Prakash Tatia, J.
1. Heard learned counsel for the parties.
2. These two appeals and the cross-objection of the claimant are against theaward dated 8.4.96 passed by the Motor Accident Claims Tribunal, Bhilwara in ClaimCase No. 505/92 (180/91) by which the learned Tribunal awarded claim of total Rs.2,61,000/- to the claimant-respondents.
3. Brief facts of the case are that the accident took place between Jeep No. RJ-6-C-102 with Dumper No. 2232. Both the vehicles were owned by the respondent Hindustan Zinc Ltd. The dumper was insured with United India Insurance Co. Ltd. whereas the Jeep was insured with the Oriental Insurance Co. Ltd. In the accident, the driver of the Jeep Bhanwarlal expired. The tribunal held that the accident was caused due to the rash and negligent driving of Kanhaiyalal, the driver of the dumper and held that death was not caused because of any negligence of the deceased Bhanwarlal. However, while deciding the issue No. 5, the tribunal held that the risk of the 3rd party, particularly, employees of the owner of the vehicle was not covered in the policy of United India Insurance Co. Ltd. and, therefore, held that the owner of the vehicle Hindustan Zinc Ltd. and the Oriental Insurance Co. Ltd. are liable jointly and severally. The tribunal exonerated the United India Insurance Co. Ltd. from the liability to reimburse the claim amount.
4. The owner of the vehicles Hindustan Zinc Ltd. preferred S.B. Civil Misc. Appeal No. 219/1997 whereas the Oriental Insurance Co. Ltd. preferred S.B. Civil Misc. Appeal No. 389/1996 to challenge the award against them. The claimant preferred cross- objection (S.B. Civil Cross Objection No. 11/2003) in S.B. Civil Misc. Appeal No. 219/1997 and sought relief of enhancement of the claim.
5. Heard learned counsel for the parties and perused the record.
6. According to learned counsel for the appellant Sh. R.K. Mehta appearing on behalf of the Oriental Insurance Co. Ltd., the award against the Oriental Insurance Co. Ltd. deserves to be set aside because of the reason that the risk of the employees is not covered in the insurance policy issued for the Jeep and as per the proviso to Section 147 of the Motor Vehicles Act, the Oriental Insurance Co. Ltd. was not under obligation to cover the risk of the driver or employees of the owner of the vehicle. Therefore, the Oriental Insurance Co. Ltd. is not liable for the claim amount.
7. It is also submitted that the accident took place within the premises of the Hindustan Zinc Ltd. and the place where accident occurred is not a public place, therefore, the appellant is not liable to reimburse the claim amount. Appellant can, if liable, then can be liable in a case when accident occurs on public place. Lastly, it was submitted that the tribunal misread the documents and wrongly exonerated the United India Insurance Co. Ltd. from the liability to reimburse the award amount.
8. Learned counsel for the appellant Hindustan Zinc Ltd. Sh. T. Gupta submits that the tribunal has committed serious illegality in allowing the claim petition whereas learned counsel for the United India Insurance Co. Ltd. Sh. Sanjeev Johari supported the award exonerating the United India Insurance Co. Ltd. and relied upon the endorsement annexed to the insurance policy providing exception which exclude the claim of employees of the M/s. Hindustan Zinc Ltd.
9. The claimants in cross-objection prayed that the claim amount is too low in the light of the facts that the deceased was getting salary more than of Rs. 5,000/- per month and was of the age of 40 years only, but the tribunal committed error in holding that age of the deceased was 45 years and applied multiplier of 6 only, which should have been at least 15. It is also submitted that the tribunal has committed illegality in not considering the future prospects of the income of the deceased.
10. I considered the rival submissions. It is clear from the facts that the appellant Oriental Insurance Co. Ltd. though took a defence that the accident did not occur within the private place, but did not produce any evidence to prove the fact and even did not put any question to the claimant Motilal in cross-examination that the area where accident took place was not public place and confined their cross-examination by asking whether the accident occurred in the mining area or not. It cannot be presumed that the mining area was not public place. Witness AW-2, the Mining Engineer of the Hindustan Zinc Ltd. was also examined, was stated that the accident took place in the Khuteta Mining area. No suggestion was given to this witness also that the said area was private area and not the public place. No witness on behalf of the appellant Oriental Insurance Co. Ltd. was examined to prove the fact that accident occurred in any private area. The tribunal also held that there is no evidence on record to prove that the said area was private area. Therefore, in view of the above reasons there is no illegality in the finding recorded by the tribunal that the non-claimants including appellant failed to prove that accident occurred in any private area.
