Madras High Court
New India Assurance Company Limited vs Kuppuswami Naidu And Ors. on 24 August, 1987
Equivalent citations: 2(1988)ACC311
JUDGMENT Swamikkannu, J.
1. On looking into the policy which is now marked as Ex. A-4 in this case, it is seen that the risk for which the compensation is claimed for, is not covered. It is only a third party risk that is contemplated as the subject' matter of the insurance. The relevant portion of the policy reads as follows:
Section II--Liability to Third Parties...(a) death of or bodily injury to any person but except so far as it necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured and excluding liability to any person being conveyed in or on the Motor Cycle unless such person is being conveyed by reason of or in pursuance of a contract of employment.
2. In this regard, Mr. R. David, learned Counsel for the appellant refers to the decision in K. Gopalakrishnan v. Sankaranarayan 1969 ACJ 34 and M. Muthu Krishna v. Brinda 1982 Sup. ACJ 428, for the proposition that the policy should cover the risk and unless there is any coverage available in the contents of the policy, then the Insurance Company is not liable. In the instant case, it is seen that it was only the pillion rider who died during the accident. He is not a third party. Furthermore, it is relevant to note that in the instant case, it is the motor cycle belonging to the 2nd respondent/4th respondent herein that was driven by the first respondent/third respondent herein and that the deceased Devarajan was sitting on the pillion of the motor cycle. Under the circumstances we find that his dependants or his legal representatives cannot claim any compensation from the Insurance Company since Ex. A-1 does not cover the risk that had actually occurred in the instant case. As already stated the pillion rider cannot be considered as one coming under the terms of third party. If The third party on the road is not a person who is accompanying in the vehicle as a pillion rider. Further in the instant case, it is significant to note that it is the person who had borrowed the motor cycle for riding the same along with the deceased pillion rider drove the same and had indulged in the rash and negligent manner which resulted in the death of the deceased. Under the circumstances this Court finds that the Tribunal is not correct in having held that the accident had occurred solely due to the rash and negligent driving of the motor cycle by the first respondent though factually it may be correct for the determination of the responsibility of the Insurance Company which had insured the vehicle in question. As already stated, the terms third party insurance contemplates only those persons and property belonging to those persons during the time of occurrence or collision. It is only in those respects we can say that it is a third party risk and it is only that kind of risk that is covered by the third party insurance. The question that arises in this appeal is as to whether the pillion rider can claim himself to be a third party so as to facilitate the claimants herein to get the compensation at the hands of the Insurance Company which had insured the vehicle?
3. First of all, in the instant case, the vehicle was not driven by the owner of the vehicle. Of course a question may arise as to what would be the effect when the vehicle had been given to the other so as to be driven, after all the vehicle is confined to be driven only by the owner of the same. This is a very interesting question. Sometimes, a Public Corporation or a company can own a vehicle. If the same is utilised by a private individual on the same being handed over to the person who was driving at the relevant point of time when no such handing over of the vehicle to the third party by the office of the company had been contemplated under any such circumstances, can the Insurance company be made liable as and when any accident takes place while it is being driven by that person in whose favour the vehicle had been handed over temporarily, certainly, the Insurance Company cannot he held liable. Such kind of unauthorised handing over is not contemplated by the policy of the Insurance Company even covering the third party risk because the contract of the insurance covering the third party risk also attracts Uberrima Fides. Under these circumstances, on the scrutiny of the evidence in this case, the Court comes to the irresistable conclusion that the Insurance Company herein is not liable for the death of the deceased-pillion rider since the vehicle in question, namely, motor cycle was driven by an unauthorised person, though might have been given possession of that vehicle by the owner of the same who is a party to the contract, the insurance policy Ex. Al in the instant case before us.
