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2009 DIGILAW 825 (GAU)

Kushal Lahan v. Mayur Pankhi Chetia Phukan

2009-11-24

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. This appeal by the owner of the motorcycle bearing registration No. AS-O1/P-0945 is directed against the judgment and order dated 19.11.2004 passed by the learned Member, Motor Accident Claims Tribunal, Sivasagar in MAC Case No. 64/2003 awarding a sum of Rs. 12,15,000/- with interest as compensation in favour of the respondent No. 1 and directing him to pay the said amount of compensation by holding that the accident occurred due to his negligence. 2. An application under Section 166 of the Motor Vehicles Act, 1988 (in short, "the Act") was filed by the present respondent No. 1 before the Claims Tribunal, registered as MAC Case No. 64/2003, against the appellant, owner of the motorcycle bearing registration No. AS-01/P-0945, the owner of the santro car bearing registration No. AS-01/L-9143 (respondent No. 2); the driver of the said santro car (respondent No. 3) as well as the Branch Managers of Maligaon and Noonmati Branch of the New India Assurance Company Limited, (the respondent Nos. 4 and 5), contending inter-alia that at about midnight of 23.4.2003 while the motorcycle bearing registration No. AS-01/P-0945 driven by its owner, the appellant, with Chiranjit Chetia Phukan, the husband of the claimant/respondent No. 1 as pillion rider, going towards Sarumotoria, Guwahati and driven with full care and caution observing all traffic rules and regulations, the vehicle bearing registration No. AS-01/L-9143 (santro car) driven in a very high speed hit the motorcycle in a great force while the said motorcycle was turning to Sarumotoria at Super Market Police point, Dispur, causing serious injuries to the person of the claimant's husband, who subsequently succumbed to the injuries in Down Town Hospital, Guwahati on 4.5.2003. It has further been contended in the said application that the motorcycle was in a very slow motion and the accident occurred due to rash and negligent driving on the part of the driver of the santro car. The deceased was claimed to be 35 years at the time when the accident occurred. The annual income of the deceased was claimed to be Rs. 1,29,000/- being his earning from the business. The amount of Rs. 18,25,000/- was claimed as compensation by the claimant/respondent No. 1 for the death of her husband with the following break up: 3. The deceased was claimed to be 35 years at the time when the accident occurred. The annual income of the deceased was claimed to be Rs. 1,29,000/- being his earning from the business. The amount of Rs. 18,25,000/- was claimed as compensation by the claimant/respondent No. 1 for the death of her husband with the following break up: 3. The appellant as well as the owner and the driver of the santro car and also the Insurance Company filed their respective written statements before the learned Tribunal. In the joint written statement filed by the driver and owner of the santro car, it has been contended that the respondent No. 3 (Sri Samarjit Sarmah, who was driving the santro car) on receipt of the news of serious illness of his near relatives went out by driving the santro car belonging to his father (respondent No. 2) at a very leisurely speed from Ganesguri side towards Down Town Hospital and near Supermarket, Dispur, the motorcycle belonging to the appellant coming from the opposite side driven by the present appellant with a pillion rider in a high speed and in rash and negligent manner dashed against the santro car on the wrong side, as a result of which the pillion rider got injuries on his person. It has, therefore, been contended in the said written statement that there was no negligence on the part of the driver of the santro car but the accident occurred due to the negligence of the appellant only, who was driving the motorcycle. It has further been contended that the risk of the owner of the santro car has duly been covered by a contract of insurance in view of the policy issued by the respondent Insurance Company. 4. The appellant in the written statement while admitting the accident has contended that the accident occurred due to rash and negligent driving of the santro car by the driver. It has further been contended that the appellant had valid driving license at the relevant point of time and the vehicle was duly insured with the respondent Insurance Company. 5. In the joint written statement filed by the Branch Managers of the New India Assurance Company Limited, the respondent Nos. 4 and 5, the insurance coverage issued in respect of the vehicles have not been disputed. 