Karnataka High Court
M. Akkawa vs New India Assurance Co And Ors. on 4 September, 1987
Equivalent citations: [1988]63COMPCAS319(KAR)
Author: M.N. Venkatachaliah
Bench: M.N. Venkatachaliah
JUDGMENT P.K. Shyamsundar, J.
1. A question very unusual in nature arises in this appeal by a non suited claimant in a motor accident claim pertaining to the death of the claimants adult son in an accident that occurred on March 20, 1977, at about 10.00 am at a place called Doddabathi near Davanagere city in the district of Chitradurga. As a result of the mishap the claimants 27 year old son, Bopanna alias Harish, sustained severe injuries to which he succumbed later at the C.G.Hospital Davanagere, on March 21, 1977.
2. Anent his death the question that arises for consideration is can a claim for compensation under Act Policy be pressed against the insurer of the motor vehicle where the accident victim is the representative or agent in this case also the son of the owner cum person insured of the vehicle involved in the accident?
3. Tracing back the proposition the question would be whether the insurer under the Act policy is liable for compensation for the death of the insured owner of the vehicle while traveling with his own goods in his own vehicle. If the insurer is not then an agent or representative of the owner so traveling would be in no better position-unless such a person is a workman traveling in the vehicle in the course of employment.
4. The answer to this question however interesting academically is not perceived by the fall out from this exercise likely to bring to the grieving next of kin any solac with the dismissal of the claim by the Tribunal.
5. Before we go into this question, leading to this unplatable result, it is necessary to state a few facts that have led up to this appeal which has certainly had a checkered carrier, bearing almost the appearance of being jinxed from the very beginning.
6. The claimant is one Akawa, wife of Mandanna, and has since become his widow, following his death in the month of March, 1987. Mandanna was running a goods carriage service service at Pune under the name and style of New Goodluck Transport Co. which, as facts of this case would indicate, appear to have not brought any good luck to him or to his family. Mandanna and Akawa had only one son, Bopanna alias Harish, who on the date of his death was about 27 years old and also gainfully employed in a private concern at Bombay as a lesser official drawing a salary of Rs.90 per monism.
7. On the ill-fated day, the deceased, Bopanna, was traveling in his fathers lorry bearing no.MHQ 2883, duly insured with M/s.New India Insurance Co, the sole contestant of this appeal as well as the claim case in the court below. The lorry it would appear was carrying a load of cement that admittedly belonged to Mandanna the owner of the goods vehicle. Indeed the case which the claimant did not put forward at the beginning and tried to plead at a later stage is that Bopanna was carrying his fathers goods in the formers own lorry under instructions from the father and was fatally injured en route, because of the drivers folly. It was urged that the claimant was entitled to be compensated by the insurer with whom the vehicle was duly insured on the date of the accident. In effect the claim by the mother of the deceased person is against her own husband and his insurer. The relationship by itself is not determinable. The crucial question is whether the deceased Bopanna while accompanying his fathers goods in the fathers own vehicle was such person the risk arising out of whose death is compulsorily insurable under the Motor Vehicles Act, so as to render the insurer liable.
8. This claim against the insurer has been turned down by the Tribunal for want of proof apart from belatedness. The question before us would ultimately be whether the Tribunal was right in not upholding the case of the claimant as aforesaid.
9. To continue the narrative, owing to a hazard on the road near the village Doddabathi within the vicinity of Davanagere city the lorry met with an accident severely injuring the lone passenger Bopanna alias Harish who was immediately rushed to the C.G.Hospital, Davanagere, for treatment. He succumbed to the injuries on the next day despite treatment. His mother, Akawa, thereafter moved the Tribunal at Chitradurga for compensation in M.V.C.No.32 of 1977. Akkawa imploded the owner, I.e. her own husband the driver and the insurer of the goods vehicle in question as parties thereto.
10. On service of summons, both the owner and the driver remained export, the insurer alone appeared and contested the case pleading amongst other things that the deceased was at best a passenger in a goods vehicle and therefore even granting that actionable negligence was made out it was futile for the claimant to seek to foist liability on the insurer. Thereupon, the Tribunal framed the following issues and asked the parties to go to trial thereon.
(1) Whether one A,M.Bopanna died in a lorry accident that occurred on March 20, 1977, at 10.00 a.m. near Doddabathi village?
(2) Whether the said accident is due to the rash or negligent driving of the lorry MEQ 2883 by the third respondent? (3) Whether the petitioner is entitled for any compensation and if so for how much and from whom?
11. At the inquiry, the claimant examined herself as PW. 1 and closed her side after producing some documents as per exhibits P-1 and P-2, etc., which are not necessary to be called attention to in these proceedings. The sole contestant the insurer, did not lead any rebuttal evidence.
