Orissa High Court
The Divisional Manager, Oriental ... vs Jasoda Mohanta And Ors. on 19 January, 1996
Equivalent citations: I(1997)ACC175, 1997ACJ284, AIR1996ORI120, 1996(I)OLR217, AIR 1996 ORISSA 120, (1996) 2 CIVILCOURTC 416, 1966 ORISSALR 217, (1986) ORISSA LR 217, (1996) 1 WLC(RAJ) 495, (1996) 1 TAC 748, (1996) 2 CIVLJ 224, (1997) 1 ACC 175, (1996) 81 CUT LT 580, (1997) ACJ 284
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. The present appeal is against the judgment and award dated June 1, 1993 passed by the Second Motor Accident Claims Tribunal, Cuttack.
2. This appeal has been preferred by the Insurance Company mainly on the grounds that the offending vehicle carrying the deceased being a goods vehicle, the Insurance Company is not liable for any compensation to the deceased; that where two vehicles are responsible for the accident, there should be apportionment of the liability between the offending vehicles and that the quantum of compensation awarded by the Tribunal is excessive and unreasonable.
3. It appears from the pleadings and the evidence on record that the deceased Jadu-mani Mohanta was a Salesman in the office of the Manager, Livestock Breeding and Diary Farm, Koenjhar. On September 17, 1989, he was returning with some cows purchased for the farm and carried in the offending truck having registration number OIS 1749. The said truck was moving in a high speed and dashed against another truck coming from opposite direction. As a result of the accident said Jadumani Mohanta was seriously injured and ultimately died. The widow and three minor sons of the deceased filed the claim petition complaining that the accident took place due to rash and negligent driving of the truck No. OIS 1749; that the deceased died in course of his employment and that the said vehicle being duly insured with the Oriental Insurance Company Limited, the present appellant, the Insurance Company is liable to pay compensation.
4. The owner of the offending truck filed a written statement admitting the accident. He, however, has contended that the accident took place due to rash and negligent driving of the other truck coming from the opposite direction. The owner also admitted that his truck was insured with the Oriental Insurance Company Limited. Although the owner filed his written statement, he did not ultimately contest the claim during hearing.
5. The Insurance Company contested the claim contending, inter alia, that the claimants are not entitled to get any compensation from the Insurance Company because the policy did not cover the risk of any passenger carried in the vehicle which was a goods vehicles and that the driver of the offending vehicle did not have driving licence at the time of the accident.
6. The Tribunal held that the accident had taken place and the deceased was killed in the said accident, It has also been held that the accident took place due to rash and negligent driving of the offending truck OIS 1749. The Tribunal accepted the Insurer's Liability upon the view that the Insurance Company was liable to undertake the risk of a person moving in a goods vehicle as owner of the goods. The Tribunal ultimately awarded a total compensation of Rs. 1,10,000/- and interest on the awarded amount at the rate of six per cent per annum from the date of the claim application, i.e. October 18, 1989, till realisation.
7. On behalf of the appellant-Insurance Company Mr. Sinha has urged that the offending vehicle being a goods vehicle it was not obligatory on the part of the insurer to insure any liability of the owner in respect of death or bodily injury to any one carried as a passenger in a goods vehicle. He has also stated that as a matter of fact, the concerned Insurance Policy did not cover such liability in respect of a passenger of the goods vehicle. Mr. Sinha has relied upon the Full Bench decision of this Court in New India Assurance Company Ltd. v. Kanchan Bewa, reported in 1994 (Vol. I) OLR 1 : (AIR 1994 NOC 65) in support of his contention.
8. Mr. B. N. Rath, learned Advocate for the claimant-respondents on the other hand, has submitted that the accident having taken place after the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M. V. Act, 1988') came into operation, the Full Bench decision on the provisions of Section 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'M. V. Act, 1939') is not applicable to the present case. Referring to the provisions of Section 147(1)(b)(i) of the M. V. Act, 1988 Mr. Rath has contended that the insurer was bound to insure the owner of the vehicle against death or bodily injury to any person even if the vehicle was a goods vehicle,
9. Section 95(1)(b)(i) of the M. V. Act, 1939 contained the same language as Section 147(1)(b)(i) as it stood before the Motor Vehicles (Amendment) Act, 1994. But one of the provisions of Sec. 95 of M. V. Act, 1939 excluding specified classes of persons from the statutory requirement of insurance coverage, has been omitted in Section 147 of the M. V. Act, 1988. The material provisions of Section 95 of M. V. Act, 1939 are quoted below:
"95. Requirements of policies and limits of liability-- (1) In order to comply with the requirements of this chapter, a policy of insurance may be a policy which-
(a) is issued by a person who is an authorised or by a co-operative society allowed under Sec. 108 to transact the business of an insurer, and
(b) insured 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;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employees of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods vehicle, being carried in the vehicle, or
(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 of or 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
(iii) to cover any contractual liability."
