Goa Chitrapur Bus Service vs Jayant Gajanan Naik and others

Couto, J.—This appeal by the owners of a vehicle is directed against the award dated June 24,1985, passed by the Motor Accident Claims Tribunal,South Goa.

On january 6, 1981, an accident took place involving bus No. GDT 2433. Respondent No. 1 herein who was travelling in that bus got injured in the said accident and, therefore, he filed an applications for compensation u/s 110A of the Motor Vehicles Act, 1939. He claimed a compensation of Rs. 55,000. His case was that the said bus was proceeding form panjim to Margo and when it reached Farmaguidi near a turn of the road at about 8.15 p.m., respondent No. 3, who was driving the said vehicle in a rash and negligence manner, tried to overtake another bus which was ahead and in the process dashed against a minibus which was coming from the opposite direction. As a result of the impact the bus GDT 2433 went off the road and fell in a valley, causing injuries not only to respondent No. 1 but also to other passenger in the same bus. The learned presiding officer of the Tribunal held that, in fact, the accident had occurred due to the rash and negligent driving of the bus by respondent No.3 and considering the special and general damages, awarded compensation of Rs. 38,000 to respondent No.1 and directed that this compensation that this compensation be paid jointly and severally up to Rs. 5,000 by the appellant and respondents Nos. 2 and 3 . He further directed that the balance amount was to be paid by the appellant and respondent No.3 with interest at the rate of 6 per cent. per annum form the date of the claim till its complete satisfaction. In addition, he also awarded costs of Rs. 500 in favour of respondent No.1.

Though duly served, none of the respondents put in appearance at the hearing of this appeal nor had they been represented. Hence, the appeal was heard on merits.

Mr. M.M.Rao, learned counsel appearing for the appellant, restricted his attack only to the quantum of compensation awarded and to the part of the award restricting the liability of the insurance company to Rs. 5,000 only. He contended that the compensation is excessive and the grounds given by the Tribunal to arrive at the figure of Rs.38,000 are not sufficient to justify such compensation. As regards the liability of the insurance company, learned counsel urged that, the matter has been laid to rest by the decisions of this court in Shivahari Rama Tiloji and another Vs. Kashi Vishnu Agarwadekar and others, and in National Insurance Co. Vs. Smt. Deepathumma Alias Beebi and others, .

The learned Tribunal awarded compensation of Rs. 38,000 in favour of respondent No.1 considering the case of general and special damages. He awarded an amount of Rs. 2,500 on account of treatment and other sundry expenses that were incurred by respondent No.1 on account of the accident. He further awarded an amount of Rs. 15,000 on account of the disability sustained by the first respondent. So also, he granted another amount of Rs. 15,000 in lieu of the discomfort and inconvenience suffered ny the first respondent as a result of which he was unable to lead a norm,al life. In addition to this amount, he also granted Rs. 10,000 on account of the fact that the first respondent was incapacitated to leads his normal life for a substantial period of time after the accident. However, considering that the said amounts were to be paid in lump sum, he reduced the said amounts by 10 per cent. bringing the compensation to be awarded to Rs. 38,000 only. though it may appear that there is some overlapping while granting the compensation on some of the heads, the fact remains that as a result of the accident, respondent, respondent No. 1 sustained injuries, viz., fracture of one of the arms necessitating an operation and a period of about six month for recovery. I do not think that the compensation awarded is excessive and I see no reasons to interfere with it.

As regard the liability to the insurance company, the learned Tribunal restricted the liability to Rs. 5,000 per passenger. This part of the awarded cannot be sustained. This court had, in fact, held in kashi Vishnu Agarwadjar''s Case (1985) Mh LJ 22 (1986) 60 Comp Cas 682 , that in view of the provision of section 95(2)(b)(ii)(4) of the Motor Vehicle Act, an insurance policy covers only a liability in respect of any one accident upto the prescribed limit and that it is apparent that there are two kinds of limits, one as regards the main and overall liability and the other being the one prescribed in sub- clauses (4). The court further held that the second limit postulated in sub-clause (4) is clearly subordinate to the overall limit and the effect of such subordination is that the liability of the insurer will not go, in any eventuality, beyond the overall limit and thus, the subordinate limit prescribed in sub-clauses (4) comes into operation only where there is more than one passenger who was a victim of the accident. This limit was prescribed to facilitate their apportionamend of compensation among the various victims of an accident up to the over all limit of the liability of the insurer and that considering the compulsoriness of the insurance, the subordinate limit was established in order to fix a minimum limit of liability which must be covered by the insurer. The view taken by the single judge in Shivahari Rama Tiloji and another Vs. Kashi Vishnu Agarwadekar and others, was approved by the Division Bench of this court in Deepathumma''s case (1986) ACJ 520; (1987) 61 Comp Cas 537 . Again, the same view was followed by another Division Bench of this court in First Civil Appeals Nos. 46, 47,50 and 51 of 1985, the judgment having been delivered on January 19, 1987 United India Insurance Co. Ltd. Vs. Antonetta D'' Souza and others, . These learned Tribunal, however, did not follow the said judgment and, consequently, the impugned award is to modified in that respect.

The result is that this appeal succeeds and, consequently, the impugned award is modified inasmuch as the liability of the insurance company is held to be up to the outer limit given in the insurance policy. Thus, if there are no other claimants for compensation on account of the said accident, the whole amount of compensation awarded by the Tribunal is to be paid jointly and severally by the appellant an respondents Nos. 2 and 3. Costs by the respondents.