Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Ramchandra And Ors. on 21 July, 1988
Equivalent citations: 1990ACJ206
JUDGMENT P.D. Mulye, J.
1. This judgment shall govern the disposal of M.A No. 202 of 1984 (Sashikumar v. Ambaram), as also M.A No. 204 of 1984 (Ramchandra v. Ambaram), as all these appeals, though filed separately, are directed against the same award dated 21st January, 1984 given by the Second Additional Member, Motor Accidents Claims Tribunal, Indore in Claim Case No. 21 of 1982.
2. Misc. Appeal No. 119 of 1984 has been filed by the New India Assurance Co. Ltd. and the driver Ramlal, against the award of Rs. 55,900/- passed in favour of claimant Ramchandra and Rs. 1,300/- in favour of claimant Sashikumar along with costs and interest at the rate of 9 per cent per annum.
3. Misc. Appeal No. 204 of 1984 has been filed by the claimant Ramchandra for the enhancement of compensation to the tune of Rs. 1,50,000/-.
4. Misc. Appeal No. 202 of 1984 filed by claimant Sashikumar is for enhancement of compensation to the tune of Rs. 30,000/-.
5. The facts giving rise to these appeals may be stated, in brief, thus: Ambaram Dhulji Patel is the owner of truck No. MPA 4042 of which on the relevant day of the accident, which took place on 25.11.1981, Ramlal Sobharam was the driver in the employment of Ambaram Patel. The said truck was insured with the New India Assurance Co. Ltd.
6. Claimant Sashikumar is the owner of scooter No. MPO 4763.
7. On 25.11.1981 at about 4 or 4.30 p.m. claimants Ramchandra and Sashikumar were returning from Dewas to Indore by the said scooter which was being driven by claimant Sashikumar on the pillion of which was sitting claimant Ramchandra, who was then working as an Additional District and Sessions Judge. According to the claimants, though the scooter was being driven slowly and cautiously, the driver of the said truck Ramlal drove his truck from the Kumar Pipliya Road on the Dewas-Indore Highway in such a rash and negligent manner that the said truck dashed against the back portion of the scooter from the side of the cleaner, on account of which claimant Ramchandra received injuries of serious nature on his leg and other parts of the body and claimant Sashikumar was thrown away at a distance on the road. Injured Ramchandra was shifted to M.Y. Hospital where on being X-rayed, compound fracture of tibia and fibula of the left leg of claimant Ramchandra along with external bleeding injuries were found. The said claimant Ramchandra was kept in the said hospital from 25.11.1981 to 3.12.1981, whereafter from 3.12.1981 to 6.12.1981 he was shifted to Indore Hospital, Indore.
8 As there was no improvement in the condition of claimant Ramchandra, from 7.1.1982 he started taking the treatment of Dr. Dilip Motiwale, AW 6. From 15.1.1982 till 29.1.1982 claimant Ramchandra was again kept in Babulal Fatehchand Seth Hospital, where the said Dr. Motiwale operated the fractured leg, nailed and plastered, in which condition the claimant Ramchandra remained for a month. However, the claimant complained of pain in the said fractured leg on 26.2.1982 and 16.3.1982 on which date he was again examined by Dr. Motiwale, who, on finding that the fractured bone had not united properly, shifted claimant Ramchandra on 18.3.1982 to the Yesh Hospital where on 19.3.1982 Dr. Motiwale performed another operation whereby he transplanted a portion of the hip-bone and plated it on account of which the claimant had to remain in plaster for 1 1/2 months, during which period he was kept in the said hospital.
9. Further according to the claimant Ramchandra, on account of the said accident he had to remain in bed, suffered physical pain and mental agony and the nature of injury has been such that there has been permanent disability in his left leg on account of which he finds great difficulty in getting up and walking. Further according to the said claimant, because of the said serious injuries sustained by him in the said accident, on 27.11.1981 he could not join the post of Addl. District Judge at Alirajpur where he was posted on promotion and thus was deprived of increment of Rs. 300/-. The said claimant, therefore, put up a claim for Rs. 1,50,000/- by way of compensation, the details of which are given in para 7 of the claimant's petition.
