JUDGMENT
M.L. Bhat, J.
1. Three claim petitions came to be filed in respect of an accident in which Bus No. 4515/JKB-carrying group of student tourists were to be carried from Srinagar to Sonamarg on 30-10-1975. The said vehicle met with an accident near Kangan while executing a turn on the bridge through which it had to pass. The said bus is said to have rolled down as a result of which one Rajinder Kumar received serious injuries and ultimately succumbed to the said injuries. The other two claimants namely Mahendra Somachand and Gitaban sustained injuries, which rendered them disabled. The claims Tribunal have decided the three claim petitions by virtue of one judgment. However, three appeals are preferred against the three claims by the appellant who was the owner of the said vehicle at the relevant time.
2. Briefly staled the Tribunal took the following facts as proved:
(i) That a tourist group of students from Gujarat bad boarded two buses from Srinagar to Sonamarg on the fateful day of 3010′ 1975. One of the buses bearing No. 4515/JKB which was driven by Abdul Ahad respondent met with an accident due to the rash and negligent driving on the part of the driver.
(ii) The driver of the bus had driven the vehicle at an excessive speed, ignoring the road safety warnings and executed turns at narrow beads of the road negligently and rashly. The bridge on which the accident took place was very narrow and it had space for only one vehicle for passing through. Due to the rash and negligent driving railing of the bridge was broken by the front portion of the vehicle and thereafter the bus rolled down the bridge in the river from a height of about 35 ft. Almost all the passengers travelling in the Bus were injured. The driver due to the rash driving had lost control of the vehicle.
(iii) That as a result of the accident, Rajinder Kumar deceased had received multiple injuries. He was taken to the S.M.H.S. Hospital, Srinagar where he succumbed to the injuries received in the accident. Rajinder Kumar was a student of Second Year B.A.
(iv) Mahendra Somachand Thakkar respondent herein had received five grievous injuries.
(v) That claimant Gitaban had sustained several injuries mentioned in Para 6 of the claim petition which bad rendered her disabled to large extent.
(vi) That the vehicle stood insured with United India Fire and General Insurance Company, the respondent in the claim petition.
3. During the course of trial of the claim petitioners, the appellant herein appeared before the Tribunal at Jammu and was asked to file the objections. Thereafter the appellant and his driver did not appear before the Tribunal and ex-parte proceedings were taken against them. The claimants were asked to produce evidence and they adduced evidence before the Tribunal in the three claim petitions. The appellant and his driver seem to have appeared later on but they seem to have taken no interest in the conduct of the case. The Tribunal seems to have given ample opportunity to the appellant to lead evidence. They were given opportunity to take part in the proceedings despite their attempt to prolong the proceedings. From the minutes of the record it appears that the appellant had played hide and seek with the Tribunal and had appeared several times and thereafter absented, which constrained the Tribunal not to set aside the ex-parte proceedings from the stage from which he bad appeared before the Tribunal. The Tribunal had given them right of rebuttal also. After giving three opportunities to the appellant to produce his evidence, the Tribunal closed his evidence because the appellant did not produce any witness. He, however, got his own statement recorded.
4. In the memo of appeal, learned Counsel for the appellant has urged that the appellant was not given fair opportunity to conduct his case and defend himself before the Tribunal. It is stated that the Tribunal bad without any rhyme or reason denied the right to the appellant to get the witnesses summoned through Tribunal.
5. We have examined the record of the file. The claim petition was filed in April 1976. And the appellant had prolonged the trial of the claim petitioners for about seven years In between he had filed many applications either for getting the ex parte set aside or for permission to get the witnesses summoned through Tribunal or for getting them on their own responsibility. The Tribunal had given him opportunity to produce the evidence through the assistance of the Tribunal, but neither list of witnesses nor their expenses were deposited by the appellant. Therefore, he lost that right. Thereafter, he was given opportunity to adduce the evidence and despite several opportunities having been granted to him he did not co-operate with the Tribunal. Therefore, his evidence was closed. After closure of evidence also he seems to have made many attempts to prolong the proceedings, which was not allowed by the tribunal to be prolonged. Therefore, it is incorrect to infer that the appellant has been denied an opportunity to defend his case before the Tribunal. Mr. Z.A. Qureshi wanted this Court to allow the appellant to adduce evidence afresh so that he is able to explam his point. We are afraid that we cannot at this stage now reopen the case which is pending decision now for the last more than 13 years as it had remained in the Tribunal for seven years and it is pending in this Court for the last more than six years The grievance of the appellant against the Tribunal having refused to give him opportunity of adducing evidence is unfounded and misplaced and is belied by the record of the case. The Tribunal has to evolve its own procedure for conduct of the claim petitions. In some matters, such as summoning of the witnesses, issuing interrogatories it has to follow the procedure laid down in the Civil Procedure Code. The Tribunal has afforded ample opportunity to the appellant and followed the procedure in regard to the trial of the claim petitions, but the appellant has not shown a cooperative conduct and the Tribunal had the power to record ex parte proceedings and try the claim petitions. It cannot be said that the Tribunal was helpless in ordering the conduct of the trial of a claim petition if the respondent against whom the petition is filed does not co-operate with the Tribunal or co-operate with a view to prolong the proceedings. We do not see any fault with the conduct of the trial of the Tribunal in respect of the claim petitions.
