Kerala High Court
United India Insurance Company Limited vs Ramani C.K on 28 February, 2007
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935
MACA.No. 2010 of 2007
--------------------------
AGAINST THE AWARD IN OP(MV)NO. 191/1998 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
DATED 28-02-2007
....
APPELLANT: 4TH RESPONDENT:
------------------------------------------------
UNITED INDIA INSURANCE COMPANY LIMITED,
CHERTHALA NOW REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11.
BY SRI.MATHEWS JACOB,SENIOR ADVOCATE
ADV. SRI.P.JACOB MATHEW
RESPONDENT(S)/CLAIMANTS AND RESPONDENTS 1 TO 3:
----------------------------------------------------------------------------------------------
1. RAMANI C.K., W/O.LATE RAMAKRISHNAN,
PARAKKATTU HOUSE, KUMBALAM P.O., ERNAKULAM - 682 056.
2. SREEDEVI, D/O.LATE RAMAKRISHNAN, DO. DO.
3. SREELATHA, D/O.LATE RAMAKRISHNAN, DO. DO.
4. BEENA, D/O.LATE RAMAKRISHNAN, DO. DO.
5. THE SECRETARY,
MS/.COASTAL MOTOR TRANSPORT WORKERS
CO-OPERATIVE SOCIETY LTD.NO.318, CHERTHALA.
6. K.R.VIJAYAN NAIR, S/O.RAGHAVAN NAIR,
DEVAKI MANDIRAM, PALLIPPURAM P.O., CHERTHALA - 688 541.
7. V.V.SURENDRAN, S/O.VAVA,
THEKKE VILLATHUR HOUSE, VAYALAR KIZHAKKU VILLAGE,
VAYALAR P.O., CHERTHALA.
R1 TO R4 BY ADVS. SRI.ANIL S.RAJ
SRI.ABY JACOB
R5 TO R7 BY ADVS. SMT.K.M.BEENA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25-09-2013 ALONG WITH MACA.NO. 1453/2008, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
==================
M.A.C.A.Nos.2010/2007 & 1453/2008
==================
Dated this the 25th day of September, 2013
J U D G M E N T
S.Siri Jagan, J.:
An interesting question regarding the interpretation of the provisions of the Motor Vehicles Act arises in this case as to whether, for the negligence of an employee of the owner, other than the driver of a motor vehicle, the insurance company with whom the vehicle is insured is liable to indemnify the owner of the vehicle for the compensation due to a third party for the death or bodily injury caused in the course of use of the vehicle. In an accident involving a stage carriage owned by the 5th respondent in M.A.C.A.No.2010/2007, which happened on 29.12.1995, one Jayaprakash died. The motor vehicle was owned by the 5th respondent in M.A.C.A.No.2010/2007. The 6th respondent was the driver and the 7th respondent was the door checker of the vehicle. There was a dispute between the deceased, who was a passenger in the bus, and the door checker, in which other passengers in the vehicle also interfered. The M.A.C.A.2010/07 & cc - : 2 :-
vehicle was a stage carriage, in which, passengers were being carried for hire In the course of the dispute, the door checker pushed the deceased out of the bus and the deceased again boarded the bus while the vehicle was moving. The door checker again pushed the deceased out of the bus and in the course of that action, the deceased was run over by the vehicle and died. Respondents 1 to 4 herein, who are the mother and unmarried sisters of deceased Jayaprakash, filed O.P.(M.V).No.191/1998 before the Additional Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Jayaprakash. The Tribunal, on the basis of evidence adduced before him, came to the conclusion that the accident happened on account of the composite negligence of the driver of the vehicle as well as the door checker of the vehicle. The Tribunal apportioned the negligence as between the driver of the vehicle and the door checker of the vehicle in the ratio 50:50 and thereafter assessed total compensation of ` 3,75,500/-. The insurance company was directed to pay the entire compensation to the claimants, with right to recover 50% of the same from the owner and the door checker. Aggrieved by the award of the Tribunal, the insurance company has filed M.A.C.A.No.2010/ 2007 and the owner and M.A.C.A.2010/07 & cc - : 3 :-
door checker have filed M.A.C.A.No. 1453/2008. The insurance company challenges the award both on the question of their liability to indemnify the owner of the vehicle as well as the quantum of compensation. The contention is that insofar as the accident did not occur on account of any negligence on the part of the driver of the vehicle, the insurance company is not liable to indemnify the owner. It is contended that the accident occurred only because the door checker pushed the deceased out of the bus and not because of any negligence on the part of the driver of the vehicle. It is further contended that the pushing out of the deceased from the bus cannot be considered as an action in the course of use of the motor vehicle as such and therefore, the insurance company is not liable to indemnify the owner for the death of the deceased. It is also pointed out that in the criminal case charged in respect of the death of the deceased, the charge was only against the door checker for offences punishable under Sections 324 and 304 of the Indian Penal Code, which does not relate to negligent use of the vehicle as such, which is also a ground to disclaim liability by the insurance company.
