The New India Assurance Company Ltd. vs The Samundri Roadways Company Pvt. Ltd. and Others

J.V. Gupta, J.—This judgment will dispose of F.A. Os Nos. 165, 258, 382 and 400 of 1980, as all of them arise out of the same award of the Motor Accident Claims Tribunal, Faridkot. (hereinafter called the Tribunal).

Satnam Singh and Baggar Singh (since deceased) traveled in the bus No. PUD-4242 belonging to M/s Samundri Roadways Company Pvt. Ltd. Ferozepore, at about noon time on July 19, 1978, from village Lambi to Malout. It was being driven by Ajaib Singh. Respondent No. 2 and was insured with the New India Assurance Company, New Delhi. On the fateful day, when it was being driven rashly and negligently and had reached near Suraj Textile Mills, Malout, it went out of the control of the driver and turned turtle leaving many passengers injured and one of them having died at the spot. Both the deceased Satnam Singh and Bagga Singh sustained serious injuries. They succumbed to their injuries in the hospital Two claim applications were filed one on behalf of the legal representatives of Satnam Singh, deceased, who had left behind one mother five children and one widow, and the other on behalf of the legal representatives of Baggar Singh, deceased, who had left behind s widow and two children. Both the claim petitions were tried together. In the claim petition filed on behalf of the legal representatives of Satnam Singh, deceased, it was alleged that the deceased was 46 years old at the material time and was working as a teacher in the Government Primary School, Fatta, Khera, Block Lambi, District Faridkot, at a monthly salary of Rs. 640/- and, thus, a sum of Rs. 1,00.000/- was claimed as compensation on account of his death by the accident* In the claim petition filed on behalf of the legal representatives of Bagga Singh, deceased, it was alleged that he was about 44 years of age at the time of the accident and was working as a labourer with monthly earnings to the tune of Rs. 360/-. Thus, a sum of Rs. 60,000/- was claimed by way of compensation on account of his death owner of the bus and the insurance company It was pleaded on behalf of the owner of the bus that the bus was in perfect working order before it undertook the journey on the alleged date of accident, but due to some cause beyond the foresight of the driver, the wheel of the bus got jammed suddenly and unexpectedly while the bus was in motion. Therefore, it turned turtle. It was also pleaded that the bus driver was not at fault as the accident had taken place on account of no rash or negligent act on his part. A further plea was also taken that both the deceased were travelling on the roof of the bus without being asked to do so by the driver or the conductor of the bus and that the claimants were estopped from filing the claim applications. However, subsequently, by way of amendment in the written statement, a plea of contributory negligence was also taken As regards the insurance company, it was pleaded by it that it was not on account of the rash or negligent act on the part of the driver that the accident had taken place rather it had taken place due to the negligence on the part of the deceased or on account of vis major. On the pleadings of the parties, the following issues were framed by the Tribunal.

Whether the accident was due to rash and negligent driving of the bus bearing registration No. PUD-4242 by Ajaib Singh ?

Whether the accident took place due to circumstances entirely beyond the control of the bus driver ?

Whether the deceased Satnam Singh/Bagga Singh travelled in the bus afore-said, at the material time ?

If issue No. 3 is proved, whether the deceased Satnam Singh/Bagga Singh were unauthorised travellers in the bus ? If so

with what effect ?

To what amount of compensation, if any, the claimants are entitled and from whom ?

Relief

In addition to the above, the following additional issue was also framed by the Tribunal after the amendment of the written statement was allowed:

Whether this is a case of contributory negligence ? If so, with what effect ?