4. Mr. Indrasenan, learned Counsel for the 4th respondent, owner of the motor cycle submits that it is not the intention of the owner of the motor cycle to be used by the person who drove the vehicle during the time of the accident to have a pillion rider on the pillion and it was never contemplated and the evidence does not disclose that there was any such kind of contemplation on the part of the owner of the vehicle that the rider would be taking a pillion rider during the time he was using the vehicle. But on the basis of some urgency, the vehicle should have been handed over to the rider of the vehicle. Kannaiyan alias Mahadevan has been examined as RW 1. RW 2 L. Jagadesan has only stated that the claimant was not doing milk business. Even though in the counter filed by the third respondent, it is contended that the vehicle in question was not insured with it at the time of the accident, counsel for the third respondent insurance company did not challenge the evidence of R.W 1 referring to that aspect before the tribunal. The third respondent/appellant herein has also not examined any witness on its side. It is that third respondent Insurance company is the appellant before this Court. It is on their application Ex. A-4 policy has been marked now at the stage of appeal. Before the Tribunal, the third respondent/appellant herein filed a counter stating that it is an unnecessary party to the petition and that petition is also bad for want of notice under Section 80, C.P.C. All these contentions had been properly dealt with by the Tribunal and it was held that the third respondent/appellant herein is a necessary party to the application. This Court has now come to the conclusion that the Insurance Company/third respondent/appellant herein is not liable on the basis of the contents of Ex. A-4 with a particular reference to Clause (a) of the said policy holding that it was not under the contemplation of Ex. Al that the vehicle could be handed over to a third person for being driven and that person could also take a pillion rider. On a comprehensive scrutiny of the entire evidence available on record together with the contents of Ex. A-1 contract of Insurance Policy, the only conclusion that can be arrived at is that the Insurance company is not liable. But the finding of the Tribunal that there was a rash and negligent driving of the vehicle, cannot be disputed. Motor Vehicles Act is an independent enactment which also incidentally deals with the question of liability of the parties. Sections 94 and 95 of the Act are the relevant Sections which deal about these relationships and the liabilities between the rider or a driver of a vehicle and the persons who are being actually taken in that vehicle as passengers or as pillion rider, and their responsibilities. In the instant case, it has been repeatedly mentioned that the motor cycle would have been driven in a rash and negligent manner by the person to whom it has been entrusted by the owner who had insured the vehicle and the owners/would not have contemplated that the rider would take a person on the pillion though there is a seat in the pillion attached to the vehicle. It is not as if that in all cases by the riding of the vehicle, a pillion rider accompanying the rider is necessary. Though we find the entire family consisting of wife, children as well as the head of the family taking scooter in a jolly drive, it is against the law. Not more than two persons can be travelled i.e. the rider and the pillion rider. That itself is unsafe. Only one person should ride the two wheeler so that he can have full control of the vehicle The pillion is needed only in cases of emergency, namely, for taking a doctor or a compounder to cure a person from the jaws of death. In such circumstances, the pillion can be used, for taking another person. In other cases, taking a person in the pillion of a motor cycle or scooter which may even be driven at a speed of 60 to 70 miles per hour, is dangerous. What is more, if a rider of the motor cycle or a scooter who is just engaged in conversation with the pillion rider while riding the same will certainly get into trouble especially when he has got a number of obstructions in the road, and in their conversation, they may lose the grip of the road. In other words, the responsibility which the driver of a vehicle has, is something to be stressed as very important especially in a main road having full of cross roads. Once upon a time, there were side car wherein the members of the family can be taken in that side car that is attached Side cars, as a matter of routine will certainly cause accident since the existence of the same may be forgotten. It is not as if that can be compared with cycle rickshaw driver where there are also three wheels. Similarly, there are vehicles which are known as tempos. All these vehicles are nothing but a source of danger to the pedestrian as well as to the persons who are travelling in those vehicles. It is a daily occurrence that Auto rikshaws are being driven even in between two buses at a very high speed at Kamaraj Road, namely the Beach Road which extends from Santhome to Reserve Bank of India. This Court observes the above few lines by way of Obiter dicta since the acts of the instant case has given the source of materials for the above observation.
