United India Insurance Co. Ltd. vs Ram Dulari Devi and Others

Bhuneshwar Prasad, J.—This is an appeal u/s 110D of the Motor Vehicles Act, 1939 as amended by the Act LVI of 1961 (in short the Act) it is directed against the judgment. and award dated 28.9.1985 and 7.10.1985 respectively passed by Sri Srideo Mishra, Judicial Commissioner, Chhotanagpur, Ranchi Cum Motor Vehicles Accidents Claims Tribunal (in short the Tribunal) Ranchi in Misc. Judicial (Compensation) Case No. 197 of 1982, by which the learned Tribunal held that the claimant Smt. Ram Dulari Devi and others (respondent Nos. 1 to 4) were entitled to get compensation estimated at Rs. 50,000/ payable by the Insurance company (the appellant) along with the interest at the rate of 6% per annum from me date of filing of the claim petition till the date of its realisation.

It appears that an application u/s 110 A of the Act was filed by respondent Nos. 1 to 4 with respect to an accident which has taken place at 6.30 P.M. on 19.9.19981 in village Pugu situated at a distance of 3 Kilometers from Gumla police station. The deceased Maheshwar Nath Sahu of village Karamtoli, P.S. Gumla was going to village Sissai for his business, on the said date one Mini Bus (Maxi-Taxi No. B.H.V. 8843) when he reached near village Pugu, met with an accident causing multiple injuries to him. After the accident Maheshwar Nath Sahu was taken to Gumla Hospital where he was declared dead. The cause of the accident was rash and negligent driving of the Vehicle. Maheshwar Nath Sahu at the relevant time was aged about 35 years. He was having business and his monthly income was Rs. 1000/- He left behind his widow and three minor sons (respondent Nos. 2 to 4). He was the only earning member of the family. Accordingly a sum of Rs. 1,50,000/- was claimed by way of compensation.

The owner of the Maxi Taxi No. B.H.V. 8843 (respondent No. 5) filed a show cause before the learned Tribunal, He contended that the vehicle was insured with the present appellant. Hence he is not liable to pay any compensation. He further alleged that the deceased was in charge of the Maxi Taxi and he used to manage and look after it. The management of vehicle was given to the deceased in accordance with the terms of an agreement between the deceased and respondent No. 5.

So far as the present appellant is concerned, it was contended on its behalf that at the relevant time of accident, the deceased was not a bonafide passenger of Maxi-Taxi B.H .V. 8843. The Insurance Company was not liable to pay compensation in absence of the policy particulars of this vehicle. Both the claimants and the owner of the vehicle have to prove about the liability of the Insurance Company. No information about this accident was given to the Company either by the claimants, or by the owner of the vehicle. The amount of compensation as claimed was excessive, arbitrary and without any basis. The liability of the Insurance Company u/s 95 (2)(b)(ii)(4) of the Act is only up to the extent of Rs. 5,000/-.

On the aforesaid pleadings of the parties, the learned Tribunal passed the impugned award and judgment holding that respondent Nos. 1 to 4 were entitled to get Rs. 50,000/- by way of compensation from the appellant. It is against this judgment and award that the present appeal has been filed.

In this appeal it has been contended that the impugned judgment and award are bad in law and wrong on facts. The learned Tribunal had erred in awarding the compensation of Rs. 50,0000 against the appellant It should have held that the evidence adduced by the claimants (respondent Nos. 1 to 4) in the court below did not establish negligence and as such, the owner or the Insurance Company should not be held to be liable for the payment of any compensation as held by the Hon''ble Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramachandra Nayan, 1977 ACJ 118 . In any view of the matter, the liability of the appellant could not have been more than what has been prescribed u/s 95(2)(9B)(ii)(4) of the Act. i.e. Rs. 35,000/- in all the learned Tribunal had erred in allowing compensation of an amount more than Rs. 30,000/-. It wrongly assessed monthly incomes of the deceased at Rs. 800/- per month. It should have deducted 25% on account of life and in addition to it 50% being the expenditure to cover day to day expenses. The learned Tribunal should have made local inspection, should not have relied on the evidence which is self contradictory. The award is vague and arbitrary. On these grounds amongst others it has been contended that the judgment and the award of the learned Tribunal be set aside.

This appeal came up for admission before this Court. The order sheet dated 4.4.1986 shows that this appeal was confined only to the question of quantum of compensation and on this condition it was admitted for hearing. Under these circumstance, the parties have been heard only on the question of the compensation fixed by the learned Claims Tribunal, as such this appeal is being disposed of only with respect to the question of the quantum of the compensation.