Under issue No. 2, it was found that no convincing evidence was produced by the Respondents to prove that the accident had taken place due to the circumstances beyond the control of the bus driver. Issue No. 3 was also decided in favour of the claimants as it was found there under that both Satnam Singh and Bagga Singh, Deceased, were travelling in the bus at the time of the accident Under issue No. 4 it was held that there was nothing to show that Satnam Singh and Bagga Singh were unauthorised travellers in the bus. Under issue No. 1, the Tribunal found that the accident was not due to the circumstances beyond the control of the driver and that it was a clear case of rash driving on his part Under the additional issue, it was held that there was contributory negligence on the part of Bagga Singh, deceased, but there was nothing to show that there was any contributory negligence on the part of Bagga Singh, deceased, was found to the extent of 25 per cent. While discussing the amount of compensation payable, under issue No. 5, the Tribunal found in the case of Satnam Singh, deceased, that his salary was Rs. 640/- per month and out of the same, he might have been spending Rs. 240/- per month of himself Thus, the dependency of his family members was assessed at Rs. 400/- per month, i.e. Rs 4800/- per year. Since Satnam Singh, deceased, was aged about 48 years at the time of death by accident, 13 (thirteen) was held to be suitable multiplier in his case and consequently, a sum of Rs 62,400/- was allowed by way of compensation with interest at the rate of six per cent per annum from the date of the application till realisation. As regards Bagga Singh, deceased, his income was found to be Rs 360/- per month and out of that; Rs 110/- were hold to be being spent by him on himself t hus leaving the balance amount of Rs 250/- per month for his entire family. Thus, the yearly dependency of Bagga Singh, deceased, was assessed at Rs. 3,000/-. Since Satnam Singh, deceased, and Bagga Singh, deceased, and Bagga Singh, deceased, were almost of the same age at the time of the accident, (13 thirteen was found to be a suitable multiplier in his case also and as such Rs. 39,000/- were worked out as the amount of compensation payable on account of his death by accident. However, in view of the finding that there was contributory negligenae on his part to the extent of 25 per cent, the amount of compensation payable to him was reduced accordingly to Rs 29,250/-. It was ordered to be payable to the claimants with interest at the rate of six per cent. From the date of application till realisation, ultimately, the claim of the legal representatives of Satnam Singh, deceased was assessed at Rs. 62,408/- for which the insurance company was held liable for payment as according to the learned Tribunal, this amount was far less than the maximum liability of the insurance company within the meaning of Clause (b) of Sub-section (2) of Section 95 of the Motor Vehicles Act, 1939, (hereinafter called the Act), In the claim petition filed on behalf of the legal representatives of Bagga Singh, deceased, it was found that the insurance Company was not liable as the owner of the bus had violated one of the terms of its contractual obligations with the insurance company because it was the conductor of the bus who had allowed Bagga Singh, deceased, to travel on the roof of the bus. With these finding, both the claim petitions were allowed accordingly Dissatisfied with the same, two appeals, viz. F-A Os. Nos. 382 and 400 of 1980 have been filed on behalf of the owner of the bus, whereas F.A.O. No. 165 of 1980 has been filed on behalf of the insurance company F.A.O No. 258 of 1980 has been filed on behalf of Surjit Kaur and other legal representatives of Satnam Singh, deceased, through her.

In the appeal filed, on behalf of the insurance company, Shri L.M. Suri, the Learned Counsel for the Appellant, contended that the liability of the insurance company was only to the extent of Rs. 10,000/- in the case of a passenger travelling in the bus under the terms and conditions of the Insurance policy read with Section 95(2) (b) of the Act. According to the Learned Counsel, in respect of the passengers travelling by bus, the policy of insurance shall cover the liability to the extent of Rs. 75,000/- only where the vehicle is registered to carry more than 30, but not more than 60 passengers According to the terms of the policy, the carrying capacity of the bus was 54 passengers, since an additional premium of No. 459/- was paid by the owner, the insurance company''s indemnity was limited to a sum of Rs. 10,000/- in respect of any one person subject to the limit of Rs. 75,000/- in respect of any number of claims in connection with the motor vehicle arising out of one cause. In support of this contention, the Learned Counsel relied upon a Full Bench judgment of this Court in the Northern India Transporter''s Insurance Company Ltd. v. Shrimati Amra Wati (1966) 68 P.L. Rule 538, the ratio of which was upheld by the Supreme Court in Sheikhupura Transport Company Ltd v. Northern India Transporters Company Ltd ltd (1971) 73 P.L. R. 722 In the above said case, it was held by the Supreme Court that the limit of insurance provided u/s 95(2) (b) of the Act, can be enhanced by any contract to the contrary between the parties As stated earlier, in the present, case, this amount was enhanced by payment of the additional premium of Rs. 459/- to the extent of Rs. 10,000/- in respect of any one passenger travelling by the bus. No judgment taking a contrary view has been cited at the bar. Thus, no meaningful argument could be raised on behalf of the Respondents to contest this proposition. Under the circumstances, the liability of the insurance Company is held to be only to the extent of Rs. 10,000/- in the claim application filed on behalf of the legal representatives of Satnam Singh, deceased.

