The Oriental Insurance Company Ltd. vs Kothakatta Ramanna and Others

B.K. Somasekhara, J.—The three appeals are of the authorship of the Oriental Insurance Company Limited (insurer) and the respondent No. 2 in O.P. Numbers 203, 204 and 270 of 1989 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Ongole, Prakasam District filed by the claimants. The claimants in O.P. 203/1989 are respondents 1 to 3 in C.M.A. 395/1991 and the owner 1st respondent is R-4 in C.M.A. 395/1991. The claimants in O.P. 204/1989 are respondents 1 to 5 and the owner of the vehicle /first respondent is respondent No. 6 in C.M.A. 412/1991. Whereas the claimants in O.P. 270/1989 are respondents 1 to 15 and the first respondent in the O.P. who is the owner of the vehicle involved in the accident is respondent No. 16 in C.M.A. 579 of 1991. The cross-objections are filed by the claimants in O.P. 270/1989 in C.M.A. 579 of 1991.

The Tribunal dealt with and disposed of the O.Ps. separately. However, they arise, out of the same motor vehicle accident. The appeals and the cross-objections involving common questions of law and fact are heard together and they are being disposed of by means of this common judgment as desired.

The reference to parties as claimants, the respondent No. 1 and respondent No. 2, shall be in the status they occupied in the O.Ps. before the Tribunal.

In O.P. 203/1989 the claimants are the wife and daughters of the deceased Honnurappa. In O.P. 204 of 1989 the claimants are the husband and children of the deceased Nagamma. In O.P. 270/1989 the claimants claimed to be the wives, children, sisters and parents of the deceased Bhaskar Reddy. In O.P. 203/1989 Rs. 80,000/- were claimed by way of compensation whereas Rs. 37,000/- were awarded. In O.P. 204/1989 Rs. 60,000/- were claimed whereas Rs. 40,000/- were awarded and in O.P. 270/1989 Rs. 2,50,000/- were claimed whereas Rs. 1,25,000/- were awarded. In all the cases the Tribunal imposed joint and several liability on both the respondents, the owner of the vehicle and the insurer.

Mr. Bhaskara Chary learned advocate for the respondents/claimants in C.M.As. 395 and 412 of 1991 did not argue in regard to the quantum of compensation. Therefore, the quantum of compensation in O.Ps. 203 and 204 of 1989 has become conclusive as no cross-objections are filed.

In all the three appeals the appellant insurer has questioned the finding on the question of liability recorded by the Tribunal as against the insurer making it unlimited. Mr. Kota Subba Rao, the learned advocate has contended that with the materials on record and in view of the terms of the policy, Ex.B-1, and in view of Section 95(2) (b) (ii) of the Motor Vehicles Act, 1939, the limit of liability on the part of the insurer could not have been more than Rs. 15,000/- and therefore, the finding of the Tribunal in that regard and the final award passed in relation to the liability deserve to be set aside.

Mr. Bhaskara Chary, and Mr. Krishnamurthy, learned advocates for claimants have contended that the finding of the Tribunal in relation to the liability does not warrant any interference in view of the fact that the insurer did not take a categoric plea about want of the absolute liability for the reasons which they are presenting in these appeals and secondly in view of the fact that the limit of liability was not specifically mentioned in the policy at Rs. 15,000/- or Rs. 50,000/-. In regard to the cross-objections Mr. Krishnamurthy, the learned advocate has contended that the Tribunal was wrong in holding that the income of the deceased was only Rs. 1,000/- and was also wrong in deducting Rs. 400/- and taking only Rs. 600/- per mensem as the contribution to the family and in spite of the clear evidence that he was having lot of income from the business of photography and some other business in addition to working as supervisor in the tourist bus. At any rate, he has contended that the total amount of compensation awarded in O.P. 270/1989 is inadequate. The owner respondent No. 1 has not contested the claims either in the Tribunal or before this Court.

