S.B. Sinha, C.J.
1. This appeal and cross-objections arise out of a judgment of a learned single Judge of this court passed in FAO 230/79 and 231/79 arising out of an award made on 31st July 1979 by the Motor Accident Claims Tribunal. FAO 230/79 which was filed by the appellant, was allowed in part and FAO 231/79 filed by the respondents, was dismissed.
2. The basic fact of the matter is not in dispute.
3. On 26th August 1974, the deceased Prem Chand Gupta was going in car No. DLJ-4598 driven by respondent No. 3 following the truck driven by respondent No. 1 when the said truck suddenly stopped in the middle of the road allegedly without giving any signal or indication and both the vehicles collided together resulting into the death of Shri Prem Chand Gupta and another occupant of the car. Both the vehicle were comprehensively insured with Oriental Fire and General Insurance Company Limited, now known as Oriental Insurance Company Limited.
4. The learned Tribunal, having regard to the materials which were placed on records by the parties, held that the accident took place as a result of contributory negligence on the part of the driver of the truck as also the owner of the car.
5. In so far as the negligence is concerned, it was held to have ben committed on the part of both the driver of the truck as also the driver of the car, the liability where for was apportioned in the ratio of 75:25 respectively.
6. The learned Tribunal, having regard to the age of the deceased at the time of the accident, his age of retirement, his annual income, used the multiplier of 20 and directed damages at Rs. 1,31,040/-. A sum of Rs. 32,400/- was deducted which was payable by way of pecuniary gain to the widow of the deceased and allowed further deduction of 15% of the lumpsum payment of Rs. 14,709/- pursuant whereto, an award of Rs. 83,356/- in the afore-mentioned premise was passed.
7. Appeals were field both by the claimant as also the driver/owner and the insurer jointly. The learned single Judge having regard to the rival contentions raised by the parties, upheld the findings of the learned Tribunal as regard fixation of proportionate liability on contributory negligence of the drivers of the truck and the car.
8. However, as regard the amount of compensation payable in favor of the claimants, the learned single Judge, having regard to the rate of inflation and consequent fall in the value of the rupee, held that the deductions on account of family pension etc. as also deduction for lumpsum payment, was not justified. Having regard to the age of the deceased and increase in the age of superannuation as also the probability in the rise in salaries of the deceased, the learned single Judge held that had the deceased been alive, he would have received a sum of Rs. 11,70,789 during his service career by way of salary and thus, would have been entitled even to receive pension at the rate of Rs. 4,000/- per month. It was, thereforee, held that the amount of Rs. five lakhs which was claimed as compensation was on the lower side. Learned Judge, however, assessed the salary of the deceased at the rate of Rs. 1500/- per month i.e. Rs. 18,000/- per annum and used the multiplier of 22 and awarded a sum of Rs. 3,96,000/-. As regards interest, it was held:
'The Tribunal has only awarded interest on the condition that in case the respondents did not pay the awarded amount within 60 days, the appellants shall become entitled to recover interest at the rate of 6 per cent per annum from the respondents till realization. This indeed is not the correct position of law. The appellants are held entitled to interest at the rate of 15 per cent per annum from the date of application before the Tribunal till the date of realization. The amount which is now awarded in favor of the appellants shall be paid in the same proportion i.e. in the ratio of 75 per cent and 25 per cent respectively by the respondents for the reasons as indicated in the earlier part of the judgment.'
9. Mr. Goyal, the learned counsel appearing on behalf of the appellant, inter alia, submitted that having regard to the fact that the insurer, both in relation to the truck as also the car, was respondent No. 5, the learned single Judge as also the learned Tribunal ought not to have considered the question of proportionality of the liabilities.
10. The learned counsel pointed out that the respondent No. 5 did not raise the plea of limited in its written statement and as such, is estopped and precluded from doing so at this stage. He would urge that sufficient materials had been placed before the learned Single Judge to show that by reason of the recommendations of the Fourth Pay Commission which came into force w.e.f. 1st January 1996 and that of the Fifth Pay Commission which came into force w.e.f. 1st January 1996, the salary of the deceased would have been more than Rs. 4,700/-; apart from the fact that on his superannuation he would have been entitled to pension.