10. Similarly the claimant Sashikumar has also put up a claim for Rs. 30,000/-.
11. The owner and driver of the said truck along with the insurance company filed a joint written statement wherein they did not deny the factum of accident, but according to them the truck driver was not responsible for the said accident, but it was the scooter driver who came in suddenly while driving the scooter in a rash and negligent manner and dashed against the said truck at its back side. Therefore, they denied the claimant's claim in toto.
12. The learned Member of the Tribunal, on the basis of the pleadings of the parties, framed issues and on evidence found that the accident occurred because of rash and negligent driving of the truck by its driver. He also found that the scooter was being driven carefully at a moderate speed by claimant Sashikumar at the time of accident and that claimant Ramchandra was sitting on the pillion of the scooter. He negatived the contention of the opponents that claimant Sashikumar at the time of accident was drunk and was responsible for the said accident. The learned Member also found that the scooter driver could not be held liable for contributory negligence. He also found that claimant Sashikumar had a valid driving licence. He also found that the maximum liability of the insurance company did not exceed Rs. 50,000/-. He, therefore, thought it just and proper to award a total compensation of Rs. 55,900/- plus costs and interest in favour of claimant Ramchandra and Rs. 1,300/- in favour of claimant Sashikumar with costs and interest, out of which the liability of the insurance company in respect of claimant Ramchandra was Rs. 48,900/- and Rs. 1,100/- so far as claimant Sashikumar is concerned. Hence these appeals.
13. The claimants, in support of their contentions, apart from examining themselves, Sashikumar as AW 3 and Ramchandra as AW 5, have examined AW 1 Parasram to prove how the accident occurred. They examined AW 4 Dr. Swaroop Jain, AW 6 Dr. Dilip Motiwale and AW 8 Dr. Alok Verma, to prove the nature of injuries sustained by claimant Ramchandra, in the said accident.
14. On the other hand, the opponents have examined the truck driver Ramlal as NAW 1 and Ramesh as NAW 2 as also Dr. D.K. Taneja, NAW 3 who had examined the claimant Ramchandra on 8.8.1983, who was then aged 56 years.
15. The learned counsel for the claimants mainly contended that considering the nature of injuries sustained by claimant Ramchandra, the learned Member of the Tribunal has not properly considered and appreciated the medical evidence and has further erred in not awarding the compensation as claimed by the claimants. The learned counsel further submitted that the interest awarded at 9 per cent is low which should have been at the rate of 12 per cent per annum, as has been held by the Supreme Court. It was further submitted that the learned Member of the Tribunal has erred in apportioning the compensation out of the amount of Rs. 50,000/-, to which extent the insurance company has been held liable. The learned counsel for the claimants, therefore, after taking us through the evidence, submitted that they are entitled to the compensation as claimed by them. The learned counsel also supported the finding of the Tribunal that the accident occurred because of the rash and negligent driving of the truck by the truck driver and not of the scooter driver. The learned counsel further submitted that considering the terms and conditions of the insurance policy, the liability of the insurance company being unlimited, the learned Member of the Tribunal has erred in restricting the same to Rs. 50,000/- only. Therefore, according to the learned counsel for the claimants, all the opponents ought to have been held jointly and severally liable for the entire amount of compensation as claimed.
