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Rajasthan High Court · body

2001 DIGILAW 1594 (RAJ)

Devi Lal v. Sunanda Devi

2001-09-28

H.R.PANWAR

body2001
Honble PANWAR, J.–This appeal is directed against the judgment and award dated 19.12.92 passed by Motor Accident Claims Tribunal, Bikaner (hereinafter referred to as `the Tribunal) whereby the Tribunal awarded compensation of Rs. 3,00,000/- in favour of respondent-claimants No. 1 to 3 (hereinafter referred to as `the claimants) and against the appellants and respondent No.4. However, the Tribunal held that the liability of respondent No. 4 the New India Assurance Company Ltd., Sriganganagar (hereinafter for short `the insurer) was limited to the extent of Rs. 50,000/- and the appellants were held liable for the amount beyond Rs. 50,000/-. (2). Aggrieved by the judgment and award, the appellants, who are owner and driver of jeep No. RRT 3671 involved in the accident, filed this appeal. (3). Brief facts of the case, which are necessary for decision of this appeal are that on 26.11.86 deceased B.N. Mane, an employee of Military was proceeding on a motor cycle ahead of military convoy from Bikaner to Lunkaransar. He was riding army motor cycle No. 81-A 21964. When he reached near Hansera river bridge, at that time jeep No. RRT 3671 came from opposite direction, which was driven at a great appellant No. 2 and hit the motor cycle driven by the deceased B.N. Mane. Due to this accident, the motor cyclist B.N. Mane sustained severe injuries and he was immediately taken to Military Hospital, Bikaner and thereafter looking to the serious condition of the injured, he was taken to Army Hospital, Delhi Cant on 30.11.86. He was admitted for treatment at Army Hospital, Delhi Cant in unconscious condition. Inspite of the efforts of the doctors, he could not be saved and ultimately succumbed to the injuries on 4.12.86 at Army Hospital, Delhi Cant. (4). Respondent-claimants filed claim petition against the appellants and respondent No.4 claiming compensation under various heads for a sum of Rs. 4,02,500.00 along with interest. It was averred in the claim petition that at the time of the accident, the deceased was a young man of 30 years and was serving in Indian Army on the post of Less Naik driver and his monthly salary was Rs. 1050/-. In addition to the salary, he and his family members were entitled to free lodging, board, conveyance, medical facilities etc. The appellants and respondent No.4, the insurer filed their respective written statements. 1050/-. In addition to the salary, he and his family members were entitled to free lodging, board, conveyance, medical facilities etc. The appellants and respondent No.4, the insurer filed their respective written statements. The learned Tribunal framed as many as five issues and tried the claim case. (5). In support of the claim petition, P.W. 1 Smt. Sunanda Devi Widow of the deceased and A.W. 2 Amrit Lal, any eye witness of the occurrence, were examined. The respondents did not lead any evidence in rebuttal. The learned Tribunal on appreciation of evidence, reached to the conclusion that the said accident was result of rash and negligent driving of jeep by its driver appellant No.2 Mahender Kumar. While deciding issues No.3 and 4, which relate to quantum, the Tribunal assessed in all a sum of Rs. 3,00,000/- as compensation and awarded a sum of Rs. 3,00,000/- in favour of the claimants but held that the liability of respondent No.4 is limited to the extent of Rs. 50,000/-. (6). I have heard the learned counsel for the parties. Perused the record and evaluated the evidence. (7). It is contended by the learned counsel for the appellants that the said accident was as a result of the negligence of the deceased himself. It was also contended that the deceased was riding the motor cycle rashly and negligently and he lost control of the motor cycle, which resulted in the said accident. It was further contended that the compensation awarded by the Tribunal is too excessive. It was also contended that the learned Tribunal has erred in computing the compensation a the higher rate for post-retiral period. It was also contended that the learned Tribunal has erred in computing the compensation at the higher rate for post-retiral period. It was also contended that the Tribunal fell in error in limiting the liability of the Insurance Company to the extent of Rs. 50,000/-. In the instant case, the Insurance Company has failed to establish its limits of liability and, therefore, the Insurance Company