JUDGMENT
S. Maharajan, J.
1. These appeals and Civil Revision Petitions are directed against the common order of the Motor Accidents Claims Tribunal, Madurai, in M.A.C. O.P. Nos. 75 and 143 to 145 of 1968. On 3rd September, 1967, at about 5-30 P.M. between miles stones 274/4 and 274/5 in Madurai-Dindigul Road, there was a collision between bus MDU 6991 belonging to the Kodaikanal Motor Union (Private) Limited, and lorry MDA 1440 belonging to Srinivasa Roadways Limited. A number of persons were inside the bus as passengers at the time of the collision and ten of the passengers received injuries and one of them, Professor Sundaramoorthy, succumbed to his injuries in the hospital about two weeks after the accident. The scene of the accident is a national highway, the tarred portion of which is 22 feet 4 inches wide. There is a mud portion about 4 feet wide on either side of the road. The total Width of the road at the scene of accident would therefore be about 30 feet 4 inches. The road is wide enough, therefore, to allow free passage for a lorry and a bus moving in opposite directions. If each of the vehicles had been driven on its right side of the road, there would have been a clearance of at least 14 feet in between the crossing vehicles. But unfortunately,, at the time of crossing, the right portion of one of the vehicles came into contact with the right portion of its opposite number and both got badly damaged.
2. The Sub-Inspector of Police, R.W.2, came to the scene and prepared a rough sketch as per Exhibit B-7. The Motor Vehicles Inspector, R.W.4, visited the scene the next day and prepared a report as per Exhibit B-19. Strangely enough, neither of them is able to say, from the marks on the road and the relative positions of the vehicles, which of the drivers was responsible for this tragic collision. We have therefore to fall back upon the oral evidence on record in order to understand how the collision could have happened.
3. As many as five eye-witnesses to the accident were examined by both the parties and they are P.Ws.2, 5, and 7, who were passengers in the bus and who got injured, R.W.1, the driver of the bus, and R.W.5, the driver of the lorry. So far as the drivers of the vehicles are concerned, it is difficult to accept their inherently interested testimony, because each has been eager to put the blame entirely upon the other. We therefore, do not feel disposed to ascribe any weight to the testimony of R.W.1 or R.W.5. We are then left with the evidence of P.Ws.2, 5 and 7. Psychologically, these persons, who were passengers in the bus, might be expected to support the driver of the bus as against the driver of the lorry. But we find all the three of them unanimously saying that it was the driver of the bus by his rashness and negligence that brought about the accident. They say that the bus driver overtook the Meenakshi bus, which was going ahead, that at the time of overtaking R.W.1 failed to hoot the horn of the bus and that he rashly overtook the Meenakshi bus without waiting for any signal from the driver of that bus permitting him to overtake it. It was as R.W.1 was overtaking the Meenakshi bus that the accident occurred, according to P.Ws.2, 5 and 7. P.Ws.5 and 7 sustained only minor injuries and each of them claimed a trivial compensation of Rs. 1,000. It was therefore immaterial to them as to whether the insurer of the lorry or the insurer of the bus paid the paltry compensation claimed by them. They had absolutely no motive, therefore, to falsely incriminate the bus-driver and exonerate the lorry-driver. We are impressed with the veracity and credibility of their evidence and we disagree with the Tribunal, which rejected their testimony as unbelievable. The two reasons given by the Tribunal for disbelieving the version of P.Ws.2, 5 and 7 are these. Firstly, it is said that these witnesses did not mention in their statements under Section 161, Criminal Procedure Code, before the police that at the time the accident occurred R.W.1 was overtaking the Meenakshi bus. Section 161, Criminal Procedure Code, statements were taken by the Sub-Inspector in connection with the prosecution launched by him against both the drivers who figured as accused 1 and 2. The statements under Section 161, Criminal Procedure Code, have not been produced into Court and it is not possible to say whether in the context in which those statements were recorded it was necessary at all for the witnesses to refer to the accident having occurred at the time R.W.1 overtook the bus ahead of him. But we find that in the criminal Court these witnesses have referred to this aspect of the matter and we do not think that the objection on the first ground to their testimony has any substance.
