MANMOHAN SARUP KAUSHAL v. MELA RAM — 1976 DIGILAW 198 (DEL)

B. C. Misra, J. ( 1 ) THIS judgment will dispose of nine appeals; three bearing No. 126, 158 and 159 of 1975 being filed by the insurance company, three bearing No. 106, 107 and 108 of 1975 being filed by the owner of the offending vehicle and three bearing No. 51, 66 and 74 of 1975 being filed by the claimants. All of them are directed against the award of the Motor Accidents Claims Tribunal dated 20. 12 1974 by which the Tribunal has awarded compensation of Rs. 20,190. 00 on account of the death of Mrs. Prem Lata Kaushal and Rs. 8,000. 00 on account of death of Miss. Shobhana besides Rs. 32,520. 00 to Miss. Rachna on account of personal injuries. In all, the award is for Rs. 60,710. 00 out of Which the liability of the insurance company has been limited to Rs. 50,000 -. ( 2 ) THE material facts of the case are that on 11. 6. 1970 at about 11. 15 at night, truck No. DLL-5761, which was owned by the owner Roop Narayan and driven by his employee Mela Ram ran over the deceased causing their death and causing injuries to Miss. Rachna, appellant. Mr. Manmohan Sarup, the husband of Mrs. Prem Lata K-aushal deceased and father of Miss. Shobhana, deceased claimed compensation for their death while Miss. Rachna, minor claimed compensation for her injuries. In this way, three claims petitions were filed which have been tried together and disposed of by the award as mentioned above. Feeling aggrieved the insurance company as well as the owner of the vehicle and the claimants have filed these appeals and I have heard Mr. S. C. Dhanda, Advocate for the insurance company, Mr. H. S. Dhir, Advocate for the owner of the vehicle and Mr. O. P. Goya), Advocate for the claimants. ( 3 ) I shall take up the appeals of the insurance company. The main contention vigorously advanced by Mr, Dhanda before us is that the liability of the insurance company is limited to Rs. 20,000. 00 as the policy cover in respect of the offending vehicle was issued prior to the commencement of the amending Act and so the increase in the extent of the liability effected by the amending Act does not apply to the case. 20,000. 00 as the policy cover in respect of the offending vehicle was issued prior to the commencement of the amending Act and so the increase in the extent of the liability effected by the amending Act does not apply to the case. The provisions of law as they stood prior to the amendment are contained in the Motor Vehicles Act, 4 of 1939 (hereinafter referred to as the act ) and Chapter 8 thereof is relevant for purposes of these appeals Section 9-4 (1) lays down,. . . that no person shall use a motor vehicle in a a public place unless there is in force in relation to the use of the vehicle by that person. . . a policy of insurance complying with the requirements of this Chapter. Section 95 prescribes the conditions and requirements of the statutory policy of insurance. Subsection (2) states that subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of one accident upto the following limits namely- (b) Where the vehicle is a vehicle in Which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment : (i) in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees in all; Sub-section (4) provides that a policy shall be of no effect for the purposes of this Chapter unless and until they are issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. Sub-section (5) 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 person or those classes of persons. ( 4 ) THESE provisions were amended by the Motor Vehicles Amendment Act, 56 of 1969 and by section 54 thereof for the word twenty thousand, the word fifty before thousand has been inserted. ( 4 ) THESE provisions were amended by the Motor Vehicles Amendment Act, 56 of 1969 and by section 54 thereof for the word twenty thousand, the word fifty before thousand has been inserted. This amending Act was assented by the President on 29. 12. 1969 but it was directed to come into force under Modification No. SA 0829 with effect from 2nd March, 1970. The result is that on the date the accident occurred, i. e. 11th June, 1970 the amending Act had come into force and the statutory liability of the insurance company had been raised to the limit of Rs. 50,000. 00 but prior to it, it was Rs. 20,000. 00. Mr. Dhanda contends that the liability of the insurance company arises only under the contract of insurance, which is compulsory under the statute; but the liability does not directly arise per se by the force of the statute. I have no doubt about the correctness of this proposition of law and the authorities cited by Mr. Dhanda do support the proposition. Reference in this connection may be made to only two of the several authorities cited by him, namely, K. N. P. Patel and Others v. K. L. Kasar and others, and Premier Insurance Company Limited v. Padma Srinivasan. I respect fully agree with them. The difficulty in the submission of Mr. Dhanda does not relate to the question of law, but to the question of fact. He has argued that the policy in this case had been issued on 14th August, 1969 with effect from 31st July, 1969 and was in force, till 30th July, 1970 and that no extra premium had been paid and no additional cover note had been issued and the policy had not been amended to enhance the liability from Rs. 20,000. 00 to Rs. 50,000. 