5. In the joint written statement filed by the Branch Managers of the New India Assurance Company Limited, the respondent Nos. 4 and 5, the insurance coverage issued in respect of the vehicles have not been disputed. It has, however, been contended that unless and until the claimant proves that the vehicle bearing registration No. AS-01/L-9143 (santro car) was driven by a driver having valid and effective license, the Insurance Company shall not be liable to pay the compensation. 6. On the basis of the pleadings of the parties, the learned Tribunal has framed the following issues: (i) Whether there was an accident on 23.4.2003 involving vehicle No. AS-0/L-9143 (Santro Car) and AS-01/P-0945 (Motor Cycle)? (ii) Whether the accident took place due to rash and negligent driving of the vehicle No. AS-01/L-9143 (Santro Car)? (iii) Whether the deceased Chiranjit Chetia Phukan died in the accident? and (iv) Whether the claimant is entitled to any compensation, and if so, from when and to what extent? 7. The claimant/respondent No. 1 in support of her claim examined herself as CW-1; Sri Binod Chetia as CW-2 and Sri Kushal Lahon, appellant as CW-3. All the witnesses were cross-examined by the respondent/Insurance Company. The claimant has also proved the matriculation certificate issued by the Board of Secondary Education, Assam (Exhibit-1) to prove the age of the deceased; the cash memos (Ex-hibit-2 to 174) issued by the chemist shops to prove the medical expenses; the death certificate issued by the authority of Down Town Hospital (Exhibit-175) in respect of the claimant's husband; the accident report submitted by the police (Exhibit-176); the post-mortem examination report (Exhibit-177); the certificate of death issued by the Guwahati Municipal Corporation in respect of the claimant's husband (Exhibit-178) and the income tax return of the deceased pertaining to the assessment year 2003-04 (Exhibit 179). The opposite parties in the said MAC case, though filed their respective written statements, no witness was examined by them in support of their stand in the written statements. However, the opposite party No. 3 (appellant herein) was examined as CW-3 by the claimant. The present respondent Nos. 2 and 3 after filing the written statement did not participate in the said proceeding. 8. The learned Tribunal on the basis of the evidences on record has passed the award, as noticed above, and hence, the present appeal. 9. I have heard Mr. The present respondent Nos. 2 and 3 after filing the written statement did not participate in the said proceeding. 8. The learned Tribunal on the basis of the evidences on record has passed the award, as noticed above, and hence, the present appeal. 9. I have heard Mr. T.J. Mahanta, the learned Counsel for the appellant, Mr. A.K. Phukan, the learned Counsel appearing for the Insurance Company, respondent Nos. 4 and 5, as well as Ms. Senapati, the learned Counsel appearing for the respondent No. 1. None appears for the respondent Nos. 2 and 3, despite service of notice. 10. Mr. Mahanta, the learned Counsel for the appellant referring to the averments made in the claim application filed by the respondent/claimant No. 1 under Section 166 of the Act as well as the deposition of the witnesses examined by the claimant/respondent No. 1 in support of her claim has submitted that it is apparent from the evidences available on record that the accident occurred due to rash and negligent driving of the vehicle bearing registration No. AS-01/L-9143 (santro car), which was driven in a very high speed and there being absolutely no negligence on the part of the appellant, who was driving the motorcycle bearing registration No. AS-01/P-0945, the learned Tribunal ought not to have recorded the finding that the accident occurred due to the negligence on the part of the appellant, which finding according to the learned Counsel, is perversed being contrary to the evidences on record. Mr. Mahanta in support of the contention has referred to the averments of the claimant/respondent No. 1 in the claim petition to the effect that the accident occurred due to rash and negligent driving of the santro car and also the deposition of the claimant's witnesses, who have specifically stated about the negligence on the part of the driver driving the santro car and such statements of the claimant's witnesses, according to the learned Counsel, have not been challenged during cross-examination and hence, has to be accepted to be true. It has further been submitted that though the present respondent Nos. 2 and 3 in their joint written statement has contended that there was no negligence on their part and the accident occurred due to the negligence of the appellant, they have neither cross-examined the claimant's witnesses, who have stated about their negligence, nor adduced any evidence in support of such contention. 