4. The second reason given by the Tribunal is that according to P.W.2, before the accident, the bus had stopped at the level-crossing for some time and then started moving in a northerly direction. It has been elicited from P.W.2 that the accident took place about a furlong to the north of the level-crossing. The Tribunal thought that the bus could not have picked up sufficient speed while traveling this distance of one furlong, and therefore the bus-driver cannot be held to have driven the bus at a rash speed. We do not think it fair to rely upon P.W.2’s sense of distance. The Motor Vehicles Inspector and the Sub-Inspector went into the box, and the owner of the bus and insurer thereof could have elicited from them what was the exact distance between the level-crossing and the scene of accident. Further, the rashness of the bus-driver consisted, not so much in the speed with which he drove the bus, but in overtaking a bus going ahead of him without sounding the horn of the bus and before receiving any signal from the Meenakshi bus driver permitting him to overtake him. We, therefore, disagree, with the Tribunal and hold that neither of the reasons giver by it for rejecting the evidence of P.Ws.2, 5 and 7 is sound. We are satisfied that their evidence is acceptable and shall be acted upon, in which case we have no option but to hold that it was the driver of the bus MDU 6991 who was responsible for the accident by his rash and negligent driving.
5. It would then follow that the Kodaikanal Motor Union (Private) Limited, Ammayanaickanur, will be vicariously liable to pay compensation for the victims of the accident. The insurer of Kodaikanal Motor Union (Private) Limited is the Motor Owners Insurance Company, Limited, Belgaum. Though the insurer did not take the objection before the Tribunal that it was not liable to cover the risks involved in the case, because the driver of the bus had no valid licence at the time of the accident, this objection has been taken before us on foot of an admission made by the driver of the bus himself, R.W.1, to the effect that though he had been holding a licence previously, he had failed to renew the licence for the period from 16th October, 1966 upto ’29th September, 1967 and that he actually renewed the licence only with effect from 30th September, 1967. Let us assume that R.W.1, the bus driver, did not have an effective licence on the date of the accident. The question arises whether this circumstance would exonerate the insurer of the liability to pay compensation. Reference has been made by learned Counsel for the insurance company to Section 96 of the Motor Vehicles Act. That section provides that an insurer shall be entitled to defend the action on any of the following grounds, namely,
96 (2) (a)…or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle
(a) …
(b) …
(c) …
(d) ….
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; ….
While the above provision makes it clear that the right of the Insurance Company to defend is restricted to the various conditions set out in this sub-section, it is also clear from the sub-section that none of these defenses will be available to the Insurance Company unless it incorporates these conditions in the policy. The expression in Clause (b) of Section 96 (2) “that there has been breach of a specified condition of the policy, being one of the following conditions ” reinforces this conclusion. All that the section does is to enumerate the conditions, which the Insurance Company is at liberty to incorporate in the policy. What the Act in effect tells the Insurance Company is:
There are certain risks which, under the statute, you are bound to cover. There are certain other risks, which by negotiating with the owner of the vehicle you may choose to cover at your option, though under the statute you are not bound to cover the same.
Section 96 enables the Insurance Company to defend an action against it on the ground that there has been a breach of a specified condition of the policy and enables the Company to incorporate in the policy any of the conditions mentioned in Sub-clause (ii) of Clause (b) of Section 96 (2), namely, “a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification”. This clause, it may be noted, contains three sub-clauses which are disjunctive, namely: (1) excluding driving by a named person or persons; or (2) excluding driving by any person who is not duly licensed; or (3) excluding driving by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The first clause permits an Insurance Company to rid itself of the liability by providing that if an accident occurs while a named person drives the vehicle, the company shall not be liable to indemnify the owner. The second clause enables the Insurance Company to disclaim liability in cases where at the time of accident, the driver is a person who does not hold a licence duly granted to him. The third clause enables the Insurance Company to disclaim liability in cases where during the accident the vehicle was driven by a person who might not hold a valid licence at the time of the accident, but who had held a licence previously, but who had not been disqualified for holding or obtaining it. In other words, the three-sub-clauses in Section 96 (2) (b) (ii) indicate the amplitude of permissible exclusion. As the sub-clauses are disjunctive, an option is given to the Insurance Company to exclude at its discretion driving either by a named person or by a person who is not duly licensed or by a person who has been disqualified for holding or obtaining a driving licence or to exclude driving by all these three classes of persons: In other words, it is open to the Insurance Company to refuse to cover a risk brought about by a person like R.W.1 in this case, who, at the time of the accident, had held a licence, but had no effective licence covering the period of the accident. But, unfortunately, the Insurance Company had in this case exercised its option even to include a person who had held a