Patna High Court
Sardar Mohan Singh Bedi vs Manu Maya Thappa And Ors. on 23 August, 1971
Equivalent citations: AIR1972PAT270, AIR 1972 PATNA 270
JUDGMENT S. Sarwar Ali, J.
1. Dhan Bahadur Thappa was the unfortunate victim of an accident in which he lost his life. His widow Manu Maya Thapa on behalf of herself and her minor children filed an application under Section 110-A of the Motor Vehicles Act, 1939 (Act No. IV of 1939) [hereinafter referred to as 'the Act'] claiming compensation of Rs. 39,080/. The application has been allowed in part by the Motor Vehicles Accident Claims Tribunal, Singhbhum, Chaibasa and compensation to the extent of Rs. 10,000/- has been awarded. The appellant was a party to the claim case being the owner of the motor vehicle which had caused the accident. Respondent No. 4, New India Assurance Company Ltd., (hereinafter referred to as 'the Insurance Company') was also before the Tribunal being the insurer of the vehicle. In this Court the owner Sardar Mohan Singh Bedi is the appellant. A cross-objection has been filed on behalf of respondents 1 to 3, the claimants before the Claims Tribunal.
2. On 18-6-1962 as a result of an accident caused by a public carrier bearing No. 5345 owned by the appellant Sardar Mohan Singh Bedi, Dhan Bahadur Thapa was crushed to death. An application under Section 110-A of the Act was presented before the Claims Tribunal, as then constituted. In the application filed it was stated as against column No. 10 that it was not known whether the deceased was travelling by the vehicle involved in the accident The details of the accident have not been given in this application. The claim as made, as already stated, was for Rupees 39,080/-.
3. Cause was shown both by the owner of the truck as also by the Insurance Company. The owner stated that he was in no way responsible for the accident or liable to pay any damages, and that it was the Insurance Company which was, if at all, liable. In paragraph 2 of the show cause it was stated "that the deceased had no business to be in the vehicle and if he was in the vehicle he was a mere trespasser." It was further stated that the deceased was in a drunken condition and the accident had taken place due to the negligence of the deceased.
4. The insurance company apart from challenging its liability and quantum of damages as claimed specifically stated that it was not liable inasmuch as, the vehicle in question was used for carrying passengers for hire or reward though the vehicle was not covered by the permit to ply for hire or reward. It was further stated that the deceased was at the time of accident being carried as a passenger and the owner was thus acting in breach of the road permit. The Insurance company further stated in the show cause that it will rely on the various clauses of the insurance policy to negative its liability.
5. The application was filed before the Judicial Commissioner of Ranchi on 10-8-1962. Order No. 17 dated 30-7-1963 states that the case relates to Singh-bhum District and that by Government notification of 19-7-1963 the jurisdiction of the Judicial Commissioner at Ranchi had ceased over cases of other districts and that the matter should be referred to High Court. Order No. 30 dated 19-8-1964 indicates that the records were received by the District Judge, Chaibassa from the Judicial Commissioner, Ranchi for disposal. This is how, although the claim petition was filed at Ranchi, it came to be decided by the District Judge of Singhbhum.
6. Various issues were framed by the Tribunal in paragraph 6 of its order and need not be mentioned here. The Tribunal on a consideration of the materials on the record came to the conclusion (a) that the accident in which the deceased lost his life took place due to rashness and negligence of the driver of the truck; (b) that Dhan Bahadur Thapa was travelling at the time of the accident in the truck; (c) that the said Dhan Bahadur Thapa was going in the truck as a passenger for hire and reward; (d) that the liability was that of the owner and not of the Insurance Company and (e) that the claimants namely, respondents 1 to 3 in this case were entitled to Rs. 10,000/- as damages by way of compensation apart from costs.
7. The first contention raised on behalf of the appellant in this court is that the finding of the Court below that the truck was driven rashly and negligently and that the accident was as a result thereof should be set aside. It was contended that there was no direct evidence proving that the truck was being driven rashly or negligently. The tribunal had really relied on the doctrine of res ipsa loquitur which according to the learned counsel was not applicable to the facts and the circumstances of the case. He also criticised the evidence of P. K. Rudra (A. W. 3) whose evidence was accepted by the Court below. I must state at once that if is not correct to say that there is no evidence of a witness who saw the rash and negligent driving. P. K. Rudra has stated in clear terms as follows:
"I saw a truck moving at great speed from the direction of Burma mines and proceeding towards Sakehi."