The three claims were filed u/s 110-A of the Motor Vehicles Act (in short ''the Act''). They were the death claim cases. The three unfortunate persons Honnurappa, Nagamma and Bhaskar Reddy met their end of their final journey of life while travelling in a tourist bus bearing No. AAA 6777 belonging to respondent No. 1. While the bus was journeying between Muktapuram and Srisailam and while the bus was moving on upgradient in a ghat Section, it could not move, came back, moved for a distance and dashed against a parapet wall. It happened on 23-3-1989. Bhaskar Reddy was within the bus when the accident occurred. Nagamma and Honnurappa were obliging the driver to get down from the bus along with other similar passengers of the bus as the bus could not move in the upgradient with so much of load of passengers in the bus. No controversy is raised in regard to these questions of facts. Holding that the accident was due to the negligence of the driver of the vehicle, the Tribunal assessed the compensation and awarded the same depending upon the facts and circumstances of each case.

The convenience warrants that the cross-objections are disposed of first in C.M.A. 579/1991 involving the question of adequacy of the compensation awarded. The claimants tried to establish that the deceased was running a photo studio under the name and style ''Bhaskar Photo Studio'', that he was running a hotel and was working as a supervisor in the tourist bus of the first respondent and that he was earning Rs. 3,000/- to Rs. 4,000/-per mensem. The sworn testimony of P.W.1, the wife of the deceased, P.W.2, the President of the District Photographers'' Association and the testimony of P.W.3, the owner of the bus, namely, the respondent No. 1, was not supported with any documentary evidence in regard to the income of the deceased. P. W.4, claiming to be the fourth wife of the deceased also tried to make a vain attempt in her testimony regarding the income of the deceased at Rs. 4,000/-. In view of the testimony of P.W.3, the owner of the bus and the totality of the circumstances, except Ex. A-5 showing that the deceased had a hotel business, and in the absence of any accounts etc., the Tribunal could not come to a definite conclusion about the actual profession of the deceased and the total income; but based on the testimony of the owner of the bus, the Tribunal took Rs. 1,000/- per mensem as the income of the deceased and deducted Rs. 400/- out of that, calling the deceased as the man of gay attitude having four wives and a dozen of children. With that the Tribunal fixed the multiplicand at Rs. 7,200/- and rounded it off to Rs. 7,000/- and with the age of the deceased at 32 years, adopted the life span method and thereby fixed Rs. 1,05,000/- towards the loss of dependency, added Rs. 20,000/- towards non-pecuniary damages to cover loss of consortium and loss of estate and made the total at Rs. 1,25,000/-.

A re-assessment of the materials as above, shows that the deceased had no definite occupation or definite income. Although the Tribunal has called him a person of gay attitude, he can be fitted into the expression of "bohemian" having committed polygamy and having number of children at the age said to be 25 years when he died, although it was fixed at 32. In fact, the postmortem report mentions his age as 25 years. A person aged 25 years having one legally wedded wife and three illegal contacts and having so many children at his age creates a very serious doubt about his bona fides or the bona fides of the claimants themselves in setting up such a relationship. However, in the absence of any definite contention among themselves or by the respondents in the O.P., this Court may not be justified in probing into such adventures and the immoral activities of the deceased except to record that neither he had any definite occupation nor a known and fixed income and therefore, the Tribunal could not have but fixed a notional or potential income at Rs. 1,000/- or so per mensem deducting Rs. 400/- and taking Rs. 600/- as the contribution or the multiplicand. With Rs. 7,200/- as the multiplicand, by following the true implications of the multiplier method settled in P.C. Kakar Vs. Commandant, Military Hospital, Trimalgiri and Others, , for the age of the deceased at 32 years the multiplier should be ''14''. The loss of dependency with so much of multiplicand and the multiplier, should be Rs. 1,00,800/- and adding Rs. 15,000/- towards loss of expectation of life and Rs. 15,000/- towards loss of consortium towards claimant No. 1, the first and said to be the legally wedded wife, both on facts and law and adding Rs. 2,000/- towards incidental expenses of funeral etc., the total compensation in this case cannot be more than Rs. 1,30,800/-. The difference between this amount and the amount awarded at Rs. 1,25,000/-not being much, there is no reason to interfere with the finding of the Tribunal in this regard. It is also not appropriate to interfere with the finding of the Tribunal in awarding the compensation apportioning the same among only one wife of the deceased and other claimants, i.e., children and sisters of the deceased. In other words, the cross-objections in C.M.A. 579/1991 deserve to be rejected.

