Savitri Devi and Others vs Shri Bijender Singh and Others

D.V. Sehgal, J.—Chaman Lal, who was employed as Assistant Fitter in the Haryana Roadways, Faridabad, boarded a three wheeler scooter bearing registration No HRU-112 on 11-5-1981 near the New Colony turning for proceeding to Railway Station, Gurgaon, On its way, at 5.30 p. m. the scooter turned turtle near Jai Cinema on the Railway Station Road. Chaman Lal received multiple injuries and later sccumbed to the same. The vehicle was being driven by Kanwar Pal, Respondent No. 2, and was owned by Bijender Singh, Respondent No. 1. It was insured with M/s Oriental Fire and General Insurance Company Ltd., Respondent No. 3.

Shrimati Savitri, widow, Hari Singh, minor son, Sunita, Anita, Suman and Gita, minor daughters, and Shrimati Mohini Devi, mother of Chaman Lal deceased, filed a claim application u/s 110-A of the Motor Vehicles Act (for short "the Act") against the Respondents alleging that the accident had been caused due to rash, negligent and careless driving of the vehicle by Respondent No. 2, which resulted in injuries to and death of Chaman Lal. Compensation amounting to Rs. 60,000/- was claimed by them. The claim-application was contested by all the three Respondents before the learned Motor Accident Claims Tribunal (for short "the Tribunal") and they filed separate written statements. Respondent No 1 denied all the averments made in the application. He stated in paragraph 1 (sic) of his written statement that he had sold the vehicle to Respondent No. 2 in the month of April, 1981. He had, therefore, no right, title or interest in the same on the date of the accident. Respondent No. 2 admitted the factum of accident but denied rest of the allegations. He further admitted that he had been challaned under Sections 279 and 304-A, Indian Penal Code. He denied that the accident was caused due to rash, negligent and careless driving by him He explained that when the vehicle reached the chowk of Urban Estate and New Railway Road, Gurgaon, a cyclist suddenly came from the side of Urban Estate and. in order to save him, he turned the vehicle further to his right side and in doing so, the vehicle over-turned. Had he not turned the vehicle further to the right, the accident would have caused the death of the cyclist coming from the Urban Estate side. Res on-dent No. 3 also denied the averments made in the application for want of knowledge but admitted that the vehicle was insured with it.

On the pleadings of the parties, the learned Tribunal framed the following issues:-

Whether Chaman Lal died in an accident caused due to rash, negligent and careless driving of three-wheeler scooter No. HRU-112 by Kanwar Pal, Respondent No. 2 ?

If issue No 1 is proved, whether the claimants are entitled to compensation ? If so, its quantum, from whom and in what proportion ?

Relief

After receiving the evidence, the learned Tribunal, vide its award dated 22-5-1982, returned finding on issue No. 1 in favour of the claimants and against the Respondents. It held that the accident was due to rash, negligent and careless driving of the Respondent No, 2. While adjudicating upon issue No. 2, it held that the claimants were entitled to compensation on account of the death of Chaman Lal and assessed the same at Rs. 35,000/-. The plea of Respondent No. 1 that he had sold the vehicle to Respondent No. 2 before the date of the accident, was negatived. He was held to be the owner of the same. Respondents Nos. 1 to 3 were held jointly and severally liable for payment of amount of the compensation. Interest at the rate of 6 per cent per annum from the date of the claim application, i. e., 8-6-1981 till the date of actual realization of the amount was also awarded. It was further directed that if the payment of the amount, so awarded, was not made to the claimants up to 1-8-1982, they would be entitled to interest at the rate of 10 per cent per annum instead of 6 per cent per annum. The amount awarded was also apportioned amongst the claimants.

Being dissatisfied with the award, the claimants have filed F. A. O. No. 529 of 1982. The Insurance Company has filed F. A. O. No. 536 of 1982, while Bijender Singh, the alleged owner of the vehicle, has filed Cross-Objections No. 18-CII of 1983 in F. A. O. No. 529 of 1982. Reference to the parties in this judgment shall be made from F. A. O. No. 529 of 1982.