5. Dealing with the responsibility and the liability of paying the compensation for the death of the pillion rider, this Court is obliged to discuss the evidence available on record. In order to prove the case that the accident had occurred solely due to the rash and negligent driving of the motor cycle belonging to the second respondent/4th respondent herein by the first respondent third respondent herein; the petitioners on their part examined two witnesses of whom PW 2Gajjura Mandiri is a native of Chinnakuppam, a nearby village while PW 3 Munuswamy Naidu is a native of Mekpudur another neighbouring village of the petitioners. PWs 2 and 3 deposed to the effect that at about 5.30 p.m. on that day when the motor cycle was proceeding towards east they saw the deceased Devarajan travelling on the pillion of the motor cycle driven by the first respondent/third respondent herein. Both of them stated that when the motor cycle was negotiating a curve the motor cycle came towards the southern edge of the road and dashed against a stone planted on the southern edge of the road as a result of which Devarajan, the pillion rider sustained fatal injuries on is head. It is common ground that the deceased Devarajan sustained injuries only on account of the motor cycle hitting against the stone planted on the southern edge of the road. The first respondent/third respondent herein who examined himself as RW 1 would deny that there was any negligence on his part. He would say that just at the time when he was trying to negotiate the curve towards north, a lorry came in the opposite direction and when he swerved the motor cycle towards south to avoid a headlong collision with the lorry, the motor cycle went towards the southern side of the road and dashed against a stone. RW 1 would therefore claim that there was absolutely no negligence on his part in driving the motor cycle at the relevant time. The defence putforward by the respondents, the third respondent being the appellant and the 1st and 2nd respondents being the third and 4th respondents herein, that there was absolutely no negligence on the part of the first respondent/third respondent herein cannot be accepted as it is a case where PWs 2 and 3 who were proceeding in the opposite direction i.e. towards wast at the time of the accident, stoutly denied the presence of any lorry in the place of accident. Even if we assume that a lorry came in the opposite direction that will not absolve the liability of the first respondent/third respondent herein as from what RW 1 himself stated in the box we find that the place of the accident is a bidden corner where the on coming vehicles in the opposite direction would not be seen by RW 1 himself. The very fact that on seeing the lorry coming in the opposite direction RW 1 approached the curve at a high speed without having any regard to the traffic rules and regulations itself shows that he was rash and negligent. A careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, the one and the only conclusion that can be arrived at is that if only RW1 had been a bit diligent and careful in driving the motor cycle while negotiating the curve, such an unfortunate accident would not have happened. In the above circumstances, this Court confirms the findings of the Tribunal that the accident had taken place solely due to the rash and negligent driving of the vehicle by the third respondent herein while driving the motor cycle belonging to Sundararajulu Naidu, the 4th respondent herein. It is this 4tb respondent herein who bad entered into Ex. A1 contract of insurance with the appellant herein.
6. Now let us discuss the quantum of compensation to be paid to the claimants petitioners 1 and 2 respondents 1 and 2 herein and by whom. The petitioners have now claimed a sum of Rs 30,000/- as compensation on the allegation that at the time when tae accident had occurred, the deceased Devarajan was earning a monthly income of Rs. 500/- as a milk vendor. The first petitioner who examined himself as PW 1 stated that the deceased Devarajan used to collect milk from 60 or 70 persons in the village for the purpose of selling the same in Vellore Town It is also seen from the evidence of PW 1 that he is owning four acres of land. The deceased would have certainly helped his father in carrying on his cultivation work. One can reasonably expect the deceased Devarajan to earn a daily wage of Rs. 5 as it is not very difficult for a young man of 18 years to earn a sum of Rs. 5 a day. It is therefore just and proper where estimating the monthly income of the deceased Devarajan at Rs. 150 is quite reasonable. The deceased Devarajan would have certainly helped his parents by contributing a sum of Rs. 100 a month. Since it is a case where the deceased Devarajan was only a young man of 18 years one can expect him to contribute his earnings to his parents till be gets married. In the present case PW 1 stated that he intended to get his son married in his 25th year and so he would have certainly contributed his entire earnings to his parents till he gets married. The contribution that the deceased Devarajan would have made to his parents in the next 7 years i.e till he gets married, therefore works out Rs 8400/-. The subsequent period of his life is not very much taken into account in the instant case because, a duty is always cast on the husband to protect his wife even by doing thousands of misdeeds. In English Law it is an offence if the husband fails to maintain his wife. But so far as the Indian Law is concerned, the provisions of the Hindu Marriage Act as well as the Hindu Adoption and Maintenance Act would say that the maintenance of the wife by the husband is one which is first and the foremost duty of the husband. In the circumstances, even if he evinces very much interest in protecting his parents, the husband is duty-bound, as a first charge of his income, to see to it that his wife is placed in a comfortable position especially when she has come out of some other family and gets herself imbedded in the new family of her husband.