11. Mr. Goyal urged that all the tort fearers in common law as also in statute law are jointly and severally liable and in that view of the matter the appellant would be entitled to recover the awarded amount from any of the tort feasers and in support of the said contention, reliance has been placed on Arun Sondhi v. Delhi Transport Corporation, (2001) ACC 615, Om Wati and Ors. v. Mohd. Din and Ors., : 91(2001)DLT184 , Narain Devi and Ors. v. Swaran Singh and Ors., 1989 ACJ 1118 and Oriental Fire & General Insurance Co. Ltd. v. Shakuntala Garg and Ors., (2001) 2 ACC 622.
12. The learned counsel further urged, strongly relying upon the decision of the apex court in Lata Wadhwa and Ors. v. State of Bihar and Ors., (2001) 3 ACC 316 that the apex court has laid down a new law as regards grant of compensation inasmuch as compensation had been granted to the deceased housewife and estimated the value of the services rendered by them to the extent of Rs. 3000/- per month and as regards elderly ladies, the value of the services had been taken at Rs. 10,000/- per annum. The learned counsel would contend that in that case even compensation had been granted for death of the children.
13. The learned counsel would further contend that when head of the family dies in an accident, the entire family is to start their lives afresh and as such, providing a suitable financial umbrella becomes imperative.
14. Mr. Dhanda, learned counsel appearing on behalf of the owner/driver, appearing in support of his cross-objection dated 2nd January 1989 filed in FAO 230/79 relied upon the decision of the apex court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors. : AIR1994SC1631 . He contends that the learned single Judge must be held to have erred in applying the multiplier of 22. Learned counsel would contend that the appropriate multiplier ought to have been used having regard to the rate of interest which was prevailing t the relevant point of time. Even in case where the rate of interest is lower, the learned counsel would contend, that suitable multiplier could have been applied and in that view of the matter, this court should reduce the quantum of the awarded amount. According to the learned counsel, the income of the family, by reason of payment, such compensation is assumed at the amount of principal amount is also utilized and as such, in a case of this nature, multiplier of 10 ought to have been used. The learned counsel would further contend that interest at the rate of 9% only should be granted.
15. So far as the cross-objection of the insurer is concerned, the learned counsel submits that having regard to the fact that the insurer had filed a joint written statement with the owner and the driver of the bus, they, at this juncture, cannot be permitted to raise a plea of limited liability. It would result in conflict of interest, the learned counsel would submit, if the insurance company is allowed to raise the said question at this stage. In support of the said contention, reliance has been placed on Punjab Dairy Development Corporation Ltd. v. Oriental Fire & Genl. Ins. Co. Ltd. and Ors., 1991 (2) ACJ 775 and Nishat and Malwa Bus Service Pvt. Ltd. and Anr. v. Inder Kaur and Ors., 1987 2 ACJ 1001.
16. Mr. Khanna, learned counsel appearing on behalf of the insurance company, on the other hand, would point out that during pendency of the appeal before the learned single Judge, an application or amendment of the claim petition had been field which had not been considered by the learned single Judge at all. The policy of insurance, according to the learned counsel, being not a comprehensive one, the learned Tribunal as also the learned single Judge must be held to have erred in passing the impugned award.
17. Determination of the amount of compensation, it is well settled, sometimes may involve some guesswork. The deceased was working as a teacher in a school managed under the Delhi Administration. In terms of the revision in the scales of pay, his salary was Rs. 834.25 per month. He was a young man of 38 years.
18. Future prospects and expected rise in the salary and allowances in terms of the recommendations of Pay Commissions, continued inflation and consequent fall in the value of the rupee are also some of the factors of which judicial notice can be taken. Having regard to the decision in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors. (supra) whereupon the learned counsel, for the parties relied upon, is itself a pointer to the fact that for the purpose of determination of compensation, the salary can be treated as at lest double. But we have with us the figures which would show that at least in the year 1996, he would have received a salary of Rs. 4700/- and his service was a pensionable one.
19. It has been brought on record that as on 1st January 1980, the monthly pay and allowances of the deceased would have been Rs. 1,350/-; as on 1st January 1990, he would have received Rs. 4149 and Rs. 4901 as on 1st January 1996.
