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2014 DIGILAW 1135 (RAJ)

Lali Devi v. Prabhu Narayan

2014-05-14

R.S.CHAUHAN

body2014
Hon'ble CHAUHAN, J.—The appellants are aggrieved by award dated 29.2.2008 passed by the Motor Accident Claims Tribunal, Jaipur, and Additional District Judge (Fast Track) No. 2, Jaipur District, Jaipur, whereby the learned Tribunal had granted a compensation of Rs. 8,59,450/-, along with an interest of 9% per annum from the date of the filing of the claim petition i.e 7.5.2002 to them. While exonerating the Finance, and the Insurance Company, the learned Tribunal has directed the driver of the offending vehicle to pay the compensation. 2. The brief facts of the case are that on 21.2.2002, around 7:30 PM, Surajmal was riding a motorcycle, bearing Registration No.RJ-14-34M-1029 as a pillion rider. Since the motorcycle was being driven rashly and negligently by Prabhu Narayan-respondent No. 1, it slipped on the road near Kali Kothi ki Dhani. Consequently, Surajmal suffered grievous injuries. Subsequently, on 30.1.2002 he succumbed to the injuries. Due to his death, his dependants - the wife, children and mother- (the appellants before this Court) filed a claim petition against the driver of the offending vehicle, the financing company of the offending vehicle, and the Insurance Company of the offending vehicle before the learned Tribunal. After taking into consideration the oral and documentary evidence, the learned Tribunal granted the compensation as mentioned above. But the learned Tribunal absolved both the Finance Company, and the Insurance Company from the liability of having to pay the compensation. The liability is fastened only on the diver of the offending vehicle. The appellants are not just aggrieved by the quantum of compensation, but more so by the letting off of the finance company and the Insurance Company their liability to pay the compensation. 3. Mr. Sandeep Mathur, the learned counsel for the appellants, has raised the following contentions before this Court: firstly, that according to the evidence submitted the motorcycle, bearing Registration No. RJ-14-34M 1029, was financed by the Tata Finance Company. According to the hire-purchase agreement as well as according to the Hire Purchase Act, 1972 (`thee Act of 1972' for short), it is the finance company that is the "owner" of the said vehicle. Hence, respondent No. 2, the Tata Finance Company was the "owner" of the offending vehicle. Thus, the learned Tribunal has erred in absolving respondent No.2, the Tata Finance Company, of its liability to pay the compensation. Hence, respondent No. 2, the Tata Finance Company was the "owner" of the offending vehicle. Thus, the learned Tribunal has erred in absolving respondent No.2, the Tata Finance Company, of its liability to pay the compensation. In order to buttress this contention, the learned counsel has brought both the Hire-Purchase agreement and the Act of 1972 to the notice of this Court. 4. Secondly, that according to the insurance policy (Exhibit NA.1), it was a comprehensive policy and not merely a third party policy. According to the learned counsel, the insurance policy (Exhibit NA.1), clearly indicates that it was "an own damage policy" as well as a policy for "liability to public". At the bottom of the policy it clearly reads as "comprehensive premium (A+B)". Therefore, the policy would not only cover the damage caused to the vehicle, but most importantly would also cover the death of the deceased. Hence the Tribunal was not justified in concluding that the insurance policy (Exhibit NA.1) was merely "a third party policy". Thus the policy does not cover the owner's death. 5. Thirdly, since the deceased was riding the motorcycle as a pillion rider, he was denuded of his character as the owner. Therefore, the Insurance Company was liable to pay the compensation. In order to substantiate this plea, learned counsel has relied upon the case of New India Assurance Co. Ltd. vs. Doredla Satyanarayana & others (1998 ACJ 952). 6. Fourthly, the learned counsel has also challenged the quantum of compensation awarded to the respondent claimants on the ground that the income of the deceased has been assessed on the lesser side. According to Smt. Lali Devi (A.W.1), her husband was ranked as a "B" Class contractor. He was working both for the Municipal Council, and for the Public Works Department. According to her, her husband was earning Rs. 8000/- per month. However, the learned Tribunal has assessed his monthly income as merely Rs. 6000/-. The said assessment is contrary to the evidence produced by the appellants. Further it is a misplaced assessment, as according to the Tribunal itself, Surajmal was paying an installment of Rs.3203/- per month for the motorcycle bought by him on hire-purchase basis. Therefore, according to the learned counsel, the income should have been assessed as Rs.8000/- per month. 7. Fifthly, the learned Tribunal has failed to take notice of the future increase in his income. Therefore, according to the learned counsel, the income should have been assessed as Rs.8000/- per month. 7. Fifthly, the learned Tribunal has failed to take notice of the future increase in his income. Therefore, the very basis of assessment of loss of income is askewed. 