Kodaikanal Motor Union (P. ) Limited by its Managing Director v. Srinivasa Roadways, Madurai and others
1978-04-15
A.VARADARAJAN, P.GOVINDAN NAIR
body1978
DigiLaw.ai
The Order of the Court was made by Govindan Nair, CJ. — In both these review petitions, the Kodaikanal Motor Union (P.) Limited, Madurai, is the petitioner. O. P. Nos. 75 and 44 of 1968 are Motor Accident Claim Petitions for compensation under the Motor Vehicles Act. 2. On 3rd September, 1967, at about 5.30 p.m. between mile stones 274(4 and 274/5, in Madurai-Dindigul Road, there was a collision between bus MDU 6991 belonging to the Kodaikanal Motor Union (Private) Limited, and lorry MDA 1440 belonging to Srinivasa Roadways Limited. As a result of that accident, one Sundaramoorthy who was a professor and a person by name Saroja and others sustained injuries. The widow of Sundaramoorthy, namely, one Thailambal and three others filed O.P. No. 75 of 1968 for compensation. Saroja also filed a petition, O.P. No. 144 of 1968 for compensation. 3. From the decision of the Tribunal, appeals were taken in C.M.A. Nos. 262 and 263 of 1970 and this Court found that the driver of the bus MDU 6991 belonging to the Kodaikanal Motor Union (Private) Limited was responsible ‘for the accident by his rash and negligent driving. The said company had taken an insurance to cover such accidents with the Motor Owners Insurance Company Limited, Belgaum. That Company was also a party to the appeals before this Court. After hearing all parties, this Court upheld the compensation of Rs. 55,000 to be paid to the widow of professor Sundaramoorthy, namely, the said Thailambal and also Rs. 10,000 to be paid to the petitioner in O.P. No. 144 of 1968, namely, Saroja. Hence these review petitions have been filed by the Kodaikanal Motor Union (Private) Limited. 4. After having fixed the compensation at Rs. 55,000 and Rs. 10,000 respectively, this Court said: “We therefore hold that the Motor Owners Insurance Company Limited, Belgaum, is liable by and under the terms of the policy issued by it, to cover the risk that has occurred in this case. Needless to add that its liability will be limited to Rs. 2,000 per passenger and the cumulative liability of the company for the entire accident would be limited to Rs. 20,000. At the time of the accident the relevant section had not been amended to enlarge the total liability to Rs. 50,000 specifically with regard to Rs. 55,000 awarded to the widow Thailambal.
2,000 per passenger and the cumulative liability of the company for the entire accident would be limited to Rs. 20,000. At the time of the accident the relevant section had not been amended to enlarge the total liability to Rs. 50,000 specifically with regard to Rs. 55,000 awarded to the widow Thailambal. This Court stated: ‘Out of this amount of Rs. 55,000 only a sum of Rs. 2,000 would be payable by the Motor Owners Insurance Company Limited and the balance by the Kodaikanal Motor Union (Private) Limited’. Similarly, with regard to the compensation awarded to Saroja, there are the following observations in the judgment: “Taking all these factors into account, the Tribunal has fixed a compensation at Rs. 10,000 which we think is quite reasonable. Out of this amount, a sum of Rs. 2,000 will be paid by the Motor Owners Insurance Company Limited and the balance of Rs. 8,000 will be paid by the Kodaikanal MotorUnion (Private) Limited. "As a result of the above decisions taken by this Court, the liability of the petitioner in these two petitions will come to Rs. 8,000 in respect of Saroja and Rs. 53,000 in respect of the said Thailambal, totalling to a sum of Rs. 61,000: 5. The case of the petitioner in these two petitions is that the liability of the Insurance Company has been fixed at Rs. 2,000 in each of the cases due to a patent error which has arisen in the judgment from an accidental slip in not noticing that the insurance policies had provided for a liability up to Rs. 20,000 in each of the cases, and the failure to look at the insurance policies before making the directions is an omission; if the liability undertaken by the Insurance Company as mentioned in the policies had been noticed, such an error would not have taken place and the failure to notice that is an accidental slip or omission . 6. Though the petitions were styled as review petitions, realising that the review petitions as such may not be maintainable in view of the fact that both the Judges who decided C.M.A. Nos.