2. M.A.C.A.No.1453/2008 is filed by the owner and the M.A.C.A.2010/07 & cc - : 4 :-
door checker contending that the criminal court has acquitted the door checker in the criminal case and as such, there is no negligence either on the part of the driver or on the part of the door checker and, therefore, they are entitled to disclaim liability for the death of the deceased. It is further contended that, assuming that there is any negligence either of the driver or the door checker, both of them are employees of the owner and insofar as the accident occurred on account of the use of the motor vehicle insured with the insurance company, the insurance company is certainly liable to indemnify the owner for the compensation payable to the claimants as awarded by the Tribunal. The right of the insurance company to recover the compensation paid by them arises only if there is violation of policy conditions mentioned in Section 149(4) of the Motor Vehicles Act, which is absent in this case is the contention.
3. We have considered the rival contentions in detail.
4. We shall first consider the question of negligence itself. The facts leading to the death of Jayaprakash are not in dispute before us. There was an altercation inside the bus among the deceased, other passengers in the bus and the door checker. In the course of that altercation, the door checker pushed M.A.C.A.2010/07 & cc - : 5 :-
Jayaprakash out of the bus. After alighting he again boarded the bus, when the driver took the vehicle forward. The door checker again pushed him out of the bus while the vehicle was moving. In that process, the deceased went under the vehicle and he was run over by the vehicle, resulting in his death. The question is as to whether the death is in the course of the use of the vehicle and as to whether there was negligence on the part of either the driver or the door checker. We do not think that there can be any doubt that the accident occurred in the course of the use of the vehicle. Admittedly, the deceased was travelling in the vehicle as a passenger. The vehicle was one used for transporting passengers for hire. When there is a dispute between the door checker and the passengers of the bus and one of the passengers is pushed out of the bus, the accident is certainly in the course of the use of the vehicle itself.
5. The next question is as to because of whose negligence the accident had occurred. The fact that the door checker was negligent cannot be doubted for a moment, because he had no business to push a passenger out of the bus while the vehicle was moving and he did that in this case. But that does not absolve the driver from liability. The driver cannot be said to M.A.C.A.2010/07 & cc - : 6 :-
have been unaware of the happenings inside the bus, especially when the whole incident happened at the front door of the bus very near to the seat of the driver. Therefore, when there was an altercation in the bus and one of the passengers was once pushed out of the bus, he alighted the bus, came aboard again and he was again being pushed out, the driver was duty bound to stop the vehicle to avoid any untoward incident because of the altercation. Admittedly, the driver had not done so. Therefore, there cannot be any doubt that the driver also was negligent insofar as had he stopped the vehicle immediately when the altercation took place, the accident could have been totally avoided. Therefore, we hold that the driver also was equally negligent in causing the accident.
