B.K. Patel, J.
1. This appeal is directed against the Judgment/award dated 29.05.1999 passed by the Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 658 of 1988 directing the Appellant Insurance Company to pay to the claimants i.e. respondent Nos. 1, 3, 4, 5 & 6 & deceased respondent No. 2 compensation amount of Rs. 1,44,000 within a month along with cost of Rs. 500 & interest at the rate of 9 per cent per annum from the date of filing of the claim application, i.e., 09.09.1988 till payment on account of death of deceased Sandip Mandal in a road accident. Claimants have filed cross-objection to the appeal.
2. Claimants were deceased's parents, grand-mother & sisters. Claimants' case is that the accident resulting in fatal injuries to & death of the deceased occurred on 27.08.1988 at about 11.45 A.M. when he was going as a pillion rider of the offending scooter belonging to respondent No. 9 from Dayashram lane to Cantonment Road in Cuttack. Truck bearing registration number ORC-6624 belonging to respondent Nos.7 & 8 was going towards Chandichhak from Barabati Stadium side. Offending scooter, being driven at a high speed, dashed against the right rear side of the truck while attempting to overtake it. As a result, deceased fell down on the road & sustained severe injuries. While under treatment he died in the evening in S.C.B. Medical College & Hospital, Cuttack. Deceased was 20 years old. He was an electrician & television mechanic. His income was Rs. 2,400 per month which he contributed for the maintenance of the claimants. On such averments, claimants filed application under Section 110-A of the Motor Vehicles Act, 1939 (for short, '1939 Act') for award of compensation of Rs. 1,70,000. It was pleaded that insurance policies in respect of offending scooter Was issued by the Appellant Oriental Insurance Co. Ltd. & the truck was insured by respondent No. 10 National Insurance Co. Ltd.
3. Respondent Nos. 7 & 8 were set exparte. Respondent No. 9 filed written statement pleading, inter alia, that the accident occurred due to rash & negligent driving of the truck driver. He admitted that the Appellant had issued insurance policy to him in respect of the offending scooter. It was also averred by him that the truck was insured by respondent No. 10. Respondent No. 10 filed written statement denying issuance of insurance policy in respect of the truck. It was further pleaded that the truck was not responsible for the accident. Appellant also resisted the claim in their written statement.
4. In order to substantiate their assertions, claimants examined four witnesses including respondent No. 1 as P.W.1. P.Ws. 2 & 3 were witnesses to the accident. P.W.4 deposed regarding deceased's vocation & income. Claimants also relied upon documents marked Exts. 1 to 5, which are certified copies of documents obtained from the record of the criminal case instituted in connection with the accident, & attendance & salary register. No oral evidence was adduced by the owners of the vehicles or insurance companies. However, documents marked Exts. 'A' to 'G' were admitted into evidence on behalf of the Insurance Companies.
5. Upon reference to the lower Court record Learned Counsel for the Appellant Insurance Company submitted that the claimants initially pleaded that the accident occurred due to rash & negligent driving of the truck which dashed against the offending scooter. The truck was stated to be covered under insurance policy issued by respondent No. 10 National Insurance Co. Ltd. & the scooter to be insured with the Appellant Oriental Insurance Co. Ltd. P.W. 1 deceased's , father & P.W.2 an occurrence witness testified to that effect in course of their examination on 10.7.1990. On 15.10.1990 arguments were heard & case was posted for award to 24.10.1990. However, in response to amendment petitions filed on 19.10.1990 & 26.2.1991 claim application was allowed to be amended by Order Dated 20.6.1991.
Amendment of the claim petition attributing cause of accident to the negligence of scooter driver totally changed the nature & character of the claim application. Claimants were allowed to reexamine P.Ws. 1 & 2. In course of their reexamination P.Ws. 1 & 2 also made prevaricating statements blaming the scooter driver for the accident. It was strenuously contended that Learned Tribunal committed illegality by allowing such amendment to the claim petition.