00. These are all questions of fact, which have neither been admitted nor proved on the record. Unfortunately, the insurance policy has not been produced or proved, nor has any evidence been led on behalf of the insurance company. Therefore, the question whether the insurance policy had covered the increased risk or not, is a question of fact which has not been established. I am not agreeable to remand the case for admitting the additional evidence in respect of the policy. Therefore, the question whether the insurance policy had covered the increased risk or not, is a question of fact which has not been established. I am not agreeable to remand the case for admitting the additional evidence in respect of the policy. The reason is under section 94 there is a statutory bar against a person using a motor vehicle at public place unless and until there is in force in relation to the vehicle a policy of insurance complying with the requirements of Chapter 8 and as after 2nd March, 1970 the offending vehicle was in use (and no suggestion has been given that the vehicle was being used without any insurance policy) the court was entitled to presume that on and from 2nd March, 1970 when the amending Act came into force, the insurance policy in respect of the vehicle conformed to the requirements of the law and insured the risk upto Rs. 50,000. 00; no evidence to the contrary has been produced on the file to rebut the presumption. Moreover, the insurance company is entitled to recover from the owner of the vehicle the excess amount it is made to pay for the accident. This was envisaged by the contract of insurance and the insurance company will be free to pursue its remedy for the purpose. It is, therefore, too late in the day to remand the case for re-trial for filling the lacuna in the case. Consequently, I have declined to do so. The result is that the appeals of the insurance company must fail. ( 5 ) THIS takes us to the consideration of the appeals of the owner of the vehicle as well as the claimants. The causing of the accident resulting in the death and injuries has been fully established on the record and the rash and negligent act of the driver of the vehicle has been proved to the hilt. The liability has not been even seriously challenged before me. Even otherwise, it is proved by the evidence of Jai Parkash Public Witness 2, Ripu Daman, Public Witness 6, and D. N. Gupta Public Witness 7. I have gone through the record which shows that nothing has been brought out in their cross-examination to cast a doubt in their veracity. The liability has not been even seriously challenged before me. Even otherwise, it is proved by the evidence of Jai Parkash Public Witness 2, Ripu Daman, Public Witness 6, and D. N. Gupta Public Witness 7. I have gone through the record which shows that nothing has been brought out in their cross-examination to cast a doubt in their veracity. Their evidence fully proves, as has been held by the Tribunal below that the offending truck went off the metalled portion of the Link Road at a separate place and reached the back yard of the claimants quarters after over running and injuring the deceased and her two daughters, who had been sleeping in the backyard and then it stopped after it struck and damaged the back wall of the quarter and the impact that the wall had was very severe and the engine of the truck was still in motion even after striking the wall. I have, therefore, no hesitation in affirming the finding of the Tribunal below that the offending truck was being driven rashly and negligently and in a hazardous manner and has resulted in the two deaths and injuries complained of. Consequently, Mela Ram, the driver of the vehicle himself, and Ram Narain, owner of the vehicle in the course of whose employment the vehicle was being driven, are jointly and severally liable to pay compensation for injuries caused for the rash and negligent act. The insurance company is also liable as an insurer. The appeals of the owner of the vehicle have, therefore, no force and must be dismissed. ( 6 ) MR. Goyal for the claimants had argued his appeals and claimed enhancement of damages, but I find that no adequate grounds have been shown for interfering with the quantum of the damages awarded by the Tribunal below. The deceased, Prem Lata Kaushal was at the time of accident 35 years of age. She was B. A. , B. T. and was working as a teacher in a secondary school. Her salary was Rs. 435. 60 p m. but she was actually paid Rs. 364 77 and there was a compulsory deduction in salary on account of Provident Fund and house rent. The lady must have been spending sufficient money on her food, clothes, conveyance, studies and equipment and the Tribunal had, therefore, come to the conclusion that she was contributing Rs. 100. 435. 60 p m. but she was actually paid Rs. 364 77 and there was a compulsory deduction in salary on account of Provident Fund and house rent. The lady must have been spending sufficient money on her food, clothes, conveyance, studies and equipment and the Tribunal had, therefore, come to the conclusion that she was contributing Rs. 100. 00 per month to the family and the exceptancy has been taken to be 23 years and so the Tribunal has come to the conclusion that she was entitled to Rs. 23,760. 00 out of which the amount of Provident Fund that had been received after been deducted and the benefit has been computed at Rs. 20,190. 00. I do not find any illegality in the said calculation and so affirm the finding. So far as the compensation for death of Miss. Shobhana is concerned, she was 11 years old and was studying. She was earning nothing, but the Tribunal below has assessed the pecuniary loss of her affection and service to the family at Rs. 8,000. 00. This seems to be just and fair and does not call for interference. So far as damages for personal injuries to Miss. Rachna is concerned, the Tribunal has awarded Rs, 31,5101 -. This girl had received a permanent injury in her leg and taking into account the nature and extent of the injuries caused by the shock, agony and also the disabilities suffered, the Tribunal has awarded Rs, 30,000. 00 as general damages besides special damages incurred by her. In my opinion, the award is just and fair and does not call for interference. As a result, all the appeals are dismissed and the parties are left to bear their respective costs.