licence prior to the date of the accident (that is to say, a licence that had expired prior to the date of the accident) and yet was not disqualified for holding or obtaining such a licence at the time of the accident. The insurance policy issued by the Motor Owners’ Insurance Company Limited, in this case has been marked as Exhibit B-8. In the schedule to this policy, the limitations as to use of the bus have been defined and it is stipulated that “the vehicle may be driven either by the insured or any other person provided he is in the insured’s employ and is driving on his order or with his permission; provided that the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence.” What is the construction to be placed on the words “the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence? This clause clearly contemplates a person who did not hold a valid licence on the date of the accident, but who had held a licence previously and who had not, at the time of accident, been disqualified for holding or obtaining such a licence. The Insurance Company, with its great business experience, must have thought it right to cover an accident caused by a person who has had considerable driving; experience, and yet due to inadvertence or absent-mindedness, has not chosen to renew that licence during the period allowed by law and has been involved in an accident while he had not yet obtained a renewal of the licence. Evidently, the Insurance Company trusts experienced drivers not to drive the vehicle rashly and negligently, this expectation resting upon their past performance rather than upon the technical, but unimportant question whether they have been careful and alert enough to renew the licence within the period allowed by law. Learned Counsel for the Insurance Company says that the proviso should be construed in such a way as to exclude the intention of the Insurance Company to cover driving by a person who did not hold an effective licence at the time of the accident. We are entirely at a loss to accept such a construction. The Insurance Company is given the option to impose conditions which it is permitted by the statute to impose, and to exclude liability when the vehicle is driven by a person who is not duly licensed at the time of the accident. If the Company does not take advantage of the permissible conditions and with its eyes open enters into a contract, whereby it undertakes to cover risks which it need not cover under Section 96 of the Act, then it cannot escape liability. In this case, it is the terms of the policy that ought to guide us and those terms make it clear that the Company would be liable even in a case where a driver has held a licence previously but did not hold an effective licence at the time of the accident and has not been disqualified at the time of the accident for holding or obtaining such a licence. Learned Counsel for the Insurance Company relies upon the decision of Natarajan, J., in The Motor Owners’ Insurance Company Limited v. Munuswami and Ors. C.M.A. No. 243 of 1969, where the learned Judge,, while interpreting Section 96 (2) of the Act, has made the following observations:
The word ‘duly licensed’ in Section 96 (2) of the Act clearly goes to show that in order to attract the terms of the policy, the driver of the vehicle, on the date of the accident, must be a person who is duly licensed or who is not disqualified for holding or detaining a driving licence. The currency of the driving licence is a condition precedent to the attraction of the liability of the insurance company under the terms of the policy of insurance. The disqualification referred to in the sub-clause will have reference only to a current licence held by the driver on the date of the accident or a licence obtained by the driver during the period of such disqualification. It certainly cannot have any reference to a date-expired licence.
After making these observations, with which we respectfully disagree, the learned Judge relied upon the ruling of Raghavan, J., in Motor Owners’ Insurance Company Limited v. V. Daniel . We do not think that the ruling of Raghavan, J., affords any support to the proposition laid down by Natarajan, J. It can be distinguished on the ground that the policy which Raghavan, J., was called upon to interpret incorporated all the conditions laid down in Section 96 (2) (b) (ii). The thing to look into is the policy and the question to ask is, ” Does the policy incorporate any or all of the conditions which the statute permits an. Insurance Company to incorporate?” If it incorporates all the conditions mentioned in the section, including the one which excludes driving by a person who is not duly licensed at the time of the accident, the Insurer will be exonerated of liability. If, on the other hand, the policy incorporates only some of the conditions and omits the others mentioned in the statute, the Insurer cannot resist liability on the ground that though the policy has omitted the conditions, the conditions are there in the statute. If, as in this case, all the conditions laid down in the section are not reproduced in the policy, and the policy positively undertakes to cover liability in respect of an accident caused by a person, who though not having an effective licence at the time of the accident, has not been disqualified to hold a licence, the Company cannot, in disregard of its policy, fall back upon the section and say that despite the contract it has entered into to the contrary, it must be exonerated of liability. We therefore hold that the Motor Owners Insurance Company Limited, Belgaum, is liable, by and under the terms of the policy issued by it, to cover the risk that has occurred in this case. Needless to add that its liability will be limited to Rs. 2,000 per passenger and the cumulative liability of the company for the entire accident would be limited to Rs. 20,000. At the time of the accident the relevant section had not been amended to enlarge the total liability to Rs. 50,000.