6. The next question is as to whether the insurance company is liable for the negligence of both the driver and the door checker. Insofar as we had already held that the accident occurred in the course of use of the vehicle and the driver is negligent in causing the accident, the insurance company is certainly liable for the negligence of the driver in the matter of indemnifying the owner for the compensation payable to a third party on account of the death of their bread winner in the M.A.C.A.2010/07 & cc - : 7 :-
accident caused by the negligence of the driver. But still insofar as we have held that the door checker is also negligent, the question is whether, for the compensation payable for the negligence of the door checker, the insurance company is liable to indemnify the insured. The learned counsel for the insurance company relies on the following decisions:
1. Rita Devi v. New India Assurance Co. Ltd., 2000(2) KLT 526,
2. Oriental Insurance Company Ltd. v. Meena Variyal and others, 2007 (5) SCC 428, and
3. Shaju v. Babu, 2007 (4) KLT 1076 All these decisions are in respect of cases where the accident occurred on account of a criminal act done by not the employees of the owner, but others, but of course in the course of use of the vehicle, which cannot be an authority for the proposition involved in this case. In this case, we have held that the accident occurred because of the negligence of both the driver and the door checker. Both are admittedly employees of the owner and the accident happened in the course of the use of the vehicle itself. The learned counsel for the owner and door checker relies on the decision of this Court in New India Assurance Company Ltd. v. Kamalamma, 2012 (4) KLT 84, wherein this M.A.C.A.2010/07 & cc - : 8 :-
Court made the insurance company liable to indemnify the owner for the compensation payable by him on account of an accident caused when the conductor kicked a passenger out of the bus. According to the learned counsel for the owner, when an insurance company is labile to indemnify the owner for the compensation payable on account of the accident caused by the negligence of a conductor, the insurance company is liable for the negligence of the door checker as well.
7. The application for claiming compensation arising out of a motor vehicle accident is covered by Section 166 of the Motor Vehicles Act, which reads thus:
"166. Application for compensation:- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident by all or any of the legal representatives of the deceased;
or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(underlining supplied)
M.A.C.A.2010/07 & cc - : 9 :-
Section 166 refers to compensation arising out of an accident of the nature specified in sub-section (1) of Section 165. Therefore, we will have to necessarily refer to Section 165 (1) for deciding the question at hand. Section 165 (1) reads thus:
"165. Claims Tribunals:- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both.
xxx xxx xxx xxx xxx xxx xxx xxx"
(underlining supplied)
Nowhere in the Motor Vehicles Act, is it stated that compensation under the Act is payable only in respect of the accident caused by the negligence of the driver of the vehicle. All what it says is that compensation is payable in respect of accidents involving death or bodily injury to person arising out of the use of motor vehicles or damage to any property of a third party so arising or both. In fact, since the liability for compensation in respect of a motor vehicle is also a tortuous liability, the common law principles relating to negligence and vicarious liability are being applied by courts for deciding liability to pay compensation in claims arising under the Motor M.A.C.A.2010/07 & cc - : 10 :-
Vehicles Act. The fact that negligence is a deciding factor for awarding compensation in a claim under Section 166 is further clear from the provision of Sections 140 and 163A, wherein it has been stipulated that in claim for compensation under those sections, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. Here also, it must be noted that the section speaks of wrongful act, neglect, default of the owner or any other person. The any other person can be the driver or any other employee of the owner. It is all the more so, since the liability of the owner for paying compensation for the death or bodily injury to third persons arises only on account of the vicarious liability of the owner for the negligent actions of his employees.
8. In common law also, for the tortuous acts of servants, the owner is vicariously liable. In Law of Torts by Salmond & Heuston, at page 201, the concept of negligence in an action for tort is explained thus:
"It is negligence in the objective sense that is referred to in the well-known definition of Alderson B. M.A.C.A.2010/07 & cc - : 11 :-
Negligence is the omission to do something which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
So also, Lord Wright said:
"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing."
Therefore, if master and servant relationship is proved and it is further proved that the servant committed the tortuous act in the course of his employment under the master, the master will be vicariously liable to indemnify the victim for the damages suffered by him on account of such tortuous act of his employee. In a public transport, the owner offers a passenger safe transport on payment of the hire and the owner and his employees have a corresponding duty to see that the passenger reaches the destination safely. If, because of any act or omission of the employees in the course of their employment, the passenger suffers damages, the owner is vicariously liable to compensate the passenger or his legal representatives in case of death. Here on account of the negligent acts of both the driver and the door checker, the breadwinner of the claimants died, for which, a claim for compensation would lie against the negligent employees and the owner is vicariously liable to pay the M.A.C.A.2010/07 & cc - : 12 :-
compensation to the claimants. If the policy issued by the insurance company covers the same, then the insurance company is liable to indemnify the owner for the compensation payable by the owner.