16. The opponents in support of their contention submitted that the truck driver was not at fault at all, but it was the scooter driver who was responsible for the said accident as according to the learned counsel, there being no spot map, the oral evidence placed on record would clearly indicate that the scooter driver dashed against the said truck on the back from the cleaner's side and, therefore, there was contributory negligence on the part of the scooter driver. Placing reliance on a number of decisions the learned counsel also urged that in fact the compensation awarded is quite heavy and deserves to be reduced substantially. He, therefore, attacked and criticised the award on the points decided by the Tribunal against them. The learned counsel further submitted that claimant Sashikumar having not suffered any injury as such at all, in no case he is entitled for any enhancement beyond Rs. 1,300/- as awarded by the Tribunal. The learned counsel further submitted that on the basis of the award, the amount having been deposited by the appellants and thereafter also withdrawn by the claimants, now they are not entitled to claim interest at the enhanced rate, i.e., beyond 9 per cent, which is already awarded.
17. As regards the question as to whether the accident occurred because of the rash and negligent driving of the truck by the truck driver or that the claimant Sashikumar, the scooter driver, was responsible for contributory negligence, after hearing the learned counsel and after considering the evidence adduced by the parties on this point, we see no valid ground to differ from the view taken and conclusion reached by the learned Member of the Tribunal, which is based on a proper consideration and appreciation of evidence and material on record.
18. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or 'tells its own story'. It is a principle which in reality belongs to the law of Torts and is not applicable to a criminal prosecution. The application of doctrine of res ipsa loquitur depends upon the nature of the accident and the surrounding circumstances. Where there is evidence to show as to how the accident happened, there the question of applying the rule of res ipsa loquitur does not arise.
19. In an action for negligence, the legal burden of proof rests on the claimants. But barring exceptional cases, it may not be possible for the claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. This hardship to the claimant can be avoided by the application of the maxim 'res ipsa loquitur' which is not a principle of liability but a rule of evidence. The principle is that there are certain happenings which do not occur normally, unless there is negligence. Therefore, in the case of such happenings, the claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident. Having regard to the local conditions prevailing in this country, when res ipsa loquitur is attracted it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident. The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible of the accident. Where the principle of res ipsa loquitur is attracted the burden shifts to the respondent and the initial burden has to be on the driver/owner to prove that he had not been negligent. When a prima facie case of negligence of the driver has been established under the doctrine of res ipsa loquitur, it is incumbent on the part of the driver of the offending vehicle not merely to say that he had acted carefully but to rebut that presumption by proving that there was no negligence on his part, even though he could not prove how the accident happened.
20. In the present case the accident had occurred in broad daylight. Admittedly the claimants were coming from Dewas and proceeding to Indore on the highway, i.e., Bombay-Agra Road. Undisputedly the truck in question was coming to the main road from a side road and, therefore, it was the duty of the truck driver to see if there was any vehicle on the main road and drive his vehicle in such a cautious manner that there is no chance of any accident. Therefore, in the present case after considering the evidence on this point we are satisfied that the accident occurred because of the rash and negligent driving of the truck by the truck driver and that the claimants cannot be held responsible for contributory negligence.
21. As regards the appeal filed by the claimant Sashikumar (M.A No. 202 of 1984) for enhancement of compensation, admittedly the said claimant Sashikumar did not receive any serious injury as is clear from his testimony and that of Dr. Alok Verma, AW 8, C.M.O., M.Y. Hospital, Indore, who found one abrasion superficial on right thumb caused by a hard and blunt object, which was simple in nature. He has not led any other evidence to prove that he is entitled for a larger amount as compensation. In these circumstances the compensation awarded to this claimant by the Tribunal being just, proper and reasonable does not call for any interference.
22. So far as the appeal filed by the claimant Ramchandra for enhancement of compensation (M.A No. 204 of 1984) is concerned, admittedly in the said accident the said claimant had received injuries to his leg which resulted in fracture. The said claimant who has been examined as AW 5 in his detailed statement which has been properly considered by the learned Member of the Tribunal, has stated how the accident happened, what was the nature of injuries received by him and the period which he had to spend in undergoing the treatment as also the operations, which he had to undergo twice. He has also given the necessary details regarding the pain and suffering he had to undergo not only during the period of confinement till he completely recovered, but even now he has to suffer physically as his leg is shortened. It is also in his testimony that he had to remain on leave for a period of about 8 months on account of this accident. His testimony is supported by documentary evidence regarding the expenses incurred by him in the treatment and it is also proved from his evidence that the members of his family used to attend to him during all that period of his confinement. Nothing substantial has been brought out in his cross-examination to disprove the averments made by him.
