Bombay High Court
Baburao Venkatrao Kotgire And Anr. vs Venkati Jaiwanta Thote And Ors. on 9 July, 1992
Equivalent citations: I(1993)ACC308
JUDGMENT A.A. Halbe, J.
1. First Appeal No. 35 of 1984 is filed by the owners of the offending vehicle being Truck No. MHB 8059; whereas First Appeal No. 6 of 1985 has been filed by the cleaner of this vehicle, who was found to be driving the above truck, which met with fatal accident involving the death of one Jaiwant, aged about 22 years.
2. The appellants in both these appeals have been aggrieved by the award passed by the Motor Accident Claims Tribunal, Nahded, in Claim Petition No. 4/82. The grievance of the owners is that the Insurance Company Original Respondent no.3 has been wrongly absolved from the compensation liability and further that the claimants have been wrongly construed as legal representatives entitled to compensation, and also that the Tribunal landed on the wrong conclusion about the rashness and negligence on the part of the driver of their truck. Incidentally at that relevant time it was the cleaner who is the appellant in Appeal No. 6/85 was driving the truck. The grievance of the cleaner in Appeal No. 6/85 is that he was not holding any motor driving licence at the time of accident and that he cannot be responsible for the compensation as has been awarded by the Tribunal. He, therefore, prays for being absolved from the liability of the compensation.
3. In order to appreciate these arguments, which have been canvassed on behalf of the appellants in both the appeals, few facts need to be noted.
The original applicants are the parents and sisters of deceased Jaiwant who was aged 22 years at the time of the accident. The offending truck MHB 8059 originally belonged to Respondent No. 1 - Devichand but was sold to Respondent Nos. 4 and 5 in 1978. However, the names of these owners were not recorded in the R.T.O. register. But all the same they were in physical possession of this truck. It does not appear to be in dispute that this vehicle was insured with Respondent No. 3 - Oriental Fire and General Insurance Company and the insured shown were Kotgire and Parsewar, who were original Respondent Nos. 4 and 5 and who are now appellants in Appeal No. 35/84. The further averments are that Respondents/owners had entered into contract with Kalambar Sugar Factory and had given the truck for transport of sugarcane from the fields and this contract was taken by one Govind Wakde. The deceased Jaiwant Thete was one of the labourers working on the truck engaged for transporting of sugarcane from various fields to the factory. Govind Wakde had engaged Jaiwant Thete and others for cutting the sugarcane, loading the same in the truck and for removing the sugarcane to the factory.
4. Coming to the incident, it is stated that on 5th of December, 1981, the said truck had gone to the land of Pandharinath Khurude of Bahadarpura near Kandhar for transport of sugarcane and the driver of the truck was one Laxman Telang. Respondent No. 2 - Basappa Vowhe was the cleaner on that truck. At the time of the accident, it is claimed that Laxman had gone to take tea leaving the cleaner Basappa incharge of the vehicle. The ignition key was in the truck itself. The labourers loaded the truck with sugarcane and the truck was to be taken to another land which was quite close, for loading the sugarcane. The cleaner - Respondent No. 2 when found that the truck was loaded, drove the truck from that land of Pandharinath Kukude and was to take it at the adjoining field. However, the said truck, according to the claimants, was driven in high speed and the driver lost the control of the vehicle. As a result thereof, the truck collided on the bridge towards the right side of the Nala, and tilted. The deceased Jaiwant, who was sitting on the sugarcane stored on the backside of the truck, fell down and came beneath the truck. He was crushed and instantly died. The claimants contended that the accident took place because of the gross negligence and rashness on the part of the cleaner - Basappa. He was an employee of Respondent Nos 4 and 5 and, therefore, the claimants claimed the compensation of Rs. 50,000/- from all the Respondents.
