Rajasthan High Court - Jaipur
New India Assurance Co. Ltd. And Anr. vs Hukali And Ors. on 3 July, 2002
Equivalent citations: 2003(1)WLN352
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. This appeal is directed against the judgment and award dt. 15.11.1995 passed by learned Motor Accident Claims Tribunal No. 2, Udaipur (hereinafter referred to as 'the Tribunal'), whereby the Tribunal awarded compensation of Rs. 3,60,000/- in favour of respondents No. 1 to 7, who were claimants before the Tribunal (hereinafter referred to as 'the claimants'). This appeal has been filed by New India Assurance Company Ltd. (hereinafter referred to as 'the insurance company') by joining the owner of the vehicle involved in the accident as appellant.
2. I have heard learned Counsel for the parties. Perused the judgment and award impugned and also the record of the Tribunal.
3. learned Counsel for the claimants contended that a joint appeal by the insurance company joining the owner as appellant is not maintainable. The insurance company by jointly filing the appeal may not maintain it for a simple reason that appeal by the insurance company may stand on different footing than an appeal by the owner or the driver and, in the circumstance the cause of action for taking up the appeal in both cases may differ from each other inasmuch as the insurance company would contest its liability to indemnification, whereas the owner or the driver defends his case on entirely different footing. The insurance company comes into play only when the liability of the insured has been held where under the certificate of insurance the insurance company is partly or entirely liable to indemnify. This is because of this fact that grievance of the owner or that of the driver of the offending vehicle against the award differs from the grievance of the insurance company challenging the award and the insurance company cannot stretch out the limited scope available to it by associating the driver of the offending vehicle or the insured owner trying to seek an advantage. This controversy came to be considered by Hon'ble Supreme Court in Narendra Kumar and Anr. v. Yarenissa and Ors., , wherein, their Lordships held that it is a different matter that claimants normally make the insurance company a party to the claim application. That by itself cannot confer a right of appeal on the insurer. The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the Insurance Company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistenly taken the view that the Insurance Company has no right to prefer an appeal under Section 110-D of the Act (corresponding Section 173 of New Act) unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 (corresponding) Section 149(2) of the New Act) or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act (corresponding Section 170 of New Act). If then the insurer and the owner of the offending vehicle file a joint appeal and if the Court comes to the conclusion that the insurer had no right to prefer an appeal under Section 110-D of the Act because none of the defences mentioned in Sub-section (2) of Section 96 is available to it nor had a situation of the type envisaged by Sub-section (2-A) of Section 110-C arisen, it cannot be permitted to file an appeal whether on its own or in association with one or more of the tortfeasors against whom the award is made which the insurer is liable to answer as if a judgment-debtor. The view taken by the Hon'ble Supreme Court in Narendra Kumar and Anr. v. Yarenissa and Ors., (supra) was reiterated by subsequent judgment of Supreme Court in Chinnama George and Ors. v. N.K. Raju and Anr., AIR 2000 SC 1565, wherein, their Lordships held as under:
The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibit the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. Provision of law cannot be undermined in this way.
4. It was further held by their Lordships that if none of the conditions as contained in Sub-section (2) of Section 149 of the Motor Vehicles Act exists for the insurer to avoid the policy of insurance, it is legally bound to satisfy the award. It cannot be a person aggrieved by the award. In that case, insurer will be barred from filing any appeal against the award of the Claims Tribunal.
5. In Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., . Hn'ble Supreme Court held that the insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only it the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose, the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. Undisputedly, in the instant case, neither the insurance company sought permission from the Tribunal to contest the case on merits as envisaged under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') nor the Tribunal has allowed the insurance company to' contest on all merits by a reasoned order in writing. Thus, the appeal filed by the insurance company being incompetent, is liable to be rejected.
6. Now the question comes for the appeal by the owner. In the instant case, the claimants pleaded in the claim petition that due to rash and negligent driving of the truck No. RJY-4734 by its driver respondent No. 8 Dhularam Patel, deceased Nana Lal aged 40 years, who was going on a cycle, was hit and crushed under the wheels of the said truck. He succumbed to injuries instantaneously. The fact pleaded by the claimants has not been denied by the driver and owner of the truck in question. Soon after the accident, the first information report Ex. 2 was lodged by one Dinesh Kumar, wherein it was stated that due to rash and negligent driving of the truck No. RJY 4734 by its driver, Dhularam Patel, Nana Ram son of Nathaji IVth class employee was crushed, his both legs were crushed under the said truck. The FIR clearly goes to show that the said accident was caused due to rash and negligent driving of the truck by its driver respondent No. 8. After investigation, the police also reached to the conclusion that the said accident was due to rash and negligent driving of the truck by its driver. This fact has also been stated by two witnesses produced by the claimants. The insurance company has also not disputed the accident. The only dispute raised by the insurance company is that the said accident was due to the own fault of the deceased. Thus, from the admission of the insurance company, happening of the accident has prima facie been established.
7. Normally, rule is that it is for the claimants to prove negligence but in some cases, considerable hardship may be caused to the claimants in establishing negligence of the driver. It is true that the cause of accident is not known to the claimants when claimants are the legal representatives of the accident victim and, in such a situation, the maxim res ipsa loquitur comes into play. Therefore, the claimants have only to establish the happening of the accident. Thereafter, it is for the defendant driver or the owner to establish that accident happened due to some other cause and the driver of the vehicle was not negligent. In the instant case, it was for the driver and owner to rebut that the driver was not negligent which the driver, owner or the insurance company failed to do. In the facts and circumstances, maxim res ipsa loquitur can safely be applied in the instant case in order to hold the driver negligent for the said accident.