2 and 3 in their joint written statement has contended that there was no negligence on their part and the accident occurred due to the negligence of the appellant, they have neither cross-examined the claimant's witnesses, who have stated about their negligence, nor adduced any evidence in support of such contention. Mr. Mahanta further submits that in any case the risk of the appellant relating to the payment of compensation under the provisions of the Act having been covered by a comprehensive policy of insurance issued by the respondent/Insurance Company, the award passed by the learned Tribunal has to be satisfied by the Insurance Company, even if the accident occurred solely due to the negligence of the appellant. 11. Mr. Phukan, the learned Counsel appearing for the Insurance Company, respondent Nos. 4 and 5, on the other hand, has submitted that though the claimant/respondent No. 1 in the claim petition claimed that the accident occurred due to rash and negligent driving of the santro car, it is apparent from the evidences adduced by the claimant's witnesses, more particularly the evidence of CW-3, the appellant himself, that the accident occurred due to negligence of the appellant only, as during the cross-examination by the Insurance Company, CW-3 has stated that he saw the head light of the santro car coming from the opposite direction and he could not ascertain the distance between him and such santro car. According to the learned Counsel, had the appellant stopped his vehicle, the accident would not have occurred and, therefore, by applying the doctrine of last opportunity, the appellant has rightly been held to be liable to pay compensation, even if the driver of the santro car was careless. It has further been contended by Mr. Phukan that in the matter of 'composite negligence' unlike the 'contributory negligence' there is no question of apportionment of the amount of compensation on the basis of the degree of negligence of two or more vehicles involved in an accident, as owner and driver of all such vehicles involved in the accident are jointly or severally liable for the damages caused to the claimant due to the accident and hence the appellant cannot contend in the appeal that no award ought to have been passed against him, he had at least some negligence which has contributed towards the accident, he being jointly and severally liable alongwith the respondent Nos. 2 and 3, for payment of compensation. Relating to the insurance coverage, it has been submitted by Mr. Phukan that the Insurance Company is not liable to reimburse the appellant and, therefore, not liable to satisfy the award passed by the learned Tribunal, as under the contract of insurance, the Insurance Company shall be liable only if the insured is legally liable to pay compensation and in the instant case, the accident having been occurred due to the negligence of the appellant, the Insurance Company is not liable under the policy of insurance issued. Mr. Phukan in support of his contention has placed reliance on the decisions of the Delhi High Court in Balwanti Devi and Ors. v. Surjit Singh and Ors. 2004 (2) TAC 946; of the Bombay High Court in Sitaram Prabhu Tele and Anr. v. Rajabai Vilas Patli and Ors. 2002 ACJ 85; of the Rajasthan High Court in Heer Singh and Ors. v. Jai Singh and Ors. 2005 (1) TAC 921 (Raj); of the Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer (2003) 8 SCC 731 ; in U.P. State Road Transport Corporation (2009) 3 SCC 473 and in New India Assurance Company Limited v. Bismillah Bati and Ors. (2009) 5 SCC 112 . 12. Ms. Senapati, the learned Counsel appearing for the claimant/respondent No. 1 submits that there being a comprehensive policy of insurance issued by the respondent Insurance Company in respect of the motorcycle bearing registration No. AS-01/P-0945, which Insurance Company is also the insurer in respect of the motor vehicle bearing registration No. AS-01/L-9143 (santro car), the respondent/Insurance Company is to satisfy the award, even if the accident occurred solely because of the negligence of the appellant, as it is not the contention of the Insurance Company in the written statement filed that the policy of insurance does not cover the risk of the pillion rider. Ms. Senapati referring to the deposition of the claimant's witnesses has submitted that the accident occurred solely because of the negligence on the part of the respondent No. 3, who was driving the santro car, as the vehicle was driven in a rash and negligent manner and was in a very high speed and, therefore, the finding of the learned Tribunal that the accident occurred due to the negligence of the appellant only is perverse being not based on evidences on record. Placing reliance on the decision of the Apex Court in Supe Dei (Smt) and Ors. v. National Insurance Company Limited and Anr. (2009) 4 SCC 513 , Ms. Senapati further submits that the learned Tribunal ought to have awarded interest @ 9% per annum from the date of filing of the claim petition till the date of realisation and not 4%, as awarded by the learned Tribunal, that too with effect from the date of the award, in the event of failure to satisfy the award within 90 days. Ms. Senapati, therefore, submits that the amount of interest as awarded by the learned Tribunal may therefore, be enhanced. 13. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record. 14. In view of the submissions of the learned Counsel for the parties, as noticed above, three questions arise for consideration by this Court, namely (i) whether the respondent/Insurance Company is liable to reimburse the appellant in respect of the amount of compensation awarded by the learned Tribunal in favour of the claimant/respondent No. 1, under the contract of insurance between the parties; (ii) whether there was negligence on the part of the appellant or whether the accident occurred due to the negligence of the driver of the santro car (respondent No. 3) and (iii) whether in case of 'composite negligence' the owners of the vehicles involved in an accident are jointly and severally liable and if so whether the owner of one of the offending vehicles can maintain an appeal challenging the award passed by a Claims Tribunal on the ground that the other vehicle was also at fault and the amount of compensation ought to have been apportioned between the owners of said offending vehicles. 15. The factum of accident, death of the claimant/respondent No. 1's husband in such accident, the quantum of compensation awarded by the learned Tribunal and issuance of policies of insurance by the respondent Nos. 4 and 5 covering the risk of the owners of both the vehicles, namely the motorcycle and the santro car are not in dispute. No argument has been advanced by the learned Counsel appearing for the parties in that regard. Neither the Insurance Company nor the claimant/respondent No. 1 has filed any appeal challenging the award passed by the learned Tribunal. 16. No argument has been advanced by the learned Counsel appearing for the parties in that regard. Neither the Insurance Company nor the claimant/respondent No. 1 has filed any appeal challenging the award passed by the learned Tribunal. 16. It appears from the award passed by the learned Tribunal dated 19.11.2004 that the appellant was found to be negligent and only because of him the accident was held to have occurred. The learned Tribunal did not find any negligence on the part of the other vehicle being the santro car bearing registration No. AS- 01/L-9l43 involved in the said accident. Having held so, the learned Tribunal directed the appellant to pay the compensation of Rs. 12,15,000/- with interest. The question as to whether, in view of the contract of insurance, the Insurance Company is liable to reimburse the appellant and consequently is to satisfy the award passed by the learned Tribunal has hot been gone into by the learned Tribunal. 17. As noticed above, there is no dispute relating to the policy of insurance issued by the respondent/Insurance Company covering the risks of the appellant in respect of the motorcycle bearing registration No. AS-01/P-0945. To decide the first question as formulated above, the nature of policy issued by the respondent/Insurance Company and the policy conditions are required to be perused. 18. The policy of insurance bearing Policy No. 530705/31/02/01/00005543 was issued by the respondent/Insurance Company in favour of the present appellant in respect of the motorcycle involved in the accident, which was valid from 10.2.2003 to midnight of 9.2.2004. The said policy had been issued subject to IMT endorsement 22, The said policy was a comprehensive policy and was not an 'act only' policy. Endorsement 22 provides for compulsory deduction. It provides that notwithstanding anything to the contrary in the policy, the insured shall bear certain amounts in respect of the claim under Section I, i.e., loss or damage to the vehicle insured. In the case in hand, there being no claim for compensation relating to the loss or damage to the vehicle insured, IMT-22 has no application. 19. Section II of the policy condition lays down the liabilities of the Insurance Company under the policy of insurance towards the third party. In the case in hand, there being no claim for compensation relating to the loss or damage to the vehicle insured, IMT-22 has no application. 