Section 147 of the M. V. Act, 1988 does not contain proviso (ii) to Sec. 95(1) of the M. V. Act, 1939. The material provisions of Sec. 147 as it stood before the Motor Vehicles (Amendment) Act, 1994 are quoted below: --
"147. 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; 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;
(ii) against the death of or bodily injury to any passenger of public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.....
10. As already stated the proviso (ii) to Section 95(1) of the M. V. Act, 1939 brought the liability in respect of certain classes of persons out of the statutory requirement of compulsory insurance coverage. The Full Bench of this Court in 1994(1) Ori LR 1 : (AIR 1994 NOC 65) (New India Assurance Company Ltd. v. Kanchan Bewa) interpreted and contrued the said proviso (ii) to Section 95(1) of the M. V. Act, 1939 and held that the said proviso excluded the passengers carried by a goods vehicle from the compulsory requirement of insurance coverage. From a study of the provisions of Sec. 95(1) of the M. V. Act, 1939 and the discussion contained in the Full Bench judgment it appears that if the said proviso (ii) was not there, the liability in respect of death or bodily injury inflicted on any person by any vehicle in a public place would have been required to be covered by the Insurance Policy. Insertion of the said proviso (ii) to Sec. 95(1) of the M. V. Act, 1939 was intended to carve out the specified classes of persons from the general sweep of the main provision of Sec. 95(1)(b)(i) and (ii). There being a separate clause i.e. Sec. 95(1)(b)(ii) for passenger of a public service vehicle it was obvious that Section 95(1)(b)(i) covered persons other than the passengers of a public service vehicle.
11. The absence of any provision like the proviso (ii) to Sec. 95(1)(b) of 1939 Act in Section 147 of the M. V. Act, 1988 makes a vital difference. The general sweep of Section 147(1)(b)(i) covers liability in respect of death of or bodily injury to any person covered by or arising out of a vehicle excepting the passengers of a public service vehicle mentioned in Sec. 147(1)(b)(ii) and the classes of employees enumerated in proviso (i) to sub-sec. (1) of Sec. 147. Section 147 of the M. V. Act, 1988 not having contained similar provisions as proviso (ii) to Sec. 95(1)(b) of the M. V. Act, 1939, the Full Bench decision does not appear to be applicable in the matter of interpretation of Sec. 147(1)(b)(i) of the M. V. Act, 1988.
12. An analysis of the language of Section 147(1)(b)(i) of the M. V. Act, 1988 leaves no doubt that the words "any person" mean not only third party, but also other persons and the word "vehicle" covers ail kinds of vehicles including a goods vehicle. In case of death or bodily injury the legislature has used the words "any person" while in case of damage to property the legislature has confined it only to property of a third party. This difference in language is indicative of the wider coverage in case of death or bodily injury.
13. By the Motor Vehicles (Amendment) Act, 1994 Section 147(1)(b)(i) has been amended substituting the words "injury to any person, including owner of the goods or his authorised representative carried in the vehi-cle" for the words "injury to any person". The said amendment has made it further clear that "any person" has been used in a wider sense. It has been argued on behalf of the appellant that the said amendment indicates that prior to such amendment the words "any person" did not include the owner of the goods or his authorised representative carried in the vehicle. As already stated hereinbefore that the words "any person" even prior to the amendment were not confined to only third party, but the same had a wider coverage. The nature of the amendment shows that the same is clarificatory by nature. The plain meaning of the words "any person" is "all persons" and accordingly it was not at all necessary to insert the words "including the owner of the goods or the authorised representative carried in the vehicle". In view of the conflicting and divergent interpretations by different Courts the said words have been added to put an end to all possible controversies. It is well known that in many cases legislature has added or deleted words in order to clarify the position, to clear up an ambiguity and to prevent any scope for conflicting interpretation. It is also an accepted rule of interpretation of statutes that when an amendment is made to clarify things it ordinarily means that the unamend-ed provision had included and covered time introduced by way of clarification. The Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in (1995) 3 SCC 583 has considered the effect of adding an explanation to the definition of 'consumer' by way of amendment in the Consumer Protection Act, 1986 to find out whether the amendment expanded the meaning or was in the nature of a clarification. While considering the nature of the explanation added to the definition of the expression 'consumer' in the said Consumer Protection Act, 1986 the Supreme Court in the aforesaid decision has held :--
". . . . .It merely makes explicit what was implicit in the Act. It is not as if the law is changed by the said explanation; it has been merely made clearer."