In so far as Bhaskar Reddy is concerned, Mr. Subba Rao has no contention in regard to his status in the bus travelling as a passenger for the purpose of his contention of liability. But in so far as the deceased Nagamma and Honnurappa are concerned, although they died while getting down from the vehicle at the relevant time, he has not seriously contended that they were the passengers as the accident occurred in the course of their continuing as passengers till the accident occurred. However, Mr. Subba Rao has made lot of efforts to bring home the correct meaning of ''passenger'' for the sake of considering his contention about the three deceased being the passengers in the bus for deciding the question of liability of Insurer. However, Mr. Krishnamurthy tried to make some efforts to demonstrate that the deceased Bhaskar Reddy was an employee under respondent No. 1 at the time of the accident which determines the question of liability being absolute in law; thereby, the contention of Mr. Subba Rao is sought to be rejected. This Court is not persuaded to accept the contention of Mr. Krishnamurthy, learned advocate in regard to Bhaskar Reddy being the employee under respondent No. 1 at the relevant time. There is no categoric finding in this regard by the Tribunal: except to take the income of the deceased as a whole at Rs. 1,000/-. As already pointed out, even from the evidence of the claimants, the deceased had no definite or one occupation or clear income from a particular occupation. Even according to P.W.3, the owner of the bus, he was travelling in the tourist bus three or four times in a year and it was not a regular employment. No document was produced in support of such a testimony of P.W.3, the owner of the bus, who was in-charge of the tourist bus who is expected to maintain some documents including the persons who are to travel in the bus in various capacities like the deceased and others. P.W.3, the owner of the bus supporting the claims in this regard is crystal clear in he being interested to avoid the liability in paying the compensation and to put it only on the insurer. When his testimony Was not satisfactorily corroborated or supported with documentary evidence except with the interested testimony of others, the Tribunal ought to have recorded a finding in the negative about the deceased being the supervisor in the bus. This Court, after the reassessment of the very material is able to record a positive finding that the deceased could not have been an employee under respondent No. 1 P.W.3 in regard to the bus at the relevant time. Therefore, the inference is that he was a passenger. In other words, all the three deceased persons died while travelling in the bus as the passengers.

Mr. Subba Rao, the learned advocate has rightly relied upon New India Insurance Co. Ltd. Vs. Indersingh and Others, , Oriental Insurance Co. Ltd. Vs. Martin Kanduna and Another, and Mangilal Kale v. Madhya Pradesh State Road Transport Corporation 1988 ACJ 460 in support of his postulation that the persons meeting with the accident while getting down from the bus are passengers for the purpose of fixing the liability on the part of the insurer u/s 95(2) of the Motor Vehicles Act. In Mangilal Kale''s case 1988 ACJ 460 the deceased in order to board a bus got his luggage on the top of the bus while stationary at bus stand, and climbed up the ladder affixed to the bus to check his luggage, the ladder gave way and he fell down and died. Oriental Insurance Co. Ltd. Vs. Martin Kanduna and Another, concerned a passenger meeting with an accident while he was away from the bus for a short while to attend the calls of nature. It was held therein that he continued to be the passenger of the offending bus as he was to continue as such from the place of the start till its destination and he never ceased to be a passenger. In New India Insurance Co. Ltd. Vs. Indersingh and Others, a person was trying to board the bus, his feet were on the steps of the foot board, he fell down and sustained injuries and therefore, he was held to be a passenger. The same view was taken by the High Court of Calcutta in Govind Prasad Mukherjee v. Sujit Bhowmick 1978 ACJ 160 and by the Gujarath High Court in Commissioner, Jamnagar Municipal Corporation, Jamnagar and Another Vs. Vijaykumar Bhagwanji and Another, and another ruling of Rajasthan High Court in Makbool Ahmed v. Bhura Lal 1986 ACJ 219 . But the High Court of Madras in National Insurance Co. Ltd. Vs. V.K. Sundaravali and Others, and in Damodaran v. Santhanam, Unreported - AAO 558/1979, dt.28-7-1991 (Madras) and Sivakumar Transports Vs. Mani alias Palaniswamy and Others, took a different view. The basis of the view of the Madras High Court was that a person boarding the vehicle would not be a passenger and he would be a third party as he was not expected to travel on the foot board. After a detailed and careful consideration of the matter, this Court is unable to agree with the view of the High Court of Madras in the precedents supra and is persuaded to accept the views of the other High Courts stated above in view of the correct legal position in this regard.

