Madhya Pradesh High Court
Rekha vs Shri Travels And Ors. on 8 October, 2001
Equivalent citations: 2003ACJ1559
Author: A.M. Sapre
Bench: Deepak Verma, A.M. Sapre
JUDGMENT A.M. Sapre, J.
1. The decision rendered in this appeal shall govern the disposal of other appeal being Misc. Appeal No. 696 of 1995, Shri Travels v. Rekha, as both these appeals involve common question of facts and, secondly, they arise out of one impugned award rendered in one claim case.
2. This appeal is filed by the claimant under Section 173 of Motor Vehicles Act, against an award dated 14.8.1995 passed by First M.A.C.T., Mhow, District Indore in Claim Case No. 37 of 1988. By impugned award, the learned Member of Tribunal is pleased to partly allow the claim of the claimant (appellant herein). The claimant is not satisfied with what is awarded to her and hence she has come up in appeal for enhancement through her father, natural guardian and also for other reliefs as will be clear from the facts stated infra in brief.
3. The claimant-appellant, a minor girl aged 15 years at the relevant time was student of 7th class in one school, Rajlika in Indore. On 1.3.1988 the school authorities hired one bus bearing registration No. MBD 7572 for taking the school girls to picnic to a place Onkareswar, claimant was one of the occupants in the bus. It so happened that while the bus was passing through Mhow it met with an accident. In this accident, the claimant suffered a serious injury in the right hand. She was taken to hospital, but eventually her right hand which was extensively damaged could not be saved and had to be amputated.
4. This led to filing of claim petition by the father of girl out of which this appeal arises claiming compensation for the loss of her right hand. It was alleged that the accident in question was the result of rash and negligent driving of bus driver. It was alleged that the bus in which the claimant was travelling was owned by respondent No. 1 (N.A. No. 1), driven by respondent No. 2 (N.A. No. 2) and was insured with respondent No. 3 (N.A. No. 3). The claimant claimed a sum of Rs. 5,50,000 by way of compensation for the loss suffered due to amputation of her right hand.
5. The claim was contested by owner and insurance company. In substance the defence was that of denial of their liability. So far as insurance company is concerned, it was contended on their behalf that in terms of Section 95(2)(b) of the Motor Vehicles Act the liability even if fastened on the insurance company, it will be only up to the maximum limit of Rs. 15,000 but not more than this amount.
6. By the impugned award, the learned Member of Tribunal partly allowed the claim petition. It was held that accident in question occurred due to rash and negligent driving of the bus driver (N.A. No. 2). It was then held that the bus in question was insured with N.A. No. 3 insurance company and hence they are also liable to indemnify the insured and pay the compensation. It was then held that claimant is entitled to receive a total sum of Rs. 80,000 by way of compensation. It was also held that since the accident in question occurred on 1.3.1988 and hence in terms of Section 95(2)(b) of the Act as it then stood, the liability of insurance company is only up to Rs. 15,000 because admittedly, claimant was travelling in the bus as passenger. Accordingly apportioning the liability, an award was passed against the insurance company for a sum of Rs. 15,000 with interest at the rate of 12 per cent whereas for the balance amount the direction was to recover from the owner and driver (N.A. Nos. 1 and 2). It is against this award, the claimant has felt aggrieved and filed an appeal, i.e., M.A. No. 701 of 1995 whereas owner of the bus has filed appeal being M.A. No. 696 of 1995. So far as the appeal filed by the claimant is concerned, she has claimed enhancement in compensation as also claimed an award for the entire amount against the insurance company whereas so far as the appeal of owner is concerned, they have challenged the very award as also the finding whereby the liability on the insurance company is confined up to Rs. 15,000. This is how the entire controversy is now open for examination in these two appeals.
7. Heard Mr. J.M. Punegar, the learned Counsel for the appellant, Mr. A. Siddiqui, learned Counsel for the respondent No. 1 and Mr. S. Sharma, learned Counsel for the respondent No. 3.
8. The learned Counsel for the claimant while attacking the award insofar as it goes against her has contended that firstly, Tribunal committed an error in awarding less compensation. According to learned Counsel, looking to the nature of injury suffered by the claimant which resulted in permanent disability in right hand which was amputated, the Tribunal should have awarded much more compensation than what was actually awarded. Secondly, the Claims Tribunal erred in restricting the liability of insurance company to the extent of Rs. 15,000. According to learned Counsel in view of law laid down in New India Assurance Co. Ltd. v. Satpal Singh 2000 ACJ 1 (SC), the Tribunal should have passed the award of whole amount against the insurance company rather than to restrict it to Rs. 15,000. These were mainly the submissions that were pressed in service by the learned Counsel for the claimant.
