Judgment:
Usha Mehra, J.
1. By this order cross objections filed by the respondent (claimant before the Trial Court) are being disposed.
2. Shri Gurcharan Singh husband of respondent No. 1 Jasmer Kaur and father of respondents 2 to 5 i.e. Smt. Kartar Kaur, S. Gurdev Singh, S. Tirlochan Singh and S. Baldev Singh was killed in a motor vehicle accident on 8th June 1973. Claimants/respondents 1 to 5 filed a claim alleging rash and negligent driving on the part of the driver of Truck No. UPP-1505. In the said claim petition they claimed compensation to the tune of Rs. 1 lac. By the impugned judgment dated 22nd September, 1979 the learned Motor Accident Claims Tribunal (hereinafter called the Tribunal) awarded Rs. 68,260/- as compensation to the claimants and restricted the liability of Insurance Company to the tune of Rs. 50,000/- owner and driver of the truck felt aggrieved and filed the appeal which was listed as FAO No. 261/79. The same has already been dismissed. In that appeal cross objections were filed which are under consideration now.
3. Occurrence of the accident is not in dispute. This incident occurred because of the rash and negligent driving of the truck by the truck driver. Decision of the Tribunal on this point has not been upset so far. Rather from the dismissing of the appeal filed by the driver and the owner of the truck confirms that S. Gurcharan Singh died because of the rash and negligent driving of the truck by the driver. Hence the driver and the owner of the truck have rightly been held guilty for negligence and liable to pay compensation. The said truck was insured with M/s. National Insurance Company (hereinafter referred to as Insurance Company). In this regard a specific issue was framed by the Tribunal which reads as under:
Whether the Insurance Company is not liable for the reasons alleged in the preliminary objections in its written statement?.
4. In the written statement filed by the Insurance Company a plea was raised that its liability was limited to the tune of Rs. 50,000/- in respect of any claim or service of claim arising out of one event. It was in this background that the issue was framed. The burden of this issue was accordingly placed on the Insurance Company to prove its limited liability. At the outset it must be mentioned that the Insurance Company except making a bald statement in the written statement did not lead any evidence. It did not produce nor proved the Insurance Policy. In the absence of any evidence having been led by the Insurance Company, the Tribunal, could not have concluded that the liability of the Insurance Company was limited to the extent of Rs. 50,000/-. How he came to this conclusion cannot be inferred from the record of the Trial Court. In the impugned judgment, the Tribunal has discussed issues 1 to 3 but failed to discuss issue No. 4 i.e. of limited liability. Except giving finding on this issue in the concluding para, no reason assigned for arriving at this conclusion. This shows non-application of mind on the part of the tribunal. When Smt. Jasmer Kaur appears as PW-3 not even a suggestion was given to her that the liability of the Insurance Company was limited. Sh. Bhullan Singh driver of the Truck No. UPP-1505, appearing as his own witness as RW-1 never stated that liability of the Insurance Company was limited. Rather not even a suggestion was given to him in this regard. As pointed out above since no documentary evidence or otherwise was placed on record to prove limited liability, Tribunal fell in error in concluding that the liability of the Insurance Company was limited. Unfortunately, the Insurance Policy was also not placed on record. thereforee, the stand taken by Mr. O.C. Khullar Counsel for the Insurance Company that liability of the Insurance Company was to the tune of Rs. 50,000/- only cannot be sustained.
5. Having held that Insurance Company's liability was unlimited, we have now to consider the objection of the objector with regard to the quantum of compensation and the deductions allowed by the Tribunal. Turning to the challenge on the deduction allowed by the Tribunal from the award we have to see on what account deductions were allowed by the Tribunal. Admittedly, the salary of the deceased Gurcharan Singh as on the date of his death has been proved by producing his service record. It was Rs. 665/- p.m. It was also proved that Smt. Jasmer Kaur widow had been allowed pension from the employer of the deceased at the rate of Rs. 83/- per month for the first five years and thereafter at the rate of Rs. 60/- per month for the rest of her life. The deceased at the time of his death was about 43 years old which fact is not controverter and has been proved from the service record. While considering life expectancy the Trial Court has observed that the deceased would have lived at least up to 65 years had he not met with this accident. He left behind his widow, mother and three minor children. Children were to be educated and married. thereforee, taking into consideration the dependency of the deceased and the number of years he would have lived, the .Tribunal applied 20 years multiplier, On this 20 years multiplier no objections have been filed by either party. Hence, after calculating the income drawn by the deceased and by applying the multiplier of 20 years the Tribunal awarded the net amount to the tune of Rs. 1,06,560/-. The only objection of the objectors is the deduction allowed by Tribunal.