11. I found substance in the submission of learned counsel Sh. R.K. Mehta that the tribunal has misread the documents produced by the United India Insurance Co. Ltd. and committed illegality in holding that the risk of the employees of the Hindustan Zinc Ltd. was not covered by the United India Insurance Co. Ltd. It appears that the insurance policy Ex.D/1 was produced by the United India Insurance Co. Ltd. Interestingly, the exhibit has been marked at page No. C-13/5, which is neither original nor certified to be true and correct copy of the original nor it bears the signature or seal of the United India Insurance Co. Ltd. or its officer. This Ex.D/1 is photostat copy containing general terms and conditions of insurance, but interestingly, even name of Hindustan Zinc Ltd. is not mentioned over any of the page of Ex.D/1. It contains no seal or signature of Hindustan Zinc Ltd. or its officer. It appears that the Ex.D/1 is a performa of conditions of policy only and not a document having any relation with Hindustan Zinc Ltd.
12. There are three pages in the file above the Ex.D/1. These three documents are, first described as 'endorsement No. 140900/44/3/. ....... ./91' with remarks of 'Attached to Policy No. 140900/44/008/90' and second, the copy containing the heading 'Contractors Plant & Machinery Insurance Policy Schedule' and 3rd document is 'the annexure to be attached with the policy No. 140900/44/008/90 A/c M/s. Hindustan Zinc. Ltd., Udaipur'. All these three documents bears the seal of United India Insurance Co. Ltd. with initials. Why these three documents were not even tendered in evidence and only the document, which bears no signature, seal and even name of the insured are only tendered in evidence, has not been made clear by the United India Insurance Co. Ltd.
13. Not only above, but there are three pages in the record of the tribunal just after the Ex.D/1 (photo copy of the papers). They are printed letter head of United India Insurance Co. Ltd. The alleged endorsement, which was relied upon by learned counsel for the United India Insurance Co. Ltd. and believed by the learned tribunal is typed on the letter head of United India Insurance Co. Ltd. and bears the signature on the last page. This three pages document on the letter head of the United India Insurance Co. Ltd. is said to be the endorsement for extending the policy of insurance in dispute and on the basis of which, the United India Insurance Co. Ltd. submits that the United India Insurance Co. Ltd. is not liable to cover the risk of the employees of the M/s. Hindustan Zinc Ltd.
14. From the above facts, it is clear that what has been exhibited by the United India Insurance Co. Ltd. is only bunch of papers of photostat copy of conditions of the policy containing no mention that this was the part and partial of the cover note or insurance policy issued by the United India Insurance Go. Ltd. and it has any relation with the Hindustan Zinc Ltd. The documents, which were placed on record and lying in the file above the insurance policy and referred above, disclose that at page 2 period of insurance is given from 7th July, 1990 to 6th July, 1991 and the accident occurred on 13th Oct., 1990 within this period. The third page, 'annexure attached to the policy' referred above contains a specific endorsement of charging additional premium of Rs. 1250/- to cover risk of third party. Therefore, it is clear from the documents already available on record containing the signature and seal of the United India Insurance Co. Ltd. that the dumper was insured to cover the third party liability and the United India Insurance Co. Ltd. charged the premium separately for covering the liability of third party. Even if, three pages above the Ex.D/1 not tendered in evidence are excluded from the evidence, fact of insurance of dumper by the United India Insurance Co. Ltd. is an admitted fact and burden is upon to the Insurance Company to prove that still the Insurance Company is not liable to reimburse the claim.
15. Next to find out whether the liability of employees of insured in this case was proved by the United India Insurance Co. Ltd. to be excluded specifically, the tribunal relied upon the document placed on record by the insurance company as referred above containing the heading 'Endorsement for Extending The Policy To Cover TPL:'. As mentioned above, this endorsement for extending the policy is on the letter head of the insurance company and sought to be used for saying that as per the Clause (B) contained in this document, the liability of the employees of the owner of the vehicle are specifically excluded from the policy. This document was misread by the tribunal is apparent because of the reason that accident occurred on 13th Oct., 1990 whereas the letter pad itself was printed in the month of Jan., 1992, which is clear from the printing at the bottom of all the three sheets of the letter head. Therefore, the said endorsement in dispute cannot have any relation with policy of the year 1990- 91 because the letter head itself was printed in the year 1992.
16. Not only this, but the alleged endorsement is void as the document has been materially altered. The interpolation in the document, that too, for material particular is apparent from the alleged endorsement itself. In the third typed line, the year of the endorsement year from '1992' has been changed to '1990' by ink is clearly visible. This interpolation is further exposed from the second line of this document, which says 'attached to and forming part of the policy No. 140900/44/0008/92'. There could have been no endorsement in the year 1990 for the policy of the year' 1992'. Therefore, the learned tribunal by misreading the alleged endorsement document relied upon the condition (B) mentioned on the letter head of the United India Insurance Co. Ltd. and exonerated the United India Insurance Co. Ltd. from the liability. Hence, the finding of the tribunal exonerating the United India Insurance Co. Ltd. from the liability is set aside.