This statement clearly shows that the witness himself saw the truck being driven at a great speed. The Claims Tribunal has accepted this evidence. I do not see any reason why I should also not accept this evidence and the appreciation of the oral testimony of this witness by the Court below. Arguing that the evidence of this witness should not be accepted, it was contended that the witness could not have seen the vehicle passing on the road from his house. Reliance for the purpose was placed on his statement that the place of accident was about 700 feet from the Verandah of the house of the witness, where the witness was sitting at that time. The mere fact that the distance of verandah is 700 feet from the place of accident does not mean that the witness could not have seen from that distance the truck passing at a high speed. There is no material on the basis of which it could be inferred that there were obstructions between the verandah of the house of this witness and the road through which the truck in question was passing.
8. It was next contended in the same context that the witness could not be an eye witness at all. Reliance was placed on the evidence of this witness given in the criminal court in connection with the prosecution of the driver for rash and negligent driving. The witness had stated there that he had not seen the driver and other four injured (coolies who were on the truck) and that when he reached the spot the driver and the injured persons were not present. I do not think that the conclusions suggested by the learned counsel can be drawn from this statement. Reference was also made to the statement of this witness in the criminal court to the effect that when he reached the place of accident a small girl was lying fallen and was weeping. On the basis of this statement it was suggested that the accident might have been as a result of the driver's attempt to avoid running over a small girl who had come in the way. I also do not find any substance in this contention. Evidence was led by the owner to give his own version of the accident in which a small girl does not come on the scene at all. It is, therefore, not possible to hold on the materials suggested that the truck had actually hit the pole and the tree in order to avoid running over a small girl. I must also state that the evidence of Dilip Singh (p. W. 2) which was given in the Court below on behalf of the owner was not relied upon by the learned counsel for the appellant in the course of his argument. I am thus of the view that there is direct acceptable evidence of P. K. Rudru establishing that at the time of accident the truck in question was being driven at a great speed.
9. Even if there was no direct evidence of the fact that the truck was being driven at a high speed, I would have, on the other materials on the record, come to the same conclusion as the Claims Tribunal, namely, that the accident was a result of rash and negligent driving of the driver of the truck. But before I revert to those materials and circumstances, I should refer certain passages from Salmond on the law of Torts of Chapter 10 at page 319 relied upon by the learned counsel-
"......that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can, to persuade the jury that the accident arose through no negligence of his. The maxim res ipsa loquitur applied wherever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused."
The learned counsel for the respondents referred to the case of Gobald Motor Service Ltd. v. R. M. K. Veluswami, AIR 1962 SC 1. In this case on the facts of the case the principle of res ipsa loquitur was applied and it was held that the events that happened told their story and there was presumption that the accident was caused by the negligence of the driver.
The Claims Tribunal has mentioned all those circumstances which lead to the inference that the truck in question was being driven rashly and negligently. The evidence in this case discloses that the driver dashed against an electric pole and then against a tree which was there on the left flank of the road. As the result of the impact the electric pole was damaged and the tree was uprooted (vide evidence of A. W. 3). The witness of the owner, Dilip Singh (O. W. 2), also stated that as a result of the impact the electric pole had got bent and the tree had got uprooted. He also stated that it was a fairly big tree. The evidence of P. K. Rudra discloses that "both the front wheels were pulled out and thrown behind the truck". The injuries on the deceased are clear indication of the great impact which was the result of the accident. It is not disputed that the engine of the truck was very badly damaged. From all these facts and the circumstances, the Claims Tribunal rightly came to the conclusion that these circumstances lead to the conclusion that the truck in question was being driven rashly and negligently at the time of the accident. These circumstances in my view speak for themselves and in the absence of any satisfactory explanation by the truck owner regarding the accident, it must be held, irrespective of the oral evidence in this case, that the claimants have been able to prove their case that the death of Dhan Bahadur Thapa was on account of rash and negligent driving by the truck driver. The view I am taking is not in conflict with the passage from Salmond on the Law of Torts relied upon by Mr. Chatterjee and is in fact in consonance with the decision of the Supreme 'Court, referred to above. The first contention raised on behalf of the appellant has, therefore, got to be rejected.