6. Though the petitions were styled as review petitions, realising that the review petitions as such may not be maintainable in view of the fact that both the Judges who decided C.M.A. Nos. 262 and 263 of 1970, are not now sitting in this Court and the petitions have been pending in the Court for more than six months when they were in the Court, counsel contended that the review petitions must be treated as petitions under section 152, Civil Procedure Code to correct the errors, which we pointed out earlier in the judgment, because those errors arose from an accidental slip or omission. Whatever may be the reason, for the error, which we will consider presently, it would cost the petitioner Rs. 26,000 for, the entire liability towards Saroja, namely, Rs. 10,000 will have to be met by the Insurance company, and out of Rs. 55,000 that should be paid to the said Thailambal Rs. 20,000 will have to be provided by the Insurance Company. This means that the petitioner would have only a total liability of Rs. 35,000 as against Rs. 61,000 mentioned in the judgment. 7. We perused the insurance policies and it was admitted before us that the liability provided in the policy is extended to Rs. 20,000 in each of these cases and that this liability under the insurance policies is not affected by any statutory provision in the Motor Vehicles Act. We, therefore, suggested to the Insurance Company to agree to the correction being made in the judgment. Counsel took time to consult the Head Office of the Company and reported later that the Company is not agreeable to the correction. Counsel then referred to certain provisions in the insurance policy and contended that there is no liability at all for the Insurance Company. It is of course too late to raise such a contention because the liability of the Insurance Company has already been upheld by this Court and there is no question of reconsidering that decision. On a perusal of the policy, we are also satisfied that the Insurance Company is liable in each case to the extent of Rs. 20,000. We have no doubt that if the insurance policy had been brought to the notice of the Court by counsel, such a provision limiting the liability of the Insurance Company to Rs.
On a perusal of the policy, we are also satisfied that the Insurance Company is liable in each case to the extent of Rs. 20,000. We have no doubt that if the insurance policy had been brought to the notice of the Court by counsel, such a provision limiting the liability of the Insurance Company to Rs. 2,000 in each case would not have been made in the judgment. 8. The Supreme Court in Master Construction Co. v. State of Orissa1, observed that an arithmetical mistake is a mistake of calculation while a clerical mistake is of writing or typing, that an accidental slip or error is an error due to a careless mistake or omission unintentionally made, that such mistake should be apparent on the face of the record and that it should not depend for its recovery on elaborate arguments on questions of law and fact. 9. The appeals were before this Court. If the Court had adverted to the terms of the policy, the error would not have occurred. That the decision is clearly erroneous cannot be gainsaid. Counsel should have brought the terms of the policy to the notice of the Court. It must have been due to an accidental slip or omission that it was not so brought to to the notice of the Court. We have no doubt at all that advertence to the policies would have avoided the error. In these circumstances, we consider that this Court can not only rectify the error but has even a duty to rectify the error because on the basis of the terms of the policy, the liability of the Insurance Company could not have been limited to Rs. 2,000 in each of the cases. It would have been graceful on the part of the Insurance Company to have agreed to the correction as it had undertaken the liability to the full extent of Rs. 20,000 in each of the cases and such undertaking was to cover such eventualities as that occurred as a result of the accident to which we made reference at the beginning of this order. It is regrettable that such a step had not been chosen. However, we do not consider the Court to be helpless in the matter. As we stated, it is the duty of the Court to rectify the error in the circumstances. 10.
It is regrettable that such a step had not been chosen. However, we do not consider the Court to be helpless in the matter. As we stated, it is the duty of the Court to rectify the error in the circumstances. 10. We accordingly allow these petitions as falling under section 152, Civil Procedure Code and direct that the limitation of the liability of the Insurance Company will be corrected to Rs. 20,000 and the figure Rs. 2,000 in the passages will be referred to as Rs. 20,000 as substituted. Corresponding corrections will also be made in the decree as well. 11. These petitions are disposed of in the above terms. We direct the parties to bear their respective costs.