8. Hon'ble Supreme Court in a recent judgment in Kaushnuma Begum (Smt.) and Ors. v. New India Assurance Co. Ltd. and Ors., applying the rule in Rylands v. Fletcher 1, (1861-73) All England Reports held as under:
Like any other common law principle, which is acceptable to our jurisprudence, the rule in Rylands v. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the rule in claims for compensation made in respect of motor accidents.
9. In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Anr., , before the Hon'ble Supreme Court, the question came to be considered regarding application of rule in Rylands v. Fletcher in cases arising out of motor accident, Hon'ble Supreme Court observed as under:
Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents.
10. More so, in the instant case the driver of the offending truck did not appear as a witness.
11. In the instant case, the appellant, no doubt, took the plea that the said accident occurred due to the negligence of the deceased himself. This fact can best be explained by the driver of the offending truck and if he chose to keep away from the witness box or the owner and insurer of the truck failed to produce him as a witness in the witness box, that too, without any sound reason, then it must indeed be construed as a telling circumstance against the driver, owner and the insurer. It is clearly the duty of the driver, owner or insurer of the offending vehicle to place before the Tribunal the best evidence available and the driver of the offending vehicle is the best evidence to narrate the manner in which the accident took place and if he refrains from doing so, that would only be on the peril of an adverse inference being drawn against him.
12. A Division Bench of the Bombay High Court in Shri Gurunath P. Naik and Ors. v. Shri Narendra Govind Chodankar and Ors., I (1995) ACC 428 while considering the doctrine of contributory negligence held that it is a rule of evidence that a person who ought to have been examined is not examined or a person who was required to tender evidence shies away from Court, an adverse inference must be taken against such person. There is no explanation whatsoever as to why the appellant therein, who was driver of the offending bus shied away from the Court and in the facts and circumstances, the Court refused to examine the point of contributory negligence on the basis that the evidence of the driver was necessary in that case to understand as to how the accident took place. In this view of the matter, an adverse inference against the driver of the offending truck has to be drawn holding him negligent for the said accident and, therefore, I have no hesitation in affirming the finding of the Tribunal on the point of negligence.
13. In this view of the matter, the claimants succeeded in establishing the fault of the driver for causing the said accident.
14. The next question comes for consideration regarding computation of quantum of compensation. By unrebutted evidence, the claimants have established that deceased Nana Lal was Class-IVth employee. By the statements of NAW. 1 Hukli and NAW. 2 Punji Devi wife of deceased Nana Lal it has been established that the deceased was 40 years of age at the time of accident and he was employed as Class-IV in Irrigation Department of State of Rajasthan. Salary certificate Ex. 1 issued by Assistant Engineer, Irrigation Department is on record, which shows that the gross salary of deceased on the relevant date of accident was Rs. 1484/-. It was pleaded and proved by the claimants that at the relevant time of accident, deceased was 40 years of age, which further finds corroboration from Ex. 5, Post Mortem, wherein the age of the deceased is shown to be 40 years. The evidence of claimants remained unrebutted. The Tribunal while computing the compensation had taken into account future prospects of the deceased and keeping in view the future prospects, his monthly income was taken at Rs. 2968/- and after deducting 1/3rd as personal living expenses of the deceased. Rs. 1989/- was determined as monthly dependency. Thus, the annual dependency comes to Rs. 23,868/-. The amount was multiplied by 14 years purchase factor which comes to Rs. 3,34,115/-
15. In General Manager, Kerala S.R.T.C. v. Susamma Thomas, , the Hon'ble Supreme Court has held as under:
Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand.
16. In General Manager, Kerala S.R.T.C. v. Susamma Thomas, (supra) the income of the deceased was taken at Rs. 1032/1 at the age of 39 years and the Hon'ble Supreme Court just doubled the income. Taking into account the future prospects of the deceased, monthly income was determined at Rs. 2000/- and 1/3 was deducted and by an appropriate multiplier amount was computed. It is settled law that multiplier cannot exceed 18 years purchase factor as has been held by Hon'ble Supreme Court in U.P. State Road Transport Corporation v. Trilok Chandra and Ors., . By amending Act 54 of 1994 which came into force w.e.f. 14.11.1994, Section 163-A was inserted. Second Schedule of Section 163-A provides the appropriate multiplier in the case of fatal accident in respect of the victim of the different age group. For the age group above 35 years but not exceeding 40, the multiplier of 16 is provided. In the instant case, the Tribunal has applied multiplier of 14. Deceased had as many as 7 dependents including wife, mother and five minor children of the various age groups. The annual dependency determined by the Tribunal cannot be said to be too excessive. It is settled law that in appeal, the quantum is interfered if the compensation awarded by the Tribunal is either too low or too execessive, as the case may be. Obviously, for the seven dependents, a sum of Rs. 3,60,000/- awarded by the Tribunal in case of death of a young person of 40 years having stable job, cannot be said to be too excessive. The Tribunal awarded a sum of Rs. 14,000/- for loss of company consortium, love and affection etc., this amount also cannot be said to be on higher side. In this view of the matter, I am of the considered opinion, that the computation of the compensation made by the Tribunal cannot be said to be erroneous.
17. No other point was pressed.
18. In view of the aforesaid discussion, I find no merit in this, appeal. Accordingly, it fails and is dismissed. No order as to costs.