9. In Chapter XI of the Act, relating to insurance of motor vehicles, against third party risks, also there is no stipulation that the liability of the insurance company is restricted to death or bodily injury caused by the negligence of the driver of the vehicle. There also the insurance policy must be one which insures the person or classes of persons specified in the policy against any liability, which may be incurred or damage to any property of a third party caused by or arising out of the use of the vehicle. As such, if the accident arose out of the use of the motor vehicle, then the compensation is payable to a third party when the accident was caused by the negligence of any of the employees of the owner insofar as the liability of the owner arises out of the principles of vicarious liability in torts. Whether it is on account of the negligence on the part of the driver or other employees of the owner in the bus, the owner is vicariously liable. If that be so, insofar as the vehicle is insured with the insurance company, the insurance company is liable to indemnify M.A.C.A.2010/07 & cc - : 13 :-
the owner for compensation payable by him in respect of accidents arising arising out of the use of the motor vehicle irrespective of whether the negligence was on the part of the driver or any other employee of the bus. In the above circumstances, we are of opinion that as far as the liability of the insurer is concerned, it makes no difference whether the accident is because of the negligence of the driver or because of the negligence of the door checker. Therefore, we are of opinion that the insurance company is liable to indemnify the owner who is the 1st appellant in M.A.C.A.No.1453/2008 and the 5th respondent in M.A.C.A.No.2010/2007 for the compensation payable by the owner to respondents 1 to 4. Consequently, the finding of the Tribunal that the insurance company is liable to indemnify the insured only to the extent of 50% is liable to be set aside and we do so. For the very same reasons, we also set aside the right given by the Tribunal to the insurance company to recover the balance 50% from the owner and the door checker. Consequently, the insurance company, who is the appellant in M.A.C.A.No. 2010/2007, is liable to pay the entire amount of compensation due to respondents 1 to 4 in their appeal.
10. The insurance company has a contention that the M.A.C.A.2010/07 & cc - : 14 :-
compensation awarded is excessive and has not been calculated in accordance with the principles laid down by courts for calculating compensation in motor accident claims. The contention is that although there were four claimants in the claim petition, only the mother was dependent on the deceased and others who are major sisters of the deceased were not dependants of the deceased. While calculating compensation the Tribunal deducted only one-third, whereas going by the decision in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), 50% should be deducted where the deceased is a bachelor and only the parents are the dependants. The learned counsel for the claimants would contend that insofar as the other claimants are unmarred sisters of the deceased, who did not have any independent income, they were also dependants of the deceased at the time of the death. It is further pointed out that the father of the deceased and respondents 2 to 4, is no more and the mother and sisters have no independent income. That being so, the sisters also should be considered as dependants of the deceased and consequently, only one-fourth could have been deducted by the Tribunal. But the Tribunal has deducted one- third, which does not warrant any interference at the hands of M.A.C.A.2010/07 & cc - : 15 :-
this Court, is his contention. We are inclined to agree with the learned counsel for the claimants. There is no dispute before us that the sisters were unmarried and the father was no more. The mother and sisters have no independent income as well. That being so, all the four claimants were dependent on the deceased at the time of his death. That being so, going by the decision in Sarla Verma's case (supra) only one-fourth could have been deducted for personal expenses of the deceased whereas the Tribunal has deducted one-third. In the above circumstances, we are not inclined to interfere with the compensation assessed by the Tribunal as well. Accordingly M.A.C.A.No.2010/2007 is dismissed. M.A.C.A.No.1453/2008 is allowed to the extent of holding that the insurance company is liable to indemnify the owner of the vehicle for the entire compensation amount awarded by the Tribunal.
Sd/-
S.SIRI JAGAN, JUDGE Sd/-
sdk+ K.RAMAKRISHNAN, JUDGE
The word, "tortuous" wherever occurring in the common
judgment dated 25.09.13 in M.A.C.A.Nos.2010/2007 and 1453/2008 is corrected as "tortious" vide order dated 6.11.2013 in M.A.C.A.No. 2010/2007 and 1453/2008.
Sd/-
Registrar (Judicial)
M.A.C.A.2010/07 & cc - : 16 :-
///True copy///
P.A. to Judge