At the time of hearing. Sri D.N. Chaterjee, and Sri S.K. Dutta appeared on behalf of the appellant. No body had appeared on behalf of the respondent. They have drawn my attention in paragraph Nos. 7, 15 and 16 of judgment of the learned Tribunal with respect to the issue Nos. 2 and 3 framed by it. They have also placed reliance on the case of M.K. Kunhimohammed Vs. P.A. Ahmedkutty and Others, in support of their contention that the appellant cannot be held liable for an amount exceeding Rs. 5,000/- under the facts and circumstances of this case. Before however, taking up for consideration this aspect of the matter, I think that it will be useful to consider whether the deceased was an employee of respondent No. 5. (the owner of the vehicle) or whether he was a passenger being carried by the said vehicle for hire.

In this connection, firstly a reference may be made to the case of the petitioner before the learned Tribunal, according to which, the deceased was going to Sissai for his business on 19.9.1981 by the vehicle in question. On the way he met with an accident. It was no where the case of the petitioners (The present respondent Nos. 1 to 4) that the deceased was an employee working on this vehicle. So far as respondent No. 5 is concerned, it was alleged on his behalf that the deceased was in charge of Maxi and Taxi B.H.V. 8843 and he used to manage and look after it. It was further alleged on his behalf that there was an agreement between the deceased and respondent No. 5 for the management of this vehicle. These allegations to say the least, are extremely vague and they carry us no where. So far as the present appellant is concerned, it was contended on its behalf that at the relevant time the deceased was not the bonafide passenger of this vehicle and as such the appellant will not be liable to pay any compensation in absence of the policy particulars of the vehicle. Since however, this policy was not produced before the Tribunal no liability can be fixed on the appellant.

Four issues have been framed by the learned Tribunal. Issue No. 3 runs as follows.-

Is the amount of compensation as claimed, correct and legal and who is liable to pay the same.

This issue is dealt with in paragraph Nos. 14 and 16 of the judgment and award. Paragraph 16 of the judgment shows that on behalf of the present appellant it was urged before the learned Tribunal that this case would come within the purview of Section 95(2(b)(ii)(4) of the Act and not within the purview of Section 95(2)(b)(ii)(i) of the Act. The learned Tribunal came to the conclusion that the case was covered u/s 95 (2)(b)(iii)(i) of the Act and accordingly, it held that the liability of the Insurance Company was to pay the compensation up to the extent of Rs. 50,000/- under the aforesaid provision of law. It, however, appears that it was not urged before the learned Tribunal that the deceased was an employee of respondent No. 5 and not a regular passenger of this vehicle. It further appears that no finding in this regard has been given by the learned Tribunal. From this its would appear that finally it was not disputed before the learned Tribunal that the deceased was not a passenger on this bus, but only an employee of respondent No. 5. In that view of the matter, this finding appears to be concluded.

Before me Sri Chatterjee, the learned Counsel has submitted that under the aforesaid circumstances, the provisions of Sections 95(3)(b)(i) will not be attracted. On the other hand, it was his contention that the provisions of Section 95(2)(b)(ii)(4) would be attracted and therefore, the liability of the appellant would be only to the extent of Rs. 5,000/- for each individual passenger. It was on this ground that he has submitted that the present appellant can not be held liable for any amount of compensation exceeding of Rs. 5,000/- As stated above, the present appeal has been admitted on the question of quantum of the compensation and it is in this background that this submission of Sri Chatterjee has to be examined.

In support of his contention as stated above the learned Counsel has drawn my attention in the case of M.K. Kuni Mohammad (supra). From the facts of the said case, it would appear that M. K. Mohammad was the owner of the bus which was being run as a stage carriage. On 24.7.1978, while the said Bus was carrying, it met with an accident, as a consequence of which, one of the passengers died. The claims Tribunal found that the compensation payable by the petitioner to the legal representatives of the deceased was Rs. 56,800/-. It, however, held that the liability of the Insurert to indemnify the passenger was limited to Rs. 5,000/- as the policy specifically limited the insurer liabillity, to what has been provided by Section 95(2)(ii)(4) of the Motor Vehicles Act, 1939. Aggrieved by this decision of the Tribunal, the petitioner filed an appeal before the High Court of Kerala. The appeal was dismissed. Accordingly a petition was filed under Article 136 of the Constitution for special leave to appeal against this judgment of the High Court of Kerala. The appeal was dismissed. Accordingly, a petition was filed under Article 136 of the Constitution for special leave to appeal against this judgment of the High Court. It was urged before the Hon''ble Supreme Court that the Insurer was liable to indemnify the petitioner up to the limit of Rs. 25,000/- u/s 95(2)(b)(ii)(2) of the Act and that the further limit mentioned in Section 95(2)(b)(ii)(4) of the Act was in applicable to the case of the petitioner. In this case, it was held as follows.--

