Oriental Insurance Co. Ltd. vs Durga Devi and Others <BR> Durga Devi and Others Vs Oriental Insurance Company Ltd.

M.M. Das, J.—These three appeals having been filed against the common judgment and award passed by the Fifth Motor Accident Claims Tribunal, Bhubaneswar in Misc. Case No. 189 of 1995, were heard together and disposed of by this common judgment.

The facts of the case, in brief, are that the deceased-Nb. Subedar Khadga Bahadur Thapa was travelling with other Army Officers from Berhampur to Bhubaneswar in a Mahindra Mini Bus bearing Registration No. OR-07A-1308 belonging to the Defence Department on N.H. 5 on 30.10.1994 during early morning hour. When they reached near village Ratamati in between balugaon and Khurda, a truck bearing Registration No. BIT-5859 coming from the opposite direction dashed against the Mini Bus, which was boarded by the deceased and due to the severe impact between the two vehicles, the deceased and one Conl. Satya Prakash sustained severe brain injuries and injuries on other parts of the body. The deceased succumbed to the injuries on the spot and on being carried to the Naval Hospital at Chillika was declared dead by the Doctor.

The claimants who are the respondents in M.A. No. 68 of 1998 and M.A. No. 922 of 1997, and the appellants in M.A. No. 269 of 1998 filed Misc. Case No. 189 of 1995 which was decided after trial/enquiry by the Fifth Motor Accident Claims Tribunal, Bhubaneswar, who has passed the impugned judgment and award dated 29.9.1997 holding that the claimants are entitled to a compensation of Rs. 4,89,500/-(Rupees four lakhs eighty nine thousand five hundred) with interest '' 12% per annum from the date of filing of the claim petition i.e., 7.4.1995 till the date of payment and further holding that M/s. Oriental Insurance Co. Ltd., appellant in M.A. No. 68 of 1998 and M/s. United India Insurance Co., appellant in M.A. No. 922 of 1997 are liable to pay 50% of the award each to the claimants.

I have heard Mr. Sinha, Learned Counsel appearing for the appellant in M.A. No. 68 of 1998, Mr. A. K. Mohanty, Learned Counsel appearing for the appellants in M.A. No. 922 of 1997 and Mr. P. C. Patnaik, Learned Counsel for the claimant-respondents in the above two appeals who are the appellants in M.A. No. 269 of 1998. In both the appeals filed by the two Insurance Companies, the sole ground on which the impugned judgment is challenged is that the Tribunal has erred in law by fixing 50% liability against each of the appellants. According to Mr. Sinha, who appears for the insurer of the Mini Bus in which the deceased was travelling, the Learned Tribunal has committed an error in ignoring the evidence of P.W. 2, who is an eye-witness to the accident and has categorically stated that the truck was being driven at high speed and even though the driver of the Mini Bus took the vehicle to the extreme left of the road to avoid the accident, the truck in a negligent manner came to his right and dashed against the Mini Bus. Mr. Sinha further submitted that considering the pleading of the claimants in the claim application coupled with the evidence of P.W. 2, the Learned Tribunal should have held that the accident occurred due to the sole negligence of the driver of the truck. Per contra, Mr. Mohanty, Learned Counsel appearing for the insurer of the truck, submitted that though there is clear evidence on record to show that the driver of the truck in order to avoid the accident steered the vehicle to sufficient left but due to excessive play in the steering system, the truck could not be sufficiently and effectively steered to the left in spite of all attempts made by the driver of the truck to avoid the accident, the Learned Tribunal has erred in law in making M/s. United India Insurance Co. Ltd. (insurer of the truck) liable for 50% of the compensation awarded.

Mr. Patnaik, Learned Advocate for the claimants, on the other hand, submitted that the insurers of both the Mini Bus and the truck which were involved in the accident are not legally entitled to question the percentage of liability of each of the insurer when the Learned Tribunal after appreciating all the materials available on record has found that the accident was the result of composite negligence of the drivers of both the vehicles. He further submitted that the insurers are not entitled to dispute the question of percentage of liability in a case of composite negligence as such a defence is not available to them u/s 149(2)(a) of the Motor Vehicles Act, 1988. It is further submitted by him that since no leave has been granted by the Learned Tribunal to the insurers u/s 170 of the Motor Vehicles Act to take a wider defence, the Insurance Companies cannot maintain these appeals questioning the percentage of their liability to pay compensation as awarded.

In M.A. No. 269 of 1998 filed by the claimants, the claimants have basically challenged the quantum of compensation as awarded and claimed for enhancement of the award of compensation which will be dealt with subsequently.

Section 149(2)(a) of the Motor Vehicles Act, 1988 provides as follows :

"(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the Commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court, or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :

(i) a condition excluding the use of the vehicle :

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organized racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, Civil war, riot or Civil commotion; or

*** *** ***"

Section 170 of the Motor Vehicles Act prescribes that where the Claims Tribunal is satisfied that there is collusion between the claimants and the owner of vehicle or where the owner of the vehicle against whom claim is made fails to contest the claim, the Tribunal may, for reasons to be recorded in writing direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and on being so impleaded, without prejudice to the provisions of Section 149(2)(a) shall have the right to contest the claim on all or any of the grounds that are available to the owner against whom the claim has been made.

