Rajasthan High Court - Jaipur
Radha Devi And Ors. vs Rajendra Singh And Ors. on 15 February, 2006
Equivalent citations: III(2006)ACC348
JUDGMENT K.C. Sharma, J.
1. Through this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellants seek to modify the award dated 31.1.1994 passed by the Motor Accident Claims Tribunal, Jaipur, by which the learned Tribunal has awarded compensation to the tune of Rs. 80,000 out of the total claim of Rs. 9,57,800 as claimed by the claimants.
2. In the early morning i.e., at 4.00 a.m. on 8.4.1986, deceased Gopi Lal was passing through Sansar Chandra Road in Truck No. RJY3073 and when he had just crossed the circle near Government Hostel at M.I. Road, a mini bus No. RNE 6518 being driven rashly and negligently by its driver, coming from Ajmeri Gate and going towards Railway Station dashed the front left side of the truck, as a result of which the truck over turned and driver Gopi Lal died.
3. The learned Tribunal having concluded that the accident took place on account of negligence of drivers of both the vehicles has awarded compensation to the claimants. The liability of the Insurance Company has also been limited to the extent mentioned in the award.
4. Learned Counsel appearing for the claimants has strenuously contended that the accident occurred solely due to the rash and negligent driving of driver of mini bus. I am not convinced with this argument. Undisputedly, the accident took place in the early morning, even prior to sun rise, when the roads often remain almost vacant and only countable vehicles pass through the roads at this time. Further, the place where accident occurred was the crossing. The truck which was being driven by Gopilal deceased was coming from the side of Sansar Chandra Road and the mini bus was coming from the side of Ajmer gate. When the truck had just crossed the circle near Government Hostel, the mini bus while going towards Railway Station hit the left front of the truck. In this view of the matter, both the drivers had a duty to be careful while crossing the circle. I am of the firm view that both the drivers transgressed the limits of necessary caution and that occasioned the accident. I, therefore, affirm the finding of the Tribunal that the accident occurred due to rashness and negligence of drivers of both the drivers.
5. The second ground of challenge is that the Tribunal has erred in fixing the liability of the respondent Insurance Company to the extent of Rs. 50,000 by finding it to be the statutory liability fixed under the Act of 1939. According to the learned Counsel the liability of the Insurance Company was unlimited and, therefore, the Insurance Company was liable to meet out all third party liability claims.
6. I have given my anxious consideration to the above submission. In National Insurance Company Ltd. v. Kesha Bahadur and Ors. , Their Lordships of the Apex court took note of the fact that a sum of Rs. 240 was being paid as the third party insurance premium and quoted the limits of liability as contained in the policy, in the following terms:
Limits of liability:
(a) Limit of the amount of the Company's liability under Section II-1(i) in respect of any one accident.
Such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.
(b) Limit of amount of the Company's Liability under Section II-1(ii) in respect of any one claim or series of claims arising out of the one event: Rs. 50,000.
The Apex Court further noticed that in the schedule of premium under the heading-B "Liability of Public Risk" it was indicated to be Rs. 240 and, therefore, when extra premium was not paid, for any enhanced liability, the statutorily fixed liability of Rs. 50,000 was the maximum that could have been awarded and nothing beyond it. In these circumstances, Their Lordships of the Supreme Court held as under:
The liability of the insurer is limited as indicated in Section 95 of the Motor Vehicles Act. But it is open to the insured to make payment of additional higher premium and for insurer to accept higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy, and proof of payment of additional premium the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability.
7. The Apex Court further held that even if a vehicle is the subject matter of comprehensive insurance and a higher premium is paid on that score, limits of the liability with regard to third party risk does not become unlimited or higher beyond the statutory liability fixed. For this purpose; a specific agreement has to be arrived at between the insured and the insurer and separate premium has to be paid in respect of additional amount of liability undertaken by the insurer in that regard.
8. The present case is squarely covered by the above decision of the Apex Court, inasmuch as, in the case at hand the limits of liability as contained in the Policy, Ex. A-II are exactly similar as that of the limits of liability contained in the policy in Kesha Bahadur's case (supra). In the instant case, a glance at the insurance policy, Ex. A-II makes it evidently clear that premium of Rs. 240 was paid under the heading 'liability to public' risk and no separate premium was being paid in respect of additional amount of liability to be undertaken by the insurer in that regard. Further there was no such specific agreement to make the insurer's liability unlimited or higher than the statutory liability. It is further evident that the insurer was not taking any higher liability by accepting higher premium for payment of compensation to third party and, therefore, the insurer would be liable to the extent limited under Section 95(2) of the Act and would not be liable to pay the entire amount of compensation awarded. Thus, the inevitable conclusion on the factual background is that the liability of the insurer is limited to Rs. 50,000 and the Tribunal was justified in limiting the liability of the insurer.
9. The third ground of challenge to the award is that the learned Tribunal has grossly erred in applying the multiplier of 12 in awarding compensation as against loss of income of deceased which he could have contributed, had he alive. It was argued that age of the deceased at the relevant time was 40 years and the Tribunal should have applied the multiplier of 16.
10. I find force in the submission of the learned Counsel. There cannot be any dispute that the age of the deceased at the time of accident was 40 years and, therefore, as per the schedule attached to the Motor Vehicles Act, the multiplier to applied would be 16. The Tribunal has assessed the net income of the deceased at Rs. 1,000 per month which he could have contributed to his dependents. If the multiplier of 16 is applied, the amount of compensation comes to Rs. 1,92,000 i.e., (1000 x 12 x 16). Since it has been held that accident occurred due to contributory negligence of deceased and the driver of mini bus, therefore, after deducting 50% of the amount of compensation, the amount to be awarded to the appellants would be Rs. 96,000. Accordingly the dependents would be entitled to the award of Rs. 96,000 as against loss of income.
11. It appears that the Tribunal has not awarded any amount as against loss of love and affection. Taking into account the fact that the deceased left behind his wife, mother and 8 sons and daughters, in all 10 dependents, I feel that ends of justice would be met if Rs. 45,000 (Rs. 5,000 for each dependent, except wife) is awarded to the appellants. The amount of Rs. 15,000 as has been awarded as against loss of consortium appears to be reasonable and is kept intact.
12. In view of above, the appellant claimants are entitled for the award of Rs. 96,000 as against loss of income, Rs. 15,000 as against loss of consortium and Rs. 45,000 as against loss of love and affection, totalling to Rs. 1,56,000. The appellants shall be entitled to get interest on the enhanced amount of Rs. 76,000 at the rate of 6% with effect from the date of filing of claim petition, till realisation.
13. Consequently, the award of the Tribunal under challenge is modified to the extent indicated above and the appeal stands partly allowed with no order as to costs. Since the liability of the Insurance Company has been limited to the extent of Rs. 50,000 only, the claimants shall be entitled to receive the aforesaid enhanced amount along with interest from the owner and driver of the mini bus involved in the accident.