6. That brings us to the merits of the case.
7. Claim petition No. 1 was in respect of death of Rajinder Kumar whose parents had filed the claim petition and they had restricted the claim to Rs. 60,000/-. The said Rajinder Kumar had lost his life as a result of grievous injuries he had suffered in the accident which was caused due to the rash and negligent driving of the vehicle by the driver, namely, Abdul Ahad who had admitted that one passenger had died in the accident.
8. The deceased is said to have been twenty years of age and was student of B.A., II year. The claim petition had mentioned that he was assisting his father in his tobacco business but the Tribunal has rightly disbelieved that portion of the statement because it would not stand to reason that a student reading in B.A. would be able to render any positive help to his family in business. He, however, would have become a support to his parents after he would have settled in life, but as student his connections with his father’s business do not appear to have been established. Therefore, the tribunal taking into consideration the uncertainties of life, other probabilities and preponderances was right in awarding Rs. 30,000/- in claim petition No. 1 on account of death of said Rajinder Kumar. In our opinion, the compensation awarded by the Tribunal in claim petition No. 1 is not unreasonable or excessive. The appellant has to pay Rs. 24,000/- out of this amount. The Insurance Company has to pay Rs. 5000/- and the remaining amount of Rs. 1,000/- is to be paid by the respondent-driver, Abdul Ahad. The interest and costs awarded are to be paid proportionately by the appellant, Insurance Company and the Driver.
9. In claim petition No. 2 one Mahindra Somachand had received multiple injuries of the following nature:
(1) Infected healed wound with pus discharged sinus at the right parital and occipital region.
(2) Fractures of the left clavicle at the junction of the middle and lateral 1/3 of the left clavicle.
(3) Fraeture of the neck of the left scapuls.
(4) Tenderness at the Lumbo sacral region.
(5) Diminish of the sensation at the medial aspect of left forearm.
On appreciation of evidence the Tribunal has found that the injuries have caused residuary disability to the petitioner, namely, Mahindra Somachand and movement of his shoulders Are restricted. The malunion of the left clevical, restriction of the external rotation of the left shoulder and diminishing of sensation of left forearm are likely to cause difficulty for constant work. The said petitioner had claimed that his earning capacity was reduced to Rs. 1500/- per year. However, the Tribunal after consideration of relevant factors awarded him Rs. 11,000/- with interest at the rate of 6% p.a. from the date of application. Out of this amount appellant was held liable for payment of 6,000/–proportionate costs and interest. Rs. 5,000/-was the liability of the Insurance Company.
10. The third claim petition was in respect of Gitaban who had claimed Rs. 52,750/- on the basis of having suffered economic loss, pain and shock, personal loss on account of discomfort, inconvenience and loss of enjoyment of life and on account of other heads mentioned in the claim petition.
11. The Tribunal had relied on the evidence of Dr. Dinu Bai an expert medical witness and an orthopeadic Surgeon from Civil Hospital Ahmedabad. The. said doctor had treated her prior to his treatment, she was treated by Dr. Piyush Patel of Baroda. The following injuries were suffered by her:
Kyphosis of Dorsi–lumber spine. Tenderness over dorsal–12 lumber. 1. knee and ankle jerks exaggerated spine : Flexion limited. Stiffness of dorsal spine. Extension takes place of lumber spine. Rotation free but painful walks cautiously cannot run.
X-ray shows wedging of the bodies of dorsal 5-7-10-12 and lumber 1.