It was further argued that Learned Tribunal should not have placed any reliance on the testimonies not only of P.Ws. 1 & 2 but also on the testimony of P.W.3 stated to be an eyewitness to the accident in view of his admission in course of cross-examination that he was paid by the claimants for deposing in Court. It was also submitted that as F.I.R. as well as Charge-sheet in Cantonment P.S. Case No. 105 of 1988 instituted in connection with the accident described drivers of both the offending truck as well as scooter as accused persons, Learned Tribunal ought to have held that the witnesses examined by the claimants were untrustworthy.
Learned Counsel for the Appellant would also contend that pillion driver being not a third party to the insurance policy the Appellant is not liable to indemnify liability arising out of the insurance policy issued in respect of the scooter.
6. It was argued by the Learned Counsel for the Appellant that materials on record indicate that the deceased was aged 18 years during the period of accident. Therefore, evidence of P.W.4 regarding deceased's income should not have been believed. That apart, multiplier of 12 adopted by the Learned Tribunal, considering that the deceased's father was aged 44 years, was not proper. Appropriate multiplier should have been 10. Learned Tribunal also committed illegality in directing payment of award amount with interest at the rate of as high as 9 % per annum. In view of periodical fluctuations in banking interest rate there is no scope to direct payment of interest at the rate of more than 6% per annum.
7. Lastly, it was urged that under the facts & circumstances, at the worst, Learned Tribunal should have held that the accident occurred due to composite negligence of the drivers of the scooter & the truck & that accordingly owners/insurers of both the vehicles were liable to share the liability arising out of the accident.
8. Per contra, Learned Counsel appearing for the claimants argued that the Appellant having not filed any objection against amendment of original claim application or filed any additional written statement denying or disputing the averments made in the amended claim petition, is not entitled to assail legality of the amendment of the claim application. Findings of the Learned Tribunal are based on evidence on record & supported by reasons. Evidence of the witnesses examined by the claimants has been found to be trustworthy & accepted by the Learned, Tribunal. Insurance Company did not adduce any evidence to rebut such evidence. In such circumstances, there is no reason to interfere with the findings & conclusion of the Learned Tribunal. It was strenuously contended that Appellant had issued comprehensive insurance policy Ext. A in respect of the offending scooter which covers liability of pillion rider. In this context, reliance was placed on General Manager. United India Insurance Co. Ltd. v. M. Laxmi and Ors 2009 (1) TAG 6 (SC).
9. In support of the cross-objection it was contended by the Learned Counsel for the claimants that considering the evidence on record Learned Tribunal ought to have held that the deceased would have contributed Rs. 3000 per month to the claimants instead of Rs. 1000 only for determining loss of dependency. It was further argued that as deceased's mother was aged 40 years, Learned Tribunal should have adopted multiplier of 15 instead of 12 for the purpose of capitalization. As banking interest rate was 9 % per annum during the period when the award was passed there is no reason to interfere with the direction to pay the award amount with interest @ 9 % per annum.
10. Learned Counsel appearing for the respondent No. 10 National Insurance Co. Ltd. argued that the Appellant is not entitled to assail the award in absence of permission to contest under Section 110-C (2A) of the 1939 Act, corresponding to Section 170 of the Motor Vehicles Act, 1988 (for short 'the 1988 Act'). It was further contended that in view of categorical finding recorded by the Learned Tribunal that scooter driver was negligent in causing the accident, in absence of any evidence o the contrary, there is no scope to hold that respondent No. 10 is also liable to pay any compensation to the claimants.
