K.K. JaIn and anr. Vs. Smt. Masroor Anwar and ors. - Court Judgment

B.C. Varma, J.

1. The'order in this appeal shall also dispose of Miscellaneous Appeal No. 49 of 1981 (The Oriental Fire & General Insurance Company Limited, New Delhi, v. Smt. Masroor Anwar and Ors.) and the cross-objection filed in Miscellaneous Appeal No. 49 of 1981.

2. One Anwar Hussain was employed as technician in Bhilai Steel Plant. On 31-5-1976 at 11.00 A.M., he was proceeding on a bicycle towards Central Laboratory within the precinct of the plant. At the same time, Dumper No. 5 driven by Shri Rajendran and owned by Bhilai Construction Company of which Vinay Engineering Company appears to be a unit, was proceeding in the same direction. The two dashed knocking down the cyclist, viz., Anwar Hussain, who was immediately removed to the plant hospital where he was treated for his injuries for quite sometime before he succumbed to those injuries on 21-7-1976 in the hospital itself. The parents of the deceased then moved the Commissioner, Workmen's Compensation for award of compensation resulting from the death of 'worker' Anwar Hussain and mentioned in the petition that Anwar Hussain has left his widow and children. The employer paid Rs. 10,000/- as ex-gratia payment to the widow of the deceased. Some amount was also deposited with the Commissioner, Workmen's Compensation. The Commissioner issued notices to the claimants. The claimants, however, did not appear before the authority and, therefore, the matter before the authority rested at that. At the same time, the widow and daughters of Anwar Hussain with whom joined Anwar Hussain's father Ibrahim Hussain and mother Smt. Aziza Begum, filed a claim before Motor Accidents Claims Tribunal- for payment of compensation arising out of death of Anwar Hussain. His father Ibrahim Hussain has since expired. The claimants alleged that the dumper was being driven rashly and negligently by Rajendran and dashed against the cycle causing fatal injuries to Anwar Hussain. The driver as also the owner were, therefore said to be liable to pay compensation to the dependents of the deceased Anwar Hussain. It was alleged that at the time of death, Anwar Hussain was 29 years of age and would have lived long. He would have risen to the post of Foreman before he could retire on attaining the age of 58 years. In view of his salary and the possibility of rise in the salary during his service career, a sum of Rs. 4,08,440/- was claimed under different heads. Since the dumper was insured with the Oriental Fire & General Insurance Company (appellant in Miscellaneous Appeal No. 49 of 1981), the Insurance Company was also made liable for compensation.

3. Separate set of written statements were filed. The stand on behalf of the driver and the owner of the dumper had been that it is the deceased who emerged from a side road on the cycle driving it negligently and unmindful of the dumper. The dumper was moving on the street at a very moderate speed and the cyclist, viz., Anwar Hussain, dashed against the dumper. Negligence of the Rajendran in driving dumper was completely denied and instead the boot is said to be on the other leg. Alternatively, the plea of contributory negligence has also been raised. Dumper is said to be not a goods vehicle and, therefore, is alleged to be out of the purview of the Motor Vehicles Act. Yet another plea raised is that since the claimants have chosen to prefer a claim before the Commissioner, Workmen's Compensation, under the Workmen's Compensation Act, their claim before the Accidents Claims Tribunal under Section 110-A is not maintainable. The amount of compensation claimed is said to be highly excessive. It is said that the amount of Rs. 10,000 /- obtained by the claimants as ex gratia payment from deceased Anwar Hussain's employer should be set off against the amount that may be assessed as compensation by the Claims Tribunal. The Insurance Company is said to be jointly liable to all the amount of compensation which the Tribunal may adjudge as payable by the driver and the owner of the vehicle.

4. The insurer, viz., the Oriental Fire & General Insurance Company has denied its liability completely. At the Bar before us, Shri P. C. Naik, learned counsel for the Insurance Company, also urged that if the Insurance Company is ultimately held liable, the liability cannot extent beyond the sum of Rs. 50,000/- in terms of Section 95(2)(a) of the Motor Vehicles Act, dumper being a 'goods vehicle' within the meaning of Section 2(viii) of the Act.

