United India Insurance Co. Ltd. vs Annamma Sebastian and Others

K.K. Usha, J.—The above appeals arise out of an award passed by the M.A.C.T., Kottayam, in O.P. (MV) No. 523 of 1987. M.F.A. No. 651 of 1990 is at the instance of the insurance company. M.F.A. No. 883 of 1990 is filed by the registered owner of the offending vehicle and M.F.A. No. 978 of 1990 by the claimants for enhancement of the amount of compensation.

The petition was filed by the widow, five children and the mother of Dr. Sebastian who died in a road traffic accident on 17.1.1987, claiming compensation to the extent of Rs. 24,34,000. The Tribunal found that the accident happened due to the negligence on the part of the driver of the lorry which hit against the car in a head-on collision resulting in Dr. Sebastian sustaining fatal injuries. Even though the injured was shifted to the Medical College Hospital immediately after the accident, he succumbed to the injuries after reaching the Medical College Hospital. The Tribunal found that the claimants are entitled to compensation to the extent of Rs. 9,21,000 with 12 per cent interest. Respondent No. 4 insurance company which had covered the offending vehicle by a valid insurance policy, was directed to deposit the amount after entering a finding that the driver and registered owner of the lorry and insurance company are liable to pay the compensation.

In M.F.A. No. 651 of 1990, insurance company raises the contention that no liability should have been cast on it since the registered owner had transferred the vehicle in favour of the respondent No. 3 at the time of the accident, the respondent No. 2 with whom the insurance company had entered into a contract of insurance, was no longer the owner of the vehicle and, therefore, insurance company cannot have any liability to pay the compensation. We do not find any merit in this contention in the light of the authoritative pronouncement of the Apex Court. Since the accident in this case happened on 17.1.1987, the law that is applicable is the provisions of Motor Vehicles Act, 1939. Supreme Court had occasion to consider the liability of the insurance company as per the provisions of Motor Vehicles Act, 1939 under similar circumstances in two decisions: The New India Assurance Co. Ltd. Vs. Smt. Sheela Rani and Others, and G. Govindan Vs. New India Assurance Co. Ltd. and Others, . Reference was made in detail to a Full Bench decision of the Andhra Pradesh High Court in Madineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 by the Supreme Court in the latter decision and the principle laid down therein was approved in full. After referring to the provisions contained u/s 95, it was observed by the Full Bench as follows:

Now the question is whether such rights secured to the third party by insuring the vehicle can be defeated by transferring the vehicle during the period when the policy is in force. It is significant to note that Section 95 requires the insurance of the vehicle. Once the vehicle is covered by the insurance not only the owner but any person can use the vehicle with his permission. Section 94 does not require that every person that uses the vehicle shall insure in respect of their separate use. The decided cases now held that on transfer the policy will lapse and a third party cannot enforce the policy against the insurance company. We must make it clear that there are two third parties when such transfer took place. One is a transferee who is a third party to the contract and the other for whose risk the vehicle is insured. We have no hesitation to hold that the transferee who is a third party to the contract cannot secure any personal benefit under the policy unless there is a novation, i.e., the insurance company, the transferor of the vehicle and the transferee must agree that the policy must be assigned to the transferee so that the benefit derivable, or derived under the policy by the original owner of the vehicle, the policyholder, can be secured by the transferee. Thus, it is clear under a composite policy, covering the risk of property, person, third party risks, the transferee cannot enforce the policy without the assignment in his favour so far the policy covers the risk of the person and property. He has no remedy against the insurance company.

After approving the dictum laid down by the Full Bench of the Andhra Pradesh High Court, the Apex Court observed as follows:

(14) The heading of Chapter VIII of the old Act reads as ''Insurance of Motor Vehicles Against Third Party Risks''. A perusal of the provisions under Chapter VIII makes it clear that the legislature made insurance of motor vehicles compulsory against third party (victim) risks. This court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958 ACJ 559 after noticing the compulsory nature of insurance against third party observed that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties'' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy.

