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2016 DIGILAW 233 (CAL)

NATIONAL INSURANCE CO. LTD. v. GOKUL DAS

2016-03-03

INDIRA BANERJEE, SAHIDULLAH MUNSHI

body2016
JUDGMENT : Sahidullah Munshi, J. This appeal filed by National Insurance Co. Ltd. is against a judgment and award dated 29th April, 2004 passed by the Motor Accident Claims Tribunal and Additional District Judge, 4th Court, Nadia in an application of the respondent/claimant for compensation under Section 166 of the Motor Vehicles Act, 1988 being M.A.C.C. Case No. 216 of 2002 on account of his permanent disability by reason of an accident caused by the fault and negligence of a mini truck bearing the No. WB-51/1047 owned by the respondent Nos. 2 and 3 and covered by a policy of insurance issued by the appellant insurer. In the claim application, it was stated that on 19th March, 2001 the respondent/claimant was returning home from the Nabadwip burning ghat in the offending mini truck along with his relatives and neighbours. The said mini truck which was being driven recklessly, in high speed, lost control and hit the boundary wall of a school. Two persons succumbed to their injuries. The respondent/claimant, Gokul Das suffered multiple injuries which led to his permanent disablement. The learned Tribunal on consideration of the evidence on record arrived at the finding that the accident was caused by reason of the rash and negligent manner in which the vehicle was being driven by its driver. The learned Tribunal on consideration of the evidence on record, and in particular, the certificate of an Orthopedic Surgeon posted in the District Hospital, Nadia, Dr. Tarunjit Dutta Roy who had treated the petitioner was also satisfied that the respondent/claimant had become permanently disabled, to the extent of 65%. The doctor was examined. In his evidence, he stated that the respondent/claimant would not be able to move or walk independently without the help of escort. The learned Tribunal awarded to the respondent/claimant compensation of Rs.2,70,000/- as per the particulars given herein below : Rs.1,00,000/- (lump sum) towards pain and suffering Rs.1,50,000/- for unusual deprivation Rs.20,000/- towards medical expenses incurred and future medical expenses. The learned Tribunal by its judgment and award under appeal found that the respondent owners and the appellant were jointly and severally liable to pay compensation, and the appellant (O.P. 3 before the learned Tribunal) being the insurer had to indemnify the owner. The learned Tribunal by its judgment and award under appeal found that the respondent owners and the appellant were jointly and severally liable to pay compensation, and the appellant (O.P. 3 before the learned Tribunal) being the insurer had to indemnify the owner. The learned Tribunal directed the appellant being the insurer to pay the awarded amount to the respondent/claimant by an Account Payee cheque drawn in his name within 60 days from the date of the award failing which the unpaid amount would carry S.I. @ 9% per annum from the date of the judgment and award under appeal till the date of actual payment. The cheque was directed to be handed over to the respondent/claimant, upon payment of deficit Court fees. The appellant insurer has challenged the judgment and award under appeal on the ground that the respondent/claimant being a gratuitous passenger on the offending truck, not covered by the insurance policy, the appellant insurer was not liable to pay compensation. The appellants have also contended that the award was excessive. In any case, a lump-sum award ought not to have been made. It is well settled that in a claim case, the learned Tribunal is obliged to make an enquiry and award compensation which is just and fair. Compensation may be awarded for pecuniary loss such as loss of income, medical expenses etc. and also non-pecuniary loss such as loss of amenities of life, loss of expectation of life etc. In this case, the learned Tribunal has not considered the pecuniary loss on account of loss of future income at all. In the claim application, it was claimed that the respondent/claimant had income of Rs.4,000/- per month. In his evidence he stated that he used to earn Rs.100/- to Rs.150/- every day by selling fish. He claimed that he had three minor children and a wife. As he was unable to even sit, he could not run any business. In the claim application, it was claimed that the victim was 35 years of age at the time of accident. In his evidence, he stated that he was 35 years of age. In cross-examination, he, however, could not say what was the exact year of his birth. He could not even guess his exact age. It is true that the respondent/claimant could not say what was his year of birth. In his evidence, he stated that he was 35 years of age. In cross-examination, he, however, could not say what was the exact year of his birth. He could not even guess his exact age. It is true that the respondent/claimant could not say what was his year of birth. He could not also guess what his age was. However, considering the fact that people in rural areas and small town carrying on petty business, marry early and considering that the claimant had three children all of whom were minors, it may reasonably be presumed that the respondent/claimant was at the highest, around 40 years of age at the time of the accident. The multiplier applicable to the age group of 35 to 40 could have been applied to assess his income. The respondent/claimant had claimed that he earns approximately Rs.4,000/- per month. The income being small, the respondent/claimant was not liable to income tax. There could be no question of documentary proof of income of the respondent/claimant. The tenor of his evidence and particularly his inability to state his date of birth or even guess his year of birth makes it patently clear that the respondent/claimant was illiterate or at best semi-illiterate. The appellant-Insurer has challenged the judgment and award under appeal on the ground that Insurance Policy does not cover liability towards gratuitous passengers travelling in a goods carrying vehicle. It has been submitted on behalf of the Insurer that as per Motor Vehicles Act ‘gratuitous passenger’ in a goods vehicle was neither covered under the said Act prior to its amendment of 1994, nor even after its amendment. Prior to 1994 amendment, even the owner of the goods or his authorized representatives were not covered. However, it is only