Karnataka High Court
George Oakes Co. vs V.S. Govindarajan (Dead) Represented ... on 17 July, 1997
Equivalent citations: 1999ACJ219, 1998 A I H C 4045, (1999) 2 TAC 561, (1999) 1 ACJ 219, (1999) 1 ACC 663
JUDGMENT M.F. Saldanha, J.
1. These two appeals, the first one preferred by the owner of the scooter in question and the second one preferred by the insurance company are directed against an award of the Tribunal dated 20.4.1987 in M.V.C. No. 695 of 1981. Around midnight on 11.1.1981, the deceased G.S. Venkatesh was travelling as a pillion rider on a scooter No. MEJ 6042 belonging to George Oakes Co. who is the appellant in the first of the two appeals. It is alleged that a truck which was being driven at high speed collided with the scooter and after dragging it for a distance of about 58 ft. sped away without stopping. A police constable who was close by heard the noise of the impact and rushed to the spot where he found the badly damaged vehicle and the rider as also the pillion rider lying unconscious. Venkatesh who was the pillion rider of the scooter died some time later. The present claim has been preferred by the late father of Venkatesh who contended that he was their only son and only means of sustenance to the parents in their old age, that he had recently taken up a reasonably good job in Bangalore and that consequently, the claimants before the Tribunal were entitled to compensation of Rs. 3,00,000. After hearing the matter, the Tribunal came to the conclusion that Rs. 70,000 along with interest and costs was payable and the Tribunal held the owner as also the insurance company jointly and severally liable. The owner has challenged the liability principally on the ground that there existed valid insurance cover at the relevant time and that therefore, the whole of the liability must devolve on the insurance company. The reverse plea has been canvassed by the insurance company whereby it is contended that the policy does not cover the pillion rider and that therefore, the joint and several liability foisted on the insurance company is erroneous.
2. At the hearing, learned Counsel who represents the owner initially raised the contention that undoubtedly the scooter belonged to the company but that the liability of the company would be confined to any death or injury that occurred in relation to use of the vehicle in the course of the employment or for official purpose. It is clarified that the rider of the scooter was an employee of the owner company and that the vehicle had been given to him also for his personal use. It is also relevant to point out that no evidence was led either by the owner or the insurance company before the Tribunal and that consequently, the pleas that have been canvassed are essentially on points of law. I find it impossible on the present record to uphold the plea that the liability of the owner could arise only if the vehicle was in the course of official use because there is nothing on record to indicate that the user of the vehicle was restricted. It is not as though the employee had taken the vehicle unautho-risedly and since it had been given to him in the course of his employment the presumption arises that he was entitled to use it both for official and non-official purposes. Learned counsel who represents the owner did accept the position that undoubtedly if the vehicle had been put to any illegal use, then there shall be a clear exclusion of liability. On the facts of the present case the contention that the employee was using the vehicle for his private and personal use in the course of which he was giving a lift to a friend and that therefore the liability would not arise cannot be upheld. The second contention that was advanced was that the finding of the Tribunal on issue No. 3 whereby the learned Member has held that there was negligence on the part of both the truck driver as also the scooter driver is unjustified. Learned counsel submitted that the court must take judicial notice of the recklessness that is characteristically displayed by the truck drivers and one important factor, namely, evidence of PW 2, the P.C. who points out that the truck in question was moving at a high speed and that it did not even stop after such a serious incident. Learned counsel submitted that in this background the finding is clearly unjustified and that it must be held that the negligence was entirely on the part of the truck driver. His argument proceeds on the footing that unless negligence is established on the part of the scooter driver the liability of the owner cannot come into force. On the facts of the present case, it would be hazardous to venture a clear cut finding with regard to the issue as to which of the two drivers or whether both the drivers were contributo-ries to the incident. This is a grey area and despite a very careful scrutiny of the evidence it would be impossible to hold that one or other of the drivers was completely innocent. If the learned Counsel submits that the court must take judicial notice of the recklessness displayed by truck drivers, then the court would have to take note of the equally high degree of recklessness that is displayed by the drivers of two-wheelers in arriving at a judicial finding. In the absence of clear cut evidence it would be difficult to give a definite indication of whether the two drivers were contri-butories. To my mind, an opposite position is equally true insofar as the accident took place, the time when it happened and the mahazar. I am not inclined to record any finding that there was no fault on the part of the scooter driver. To this extent therefore, on the present record it would hot be possible to accept the second submission.
