The Oriental Fire and General Insurance Co. Ltd. vs M. Janga Reddy and others

K. Ramaswamy, J.

The appeal and X-objections arise against the same judgment. In fact the appellant the Oriental Fire and General Insurance Company Limited is the 5th respondent in O.P. No. 145/82 of the Tribunal below. The second respondent Vijayanthi Baltal is the owner of the vehicle contract carriage bearing No. ADT 4787. The first respondent Shaik Mahoob is the driver. The vehicle was taken on contract by the third respondent Ballal Tourist Corporation from the second respondent on hire. The hirer carries the employees of the E.C.I.L. the 4th respondent to and from their respective houses to the factory. On August 23, 1982 the deceased Suseela who is a wife of one of the employees was travelling in the contract carriage. The driver has collected a fare of Rs. 5/-. He was collecting the passengers for reward. When the accident occurred on June 16, 1982 at about 7-00 A.M. due to the rash and negligent driving of the first respondent, the deceased Suseela died. As a result her husband and the minor children claimed under S. 110-A of the Motor Vehicles Act, 1939 before the Tribunal below. The Tribunal awarded in total a sum of Rs. 55,000/-. As against the compensation'' awarded, the hirer filed C.M.A. 1288/84 which was dismissed by judgment dated January 17, I989 At that time the cross-objections filed by the claimants was not posted along with that C.M. A. Therefore, the cross-objection would not be disposed of. The Insurance Company the 5lh respondent filed C.M.A. 1412/84 in which also same cross-objections have been Tiled by the claimants. Thus, the cross-objections in CMA. 1288/84, C.M.A. 1412/84 and the cross-objections therein are now posted together

The contention of the Insurance Company as argued by Sri S. Hanumaiah the learned counsel is that the Insurance Company is liable and its liability is co- extensive with that of the insured, viz., the owner of the vehicle Vijayanthi Ballal. the Tribunal has dismissed the O.P. as against the insured; therefore, the Insurance Company is not liable to make (good?) the damages suffered by the hirer. It is alternatively contended that the liability should be limited to Rs.10,000/- .by operation of sub-section (2Kb) of S. 95 of the Motor Vehicles Act, Act IV of 1939 (for short ''the Act'').

The contention of the learned Counsel for the claimants is that the Judicial Officer presiding the Tribunal initially awarded a sum of Rs. 1,00,000/- towards damages. But, when it is set aside at the behest of the respondents, the learned Judicial Officer committed grievous error in restricting the claim only to Rs. 55.000/-, the claimants, namely, the husband and the children lost the services of the deceased Suseela the wife of the first claimant and the mother of the other claimants 2 to 4. The children being minor have lost the motherly care and affection; the grant of a sum of Rs. 1,00,000/-would be the minimum and the grant of Rs. 55,000/- is arbitrary. The first question therefore is whether the amount awarded by the Tribunal below is just and reasonable? Admittedly the deceased is a house wife. She is not having any avocation for herself. She was looking after the house-hold affairs. It is claimed that she was also looking after the agriculture. It is very doubtful whether she was looking after the agricultural operations. The Tribunal below has accepted that and granted annual expenditure to be incurred by the husband for house-hold work is Rs. 2,000/- and applied suitable multiplier and granted a sum of Rs. 30,000/-. The balance amount was awarded towards loss of motherly care and affection and the company of the husband. Thus, the total amount of Rs. 55,000/- was awarded. On the totality of the facts and circumstances, I am of the view that grant of Rs. 55,000/- is just and reasonable.

The next question is whether the Insurance Company is liable for the payment of the amount. No doubt the insured is Vijayanthi Ballal the owner. She transferred her right to user of the vehicle as a contract carriage on hire to the 4th respondent-Ballal Tourist Corporation. Therefore, the right or liability to third parties would be transmitted to the user, namely, Ballal Tourist Corporation. When the vehicle was involved in an accident and the vehicle is covered by the policy, for the third party claims necessarily the Insurance company should bear the expenses for the liability incurred towards the loss or death of a passenger carried by the vehicle. Thereby the Insurance Company is liable for the death of Suseela the deceased. Now, what is the liability to which the Insurance Company should be limited? It is now well settled by the decisions of the Supreme Court and this Court that the maximum liability is Rs. 10,000/- prior to the amendment Act. Therefore, the appellant is liable to pay a sum of Rs. 10,000/-out of the premium. It is stated that the amount has already been deposited. Under these circumstances, it is declared that the liability of the Insurance Company is only Rs, 10,000/- and for the balance amount the claimants are entitled to recover from the Ballal Tourist Corporation the hirer. The claimants are however entitled to the interest at 12 per cent on the amount awarded from the date of claim till the date of realisation.

The appeal is allowed as indicated above. The cross-objections are also allowed accordingly. No costs.

Appeal allowed.