Karnataka High Court
K. Subbanna Shetty vs Sarojini And Ors. on 24 August, 1993
Equivalent citations: I(1995)ACC437
JUDGMENT S.A. Hakeem, J.
1. This appeal by the owner is directed against the award of compensation arising out of the claim in respect of a motor accident resulting in the death of one Ganapathi Bhat. The claimants have, in turn, filed their cross-objection seeking enhancement of compensation.
2. The facts leading to the claim are as follows:
On 4.6.1982, the said Ganapathi Bhat along with the claimants was travelling in a K.S.R.T.C. bus from Honnavar to Karki. After getting down at Karki Bus Stop, they were proceeding along the western edge of the road towards Honnavar side to reach their home. While they were so proceeding, the truck bearing No. 7989 coming from Kumta side in a high speed dashed against Ganapathi Bhat and one Savithri. As a result, both were thrown to the side of the road, On account of the impact, the stones of the culvert fell upon Ganapathi Bhat as a result of which he died on the spot. The deceased was working as a Branch Manager in K.D.C.C. Bank in its branch at Hulekal and, according to the claimants, he was earning total monthly emoluments of Rs. 1,300/-. It is not disputed that the deceased was about 36 years old at the time of his death. While the wife of the deceased, respondent No. 1, claimed compensation of Rs. 1,71,000/- including the damages towards loss of consortium and other heads, respondent No. 2 herein and the mother of the deceased have claimed separate compensation of Rs. 69,000/- and Rs. 29,000/- respectively. It is pertinent to mention at this stage that one of the claimants who was the mother of the deceased died during the pendency of the proceedings before the Tribunal and it is not disputed that the cause of action survived to respondents Nos. 1 and 2 herein. In other words, they were entitled to receive the entire compensation awardable in the claim.
3. While admitting the occurrence of the accident and the death of the deceased G.S. Bhat, the appellant (owner) denied that the accident was the result of rash and negligent driving of the vehicle by its driver. It was further pleaded that when the truck was proceeding at a moderate speed from Kumta to Honnavar on the correct side of the road, a lorry which was going in front of the truck suddenly stopped while it was crossing the bridge. The driver of the truck tried his level best to stop the vehicle, but in the process, the vehicle dashed against the parapet wall of the bridge, as a result of which the parapet wall of the culvert gave way and fell upon the deceased, resulting in his death.
4. In support of their claim, PWs 1 to 4, including the 1st respondent herein, were examined. The Tribunal has accepted the version of the claimants for the reasons stated in its order. PWs 1 and 2, who were undoubtedly the eyewitnesses, have deposed that the truck was driven in a rash and negligent manner by respondent No. 2 and dashed against the culvert which gave way and the stones thereof fell upon the deceased resulting in his death. There is also a spot mahazar, Exh. P-1, which corroborates the version as stated by the witnesses for the claimant. The driver who was also a party to the proceedings was never offered by the owner for giving evidence. In the circumstances, non-examination of the driver, as rightly observed by the Tribunal, is fatal to the owner's version regarding involvement of another vehicle which was said to be proceeding ahead of the vehicle involved in the case.
5. It is pertinent to note that the appellant has sought to implead the owner of the alleged vehicle which was said to be ahead of the instant vehicle and which, according to him, was responsible for the accident. In the first instance, no such attempt was made before the Tribunal itself. Secondly, the admitted and established facts on record dispel the said theory of the involvement of a second vehicle. In that view of the matter, there is absolutely no merit in the said application, which is hereby rejected. Reliance is sought to be placed on the decision in Managing Director, Karnataka State Road Trans. Corporation v. Shankarappa , which is also not applicable. In the reported case, involvement of two vehicles was not in dispute. In the circumstances, it was held that the Trial Court should have provided an opportunity to the claimant to enable him to furnish all the documents and particulars relating to the driver and owner of the lorry so that it would be in a better position to pass appropriate orders. As such, the ratio of the decision is not applicable to the facts and circumstances of the instant case.
6. This takes us to the question regarding the quantum of compensation and the liability of the Insurance Company. While accepting the fact that the deceased was working as a Manager in the K.D.C.C. Bank at Hulekal, earning a monthly salary of Rs. 1,300/- in the year 1982, the learned Member of the Tribunal has taken the loss of dependency to the claimants only at Rs. 750/- per month. Further, taking the age of the deceased at 36 years and adopting the multiple of 13, he has capitalized the loss of dependency at Rs. 1,17,000/-, out of which the insurer's liability is fixed at Rs. 50,000/-. It seems to us that having regard to the strength of the family, the loss of dependency adopted by the Claims Tribunal is on a lower side. In our opinion, the loss of dependency, in the circumstances of the case, should be taken at Rs. 875/- per month, in which event the capitalised loss of dependency would be Rs. 875 x 12 x 13 = Rs. 1,36,500/-. To this a sum of Rs. 5000/- has to be added towards loss to the estate; Rs. 6,000/- towards loss of consortium to the widow and another Rs. 2,000/- towards funeral expenses. Thus, the claimants are legitimately entitled to a total compensation of Rs. 1,49,500/-. Out of this amount, a sum of Rs. 10,000/- has to be deducted in view of the claimants having received a sum of Rs. 30,000/- on the life insurance policy of the deceased. The net amount payable to the claimants would be Rs. 1,39,500/.