The Act does not define a passenger. But Rule 2(1) (k) of the A.P. Motor Vehicles Rules, 1964 defines the ''passenger'' to mean any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty. Mr. Subba Rao has pointed out Section 2(8) to (10) and (14), (14) (a) (sic. 14-A), (15) to (18) (a) (sic. 18-A) of the Act have defined the types of the Motor Vehicles, whereby Section 2(2) (c) (iii) (sic. 2(3)) has defined ''contract carriage'' to mean ''a motor vehicle which carries a passenger or passengers for hire or reward under a contract, expressed or implied, for the use of the vehicle as a whole at or for a fixed or agreed rate or sum''. Strictly speaking, none of these definitions bring out the correct meaning and (sic. of) the expression ''passenger'' in relation to a vehicle to express the liability of persons regarding the vehicle and the insurer. However, Section 2(2) (c) (iii) (sic. 2(3)) of the Act brings out some meaning about a passenger being a person carried for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum which may be on a time basis whether or not with reference to any route or distance etc.

The substance of the law so enshrined in the Motor Vehicles Act and the Rules can also be understood about a passenger being a traveller in the vehicle by virtue of the terms of the contract between the person travelling in the vehicle and the owner of the bus. Beyond that it is difficult to cover any other meaning for the purpose of deciding the question of liability of the insurer u/s 95(2) of the Act. Patently, Section 95(2) of the Act deals with various types of vehicles, goods, the passengers, persons and the employees and even a stranger travelling in the vehicle and not travelling in the vehicle. In the absence of elaboration of such a concept, the Court will be justified in taking recourse to the meaning of such expression ''passenger'' elsewhere legally permissible, like law dictionaries, law lexicons and then other dictionaries.

In Bouvier''s law Dictionary which was of a very old origin, the meaning of the expression was understood in various ways having due regard to the realities of life and the following bring out the same:-

"Passenger- One who has taken a place in a public conveyance by virtue of a contract, for the purpose of being transported from one place to another, on the payment of fare or its equivalent.

The purchase of a ticket and the entry by a person on the premises or accommodation of the carrier creates the relation of passenger and carrier with all its rights, duties and obligation; so does entry on the premises with the intention of buying a ticket.

One becomes a passenger when in the station waiting for a train.

One who gets on the wrong train by his own mistake is a passenger and entitled to care and protection, but not if, on being informed of his mistake, he attempts to leave it.

A contract to carry a passenger from one station to another does not, in the absence of special terms, entitle him to break his journey at any intermediate station.

One who travels regularly in the prosecution of his business on the trains or other conveyances of a carrier, and pays for the privilege of conducting his business, is a passenger entitled to protection, as one who sells popcorns on train. Express passengers and mail clerks are passengers.

One who travels free, is entitled to the same care as the holder of a regular ticket, even if he expressly assumes the risk of accident, etc. (Pages 2509 to 2513 of Bouvier''s Law Dictionary).

The Blank''s Law Dictionary has explained and defined such an expression as hereunder:-

A person whom a common carrier has contracted to carry from one place to another; and has, in the course of the performance of that contract, received under his care either upon the means of conveyance or at the point of departure of that means of conveyance.

One carried for hire or reward, as distinguished from a guest, who is one carried gratuitously, that is, without any financial return except such slight benefit as is customary as part of the ordinary courtesy of the road.

For one who goes to a rail road station to take the next train in a reasonable time before the time for the arrival of the train is passenger, though he has not purchased a ticket and the duties imposed by the relation of carrier and passengers are obligatory on the rail road.

A child about nine months old, who accompanies her mother who is a passenger, is a passenger though riding free (Page 1280 of Black''s Law Dictionary. Fourth Edition).