ought to have been held liable for the entire amount of compensation. (8). The learned counsel for the claimants supported the finding with regard to negligence of the driver of the said jeep as also the compensation assessed and awarded. In the instant case, the Insurance Company has failed to establish its limits of liability and, therefore, the Insurance Company ought to have been held liable for the entire amount of compensation. (8). The learned counsel for the claimants supported the finding with regard to negligence of the driver of the said jeep as also the compensation assessed and awarded. However, the learned counsel also contended that in the instant case, the Insurance Company failed to establish its limit of liability and, therefore, the Tribunal ought to have held respondent No. 4 the insurer liable for the entire amount of compensation awarded by the Tribunal. The learned counsel for respondent No.4 the insurer contended that as per the provisions of Sec. 95(2)(b)(i) of the Motor Vehicles Act, 1939 (for short `the old Act) (since repealed), the liability of the Insurance Company is limited to Rs. 50,000/- only. (9). Issue No.1 relates to rashness and negligency of the driver of the said jeep appellant No.2 P.W. 2 Amrit Lal is an eye witness of the occurrence. At the relevant time of the accident, he was travelling in the very same jeep, which caused the accident. He stated on oath before the Tribunal that he was a passenger in the jeep. When the jeep was plying between Lunkaransar and Hansera, at about 4 PM a motor cycle driven by an Army person came from opposite direction. In the said jeep, 3 or 4 ladies were sitting in the rear seat of the jeep. Those ladies wanted to get down from the jeep at Hansera. The driver of the jeep asked them as to which place exactly they wanted to get down and since the driver was looking backward where the ladies were sitting and at that time, he lost control of the jeep by seeing the motor cycle coming from the opposite direction and even could not apply the brakes of the jeep. In this way, the jeep dashed against the motor cyclist. The motor cyclist received injuries and became unconscious. He stated that he, the driver of the jeep and one other person took the motor cyclist in the very jeep but the said jeep could cover a distance of 200-300 yards and stopped as its radiator got damaged due to the said accident. Thereafter the injured was taken to Hospital in a Army vehicle. He stated that he, the driver of the jeep and one other person took the motor cyclist in the very jeep but the said jeep could cover a distance of 200-300 yards and stopped as its radiator got damaged due to the said accident. Thereafter the injured was taken to Hospital in a Army vehicle. He further stated that the said accident was due to rash and negligent driving of the jeep by its driver appellant No.2. The appellants did not lead any evidence in rebuttal and the statement of A.W. 2 Amrit Lal remained uncontroverted. More so, this witness is an independent witness and the Tribunal as rightly relied on the statement of this witness while arriving at the conclusion that the said accident was as a result of rash and negligent driving of the jeep by appellant No.2. Thus, there is no error in the finding arrived at the Tribunal holding jeep driver negligent for the said accident. Accordingly, the finding of negligency of the jeep driver is hereby affirmed. (10). So far as the quantum of compensation is concerned, the age and income of the deceased were specifically pleaded in the claim petition which have been established by the statement of P.W. 1 Smt. Sunanda Devi, widow of the deceased. Her statement remained uncontroverted. Thus, it is amply established that at the relevant time, the deceased was 30 years of age and his monthly salary was Rs. 1050/-. It has also been established that the deceased being a member of Indian Army was entitled for free ration, clothing, medical facility, accommodation, conveyance etc. It has also been established that at the relevant time, he was holding the post of Less Naik and had he not met with the accident, he would have attained the rank if not more, at least the rank of Subedar Major, which in normal course a person serving in Army would attain. The Tribunal has not taken into consideration the future prospects of the deceased. It is settled law that while computing compensation future prospects, advancement in life and career should also be sounded in terms of money to augment the multiplicand. In the