5. The Respondent Nos. 4 and 5 in their written statement contended that the truck was sold to them and that the same was insured with Respondent No. 3 - Company - Oriental Fire and General Insurance. They further contended that the truck was driven by an unauthorised person, namely, cleaner Basappa, who himself was not holding any licence for driving the vehicle. They had engaged Laxman Telang who was their authorised driver and they had directed Laxman Telang not to permit anybody else to drive the vehicle. Since the accident occurred on account of rash and negligent driving by Respondent No. 2 Basappa, the owners cannot be held liable for payment of compensation. The Insurance Company also toed the same line and contended that the truck was being driven by an incompetent person and so no liability can be fastened on the Insurance Company. Respondent No. 2 -Basappa Narsinghappa Vowhe - the appellant in Appeal No. 6/85, although served remained absent, but has filed the above appeal.
6. The learned Member of the Tribunal framed issues and on assessment of the evidence, both oral and documentary, found favour with the claimants, so far as negligence and rashness on the part of Basappa was concerned. The Tribunal held that claimants were entitled to compensation on account of the death of Jaiwant caused on account of rash and negligent driving by Basappa. However, so far as Insurance Company was concerned, the Court found that under the terms of Policy and also Under Sections 95 and 96 of the Motor Vehicles Act, the Insurance Company could not be held liable for driving of the vehicle by an unauthorised person, and accordingly Insurance Company was absolved from payment of compensation. The Tribunal, on assessment, found that the claimants were entitled to compensation of Rs. 40,000/-. The claimants were held to be entitled for that compensation both on the ground they being the legal representatives and also the dependents of the deceased.
7. The learned advocate for the appellants/owners has vehemently contended that it was a patent error on the part of the Tribunal to have absolved the Insurance Company from payment of compensation. He has not disputed the quantum nor the fact that Laxman Telang was the driver and that the accident occured on account of driving of vehicle by Basappa. He has contended that although Basappa was not holding proper licence, he was permitted by driver Laxman Telang to drive the vehicle. Laxman was the named driver and hence in terms of the ratio laid down by the Supreme Court in AIR 1987 Supreme Court 1184, in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. the Court held, according to the learned advocate, that there was no breach or infringement of any policy condition in this case in view of the peculiar facts and those facts are that Laxman Telang was the named driver of the owners, that Laxman had left the vehicle in care of Basappa, who drove the vehicle on his own without holding the licence. The Court foisted the liability of compensation on the Insurance Company on the ground that in terms of Section 96(B)(ii) the Insurance Company cannot escape the liability by contending that unauthorised driver was driving the vehicle at the time of the accident. To this aspect I shall come later, but this is the main thrust of his argument in order to show that Insurance Company should be held liable. He has indeed not questioned the liability of the owners and also the liability of the cleaner. All that he has disputed is that the Insurance Company is also jointly and severally liable along with the owners for payment of compensation. Practically the same argument has been adopted by the learned advocate for the claimants. He has also relied on this Ruling and has cited further Rulings wherein this view of the Supreme Court has been re-affirmed.
8. As against this, the learned advocate for the Insurance Company has vehemently contended that it is not proved by any cogent evidence that the ignition key was left in the truck, that deceased died of this accident, that no postmortem report showing the cause of death is also on record. He has further emphasized that the cleaner in First Appeal No. 6/ 85 has come out with a positive assertion that he had no motor driving licence at the time of the accident. There is also nothing to show that Laxman Telang was holding the valid driving licence and in that light of the matter, the Insurance Company cannot be made liable for compensation. He has also contended that there is no privity of contract between the labourers or the contractor and the owner and thus the Insurance Company, Hence, the appeal should be dismissed and the order absolving the Insurance Company from the liability of compensation should be upheld.