10. The next argument which I propose to deal is in respect of the jurisdiction of the Chaibassa Court. It was urged that the District Judge of Chaibassa did not have jurisdiction to decide the claims case. The first notification on the basis of which the claim was filed before the Judicial Commissioner, Ranchi has not been shown to me by the learned Counsel appearing for any of the parties. So far as the transfer of the records from the Judicial Commissioner, Ranchi to the District Judge of Chaibassa is concerned, I am of the view that it was perfectly legal and in consonance with the notification issued by the State Government, referred to in the order of the Judicial Commissioner of Ranchi. It may be noted that before the issue of the notification in question no evidence was recorded in the proceedings before the Claims Tribunal. In such a situation when the District Judge of Chaibasa has been given the exclusive jurisdiction to decide the claims under Section 110-A of the Act, there cannot be any legal bar to the disposal of the case by the Claims Tribunal at Chaibasa. In fact at no stage of the proceeding it was even, suggested by any of the parties that the matter should be tried at Ranchi and not at Chaibasa.
11. I would next take up the question of quantum of damages; connected therewith would be the disposal of the cross-objection. Learned counsel for the appellant submitted that all factors which are relevant have not been taken into consideration in awarding damages, and the damage was, therefore, excessive. Mr. N. N. Roy, on the other hand, on behalf of the claimants-respondents 1 to 3 submitted that their entire claim should have been allowed. So far as the objection on behalf of the appellant is concerned, apart from some general principle enunciated nothing was shown which would enable me to hold that the amount of Rs. 10,000/-awarded was excessive. I must, therefore, proceed to deal with the cross-objection in a little more detail.
12. It was contended that the monthly income of the deceased at the time of the accident was Rs. 115/- per month and that the further life expectation of the deceased having been taken to be 21 years, the court should have granted higher damages. It was urged that the court below had only taken 50% of the monthly emoluments as having been spent on the family, namely, the wife and the children. This according to the learned counsel is a low figure. He suggested that two-third should have been allocated towards the expenses of the family and one-third towards the expenses of the deceased. Learned counsel wanted to derive support from the case Smt. Shanti Devi v. General Manager, Punjab Roadways, Ambala, AIR 1971 Punjab and Har. 13. Apart from the fact that in the case under consideration before the Punjab High Court the number of members of the family of the deceased was 5 as against 3 as here. I do not think that any hard and fast rule can be laid down, dependant on mere number of the members of the family. In this case no evidence was led by the claimants to show as to what was the actual expenses incurred by the deceased for the maintenance of the family. In that view of the matter, I do not think that the approach of the Claims Tribunal is wrong or at any rate of such a nature as to call for interference in appeal. I may state that the amount awarded is Rs. 10,000/- which is deposited in fixed deposit in a bank can fetch an income of Rs. 700/- a year which is more than 50% of the total annual emolument of the deceased. The principle on which compensation should be awarded has recently been considered by a Division Bench of this Court in Misc. Appeals Nos. 313 and 314 of 1965 (Kumari Champa Benerjee v. Chotanagpur Chemicals and Industries Ltd.), decided on 30-7-1971 (reported in AIR 1972 Pat 259. I do not think that the decision arrived at in this case by the Claims Tribunal can be said to be wrong on the basis of the principles enunciated in that decision. The quantum of compensation awarded, therefore, does not call for interference at the instance of either the appellant or the cross-objectors.
13. I will now deal with the point which is not free from difficulty and that relates to the question whether the Insurance Company is liable in this case. Mr. K. D. Chatterjee contended that, in any event, it is the Insurance Company which should be held liable to pay the damages awarded in this case. I will first refer to some of the provisions of the Motor Vehicles Act. Chapter VIII of the Act deals with insurance of motor vehicles against third party risks. Section 94 of the Act requires the owner of a vehicle to take out policy of insurance in relation to the use of motor vehicles in a public place, complying with the requirements of Chap. VIII. Section 95 lays down the requirements of policies and limits of liability. Relevant portions of Section 95 (1) of the Act may be usefully quoted-
"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 person specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the vehicle in a public place.
