National Insurance Company Ltd. v. Leela — 1998 DIGILAW 88 (KER)

Judgment :- A.R. Lakshmanan, J. Heard both sides. The Insurance Company is the appellant in this appeal. Respondents 1 to 6 filed a petition claiming compensation of Rs. 5 lakhs for the death of one Sivanandan Pillai who died in a road accident on 7-7-1986 at Quilon. He was hit by a scooter KRQ 4574 driven by the Eighth respondent. The Seventh respondent is the owner and the appellant is the insurer of the said scooter. Negligence was alleged against the eighth respondent. Seventh and Eighth respondents filed separate written statements before the Tribunal contending that the Eighth respondent was not negligent in causing the accident and that the accident occurred due to the contributory negligence of the deceased when he attempted to cross the road and that the quantum of compensation claimed is highly excessive. The Insurance Company also while admiting the policy, challenged the quantum. The Tribunal, after finding negligence on the part of the Eighth respondent passed an award for Rs. 3,50,000/- with 12% interest from 27-9-1986 and directed the same to be paid by the appellant. 2. According to the appellant the award passed by the Tribunal is highly excessive and without any basis. As the Seventh respondent was not co-operative to file a joint appeal inspite of their best efforts the appellant filed the above appeal. According to the Insurance Company there is every reason to believe that the insured is colluding with the claimants at this stage though he had contested the case before the Tribunal. Therefore, it is submitted that the Insurance Company is now invoking the right under S.110-C(2-A) of the Motor Vehicles Act, 1939 to contest the claim on all grounds that ate available to the insured. Moreover in the policy issued in respect of the offending vehicle there is a condition reserving the right of the appellant to defend the claim on at! or any of the grounds available to the insured. The insurance company intact filed the insurance policy along with C.M.P. 1197/91 at the time of filing the appeal in this Court. It is stated in the affidavit in support of the said petition the policy was not produced before the Tribunal as there was no necessity to invoke the above said condition by the insurance company since the insured had contested the case there. But now he is not co-operating for filing a joint appeal. It is stated in the affidavit in support of the said petition the policy was not produced before the Tribunal as there was no necessity to invoke the above said condition by the insurance company since the insured had contested the case there. But now he is not co-operating for filing a joint appeal. The Insurance Company is forced to take up the defence on his behalf also. Therefore, it is prayed that the copy of the policy produced along with the C.M.P. may be accepted as additional evidence in this case. We see merit in the submission. Learned counsel for the claimant contended that the Insurance Company ought to have filed this petition and the policy before the lower court and before the Tribunal and having failed to produce a policy before the Tribunal the Insurance Company should not be allowed to produce the policy at this stage in this appeal. We are unable to accept the contention of the counsel for the claimant. The Insurance Company has clearly explained in the affidavit as to the necessity to invoke the condition in the policy by producing the same at the appellate stage since the insured is not co-operating in filing a joint appeal. We find merit in the submission of the Insurance Company. Therefore, we allow C.M.P. 1197/91 and admit copy of the policy as an additional evidence in this case. 3. C.M.P. 1198/91 was filed by the Insurance Company along with the appeal to allow the Insurance Company to challenge the award on all grounds that are available to the insured. In view of the order passed in C.M.P. 1197/91 we allow this petition and also permit the Insurance Company to invoke their right under S.110-C (2-A) of the Motor Vehicles Act, 1939 to contest the claim on all grounds that are available to the insured by filing an appeal. Learned counsel for the Insurance Company in support of this Court reported in New India Assurance Co. Ltd. v. Celine (1993 (1) KLT 159 (FB). Learned counsel for the claimant in support of his contention cited British India General Insurance Co. Ltd. v. Captain Itbar Singh & others. (AIR 1959 SC 1331). We have gone through the said decision. Learned counsel for the Insurance Company in support of this Court reported in New India Assurance Co. Ltd. v. Celine (1993 (1) KLT 159 (FB). Learned counsel for the claimant in support of his contention cited British India General Insurance Co. Ltd. v. Captain Itbar Singh & others. (AIR 1959 SC 1331). We have gone through the said decision. The Supreme Court in that case held that the defence referred to in S.96(2) which the Insurance Company take, were exhaustive and no more defence could be added thereto unless such a right was reserved. In the instant case, the Insurance Company had specifically reserved their right in the Insurance Policy. Condition No. 2 of the Insurance Policy reads as follows: "2. No admission offer/ promise of payment shall be made by the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in his name