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Oriental Fire And Genl. Ins. Co. … vs Amita And Ors. on 27 March, 1997

Madhya Pradesh High Court
Oriental Fire And Genl. Ins. Co. … vs Amita And Ors. on 27 March, 1997
Equivalent citations: II (1998) ACC 473, 1999 ACJ 1535
Author: R Shukla
Bench: R Shukla, J Chitre


JUDGMENT

R.D. Shukla, J.

1. This order shall also dispose of M.A. No. 161 of 1987 and cross-objections filed in both these appeals, as both appeals and cross-objections arise out of the same accident and common questions of law and facts also arise in both cases.

2. M.A. No. 159 of 1987 is directed against the judgment and award dated 14.1.1987 of M.A.C.T., Dewas, passed in Claim Case No. 22 of 1977 whereby the claimant-respondent Nos. 1, 2 and 3 were awarded compensation of Rs. 1,22,000 in all with interest at the rate of 6 per cent per annum for the death of Subhash Dashottar, husband of respondent No. 1 and son of respondent Nos. 2 and 3 in a motor accident on 11.4.1977 while travelling in motor car No. MPI 1230 owned and driven by Govinddas, predecessor of respondent Nos. 4 to 7 and insured with appellant insurance company, while M.A. No. 161 of 1987 is directed against the judgment and award dated 14.1.1987 passed in Claim Case No. 21 of 1977 whereby claimant-respondent No. 1 has been awarded compensation of Rs. 21,300 for having sustained injuries in the accident on 11.4.1977 while travelling in motor car No. MPI 1230 owned and driven by Govinddas, predecessor of respondent Nos. 2 to 5 and insured with appellant insurance company.

3. Brief history of the case is that motor car No. MPI 1230 was owned by Govinddas. Deceased Subhash Dashottar, accompanied by his wife Amita visited Goddess Temple, Dewas, at the request of Govinddas. While returning from Dewas to Ujjain the motor car dashed against a culvert and overturned, resulting in injuries to Govinddas, Subhash Dashottar and Amita. The accident occurred on 11.4.77. Subhash and Amita had gone to Dewas at the request of Govinddas.

4. There is no dispute as to the vehicle being insured with appellant. Claim Case No. 22 of 1977 was filed by Amita wd/o deceased Subhash Dashottar and parents of Subhash Dashottar claiming compensation of Rs. 10,52,000 with the assertions that Subhash Dashottar was aged about 23 years. He was a permanent lecturer in the Department of Political Science, K.P. College, Dewas and was getting Rs. 1,034 per month. There was every chance of his rising to the post of Principal of degree college. The claimants had to suffer agony and mental shock. Claimant No. 1 Amita has become widow and claimant Nos. 2 and 3 have lost their son in old age.

5. Claim Case No. 21 of 1977 was filed by Amita with the assertions that she sustained injuries and pain and suffering for months together. As such she claimed Rs. 92,805 as compensation.

6. Joint written statement was filed on behalf of insured and insurer, i.e., owner and insurance company. It was pleaded that Subhash Dashottar and Govinddas were acquainted with each other through a common friend Prem Prakash Vora. It was denied that Govinddas insisted on Subhash for accompanying him up to Dewas. In fact, Subhash Dashottar has taken the vehicle for propagating and canvassing his candidature in the election of court of Vikram University. The vehicle was taken to Dewas slowly at the instance and insistence of Subhash Dashottar. At the time of accident the speed of car was slow but a cow with calf came on the way unexpectedly and, therefore, Govinddas has to swerve the vehicle which resulted in accident and overturning of the same.

The insurance company further pleaded that its liability is limited and it is not bound to pay over and above the liability of a passenger and the maximum liability that can be fastened on the insurance company would be Rs. 15,000 as per provisions of Section 95 (2) (b) (ii) of Motor Vehicles Act, 1939 which was in force at the relevant period.

7. Learned Tribunal found that the accident occurred due to rash and negligent driving of Govinddas. The fact of cow and calf came on the way was found disproved. Learned Tribunal awarded Rs. 1,22,000 by dividing Rs. 82,000 in favour of widow Amita and Rs. 20,000 each in favour of parents. The heirs of Govinddas and insurance company, were jointly and severally made liable to pay compensation.

8. Learned Tribunal in Claim Case No. 21 of 1977 awarded Rs. 21,300 for pain and suffering and injuries sustained by Amita in the accident. For this amount also a joint and several liability was fixed.

9. Both these appeals, as referred above, have been filed by insurance company, disclaiming the liability of payment with a further prayer that the limit of liability is Rs. 15,000 for death of Subhash and Rs. 7,500 for grievous injuries sustained by Amita.

10. The claimants have filed cross-objections in both the cases with assertions that the compensation assessed is on the lower side.