For an exhaustive dealing of the matter in relation to passenger, the owner of the bus etc. (In such a context, Pages 2509 to 2513 of Bouvier''s Law Dictionary. Third Edition 1914 which was first published and placed in the Clerk''s Office of the District Court of the United States in the year 1839 may be referred).

Now, with the Legal Dictionary and the Law Lexicons, the meaning of ''passenger'' can be taken as having a wide import depending upon the facts and circumstances of each case and not restricted to the persons who are actually sitting in a bus or a vehicle, but to include persons standing in a vehicle in any part of it either inside or outside or the persons who are away from the bus temporarily for legitimate purposes like answering calls of nature taking a cup of tea, waiting outside the bus due to the temporary break of the journey, or for any other reason which breaks the journey either because of that or because of the circumstances including the unforeseen events not under the control of either the driver or owner of the bus and the passengers themselves. The illustrations supra are only few and really they may be plenty.

To put it in a proper legal frame, the relationship of a passenger and the owner of the bus arises out of a contract either to commence or after the commencement till it is terminated by virtue of the terms of the contract or by virtue of the volition of the terms by parties or by virtue of inevitable unforeseen events including Vis Major. The liability of the insurer in relation to such a passenger will depend upon the facts and circumstances of each case regarding which either one or the other party having a special means of knowledge of such facts are to place such material before the Tribunal or court, which has to decide the matter upon such materials in addition to the statutory implications in a particular case.

In addition to the Law Dictionaries and the Law Lexicons defining and explaining the expression ''passenger'', the ordinary and the general dictionaries have also brought out the same meaning in various authoritative Dictionaries. Among them, the Concise Oxford Dictionary has brought out the true legal implication in the light of the expressions made above to include a passenger or driver in or on a public or private conveyance.

Roget''s international Thesaurus. 5th Edition defines ''passenger'' at Pages 150 and 151 as

Traveller, goer, viator, comer and goer; wayfarer, journeyer, trekker, tourist, tourer, tripper, excursionist, sightseer, voyager, globetrotter, pilgrim, passenger, commuter, adventurer, climber, mountaineer; explorer, forty-niner, pioneer, pathfinder, voortrekker, trailbreaker, camper, astronaut;

Wanderer, rover, roamer, itinerant, drifter, floater, vagabond, vagrant, migrant, immigrant, emigrant, evacuee, pedestrian, walker, hiker, night walker, ride, equestrian, horseman, driver, coachman, cabdriver, carter, teamster, driver, motorist, chauffeur, taxi-driver, bicyclist, motorman, railroader, trainman.

Chambers Essential Dictionary defines ''passenger'' as follows:-

''A traveller, not a member of the crew, in a train, ship, aeroplane etc."

The Penguin English Dictionary. 1992 edition defines ''Passenger'' as follows:-

"who travels in, but does not operate, a public or private conveyance, chiefly by a member of a group who contributes little or nothing to the functioning or productivity of the group."

Oxford Advanced Learner''s Dictionary. 4th Edition, defines ''passenger'' as follows:-

"A person travelling in a car, bus, train, plane, ship etc. other than the driver, the pilot or a member of the crew. The driver of the car was killed in the crash but both passengers escaped unhurt, the passenger seat, i.e., the seat next to the driver''s seat in a motor vehicle, a passenger train i.e., one carrying passengers rather than goods, member of a team, crew etc. who does not do so much at the other."

Therefore, if a passenger while getting in or down from the bus or while standing in any portion of the bus both inside and outside meets with an accident, he has the status of a passenger, and cannot be understood to come to an extinction unless facts show that he was to terminate the relationship either by himself or due to the conduct of the owner of the bus. This law was also settled by Supreme Court in Tmt. Noorjahan v. Tmt. Sultan Rajia Thaju 1996 (4) ALT 40. Therefore, under the law the deceased Honnurappa and Nagamma were the passengers in relation to the bus at the time of the accident to examine the liability of the insurer (applicant) in this case within the meaning of Section 95(2) of the Act. Mr. Subba Rao, the learned advocate has pointedly drawn the attention of this Court to Section 95(2) (b) (i) and (ii) of the Act which read as follows;-

"Section 95(2):- Subject to the proviso to Sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely,

(a) xxxxx xxx

(b) (i):- in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;

(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger."