20. But in our opinion, the same may not be of much relevance.
21. The only question in this appeal is as to whether the adoption of multiple of 22 is reasonable. If instead and in place of Rs. 1,500/-, the monthly salary is taken as Rs. 1,700/- (upon doubling the salary which the deceased was getting at the time of his death) and having regard to the rate of interest which is at present 8% per annum, we are of he opinion that the multiple of 18 would be appropriate keeping in view the fact that the accident took place as far back as on 26th August 1974.
22. In Oriental Fire General Insurance Co. Ltd. v. Shakuntala Garg and Ors., (2001) 2 ACC 622, it has been held:
'7. It is pertinent to note that the accident took place as far back as in the year 1971. About three decades have gone by and the amount of compensation awarded in favor of the legal heirs of the victims are still locked up in the legal battle which is being waged by the Insurance Company. The fight has been prolonged by the appeals filed by the Insurance Company. The Insurance Company in the first instance ought to have paid the entire compensation awarded in favor of the heirs of the victim and in case it thought its liability was limited to the extent provided by Section 95(2) of the Act is could file proceeding under Section 174 of the Act against the owner and driver of the offending vehicle to recover the excess amount paid, if any, to the heirs. The Insurance Company, thereforee, must first comply with the judgment of the learned Single Judge by paying the amount determined by the learned Single Judge as compensation to respondents 1 to 4 and subsequently, in case it is so advised, file proceedings against the owner and driver for recovery of the excess amount, if any, paid by it.'
23. Can it be said that an award of Rs. 3,96,000/- is on higher side? The answer must be rendered in the negative. It is thereforee, not a case, where although a wrong multiplier might have been used, the same warrants interference with the judgment of the learned Single Judge.
24. Having regard to the peculiar facts and circumstances of the case, we are of the opinion that the exception provided for Susamma Thomas & Ors. (supra) should be applied in this case in the interest of justice. The decision of the Apex Court in Lata Wadhwa (Supra), in our considered opinion, cannot be said to have any application in the instant case. Motor Vehicles Act, 1939 was the complete Code by itself. It not only provides for the right of a victim and/or his legal heirs to obtain compensation in case of bodily injury or death arising out of use of motor vehicle, but the forum thereforee has been provided, as also the mode and manner in which the compensation to be awarded therefore. In such a situation, it would be inappropriate to rely upon a decision of the Apex Court, which had been rendered in an absolutely different fact situation and in relation whereto there did not exist any statutory compensation. Lata Wadhwa (supra) was decided in a matter where a fire occurred during a celebration. The liability of the Tata Iron & Steel Co. Ltd. was not disputed. Compensation was awarded having regard to the peculiar feature obtaining in that case which has got nothing to do with the statutory compensation payable under the provisions of the Motor Vehicles act.
25. Submissions of the learned counsel for the insurance company to the effect that its liability was limited, cannot be accepted for more than one reason which are: (a) No such plea had ever been taken; (b) IN view of the fact that a joint written statement was filed together with the owner and driver of the truck, such a plea could not have been raised. (c) The insurance policy, whether the original or the photocopy, had not been produced or proved. What was brought on record was merely a pro forma of the insurance policy which was not and could not have been termed as a contract of insurance; (d) The respondent/insurance company being a State within the meaning of Article 12 of the Constitution of India, was under a moral obligation to produce all the records before the court including the contract of insurance and non-production thereof would give rise to drawal of an adverse inference (See National Insurance Co. Ltd. v. Jugal Kishore and Ors., : [1988]2SCR910 ).
26. In Amrit Lal Sood and Anr. v. Kaushalya Devi Thapar and Ors. (supra), the apex court held that in the event the policy is a comprehensive one, the insurance company cannot resist or avoid the claim made by the claimant. In the instant case, there is no dispute between the insurer and the insured in this regard.
27. However, the question as to whether, having regard to the provisions contained in Sub-section (4) of Section 96 of the Motor Vehicles act, 1939, the claim of the insurer against the owner shall remain whether the insured can claim the balance amount from the owner or not, should be left open.