12. From the record of the file we are satisfied that the findings of the Tribunal are based on sound reasoning and is supported by evidence. The injured Gitaban, as a result of permanent disability is deprived of most of the enjoyments, comforts and amenities of life. She cannot discharge normal functions. She cannot even walk freely. Even comfortable sleep is denied to her. She has suffered spinal disability, which has rendered her 60% disabled. Her marriage prospects were held to have been very minimal. She has to suffer pain, suffering, discomfort and agony throughout her life. The Tribunal, therefore, after taking into account the nature of disabilities and injuries suffered by her has awarded Rs. 50,000/- to her with interest at the rate of 6%, per annum. Out of this amount the appellant is to pay Rs. 43,000/–proportionate interest and costs. Rs. 5,000/- are to be paid by the Insurance Company and Rs. 2,000/- by the driver Abdul Ahad. The amount is awarded to her after considering number of factors The compensation has been granted for pain and shock she had suffered, for having lost the charm of food married life and for being a burden upon herself throughout her life. She has been granted compensation for having suffered 60% disability and for having lost the capacity to earn in comparison to other normal girls of her age and for medical treatment.
13. We have examined the statements of the witnesses produced by the claimants who had preferred the claim petitions before the Tribunal and who are respondents herein. In our opinion, the evidence adduced by the claimants supports the conclusions arrived at by the Tribunal in making the award in favour of the three claim petitioners before it. The medical evidence as also the evidence of the other witnesees which has remained unrebutted on record fully establishes that the bus owned by the appellant and driven by his driver, Abdul Ahad rashly and negligently, met with an accident at Kangan bridge resulting in the death of one person and multiple injuries to two other persons. The rashness and negligence on the part of the driver is not rebutted. The said driver at the relevant time was in the service of the appellant. Therefore, the appellant will be vicariously liable for the acts of his servant for payment of compensation to any person who has died or suffered on account of an accident, which is caused by the driver by his rash and negligent act. For the driver’s rash and negligent act, it is the owner who is to shoulder the responsibility. Therefore, the appellant’s liability to pay the compensation has been correctly determined in all three-claim petitions.
14. It may be stated that neither the Insurance Company nor the driver, Abdul Ahad against whom Rs. 1000/- and Rs. 2000/- is awarded compensation in claim petition Nos. 1 and 3 respectively have filed the appeals against the award of the Tribunal. The owner, appellant alone has filed the three appeals against the award passed against him by the Tribunal.
15. The only question now to be seen is whether the Insurance Companys liability was only Rs. 5,000/- in each case or it could be enhanced.
16. Mr. Z.A. Qureshi submitted that the Insurance Company, who was a respondent, was bound to indemnify the appellant because the vehicle was admittedly insured with the Insurance Company at the relevant time. Therefore, the liability of the Insurance Company was not correctly determined by the Tribunal.
17. The Tribunal has relied on Section 95(2)(b)(i)(4) of the Motor Vehicles Act. For the sake of facility the said Sub-clause of Section 95 reads as under:
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:
(a) Where the vehicle is a good vehicles a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen’s Compensation Act 1923 (8 of 1923), in respect of death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle,
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.
(i) In respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) In respect of passengers,
(1) A limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) A limit of seventy five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3)A limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and
(4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case;
(c) Save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred ;
(d) Irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party.
18. Section 95 of the Motor Vehicles Act deals with the limit of liability of insurer in respect of liability, which it may incur on account of insured and provides outer limit for indemnifying the insured.
19. The aforesaid Sub-section 2 is not free from ambiguity. However, the ambiguity in the said Sub-section was held not to effect the right of an accident victim to get compensation in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi and Ors. by the Supreme court in its decision reported in All India Transport and Accidents Cases, 1982, page 1. A three Judge Bench while dealing with the limits of the insurance company under Sub-section 2 of Section 95 gave meaning to, “any one accident” occurring in Sub-section 2 after nothing that its meaning was susceptible to ambiguities in the said section. It appears that an accident had taken place by a collision between a motor car and a goods truck near Ahmedabad Oujrat as a result of which driver of the car had died instantaneously and one Jadavji Keshavji Modi who was travelling in the car sustained injuries. The outer limit of the liability of the insurance company was contended to be Rs. 20,000/- in all which was repelled by the Gujrat High Court and they had granted Rs. 20,000/-in each case, which was, then the outer limit for any one accident. This accident had taken place in 1966. Therefore, Motor Vehicles Act, as amended was applied. However, in 1969, there were some other amendments in the provisions of Motor Vehicles Act and the outer limit stood enhanced. The Supreme Court observed as under:
We are, therefore, of the opinion that the ambiguity in the language used by the legislature in the opening part of Section 95(2) and the doubt arising out of the co-relation of that language with the words ‘in all’ which occur in Clause (a), must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act which deals with third party risks. That is a sensitive process, which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately nor receding, that court has to fill gaps, clear doubts and mitigate hardships. In the words of Judge Learned Hand.