12. In the cross-examination of the claimant for the first time it was elicited that the deceased was traveling on the ill fated day in that lorry along with the goods of his father on a care taker basis pursuant to and impliedly under the instructions of his father.
13. The Tribunal, on a consideration of the evidence, held actionable negligence on the part of the driver of the goods vehicle to be established, but apropos the liability of the insurer, it exclude the same on the ground that the deceased was at best a gratuitous passing3r in a goods carriage and, therefore, his risk was not covered by the insurer. But then, it did not consider whether it could make an award at least against the driver, if not, against the owner, who would in any way be liable on the finding that actionable negligence of the driver was proved. The Tribunal, having simply dismissed the claim petition without more, the claimant preferred an appeal to this court in M.F.A.No.125 of 1980. That appeal was dismissed by the court for default on October 4,1983, and regrettably the claimant did not take any steps for getting that order set aside in time. She, however, made an application belatedly for setting aside that order on February 18,1985. This court, by an order dated March 18,1985, rejected the said application as barred by time holding, inter alia, that there were no grounds to condone the delay. Thereafter, the claimant preferred an appeal to the Supreme Court of India in Civil Appeal No.3954 of 1986, which stood allowed by an order dated October 28,1986, resulting in remit of the case back to this court for fresh disposal on merits. Before it could be taken up for hearing again as directed by the Supreme Court, it transpired that the claimant's husband, Mandanna, the owner of the goods vehicle and the person- insured died and, therefore, his representatives were in due course brought on record, resulting in a curious spectacle of the claimant now being pitted against her own children as legal representatives of her husband in this stage of the proceedings.
14. Now, for the point raised for consideration. The finding of actionable negligence as recorded by the Tribunal, being in favour of the claimant, remains undisturbed since it has remained unchallenged and upon that finding, the driver of the goods vehicle would certainly be liable and the owner therefore also becomes liable boctprop is;u. But, them, before the Tribunal, there has been attempt to foist liability on either their liability in terms of compensation payable to the claimant. That has not been done. But no exception-quite understandably indeed-having been taken before us to that mode of disposal of the proceedings by the Tribunal, it is not necessary for us to say anything more about it.
15. The only question that survives for consideration hereafter is the insurer's liability. The vehicle had full insurance coverage on the date of accident and the insurer would be clearly answerable foe the claim if only it is possible to hold the victim of the accident to be a third-party vis-a-vis the contract of insurance between the owner and the insurers. The Tribunal has recorded a finding that the deceased was at bests gratuitous passenger in a goods vehicle whose risk was not covered user the insurance cover extended by the contesting respondent herein. The Tribunal's view is summed up in the following passage.
"The petitioner, Akkawa, has admitted in her evidence that the lorry belongs to her husband who is the proprietor of Good Luck Transport at Punier and her husband has insured the vehicle as a goods vehicle. It is not disputed that there is no coverage for the owner of lorry or his son. In the course of the cross-examination of the petitioner, it is elicited that her husband has asked her son to bring cement from Madras and, therefore, her son was traveling along with the goods. But it cannot be said that the deceased was traveling along with the goods. But it cannot be said that the deceased was traveling in the lorry as the owner of the goods by virtue of any contract of employment under his father. The father of the deceased has not entered the witness box to show that he had engaged his son to carry the cement or the cement sheets from Madras to Bombay. There is nothing to indicate in the application that the deceased was asked by his father to carry the goods from Madras to Bombay. There is nothing to indicate in the application that the deceased was asked by his father to carry the goods from Madras to Bombay in the lorry. Sri M.A.Barangal, learned advocate appearing for the petitioner, very strongly relied on a decision of our High Court in T.M.Renukappa v. Fahmida [1979] 2 Kar LJ 103; [1982] 52 Comp Cas 634, to hold the insurance company liable. In that case, the insurer is held liable to pay compensation in respect of the death of the owner of the goods traveling in the lorry along with his goods. But the owner of the goods was not the owner of the truck and he was a third party who was carrying the goods in the truck belonging to some other gentleman. In this case, the person carrying the goods is the son of the owner of the truck and there is no evidence to show that the "over of the truck had engaged his son to carry the goods in the lorry by virtue of any contract of employment. Therefore, I find it difficulty to extent the principles enuciated in Rnukappa's case [1979] 2 Kar LJ 103; [1982] 52 Comp Cas 634 to the facts of this case. As a matter of a fact the petitioner has not stated anything about the so called contract of employment between her son and her husband and it is only in the course of the cross-examination that she has come out with a new theory of her husband asking her son to go to Madras and bring cement. The vehicle in question is a goods vehicle and its insurance, as admitted by the parties, is for third party risk and as such there is no liability on the part of the insurance company to pay any compensation for the death of the son of the owner of the lorry in question. No relief is claimed against owner and driver of the lorry. Hence, my finding on this issue."
