Gujarat High Court
Arvindbhai Narsinhbhai Patel vs Shardabehn Amarsingh Thakore And Ors. on 26 September, 1991
Equivalent citations: 1(1994)ACC636
JUDGMENT S.D. Dave, J.
1. This common judgment shall govern the disposal of these two First Appeals arising out of the award pronounced by the learned M.A.C.T No. 1, Kheda at Nadiad, in M.A.C. Application No. 59 of 1979 dated 5.12.1979, awarding the total compensation in a sum of Rs. 23,000/- to the heirs and legal representatives of the deceased Amarsing Thakore. The First Appeal No. 651 of 1980 has been filed by the appellant Arvindbhai Patel, who happens to be the owner of the tractor and the trolley involved in the accident. The First Appeal No. 161 of 1981 has been filed by the heirs and legal representatives of the deceased Amarsing Thakore, who were the original claimants.
2. The facts and circumstances under which the present two appeals arise may be noticed thus:
Tractor No. GTM 7671 with the trailer No. GTG 5707 attached with it was passing from over the road between Fagwel and Anand and that the abovesaid vehicles had reached near village Pansora on Heranj-Chunel Road. At that time it appears that the tractor had overturned and one Amarsing Thakore who was travelling therein came to be seriously injured and had died on the spot. The original applicants, namely Shardabehn and her minor children had approached the Tribunal for claiming the total compensation in a sum of Rs. 50,000/- on the basis that the deceased was a young man and had agricultural income of an amount of Rs. 10,000/- per annum. The Tribunal, on the appreciation of evidence, had come to the conclusion that the applicants were entitled to the total compensation of Rs. 23,000/- together with the interest at the rate of 6 per cent per annum.
3. The abovesaid award was made only against Arvind Patel, the owner of the abovesaid vehicles because the Tribunal had taken the view that though the vehicles were duly insured at the relevant time with the opponent No. 3, the insurer, it was not liable to satisfy the award because, firstly, the person who was driving the vehicle was not having a valid licence to drive such a vehicle. The Tribunal had also taken the view that the vehicle was being used in violation of the terms and conditions of Insurance Policy inasmuch as though the vehicles were required to be used for the agricultural purposes the same were being used at the material time for the carriage of the passengers. In view of this finding the Claims Tribunal has ordered that the awarded amount shall be paid by the opponent No. 1 only. The original opponent No. 2 has been deleted and as noticed above the opponent No. 3, the insurer, has been exonerated. The present two appeals arise out of the abovesaid award made by the Tribunal on 5.12.1979 because the appellants in F.A.No. 161 of 1981 feel that the amount awarded is on a lower side and that the Tribunal has further erred in not fastening the liability on the shoulders of opponent No. 3, the insurer. The other appeal No. 651 of 1980 has been filed by Arvind Patel, the owner of the vehicle, saying that the insurer ought to have been made liable for the awarded amount.
4. Mr. G.D. Bhatt, the learned Advocate, appears on behalf of the original claimants. Mr. Bharat Jani, the learned Advocate, appears for the learned Advocate, Mr. D.D. Vyas, for the owner of the vehicles. The insurer has been represented by the learned Advocate, Mr. P.V. Nanavati.
5. The foremost contention raised by Mr. G.D. Bhatt, the learned Advocate who appears on behalf of the original claimants, is that the Tribunal has committed an error in awarding the total compensation of Rs. 23,000/- only, because, according to Mr. Bhatt, the evidence on record goes to show very clearly that the entire claim amount was required to be awarded. The second contention raised by Mr. G.D. Bhatt is that the insurer has not been made liable to satisfy the award. The contention raised by Mr. Jani, the learned Advocate for the owner of the vehicles, is that looking to the fact that the specific contention has not been taken by the insurer saying that it would not be liable to satisfy the award, the Tribunal could not have come to the conclusion that the insurer requires to be exonerated. Mr. Nanavati, the learned Advocate who appears on behalf of the insurer, has urged that though at a little later juncture, the necessary application for the amendment to the pleadings under Order 6, Rule 17 of the Civil Procedure Code was submitted and though no formal orders have been passed thereon the parties know well as to what were the contentions to be faced by each other and that the Tribunal has also proceeded further on assumption that the application for the amendment has been granted and that the necessary amendment also has been carried out. Mr. P.V. Nanavati has also urged that in that amendment application also the contention does not appear to have been raised saying that the insurer would not be liable to satisfy the award because the driver of the vehicle was not holding a valid licence to drive. Mr. Nanavati, therefore, had preferred to urge that he would like to make an oral request before us permitting the insurer to still further amend the written statement and to raise such a specific contention. We have not been impressed by the argument advanced by Mr. P.V. Nanavati in this respect, and, therefore, we think it proper not to accede to the oral request made by learned Advocate, Mr. Nanavati, for a still further amendment in the pleading.