7. After his marriage, no one can expect the deceased Devarajan to contribute his entire earnings to his parents as the burden of maintaining his own wife and children would fall upon him. However, having regard to the fact that he is the eldest son in the family the possibility of the deceased Devarajan supporting his father and mother who are aged 42 and 35 respectively on the date of the accident for another 25 years is not too remote. One can normally expect the deceased Devarajan to support hia parents for another 18 years after his marriage by contributing a sum of Rs. 50/- a month. The annual contribution that he would have made to his parents after his marriage would therefore works out to Rs. 600/-. The contribution that the deceased Devarajan would have made to his parents for another 18 years after his marriage therefore works out to Rs. 10,800/-. The total contribution that the deceased would have made to his parents during the next 25 years i.e before and after his marriage therefore works out to Rs. 19,200/-(Rupees 8400/- plus Rs. 10,800/-). Taking into account the uncertainty of life and the lurnpsum payment, the Tribunal has deducted a sum of Rs. 3,200/- and fixed the compensation payable to the petitioners at Rs. 16,000/-. It is quite in consonance with the acts that had been let in by way of evidence both oral and documentary. So far as the quantum is concerned in the instant case before us the compensation of Rs. 16,000/- as fixed by the Tribunal is just and reasonable.
8. Now we have to discuss as to who is responsible and who has to bear the responsibility of paying the compensation of Rs. 16,000/- to the persons who are entitled to it. I have already held in the introductory portion of the judgment that the Insurance Company is not liable because, the risk is not contemplated by the contents of Ex. A4 insurance policy which has been marked herein as additional document Now the persons who are liable are both the rider of the motor cycle as well as the person who has handed over the motor cycle and the owner of the motor cycle ought to have contemplated that it would be subjected to misuse by the person to whom it has been entrusted. Therefore, I apportion the liability of payment of Rs. 16,000/- so far as the rider, the third respondent and the fourth respondent herein is concerned equally at the rate of 50%. In other words Rs. 8,000/- has to be paid by the owner of the vehicle 4th respondent herein and another sum of Rs. 8,000/- has to be paid by the rider of the vehicle, namely, the 3rd respondent herein. Of course this Court in the appeal has held that the entire responsibility of the accident is due to rash and negligent driving of the motor cycle by the third respondent herein. But why should there at all be any responsibility to be shouldered by 4th respondent It is for this reason, namely, that the 4th respondent herein has handed over the Vehicle unathorisedly. The word 'thcrisedly', is stressed because it is by way of contemplation that when a vehicle is owned and insured, so after as insurance company is concerned, it is the third party risk, and as well as from the point of view of members of public using the road, that the owner does not hand over the vehicle to any person and he should have contemplated that it could be subjected to misuse by the person to whom it has been handed over. It may be put in this way namely, it is because the deceased who had voluntarily accompanied the third respondent herein in the motor cycle, he met with his death. It is not the answer. This aspect cannot be a sufficient explanation for completely absolving the responsibility of paying 50% of the compensation. It is very earnestly and legitimately put forward by Mr. Indra-senan that the responsibility on the owner namely, the fourth respondent herein may further be reduced in percentage, namely 25%, because he has only handed over the vehicle. I am unable to uphold his contention because the very handing over of the vehicle by the owner of the vehicle, the 4th respondent herein had led to this accident. It is further submitted that the 4th respondent should not be equated with the wrong deer, namely, the rider of the vehicle by dividing equally the responsibility. This Court is not assessing the responsibility in the manner contemplated by law or on facts of the instant case. Now viewing the case from another aspect, the evidence discloses that there had been sufficient responsibility cast on the 4th respondent not to hand over the vehicle to any one which he had insured with the Insurance Company, the appellant herein because the contract of insurance being Uberrima Fides does not contemplate handing over of the vehicle by the 4th respondent in favour of the third respondent even for a temporary period during which period this happening has happened in the instant case. Under the circumstances this Court confirms its previous observation fixing 50% of the liability on the owner of vehicle 4th respondent herein and the other 50% on the rider of the motor cycle, namely, the third respondent herein. With the above observation, the appeal is allowed as indicated above. There will be no order as to costs under the circumstances.