In the two appeals filed on behalf of the owner of the bus, Mr. Maharaj Bakhash Singh, the Learned Counsel for the Appellant contended that Bagga Singh, deceased, was travelling in the bus and, therefore, the insurance Company was liable for the payment of the compensation.

After hearing the Learned Counsel for the parties, on this point, I do not find any force in this contention.

Section 82 of the Act provides that no person driving in or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. It has been found as a fact that Bagga Singh, deceased, was sitting on the roof of the bus which finding has not been contested If the conductor of the bus allowed Bagga Singh, deceased, to travel on the roof of the bus, it was against the statutory provisions of the Act. Apart from that Clause (2) of the insurance agreement under the caption Endorsement No. IMT 16'', clearly provides that the insured shall take reasonable precautions to prevent the accidents and shall comply with all statutory obligations It is obvious that by permitting Bagga Singh deceased, to travel on the roof of the bus, its conductor not only did not take reasonable precautions to prevent the accident, but he also failed to comply with the requisite statutory obligations as laid down in the traffic Regulations. Since the owner of the bus violated one of the terms of the insurance policy, the insurance company could not be held to be liable to pay the damages in case of Bagga Singh, deceased. No other contention has been raised in the appeals filed on behalf of the owner of the bus.

In the appeal filed on behalf of the legal representatives of Satnam Singh, deceased, the Learned Counsel for the Appellants Mr. Vijay Kumar Jhanji contended that the deceased bad five minor children and a wife to support and, therefore, it could not be held that out of a monthly salary of Rs. 640/- a sum of Rs. 240/- per month was spent by the deceased on himself. Apart from that, in view of the decision in Asha Rani v. Union of India (1982) 84 P L. Rule 486, where the deceased was 45 years of age at the time of the accident 16 (sixteen) should have been a suitable multiplier and not 13 (thirteen) as applied by the Tribunal. It was further contended that the interest allowed at the rate of six percent, per annum, as held by this Court in Sunanda Maudgal Vs. Pepsu Road Transport Corporation, Patiala and Another, or in any case 10 per cent, per annum as held in Aaha Rani''s case (supra).

After hearing the Learned Counsel for the parties I find considerable force in" the contention raised on behalf of the Appellants. It was held in Asha Rani''s case (supra), where the deceased was 45 years of age that the remaining life expectancy was as much as 25 years and thus, there was no reason why the norm of 16 (sixteen) should at all be deviated from in such a case. Under the circumstances, in the present case, where Satnam Singh, deceased, was about 48 years or age at the time of his death by accident and has left behind five minor children and widow, 16 (sixteen) is the most suitable multiplier. No worthwhile contention could be raised on behalf of the owner of the bus why the multiplier of 16 (sixteen) should not be applied in the case of Satnam Singh, deceased. If 16 (sixteen) is the suitable multiplier in his case, the amount of compensation comes to Rs. 76,100/- on the basis of Rs. 4,800/- being the annual dependency of the deceased as found by the Tribunal.

It has been stated at the bar that no amount of compensation has been paid so far by the owner to the claimants. Under the circumstances, it is a fit case where the claimants should be entitled to interest at the rate of 10 per cent from the date of the application till realization.

The net result is that FA O s Nos. 382 and 400 of 1980 fails and are dismissed with costs. F.A.OI. 165 and 258 of 1980 are allowed to the extent indicated above with no order as to costs.