11. The fact of rash and negligent driving has not been seriously challenged and rightly so as in such cases principle of res ipsa loquitur would be attracted.

Even otherwise the fact that motor car dashed against the wall of the culvert itself goes to show that the vehicle was at a high speed and the driver had no control over it; and, therefore, even otherwise that finding does not call for any interference. One thing is also certain that Subhash and Amita did not contribute to the accident.

12. The next point that arises for determination is as to what would be the just compensation.

Learned Tribunal has awarded Rs. 2,000 as expenses towards funeral, Rs. 50,000 for loss of consortium, love and affection to Amita; Rs. 30,000 as general compensation for financial and economic loss.

Rs. 15,000 each has been awarded to the parents as general compensation and Rs. 5,000 each has been awarded for the mental agony and loss of love and company of son.

13. The age of deceased Subhash has been assessed at 27 years [issue No. 7 (1)]. At the relevant period Subhash was in service in scale of Rs. 300-25-600 which has been raised to Rs. 600-1,400 at the time of judgment.

Learned Tribunal has further found in para 18 that Subhash was a writer. He was rewarded for 2-3 books.

14. From the statement of Sureshchand Dube, AW 4 and document Exh. P/80, it is proved that on the date of accident Subhash was getting Rs. 325 per month. Looking to his career there was every chance of his rising to higher posts. Thus, if the future prospect of deceased is taken into consideration and as he was a writer also the income can safely be assessed at Rs. 450 per month. If an amount of 1/3rd is deducted towards personal expenditure, the dependency would come to nearly Rs. 300 per month.

Amita has stated that in their community she does not stand any chance of remarriage. The parents were aged about 52 and 47 years and, therefore, they could very well expect help from their son up to the age of 65 which can be taken to be an average age of the persons of this country. The yearly dependency would come to Rs. 300 x 12 = Rs. 3,600 which may be rounded to Rs. 4,000 p.a.

15. The age of deceased Subhash was about 25 to 27. The Tribunal has accepted it to be 27. In such a situation a multiplier of 16 will have to be applied. Thus, a total compensation payable as general damages is Rs. 4,000 x 16 = Rs. 64,000.

Claimants are further entitled to loss of consortium, love and affection which can be quantified at Rs. 10,000 to Amita and Rs. 5,000 each to parents.

Thus, the total compensation payable comes to Rs. 84,000. It is also noteworthy that looking to the age of Amita and as she has no child there are chances of her remarriage and, therefore, this fact also deserves consideration for assessing the compensation.

16. The amount of compensation as assessed if kept in fixed deposit scheme in a nationalised bank the interest accruing thereon would be more than the dependency assessed and that would take care of the rising prices during this period.

Reference may be had to a case in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC).

17. Since we have adopted the multiplier system, it would not be proper to award compensation on other headings including expenses for last rites.

Learned Tribunal has awarded interest at the rate of 6 per cent per annum. In our considered opinion the interest ought to have been awarded at the rate of 12 per cent per annum.

18. It is also noteworthy that there has been consistent devaluation in the money value. The pay of lecturers, as all other Government servants, has been increased enormously because of continuous rise in price-index. In such a situation the interest ought to have been awarded at the rate of 12 per cent per annum. We are, therefore, inclined to award the interest at the rate of 12 per cent per annum.

19. So far as compensation awarded for injuries sustained by Amita is concerned that has not been very seriously challenged.

20. Learned Tribunal has discussed the fact of injuries sustained by Amita in para 29 of the award. She has sustained fracture in pelvic bone and injuries on other parts of body. She lost her memory which she could partially recover after 2-3 months because of the injury on the head.

21. The learned Tribunal has awarded Rs. 20,000 for the injuries, pain and suffering. The fact of loss of memory and permanent disability has not been found proved. Rs. 1,300 has been awarded for expenses towards treatment, medicine and the expenses for attendant.

Fracture of pelvic bone must have caused weakness in walking and lifting of loads and, therefore, there may have been some partial disability but may not be permanent as found by learned Tribunal. The legislature vide later amendment had fixed ‘no fault liability’ for grievous injury and permanent disability at Rs. 15,000 which can be taken to be an amount of minimum compensation. The legislative intent though subsequent, may be accepted as a guiding factor for the assessment of compensation. In our considered opinion, therefore, in this case Rs. 15,000 ought to have been awarded as general compensation and Rs. 1,500 for expenses towards treatment, cost of medicines and expenses for attendant. Thus, the total amount of compensation awardable to Amita for sustaining injuries comes to Rs. 16,500.

22. The learned Tribunal has awarded interest at the rate of 6 per cent per annum. In our considered opinion, looking to the continuous trend of rise in prices and the devaluation of money interest at the rate of 12 per cent per annum ought to have been awarded.

