JUDGMENT
M.P. Chandrakantaraj Urs, J.
1. These two appeals are disposed of by the following common order as they arise out of the same judgment and award of the Accidents Claims Tribunal, Chickmagalur, (hereinafter referred to as ‘the Tribunal’) in M.V.C. No. 135 of 1985.
2. M.F.A No. 531 of 1988 is by the owners of motor vehicle bearing registration mark MYC 3993. Aggrieved by the liability foisted on them jointly and severally to the exclusion of the liability of the insurance company which was the 3rd respondent before the Tribunal. M.F.A No. 1068 of 1990 is by one of the victims of the accident, aggrieved by the inadequate compensation awarded as contended by him.
3. The undisputed facts may be stated and they are as follows: The petitioner appellant in M.F.A No. 1068 of 1990 in the claim petition before the Tribunal under Section 110-A of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) pleaded that while he and his brother-in-law were standing near the compound of the building of the Karnataka Electricity Board at Kadur on the Bangalore-Honnavar Road waiting for a passenger bus in order to go to Hassan, the lorry bearing registration mark MYC 3993 owned by respondent Nos. 1 and 2 (the appellants in M.F.A No. 531 of 1988) was driven rashly and negligently at great speed from the side of Shimoga and collided against them causing him and his brother-in-law serious injuries resulting in the fracture of the femur of his left leg and several other injuries which necessitated his hospitalisation and prolonged treatment. Therefore, he pleaded that he may be paid compensation for such injury in the sum of Rs. 1,58,000/-.
4. Besides, the owners who are actually father and son, the insurance company, namely, United India Ins. Co. Ltd., who had issued a third party risk coverage policy were also made parties to the proceedings.
5. The respondent Nos. 1 and 2 filed a detailed statement of objections to the petition. It was contended by them specifically that the petitioner and his brother-in-law were gratuitous passengers picked up earlier at Kadur and the lorry was driven by one Rajagopal, their driver, at a normal speed without any negligence, but the push rod snapped for no apparent reason resulting in the driver losing control of the vehicle and in that manner the vehicle went to the extreme right of the road and dashed against the compound of the Karnataka Electricity Board as well as the compound of the hospital building next. As a result of the accident the driver and the passengers in the cabin were injured; as the petitioner was a passenger on his own volition he took the risk and therefore they were not liable for the compensation by way of damages and the petition was liable to be dismissed.
6. The insurance company, based on the stand taken by the 1st and 2nd respondents, the owners, took the stand that there was no liability on its part as the policy issued in respect of the vehicle to the insureds (actually insurance had been taken out in the name of the 2nd respondent) did not provide for payment of any compensation to passengers who were not employees of the owner of the lorry within the meaning of that expression under the Workmen’s Compensation Act.
7. On such pleadings, the Tribunal below formulated the following two points for determination:
(1) Whether respondent No. 2 drove the lorry MYC 3993 belonging to respondent No. 1 rashly and negligently and caused injuries to petitioner?
(2) To what compensation and from whom the petitioner is entitled?
It held on issue No. 1 in the affirmative and in regard to quantum it awarded Rs. 26,000/-holding respondent Nos. 1 and 2, the owners, liable jointly and severally and thereby the defence put forward by the insurance company, the 3rd respondent, in so far as its liability was concerned was upheld. Aggrieved by that finding, as we have earlier narrated, these appeals have been filed.
8. The counsel for appellants, we must notice with regret, persistently misled the court practically on all issues urged by him before us. He first contended that the insurance company should have been held liable as the petitioner was not a passenger but a person standing on the roadside and the third party risk coverage contemplated under Section 95 of the Act would make the insurance company liable and responsible. For this proposition, he relied upon the pleading of the petitioner totally overlooking the stand taken by respondent Nos. 1 and 2, owners, in their written statement. No court will permit a party, that too a party who had not adduced evidence in support of his stand in the court or the Tribunal to argue against his own pleadings.
9. It will be useful at this stage to refer to the history of the case, as much has been said by the learned counsel for the appellants-owners that the insurance company had undertaken to put forward their defence as well and therefore the owners did not lead any evidence in support of their statement. There was no evidence placed before the Tribunal or this court in support of such an undertaking given by the insurance company. Assuming that such a contract did exist between the insurer and the insured, we feel having regard to the purpose of the provisions made in Chapters VII-A and VIII of the Act such an agreement between the insurer and the insured would be void ab initio and unenforceable as in the very nature of the express contract of insurance coverage there is conflict of interest and the insurance company may never be permitted to take up the case of the owners or the insured on their behalf. We are quite emphatic about this and wherever such practice does exist, it should be discouraged. We cannot in this behalf lose sight of the fact that expressly under the provisions of the Act, the insurance company is forbidden by law to contest certain matters like negligence, contributory negligence and the quantum to be awarded etc. Therefore, even if there was truth in the contentions advanced by the learned counsel that the owners failed to put in the evidence in support of the statement of objections put in by them as the insurance company had undertaken to do the same, we do not find any merit.