6. The owner of the vehicle had filed the written statement at Exh. 17 contending that at the relevant time he was not driving the vehicle involved in the accident and that he does not know how to drive a vehicle and that he was also not holding a licence to drive vehicle on that fateful day. Therefore, it becomes clear that by written statement at Exh. 17 the owner of the vehicle had raised a clear-cut contention which had gone to his own disadvantage by saying that he does not know how to drive a motor vehicle and that he was never holding a licence to drive. Vis-a-vis the abovesaid written statement tendered by the owner of the vehicle at Exh. 17 there is the written statement filed by the insurer that the vehicle was not insured with it and, therefore, it would not be liable to satisfy the award. At a later juncture, that is, on 23.11.1979, the application at Exh. 52 came to be submitted on behalf of the insurer urging for the permission for the amendment of the written statement. Para 4 of this application at Exh. 52 prays for the insertion of an additional para as para No. 11 in the original written statement; the learned Advocates appearing on behalf of the applicants and the owner had objected to the granting of the abovesaid application Exh. 52 and it appears that the learned Tribunal had fixed the application for hearing by an order dated 23.11.1979. It appears that, thereafter, no orders have been passed below application Exh. 52. It is, therefore, abundantly clear that the amendment which was sought to be made in the original written statement by the insurer has not in fact been made.
7. With the abovesaid background we would prefer to take up the F.A.No. 161 of 1981 fied by the appellants who are the original claimants being the heirs and legal representatives of the deceased Amarsing Thakore. The Tribunal has come to the conclusion that looking to the evidence tendered by one of the applicants the deceased was engaged in agricultural labour and used to earn an amount of Rs. 5/- per day and, therefore, his monthly income would not be more than Rs. 150/- The Tribunal has chosen to deduct an amount of Rs. 50/- as the personal expenditure and has accepted Rs. 1,200/- as the income of the deceased per year. Adopting the multiplier of 15 and awarding an amount of Rs. 5,000/- as the conventional compensation for the loss of expectation of life the Tribunal has awarded the total amount of Rs. 23,000/-. At a glance to the abovesaid reasoning we feel that the Tribunal has erred in computing the income of the deceased and in computing the economic loss suffered by the claimants. Shardabehn, the applicant No. 1 and the widow of the deceased, has stated in her evidence at Exh. 40 that the deceased used to earn an amount of Rs. 5/- or Rs. 10/- per day and that he used to get the work on all the days of a month. We are conscious that the aforesaid evidence was tendered by Shardabehn way back in year 1979. To be precise the date of recording the evidence is 9th November, 1979. But even during those days also, it would not be much to say that an agricultural labourer would be earning at least an amount of Rs. 10/- a day. In view of this position the monthly income of the deceased by the most modest standard would come to Rs. 300/- per month. Deducting an amount of Rs. 50/- towards the personal expenditure of the deceased, the dependency would come to Rs. 250/- per month and Rs. 3,000/- per year. Adopting the multiplier of 15 the figure would come to Rs. 45,000/-. Adding an amount of Rs. 10,000/- as the conventional compensation for the loss of expectation of life the awardable amount would exceed the amount actually claimed. We, therefore, feel that the claimants should get an amount of Rs. 50,000/- together with the interest.
8. We feel that the rate of interest ought not to have been made a subject-matter of the argument before us because the position in this respect is well settled. It was sought to be suggested by the learned Advocate. Mr. Nanavati, for the insurer that the awarding of the interest is a matter of discretion of the Tribunal as well as of this Court also. We do not dispute the abovesaid proposition sought to be canvassed by Mr. Nanavati but we have got the decisions of the Supreme Court saying very clearly that the Apex Court has preferred to award the interest at the rate of even 15 per cent on the additional award right from the date of the application till realisation. It is not necessary for us to refer to all those decisions in this respect. Anyhow the reference requires to be made to a recent Supreme Court decision in Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC). In this decision the interest has been awarded at the rate of 15 per cent from the date of the petition till realisation. In view of this position we do not find it necessary to depart from usual practice of this Court to award the interest at the rate of 12 per cent per annum from the date of application till realisation on the entire award amount. In other words, the additional amount will carry the interest at the rate of 12 per cent per annum while the amount which is already awarded and paid shall carry a further interest of 6 per cent per annum from the date of application till the payment.