I have heard the learned Counsel for the parties at sufficient length. As regards the finding of the Tribunal on issue No. 1, the same could not be assailed by the learned Counsel for the Respondents. I have gone through the evidence on the record. Kuldip Kumar AW4, who was one of the occupants of the vehicle along with the deceased, has given a detailed account as to how the accident took place. Narain AW5 was on his cycle at a short distance from the place where the vehicle turned turtle. Statements of these two witnesses leave no scope for doubt that the accident took place due to rash, negligent and careless driving of the vehicle by Respondent No. 2. I, therefore. affirm the finding of the learned Tribunal on issue No. 1.

As regard the finding on issue No. 2, the learned Counsel for the Appellants contended that the amount of compensation awarded by the learned Tribunal is grossly inadequate. The deceased was less than 32 years of age when he was the victim of the fatal accident, his date of birth being 8th October, 1949. Rajinder Singh Chauhan AW2, Clerk, Haryana Roadways, Faridabad, stated that the deceased was employed as Assistant Fitter. The last pay drawn by him was Rs. 494.65. After excluding the house-rent and washing allowance, the learned Tribunal determined the exact salary of the deceased at Rs. 450/- per month. It further held that he must be spending one-third of the same on his own upkeep and maintenance and thus determined the dependency of the Appellants at Rs 300/- per month, i.e. Rs 3600/- per annum. I think that since the deceased was supporting a family consisting of seven members including his wife, mother and minor children, out of Rs 450/- p. m he could not be extravagant so as to spend more than Rs. 100/- per month on himself. I, therefore, work out the dependency of the Appellants on the deceased at Rs. 350/- per month, i. e. Rs. 4200/- per annum. Since the deceased was aged less than 32 years, it would be appropriate to apply a multiplier of 18 to work out the compensation payable to the Appellants. The total amount of compensation would, therefore be Rs. 75,600/-. The learned Tribunal was wrong in applying the multiplier of 12 only. It further went wrong in imposing a reduction of 20 per cent on the lumpsum amount payable to the Appellants. Since, however, the total claim made by the Appellant was Rs. 60,000/- only, the compensation payable shall be limited to their claim, i. e., Rs. 60,000/-. The interest awarded by the learned Tribunal also, in my view, is inadequate, The Appellants shall be entitled to payment of interest at the rate of Rs. 12 per cent per annum on the amount of compensation from the date of the application, i. e., 8-6-1981 till the date of the final payment of the amount to them.

Learned Counsel for Respondent No. 1 contended that he had made a categoric statement before the Tribunal that he had sold the vehicle to Respondent No. 2 in the month of April, 1981 and that the learned Tribunal was wrong in disbelieving this statement. I find that the Tribunal has given cogent reasons for its conclusion. Respondent No. 2 has not stepped into the witness-box. Respondent No. 1 could have produced him in support of his contention. There is no writing brought on the record which might prove the transaction of sale of the vehicle by Respondent No. 1 to Respondent No. 2. Respondent No 1 admitted in his cross-examination that he got typed an affidavit and signed the same evidencing the transfer of the vehicle. He, however, did not produce either the typist who typed out the affidavit or the Oath Commissioner or any other officer who attested the same. Registration certificate as also the insurance policy continue in the name of Respondent No. I. Thus, beyond his bald statement, there is no material on the record to support his assertion. His mere ipse dixit cannot be accepted. It appears that he took up this stand of sale of the vehicle to Respondent No. 2 simply to ward off his liability. I, therefore, reject the contention of the learned Counsel for Respondent No. 1.

Learned Counsel for the Insurance Company, Respondent No. 3, has submitted that, in view of the provisions of Section 95(2)(b) of the Act, as it stood before its amendment vide Act 47 of 1982 with effect from 1-10-1982, a policy of insurance was required to cover any liability incurred in respect of any one accident upto the following limits, namely, where the vehicle is a vehicle in which passangers are carried for hire or reward or by reason of or in pursuance of a contract of employment -in respect of passangers, a limit of Rs. 50,000/- in all; and where the vehicle is registered to carry not more than 30 passangers and subject to the limit aforesaid, Rs. 10,000/- for each individual passanger. He, therefore, submitted that the liability of Respondent No. 3 can, in no way, exceed Rs. 10,000/ on account of the death of Chaman Lal. He placed reliance on a Full Bench judgment of this Court in Northern India Transporters Insurance Co. Ltd, Jullundur v. Smt Amra Wati w/o Narinder Narh A. I. R. 1966 P&H. 288, wherein the aforesaid provisions before amendment in the year 1969, vide Act, 56 of 1969, were considered. It was held that there being controversy as to the meaning of Sub-clause (b) of Section 95(2) of the Act, the straightforward course was to take the language of the Act as it stood and a reading of that made it clear that in the case of a bus carrying more than six passangers, the limit of liability of the insurer was Rs. 20,000/- in all and there was a further limit of Rs. 2,000/- in respect of each individual passanger. Two passangers had died in the accident. It was held that, in respect of the death of each of the said passangers, the Insurance Company was liable only to the extent of Rs. 2 000/-. The judgment of the Full Bench was affirmed by the Supreme Court in M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (1971) 73 P. L. R. 722.