5. The Claims Tribunal after affording the parties opportunity to lead evidence has held the driver of the dumper negligent. Consequently, the driver and the owner of the dumper have been held liable for compensation resulting from death of Anwar Hussain. A sum of Rs. 1,49,000/- has been awarded as compensation. Out of this amount, a sum of Rs. 49,400/- has been made payable in equal share to the deceased's father Ibrahim Hussin and Smt. Aziza Begum being mother of the deceased. The Tribunal has awarded no interest on this amount of compensation. The Insurance Company has been made jointly liable for the entire amount of compensation awarded.

6. Miscellaneous Appeal No. 49 of 1981 by the Insurance Company is to exonerate it completely or to fix the limits of its liability not beyond Rs. 50,000/-. The owner of the vehicle, viz., Shri K. K. Jain and Shri V. K. Jain, Proprietors of Vinay Engineering Company, have filed appeal, Miscellaneous Appeal No. 15 of 1981 for dismissal of the entire claim and the claimants have filed cross-objection for enhancement of compensation awarded.

7. We will take up the question of tenability of claim petition before the Motor Accidents Claims Tribunal first. This attack is to the tenability of the claim petition is based upon Section 110-AA of the Motor Vehicles Act which provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, the person entitled to compensation may, without prejudice to the provisions of Chapter VII-A, claim such compensation under either of those Acts but not under both. The plain terms of this provision indicate that where a person by reason of the death or bodily injury to any person is entitled to claim compensation under the two enactments, he has to prefer either of the two and and the claim for compensation cannot be made in both the forums. Choice between these two courses is permissible and the claimant is left free to prefer either of the two forums. Such a situation may arise only when by nature of the death or bodily injury the claim for compensation arising out of such death or bodily injury can be entertained under both the Acts. But when such a claim can be laid only before either of the two Tribunals, Section 110-AA is not attracted at all. The non obstante clause with which this section begins clearly indicates that the provisions have to be given effect to notwithstanding anything contained under the provisions of Workmen's Compensation Act. The bar created is to the making of the claim irrespective of the person or persons who are sought to be made liable. The plain terms of this section do not permit interpretation that if the claim is to be made against different persons although arising out of the same accident the bar may not be operative. What is prohibited is making of a claim in both the forums if the claim arises out of death of or bodily injury to any person. As a necessary corollary, it would follow that when a person entitled to lay a claim on account of death of or bodily injury to any person makes a claim under the Workmen's Compensation Act as also under the Motor Vehicles Act, they both cannot proceed and only one would be tenable. The claimant can at any stage before adjudication of the claim exercise the choice of abandoning a claim in one forum and may prosecute it in the other. The choice so permissible to a claimant can well be exercised before the claim is adjudicated. In the present case, the document filed shows that the parents of the deceased Anwar Hussain applied before the Commissioner, Workmen's Compensation for awarding compensation on account of the death of Anwar Hussain. The authorities of the Bhilai Steel Plant (the employer of the deceased) also deposited certain sum before the Commissioner, Workmen's Compensation. The claimants in these proceedings did not draw a penny out of the amount so deposited nor did they appear before that authority to press any such claim. Instead, we find in the evidence of Ibrahim Hussain (A.W. 3) that the claimants were not accepting the amount deposited with the Commissioner, Workmen's Compensation. This indicates that the proceedings before the Commissioner, Workmen's Compensation were not pursued by Ibrahim Hussain much less by the widow of the deceased. Those proceedings have been expressly abondoned by the claimants. We are, therefore, of the opinion that the claim petition before the Motor Accidents Claims Tribunal under the Motor Vehicles Act was tenable. In this view of the matter, we need not consider the arguments advanced on behalf of the claimants that the deceased was not a 'workman' and, therefore, the provisions of the Workmen's Compensation Act are not attracted in the present case.