Section 95(2)(b) as it existed before its amendment in 1982 dealt with the limits of the lliability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a, contract of employment. Sub-section (i) of Section 95(2)(b) provided that in respect, of death or injury to persons other than passengers carried for hire or reward a limit of Rs. 50,000/- in all was the limit of the liability of the insurer. Sub-clause (ii) dealt with the liability in respect of death of or injury to passengers. Under that Sub-clause there were two specific limit on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggregate liability of the insurer in any one accident. It was fixed at Rs. 50,000/- in all where the vehicle was registered to carry not more than thirty passengers. At Rs. 75,000/- in all where the vehicle were registered in carry more than thirty but not more than sixty passengers and at Rs. 1,00,000/-in all where the vehicle was registered to carry more than sixty passengers. The said Sub-clause proceeded to lay down the outer limit in respect of each passenger by providing that subject to the limits aforesaid as regards the aggregate liability, the liability extended upto Rs. 10,0000/- for each individual passenger where the vehicle was a motor cab and Rs. 5,000/- for each individual passenger in any other case. Neither of the two limits can be ignored.

In this connection my attention has been drawn to the case of Motor Owners'' Insurance Company Limited Vs. Jadavji Keshavji Modi and Others, . After taking into consideration this decision, the Supreme Court in the case of Kamul Mohammad (supra) observed as follows.-

....Clause (a) of Section 95(2) of the Act qualified the extent of the insurer''s liability by the use of the unambiguous expression in all and since that expression was specially introduced by an amendment, it must be allowed its full play. The legislature must be presumed to have intended what it had plainly said But Clause (a) did not stand alone, and was not the only provision to be considered for determining the out side limit of the insurer''s liability. It was necessary to give effect to the words any one accident'' which formed part in the opening part of Sub-section (2) of Section 95 of the Act. The court, therefore, held that if more than one person was injured during the course of the same transaction each one of the persons must be deemed to have met with an accident. Accordingly, the court held that each of the persons who was entitled to claim compensation under Clause (a) of Sub-section (2) of Section 95 of the Act was entitled to claim as sum of Rs. 50,0000/- which was the limit prescribed by the said clause on the date on which the accident referred to in that case occurred. The court however distinguished the decision of this Court in Sheikhupura Transport Co. Ltd. Vs. Northern India Transport Insurance Co., which was a case in which Clause (b) of Sub-section (2) of Section 95 of the Act had arisen for consideration. In doing so the court observed thus (at p.p. 2067-2068 of A.I.R.). 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 the Report. Hedge J. Speaking for himself and Jaganmohan Reddy J. Concluded.

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

Towards the end of judgment, it was observed that rending the provisions contained in Section 95 and 96 together. "It is clear that the statutory liability of the insurer to indemnify the insured is a prescribed in Section 95(2). Hence the High Court was right to its conclusion that the liability of the insurer in the present case only extends upto 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 the Act 56 of 1969, but we do not propose to make any observation on that aspect of the matter, since it does not directly arise before us".

In view of these authoritative pronouncements by the Hon''ble Supreme Court, there is no escape from the conclusion that the liability of the appellant cannot be more than Rs. 5,0000/- and therefore, the quantum of the compensation awarded against it has to be reduced from Rs. 50,000/- to Rs. 5,000/-. The appellant can not be saddled with any amount higher than Rs. 5,000/- by way of compensation. However, in this connection a reference may be made to Section 110(B) of the Act. according to which it was for the claims Tribunal to specify the amount which shall be paid by the insurer. Owner or the driver of the vehicle involved in the accident or by all or any of them as the case may be, In the present case, it, however, appears that the learned claims Tribunal has ordered only the appellant to pay a sum of Rs. 50,000/- by way of compensation. As stated above, the appellant can not be called upon to pay more than Rs. 5,000/-.

Under the facts and circumstances of case, it is clear that the judgment and the award given by the learned claims Tribunal has to be modified to the extent to fixing the liability on the appellant only to the extent of Rs. 5,000/-. The appeal is ordered accordingly. The judgment and the award of the learned claims Tribunal is modified to this extent. However, the appellant will be liable to pay the interest at the rate of 12% to the respondents from the date of the presentation of the claim till its realisation.

On behalf of the appellant it has been submitted that it has already deposited a sum of Rs. 62,250/- on 15.8.1986 in the court of the learned claims Tribunal. If this is so, the appellant will be entitled to get a refund of the balance of amount.

With this observation, this appeal is disposed of. There shall be, however, no order.