for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require. If the Company shall make any payment in settlement of any claim and such payment includes any amount not covered by this policy the insured shall repay to the company the amount not so covered." Since the right was reserved under Condition No. 2 in the policy we are of the view that the Insurance Company is at liberty to raise all the contentions and defending the action not only in its name but also in the name of the insured. The above Supreme Court decision was cited before the Full Bench. The Full Bench held that the Supreme Court decision in AIR 1959 SC 1331 is clear authority that it is open to the insurer to reserve a right in the policy of insurance to defend the action in the name of the assured and in case, there is such a reservation, all defences open to the assured can be urged by him, The Full Bench also said that the above decision is binding on them and has been, in fact, followed by various High Courts. In view of the above Supreme Court decision and followed by the High Court we have permitted the counsel for the Insurance Company to argue the matter on merits. Counsel for the Insurance Company submitted that the award of the Tribunal in granting the compensation at Rs. 3,50,000/- without any discussion as to how the claimants are entitled for the amount is liable to be set aside. We have gone through the award of the Tribunal. Learned counsel appearing for the claimants at. the time of his reply to the argument of the counsel for the insurance company tried to justify the findings rendered by the Tribunal. We are of the view that the Tribunal has awarded a sum of Rs. 3,50,000/- without any discussion as to how the claimants are entitled for that amount. As rightly pointed out by the learned counsel for the insurance company, the Tribunal has adopted a rough and ready method in awarding the compensation of Rs. 3,50,000/-. There is absolutely no discussion about the likely salary which the deceased may get on promotion as a loco foreman. There is no discussion at all as to how the compensation of Rs. 3,50,000/- has been arrived at Therefore, we as an appellate court, proposed to examine the entire materials on record and also findings. In this case, the accident took place on 7.7.1986. Sivanandan Filial died as a result of the rash and negligent driving of the scooter bearing registration No. KRQ 4574 by the second respondent in the course of his employment under the first respondent who is the registered owner of the scooter. The Tribunal has held that the accident was due to the rash and negligent driving. In so far as the quantum of compensation is concerned the claimants filed Ext. A7 which is the salary certificate issued by the Divisional Personal Officer of the Trivandrum Railway Division of the Southern Railway. According to Ext. A7 the pay of Sivanandan Pillai was Rs. 378/- and including other allowances etc., the total amount drawn by him towards salary was Rs. 1202.30. The other documents filed by the claimants namely Exts. Al to A6 are the copy of the F.I.R.,copy of scene mahazar, copy of charge sheet, copy of inquest report, copy of post mortem certificate and copy of admission register. 378/- and including other allowances etc., the total amount drawn by him towards salary was Rs. 1202.30. The other documents filed by the claimants namely Exts. Al to A6 are the copy of the F.I.R.,copy of scene mahazar, copy of charge sheet, copy of inquest report, copy of post mortem certificate and copy of admission register. Except A7, no other proof has been filed in regard to the probable salary which the deceased may gel on his promotion. Ext. A7 shows that he was getting Rs. 1,202.30 by way of salary. On the date of the accident he was only 41 year old. It is also in evidence that he was likely to be promoted as the loco foreman. 4. Taking into consideration all the future prospects of the deceased, we may safely fix Rs. 2,000/- as the monthly income of the deceased. Counsel appearing for the Insurance Company has fairly conceded that this figure may be safely adopted for calculating the compensation to be awarded. One third of Rs. 2,000/- to be deducted for persona! expenses appropriately conies to Rs. 600/-. Contribution to the family would be Rs. 1,400/- per month. If multiplied by 12 months it becomes Rs. 16,800/-per annum. Since the deceased had 17 years left for retirement we adopt 17 years as multiplier which conies to Rs. 2,85,600/-(16,800 x 17). In this case, the Tribunal has awarded a sum of Rs. 3,50,000/- by way of global compensation. We are of the view that in matters like this some amount should also be awarded by way of pain and suffering of the deceased and loss of consortium for the wife. We may safely fix Rs. 14,000/-by way of conventional damages. Adding this conventional damages to the amount awarded at Rs. 2,85,600/-, the claimants would be entitled to a total compensation of Rs. 2,99,600/- which may be rounded off to Rs. 3 lakhs. The claimants will be 'entitled to interest at 12% per annum from 27.9.1986, the date of filing the claim petition including cost. It is represented that the insurance company has already deposited Rs. l lakh with the Tribunal. The balance amount now awarded shall also be deposited wife the Tribunal within two months from today. C.M.P. No. 1198/91 stands allowed and C.M.P. No. 1199/91 stands dismissed.