Applying the test adopted in the aforesaid decision it should be held that Amendment of 1994 by insertion of the said words in Sec. 147 of the M. V. Act, 1988 has only made explicit what was implicit in the original provision.
14. It is not possible to accept the submission that the words "any person" used in unamended Section 147(1)(b)(i) were to be given a restricted meaning and kept confined to third party only. Such a restricted meaning would be doing violence to the common and dictionary meaning of the words used in the section. Moreover, it is an accepted principle of interpretation of statutes that in case of beneficial legislation construction of any provision, which is more favourable to the persons for whose benefits the law has been enacted, should be adopted. There cannot be any dispute that Motor Vehicles Act particularly the provisions relating to compensation for the victims of road accidents and the requirement of compulsory insurance coverage are meant for the benefit of the victims and the members of their family.
15. Mr. Sinha referred to the decision of the Supreme Court in Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Company Pvt. Ltd., reported in AIR 1977 SC 1735 in support of his contention that insurance coverage is not necessary for persons carried in goods vehicle. The said decision of the Supreme Court was rendered relying upon proviso (ii) to Section 95(b)(i) of the M. V. Act of 1939. As already explained that the said provision has been omitted in the 1988 Act. Accordingly, the said decision cannot be relied upon for the purpose of interpretation of the words "any person" in Section 147(1)(b)(i) of the Act of 1988.
16. In view of the discussions herein above, it is not at all necessary to go into the question whether the amendment of 1994 is retrospective in operation or the same should be made applicable to the claim proceedings pending on the date of the amendment. As it has been held that under M. V. Act, 1988 the words "any person" used in Section 147(1)(b)(i) include persons carried by even a goods vehicle and are not confined to third party only, the Insurance Company cannot escape their statutory liability.
17. The next contention raised on behalf of the appellant is that when admittedly two vehicles were involved in the accident the insurer of one of the vehicles cannot be made liable to pay the entire compensation because the other tort feasor is also equally liable. The said question has been set at rest by this Court in its decision in New India Assurance Company Ltd. v. Ashok Kumar Acharya, (1994 (1) Current Judicial Reports 293). Pointing out the difference between "contributory negligence" and "composite negligence" in paragraph 5 of the said judgment it has been held:--
"Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he cannot recover in the whole more than his whole damage."
Accordingly, the said contention of Mr. Sinha cannot be accepted.
18. Mr. Sinha on behalf of the Insurance Company has relied upon the decision of the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivan-drum v. Mrs. Susamma Thomas, AIR 1994 SC 1631 and urged that the Tribunal committed error in applying a multiplier of 18 in assessing the compensation. In the said case a person aged about 38 years having a monthly income of Rs. 1032/- succumbed to in unfortunate motor accident. In the said case the Supreme Court applied a multiplier of 12, but while computing the income of the deceased the Supreme Court also took into account the prospects of advancement of the future career and assessed his monthly income at Rupees 2000/-. The 1/3rd of the gross income was deducted as the amount liable to have been spent towards the personal living expenses of the deceased. The total amount awarded in the said case was Rs. 2,25,000/-.
19. In the present case the monthly pay of deceased was found to be Rs. 1195/-. The Tribunal recorded that no evidence has been adduced to prove that the deceased had further scope of promotion. But the Tribunal did not consider the prospects of pay revision in calculating the total loss. The Tribunal took only half of the income as monthly contribution to the dependants, whereas the Supreme Court took 2/3rd of the gross income as the contribution to the dependants. May be the multiplier of 18 in this case is to the higher side, but considering the other factors, it cannot be held that the total compensation as awarded is high or unreasonable. Rather, the assessment is quite modest, compared to the assessment made by the Supreme Court in the aforesaid decision in AIR 1994 SC 1631 (supra).
20. For the foregoing reasons, the appeal is dismissed. The Insurance Company is directed to pay the entire compensation, if not already paid, within two months from the date of the judgment.
21. No order as to costs.