Kerala High Court
New India Assurance Co. Ltd. vs K.V. Sree Devi And Ors. on 18 August, 1989
Equivalent citations: 1991ACJ610
JUDGMENT P. Krishnamoorthy, J.
1. These two appeals arise out of a claim for compensation on account of the death of one Ravindran Nair who died in a motor accident on 23.11.1980 at Avoli. M.F.A No. 547 of 1984 is by the 2nd respondent before the Tribunal, the insurer and M.F.A No. 126 of 1985 is by the 1st respondent before the Tribunal who is the owner-driver of the scooter involved in the accident. Petitioners are the widow and minor son of Ravindran Nair who was a pillion rider on the scooter KRE 9734, owned and driven by the 1st respondent at the time of the accident. The allegation in the claim petition is that the deceased and the 1st respondent were travelling in the scooter from Ernakulam to Muvattupuzha and that due to the rash and negligent driving by the 1st respondent, Ravindran Nair was thrown off from the scooter and it ran over him. He suffered grievous injuries and succumbed to the injuries at 8.45 p.m. on the same day at the Medical College Hospital, Kottayam. The injuries which led to the death were caused by the use of the scooter on a public road and while Ravindran Nair was lying on the road after the fall, he has to be deemed to be a third party so far as the liability of the insurance company is concerned. The petition was filed on 4.1.1982, admittedly after six months of the date of the accident and it was claimed in the petition that there is no bar of limitation as the 2nd petitioner is a minor. On these allegations the claim petition was filed by the petitioners for a total compensation of Rs. 2,10,400/- under various heads.
2. The 1st respondent, owner-driver of the scooter, filed a counter affidavit contending that the claim petition is barred by limitation. He was driving the scooter cautiously and carefully and when it reached the place Avoli, a jeep was coming from the opposite direction at a high speed. Another jeep coming from the same direction was trying to overtake the said jeep. In order to avoid a collision he swerved the scooter to the extreme left when it hit the leg of a pedestrian. The deceased who was sitting on the pillion seat of the scooter got perplexed, lost balance and tried to jump from the scooter. In that process, the 1st respondent himself lost control and both of them fell down and were injured. According to him, the accident was solely due to the negligence of the deceased who was inexperienced in travelling on a scooter. It was further contended by the 1st respondent that in any event the scooter being insured with the 2nd respondent, the liability has to be met by the 2nd respondent.
3. The 2nd respondent, insurance company, admitted the policy and contended that it is only a policy covering the statutory liability contemplated under the Motor Vehicles Act or in other words, it is only an Act policy. The deceased being a pillion rider on the scooter was only a gratuitous passenger and as such the liability due to the death or injury to him is not covered by the insurance policy and it is not liable to pay the amount of compensation, if any.
4. After trial, the Tribunal came to the conclusion that the accident was due to the rash and negligent driving of the vehicle by the 1st respondent and fixed the compensation payable to the petitioners at Rs. 73,000/-. The Tribunal further held that the insurance company is liable to pay the full amount on the ground that the deceased, though a passenger on the scooter, was thrown off on the road and the scooter ran over him while he was on the road and he has to be treated as a third party so far as the insurance company is concerned. The vehicle being a private vehicle the liability of the insurer to third parties is unlimited and it was held that the insurer is liable to pay the whole amount to the claimants. The appeals are against the above award, by the insurance company and the 1st respondent.
5. In M.F.A No. 126 of 1985 counsel for the appellant 1st respondent contended that the Tribunal went wrong in holding that the accident happened due to the negligence of the 1st respondent. He also contended that the claim is barred by limitation. In M.F.A No. 547 of 1984 the contention of the appellant insurance company is that the deceased being a gratuitous passenger in a private vehicle, the insurance company is not liable to pay any amount, as the policy issued is only an Act policy. Hence the questions that arise for consideration in these appeals are:
(i) Whether the claim is barred by limitation?
(ii) Whether the accident occurred due to the rash and negligent driving of the 1st respondent?
(iii) As to what is the liability of the insurance company in the facts and circumstances of the case.