I have perused the record of the Tribunal in MACT Misc. Case No. 189 of 1995. The same discloses that power u/s 170 of the M.V. Act vested with the Tribunal has not been exercised nor either of the Insurance Companies made any application under the said Section for granting permission to them to take a wider defence other than that provided u/s 149(2) of the M.V. Act.

On a reading of Section 149(2)(a) of the M.V. Act, it is clear that the Insurance Company cannot take a defence that the vehicle insured by it, was not negligent when the accident occurred and therefore, the insurer is not liable to pay compensation. Such a defence is only available to the insured-owners, who admittedly have not chosen to appear and contest the case inspite of due service of notice.

In view of the clear position of law, I find that both M.A. No. 68 of 1998 and M.A. No. 922 of 1997 are not maintainable as because the appellants therein who are the insurers of the Mini Bus and truck respectively, which were involved in the accident have challenged the impugned judgment/award on the sole ground that the Tribunal has committed an illegality in holding each of the said companies liable to pay 50% of the compensation as awarded, to the claimants.

With regard to the case of the claimants, I find that they have filed M.A. No. 269 of 1998 claiming enhancement of the compensation awarded by the Learned Tribunal. Mr. Patnaik, Learned Counsel for the claimants submitted that the Learned Tribunal while assessing the compensation to be awarded due to the death of the deceased in the motor accident has not properly appreciated the documents produced by the claimants and marked as Exhibits in the case. He further submitted that the last pay calculation slip under Ext. 7/A shows the gross salary of the deceased as Rs. 3075/- but inspite of the same, the Learned Tribunal acted illegally in holding that the net salary per month of the deceased shall be taken as Rs. 2800/-, even though the Learned Tribunal held that there is no oral or documentary evidence to deduct Rs. 275/- towards provident fund from the gross salary. He further contended that under Ext. 7/A, the deceased was entitled to revised salary but the Learned Tribunal has not taken into consideration the said aspect while calculating the quantum of compensation and has arbitrarily awarded Rs. 1200/-towards future prospects of the deceased, which according to him is too low. In support of the contention, Mr. Patnaik has relied upon several decisions of the Apex Court.

Mr. A. K. Mohanty, Learned Counsel for the appellant-insurer in M.A. No. 922 of 1997 on the contrary submitted that even though the insurer is not entitled to challenge the quantum of compensation as awarded but in the event the same is excessively high, it is open for the insurer under law to bring it to the notice of the Appellate Court and if the compensation award is excessive/ disproportionate, the Appellate Court can reduce the quantum of compensation awarded by the Learned Tribunal. Basing on the above contentions, he submitted that the quantum of compensation as awarded in the present case is highly excessive and this is one of such cases where this Court should direct reduction of compensation. This contention of Mr. Mohanty is also supported by Mr. Sinha, Learned Counsel for the Insurance Company-appellant in M.A. No. 68 of 1998.

On perusal of the impugned judgment and award, and the evidence available on record, I find that the Learned Tribunal while deciding the question with regard to the quantum of compensation has dealt with all the materials available before him and on proper and careful scrutiny and appreciation of the same, has rightly come to a conclusion that on account of future prospects of promotion of the deceased, the claimants are entitled for compensation under the heading "Future Prospects". He has, accordingly, calculated the said loss at Rs. 1200/- per month and has added the same to the net salary of the deceased amounting to Rs. 2800/- and thereby has taken the monthly income of the deceased to be Rs. 4000/-. I also find that the Learned Tribunal by accepting the age of the deceased to be 43 years has rightly taken the multiplier as 15. The Tribunal has also awarded separate amounts towards funeral expenses, loss of consortium and loss of estate.

Coming to the various case laws cited by Mr. Patnaik, Learned Counsel for the claimants, I find that the facts of each of those cases were different from the facts of this case and the ratio of the said decisions cannot be applied to the facts of the present case by applying a straight jacket formula. In this regard, the Apex Court in the case of Bharat Petroleum Corporation Ltd. and Another Vs. N.R. Vairamani and Another, while dealing with the law of precedents has laid down certain principles for treating a particular judgment as a precedent in another case. It has been held in the said decision that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The Apex Court in the said decision has extracted the words of "Lord Denning" in the matter of applying precedents, which have become locus classicus. The said extract is as follows :

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

*** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

Since I find that the facts in the decisions cited by Mr. Patnaik, Learned Counsel for the claimants are not similar to those in the present case and as per Section 168 of the M.V. Act, the Learned Tribunal is to determine the amount of compensation which according to it, appears to be just, I am of the view that none of the cases cited by the Learned Counsel for the claimants can be relied upon to arrive at the amount of just compensation payable to the claimants in the present case.

I, therefore, find no reason to interfere with the quantum of compensation as awarded by the Learned Tribunal in favour of the claimants and repel the contentions raised by the Learned Counsel for the claimants in support of their plea for enhancement of the quantum of compensation as awarded in their favour. The United India Insurance Co. Ltd. and the Oriental Insurance Co. Ltd. who were the insurers of the two offending vehicles are directed to deposit their shares of the compensation as awarded by the Learned Tribunal along with accrued interest as directed in the impugned award, before the said Tribunal within a period of six weeks from today. On such deposit being made, the same shall be disbursed in favour of the claimants in terms of the impugned award.

In the result, all the above three appeals are dismissed being devoid of merit but in the circumstances without cost.