8. Lastly, that the learned Tribunal has granted an insufficient compensation in the categories of "loss of love and affection" and "loss of consortium". According to the learned counsel, appellant No. 1 happened to be a young lady, aged 29 years, at the time of the accident, whereas Smt. Gayatri Devi, Surajmal's mother, was an elderly woman, who had lost her son. 9. On the other hand, Mr. Tripurari Sharma, the learned counsel for the Insurance Company, has raised the following contentions before this Court: firstly, admittedly Surajmal had bought a motorcycle on a hire-purchase basis. However, it is the definition of the word "owner" which is given in the Motor Vehicles Act, 1988 (`MV Act' for short), which is relevant for the present case. Since the definition of "owner" given in the Act of 1972, is different from the definition of "owner" given in the MV Act, obviously, the definition of "owner" given in the Act of 1972 cannot be imported into the MV Act. Moreover, the learned Tribunal had considered the definition of "owner" as given in Section 2(30) of the MV Act, and had rightly concluded that Surajmal was "the owner" of the motorcycle. 10. Secondly, neither under Section 147 of the MV Act, nor under the insurance policy (Exhibit NA.1), is the risk of the owner covered by the policy. Furthermore, no premium was charged from Surajmal for any injury or death caused to the owner in an accident. Further, he neither paid, nor took out any personal accident insurance. Hence, as he was the owner of the vehicle, he was not covered by the insurnace policy (Exhibit-NA.1). Thus, according to the learned counsel, the learned Tribunal was justified in exonerating the insurance company from its liability to pay the compensation. In order to buttress this contention, the learned counsel has relied on the case of Dhanraj vs. New India Assurance Co. Ltd. & another (2005(1) T.A.C. 1 (SC) = RLW 2004(4) SC 594. 11. Thirdly, the appellants had failed to prove Surajmal's income. Although in her oral testimony, Smt. Lali Devi had claimed that her husband was earning Rs. In order to buttress this contention, the learned counsel has relied on the case of Dhanraj vs. New India Assurance Co. Ltd. & another (2005(1) T.A.C. 1 (SC) = RLW 2004(4) SC 594. 11. Thirdly, the appellants had failed to prove Surajmal's income. Although in her oral testimony, Smt. Lali Devi had claimed that her husband was earning Rs. 8000/-, but the oral testimony was not corroborated either by any income-tax return, or by any other documentary evidence. Thus, the learned Tribunal was certainly justified in concluding that Surajmal was earning merely an income of Rs. 6000/- per month. 12. Fourthly, an award is not meant to be a bonanza for the family; it is merely meant for ameliorating their financial condition. Considering the fact that the award was passed way back in the year 2008, sufficient compensation has been paid to the appellants for the "loss of love and affection" and the "loss of consortium." 13. Lastly, the learned Tribunal had granted a just and reasonable compensation of Rs. 8,59,450/- along with 9% of interest from the date of filing of the claim petition i.e. from the year 2002. Hence the learned counsel has supported the impugned award. 14. Heard the learned counsel for the parties, perused the impugned award and considered the case law cited at the Bar. 15. Needless to say, the definition clause of any Act is crucial to the interpretation of the Act. A definition clause is an inevitable part of an Act in order to achieve certain purpose: firstly, to clarify the meaning of a word or words or expressions used in the Act. Secondly, to make it amply clear that although the word or expression may have certain meaning assigned to it, in local parlance, the word or expression shall not be construed as generally understood by the public at large. In fact the word or expression is to be understood within the four corners of the definition given in the Act. Thirdly, to make it very clear that the word or expression should be interpreted in the manner defined by the Legislature, and in no other manner. The ultimate aim of the definition clause is to get rid of any ambiguity that may arise in the mind of the Court with regard to the meaning of the word or expression while interpreting a provision of the Act. 16. The ultimate aim of the definition clause is to get rid of any ambiguity that may arise in the mind of the Court with regard to the meaning of the word or expression while interpreting a provision of the Act. 16. The word "owner" has a jurisprudential basis for its meaning. Jurisprudentially it applies to a person who has a title to the property, but who may not necessarily have the possession of the property at a given time. However, as the word "owner" can also have different meanings, depending on the law under which the word is being utilized, it was imperative for the Legislature to define the word "owner" in different Acts. Thus, both in the Act of 1972, and in the MV Act, the word "owner" has been defined. 