6. The first question to be considered is whether the claim is barred by limitation. The accident occurred on 23.11.1980 and the petition filed on 4.1.1982 is beyond the period of limitation of six months. In the claim statement it is stated that as the 2nd petitioner is a minor, there is no delay in filing the claim petition before the Tribunal. The Tribunal accepted the above contention and held that there is no limitation. The claim petition is filed by two petitioners: the 1st petitioner is the widow and the 2nd petitioner is the minor son of the deceased. The 1st petitioner being a major on the date of the accident as also on the date of the petition, she should have filed the petition within six months. As the petition is admittedly filed beyond the period of six months, it is barred by limitation so far as the 1st petitioner is concerned and the fact that the 2nd petitioner is a minor will not save the limitation so far as the 1st petitioner is concerned. The Tribunal went wrong in holding that the whole petition is within time. Knowing this difficulty the petitioners filed C.M.P. No. 20589 of 1989 before this court to condone the delay in filing the application before the Tribunal. The ground alleged in support of the application to condone the delay is that the 1st petitioner was very much depressed, that some of the relatives advised her to write a letter to the insurance company and that she was not aware at that time that the claim has to be filed before the Tribunal. These are not sufficient reasons for condoning the delay and we are not satisfied that any sufficient reason has been made out by her to excuse the delay in filing the application. The 2nd petitioner being a minor on the date of the petition, it cannot be said to be barred so far as he is concerned. In the circumstances of the case we hold that the petition before the Tribunal is barred so far as the 1st petitioner is concerned and C.M.P. No. 20589 of 1989 is accordingly dismissed.
7. The next question to be considered is as to whether the accident occurred due to the rash and negligent driving of the scooter by the 1st respondent. Regarding that aspect there is the evidence of PW 2 and RW 2 who are eye-witnesses to the incident and of RW 1, the 1st respondent. PW 1 is the 1st petitioner who was not an eye-witness to the incident and hence her evidence is not relevant for the purpose of this question. The road lies east-west and the scooter was going from west to east. According to PW 2, on the western side of the place of accident a stationary jeep was lying which had broken down on the way. He was standing by the side of that jeep. While so, the scooter in question came fast and a lorry came from the southern side. Seeing the lorry the 1st respondent swerved the scooter and applied sudden brakes. The deceased who was sitting on pillion seat was thrown off and the scooter ran over him. But according to RW 1 when they reached the place Avoli, a jeep was coming in a terrific speed from the opposite direction and another jeep coming from the same direction was trying to overtake the former. Seeing this the deceased made noise, caught hold of him and tried to jump from the scooter. In this process he lost balance and the scooter capsized and both of them fell down and were injured. RW2 who is also an eye-witness gave evidence to the effect that a jeep was coming from the opposite direction and that another jeep was trying to overtake the same. According to him, seeing the jeep overtaking another jeep, the pillion rider made a hue and cry and he was very much perplexed. The 1st respondent lost the balance and swerved the scooter to the left and it hit him. After hitting him the scooter capsized and both the passengers fell down on the road and were injured. The evidence of RW 1 and RW 2 is consistent that there were two jeeps coming from the opposite direction at the time of the accident. But PW 2 says that when the scooter was going, another lorry came from the southern direction and that in order to save the scooter from hitting the lorry it was swerved to the left and in that process the accident happened. Anyhow, from the evidence it is clear that two or three vehicles were there at the time of accident and that in order to avoid an accident the scooter was swerved by the 1st respondent. From the evidence it is also clear that the deceased got perplexed on seeing two or three vehicles coming from the opposite direction. In this connection it has to be remembered that the vehicle involved is a two-wheeler wherein both the rider as also the pillion rider have to keep balance. It is probable that the pillion rider got perplexed and did something which might have tilted the balance and the 1st respondent would have lost control. In these circumstances, it is difficult to hold that the accident was due to the negligence of the 1st respondent alone. As stated earlier, the pillion rider has to keep a sort of balance and if he did something in his perplexity it would certainly affect the movement of the scooter. That having happened in this case, we feel that the deceased was also equally responsible for the accident and the finding of the Tribunal that the accident was solely due to the negligence of the 1st respondent cannot be upheld. We hold that the deceased was also equally guilty of contributory negligence for the accident that happened on the fateful day and that the 1st respondent will be liable only for 50 per cent of the compensation that is due to the petitioners.