7. Main thrust of Mr. O.P. Goel's arguments is that no amount from pension received by the widow could be deducted. Reference was made to the decision of the Supreme Court in the case of Urmila Pandey and Ors. v. Khalil Ahmad and Ors. : [1994]3SCR1001 : 11 (1994) ACC 431 (SC) and N. Swammal and Ors. v. Managing Director, Pandian Roadways Corporation and Anr. 1985 ACJ 75: 1 (1985) ACC 47 (SC), Supreme Court in no uncertain words held that deduction on account of pensionary benefits and the pension received by the claimant was not justified. To the same effect are the observations of our own High Court in the case of Elizebeth Mathew and Ors. v. Vasdev and Anr. : AIR1990Delhi121 : 1 (1990) ACC 11 (Del), where it was held that deduction on account of family pension, life Insurance, lump sum payment, uncertainty of life, gratuity and provident fund are not admissible. Reference can also be had to the observations of this Court in the case of Halima Khatoon and Ors. v. N.D.M.C. and Ors. , where it has been opined that deduction on account of pension received by the claimant was not justified. While doing so this Court placed reliance on the decision of Supreme Court in the case of Hardeo Kaur and Ors. v. Raj as than State Road Transport Corporation and Ors. : [1992]2SCR272 : 1 (1992) ACC 603 (SC). In the case of Dharambir Singh v. Shanti Devi and Ors. : 11 (1995) ACC 359 (Delhi), this Court opined that deduction on account of lump sum payment, provident fund and gratuity are not admissible. In view of this settled law, to my mind, the Tribunal fell in error in permitting deductions of Rs. 20,660/- from total dependency income of Rs. 1,06,560/- on account of apaltrysum of Rs. 83/- per month received as pension for seven years and Rs. 60/- thereafter for the rest of her life and as pension by the widow the Tribunal was not justified in deducting this amount. Similarly, nor the Tribunal could deduct the amount at the rate of 10% each from the provident fund and gratuity received by the widow. In view of the law laid down by the Apex Court the Tribunal fell in error in deduction at the rate of 20% as lump sum out of the dependency amount. In the case of Hardeo Kaur (supra) the Apex Court observed as follows:
We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Motor owners' Insurance Co. Ltd. v. J.K. Modi 1981 ACJ 507 (SC), held that the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago less than quarter of its value when it is received after such a long time. In Manjushri Raha v. B.L.Gupta 1977 ACJ 134 (SC), this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, thereforee, hold that the Courts below were not justified in making lump sum deduction in this case.
8. This Court in Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC) held as under:
The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
9. I find force in the submissions of the claimants/objectors that the lump sum deductions were not justified. In view of the clear mandate given by this Court as well as by the Apex Court, allowing deduction on account of the pension, provident fund, gratuity and lump sum payment cannot be sustained. The same are accordingly set aside.
10. Mr. O.P. Goel then urged that future prospects of the deceased ought to have been considered. In this regard, he has in this appeal filed documents indicating that had the deceased been alive, his salary at the time of his retirement would have been Rs. 2,965/-. Statement supplied by the deceased's employer showing deceased's salary till the date of his retirement i.e. at the age of 58 years have been filed. This Court would show future prospects of the deceased. Hence, the quantum of compensation should be based on this chart. Whereas the Court below only took account of deceased's salary which he was drawing on the date of his death i.e. Rs. 665/- per month. For this reason also, award of the Tribunal on the ground of quantum requires modification. If the Tribunal had considered future prospects of the deceased then the claimants would have been awarded Rs. 4,45,694/-. This contention cm the facts of this case cannot be sustained because in the claim petition the claimants themselves restricted their claim to Rs. 1 lakh only. By this chart now produced in appeal the claim of the Claimant cannot be improved to Rs. 4 lakhs. Objector had not sought amendment of their claim petition nor asked for leading additional evidence. By merely placing on Appellate Court's record a statement issued by the employer is not enough to enhance the award of compensation. The Tribunal or for that matter this Court in appeal cannot award an amount beyond what has been claimed by the claimants. Hence, this contention of Mr. O.P. Goel cannot be appreciated. No amount of award beyond what has been claimed can be awarded.
11. For the reasons stated above, I modify the award of the Tribunal with directions that objectors/claimants would be entitled to the sum of Rs. 1,06,5607-but without any deductions. Beside they would also be entitled to interest at the rate of 15% p.a, from the date of the application till payment. Tribunal had awarded interest at the rate of 6% p.a. which I think is on the lower side. Courts have been awarding interest at the rate of 15% per annum and for mis I need not look anywhere else but to the catena of judgments of this Court as well as of the Apex Court, namely, Subhadra Kumari v. Lallu Ram : AIR1996Delhi64 , Sandeep Taneja v. State of Haryana , Dharambir Singh v. Shanti Devi : 11 (1995) ACC 359 (Del), Rukmani Devi v. Om Parkash 1991 ACJ 3: 1 (1991) ACCl(SC), Bimla Devi v. New India Assurance Co. Ltd. 1995 ACJ 7894 : (1996) ACC 40(Del.)Kailash Rani v. Satya Pal : AIR1996Delhi98 : 11 (1995) ACC 368(Del.) and Madan Lal v. Janardhan l996 ACl 395: 2 (1995) ACC 349 (Del). Interest of course will be calculated on diminishing basis. Petitioners are jointly and severally liable to pay this amount. In view of what has been discussed above, the order of the Tribunal mat the liability of the Insurance Company was only Act liabilities cannot be sustained. Insurance Company has deposited a sum of Rs. 50,000/-. It is liable to pay the full award amount as its liability is joint and several. The award of the Tribunal is accordingly modified. Thus, objections are allowed in terms as indicated above with costs which is assessed at Rs. 5,000/-.