9. Now, so far as the quantum of compensation is concerned, it has not been disputed by the appellants. The learned advocate for the Insurance Company has tried to dispute that the compensation has been wrongly calculated. But when one looks to the mode of assessment adopted by the learned Member of the Tribunal, one finds that on the basis of multiplier of 20 years the compensation has been worked out at Rs. 62,400/-. It has been curtailed to Rs. 40,000/- on the basis of lump-sum payment. This has been the mode adopted in several cases and there is nothing to depart from that mode. Even if the facts are viewed in their correct perspective, the young man of 22 years died, he was earning Rs. 10 to 15 per day and even if the dependency is held to be Rs. 7 to 8 per day, the monthly dependency comes to Rs. 250/-. When multiplied by 12 it comes to Rs. 3,000/- per annum. The dependents are parents and sisters and if Rs. 3000/- per annum is said to be contribution payable to the applicants, the same can further be multiplied by further period of 6, keeping in mind that the deceased would marry. The learned advocate for the claimants has contended that there is evidence to show that the deceased had divorced his, wife and that the question of marriage should not be taken into consideration. I am afraid that such an argument cannot be accepted. The fact that he had divorced means that he had married and if he has married once there is no reason why he should not marry another woman. This is a fact that has taken place in his earlier life and it would, therefore, be not proper to say that he would remain without undergoing wedlock for the entire life. If he marries at the age of 26 years, the contribution to the family would be reduced and it can well be quantified at Rs. 150/- per month which amount comes to Rs. 1800/- per year. If this amount is further multiplied by 10 years, it would come to Rs. 18,000/-. This is indeed on the basis of computation of multiplier and on 1/3rd basis on lump sum basis the total compensation even on conservative basis would come to Rs. 40,000/-. I therefore, see no reason to part with the finding arrived at by the learned Member of the Tribunal on the question of quantum of compensation.
10. Now examining the arguments on behalf of the owners and also on behalf of the Insurance Company, it has been rightly suggested by the learned advocate for the claimants that if the Insurance Company comes forth with a case that it has not proved that the driver was not holding valid licence, the onus is cast on the Insurance Company. The evidence shows that such evidence has not been led of behalf of the Insurance Company.
11. In 1990 (Supp) Supreme Court Cases 696, in the case of Suresh Mohan Chopra v. Lakhi Prabhu Dayal and Ors. the Supreme Court observed that the burden of proof that driver had no licence lies on the Insurance Company. If that be so, in absence of contrary evidence on behalf of the Insurance Company, it cannot lie in the mouth of the Insurance Company that Laxman Telang had no valid licence.
12. So far as the evidence regarding accident is concerned, there is evidence of Bhimrao Kamaji Wakde, at Ex. 62, and Govind Roheji Wakde at Ex. 64. Both of them have stated that after the truck was loaded with sugarcane, the cleaner in absence of the driver started driving the vehicle. Jairam and others were sitting on the loaded sugarcane stored on the backside of the truck. The truck was driven with high speed and the truck, therefore, dashed against the bridge and fell in the ditch and in that process Jairam came beneath the truck. These facts are not disputed. On the other hand, there is a panchanama in support of these contentions. It would not be, therefore, proper to hold that in the absence of postmortem report the cause of death cannot be attributed to this accident. On the other hand, the facts are self-eloquent when one finds that deceased came within the truck and that he was and hearty before the accident and it would be, therefore, too much to read in the arguments on behalf of the Insurance Company that the death could have been on account of cause other than the accident. Ultimately broad facts have to be kept in mind that the accident takes place and soon the victim succumbs to the injuries. In that light of the matter, the learned Member of the Tribunal has rightly held that the death occured on account of rash and negligent driving of offending vehicle and the claimants, therefore, are entitled to the compensation.
13. The learned advocate for the Insurance Company has put forth an argument that there is no evidence on record that the ignition key was fixed in the socket in the truck. However, when one looks to the evidence of the above witnesses, it is crystal clear that the cleaner started the truck. The truck could not start without the key and hence it will have to be held that the key was left behind in the truck and that facilitated the cleaner to drive the truck. The argument has, therefore, to be rejected as being divorced from the reality.