6. We shall next examine the reasonableness of the compensation that has been awarded by the Tribunal. So far as the deceased Professor Sundaramoorthy is concerned, the claimants in O.P. No. 75 of 1968 (appellants in C.M.A. No. 282 of 1971), who are the widow, children and mother of the deceased, have been awarded a compensation of Rs. 55,000. The deceased was a Professor of English employed in C.T.N. College, Dindigul, drawing a basic pay of Rs. 420 per mensem and dearness allowance of Rs. 120 per month. He was aged 41 at the time of his death. But for the accident, he could have lived for many more years and he could have been earning upto his 58th or 60th year. He had also chances of promotion. He sustained very serious injuries as a result of which he died two weeks after the accident. The Tribunal was wrong in awarding any compensation for the mental agony of the survivors. It ought to have awarded compensation for the physical and mental agony undergone by the victim. The evidence shows that he was spending Rs. 250 every month upon his dependants. The value of dependency may therefore be put at about Rs. 4,000 per year. Having regard to his chances of promotion, and having regard to the fact that his wife is only 30 years old and may live for another 30 years, and taking into account other relevant factors such as receipt of the Provident Fund by the widow and the need for making a discount for lump sum of payment of compensation, the amount of Rs. 55,000 fixed by the Tribunal cannot be said to be unreasonably high. We therefore confirm that figure. Out of this amount of Rs. 55,000 only a sum of Rs. 2,000 would be payable by the Motor Owners Insurance Company Limited and the balance by the Kodaikanal Motor Union (Private) Limited.
7. Next we may deal with the compensation awarded to the claimant in O.P. No. 143 of 1968. The Tribunal has fixed a compensation of Rs. 250 for the injuries sustained by Jayachandran, the petitioner in O.P. No. 143 of 1968. He has not preferred any appeal. We think the compensation awarded to him is reasonable, and we confirm it. This amount will be payable by the Motor Owners Insurance Company Limited.
8. Saroja, the petitioner in O.P. No. 144 of 1968, has been awarded a compensation of Rs. 10,000. She is 35 years old. During the accident her left leg below the knee was broken and she was put in plaster. Three months later, when the plaster was removed, it was found that the bones had not joined, whereupon she was treated in the hospital at Madurai. She came to the hospital by taxi every time and she was given special caliper. The medical evidence shows that she sustained a compound fracture of both the bones of the left leg and has sustained a permanent 20 per cent. disability. It is the evidence of P.W.4, the Orthopaedic Surgeon attached to the Government Erskine Hospital, that without wearing caliper, she would tumble down and that in the present state of her disability she cannot work like any other normal person. The injury has permanently affected her gait. The mental agony suffered by her must have been considerable and she has to be compensated for the permanent disability which she has suffered, as well as for the expenses of medical treatment and for taxi charges. Taking all these factors into account, the Tribunal has fixed a compensation at Rs. 10,000 which we think is quite reasonable. Out of this amount, a sum of Rs. 2,000 will be paid by the Motor Owners Insurance Company Limited and the balance of Rs. 8,000 will be paid by the Kodaikanal Motor Union (Private) Limited.
9. Swaminathan, petitioner in O.P. No. 145 of 1968, sustained only minor injuries and he has been awarded a sum of Rs. 1,000 by way of compensation. We see no reason to interfere with the quantum of compensation awarded to him. This amount will be payable by the Motor Owners Insurance Company Limited.
10. Out of the amount of Rs. 55,000 awarded to the claimants in O.P. No. 75 of 1968, a sum of Rs. 7,000 will be paid to Sengammal, the 4th petitioner, and the balance of Rs. 48,000 will be divided equally among petitioners 1 to 3. The shares of the minors Anusuya and Kannan will remain invested in any rationalised bank so long as they continue to be minors. Thylambal, the 1st petitioner, will be entitled to withdraw her share of Rs. 16,000 and to draw interest from the amounts invested in the names of her minor children for the purpose of meeting the expenses of maintaining them.
11. The appeals and Civil Revision Petitions preferred by the owner of Srinivasa Roadways, namely, C.M.A. Nos. 262 and 263 of 1970 and C.R.P. Nos. 1397 and 1398 of 1970 are allowed as indicated above. So also the two appeals and Civil Revision Petitions preferred by the insurer of the lorry, namely, C.M.A. Nos. 291 and 292 of 1970 and C.R.P. Nos. 1598 and 1599 of 1970 are allowed as indicated above. C.M.A. No. 282 of 1971 filed by the dependants of Sundaramoorthy for enhancement of the compensation is dismissed. There will be no order as to costs.