9. In reply, the learned Counsel for the insurance company while defending the impugned award contended that it was properly passed against the insurance company restricting their liability to the extent of Rs. 15,000 in terms of Section 95(2)(b) of the Act. Learned counsel placed reliance on the decision of Supreme Court in New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC) and urged that the facts of present case and that of in the case before the Supreme Court are identical and hence the appeal as against the insurance company deserves to be dismissed.
10. The submission of learned Counsel for the owner in this appeal as respondent and appellant in its appeal (M.A. No. 696 of 1995) was the same. It was his contention that firstly no case for enhancement is made out by the claimant so as to empower this Court to enhance the compensation already awarded. Secondly, on the issue of restricted liability against the insurance company, learned Counsel supported the stand of claimant and urged that in any case the entire award should have been passed against the insurance company.
11. Having heard the learned Counsel for the parties and having perused the record of the case, we are of the considered view that appeal filed by the claimant, i.e., M.A. No. 701 of 1995 deserves to be partly allowed whereas the appeal filed by the owner of bus, i.e., M.A. No. 696 of 1995 deserves to be dismissed.
12. Coming to the appeal of claimant, in our considered opinion, a case for enhancement in compensation is undoubtedly made out. It is a case of total amputation of right hand of a girl aged 15 years. It is a case worse than a death because the girl has to suffer this disability for her entire life. It has resulted in total darkness in her life and career at such a young age. Losing a right hand of human being is something which is beyond repairs. She is for all practical purposes rendered crippled. Her chances to get married and lead a normal marital life are totally gone. In such state of affairs a compensation of Rs. 80,000 was on a lower side and hence deserves to be increased. No hard and fast rule or method is prescribed for awarding compensation in such state of facts. However, taking into account all the facts, evidence led and judicial approach made applicable in such type of cases, we have come to a conclusion that it will be just, fair and reasonable to award a sum of Rs. 3,00,000 in place of Rs. 80,000. Accordingly, we award a sum of Rs. 3,00,000 by way of compensation to claimant. The enhanced compensation will carry interest at the rate of 9 per cent from the date of application till realisation.
13. Now coming to the issue relating to the liability of insurance company, we are inclined to uphold the finding of Tribunal on this issue. In our opinion, the Tribunal was right in its conclusion when it restricted the liability of the insurance company up to Rs. 15,000. The issue is covered by the decision of Supreme Court in New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC), wherein the facts of the case were more or less identical to that of one involved in the present case. Indeed, legal position prior to amendment in the Act cannot be disputed which restricted the liability of insurance company to the extent of Rs. 15,000 in the case of passenger travelling in the bus. It cannot be disputed that the accident in question occurred prior to amendment, i.e., on 1.3.1988 and hence at that point of time, the liability of insurance company insofar as it related to passenger of bus was up to Rs. 15,000 in terms of Section 95(2)(b) of the Act. The learned Counsel for appellant placed reliance on the decision reported in New India Assurance Co. Ltd. v. Satpal Singh 2000 ACJ 1 (SC), to contend that the liability of insurance company be made unlimited and absolute. We do not agree. The facts of this case are distinguishable. In that case, the Tribunal as also the High Court passed the award for the whole amount against the insurance company. However, when company went to Supreme Court, the appeal filed by the company was allowed and it was held on a point of law that liability of company is restricted up to Rs. 50,000 for third party but since in that case, it was found as a fact that amount of compensation was already awarded by the Tribunal to the claimants, in its entirety their Lordships in the peculiar facts observed that the insurance company may pay the entire compensation as awarded by Tribunal and High Court but they will have the right to recover the amount over and above Rs. 50,000 from the owner/driver of the vehicle by filing a suit. This decision, therefore, turns on its fact and in fact hold in favour of company that their liability is not unlimited but limited to the amount so specified in Section 95(2)(b).
14. Accordingly and in view of aforesaid discussion, the appeal filed by the owner (i.e., M.A. No. 696 of 1995) stands dismissed whereas the appeal filed by the claimant is partly allowed. The compensation is enhanced to Rs. 3,00,000 with interest at the rate of 9 per cent from the date of application till realisation. However, the liability of insurance company, i.e., respondent No. 3 shall be same, i.e., restricted to Rs. 15,000 together with interest at the rate awarded by Tribunal. The enhanced compensation will be recoverable only from and against the respondent Nos. 1 and 2, i.e., owner and driver jointly and severally.