17. The definition of "owner" given in the Act of 1972 in Section 2(f) is as under:- "owner" means the person who lets or has let, delivers or has delivered possession of goods, to a hirer under a hire-purchase agreement and includes a person to whom the owner's property in the goods or any of the owners rights or liabilities under the agreement has been by assignment or by operation of law." 18. On the other hand Section 2 sub-clause (30) of the MV Act defines the word "owner" as under:- "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement." 19. A bare perusal of the definition of "owner" given in the Act of 1972 clearly reveals that a person continues to be the owner although he has delivered the possession of the goods to a hirer under a hire-purchase agreement and it also includes a person to whom the owner's property in the goods or owner's rights and liabilities in the agreement has passed by assignment or by operation of law. Thus under Section 2(f) of the Act of 1972, a person continues to be the owner although the possession of the property has been given to the hirer. 20. Thus under Section 2(f) of the Act of 1972, a person continues to be the owner although the possession of the property has been given to the hirer. 20. However, for the purpose of the MV Act, the word "owner" has been restricted to a totally different class of persons, namely a person in whose name the motor vehicle stands registered, or where such a person is minor his guardian, or in relation to a motor vehicle bought under hire purchase agreement, the person in whose possession the vehicle under the agreement is kept. Thus obviously the definitions of owner in two different Acts, differ greatly from each other. Interestingly, while the Act of 1972 does not make the person who is in possession of the goods as the owner, in the MV Act the person who is in possession becomes the owner by operation of law. Thus the word "owner" for the purpose of MV Act is totally different than the word "owner" in the Act of 1972. Needless to say, the definition given in one particular Act cannot be transported or transplanted into another Act, unless and until the Acts can be read mutatis mutandis, which obviously in the present case cannot be. Therefore, as for as the MV Act is concerned, one would have to confine the meaning of the word "owner" as defined in the MV Act itself. One cannot travel beyond the MV Act and consider the definition of "owner" given in the Act of 1972. Hence the first contention raised by the learned counsel that since the motorcycle was bought under a hire-purchase agreement, therefore, it would be covered by the definition of the word "owner" given in the Act of 1972, is untenable. While the learned Tribunal was dealing with a claim petition under the MV Act, naturally the learned Tribunal has to confine its interpretation to the definition of "owner" as given in the said MV Act. A bare perusal of the impugned award clearly reveals that this is exactly what the learned Tribunal had done. 21. The learned Tribunal was certainly justified in concluding that since the "owner" means in whose name the vehicle stands registered, and in whose possession the vehicle is under a hire-purchase agreement, such a person would be deemed to be the "owner" of the vehicle. 21. The learned Tribunal was certainly justified in concluding that since the "owner" means in whose name the vehicle stands registered, and in whose possession the vehicle is under a hire-purchase agreement, such a person would be deemed to be the "owner" of the vehicle. In the present case, admittedly, the motor vehicle was registered in the name of Surajmal, and on the date of the accident it was under his possession as he was riding as a pillion rider on the said motorcycle. Thus, the learned Tribunal was legally justified in its conclusion. 22. The learned counsel for the appellants has harped on the insurance policy (Exhibit NA.1) in order to plead that the Insurance Company was liable to pay the compensation for Surajmal's death. However, the said contention is highly misplaced. 23. Section 147 of the MV Act is as under"- "147.Requirement of policies and limits of liability,- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insurers the person or classes of persons specified in the policy to the extent specified in sub-section(2). (i) against any liability which may be incurred by him in 172 respect of the death of or bodily 90 [injury to any person. (i) against any liability which may be incurred by him in 172 respect of the death of or bodily 90 [injury to any person. including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place; Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of this employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided inclause (b), the amount of liability incurred. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided inclause (b), the amount of liability incurred. (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is 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 condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matter may be prescribed in different cases. (4) where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer 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." 24. A bare perusal of the said Section clearly reveals that it does not require an insurance company to assume risk for death, or bodily injury to the owner of the vehicle. Therefore, the insurance company is not liable to pay compensation for the death of the owner. 