7. This takes us to the question of respective liabilities of the owner and the insurer. According to Mr. Gurushettappa, the learned Counsel for the appellant, the third party risk under the insurance policy covering the liability was unlimited and as such the insurer is liable to pay the entire amount. Our attention is drawn to the policy which is produced by way of additional evidence and marked as Exh. R-1. In the said policy which was issued on 13.3.1982, the basic premium is stated to be Rs. 850/-, which, according to the learned Counsel, would include the basic premium for third party risk. The last but one item in the schedule reads as 'add T.P.' (third party), against which the premium paid is shown as Rs. 240/-. This additional premium, according to the learned Counsel, would cover unlimited liability insofar as the third party risk is concerned. In this connection, reliance is placed upon a decision of the Madhya Pradesh High Court in Nanjibhai Patel v. Vishnu Prasad Sharma , in which it is stated, inter alia, thus:
In the column dealing with limits of liability in Exh. NA-1, it is provided that the company's liability under Section II-I(i) and Section II-I(ii) would be Rs. 50,000/-. These sections indicate the liability in relation to third parties and indemnify the insured against all sums to which the insured shall become legally liable in respect of the death of any person caused by or arising out of the use of the motor vehicle. In Jugal Kishore's case 1988 ACJ 270 (SC), the liability under Section II-I(i) was limited to such amount as is necessary to meet the requirements of the Act, which is not the present case. If the submission of the learned Counsel for the Insurance Company that typed Rs. 50,000/- should be read in relation to liability under Section II-I(ii) is to be accepted, it would make the liability under Section II-I(ii) unlimited in the absence of any limitation about it in this clause.
8. On the contrary, it is contended by Mr. Suryanarayana Rao, learned Counsel for the insurer, that the premium paid, under the instant policy has been fixed in accordance with the revised tariff which came into effect from 1.2.1982. It is further stated that in the instant case an old form of the policy is used in which there is no separate column provided for various items/heads. According to him, the premium of Rs. 850/- is only 'towards own damage-basic' and does not pertain to third party risk at all. It is stated that under the revised tariff the premium is apportioned and separately shown towards 'own damage basic' and 'third party risk'. This contention of the learned Counsel is supported by Annexure 7 of the tariff regulations. The 4th item of the said Annexure pertaining to goods-carrying vehicles reads thus:
_________________________________________________________________ Licensed carry- Own damage' Liability to the ing capacity of public risks the vehicles _________________________________________________________________ Exceeding Rs. 850/- plus Rs. 240/-
5,080 kg. Rs. 200/- for
(5 tons) each additional
1,016 kg. (1 ton)
or part thereof +
0.70 per cent on
I.E.V.
___________________________________________________________________ The schedule of premium in the instant policy read in the context of the revised schedule would lead to the irresistible conclusion that the sum of Rs. 850/- refers only to the 'own damage basic' to the vehicle and the penultimate item relating to T.P. of Rs. 240/- refers to the premium for coverage of third party risk. In this context, we may further refer to page 25 of the publication of the Tariff Advisory Committee (General Insurance): 'India Motor Tariff's (Rationalisation & Revision)', which provides for additional premium to be paid for imposing additional liability over and above Rs. 50,000/-. In the instant case, additional payment Rs. 100/- and Rs. 150/- would cover unlimited risk for personal injury to the extent of Rs. 1,50,000/- and property damage; and unlimited risk for personal injury to Rs. 3,00,000/- and property damage respectively. This view has already been taken by a Division Bench of this Court in K. Muktha Amin v. Narsi Bai M.F.A. No. 1157 of 1984, decided on 17.6.1991. Dealing with a similar contention regarding the unlimited liability, relying upon the case in United India Fire and General Insurance Co, Ltd. v. Azeerunnisa 1982 (1) Kar. LJ 91, it is held that the premium of Rs. 426/- (in that case) covers the liability only to the extent of Rs. 50,000/- and nothing more. It is further observed that as per the tariff Rs. 426/- paid as comprehensive premium creates the liability only to the extent of Rs. 50,000/-. The Court has further referred to the decision in Oriental Fire & General Insurance Corporation Limited v. Jagadish Babu 1986 ACJ 890 (Karnataka), wherein it is held that if the premium columns in the policy are left blank, it should be taken that the insurer has undertaken unlimited liability. However, in view of the decision of the Supreme Court in National Insurance Corporation Limited, Jugal Kishore 1988 ACJ 270 (SC), to the effect that unless there is a specific agreement between the owner and the insurer and separate premium paid, the Insurance Company cannot be required to pay anything more than the liability prescribed under the tariff regulations, the decision of this Court in Oriental Fire and General Insurance Corporation Limited v. Jagadish Babu (supra) is stated to have been impliedly overruled and hence it cannot be of any assistance for the proposition. On a perusal of the insurance policy, we are satisfied that there is no agreement regarding unlimited liability in respect of the third party nor any separate premium paid for that purpose to create such liability. In that view of the matter, this contention of the appellant must fail.
9. In the view we have taken above, we make the following order:
The appeal is dismissed. The cross-objection is partly allowed. In modification of the award made by the Tribunal there shall be an award of Rs. 1,39,500/- in favour of the claimants (respondent Nos. 1 and 2) which shall carry interest at 6 per cent per annum from the date of the claim petition till realisation of the amount. Out of the said amount respondent No, 1 (widow of the deceased) is exclusively entitled to a sum of Rs. 6,000/-towards the loss of consortium and Rs. 2,000/- towards funeral expenses. The balance of the amount shall be equally shared between the 1st respondent and the 2nd respondent. Since the 2nd respondent is still a minor, the amount of compensation falling to her share shall be kept in a cumulative deposit scheme in any nationalised bank until she attains the age of 18 years.
Parties shall bear their own costs in this appeal.