8. Coming to the liability of the insurance company, it was contended by counsel that the deceased was a gratuitous passenger and as such he is not covered by the Act policy issued by it. We have held in the decision reported in K. Velunni v. Premalatha 1989 ACJ 833 (Kerala), that a gratuitous passenger on a scooter (pillion rider) will not be covered by an Act policy and that the insurance company has no liability for payment of any compensation for the death or bodily injury of such a person. The Tribunal came to the conclusion that the deceased has to be treated as a third party in the circumstances of the case as the fatal injury was caused to him while he was on the road and not while he was a passenger of the scooter. In support of the above position counsel for the petitioners as also counsel for the 1st respondent relied on the decisions in State of Kerala v. S. Govinda Prabhu 1981 TAC 5, Southern Motors, Madurai v. C. Sivajothiammal 1982 ACJ (Supp) 85 (Madras) and Uvaraja v. Parvathi Ammal 1986 ACJ 506 (Madras). In all the three cases mentioned above, the person concerned was trying to board a bus and before he could enter the bus he fell down for one reason or the other and was injured. In these premises it was held that he could not be treated as a passenger and as he could not get entry into the bus he has to be treated as a third party for the liability of the insurance company. These decisions cannot have any application to the facts of this case as the deceased was admittedly travelling on the scooter and was thrown off due to the accident.
9. In Kunhimohammed v. Ahmedkutty 1987 ACJ 650 (Kerala), the deceased was one of the passengers in a bus which met with an accident. At high speed the bus ran over a heap of lime shells on the right hand side of the road, dashed against an electric post and overturned. The passenger in question was sitting in a seat near the entrance and while the bus hit the electric post, the passenger was thrown off from the bus and the bus fell over her. In these circumstances, the question arose as to whether the deceased had to be treated as a passenger or as a third party. The vehicle involved in that case being a bus, the question arose as to whether the liability of the insurer will be under Section 95(2)(b)(i) or (ii) which dealt with the liability of third parties and passengers. This court held that the deceased has to be treated as a passenger and as such Section 95(2)(b)(ii) alone will apply. This court came to the conclusion that the deceased has to be treated as a passenger in the sense that she had not voluntarily left the bus and that the throwing away of a passenger due to an accident will not take away the character of a person as a passenger. In this case also the deceased was admittedly a passenger on the scooter and he was thrown off from it only due to the accident and he did not cease to be a passenger by any voluntary act of himself. But for the accident which happened while he was a passenger, he would not have been thrown off and we find it difficult to agree with the Tribunal that the deceased has to be treated as a third party in the facts and circumstances of the case. The Tribunal went wrong in holding that the deceased has to be treated as a third party and we reverse the finding and hold that so far as the liability of the insurance company is concerned, the deceased has to be treated as a passenger on the scooter. If that is so, the deceased being a gratuitous passenger, the insurance company is not liable to indemnify the 1st respondent for any compensation payable for the death of Ravindran Nair as the policy in question was only an Act policy.
10. The Tribunal came to the conclusion that petitioner Nos. 1 and 2 are together entitled to a compensation of Rs. 73,000/-. As we have held that the claim by the 1st petitioner is barred by limitation, her claim has to be rejected and the 2nd petitioner alone is entitled to the compensation which will be 50 per cent of Rs. 73,000/-, namely, Rs. 36,500/-. We have further held that the 1st respondent and the deceased were equally negligent for the accident. If that be so, the 1st respondent will be liable to pay only 50 per cent of the compensation due to the 2nd petitioner, namely, Rs. 18,250/-.
11. At the time of filing the appeal, the insurance company filed C.M.P. No. 26635 of 1984 for stay of execution of the award. By order dated 9.10.1984 this court granted stay on condition that the insurance company paid Rs. 20,000/- to the petitioners and directed the balance to be deposited in the Indian Bank, Ernakulam. Accordingly the insurance company has paid Rs. 20,000/- to the petitioners and deposited the balance amount in the Indian Bank. Though we have held that the insurance company is not liable, as Rs. 20,000/- has already been paid by it to the petitioners, we hold that it will not be entitled to get back the said amount from the petitioners, as was done in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC).
12. In the result, we modify the award and pass an award in favour of the 2nd petitioner alone to realise an amount of Rs. 18,250/- with interest as ordered by the Tribunal and proportionate costs from the 1st respondent. The claim by the 1st petitioner is dismissed. Credit will be given for the amount of Rs. 20,000/-paid by the insurance company as per the order of stay by this court and the 1st respondent will be liable to pay only the balance due. The insurance company will be entitled to get back the amount deposited in the Indian Bank.
The appeals are disposed of as above. No costs.