25. There are two types of policies under the Indian Motor Tariff, namely the `Act policy' and the `Comprehensive policy'. Therefore, the insurance company is not liable to pay compensation for the death of the owner. 25. There are two types of policies under the Indian Motor Tariff, namely the `Act policy' and the `Comprehensive policy'. While the former covers the risk to a third party, or damage to a property of a third party, the latter policy, besides covering the above mentioned risks, it also covers any loss suffered due to damage to the insured vehicle. Therefore, even these two policies do not cover the injury or death caused to the owner of the insured vehicle. The insurance company would be liable for injury or death of a owner if and only if it has been paid a premium separately for such a coverage. 26. In the present case, the policy merely covers "liability to public" and "own damage policy". The words "own damage policy" refer to the "damage caused to the insured vehicle." It does not include an injury or a death caused to the owner. Therefore, the learned counsel for the appellants is unjustified in claiming that since the insurance policy (Exhibit NA.1) was a comprehensive one, ipso facto, it included the death of owner of the insured vehicle, namely Surajmal. Hence, the learned Tribunal was legally justified in absolving the Insurance Company of its liability to pay compensation to the appellants. 27. The learned counsel has relied on the case of Doredla Satyanarayana & others (supra) in order to contend that in case the owner happens to be riding the motorcycle as a pillion rider, then he loses his character as the owner. For according to the learned counsel, in the said case although the deceased was the owner of the truck, by considering the fact that he was riding as the owner of the goods, therefore, the Insurance Company was held liable. In a similar fashion, since Surajmal was riding as a pillion rider, therefore, the Insurance Company would be liable for the payment of the compensation. 28. A bare perusal of the case of Doredla Satyanarayana & others (supra) clearly indicates that in para 12 their Lordships of the Andhra Pradesh High Court have held as under:- (page 957) "No doubt, the insurance policy, Exh. A. 10, does not cover the risk of the owner of the vehicle. On that score, Mr. 28. A bare perusal of the case of Doredla Satyanarayana & others (supra) clearly indicates that in para 12 their Lordships of the Andhra Pradesh High Court have held as under:- (page 957) "No doubt, the insurance policy, Exh. A. 10, does not cover the risk of the owner of the vehicle. On that score, Mr. Kota Subba Rao, the learned counsel for the appellant maintains that the policy indemnifies the owner of the vehicle only against his liability to third parties and it does not cover the liability to third parties and it does not cover the liability arising due to bodily injury or death of the owner himself. There is absolutely no dispute about this proposition of law as has been held by a Division Bench of this court in United India Insurance Co. Ltd. vs. Odeti Mallu Bai, 1995 ACJ 851 (AP). Equally settled is the proposition of law that the insurer is not liable to satisfy the claim in respect of death of the owner-insured when the vehicle was driven by himself at the time of accident. [See Oriental Fire & Genl. Ins. Co. Ltd. vs. Shakuntala Devi, 1991 ACJ 177 (Allahabad); and Oriental Insurance Co. Ltd. vs. Chimajirao Kanhoji - rao Shrike, 1992 ACJ 452 (Bombay)]. However, this is not the real issue for our consideration in the present case. The real issue is whether the claimants are debarred from setting up claim when the deceased was travelling in the lorry as the owner of goods, though he also happened to be the owner of the said vehicle. It is the specific case of the claimants that the deceased was travelling in the lorry as the owner of goods. In this context, it would be apt to reproduce their plea as set out in the claim petition. It reads as under; "That on 8.5.1988 during the early hours at Kanchikacherla village the deceased Ponnapolu Venkatshwara Rao boarded the lorry bearing No. ATK 9543 which was coming with timber load, i.e., sarvi karra, from Tangutur, Prakasham District and was bound for Kamlapuram village in Warangal District with a view to visit his friend Gurrala Venkata Narasimha Reddy, who is residing at Kothagudem, he was also carrying one gunny bag of rice in the said vehicle with him to give it to his friend. Thus he was travelling in the vehicle, i.e., lorry from Kanchikacherla as owner of the goods, i.e., rice." The appellant though filed a detailed counter thereto has not denied the above averment. Therefore, we have to accept the plea that at the time of accident the deceased was travelling in the lorry as the owner of the goods, though he happened to be the owner of the said vehicle." 