8. We now proceed to examine whether both, i.e., the driver of the dumper and the cyclist, viz., the deceased Anwar Hussain, or which of the two was negligent in driving the respective vehicles. It may be remembered that while the claimants attribute negligence and rash driving of the dumper to its driver Rajendran, the owners of the dumper accuse the cyslist, i.e., the deceased Anwar Hussain as negligent. While considering such a problem, the versions of person causing the injury and the person sustaining the injury, if available, assume importance. It is these respective versions which may need further corroboration and the extent and nature of such corroboration may depend upon circumstances of each case. It is only when such version is not available because of death or any other circumstances, that circumstantial evidence and subsequent conduct assume some importance. Suppression of these versions must be seriously taken and all adverse inference must be drawn against the party guilty of such suppression. In the instant case, it immediately draws one's attention that Shri Rajendran, driver of the dumper, who was even made a party to the claim petition, and in the employment of the owners of the dumper, has no, been examined. No reason has been assigned for his non-examination as a witness. It is he who could well have testified the plea raised in defence to the action that the deceased drove the cycle negligently and dashed it against the dumper. Whether or not the dumper was driven cautiously and all attempts were taken to avert such accident could have been deposed to only by Shri Rajendran, the driver himself. Withholding of such evidence permits one to draw all adverse inferences against the driver on this issue. At the same time, we have on record through the evidence of the claimants Smt. Masroor Anwar, the widow of the deceased, that when the deceased after three days of the incident regained consciousness, he told her that while he (the deceased) was proceeding to the Laboratory on his bycycle, the dumper came from behind and dashed against his cycle. Needless to say that in the hands of the adversary is the weapon of cross-examination to test the truthfulness of the statement made by a witness in examination-in-chief. If a witness, therefore, is not cross-examined on any material point deposed to by him in examination-in-chief, the necessary inference is that the adversary does not mean to challenge that version given by the witness in examination-in-chief. In that event, the version so given by the witness in examination-in-chief must be accepted as truthful. This is what has exactly taken place in the present case. The statement of Masroor Anwar, referred to above, has not been challenged in the cross-examination. That version, therefore, has to be taken as correct. Besides, the claimants have examined Shri I. R. Siddiqi (A.W.2) who in his deposition has given an eye-witness account of the incident. The Claims Tribunal has not placed much reliance upon testimony of this witness, Siddiqi, because of a few contradictions appearing in his testimony. At the same time, the owners of the vehicle have also examined one Shrikumaras D.W.1. This witness also claims to be an eye-witness of the incident. Apart from being the employee of the owners of the dumper, this witness appears to be a got up witness. His deposition does not inspire confidence. It is significant that this witness has admitted that in the criminal court Rajendran admitted his guilt and he was fined. He has not even deposed to about the non availability of Rajendran. One fails to see why the owners have introduced their other employee instead of examining Rajendran himself. This renders it difficult to accept his testimony. Be that as it may, the unchallenged testimony of Masroor Anwar (A. W. 1), the widow of the deceased, as referred to above, coupled with the non-examination of Rajendran, the driver of the dumper, renders testimony of Siddiqi and Shrikumar entirely insignificant and lend all support to the finding of the Claims Tribunal that it was Rejendran who was driving the dumper rashly and negligently. In the light of the evidence that we have discussed above, no much weight can be attached to a few circumstances which Shri Rajendra Tiwari, learned counsel for appellants in Miscellaneous Appeal No. 15 of 1981 by owners of the dumper, pressed in support of his contention that it is the deceased who had been negligent or at least was guilty of contributory negligence. We, therefore, uphold the finding of the Claims Tribunal that the accident resulting in death of Anwar Hussain was caused due to rash and negligent driving of the dumper by Rajendran who at the relevant time was the employee of the appellants in Miscellaneous Appeal No. 15 of 1981 (the owners of the dumper).