3. Another point raised by the learned Counsel who represented the owner was that the expectancy of 10 years has been taken into account by the Tribunal and it so happened, howsoever unfortunate it may be, that the claimant died very shortly after the judgment and that therefore the expectancy of 10 years that has been calculated was wrong. This argument in my considered view again cannot be upheld because a court proceeds on the basis of the theory of reasonable expectancy and if due to whatever reason the life span gets curtailed that cannot work backwards to the extent of altering the basis of compensation. In the present case, that argument would be rendered academic because the claimants' learned Counsel has pointed out to me that the case made out was that the deceased boy was the sole sustenance to both the parents and the death of the father to my mind would make no difference as the mother is still alive and as has been pointed out to me, her condition has only worsened after the death of her husband. Under these circumstances, no alteration of the basis of computation of the compensation is permissible on the basis of this argument.
4. On behalf of the insurance company, my attention was drawn to a recent decision of this Court reported in I.L.R. 1996 -Karnataka 3041 wherein under more or less similar circumstances the court held that the liability for the pillion rider cannot devolve on the insurance company but that it would have to be borne entirely by the owner. One does not need to go into any elaborate recounting of the submissions canvassed on behalf of the insurance company because the learned Judge has referred to the earlier decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), wherein the Supreme Court had occasion to observe that while construing the liability under an insurance policy it is not possible to equate passengers with third parties. The contention raised in the present proceeding is that even assuming that excluding the liability in respect of the pillion rider on the ground that he is to be treated on par with a passenger, that the liability could still be foisted if the pillion rider is to be equated with a third party. Unfortunately, such an argument would not be tenable because the courts have had occasion to consider the categorisation of different persons to whom liabilities are extended and it has very clearly been held that third parties must necessarily be persons other than those travelling in or on the vehicle. In this background, it would be very clear that the finding of the Tribunal holding the insurance company liable jointly and severally along with the owner is erroneous.
5. I do concede that the situation that emerges is undoubtedly extremely incongruous. The learned Counsel who represented the insurance company pointed out that the liability flows from contract and that the policy represents a contract between the parties and that as of necessity, the liability which again relates back to the payment of premium cannot be widened merely on grounds of sympathy or hardship. There is considerable justification in this submission because it is permissible on the payment of a special premium to include the categories such as passengers or pillion riders and that ipso facto indicates that if such a procedure is not followed, necessarily the liability of the insurance company would not arise vis-a-vis that category of persons. There is another aspect of the matter which to my mind deserves serious consideration, namely, the fact that if the statutory liability or for that matter the contractual liability which arises on the basis of an insurance policy in the case of third party liabilities is to exclude pillion riders that the law is deliberately closing its eyes to fields in which insurance cover is an absolute must. Statistics will indicate that the injury and death rate in the case of two-wheelers is abnormally high in this country and the very same statistics will indicate that the death and injury to a pillion rider as far as incidence is concerned is even higher than that in the case of the driver of the scooter. In this background, where the majority of owners only opt for third party insurance because that is a legal necessity, a very unsatisfactory situation arises insofar as for no fault of theirs, the pillion riders are virtually left with no cover whatsoever and the courts and the Government need to take serious note of the fact that fastening the liability on the owner is a futile exercise because in almost 100 per cent of the cases the status of the owner is such that it would be impossible to execute the award and recover the amount from the owner. It is in this background that it is highly desirable that as far as two-wheelers are concerned, comprehensive insurance be made compulsory and that the payment of additional premium for purposes of covering the pillion rider be also made compulsory. As long as these issues are optional, incidents of the present type are inevitable.
6. Having regard to the aforesaid position, the appeal filed by the owner in M.F.A. No. 2295 of 1987 fails and stands disposed of. The appeal filed by the insurance company in M.F.A. No. 2402 of 1987 is allowed and the award is modified to the extent that the liability of the insurance company stands deleted. As a necessary consequence, the owner would be liable to pay the compensation awarded by the Tribunal. The appellant in M.F.A. No. 2295 of 1987 shall take steps to deposit the balance amount of compensation along with interest and costs in the Tribunal within an outer limit of twelve weeks from today. Both the appeals stand disposed of accordingly.