after the amendment of 1994 that the owner of the goods and/or his authorized representatives have been given the insurance coverage. It is submitted that the learned Tribunal intended to give the advantage of the term ‘owner of the goods and/or his authorized representatives’ to the claimant, in spite of the admitted fact that at the time of accident, the truck was not carrying any goods at all. In support of his submission the learned counsel appearing for the Insurance Company has relied on various judgments. He has specifically relied upon a Larger Bench decision in the case of National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. In support of his submission the learned counsel appearing for the Insurance Company has relied on various judgments. He has specifically relied upon a Larger Bench decision in the case of National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. reported in (2004) 1 WBLR (SC) 490. Learned advocate has also argued that since a gratuitous passenger is not entitled to any compensation question of directing the insurer to satisfy the award and thereafter, to recover it from the owner does not arise at all in the instant case. The short question involved in this appeal is whether an insurer is liable to pay compensation for the death of a gratuitous passengers carried in a goods vehicle. In National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. reported in (2004) 1 WBLR (SC) 490 the Supreme Court held: “17. By reason of the 1994 Amendment what was added is “including the owner of the goods or his authorised representative carried in the vehicle”. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words ‘any person’ occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression ‘any person’ contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. 18. The observations made in this connection by the Court in Asha Rani case to which one of us, Sinha, J., was a party, however, bear repletion:- “26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used i.e. ‘a third party’. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used i.e. ‘a third party’. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.” 21. The upshot of the aforementioned discussion is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.” In National Insurance Co. Ltd. Vs. Challa Bharathamma & Ors. reported in (2004) 8 SCC 517 the Supreme Court held that the insurer was not liable since the vehicle was being operated without a permit. The defence of Section 149(2) would be available to the insurer. The Supreme Court held that considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal. The offending vehicle might be attached as part of security. In Manager, National Insurance Company Limited Vs. Saju P. Paul & Anr. reported in (2013) 2 SCC 41 the Supreme Court held that the insurer is liable to pay compensation only in respect of those employees for whom insurance premium is paid and not for each and every employee who might be travelling as a gratuitous passenger in the vehicle concerned. However, considering that the claim had been pending for two decades and the insurer had deposited the entire awarded amount the Supreme Court permitted the respondent/claimant to withdraw the said amount along with accrued interest with liberty to the insurer to recover the same from the owner of the vehicle. The compensation awarded is certainly not excessive. The respondent/claimant has only been awarded Rs.2,70,000/-. No pendente lite interest has been awarded. The compensation awarded is certainly not excessive. The respondent/claimant has only been awarded Rs.2,70,000/-. No pendente lite interest has been awarded. Interest has only been awarded in case of default of payment of the awarded amount within the time stipulated in the award and that too, only from the date of the award and not from the date of filing of the claim application. It is well settled that in assessing the income of the victim of an accident, some guess work is permissible. When the income claimed is not excessive, oral evidence with regard to the income might be accepted. If the monthly income of the victim was Rs.4,000/- the annual income would be Rs.48,000/-. The figure multiplied by the multiplier 15 applicable to the age group of 35 to 40 years would amount to Rs.7,20,000/-. 65% of that amount (the disability being 65% as per medical report), the award on account of pecuniary loss would be Rs.4,68,000/-. Since the respondent/claimant had claimed Rs.4,50,000/-, we deem it appropriate to enhance the award to Rs.4,50,000/-. In addition, the respondent/claimant would be entitled to compensation on account of medical expenses subject to proof of medical expenses. It is significant to mention that in M/s. National Insurance Co. Ltd. Vs. Baljit Kaur (supra) Hon’ble Apex Court observed that justice would have been subserved if the appellant was directed to satisfy the awarded amount in favour of the claimant, if not already satisfied and to recover the same from the owner of the vehicle. In view of the above observation made by the Hon’ble Apex Court we direct that the Insurance Company will pay the aforesaid amount of Rs.4,50,000/- to the claimant as directed hereinafter and to recover the same from the owner of the vehicle. Needless to mention that before making payment of the award the Tribunal will deduct an amount equivalent to deficit Court fees, if there be any. Needless to mention that before making payment of the award the Tribunal will deduct an amount equivalent to deficit Court fees, if there be any. However, as submitted by the learned Counsel for the appellant that entire amount awarded by the learned Tribunal has been deposited with the learned Registrar General of this Court, the claimant will be at liberty to withdraw the same together with interest accrued thereon and the appellant will deposit the balance amount before the learned Tribunal along with interest at the rate of 9% per annum from the date of filing of the application till full payment as per reducing balance, within forty five days from the date of receipt of a certified copy of this order. Appeal being F.M.A. 2474 of 2005 is dismissed. Having regard to the award passed by this judgment no further discussion with regard to the cross-objection filed by the claimant is required. Memo of cross-objection being C.O.T. 2150/05 preferred by the respondent/claimant stands disposed of. I agree. (Indira Banerjee and Sahidullah Munshi, JJ.)