9. This now takes us to the assessment of compensation and ascertainment of persons to whom it is payable. Section 110-B of the Motor Vehicles Act provides that on receipt of an application under Section 110-A, the Claims Tribunal shall determine the amount of compensation which appears it to be just and also specify the person or persons to whom the compensation shall be paid. It further casts a duty upon the claims Tribunal to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. The use of the word 'just' in Section 110-B quite widely enlarges the scope of inquiry. In case of death of an earning member of a family, the method of determining the amount of compensation payable to his dependents has come up for consideration quite often before the Courts and may now be taken as more or less settled. A Divisipn Bench of this Court in Kamla Devi v. Kishanchand, 1970 MPLJ 273 : (AIR 1970 Madh Pra 168), observed that in case of fatal accident arising out of use of motor vehicle only such compensation can be awarded which bears due relations to the loss sustained by the dependents and/or which is admissible to the estate of the deceased under the Fatal Accidents Act. The Courts while assessing damages in such cases should first find out the income of the deceased and estimate how much of it he was spending on himself leaving the balance for his family. Clearly, contribution so calculated shall form the basic figure which is to be turned into a lump sum by multiplying it by the number of years that dependency might be expected to last. The lump sum payment, the possibility of the period of dependency being cut short either on account of the remarriage of the widow or on account of unfortunate premature death shall necessitate reduction in the figure so arrived at. 'Number of years purchase, i.e., multiplier, then has to be worked out taking into account of consideration for the reduction of the sum to be awarded. Anticipated future variatios in income should also be taken into account. As the damages awarded arc to represent the balance of loss and gain to a dependent, the assessment has to take notice of the pecuniary benefits arising by reason of the death. This may be done by deducting the value of the acceleration of the estate of the deceased from the damages assessed or by reducing the figure of annual dependency or the number of years purchases. Thus, the assessment in these cases resolves into estimating the proper annual dependency - the multiplicant and selecting the number of years' purchase the multiplier. In arriving at these conclusions, the Division Bench made reference to and applied the dictum in Davies v. Powell Duffrin Associated Collieries Ltd. (1942) I All ER 657 and Nance v. British Columbia Electric Railway Co. Ltd. (1951) 2 All ER 448. Reference has also been made to the decision of the Supreme Court in Gobald Motor Service v. Veluswami, AIR 1962 SC I. The principle has been reiterated by this Court in Chaurasia and Co., Chhalarpur v. Pramita Rao AIR 1975 Madh Pra 31 and State of M.P. v. Davi Rawat 1981 Jab LJ 42: (AIR 1981 Madh Pra 173). In the latter decision, the Court also took notice of two more decisions of House of Lords, in Mallett v. Mc. Mohagle (1970) AC 166 and Taylor v. O'Connor, (1971) AC 115. The Court also pointed out that the Supreme Court in M.P. S.R.T. Corporation v. Sudhakar (AIR 1977 SC 1189), approved the method of assessing damages by finding out the amount of annual dependency, i.e., the multiplicant, and the number of years purchase, i.e., the multiplier. The Court also pointed out that this method was further approved by House of Lords in Cookson v. Knowles (1978) 2 All ER 604. It will be useful to quote the following observations in Davi Rawat's case (AIR 1981 Madh Pra 173) (supra) which has noticed certain modification in the method of assessing damages suggested in Cookson's case (supra) (at pp. 176-177 of AIR):

'The object in assessment of damages is to find out the capital sum required to purchase an annuity of an amount equal to the annual value of the benefits with which the deceased had provided the dependents while he lived and for such period as it could reasonably be estimated they would have continued to enjoy them but for his premature death. Such a capital sum is expressed as the product of multiplying an annual sum which represents the dependency by a number of years' purchase. This latter figure is less than the number of years which represent the period for which it is estimated that the dependents would have continued to enjoy the benefit of the dependency, since the capital sum will not be exhausted until the end of that period and in the meantime so much of it as is not yet exhausted in each year will earn interest from which the dependency for that year could in part be met : Cookson v. Knowels (supra). The House of Lords in Cookson v. Knowles (supra) have made one modification. The modification is that the damages should be split into two parts (a) the pecuniary loss estimated to be sustained by the dependents from the date of death until the date of trial; and (b) the pecuniary loss which the dependents would sustain from the trial onwards. This course has been suggested having regard to the practice of frequent wage increase due to inflation. In other words, the annual dependency at the trial should he fixed having regard to the increase in wages up to that dale and damages up to that date should be calculated. The annual dependency so determined has further to be used for calculating post-trial damages without taking into account the change in dependency due to inflation on the reasoning that the valuation of the annuity is made on the basis of low interest rates such as 4 to 5% and this involves a higher number of years' purchase. The capital sum so worked out is much more than what it would be at the current rate of interest and this counter-balances for future inflation.'