14. Now coming to the liability of the Insurance Company, the learned advocate for the Insurance Company has contended that there was no privity between the labourers and the Insurance Company or the owners, and that the cleaner himself has admitted that he had no licence. However, the established facts are that Laxman Telang had driven the vehicle right upto the field from where the sugarcane was cut and lodged in the truck for being taken to another field and then to the Sugar Factory. It is also established that Basappa drove the truck although he did not have any licence. It is precisely these facts which wholly conform with the facts in the case of Skandia Insurance Co. Ltd. (cited supra). In that case on similar facts the Court held that although the cleaner or the driver is not holding licence, the fact that the licenced driver of the owner left the vehicle in care of the cleaner and that he also left the key, were sufficient to bind the Insurance Company. There is a detailed consideration of the impact of Section 96(1)(2)(b)(ii), 94 and 84 of the Motor Vehicles Act The same view has been reiterated by the Supreme Court in its later decision , in the case of Shri Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors. The Court in para 6 of that judgment, has reaffirmed the proposition laid down by it in the case of Skandia Insurance Co. Ltd. (supra). In that light of the ratio now available, the Insurance Company now cannot be heard to say that the cleaner was not holding the driving licence. The facts also indicate that the truck was engaged for cutting and carriage of the sugarcane, but all along the control of the vehicle was with the owners/appellants in Appeal No. 35/84. I therefore, feel that the learned Member of the Tribunal fell in error in absolving the Insurance Company from the liability to pay the compensation.
15. The learned advocate for the claimants has made a serious grievance that although the prevailing interest rate is 12 per cent, the learned Member was pleased to grant only six per cent on the amount of the award. He has further urged that Supreme Court has gone to the extent of observing that even if no claims are made, merely on the oral submissions of the advocate such an interest can be granted. In support of this argument, he has cited , in the case of Ramesh Chandra v. Randhir Singh and Ors. The Court observed that interest can be granted and that it should be normally at the rate of 12 per cent. In , in the case of R.L. Gupta and Ors. v. Jupitor General Insurance Co. and Ors. the Supreme Court was pleased to raise interest from six percent to 12 per cent. It cannot be lost sight of that looking to the interest rates prevailing in the market, the payment of interest at six per cent per annum is too low, a return on the amount. I, therefore, agree with the claim of the claimants that the interest should be raised from six per cent to 12 per cent.
16. The above discussion would, therefore, clearly indicate that besides the appellants even Respondent No. 7 is liable to pay the compensation at the rate of 12 per cent from the date of award till the payment to the claimants.
17. Now, so far as Appeal No. 6/85 is concerned, it is manifest that the cleaner is the principal tort feazor in this accident, and his liability to share the compensation is primary. He cannot escape under the garb that he does not hold proper driving licence and he has no locus-standi. As a matter of fact, he is the principal person involved in this accident. The learned Member has observed that he has been convicted for offence under Section 304-A of Indian Penal Code by the Court and in that light of the matter, there is hardly any escape for him from the payment of compensation. Accordingly, I pass the following order.
18. In Appeal No. 35/84, it is allowed partly. In that it would be read in the original award that Respondent Nos. 2, 3, 4 and 5 in the claim application are jointly and severally liable to pay Rs. 40,000/- along with interest at the rate of 12 per cent from the date of award till payment. It is stated at the Bar that Rs. 20,000/- have already been deposited by the owners and out of that Rs. 10,000/- have already withdrawn. Liberty is granted to the claimants to withdraw remaining Rs. 10.000/-. The claim of the owners is that for the balance the claimants should look to the Insurance Company, but that argument cannot be sustained in view of the fact that the liability which flows is joint and several. If entire amount is to be recovered from owners, Owners have under law remedy to get reimbursed the entire amount of compensation from the Insurance Company. Rest of the award passed by the Member of the Tribunal is hereby confirmed. Appeal No. 6/85 is, however, dismissed. There shall be no orders as to costs in both the Appeals.