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1971 DIGILAW 284 (KAR)

M. T. BHAT v. KANAKA LAXMI

1971-09-15

CHANDRASHEKARAIAH, RANGE GOWDA

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CHANDRASHEKHAR, J. ( 1 ) THIS appeal under S. 110d of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) , is from an order of the Motor Accidents claims Tribunal, Dharwar (hereinafter referred to as the Tribunal), awarding a compensation of Rs. 9,000 to respondent 1 herein. ( 2 ) RESPONDENT 1 herein is the wife of one Keshava Bhat who died on 16-5-1965 in an automobile accident at Haveri. She presented an application under S. 110a of the Act before the Tribunal, claiming a compensation of Rs. 15,000 for the death of her husband. The appellant was the owner of the motor car involved in the accident, while respondent 2 was the insurer of that car. ( 3 ) THE Tribunal held that deceased Keshava Bhat was travelling in that car at the time of the accident and was not driving it and that the accdent was due to negligent driving of the car by DW. 2 who was an employee of the appellant. As stated earlier, the Tribunal awarded compensation of Rs. 9,000 with costs and interest at 6 per cent per annum from the date of the order till payment. The Tribunal directed the appellant the owner of the car, to pay the compensation to respondent 1. The tribunal held that according to the terms of the insurance policy, respondent 2, the insurer, was not liable to pay such compensation. ( 4 ) FEELING aggrieved by the order of the Tribunal, the owner of the car has preferred this appeal. Mr. P. Ganapathy Bhat, learned Counsel for the appellant, advanced the following contentions; (i) the Tribunal erred in holding that the accident was due to rash or negligent driving of the vehicle; (ii) the Tribunal erred in holding that the appellant was vicariously liable to pay the compensation; (iii) the quantum of compensation awarded was excessive; and (iv) the Tribunal should have directed the insurer to pay the compensation. ( 5 ) THOUGH Mr. Ganapathy Bhat canvassed the finding of the Tribunal that the accident was due to negligent driving of the car by DW. 2, the driver, Mr. Ganapathy Bhat was not able to show any infirmity in that finding of the Tribunal. ( 6 ) AS the Tribunal has held that DW. ( 5 ) THOUGH Mr. Ganapathy Bhat canvassed the finding of the Tribunal that the accident was due to negligent driving of the car by DW. 2, the driver, Mr. Ganapathy Bhat was not able to show any infirmity in that finding of the Tribunal. ( 6 ) AS the Tribunal has held that DW. 2 who was driving the car at the time of the accident, was an employee of the appellant, it followed that the appellant was vicariously liable for the negligent conduct of the driver. Hence, we are unable to accept the contention of Mr. Ganapathy bhat that the appellant was not vicariously liable for the compensation. ( 7 ) THE contention of Mr. Ganapathy Bhat regarding the quantum of compensation, was supported by Mr. U. L. Narayana Rao, learned counsel for respondent 2, the insurer. Both these learned Counsel contended that amount deducted from the monthly earning of the deceased, towards his personaal expenditure, was not adequate and that consequently the amount which he could be expected to contribute to his family was over-estimated by the Tribunal. It was also contended that the Tribunal had not made sufficient allowance for the uncertainties of the life of the deceased even if he had not died of that accident and for the advantage of receiving the compensation in a lump sum. ( 8 ) RESPONDENT 1 claimed that her husband was earning Rs. 100 per month. Her evidence on this point was not challenged. The Tribunal estimated that he would have spent Rs. 50 per month for his personal expenditure and would have contributed Rs. 50 per month to his wife. On that basis, the Tribunal calculated his annual contribution to his family at rs. 600. On the expectation that he would have lived till his 60th year if he had not died of that accident, the Tribunal multiplied the aforesaid sum of Rs. 600 by 15 years and arrived at a compensation of Rs. 9,000. ( 9 ) MR. K. Shivashankar Bhat, learned Counsel for Respondent 1, contended that the compensation assessed by the Tribunal could not be said to be excessive because though the deceased was earning Rs. 100 per month at the time of the accident, his earning was likely to increase in future years as he gained more experience and as there was a general upward trend of wages and prices. 100 per month at the time of the accident, his earning was likely to increase in future years as he gained more experience and as there was a general upward trend of wages and prices. There is considerable force in the contention of Mr. Shivashankar Bhat. ( 10 ) WE think, the Tribunal has not made due allowance for the uncertainty of the life of the deceased even if he had not died of that accident, for the uncertainty of the life of Respondent 1 herself and for the advantage in receiving the entire compensation in one lump sum. ( 11 ) TAKING into account all these factors, we think, the compensation can be reasonably assessed at Rs. 7,500 and we modify the compensation awarded by the Tribunal accordingly. ( 12 ) MR. Ganapathy Bhat next contended that the Tribunal was not justified in holding that the insurer was not liable to indemnify the insured for the latter's liability to pay the compensation as awarded by the Tribunal mr. Ganapathy Bhat invited our attention to clause (1) in S. II of the insurance policy which is marked as Ex. D4. The material portion of clause (1) reads :" (1) The Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of- (a) death of or bodily injury to any person but except so far as it is necessary to meet the requirements of S. 95 of the Motor Vehicles act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the Insured. (b ). . . . . . . . . . . " ( 13 ) FROM the above clause, it is clear that the insurer had under-taken to indemnify the insured against liability arising from the death or bodily injury of any person except where such liability was in respect of the death or injury to an employee of the insured in the course of his employment but subject to any liability under S. 95 of the Act. Sub-sec. Sub-sec. (5) of Sec. 95 provides that notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that preson or those classes of persons. As stated earlier, the Tribunal has found that deceased Keshava, Bhat was not an employee of the Insured (the appellant ). Hence, under Clause (1) of Section II of the insurance policy, the insurer was liable to indemnify the insured in respect of any liability arising out of death of any person other than "the employee of the insured. Sub-sec. (5) of S. 95 of the Act clearly provides that the insurer is not absolved of such liability notwithstanding anything contained in any law. Hence, the insurer was clearly liable, to idemnify the appellant in respect of the compensation awarded by the Tribunal. The view we have taken receives support from the following observations of the Supreme Court in New Asiatic Insc. Co. v. Pessumal, AIR. 1964 SC. 1736 at 1740, at p. 1740:"sub-sec. (5) of S. 95 makes the Insurer liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. If the policy covers the insured for his liability to third parties, the insurer is bound to indemnify the person or classes of persons specified in the policy. " ( 14 ) IN the result, we allow this appeal in part and in modification of the order of the Tribunal, we direct respondent 2 to pay to respondent 1 a sum of Rs. 7,500 together with interest at 6 per cent from the date of the order of the Tribunal (4-9-1969) till payment and the costs awarded by the Tribunal. ( 15 ) HAVING regard to the fact that the appellant has partly succeeded and partly failed, we direct the parties to bear their own costs in this appeal. --- *** --- .