28. In Punjab Dairy Development Corporation Ltd. v. Oriental Fire & Genl. Ins. Co. Ltd. and Ors. 1991 (2) ACJ 775, the Punjab and Haryana High Court has held as follows:
'6. After hearing the learned counsel for the appellant, we find considerable force in his arguments. No plea was taken by the insurance company before the Tribunal that its liability was limited. In view of the law laid down in the above-mentioned judgments, we are of the view that in the absence of the plea by the insurance company that its liability was limited the insurance company would be liable for the entire amount awarded. Moreover, we are satisfied from the policy also that the liability was not limited to Rs. 50,000/- in the case of tanker owned by the appellant.'
29. It is, thereforee, evident that having regard to the fact that the respondents had filed a joint written statement, the insurance company must be held to have given up its rights and it, in any event, could not raise a plea which would be in conflict with the interest of other respondents.
30. In Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co., : [1977]1SCR728 , it has been held that once an admission has been made in pleading,s the same cannot be permitted to be withdrawn. We are not oblivious of the decision of the apex court in Panchdeo Narain Srivastava v. Jyoti Sahay and Anr., : AIR1983SC462 wherein it was held that admission made by a party may be withdrawn and explained away but in the said decision, the earlier binding precedent had neither been cited nor considered. The decision of the apex court in Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co. (supra), has later been reiterated by the apex court.
31. It is, thereforee, in our opinion futile to urge that the learned Single Judge has not taken into consideration the application for amendment of the written statement. The learned Tribunal, as also the learned Single Judge, in our opinion, committed an error in apportioning the liability, which, in the facts and circumstances of this case, was merely an academic one in view of the fact that insurer of both the vehicles was respondent No. 5 itself. Furthermore, in Angoori Devi and Ors. v. Megh Raj and Ors. (2001) 1 ACC 724, a Division Bench of this court has held:
'20. We accordingly hold that apportionment of liability was not a taboo and was permissible even in a case of composite negligence and Tribunal was competent to apportion and specify liability of two sets of tort-feasors though it was open to claimant/s to recover the whole compensation amount from one of them where the other one defaulted.'
32. In Om Wati and Ors. v. Mohd. Din and Ors., : 91(2001)DLT184 , yet again a Division Bench of this court has held as under:
'9. Coming to the question of 'apportionment' it seems to us that Fist Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favor of the joint tort-feasors of the truck present before the Court as they had failed to implead tort-feasors of the car as party-respondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers to the two vehicles contributed to the accident in some measure, the other two deceased who were traveling in the case could not be held responsible for any such negligence. thereforee, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doers is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tort-feasors becomes both joint and several.
10. It logically follows from this that a claimant could choose to file a claim petition WP all or any one of them and it was not necessary that he should implead all joint tort-feasors as party respondents because they were only proper parties and not necessary parties. It may as well be that claimant had not set up a case of composite negligence but if there was material on record to suggest so, neither Tribunal nor Court was disabled or incompetent to record a finding in this regard. Support for this is derived from a DB judgment of High Court in Hiraben Bhaga v. Gujarat State Road Transport Corporation and Anr., 1982 ACJ (Supp.) 414, holding as under:'It passes one's understanding as to how could a passenger's compensation be deducted on account of the contributory negligence of the driver of a vehicle, it is entirely the choice of the claimants whether to implead both the joint tort-feasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of one of the joint tort-feasors, if they fail to implead him as one of the opponents, in their claim petition. It would be for the imp leaded joint tort-feasors to take proceedings to get the other joint tort-feasors imp leaded in the claim petition, or for that matter such an imp leaded joint tort-feasor may select to sue the other one after the decree or award is given and the other joint tort-feasor if held liable therein. It would be however quite a different argument to advance that because the claimants did not sue one of the tort-feasors, they themselves should be held liable for the deduction of the amount, which the omitted joint tort-feasor would have been called upon to pay. Thus, there would be no deduction in the amount of compensation awarded to the appellants as done by the Tribunal.'
33. However, in our opinion, the rate of interest should have been fixed @ 12% per annum instead and in place of 15% per annum.
34. For the views we have taken, we are of the opinion that subject to aforementioned, there is no merit in the appeal or the cross-objections. They are disposed of accordingly. However, in the facts and circumstances of the case, the insurance company shall bear the costs of the appeal of the appellants. Advocates' fee assessed at Rs. 5000/-.