It is one of surest indexes of a mature and developed jurisprudence…to remember that statutes always have some purpose or object to accomplish who sympathetic and imaginative discovery is the surest guide to their meaning”, Cabell v. Markham 148 F 2nd 737 739 (1945)
There is no table of logarithms to guide or govern statutory construction in this area, which leaves a sufficient and desirable discretion for the Judges to interpret laws in the light of their purpose, where the language used by the lawmakers does not yield to one and one meaning only. Considering the matter that way we are of the opinion that it is appropriate to hold that the word “accident” is used in the expression “any one accident” from the point of view of the various claimants each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer.
20. Gujrat High Court bad awarded little over Rs. 29,000/- whereas on the basis of ambiguous provision of law Rs. 20,000/- could be awarded which is now enhanced to Rs. 50,000/-. Appreciating the Gujrat High Court’s judgment, it was observed:
We are happy to note that the Gujrat High Court, by its judgment under appeal, took a just, correct and realistic view of the matter by holding that, under the statutory policy, the appellant insurance company is liable to pay the full amount of compensation to the heirs of the driver of the car and to the passenger who was travelling in the car, each amount being less than Rs. 20,000/-.
21. The limit of Rs. 50,000/- in all mentioned in Sub-section 2(b) is the outer limit, which can be claimed by individual victim because in respect of individual victim it will be any one accident’ and Section 2(b)(ii)(4) cannot be given a meaning, which would scuttle the underlying object of the legislative intention. The Supreme Court has interpreted the liability of Insurance company in Section 95 in favour of the accident victim and restricted its technical meaning as given by the Tribunal in the present case Therefore, we are of the opinion that Tribunal’s finding as regards the liability of the owner of the vehicle and that of the insurance company is not correct in as much as it has restricted the liability of Insurance Company only to Rs. 15,000/- in three claim petitions. Its outer limit is Rs. 50,000/- in each individual case because in respect of each victim it will be any one accident’ as interpreted by the Supreme Court. This fact should have been taken into consideration by the Tribunal. It seems that Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi and Ors. (supra) authority of the Supreme Court was not brought to the notice of the Tribunal while fixing the liability of the Insurance Company and that of the appellant. Therefore, the liability of the appellant in this case can be reduced by fastening it on the Insurance Company to the extent of Rs. 50,000/- in individual petition i.e. In respect of the deceased and in respect of the two injured persons, it will be individually any one accident The Tribunal has taken collective effect of the accident which runs counter to the Jadavji’s case (supra) decided by the Supreme Court. The liability of the driver to the extent of Rs. 3,000/-, who has not filed any appeal, cannot be fattened on the Insurance company because no appeal is filed against that finding.
22. We, therefore, direct the liability to be shifted to the Insurance Company which is respondent No. 3 in the present case and has not contested this appeal despite having been served. It may be recalled that ex parte proceedings were taken against the Insurance Company in all the three appeals.
23. While upholding the finding of the Tribunal with regard to the determination of the compensation payable in all the three claims petitions, we modify the order in these three claim petitions so far as it relates to the liability of the appellant to pay the compensation. The modified order of the payment of compensation is as under:
Claim petition No. 1: The amount of Rs. 29,000/- with interest at the rate of 6% p.m. from the date of claim till final payment together with costs at Rs. 500/- is payable by the respondent No. 3 alone and not by the appellant. Balance of Rs. 1,000/- is to be paid by the Driver Abdul Ahad.
Claim petition No. 2: The amount of Rs. 11,000/- with interest at the rate of 6% pa. To gether with costs at Rs. 500/- is payable by the respondent No. 3 Insurance company alone and not by the appellant from the date of claim till final payment.
Claim petition No. 3: The amount of Rs. 48,000/- with 6% interest p.a. together with the costs from the date of the order of the Tribunal to the date of final payment is payable by the respondent No. 3 Insurance Company. The balance of Rs. 2,000/- is to be paid by the Driver, Abdul Ahad.
Subject to the modifications made hereinabove in the mode of payment of compensation and liability of the Insurance Company, the award of the Tribunal is upheld. The appellant is exonerated from any liability on account of the accident in respect of each claim petition in question, which were filed before the Tribunal. There will be no order as to costs.