10. On the other hand, we find that different counsel represented the owners. They had filed the written statement. On 7.3.1987 after the evidence for the petitioner had been recorded and his side had closed the case, the counsel retired on that very same day and two other counsel appeared for the owners. They made an application for reopening the case and to lead evidence in support of their defence. That application came to be allowed but no evidence was led and out of sheer despair the Tribunal had to proceed to give judgment 8 months thereafter. This is borne out indisputably by the order sheet of the case which we have carefully perused from the records of the Tribunal.
11. In the light of the facts stated above, it is strange that the learned counsel contended before us that the Tribunal had passed an order against them in violation of the rules of natural justice without affording them an opportunity of representing their case. The counsel engaged by the insurance company (if it is true) had retired and it was thereafter that all the proceedings took place behind their back. This we have pointed out is totally without substance and not borne out by the records. In fact the records speak the opposite.
12. It was yet another contention urged by the learned counsel that the petitioner had given up the first respondent-owner, the first appellant before us, in the proceedings before the Tribunal. He was very emphatic about the assertion. The entire search made of the order sheet did not disclose any such state of affairs though there is a memo in the records. But no order was passed on that memo. On the other hand, throughout respondent Nos. 1 and 2 have been represented by the counsel continuously till the end. Undoubtedly, the learned counsel based his submission in this behalf on the observations made by the learned District Judge in the course of his order in paragraph 8. On a careful reading of that paragraph, we find that it was observed more as the contention of the counsel for respondent No. 3 and not as a finding recorded by the Tribunal. We find the memo in question was not signed by the counsel. Therefore, we must reject that contention also as totally devoid of merit.
13. Therefore, the appeals must fail in all respects of their plea. We sustain the order of the Tribunal in that behalf.
14. We find from the records that the memo giving up the 1st respondent was not signed by one of the counsel as observed in the course of the judgment and therefore the memo was ignored. As such, no order was passed on that memo.
15. Now the appeal of the victim of the accident should not detain us long. We have already stated his case and he has persisted in the stand that he was not a passenger but a person who was standing by the side of the road awaiting for a passenger bus to travel to Hassan and it was in that circumstance the lorry came and collided against him. From the assertions of the petitioner himself as well as his brother-in-law who gave evidence before the Tribunal, there was no other evidence. On the other hand, the Tribunal proceeded to disbelieve the version as an afterthought because the first information report filed in the Magistrate’s court was made available to the Tribunal to disclose a different set of facts that they were passengers in the lorry. No doubt, the first information report was not given by either the petitioner or his brother-in-law. It was given by a police constable and recorded by the Inspector of Police and forwarded to the Magistrate. It was in that circumstance, the court in order to verify whether the conclusions reached by the Tribunal were correct, examined the mahazar drawn up the morning following the night of the accident independently of the first information report. From the facts recorded in the mahazar we notice that the lorry had travelled from the extreme left side to the extreme right side leaving tyre marks and hit the compound of the Karnataka Electricity Board with considerable force resulting in the breach of the compound and the cabin of the lorry being dislodged and thrown out. The impact was such that the lorry proceeded further and damaged the compound of the hospital adjoining the Electricity Board building. The impact was with such force that the gas cylinders carried by the lorry which were loaded with gas were scattered helter-skelter on the road and were removed the following day after the mahazar.
16. It is common knowledge, these gas cylinders containing cooking gas are very heavy and therefore the impact against anything with them in the lorry would add tremendous velocity if the impact is in the course of the motion of the vehicle which carried such weight. It is also in the mahazar that the impact was direct in as much as the front bumper and the radiator were severely dented and pushed inward, the axle and bearings and the tie-rod ends were cut supporting the stand taken by the owners that the push rod had given way as a result of which the lorry had gone out of control as pleaded by them in their written statement.
17. Having regard to these facts never disputed by anyone of the parties, we have applied the doctrine of res ipsa loquitur independently of the first information report and come to the conclusion that the only manner in which the petitioner and his brother-in-law escaped death due to impact could have been on account of their being inside the cabin as suggested to the brother-in-law of the petitioner who was PW 3 in the course of his cross-examination and who though seriously injured did not put in a claim for compensation,
18. Therefore, we are satisfied that they were passengers and not persons standing awaiting arrival of a passenger bus when the accident occurred as claimed by them.
19. In any event, the petitioner-claimant has been awarded compensation for the injury. It was in evidence that he was an auto-electrician carrying on work as such, earning Rs. 4,000/- per month. That has been disbelieved as no proof of his monthly income was ever produced by them. On an estimate made, the learned Judge has taken 10 to 15 per cent of disability suffered by the fracture of the femur and awarded Rs. 20,000/- as general damages for injury, pain and suffering as well as Rs. 2,000/- as special damages for loss of earnings. After analysing several of the decisions of this court and the other High Courts, it came to the conclusion that injury suffered by the appellant-petitioner may be adequately compensated by awarding Rs. 22,000/- towards injury, pain and suffering including disability and a sum of Rs. 4,000/- towards medical expenses. In the absence of any proof of his high income or loss of income, we do not think we will be justified in interfering with the quantum of compensation awarded.
20. In the result, this appeal also must fail. Accordingly, this appeal also stands dismissed.
21. No costs in both the appeals in this court.