Learned Counsel for the Appellants, on the other hand, has placed reliance on National Insurance Co. Ltd v. Chunnu Ram 1983 A. C. J. 577, a Division Bench judgment of the Patna High Court New India Assurance Co. Ltd. v. Mahmood Ahmad 1984 A. C. J. 390 and Shivanari Rama Tiloji and Anr. v. Kashi Vishnu Agarwadekar 1985 A. C J. 494, Single Bench judgments of the Allahabad and Bombay High Courts respectively Reliance therein is placed on Motor Owners'' Insurance Company Limited Vs. Jadavji Keshavji Modi and Others, and it has been held that, since the overall liability of the insurance Company u/s 95(2) (b) of the Act is Rs. 50,000/-, in the case of a vehicle carrying not more than 30 passengers, the Insurance Company is liable to make payment of this amount in case of death of one passenger irrespective of the limit of Rs. 10 000/- per passenger fixed in Section 95(2) (b) of the Act. I have gone through these judgments but I find that within this jurisdiction I am bound by the Full Bench judgment in Nothern India Transporters Insurance Company''s case (supra). The Full Bench judgment and the Supreme Court judgment in M/s. Sheikhupura Transport Company''s case (supra) came up for consideration in Motor Owner''s Insurance Company''s case (supra) and it was observed thus: -

''The judgment of the Punjab High Court was brought in appeal to this Court in Sheikhupura Transport Co. Ltd. Vs. Northern India Transport Insurance Co., . For reasons aforesaid, the judgment in that case is not an authority on the interpretation of Clause (a) of Section 95(2). After setting out the relevant provisions of Section 95(2) at pages 24 and 25 (of Supp SCR): (at p. 1627 of AIR) of the Report, Hegde, J., speaking for himself and Jaganmohan Reddy, J , concluded.

In the present case we are dealing with a vehicle in which more than six passengers were allowed to be carried. Hence the maximum liability imposed u/s 95(2) on the insurer is Rs. 2.000/- per passenger though the total liability may go up to Rs. 20,000/-.

Towards the end of the Judgment, it was observed that reading the provisions contained in Sections 95 and 96 together,

.........it is clear that the statutory liability of the insurer to indemnify the insured is as prescribed in Section 95(2) Hence the High Court was right in its conclusion that the liability of the insurer in the present case only extends up to Rs. 2,000/- each, in the case of Bachan Singh and Narinder Nath". In view of the limit on the insurer''s liability in respect of each passenger, the argument on the construction of the words "any one accident" had no relevance and was therefore, neither made nor considered by the Court. Different considerations may arise under Clause (b), as amended by Act 56 of 1969, but we do not propose to make any observations on that aspect of the matter, since it does not directly arise before us." It is thus clear that the law laid down by the Full Bench judgment of this Court affirmed by the Supreme Court in MIS. Sheikhupura Transport Company''s case (supra), was simply distinguished as the final Court in Motor Owners'' Insnrance Company''s case (supra) was considering the import of the provisions of Section 95(2) (a) but did not overrule the same. I, therefore, find force in the contention of the learned Counsel for Respondent No 3 and hold that the liability of Respondent No. 3 for payment of compensation on account of the death of Chaman Lal shall be limited to Rs. 10,000/- only besides interest accruing on the said amount.

Consequently, I allow F.A.O.''s Nos. 529 and 536 of 1982 and dismiss Cross-Objections No. 18-CII of 1983. The award made by the learned Tribunal is modified. The compensation payable to the claimants Appellants is enhanced to Rs. 60,000/-. Respondents Nos. 1 and 2 shall be jointly and severally liable for payment of the same. Respondent No. 3 shall be liable to pay Rs. 10,000/- only out of the said amount of compensation besides interest accruing thereon. The parties, however, are left to bear their own costs.