9. The question agitated with great vehemence is the liability in respect of the insurer. As noticed above, the contentions entitling the exoneration of the insurer were not raised or taken in the written statement. The amendment application, Exh. 52, remains on the record undecided, therefore, those contentions are not in the written statement. At the same time as noticed above, we are not inclined to accept the oral request or prayer made by Mr. Nanavati for allowing or permitting the insurer to raise one more contention by the amendment of the pleadings saying that the insurer would not be liable to satisfy the award because the driver of the vehicle was not holding a valid licence to drive the vehicle at the relevant time. But the fact remains that the owner of the vehicle has stated very clearly in the written statement filed by him at Exh. 17 that at the relevant time he was not holding a valid licence to drive. It, therefore, becomes clear that though no contention in this respect was raised by the insurer the applicant did in fact know that there was such a vital contention being raised by the opponent No. 1, the owner of the vehicle. It is indeed true that the admission would be binding with a conclusive effect to the maker of the same provided his attention is being drawn to it and he is being given an opportunity to explain the circumstances under which he had made the abovesaid admission, which might go against him. Because of this position both the learned Advocates Mr. Bhatt and Mr. Jani, have urged that the abovesaid so-called admission made by the owner would not be binding to the claimants and the maker also because it was the duty of the insurer to plead and to prove certain contentions on the basis of which the insurer claimed the exoneration. Certain decisions in this respect have also been pressed into service. These decisions do say that it would be the duty of the insurer to plead and prove the circumstances under which it claims the exoneration from the statutory liability to satisfy the award. We have not been impressed by the arguments advanced by the said learned Advocates in this respect, because here before us is a case in which the owner of the vehicle has approached the Tribunal right from the beginning by saying that he does not know driving a motor vehicle and that he was never having a valid licence to drive. In view of this position we feel that the abovesaid say of the owner of the vehicle contained in the pleading and again reiterated and supported by him during the course of the oral evidence at Exh. 67 can be utilised successfully by the insurer. We have got clear-cut evidence coming from the mouth of Arvindbhai Patel, the owner of the vehicle at Exh. 67, saying that he does not know driving a motor vehicle and that he had no licence for driving the vehicle at the relevant time and one Yasirmiya Pathan used to work as his driver. Therefore, we have before us not only the written statement filed by Arvind Patel saying that he had no valid licence to drive but we have before us his testimony on oath also. We feel that the picture right from the beginning is clear showing that the owner has approached the tribunal with a clear-cut case that he was not holding a valid licence to drive at the relevant time. We would like to make a reference to the Supreme Court decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) in the abovesaid background as detailed by us. In this decision it has been said that if there is a breach of promise committed by the insured then the insurer would be exonerated from the statutory liability which is being fastened upon it under the provisions contained in Sections 96(1)(2)(b)(ii), 94 and 84 of Motor Vehicles Act (4 of 1939). The case put forth by the owner of the vehicle, Arvind Patel and his testimony at Exh. 67 go to show very clearly that the insured Arvind Patel was guilty of the breach of the terms and conditions of the insurance contract. This becomes obvious from the policy of insurance at Exh. 73 which shows that there was restriction of driving the vehicle by any person not holding the valid licence to drive. In view of this position we feel that the insurer is getting the benefit of the factual and legal position and it requires to be exonerated from the liability of satisfying the award as has been done by the Tribunal. In the result, therefore, the F.A. No. 161 of 1981 would succeed in part inasmuch as the appellants who are the original claimants shall be entitled to the total compensation of Rs. 50,000/- from the owner of the vehicle, Arvindbhai Patel, together with the interest at the rate of 12 per cent per annum from the date of application till realisation. So faras the F.A. No. 651 of 1980 is concerned, the same fails and is dismissed. There shall be no order as to costs in respect of the F.A. No. 651 of 1980.