Provided that a policy shall not be required-
.... .... .... ....
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death or of bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or".
Sub-clause (2) of this section lays down the limits of the liability. Sub-clause (4) states that a policy shall be of no effect unless and until the insurer issues a certificate of insurance. Section 96 of the Act is a special provision which makes the Insurance Company liable for payment to a person entitled to the benefit of a decree obtained by him, subject of course to certain limitations regarding the liability. Sub-section (2) of Section 96 of the Act states the grounds of defence which are available to the Insurance Company when it is made a party in a proceeding where the claim is made for damages by a third party. The relevant portions of Section 96 of the Act may be quoted thus-
"(1) If, after a certificate of Insurance has been issued under sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being liability covered by the terms of the policy) is obtained against any person insured by the policy, then, not withstanding that the insurer may be en titled to avoid or cancel or may have avoid ed or cancelled the policy, the insurer shall subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by ad insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceeding in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
.. ... .. .. ..
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle;
(a) for hire or reward, where the vehicle is on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward; or .. .. .. .. ..
(c) for a purpose not allowed by the permit under which the vehicle is used where tbe vehicle is a transport vehicle, or .. .. .. .. ..
14. The Claims Tribunal has held that the Insurance Company cannot be said to be liable in this case because in its view Dhan Bahadur Thapa was being carried as a passenger for hire or reward.
Mr. K. D. Chatterjee first assailed this finding of the Claims Tribunal. The learned counsel submitted that there was no evidence either direct or circumstantial leading to this inference. He further submitted that the court could not on the basis of non-examination of the truck driver or the four coolies on the truck come to the conclusion that Dhan Bahadur Thapa was travelling as a passenger for hire or reward. There is considerable force in the argument of the learned counsel. But I do not propose to deal with or decide this question for my view, the Insurance Company can resist its liability on another ground which was put forth during the course of argument by the learned counsel for the company. But before dealing with that contention I must notice another argument on factual aspect, which was put forth by Mr. Chatteriee. He contended that the Tribunal has erred in holding that Dhan Bahadur was travelling on the truck at the time of accident. I cannot accept this argument as correct. The Claims Tribunal has given good reasons in Paragraphs 14 to 18 of the order for holding that Dhan Bahadur Thapa was travelling in the truck at the time of accident. Suffice it to say that evidence of P. K. Rudra, which has been accepted by the Tribunal, and which I do not find any good reason for rejecting, clearly establishes that Dhan Bahadur Thapa was in the truck at the time of accident.
15. It was contended by the learned counsel for the Insurance Company that the policy covered death, or bodily injury to any person caused by or arising out of the use of the motor vehicle provided that the death or bodily injury was not to a person who was being carried in or upon the vehicle at the time of the accident. It was urged that since Dhan Bahadur Thapa was travelling in the truck at the time of accident the Insurance Company was not liable for any damages arising out of his death. Reliance was placed in this connection on the policy which was Exts. A-I and D before the Claims Tribunal. The specific portion from the policy, so far as is relevant for this case, is as follows:--
"Section II--Liability to Third Parties.
1. Subject to the limits of Liability the Company will indemnify the Insured against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of
(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle,
(ii) damage to property caused by the use (including the loading and/or unloading) of the motor vehicle provided always that:--
XX XX XX
(c) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises".
In reply Mr. K. D. Chatterjee contended that this clause of the policy would not be of any assistance to the Insurance Company because the policy itself states subsequently-
"Nothing in this policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939, Section 96".
It was, therefore, submitted that we have to refer to Section 96 of the Act and if the defence that has been taken is covered by Section 96, then alone the liability can be avoided. It was submitted that since, according to the contention, which I have already noticed, but about which I have not expressed any opinion, the Insurance Company has not been able to establish that Dhan Bahadur Thapa was travelling for hire or reward, section 96 (2) (b) of the Act cannot be of any assistance to the Insurance Company, and the Insurance Company cannot get advantage of the clause relied upon by the learned counsel.