instant case, the deceased had a stable job with the Indian Army and had a bright future prospects with regard to his promotion and revision of salary. It is settled law that while computing compensation future prospects, advancement in life and career should also be sounded in terms of money to augment the multiplicand. In the instant case, the deceased had a stable job with the Indian Army and had a bright future prospects with regard to his promotion and revision of salary. The approach of the learned Tribunal while computing the compensation appears to be conservative inasmuch as the Tribunal has computed the loss of income @ Rs. 800/- p.m. and for subsequent years @ Rs. 1,000/- p.m. If proper computation is made by taking into account the future prospects then the monthly income of the deceased, can safely be taken to be, if not more, at least Rs. 2100/- and after deducting 1/3rd as personal expenses of the deceased, the monthly dependency of the claimants would come to Rs. 1400/- p.m. and if this amount is multiplied by a purchase factor of 18, then the loss of income would work out to Rs. 3,02,400/- to which is added the usual amount for loss of company, consortium, love and affection and loss of estate each in the conventional sum of Rs. 15000/- each. The total compensation would work out to Rs. 3,32,400/-. In General Manager, Kerala State Road Transport vs. Susamma Thomas (1), the Honble Supreme Court held as under :- ``Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. It was further held as under :- ``The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032 per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income at Rs. 2000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was Spartan or bohemian. 2000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was Spartan or bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. This loss of dependency should capitalize with the appropriate multiplier. In the present case we can take about Rs. 1400 per month or Rs. 17,000 per year as the loss of dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000 x 12 Rs. 2,03,000) to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000/-. (11). The Division Bench of this Court in New India Assurance Company vs. Usman and others (2), while considering the similar situation, held that if the income is doubled and proper multiplicand is determined and same is multiplied by applying appropriate multiplier as has been held in the case of U.P. State Transport Corporation vs. Trilokchand (3), then the amount would be almost same which has been awarded by the Tribunal Another Division Bench of this Court in RSRTC vs. Babi & Ors. (4), while considering the similar situation, held that if the monthly dependency is determined after taking into account the future prospects of the deceased, then the amount would not be less than what has been awarded by the Tribunal. In this view of the matter, the compensation awarded by the Tribunal also cannot be said to be excessive. It is settled law that quantum is interfered with if the compensation awarded is inadequate or too excessive, as the case may be. Obviously in the instant case, the compensation awarded by the Tribunal cannot be said to be excessive. (12). Next question comes as to what should be the liability of respondent No.4 the Insurance Company. In the written statement filed by respondent No.4, it was denied that at the relevant time of the accident, the said jeep was insured with them. Obviously in the instant case, the compensation awarded by the Tribunal cannot be said to be excessive. (12). Next question comes as to what should be the liability of respondent No.4 the Insurance Company. In the written statement filed by respondent No.4, it was denied that at the relevant time of the accident, the said jeep was insured with them. However, the Insurance Company had filed true copy of the policy (C 32/2) on record in respect of jeep No. RRT 3671, which was issued by respondent No.4 for the period from 22.9.86 to 21.9.87 and the date of the accident was 26.11.86. Thus, it is fully established that on the date of the accident, the jeep involved in the accident was under a valid insurance with respondent No.4. There was no pleading by respondent No.4 with regard to the limited liability and since there was no pleading, no issue was framed by the Tribunal. Respondent No.4 did not lead any evidence before the Tribunal to establish that the liability is limited to the extent of Rs. 50,000/-. The true copy of the policy (C 