10. In the present case, the deceased Anwar Hussain at the time of his death was employed in Bhilai Steel Plant. The Pay-slips filed in the case show that the monthly income of the deceased was from Rs. 600/- to Rs. 700/-. His widow Mst. Masroor Anwar deposed that the deceased was getting Rs. 636/- per month. The Claims Tribunal has rightly found that one-third of this monthly income should be taken as spent by the deceased on himself. The balance, i.e., Rs. 400/ - must be taken as the amount spared for the dependents. The annual dependency would, therefore, come to Rs. 4,800/-. The deceased was aged about 29 years at the time of the accident and we can safely assume that he would have ordinarily lived up to the age of 65 years. He would have retired at the age of 58 years and could well have risen up to the grade of Forman. At the same time, the possibility of his not earning these promotions cannot be lost sight of. Widow marriage in Mohammedan family is not unknown and, therefore, one cannot rule out the possibility of Masroor Anwar remarrying particularly in view of her young age. The Claims Tribunal after taking into consideration these circumstances has find out the multiplier as twenty-eight (28). This, in our opinion, does not represent the correct multiplier. To us, this Figure appears on the higher side. In Davi Rawat's case (AIR 1981 Madh Pra 173) (supra), on a finding that the age of the deceased at the time of his death was 23 years and would have lived up to the age of 65 years, 15 was selected as number of years' purchase, i.e. multiplier. In Kamla Devi's case (AIR 1970 Madh Pra 168) (supra), in somewhat similar circumstances, the multiplier was taken as 15. In Leelabai v. Mahavir Prasad, 1983 Ace CJ 423 (Madh Pra) where the deceased was aged 24 years, the multiplier was taken as 18. Again, in Asha Rani v. Suraj Bhan, 1985 Ace CJ 574, the High Court of Punjab & Haryana adopted the multiplier as 16 where the deceased was aged 19 years and was running a cycle repairing shop and was earning Rs. 600/- per month from it. We are aware of the observations of the Supreme Court in Concord of India Insurance Co. Ltd. v. Nirmala Devi, 1980 Ace CJ 55 : (AIR 1979 SC 1666), that determination of quantum of compensation must be liberal, since the law values life and limb in free country in generous scale. At the same time, we should also bear in mind that the claimant should not be permitted to make fortune out of misfortune. In the circumstances of the case, as we have narrated above, and applying the principles laid down in various decisions of the Supreme Court and also of this Court, referred to by us above, we are of the opinion that 15 (fifteen) can be taken as just multiplier in the present case also. Thus, Rs. 4800 x 15 = Rs. 72,000/-shall be the just compensation. To this amount should be added a sum of Rs. 3,000/-for pain and suffering and loss of expectation of life, as was done in the case of Ramesh Chandra v. M.P.S.R.T. Corporation, 1982 MPLJ 426 : (AIR 1982 Madh Pra 165). Apart from this, a sum of Rs. 10,000/- which the widow of the deceased received from the employer as a consequence of the death shall be required to be deducted being an advantage acquired by reason of the death and not as voluntary payment or as charitable payment on the occasion of the death. This amount could not have been claimed until the death occurred. Such is the ratio of the decision of the Full Bench of this Court in Kashiram Mathur v. Sardar Rajendra Singh, 1983 Ace CJ 152 : (AIR 1983 Madh Pra 24). Thus, the total amount payable to the claimants shall be Rs.65,000/- (Sixty five thousand only). On this amount, the claimants are also entitled to interest in terms of Section 110-C (c) of the Motor Vehicles Act. It is now usual to award such interest at the rate of Rs. 12/- per cent per annum. (See Narchinva V. Kamat v. Alfredo Autonio Doe Martins AIR 1985 SC 1281, Smt. Chameli Wati v. Delhi Municipal Corporationof Delhi, AIR 1986 SC 1191 and Jagbir Singh v. General Manager, Punjab Roadways, AIR 1987 SC 70. In the light of these decisions, we also award interest at 12 per cent per annum on the aforesaid amount of Rs. 65,000/ - from the date of the making of the claim until satisfaction.