23. So far as the medical treatment is concerned, the said claimant has examined AW4 Dr. Swaroop Jain, C.M.O., M.Y. Hospital, Indore and AW 6 Dr. Dilip Motiwale, who treated him and operated upon him on his leg and has estimated the disability at 30 per cent which, according to him, is a permanent disability. In addition to this medical evidence the said claimant was also examined on 8.8.1983 by NAW 3 Dr. D.K. Taneja, Orthopaedic Surgeon at the M.Y. Hospital who has also deposed that the disability suffered by the said claimant on account of the said accident was to the tune of 18 per cent and was also of a permanent nature.
24. Thus, after considering the evidence of the said claimant regarding the quantum of compensation claimed by him at the enhanced rate, we are of opinion that the compensation awarded by the Tribunal to the said claimant amounting to Rs. 55,900/- being just, proper and reasonable does not call for any further interference, though the learned counsel for the said claimant-appellant placed reliance on certain decisions on this point. But every case has to be determined on the facts of that case.
25. At this stage we may point out that the learned counsel for the insurance company and the driver of the truck, by placing reliance on a number of decisions, also submitted that in similar cases the compensation awarded by various High Courts has varied between Rs. 15,000/- and Rs. 50,000/-. They, therefore, submitted that the compensation awarded to the said claimant-appellant Ramchandra is heavy and deserves to be reduced. However, as stated earlier, in such type of cases involving motor vehicle accidents, some guesswork has to be made as the decision in all such cases always depends on the facts of each particular case. Thus, after carefully going through all those authorities we are of opinion that no case is made out to reduce the quantum of compensation already awarded by the learned Member of the Tribunal as the learned counsel for the appellant insurance company was unable to persuade us to interfere with the finding of the learned Member of the Tribunal on this point on the ground that the same is excessive or inflated.
26. This brings us to the next question regarding the liability of the insurance company for the entire amount awarded by the Tribunal. The learned counsel for the appellant insurance company by placing reliance on the Supreme Court decisions reported in M.K. Kunhimohammed v. PA. Ahmedkutty, 1987 ACJ 872 (SC), National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC) and placing reliance on the terms and conditions of the insurance policy, Exh. D-l, submitted that the maximum liability of the insurance company in respect of each injured person in the same accident does not extend beyond Rs. 50,000/- as no such extra premium was received by the insurance company on the basis of which it could be assumed that the insurance company had accepted unlimited liability. But on this point the insurance company had not led any other evidence nor any person from the insurance company has been examined. Therefore, the burden lay upon the insurance company to prove that by the said insurance policy, its liability was limited to the tune of Rs. 50,000/-only in respect of each and every person involved in the said accident as the learned counsel for the appellant insurance company did not dispute this fact that in view of the earlier Supreme Court decisions in such cases the minimum liability of the insurance company in respect of each injured person is to the tune of Rs. 50,000/-, i.e., the maximum, unless the said policy is strictly issued in terms of Section 95 of the Motor Vehicles Act, which is included in Chapter VIII of the said Act.
27. Under the law of Torts, the owner of a motor vehicle is no doubt not liable to pay compensation to any third party who suffers an injury on account of the negligence of the employee of an independent contractor, who has taken the vehicle from the owner for his own (independent contractor's) use. But the question in the present case has to be resolved in the light of the provisions of the Motor Vehicles Act.
