. There is absolutely no basis for awarding a higher compensation when there is no documentary proof of his getting an income of Rs. 3,000/-p.m. or Rs. 4,000/- p.m. as claimed by PW 1. There is another ground to hold that the compensation awarded is just and reasonable. Now a total compensation of Rs. 2,17,500/-has been awarded. If this amount is deposited in a nationalised bank in a long term deposit extending more than 3 years it would yield interest of Rs. 21,750/-. This is much more than the yearly income of the deceased person which has been fixed at Rs. 1,500/- p.m. It is far higher than the loss of dependency assessed by the Tribunal. Assuming for a moment that he was getting Rs. 3,000/- p.m. even then the net loss of dependency to the family will be Rs. 1,500/- p.m. The interest accruing on the compensation now awarded is much more than the total loss of dependency which will come to Rs. 18,000/- p.a. There is absolutely no justification for any enhancement of the compensation.
19. It should be remembered that the death of the deceased in an accident cannot be made an instrument for the family being made to live in luxury than the position it occupied at the time of his death. It should be remembered that if the compensation awarded is deposited in a bank it would yield interest of Rs. 21,750/- at 10 per cent per annum while the corpus is kept intact. There is absolutely no justification for the claim for enhancement of compensation. The cross-objections have to be dismissed.
20. In the result, the appeal and the cross-objections are dismissed. Each party shall bear its own costs in this appeal and in the cross-objections. The petition filed for additional evidence, i.e., C.M.P. No. 7710 of 1989 is also dismissed.