17. It will be worthwhile to mention here that it was the United India Insurance Co. Ltd. who took the defence was supposed to produce the complete policy with conditions on the basis of which the United India Insurance Co. Ltd. could have claimed protection against the liability, but not only they failed but they tried to mis-led the tribunal. The interpolation is conspicuous because the typed year of the endorsement has been changed from the year 1992 to the year 1990, but the person doing the interpolation failed to notice that the letter pad itself was printed in the year 1992 and further failed to take note that policy itself contains 'No. 140900/44/0008/92' representing the issue of the policy in the year 1992. This document containing three letter heads of the United India Insurance Co. Ltd., bears the signature of the Sr. Divisional Manager (on the last page) whereas for the reason best known exhibit has been marked only on the bunch of the papers, which are photostat copies of the general conditions of the insurance, i.e., 'Contractor's Plant & Machinery Insurance Policy conditions' and in entire Ex.D/1 except in the three pages above Ex.D/1 and three pages after Ex.D/1, there is no mention of even Hindustan Zinc Ltd. in the Ex.D/1. Therefore, in fact, there is no evidence in the eye of law to prove that respondent did not cover the risk of third party rather it is proved that premium was charged by the United India Insurance Co. Ltd. to cover the risk of third party. In fact three documents above the Ex.D/1 and three pages below the Ex.D/1 are no evidence in the eye of law. Ex.D/1 is absolutely irrelevant. The vehicle was insured by the United India Insurance Co. Ltd. is an admitted fact. There is no evidence on record in proof of contention of the United India Insurance Co. Ltd. that third party risk was not covered by them or liability is limited one. Therefore, it is held that the United India Insurance Co. Ltd. is liable jointly and severally with the insured.
18. There is a categorical finding of the tribunal that accident was caused by rash and negligent driving of the dumper, then there was no reason for the tribunal to hold the Oriental Insurance Co. Ltd. liable for the award amount.
19. So far as appeal of the Hindustan Zinc Ltd. is concerned, learned counsel for the appellant could not even dispute that Bhanwarlal died in the accident and the Hindustan Zinc Ltd. is the owner of the Jeep as well as the dumper. The Hindustan Zinc Ltd. tried to assail the quantum but it appears that the compensation awarded to the claimant were neither adequate at the time when award was passed nor it can be justified now. The tribunal held that the deceased was getting salary of Rs. 5197.65/-, but deducted Rs. 2197.65/- as this was the amount, which in the opinion of the tribunal, would have been necessary for the use of the deceased himself. Therefore, the dependents, who are mother and father of the deceased were held entitled for compensation of Rs. 36,000/- per year. The tribunal ignored the future prospects of earning of the deceased. The tribunal also applied the multiplier of 6 only holding that the mother of the deceased has already died and father of deceased is of the age of 60 years.
20. According to learned counsel Sh. R.K. Mehta the maximum multiplier can be applied as per the schedule attached to the Motor Vehicles Act, 1998, which is 18, but in the case of the claim of the parents, the multiplier is to be applied according to the age of the claimants and not according to the age of the deceased. Be that as it may, the fact is that the accident occurred in the year 1990. The tribunal passed the award in the year 1996 applying the multiplier of 6, which is apparently wrong because by that time, the father of the victim already survived for 6 years and, therefore, the tribunal should have assessed the life of the father of the deceased for some more years. It is not in dispute that the father of the deceased is still alive and more than 13 years have already passed, therefore, the multiplier in the present facts of the case, required to be applied, is at least 13 in place of 6.
21. Taking the income of the deceased as Rs. 5200/- per month in round figure in place of Rs. 5197.65/-, if we add 1/3 of the income as future prospects of earning of the deceased, the same amount can be reduced as the reasonable expenses, which the deceased would have incurred for himself, therefore, the total loss caused to the dependent comes to Rs. 62400/- and by applying the multiplier of 13 the total loss caused to Rs. 8,11,200/-. Therefore, the claimant-father of the deceased is entitled for compensation of Rs. 8,11,200/-, which is rounded to Rs. 8,11,000/-, against the claim of Rs. 2,61,000/- as awarded by the tribunal. The rest of the amount awarded by the tribunal appears to be just and proper.
22. In view of the above discussion, The Oriental Insurance Co. Ltd. v. M.L. Khuteta and Ors. (1), is allowed and it is held that Oriental Insurance Co. Ltd. is not liable to reimburse any amount of claim and Hindustan Zinc Ltd. v. M.L. Khuteta and Ors. (2), is dismissed. M.L. Khuteta and Anr. v. Hindustan Zinc Ltd. (3), in S.B. Civil Misc. Appeal No. 219/1997 is allowed and the award dated 8th April, 1996 is modified and it is held that the respondent No. 1 is entitled for Rs. 8,11,200 (+10000 + 30,000 + 5,000 as awarded by the tribunal in other heads), total amount of Rs. 8,56,200/-. Rs. 25,000/- has already been paid against the interim award is to be adjusted in the above claim. The claimant shall be entitled for the interest @ 9% per annum on the enhanced amount from today. No order as to costs.