N.M.KASLIWAL,J. - (1.) BRIEF facts of the case are that on September 2, 1969, Kulwant Singh (deceased) was going on scooter at about 2.30 p.m. from Moti Doongri Road towards Police Memorial in Jaipur City and as soon as he reached near Police Memorial one truck No. R.J.R. 2825 struck the scooter. On account of the accident Kulwant Singh fell down and received serious injuries. Kulwant Singh was admitted in SMS hospital and after remaining there for 26 days he succumbed to the injuries. Smt. Mahendra Kaur w/o Kulwant Singh and 7 daughters filed a claim petition on October 31, 1969 claiming a sum of Rs. 2 22,300/ -. It was alleged in the petition that Kulwant Singh was carrying on transport business and was earning Rs. 1,000/ - p.m. An amount of Rs. 200 has been spent by Kulwant Singh on himself and the rest used to be spent on the claimants. Shri Kulwant Singh at the time of accident was 45 years old.
(2.) THE claim petition was contested by Shri Shaukat -Ali owner of the truck, Amir Shah driver of the truck as well as by the Northern India Genegal Insurance Company Ltd., insurer of the truck. The tribunal framed the following issues on the basis of the pleadings of the parties: 1. Whether the accident, causing the death of Kulwant Singh on 2 -9 -69 at about 2.30 p.m. arising out of the use of the truck No. RJR 2825, took place in the manner described in the petition ? 2. Whether the truck No. RJR 2825 was being driven by the respondent No. 2 Amir Shah rashly and negligently on account of which the accident took place? 3. Are the claimants entitled to claim Rs. 2,22,300 as detailed in para 10 of the petition and from whom? 4. Relief? In view of the fact that no evidence was led on behalf of the claimants, the petition was dismissed on February 21, 1972. On appeal the High Court by judgment dated July 30, 1982 set aside the order of the tribunal and remanded the case for giving fresh opportunity for evidence to the claimants. After remand Smt. Mohinder Kaur, Harjit Singh, Karey Singh and Pooran Singh were examined on behalf of the claimants. On behalf of the non -petitioners only statement of Amir Shah driver of the truck was recorded. Learned tribunal under Issue No. 1 held that the death of Kulwant Singh resulted on account of the above accident having taken place on September 2, 1969. Under Issue No. 2 it was decided that the respondent No. 2 Amir Shah was driving the truck rashly and negligently on account of which the accident took place. Under Issue No. 3 the tribunal held that the income of Kulwant Singh was Rs. 800/ - p.m. out of which one -third of the amount was considered as having been spent on Kulwant Singh himself. The family was thus held as having the benefit of Rs. 550/ -per month. Treating the age of Kulwant Singh as 45 years & multiple of 10 years was taken into consideration and thus the claimants were entitled to an amount of 550 x 12 x 10: Rs. 66,000/ - under this head. Rs. 3,000/ -were allowed towards the expenses incurred in the treatment as claimed by the petitioners. Out of the claim of Rs. 10,000/ - on account of mental shock, the tribunal awarded a sum of Rs. 5,000/ - in all to all the claimants. Under the head of Rs. 20,000/ - claimed on account of future loss and untimely death, learned tribunal did not allow any compensation. Asa result of the above finding, learned tribunal awarded a total sum of Rs. 74,000/ - as compensation to the claimants. Interest @ 6% per annum was awarded from April 30, 1970 in case the amount was paid within one month otherwise interest was allowed @ 12% per annum from the date of the award. The non -petitioners were made liable to pay the award jointly and severally. It may be mentioned at this stage that the insurer Northern India General Insurance Co. Ltd., subsequently merged in the New India Assurance Co. Ltd., and as such the New India Assurance Co. Ltd. was substituted in place of Northern India General Insurance Co. Ltd. and the award was passed against the New India Assurance Co. Ltd. as insurer. S.B. Civil Miscellaneous Appeal No. 76/1986 has been filed by the New India Assurance Co. Ltd., while S. B. Civil Miscellaneous Appeal No. 144/1986 has been filed by the claimants. Both the appeals are disposed of by one single order as they arise out of the same accident and the same judgment of the tribunal.
(3.) I shall first deal with the appeal filed by the New India Assurance Co. Ltd., Jaipur. It was contended by Mr. Lodha, learned Counsel for the appellant, that the liability of the appellant was only upto Rs. 20,000/ -which was the maximum statutory liability at the relevant time. It was submitted that the tribunal wrongly drew an adverse presumption against the insurer for not producing the insurance policy. It was submitted that in the absence of producing the policy the liability of the insurer could not have exceeded more than the statutory liability as fixed under Section 95 of the Motor Vehicles Act, 1939. It was also submitted that in the year 1969 when the accident took place the policy was issued by Northern India General Insurance Co. Ltd. which later on merged in the appellant New India Assurance Co. Ltd. and the record of the policy was not available with the appellant and as such the same could not have been produced. Mr. Lodha in support of his contention placed reliance on Smt. Sampat Lal v. Smt. Geeta Devi and Ors. 1985 RLR 1052 and Automobile Transport Rajasthan v. Devi Lal 1976 WLN 783.;