29. Thus even in the said case, Their Lordships have noticed the fact that the policy in question indemnified the owner of the vehicle only against his liability to third parties, and it does not cover the liability arising due to bodily injury or death of the owner himself. Their Lordships have also noticed two judgments of two different High Courts, namely of the Hon'ble Allahabad High Court and Hon'ble Bombay High Court and concluded that it is equally settled that the insurer is not liable to satisfy the claim in respect of death of the owner insured when the vehicle was driven himself at the time of the accident. Moreover, the issue that was raised in Doredla Satyanarayana & others (supra) is not the issue which is raised in the present case. The issue in the said case was whether a person who rides a truck, not as a gratuitous passenger but as the owner of the goods, whether such a person would be covered under the Insurance Policy or not? Obviously that is not the issue before this Court in the present case. Repeatedly the Hon'ble Supreme Court has observed that judgments cannot be read by inference or by analogy. Each judgment has to be read within the factual foundation of the case. After all, pronouncements of the Courts are not provisions of law. Therefore, the case of Doredla Satyanarayana & others (supra) does not come to the appellants rescue. 30. As far as the quantum is concerned, according to the learned Tribunal, although Smt. Lali Devi claimed in her testimony that her husband was earning Rs. 8000/- per month, but she did not produce any documentary evidence. To establish this fact, she had produced work orders from the Public Works Department. However, as the work orders were photostat copies, since they were secondary evidence, they were unacceptable to the learned Tribunal. 8000/- per month, but she did not produce any documentary evidence. To establish this fact, she had produced work orders from the Public Works Department. However, as the work orders were photostat copies, since they were secondary evidence, they were unacceptable to the learned Tribunal. The learned Tribunal has also noticed the fact that she did not produce Surajmal's income-tax return, although she did submit the statement of her husband's bank account. The only conclusion that could be drawn by the learned Tribunal, and rightly so in the view of this Court, that he had a large amount of money deposited in the Bank, and that he was paying a monthly installment of Rs. 3203/-. Therefore, looking at all the circumstances, and considering the fact that the accident had occurred as far back as in 2002, the learned Tribunal was certainly justified in concluding that he must have been earning about Rs. 6000/- per month. Therefore, the assessment made by the learned Tribunal cannot be faulted. 31. As far as taking into account the future prospect of increase of income is concerned, suffice it to say at the relevant time when the impugned award was passed, the interpretation given by the Hon'ble Supreme Court in Sarla Verma & others vs. Delhi Transport Corporation & another (2009) 6 SCC 121 = 2009(4) RLW 2785 (SC)), was ruling the roost. In the said case the Hon'ble Supreme Court had itself made an exception by saying that the principle of future increase in income would not apply to those who were self-employed, or who were in fixed salary. Considering the fact that the deceased was self-employed, obviously he came within the exception laid down in Sarla Verma & others (supra) judgment. Merely because presently the Hon'ble Supreme Court has expressed a different opinion in the case of Santosh Devi vs. National Insurance Company Limited & others (2012) 6 SCC 421 = 2012(3) RLW 2023 (SC)), and in the case of Rajesh & others vs. Rajbir Singh & others (2013 (6) Scale 563 = 2014(2) RLW 1185 (SC)), the said opinion cannot be applied retrospectively. After all, at the present moment this Court is concerned merely with the legality of the award dated 29.2.2008. After all, at the present moment this Court is concerned merely with the legality of the award dated 29.2.2008. Thus the only issue before this Court is whether the interpretation of law which was prevalent at that time, whether the same had been applied by the learned Tribunal or not. Merely because a new interpretation of law has recently emerged, for this very reason the learned Tribunal cannot be faulted. 32. As far as the "loss of consortium" and "the loss of love and affection" are concerned, suffice it to say the learned Tribunal has granted each appellant Rs. 7000/- for the same. Indeed it is true that the loss of a husband and loss of the father cannot be compensated. But such a huge loss cannot be compensated by any amount of money either. Considering the fact that the appellants have lost Surajmal in the year 2002, the "loss of consortium" and "loss of love & affection" to the tune of Rs. 7000/- is certainly reasonable. 33. Needless to say a compensation award is not meant to be a bonanza, but is meant to monetarily compensate the appellants for the loss suffered by them. Considering the fact that the learned Tribunal, after a thorough analysis of the evidence on record, had granted a compensation of Rs. 8,59,450/- along with an interest of 9% that too as far back as in 2008, the award is more than just, sufficient and reasonable. 34. For the reason stated above, this Court does not find any illegality or perversity in the impugned award. This appeal being devoid of any merit, is hereby dismissed.