(15) In our opinion, both under the old Act and under the new Act, the legislature was anxious to protect the third party (victim) interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts.

The very same view was taken in the earlier judgment referred above. Reference was also made to M/s. Complete Insulations (P) Ltd. Vs. New India Assurance Company Ltd., where the provisions of the Motor Vehicles Act, 1988 were considered. In this case also, the decision of the Full Bench of Andhra Pradesh High Court was quoted with approval. It was then held that the entire Chapter XI of the new Act concerns third party risk only. It is, therefore, obvious that insurance is compulsory only in respect of the third party risk since Section 146 prohibits the use of a motor vehicle in a public place unless there is, in relation thereto, a policy of insurance complying that requirement of Chapter XI. Thus, the requirements of that Chapter are in relation to third party risks only and hence, the fiction of Section 157 of the new Act must be limited thereto. The provisions under the new Act and the old Act in this behalf are substantially the same in relation to liability in regard to third party. If the policy of insurance covers other risks as well, namely, damage caused to the vehicle that would be a matter falling outside Chapter XI of the new Act and in the realm of contract for which there must be agreement with the insurer and the transferee, the former undertaking to cover the risk to the damage of the vehicle.

Learned counsel for the insurance company contended that the insurance company is not liable to indemnify the vicarious liability of an owner with whom insurance company had not entered into an agreement of insurance. Therefore, according to learned counsel, no liability could have been cast on the appellant insurance company in the facts of the present case. Whatever be the common law principle, in the light of the specific statutory provisions contained in Motor Vehicles Act, 1939 as well as Motor Vehicles Act, 1988 referred to and discussed in the above-mentioned decisions, we have no hesitation to hold that the liability of the insurance company to cover the third party risk does not cease on the transfer of the vehicle by the respondent No. 2 to the respondent No. 3. No other points were pressed before us by the appellant insurance company in this appeal.

In M.F.A. No. 883 of 1990, which is an appeal at the instance of the registered owner, the main contention raised is that quantum of compensation granted is excessive, while in M.F.A. No. 978 of 1990 filed by the claimants, the complaint is that the compensation is not sufficient. The deceased was admittedly a medical practitioner with higher qualifications. He was working as Chief Medical Officer of a private hospital at the time of his death. His monthly income adopted by the Tribunal was at the rate of Rs. 6,000 p.m. The appellants in M.F.A. No. 978 of 1990 have a contention that the monthly income adopted was on the lower side and further enhancement in income was not taken into consideration. Even if this contention is favourably accepted, we find that the loss which they would have suffered on this count and more would be set off by the high multiplier adopted by the Tribunal. Deceased was aged 48 at the time of the accident. Tribunal has adopted 14 as the multiplier which is very much on the higher side going by the principle laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, Apart from the above, we find that the deduction towards personal expenses was made only to the extent of 1/5th of the income instead of 1/3 as was laid down by the decisions of the Apex Court. We are of the view that in calculating the loss of contribution by the deceased, Tribunal has not applied the correct principles. The future enhancement of income should have been taken into consideration. But, as mentioned earlier, the Tribunal had adopted a higher multiplier which is not justified at all. Apart from the above, while the claimants are entitled to an amount of Rs. 5,000 as a conventional amount for pain and suffering of the deceased, only Rs. 4,000 had been granted. Tribunal has granted an amount of Rs. 10,000 towards shock and agony of the claimants which they are not legally entitled to. But, at the same time, no amount has been granted towards loss to estate, which should have been awarded in a conventional sum of Rs. 15,000. The reduction in the quantum, which would have caused by not taking into consideration future enhancement in the income and failure to grant amount towards loss to estate would have been compensated by the application of higher multiplier and grant of an amount of Rs. 10,000 under the head of shock and agony of the claimants which they are not legally entitled to. It is under these circumstances, we are taking the view not to interfere with the quantum of award. We make it clear that we are not approving the method followed by the Tribunal in assessing the quantum of compensation.

In the result, we affirm the award passed by the Tribunal and dismiss all the three appeals. No costs.