19. Section II of the policy condition lays down the liabilities of the Insurance Company under the policy of insurance towards the third party. It provides that subject to the limits of liability as mentioned in the policy or insurance, the company will indemnify the insured, in the event of an accident caused by or arising out of the use of the vehicles against all sums including claimant's cost and expenses, which the insured shall become legally liable to pay in respect of (i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or rewards) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, 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 and (ii) damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured. 20. In the policy of insurance issued by the respondent/Insurance Company, it has been stipulated that the limit of the amount of the Company's liability under Section II(1)(i) in respect of one accident would be as per the provisions of the Act, but the limit of the amounts of the Company's liability under Section II(1)(ii) in respect of one claim or series of claims arising out of the event is up to Rs. 1,00,000/- only. In the case in hand, there being ho claim towards the damage to property as provided in Section II(1)(ii) of the conditions of policy, the limit of Insurance Company's liability to the extent of Rs. 1,00,000/- as stipulated in the policy of insurance is not applicable. 21. In the instant case, the accident occurred on 23.4.2003, i.e. during the period in which the said policy of insurance was in force. 1,00,000/- as stipulated in the policy of insurance is not applicable. 21. In the instant case, the accident occurred on 23.4.2003, i.e. during the period in which the said policy of insurance was in force. The contention of the appellant, as noticed above, is that since there was a contract of insurance between the appellant and the respondent/Insurance Company, the learned Tribunal ought to have directed the respondent/Insurance Company to satisfy the award, such policy being a comprehensive policy with the stipulation that the Company shall indemnify the insured, i.e. the appellant, the sums payable by the insured in the event of an accident caused by or arising out of the use of the vehicle, in respect of the death or bodily injury to any person including the occupants carried in the vehicle, when it is an admitted fact that such occupants, namely the husband of the claimant/respondent No. , 1, was not carried for hire or reward. The contrary submission of the Insurance Company is that since the accident occurred solely due to the negligence of the appellant, it cannot be said that the appellant/insured become legally liable to pay the compensation as stipulated in Section-II of the policy conditions and hence, the Insurance Company is not liable. 22. A person becomes 'legally liable' when the liability of such person is decided by a legal process. In a proceeding initiated against the owner of a motor vehicle for compensation on account of death or bodily injury to a person caused by or arising out of the use of such motor vehicle, such person, becomes legally liable to pay the compensation as soon as the Tribunal constituted under the Act determines the amount of compensation payable by him. In case there is a contract of insurance between such person and the Insurance Company, the Tribunal is required to pass an order directing such Insurance Company to satisfy the award passed. 23. As discussed above, there is no dispute relating to the issuance of insurance coverage by the respondent/Insurance Company in favour of the appellant and in respect of the vehicle in question. 23. As discussed above, there is no dispute relating to the issuance of insurance coverage by the respondent/Insurance Company in favour of the appellant and in respect of the vehicle in question. There being a stipulation in the policy condition that the Insurance Company shall indemnify the insured, in the event of an accident caused by or arising out of the use of the vehicle, against all sums including the claimant's cost and expenses, in respect of death or bodily injury of any person including the occupants carried in the vehicle, the Insurance Company, under the terms of contract of insurance, is bound to satisfy the award passed by the learned Tribunal, awarding compensation for the death of the pillion rider, namely the husband of claimant/respondent No. 1, who died in the accident occurred. The Insurance Company cannot be absolved from the liability under the contract of insurance on the ground that the appellant was solely found to be negligent and the accident occurred due to his negligence only. There is no exclusion clause in the policy of insurance exempting the Insurance Company from the liability to reimburse the insured, in the event the accident occurs due to the negligence of the insured. The conditions under which the policy was issued has only exempted the Insurance Company from the liability under the policy in respect of (i) any accidental loss/damage and/or liability caused, sustained or incurred outside the geographical area; (ii) any claim arising out of any contractual liability; (iii) any accidental loss/damage and/or liability caused, sustained or incurred while the vehicle insured herein is-(a) being used otherwise than in accordance with the 'Limitations as to Use' or (b) being driven by or is for the purpose of being driven by him/her in the charge of any person other than a Driver as stated in the Driver's Clause, (iv)(i) any accidental loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising there from or any consequential loss or (ii) any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from joining radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. It is not the case of the Insurance Company that it comes within any of the exceptions stipulated in the general exceptions of the policy. 24. It is not the case of the Insurance Company that it comes within any of the exceptions stipulated in the general exceptions of the policy. 24. The Insurance Company having entered into a contract of insurance with the appellant, it is bound to honour such contract. Since the policy was a comprehensive policy of insurance covering the risk of the occupants of the vehicle bearing registration No. AS-01/P-0945 (motorcycle), which is a private vehicle, the Insurance Company is bound to satisfy the award passed by the learned Tribunal awarding compensation for the death of the pillion rider, even if the accident occurred due to the negligence on the part of the appellant/insured. There is no dispute to the proposition of law that when a policy of insurance does not stipulate indemnification of insured in respect of the sum payable as compensation for the death or bodily injury to any person including the occupants carried in the vehicle, like the pillion rider, the Insurance Company cannot be made liable and no direction can be issued to satisfy the award passed by the learned Tribunal. In an 'act only' policy such coverage is not given. The decision of the Apex Court in Bismillah Bai case is not applicable in the case in hand, in view of the policy conditions, as discussed above, and also in view of the fact that the deceased in this case was not a gratuitous passenger in a goods carrying vehicle and the policy of insurance was issued covering the risk of the occupants of the vehicle and not an 'act only' policy. 25. Having held so, the second and the third questions as formulated above, need not be gone into, more so when the same Insurance Company issued the policy of insurance covering the risks of the present appellant and the respondent No. 2, in respect of both the vehicles, i.e. the motorcycle and the santro car. That being the position, even if, there can be apportionment of the amount of compensation between the two vehicles in case of 'composite negligence', the respondent/Insurance Company, under the contract of Insurance, is to satisfy the award. That being the position, even if, there can be apportionment of the amount of compensation between the two vehicles in case of 'composite negligence', the respondent/Insurance Company, under the contract of Insurance, is to satisfy the award. The decisions of the Apex Court in Municipal Corporation of Greater Bombay (supra), in U.P. State Road Transport Corporation (supra) as well as of Delhi High Court in Balwanti Devi (supra); of Rajasthan High Court in Heer Singh (supra) and of Bombay High Court in Sitaram Prabhu Tele (supra), which relate to the question of apportionment of compensation in case of 'contributory negligence' and 'composite negligence' are, therefore, not discussed. 26. The contention of the learned Counsel for the claimant/respondent No. 1 for enhancement of the rate of interest awarded by the learned Tribunal, in the absence of any cross-objection or appeal by her, cannot be accepted. The Apex Court in Supe Dei (Smt.) (supra) has awarded interest @ 9% per annum from the date of filing of the claim petition till the date of realisation on the basis of the appeal preferred by the claimant. No enhancement, however, as observed above, can be made, in the absence of any appeal by the claimant/respondent No. 1. 27. In view of the aforesaid discussions, the Insurance Company is directed to satisfy the award of compensation as passed by the learned Tribunal with interest, within a period of 2 (two) months from today. Such amount with interest shall be deposited before the learned Tribunal within the aforesaid period of time, which amount shall then be released to the claimant/respondent No. 1 on being duly identified. Registry is directed to refund the statutory deposit made by the appellant while filing the appeal. 28. The appeal accordingly stands allowed. No cost.