16. The forgone makes it clear that the Tribunal was not prepared to accept the claimant's case that the deceased was traveling in the lorry on an errand of the insured to whom the goods in the vehicle belonged. Mandanna, the owner of the sorry, who was alive at the time of the proceedings before the Tribunal, remained export after service of notice. He was not examined at the inquire. The case that, at his bidding, the deceased was traveling in the lorry to ensure the safe conduct of his goods set up by the claimant in her cross-examination does not advance the case of the claimant any further. The son would, then, be in no better position than the owner-father himself. It was not the claimant's case that Bopanna was a "workman" under the owner and was traveling in the vehicle in the course of employment.
17. But then, reliance is placed by the appellant's counsel on a decision of the Orissa High Court in National Insurance Co. v. Laxmi Devi [1985] ACJ 48; [1986] 60 Comp CAs 236 for the proposition that a person traveling in a truck, if put in charge of the goods transported in the truck, was entitled to the benefit of insurance cover. That was a case in which a peon of the court was converting the personal effects of a judicial officer, was was under orders of transfer in a goods vehicle which en route met with an accident resulting in the death of the peon. The insurer sought to absolve itself of liability by making out that the peon was only a gratuitous passenger in the truck. The court, however, repelled that contention pointing out, inter alia, that on fact it was established that the peon was traveling on the master's business and the master having engaged the truck for conveyance of his goods, the insurer was, therefore, liable to compensate.
18. In paragraph 7 of the judgment, their Lordships, after adverting to the scope of section 95 of the Motor Vehicles Act, dealing with insurance of motor vehicles against third party risk and adverting to the decisions of the Madras High Court in Vanguard Insurance Co. Ltd. v. Chinnammal , and two other decision, viz., Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur [1967 37 Comp Cas 577; [1967] ACJ 157 (P&H) [FB] and Hokum Chand Insurance Co. Ltd. v. Bedridden [1980] ACJ 164; [1982] 52 Comp Cas 394 (MP), have concluded that in view of the aforesaid legal position, i.e., the deceased being deputed by PW. 4 who hired the vehicle in question, to accompany his goods, is entitled to protection with such risk being covered under section 95(1)(b) proviso (ii).
19. While we are in element with the aforesaid ratio, the principle of that decision is not attracted here, because the owner of the vehicle and the owner of the goods are very distinct. The owner-and his agent or representative-traveling in the vehicle are not third parties. Indeed that proposition that all persons who are not parities to the contact of insurance are third parties has its own limitation. Even so, a representative or agent-as distinct form a servant-of the owner who is a party to the contract cannot be a third party. In Pushpabai v. Ranji Ginning and Pressing Co. Ltd., AIR 1977 AC 1735, the Supreme Court said (at page 1746):
"Section 95(a) and 95(b)(i) of the Motor Vehicles Act adopted the provision of the English Road Traffic Act, 1960, and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in aspect of death or bodily injury to any person or damage to any properly of a third party caused by or arisen out of the use of the vehicle in a public place. The plea that the words 'third party' are wide enough to over all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub-section which provided that a policy shall not be required:
(ii) except where e the vehicle is a vehicle in which passengers are carried for hire or reward of by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or body 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."
20. Under section 95(1)(b), an insurer issuing a policy is compulsorily require to insure the owner against any liability arising out of the death of, or bodily injury to, a "third party". The liability and the condition and limits therefore in respect of personal injury to, or death of, employees of the insured person, in the course of their employment are covered by proviso (i) to section 95(1)(b). Section 95(1) does not render it necessary for an insurer under an "Act policy" to undertake the liability to pay compensation in respect of the death of the insured person himself in an accident involving the vehicle insured.
21. Basically, a contract of motor insurance seeks to indemnify the owner of the vehicle against liability arising out of claims of third parties and arising against the insured owner our of the use of the motor vehicle. A Contract of insurance which stipulates to pay compensation for the death of the insured person himself cannot be said to be a contract of indemnity.
22. It the owner of the vehicle, who has the benefit of indemnity is himself not covered by the policy, his representative-unless he be an employee covered by the first proviso to section 95(1)(b)-is in no better position in relation to the insurer's obligation or the absence of it.
23. In the present case, the circumstances of the deceased person, unfortunately do not attract the insurer's liability under section 95(1). We see nothing else on record on the basis of which any relief can possibly be afforded to the appellant. However unfortunate or regrettable the result, it cannot be helped. Therefore, it is with some regret we proceed to dimes this appeal, but without any order as to costs.