11. The last question which now remains to be decided in these appeals is the liability of the insurance company, appellant in Miscellaneous Appeal No. 49 of 1981, and the extent of the liability. It cannot be denied that the dumper is a motor vehicle. An attempt was, however, made to bring the dumper within the exception embodied in Section 2( 18) of the Motor Vehicles Act which defines 'motor vehicle' to mean 'any machanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a basis to which a body has not been attached and a trailer, but docs not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. 'The use of the word 'only' is significant. May be that a particular vehicle is being used only in the factory or in any other enclosed premises. It may even be that it is adapted for use only in a factory. However, if it is capable of being used as a motor vehicle outside the factory premises, the vehicle has to be held as 'motor vehicle' within the meaning of Section 2(18) of the Act. A Division Bench of the Mysore High Court in Dalmia Cements Ltd. v. R.T.O., Bellary, AIR 1970 Mys49, actually considered the case of 'Diesal Mogurt Dumpers' and held that since the dumpers could be used for carrying loads even outside the Mining area or any other enclosed premises, like any other 'goods vehicle', have to be held as 'motor vehicle' irrespective of the actual use to which they were being put. It was observed that the mere circumstances that it was not a convenient or advantageous as any other public carrier or goods vehicle, commonly used for a similar purpose outside a factory or any enclosed premises, was not sufficient to bring the vehicle within the scope of exemption. Importance was laid on the capability for use. The decision in State of Mysore v. Syed Ibrahim, AIR 1967 SC 1424, was followed. Later, the Supreme Court in Bolani Ores v. State of Orissa, AIR 1975 SC 17, pointed out that in order to be taken out-of the definition of 'motor vehicle' contained in Section 2( 18) of the Act, the vehicle should be shown to be a special type adapted for use only in a factory or in any enclosed premises. It was observed that so far as Motor Vehicles Act is concerned, the dumpers and rockers are motor vehicles which cannot be taken out of that category. We have, therefore, no hesitation in holding that the dumper is a motor vehicle within the meaning of Section 2( 18) of the Act. It cannot be denied that the dumper was adapted for use for carriage of goods. The ordinary function of the dumper is not only to extract and collect but also to carry goods. That being so, in our opinion dumper is a 'goods vehicle' as defined in Section 2(18) of the Act.

12. It was then contended though a bit hesitatingly, that the premises of the Bhilai Steel Plant are not 'public place' and, therefore, the insurance company cannot be made liable for it has insured the vehicle against any liability in respect of death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place in terms of Section95(b) (i) of the Act. Section 2(24) of the Act defines 'public place' to mean 'a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage'. This definition necessarily shows that whether a given place is a public place will depend upon the facts and circumstances of each case. The Insurance Co., although raised a plea, did not adduce any evidence in this behalf. The Claims Tribunal, therefore, has rightly held the issue as not proved. We, however, find that the dumper in question did not belong to the Bhilai Steel Plant but was owned by the Bhilai Construction Co. and it was admitted that the road, as evidence discloses, had heavy traffic on it. There is no evidence to show that there was any prohibition for a vehicle to enter on that road. The Insurance Co. has not led any evidence to show that the public could not go on that road without any hindrance or without obtaining any permission from anybody. That being so, our conclusion is that the Insurance Co. has not been able to prove that the road on which the accident took place was not a public place. This contention is, therefore, rejected.

13. From the aforesaid discussion, it is clear that the dumper is a motor vehicle and also goods vehicle. It was being used in a public place when the accident took place. It was admittedly insured with the Oriental Fire and General Insurance Co. which, therefore, is liable for compensation jointly and severally with the driver and owner of the dumper in terms of Section 95 of the Act.

14. To determine the extent of liability of the Insurance Co., reference must be made to Section 95(2) (a), as it stood, at the relevant time, and reads as follows : --

'95. Requirements of policies and limits of liabilities:

X X X X(2) Subject to the proviso to Sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely, --

(a) Where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, employees (other than the driver, not exceeding six in number being carried in the vehicle.'