23. The next point that arises for consideration is as to whether the liability of insurance company is limited.

24. Learned counsel for appellant has submitted that as the deceased was a guest passenger in the private motor car and, therefore, as per policy the liability of insurance company is limited to Rs. 15,000 for the death and Rs. 7,500 for the person who has sustained injuries.

25. As against it learned Counsel for respondents has submitted that the present case would be covered under Section 95 (2) (c) of the Act.

26. Section 95 (2) (b) (i) of the Act reads as follows:

… (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;

xxx xxx xxx

(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;

The very opening words of this section show that provisions deal with the vehicle in which passengers are carried for hire or reward.

This is not the case here. Subhash Dashottar will be treated to be a third party. He was not a passenger carried for hire or reward. It has been proved by learned Tribunal that Subhash Dashottar and his wife accompanied deceased Govinddas at his request.

Thus, Subhash Dashottar and Amita were the occupants of the vehicle at the request of Govinddas. They have not hired the vehicle. This is a case of private car and not a motor carriage or vehicle engaged for carrying passengers for hire or reward. In our considered opinion, therefore, such a person would be deemed to be a third party for legal and practical purposes and there will be no limit of liability for payment of compensation for the death of such person.

27. Learned counsel for appellant has referred to a case in M. K. Kunhimohammed v. PA. Ahmedkutty, 1987 ACJ 872 (SC) and submitted that the liability in the case was limited to Rs. 10,000 only.

That was a case dealing with provisions of Section 95 (2) (b) (ii) (4) of the Act. Deceased was travelling in a motor bus and that was being run as carriage. The deceased was travelling as a passenger after making payment of fare and, therefore, the case referred does not help the appellant in any way.

28. Learned counsel thereafter referred to a case in National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC). That was also a case where a person sustained injury in a passenger bus, i.e., bus being run as stage carriage. Here the case is different. Deceased was persuaded by the owner of vehicle to travel along with him may have been for the purpose of company and, therefore, the provisions of limited liability as provided under Section 95 (2) (b) of the Act would not be attracted in this case.

It is noteworthy that after amendment in the year 1988 in the corresponding Section 147, no such limit has been described.

29. Learned counsel for respondents has referred to a Division Bench decision of this Court as reported in New India Assurance Co. Ltd. v. Pushpadevi, 1995 (1) MPWN 185. In that case the deceased Krishna Agarwal met with an accident with a Fiat car while riding on a Luna moped. In that case it has been held that insurer’s liability in respect to third party claim is not limited to Rs. 50,000 and the total amount of compensation was directed to be paid by owner and insurance company jointly and severally.

Though in that case deceased was a rider of Luna rnoped who met with an accident with a Fiat car, the owner and insurance company were made liable to pay compensation.

Here, this case is slightly different; as deceased travelled in the car at the request of the owner for giving him company. Similarly Amita also accompanied them as requested by owner of vehicle Govinddas. In such a situation deceased Subhash Dashottar and Amita will be treated to be a third party for the purpose of liability of payment of compensation.

30. It is also noteworthy that the contract was between the owner of vehicle and the insurance company. As such, the occupants of the vehicle, in such case, where persons have travelled at the request of owner for giving him company would be deemed to be a third party. In our considered opinion, therefore, insurance company has rightly been held liable for making payment of compensation amount.

31. As a result Appeal Nos. 159 and 161 of 1987 partly succeed with respect to the quantum of compensation. The cross-objections filed by respondents partially succeed in both the cases and the amount of interest is enhanced from 6 per cent per annum to 12 per cent per annum from the date of application till realisation.

32. We, therefore, direct that in M.A. No. 159 of 1987 arising out of Claim Case No. 22 of 1987, the claimants are entitled to compensation of Rs. 84,000 along with interest at the rate of 32 per cent per annum from the date of application till realisation of the same. Out of the amount recovered 50 per cent amount shall go to Amita and the rest of the amount shall be paid to parents, i.e., Upendrakumar and Pushpavati, father and mother of deceased. Respondents including insurance company shall be jointly and severally liable to make payments.

33. So far as M.A. No. 161 of 1987 arising out of Claim Case No. 21 of 1977 is concerned, the compensation as awarded by Tribunal is hereby modified.

It is held that Amita is entitled to compensation of Rs. 16,500 for sustaining injuries in the accident. She is further entitled to interest at the rate of 12 per cent per annum from the date of application till realisation of the same.

34. It is further directed that 50 per cent amount of the compensation payable now (after deduction of amount paid earlier) shall be kept in fixed deposit scheme of a nationalised bank for a period of ten years. No loan shall be granted against the said deposit. Claimants shall be entitled to withdraw the quarterly interest. The Claims Tribunal after expiry of ten years shall pass orders as to whether further extension of period of deposit would be necessary. The rest of the amount may be paid to claimants in cash, if they so desire.

35. In the facts and circumstances of the case, parties shall bear their own cost in both appeals.

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