28. The material part of Section 94 (1) of the Act reads thus:
94. Necessity for insurance against third party risk.(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.
The above provision requires every person who uses the motor vehicle in a public place, except as a passenger, to take out a policy of insurance complying with the requirements of Chapter VIII of the said Act. It also requires a person who causes or allows any other person to use his motor vehicle in a public place, to take out policy of insurance complying with the requirements of Chapter VIII of the Act, unless there is in force a policy of insurance in relation to the use of the vehicle by that other person as required by Chapter VIII of the Act.
29. Section 95 of the Motor Vehicles Act states the requirements of such policies and limits of liability. The relevant portion of Section 95 of the Act reads thus:
95. Requirements of policies and limits of liability.(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under Section 108 to transact the business of an insurer, and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
30. The portion of Section 95 of the Act extracted above requires every person who is the owner of a motor vehicle to take out a policy against any liability which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, from an authorised insurer or a co-operative society allowed under Section 108 of the Act to transact the business of an insurer. Under Section 95 (2) of the Act in the case of motor vehicles other than those referred to in Clause (a) or (b) of Section 95 (2), the policy of insurance should cover the amount of liability incurred. Thus, if a policy is taken in respect of a motor vehicle from an insurer in compliance with the requirement of Chapter VIII of the Act the insurer is under an obligation to pay the compensation payable to a third party on account of any injury to his/her person or property or payable to the legal representative of the deceased party in case of death of the third party caused by or arising out of the use of the vehicle at a public place. The liability to pay compensation in respect of death of or injury caused to the person or property of a third party undoubtedly arises when such injury is caused while the insured is using the vehicle in a public place. It also arises when the insured has caused or allowed any other person (including an independent contractor) to use his vehicle in a public place and the death of or injury to the person or property of a third party is caused on account of the use of the said vehicle during such period unless such other person has himself taken out an insurance policy to cover the liability arising out of such accident.
31. In the present case a bare reading of the terms and conditions of the insurance policy indicates that the same is not restricted to the tune mentioned in Section 95 of the said Act and the policy is not an 'Act policy'. From the tariff shown by the learned counsel for the appellant insurance company, which we had requested the learned counsel for the appellant insurance company to produce, it appears that the normal insurance premium under Section 95 was Rs. 86/- and for the unlimited liability beyond Rs. 50,000/- it was Rs. 125/-, i.e., Rs. 39/- more. In the present case it is clear that the insurance premium paid and received was Rs. 125/-. Therefore, we are of opinion that in the present case according to the terms of the insurance policy the liability of the insurance company cannot be said to be restricted to Rs. 50,000/- only.
32. Therefore, we see much force in the submission made by the learned counsel for the claimant-appellant that for the entire amount of Rs. 55,900/- awarded to claimant Ramchandra and Rs. 1,300/- awarded to claimant Sashikumar, plus costs and interest, apart from the owner and driver of the truck, the insurance company is also jointly and severally liable. Thus, we find that the learned Member of the Tribunal has committed an error in fixing the liability of the insurance company to a total amount of Rs. 50,000/-only and has further erred that out of the amount of Rs. 50,000/- the insurance company shall pay Rs. 48,900/- to appellant Ramchandra and Rs. 1,100/- to appellant Sashikumar.
33. Therefore, the appeal filed by claimant Ramchandra succeeds partly and it is, therefore, ordered that along with the owner anddriver of the truck the insurance company is also jointly and severally held liable to pay the entire compensation of Rs. 55,900/- plus costs and interest at the rate of 12 per cent per annum to claimant Ramchandra and also liable to pay Rs. 1,300/- plus costs and interest at the rate of 12 per cent per annum to claimant-appellant Sashikumar from the date of the filing of the application till payment.
34. In the result the appeal filed by the insurance company (MA No. 119 of 1984) and the appeal filed by appellant-claimant Sashikumar (MA No. 202 of 1984) are dismissed with no order as to costs.
35. However, the appeal filed by appellant Ramchandra (MA No. 204 of 1984) is allowed to the extent as indicated above with no order as to costs.
36. All the appeals are disposed of accordingly.