32/2) is on record, which shows that insured appellant got his jeep comprehensively insured and an additional premium of Rs. 120/- has been charged by respondent No.4 to cover the risk to third party. Thus, it is established that on the relevant date of the accident, the insurer respondent No.4 undertook to cover risk of third party. The Tribunal has not considered this aspect in right perspective and without there being any evidence, reached to the conclusion that the limit of liability of the Insurance Company is to the extent of Rs. 50,000/- merely on the basis of oral argument. In my considered opinion, this part of the finding of the Tribunal is erroneous and cannot be sustained. The insurance policy issued by the Insurance Company in respect of jeep No. RRT 3671 clearly goes to establish that the Insurance Company by charging additional premium undertook the risk of third party beyond the statutory limit as by the said policy the insurer undertook liability to the public risks. Thus, in the instant case, the insurer is liable for the entire award. The first policy was from 20.9.85 to 19.9.86 and the second policy was from 22.9.86 to 21.9.87. Both the policies are on record. The first policy specifically shows charging of Rs. Thus, in the instant case, the insurer is liable for the entire award. The first policy was from 20.9.85 to 19.9.86 and the second policy was from 22.9.86 to 21.9.87. Both the policies are on record. The first policy specifically shows charging of Rs. 120/- for additional third party risk in addition to O.D. premium of Rs. 275/-. So is the case of second policy. In this policy also, the basic premium of Rs. 275/- and the additional premium of Rs. 120/- for covering the risk of third party has been charged. (13). The vehicle involved in the accident is a commercial vehicle and the tariff of premium provided by respondent No.4 the insurer for commercial vehicle is as follows :- ``(a) Taxis or Private Car Type vehicles Plying for Public hire. (b) Private Type Taxis let out on Private Hire direct from the owner with or without meters and driven by the owner or an employee of the Owner. (c) Private Car Type vehicles let out on Private Hire and driven by the Hirer or a driver with his permission. (d) Private car type vehicles owned by Hotels and Hired by them to their Guests. Own Damage Liability to the Public Risks Act only Liability Rs. 275 + 1.15% on I.E.V. Rs. 120 Rs. 100 Similarly, the insurer respondent No.4 has provided tariff of premium as follows :- ``PRIVATE CAR (Continued.) PREMIUM (APPLICABLE TO ALL REGIONS) LIABILITY TO THE PUBLIC RISKS ONLY AND `ACT ONLY LIABILITY RISKS C.C. Not Exceeding Liability to the Public Risks only ``ACT ONLY Liability 1500 Rs. 120 Rs. 100 (14). From the above noticed tariffs, it is established that for ``act only liability, the rate of premium is Rs. 100/- and for covering risk of liability to the public risk it is Rs. 120/-. The rate of premium for commercial vehicles (taxies or private cars) as well as for the private car, is same i.e. Rs. 120/-. In both the tariffs i.e. for commercial vehicles (taxi cars) and private cars, the premium is Rs. 100/- to cover the liability provided u/S. 95(2)(b)(i) of the old Act and with this premium of Rs. 100/- the liability of the insurer would be as provided under the ``act only and such insurance policy is called ``act only policy. 120/-. In both the tariffs i.e. for commercial vehicles (taxi cars) and private cars, the premium is Rs. 100/- to cover the liability provided u/S. 95(2)(b)(i) of the old Act and with this premium of Rs. 100/- the liability of the insurer would be as provided under the ``act only and such insurance policy is called ``act only policy. From the policy on record, it is established that the respondent insurer undertook to cover the ``liability to the public risk for which no limit of the liability is provided under the old Act. Had the policy been for ``act only, then the premium would not have been charged more than Rs. 100/- to cover the risk as provided under the old Act, but obviously respondent No.4 insurer has charged Rs. 120/- and with this premium the insurer undertook to cover the liability to public risks, which is beyond the limit of liability provided under the old Act. It is also clear that there is no limitation even in the old Act for covering the risk to third party by charging Rs. 120/- for private cars. Thus, there cannot be any limits of liability for the commercial vehicle with the same rate of premium. (15). Thus, respondent No.4 