Mr. Krishnamurthy, the learned advocate has tried to canvass that the deceased Bhaskar Reddy in this case was never a passenger firstly on facts regarding which he has failed and secondly he being a third party in so far as the insurer is concerned. On the face of it there is no substance in the contention of Mr. Krishnamurthy and there is all the force in the contention of Mr. Subba Rao. Because all the three deceased persons answered the definition of a passenger within the meaning of Section 95(2) (b) (i) and (ii) of the Act, the limit of liability of the insurer should be either Rs. 50,000/-in regard to each of them (sic.) or Rs. 15,000/- in regard to the same. They can never be covered under Sub-clause (i) because they were not the persons " other than the passengers carried for hire or reward and on the other hand they were the passengers carried for hire or reward coming within the meaning of Sub-clause (ii). He is also right in contending that in regard to the said persons the maximum statutory liability of the insurer would be Rs. 15,000/- per passenger. He has tried to base such a contention both on facts and law and he has relied upon the stipulations of the insurance policy, a copy of which is Ex.B-1 which shows that a premium of Rs. 12/- per passenger was collected to cover the risk of passengers to the extent of Rs. 15,000/- per each passenger. Such a contention is also fortified with the following rulings: M.K. Kunhimohammed v. P.A. Ahmed Kutty 1987 ACJ 872, National Insurance Company Limited v. Jugal Kishore 1988 ACJ 270 and New India Assurance Co. Ltd. Vs. Smt. Shanti Bai and others, Even in a case where there is a comprehensive policy the Supreme Court in catena of the pronouncements upto Santibai''s case has declared the law that the limit of liability has to be determined on the terms of the insurance policy and the statutory limit of liability u/s 95(2) of the Act, the limit of which is maximum, and particularly when the premium is paid for each passenger as above, the maximum limit of liability cannot exceed Rs. 15,000/- per passenger. Following Kunhi Mohammed case 1987 ACJ 872 and Jugal Kishore''s case 1988 ACJ 270 this Court in a latest pronouncement has taken a similar view in The New India Assurance Co. Ltd. Vs. Devula Ramulu (Claimant) and Others, . Therefore, both on facts and law in this case, the limit of liability of the appellant insurer in regard to the three deceased persons could not have exceeded Rs. 15,000/- per individual. The Tribunal has dealt with the question in the light of certain pronouncements of both this Court and other Courts which cannot be any longer good law in view of the pronouncements of the Supreme Court and the latest ruling of this Court cited supra.

Mr. Krishnamurthy, the learned advocate has seriously contended that the appellant-insurer did not take up such a plea clearly and categorically in the written statement in regard to the question of liability on the grounds which are being urged now in these appeals and therefore, the insurer should not be permitted to raise or pursue such contentions. The learned advocate may not be correct in this regard in view of the clear contention taken in para 8 of the written statement wherein it is clearly stated that "this respondent is in any event not liable to pay more than the statutory compensation as per the Act". There is a clear contention raised about the limit of the liability of the insurer/respondent No. 2 and it has been according to statute, meaning thereby, that it should be in accordance with Section 95(2) (b) (ii) of the Act. Even otherwise, such a question being a pure question of law based on the established facts, the appellant is entitled to raise the contention which deserves to be considered by this Court as above to take a correct view in the matter.

Judged as a whole, the Tribunal was not right in placing the total and absolute liability on the appellant/insurer in paying the compensation in any of these three cases.

In the result, all the three appeals are allowed. While confirming the award of the Tribunal in the three cases, it is declared that the limit of liability of the respondent No. 2 appellant-insurer shall be Rs. 15,000/- in each of the cases and respondent No. 1 owner of the vehicle shall be liable in all the three cases to the entire extent. But still, to the extent of limit of liability, both respondents 1 and 2 will be jointly and severally liable to pay the compensation to the extent of Rs. 15,000/-.

The Cross-Objections in C.M.A. 579 of 1991 are hereby rejected. In the peculiar circumstances there shall be no order as to costs in these appeals and the cross-objections.

If any amount is already paid, that shall be given deduction and if any excess amount is paid by the appellant/insurer, that shall be refunded regarding which it shall be treated as an award in favour of the insurer.