Although the Oriental Fire and General Insurance Co. was made a party to the claim petition before the Claims Tribunal itself and also filed a written statement and denied its liability it terms of the insurance policy, the appellant, Shri V.K. Jain (non-applicant No. 2) before the Tribunal did not deny the fact of the vehicle being insured with the Oriental Fire and General Insurance Co. It appears that before the Tribunal, the factum of the vehicle being insured with the Oriental Fire and General Insurance Co. was not disputed and, therefore, no issue in that regard was framed by the Tribunal. The only issue framed was whether the Insurance Co. was not liable for compensation, as the accident did not take place at a public place. In the oral evidence led before the Tribunal also the witnesses did not speak about the insurance of the vehicle. At least, none of the two appellants in M.A. No. 15 of 1981 (K.K. Jain and V. K. Jain) denied the vehicle being insured. It can, therefore, be safely taken that the vehicle, causing the accident, was insured with the Oriental Fire and General Insurance Co. Never-the-less, the policy of insurance was not produced before the Claims Tribunal. The Tribunal also did not care to get the policy of insurance produced either from the owners or the insurer of the vehicle, although Section 110-B of the Act casts mandatory duty upon the Claims Tribunal to specify the amount which shall be paid by the insurer. When this Court pointed out this fact of non-production of the insurance policy to the Counsel, Shri Naik, learned counsel appearing for the insurer, made an application for production of the insurance policy. By a separate order passed on 20-9-1988, we have taken that insurance policy on record. Thereafter, we again heard learned counsel in some detail as to the extent of liability of the Insurance Co., in view of that policy. Shri Tiwari for the owner of the vehicle urged that the policy bas not been proved and in the absence of the plea of limited liability, the insurer should not be permitted to urge that its liability shall only be limited in terms of the policy. In our opinion, Shri Tiwari's contention is not sound. We have allowed that policy to be taken on record and we have pointed out earlier that the fact of the vehicle being insured was not denied by the owners. That being so, the owners must be deemed to be in possession of the policy and the same could well have been produced to demonstrate, if the terms were otherwise. In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, AIR 1988 SC 719, it was pointed out that the Insurance Co. must be directed to produce the policy for doing justice and the one, who alleges that the risk covered is unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act, must prove such an agreement. The policy must show specific terms in regard and a term as to payment of separate premium therefor. We are of the opinion that in view of the circumstances of this case, where the factum of insurance of the vehicle with the Oriental Fire and General Insurance Co. was not denied, nor was contested at any stage, the production of the policy before this Court by the Insurance Co. and withholding of a copy of the policy by the owners of the vehicle, must entitle this Court to read into the terms of the policy produced by the Insurance Co. Clearly, the policy does not indicate a contract to the contrary and making the liability unlimited beyond the terms of Section 95(2) of the Act. It may also be mentioned that at no stage did the owners plead that despite insurance and the terms of the policy, the liability of the Insurance Co. was unlimited. That being so, in the face of the provisions contained in Section 95(2) of the Act, the liability of the insurance company cannot extend beyond Rs. 50,000/-. This was so held by the Supreme Court in British Indian General Insurance Co. Ltd. v. Maya Banerjee, 1986 Ace CJ 946 : (AIR 1986 SC 2110. We, therefore, record a finding that the liability of the insurer, Oriental Fire and General Insurance Co., does not extend beyond Rs. 50,000/-.

15. The evidence discloses that at the time of death of Anwar Hussain, his father Ibrahim Hussain, was an earning member and used to support his wife, i.e. the mother of the deceased. These two persons, therefore, were not then dependent on the deceased and, therefore, cannot be held entitled to any amount out of the compensation determined. In our view, the Claims Tribunal has committed an error in setting apart certain amount out of the compensation money to be paid to these persons. According to us, the only persons entitled to receive the compensation determined by us are the widow, Mst. Masroor Anwar and children, Ku. Shehba and Ku. Mariya, the daughters of the deceased. The eitire amount of compensation shall be paid to them. Out of this amount, an amount of Rs. 20,000/- with interest shall be paid to the widow Masroor Anwar, while the remaining amount shall be kept in deposit in the names of the two daughters, to be withdrawn by their guardian, at the moment, mother Masroor Anwar, at the time of their marriage or at any time when genuinely required, with the permission of the Claims Tribunal.

16. Both the appeals are thus allowed to the extent indicated above. The award of the Claims Tribunal shall be reduced to Rs. 65,000/-. The cross-objection is dismissed. This amount shall carry interest at 12 per cent per annum from the date of making of the application before the Claims Tribunal until payment. Costs of these two appeals shall be borne as incurred. Costs before the Claims Tribunal shall be paid by the owners of the dumper, viz. Shri K.K. Jain and Shri V.K. Jain.