has undertaken to cover the risk of third party beyond the limits of liability provided under the old Act by charging Rs. 20/- extra. The policy on record cannot be said to be covering risk ``act only liability but it is obvious that it covers the entire liability to the public risk. In the instant case, the vehicle involved in the accident has maximum licensed passengers capacity of 7 persons. The tariff for commercial vehicles i.e. passengers carrying vehicles, namely, (a) buses (including tourist buses); (b) hotel/school omni buses; & (c) airline buses is provided as follows: ``Maximum Licensed Passenger carrying capacity Own Damage Liability to the Public Risks Act only Liability Not exceeding 18 Seats Rs. 280+1.10% on IEV Rs. 240 Rs. 200 Not exceeding 36 Seats Rs. 360+1.10% on IEV Rs. 240 Rs. 200 Not exceeding 60 Seats Rs. 440+1.10% on IEV Rs. 240 Rs. 200 Exceeding 60 Seats Rs. 545+1.80% on IEV Rs. 240 Rs. 200 (16). Thus, there is clear distinction between the policy covering ``act only liability and the policy covering liability to the public risk. 240 Rs. 200 Not exceeding 36 Seats Rs. 360+1.10% on IEV Rs. 240 Rs. 200 Not exceeding 60 Seats Rs. 440+1.10% on IEV Rs. 240 Rs. 200 Exceeding 60 Seats Rs. 545+1.80% on IEV Rs. 240 Rs. 200 (16). Thus, there is clear distinction between the policy covering ``act only liability and the policy covering liability to the public risk. This point has been considered by this Court in National Insurance Company Ltd. vs. Smt. Rukmani Devi & Ors. (5), and other two connected special appeals decided on 26.11.1998, wherein Division Bench of this Court has held as under :- It was found by the Court that the premium paid to the Insurance Company for liability to the public risk was Rs. 240/-. The ordinary payment for ``Act only liability is Rs. 200/- for covering the said risk. Thus, the Insurance Company was paid extra premium for the liability to the public risk and the only inference which can be drawn that Rs. 40/- were charged extra for covering the liability of death and bodily injury of the third party accepting the unlimited liability in respect to the death and bodily injury of the third party. (17). In another case, New India Assurance Company Limited vs. Hari Kishan & Ors. (6), and other connected special appeal, another Division Bench of this Court vide its judgment dated 15.5.1998 has again held as under :- ``Where a sum of Rs. 240/- has been charged by the Insurance Company, to cover the third party liability, which premium is more than the ``Act only liability of the Insurance Company would not be per the ``Act only policy, but would be unlimited. (18). Similarly, this view has been taken by this Court in Navyug Oil & Dal Mills vs. Smt. Nathi Devi & Ors. (7) and in National Insurance Company Limited vs. Smt. Kamla Kanwar & Others (8). Thus, it is established that respondent No.4 undertook the liability of third party to cover the risk beyond the liability provided u/S. 95(2)(b)(1) of the old Act. In this view of the matter, the liability of the Insurance Company cannot be said to be limited to Rs. 50,000/- only. In my considered view, the learned Tribunal fell in error in limiting the liability of respondent No.4 to the extent of Rs. 50,000/- without there being any pleading and evidence. In this view of the matter, the liability of the Insurance Company cannot be said to be limited to Rs. 50,000/- only. In my considered view, the learned Tribunal fell in error in limiting the liability of respondent No.4 to the extent of Rs. 50,000/- without there being any pleading and evidence. Indisputably respondent No.4 neither pleaded in its written statement regarding the limits of liability nor produced any evidence in this regard and, therefore, also the finding arrived at by the Tribunal holding limited liability of respondent No. 4 is without any foundation and is liable to be set aside. Accordingly, I hold that the Insurance Company is liable for the entire amount of compensation awarded by the Tribunal. No other point was pressed. (19). In view of the aforesaid discussion, this appeal is allowed to the extent that alongwith the appellants, respondent No.4 the New India Assurance Company Ltd., Sriganganagar is also jointly and severally liable for the entire amount of compensation awarded by the Tribunal and affirmed by this Court. Respondent No.4 is directed to deposit the entire amount of compensation alongwith interest, if not already paid to the respondent- claimants, within a period of three months. No order as to costs.