16. In order to appreciate this point I will have to deal once again with Sections 95 and 96 of the Act. The scheme of Section 95 is that in Clause (1) it lays down the essential requirements which have to be fulfilled in order to comply with the requirements of Chapter VIII in respect of a policy of insurance. This provision requires that the policy should undertake to indemnify the insurer against any liability which may be incurred by him in respect of death or bodily injury to any person caused by or arising out of the use of vehicle in a public place. But the proviso makes it clear that the policy is not required to cover cases of persons who are travelling or entering, mounting or alighting from the vehicle at the time of the occurrence of the event out of which any claim arises (except in certain cases with which we are not concerned in this case). The net result, therefore, is that it is not mandatory or it is not a statutory requirement that, in the class of vehicles with which we are dealing, the Act requires the Insurance Company to undertake to indemnify persons who are being carried on a vehicle. It is possible that in spite of this proviso the insurer may not take advantage of it and may undertake to indemnify in respect of such persons or class of persons also. If the Insurer does so, it would not be contrary to Section 95 of the Act. But what appears clear is that if he does not do so, he is not acting in contravention of Section 95 or not discharging his statutory duty which is cast upon him by the provision aforesaid. It appears to me, therefore, that in excluding the Insurance coverage in respect of persons who were travelling in the truck at the time of accident, the Insurance Company was not acting contrary to the provisions of Section 95, but was acting in conformity thereof and had not undertaken to indemnify the insurer in case of an accident as mentioned in Sub-clause (1) (c) of Section II of the Insurance Policy (quoted in paragraph 15).
17. The next question, therefore for consideration is as to what is the effect of the clause relied upon by Mr. Chatter-jee, which has already been quoted above by me. The true meaning of this clause is that if the Insurer has any liability by virtue of the provision of Section 96, that cannot be avoided by the Insurer by inserting any clause or condition which may purport to avoid the liability or obligation created by Section 96 of the Act. We have, therefore, to appreciate the true effect and scope of Section 96.
18. Sub-clause (1) of Section 96 of the Act states that if after a certificate of insurance has been issued in favour of a person in pursuance of Section 95 (4) of the Act, a judgment in respect of any such liability is obtained against any person insured by the policy, then the insurer shall pay to the person concerned any sum not exceeding the liability which the insurer may have under the policy. Sub-clause (2) among other matters enumerates the defence that is available to the insurer. Sub-clause (2) (b) enumerates some of those defences relating to breach of condition of policy. It has been held by the Supreme Court in the case of British India General Insurance Co. Ltd. v. Captain Ithar Singh, AIR 1959 SC 1331 that the defences mentioned in Section 96 of the Act are only defences open to the insurer, other defences being not open to him. But in my view this is only applicable where the liability of the insurer arises under the policy itself, being a policy in conformity with the provision of Section 95 of the Act. Then and then alone the defences that are open to the insurer have been limited and restricted.
To illustrate when the policy covers an accident in question, it would not be open to the insurer to plead that there was no negligence involved in the accident, although in the policy a condition may have been imposed that the Vehicle will not be driven rashly or negligently. Thus if there is no liability under the policy issued in accordance with Section 95 of the Act, it cannot be urged that although the policy may not undertake to indemnify the insurer still for the purpose of the disposal of the claim case he will be saddled with the liability because it is not open to him to take any defence other than those enumerated in Section 96 of the Act. Section 96 (1) of the Act itself, in my view, makes the position clear because it is stated therein that the judgment sought to be satisfied must be a judgment in respect of a liability which is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 of the Act. If my view in respect of the interpretation I have put on Section 95 of the Act is correct, it is clear, in the circumstances of this case, that the Insurance Company was neither required nor had in fact undertaken to indemnify the insurer in respect of persons who may be travelling on the vehicle at the time of accident. If the policy that was issued in conformity with Sub-section (1) does not apply to the accident which was the subject-matter of the claim case, it cannot be said that by virtue of Section 96 (2) the liability has been extended or created. Such being the position, in my view the Insurance Company cannot be held to be liable to pay damages in this case.
19. In the result, the appeal and cross-objection are both dismissed, but in the circumstances, without costs.