11. Neither it is disputed by the Learned Counsel for the Appellant nor it appears from the records that any objection was filed by the Appellant against amendment sought to the original claim application by the claimants. Appellant Insurance Company does not appear to have filed any additional written statement denying or disputing the averments made in the amended claim application. Also, the amendment is not objected to on the ground of limitation. Therefore, objection raised against amendment to the claim application at such a belated stage is not sustainable. No objection appears to have been filed, against reexamination of P.Ws. 1 & 2 also. P.W.1 was not a witness to the accident. P.W.2 appears to have initially testified that the truck came at a high speed & dashed against the scooter. In course of reexamination P.W.2 testified that out of confusion he had wrongly stated that the truck dashed the scooter. He asserted that the scooter came from a lane & dashed against the right side of dalla near back of the truck. In course of cross-examination on behalf of the Appellant it was asserted by P.W.2 that he could see the accident properly. P.W.3 testified that the truck was proceeding on the main road towards Chandi Mandir from Barabati Stadium side. The scooter coming from Daya Ashram lane dashed against right side of the truck. In his cross-examination P.W.3 deposed that on being requested by the deceased's father he came to depose in Court. He was promised to be paid Rs. 300. Relying on the statement of P.W.3 it was sought to be urged that P.W.3 was a got up witness. However, the candid & truthful statement of the witness to have been promised to be paid as per his demand for deposing in Court cannot lead to any inference that P.W.3 was paid for deposing falsehood before the Tribunal. In absence of any evidence to the contrary, there is no infirmity in the finding that it was the scooter which hit against the truck. Therefore, it was the scooter driver who was responsible for the accident.
12. Deceased was a pillion rider in the scooter. There is no dispute that insurance policy Ext. 'A' issued in respect of offending scooter was a Comprehensive Policy. Liability arising out of Comprehensive Policy is wider than liability arising out of Act Policy issued in terms of Section 95 of the 1939 Act, corresponding to Section 147 of the 1988 Act. Comprehensive Policy covers liability of pillion passengers in motor-cycles. In this connection, reliance has rightly been placed by the Learned Counsel for the claimants on General Manager. United India Insurance Co. Ltd. v. M. Laxmi and Ors. (supra). Therefore, there is no merit in the contention that insurance policy issued in respect of the offending scooter does not cover liability arising out of death of the deceased who was a pillion rider.
13. Deceased's father P.W.1 testified that deceased was aged about 20 years & he had undertaken training for Diploma in Electronics. Deceased was working as electrician doing motor binding work with M/s. Electro Elite, Tulsipur in Cuttack. Deceased also used to repair televisions. It is in his evidence that deceased used to earn about Rs. 100 & contribute to his family Rs. 80 per day. Such assertions of P.W.1 find support from the evidence of deceased's employer P.W.4 & contents of Ext. 5 the attendance & salary register. Learned Tribunal has made a conservative estimate of deceased's income at Rs. 1500 per month. Considering age of the deceased's father to be 44 years & of the mother to be 40 years, Learned Tribunal appears to have adopted multiplier of '12'. Deducting 1/3rd of the deceased's income towards his personal expenses, claimants' loss of dependency has been worked out at Rs. 1,44,000 which amount has been awarded as compensation. Claim application was filed in the year 1988. Banking interest rate has fluctuated from time to time in the meanwhile. Considering such facts & circumstances, there appears no infirmity either in the determination of the quantum of compensation payable to the claimants or in the direction to pay the award amount with interest at the rate of 9% per annum from the date of filing of the claim application.
14. Not only none of the contentions raised on behalf of the Appellant is found to be not sustainable, but also the appeal is found to be not maintainable in view of provisions contained under Sections 96(2) & 110-C (2A) of the 1939 Act, corresponding to Section 149(7) & 170 of the 1988 Act. Materials on record do not indicate that Appellant obtained permission to contest the claim, Therefore, contention raised on behalf of respondent No. 10 National Insurance Co. Ltd. that appeal filed by the Oriental Insurance Co. Ltd. is not maintainable, is found to be not without force.
15. In view of the above discussion, there is no merit in the appeal or the cross objection. Accordingly, the appeal as well as cross objection are dismissed.