Punjab-Haryana High Court
Smt.Kamla And Others vs Joga Singh And Another on 1 March, 2012
Author: K.C.Puri
Bench: K.C. Puri
FAO No.936 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.936 of 1991
Date of decision 01.03.2012.
Smt.Kamla and others
...... Appellants.
versus
Joga Singh and another
...... Respondents.
Present : Mr. Yogesh Saini, Advocate for Mr. Pritam Saini, Advocate for the appellant.
Mr. L.M.Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for respondents.
FAO No.1100 of 1991 National Insurance Company ...... Appellant.
versus Kamla ...... Respondent.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. L.M.Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant.
Mr. Yogesh Saini, Advocate for Mr. Pritam Saini, Advocate for respondents.
K.C.PURI. J.
FAO No.936 of 1991 2
By this common judgment, I intend to dispose of FAO No.936 of 1991 titled as Smt.Kamla and others versus Joga and others filed by the claimants for enhancement of the compensation amount and FAO No.1100 of 1991 titled as National Insurance Company versus Kamla preferred by the National Insurance Company for setting aside the award. Since both the appeals arose out of the same award, therefore, these are taken up together for discussion and decision in order to avoid any repetition. For convenience facts are being taken from FAO No.936 of 1991.
2. Appellants have directed the present appeal against the award dated 7.5.1991 passed by Shri Suresh Chand Jain, learned Motor Accident Claims Tribunal, Panipat.
3. The brief facts of the case are that on 26.5.1990 at about 8.00/9.00 A.M. Sumer Chand deceased alongwith others was travelling in truck No. HYS 7835 loaded with bricks which was going from village Jhattipur to Panipat. Meanwhile another truck No. PIA 5147 came from the side of Panipat and the two truck collided with each other near Garhi Siwah. All the persons travelling in the trucks were injured. Sumer Chand got multiple fatal injury on his vital organs due to which he died. Driver of truck No. HYS 7835 was Ram Dev, whereas truck No. PIA 5147 was being driven by respondent No.1. Both the trucks at the time of accident according to the claimants were being driven rashly, negligently and at a very high speed. Both the drivers of the respective trucks were not following the traffic rules. Sumer Chand died at the spot. Age of Sumer Chand was stated to be 25 FAO No.936 of 1991 3 years and at the relevant time he was employed at Makhija Bhatta Co. Jhattipur, getting Rs.1500/- per month. Under these circumstances claimants filed claim petition claiming Rs.3,00,000/- plus Rs.10,000/- as funeral charges.
5. On put to notice, respondent No.1, respondents No. 2 and 3, respondent No.4 and respondent No.6 filed their separate written statements.
6. Respondent No.1 admitted the factum of accident and contended that he was taking his vehicle from Jullundur to Delhi and the same was loaded with goods when the truck No. HYS 7835 driven by Ram Dev respondent No.2 loaded with brick was seen coming by him from his opposite direction which was being driven by its driver rashly and negligently. On seeing the movements of the said truck, respondent No.1 had taken his vehicle to his extreme left side on the khacha portion of the road. Sumer Chand was sitting with his driver on his right side, in total violation of the traffic rules as no other person is allowed to sit with the driver on his seat, on coming vehicle was being run rashly and negligently and at a very high speed and struck against his vehicle bearing registration No.PIA 5147 on the right side of his vehicle. The impact was severe and the on coming vehicle stopped of its own. Due to this accident Sumer Chand deceased, who was sitting on the right side of the driver on his seat suffered multiple injuries. Respondent No.1 also suffered multiple injuries on his person and become unconscious and was taken to Civil Hospital, Panipat for his treatment. The accident in question had taken place due to the complete rashness and negligence of respondent No.2, who was driving the on coming FAO No.936 of 1991 4 vehicle No. HYS 7835.
7. Respondents No. 2 and 3 filed separate written statement and threw the entire claim on Joga Singh's shoulder. According to them respondent No.2 was driving his truck No. HYS 7835 at a very normal speed and was following all traffic rules and was going towards Panipat side when other truck No. PIA 5147 came from the opposite direction. The driver of truck No. PIA 5147 was driving his truck rashly, negligently and at a very high speed. Respondent No. 2 further pleaded that a Khachar Boggi was going ahead of his vehicle at a distance of 20-30 paces ; that the said khachar Buggi went out of the control of his driver, who had lost the control of the animal; that meanwhile the respondent No.1 came from Panipat side driving his truck No. PIA-5147 rashly and negligently, the driver of the truck No. PIA-5147 lost the control of his vehicle and struck against the truck No. HYS-7835. The remaining other respondents pleaded on the same lines of respondent No.1 and 2.
8. Following issues were framed on 15.1.1991 :-
1. Whether Sumer Chand died in an accident due to the rash and negligence of truck No.PIA-5147 ?OPP
2. Whether Sumer Chand died in an accident due to the rash and negligent driving of respondent No.2 while driving truck No.HYS-7835 ?OPP
3. In case issues No.1 & 2 are not proved whether the accident in question had taken place due to the contributory negligence of the drivers ? OP Parties.
4. Whether the claimants are entitled to any compensation, so how much and from whom ?OPP
5. Relief.FAO No.936 of 1991 5
9. The parties have led their respective evidence on the aforesaid issues. The Tribunal after appraisal of the same, vide Award dated 7.05.1991 partly accepted the claim petition and granted compensation to the tune of Rs.1,30,000/- along with interest @ 12% per annum w.e.f. 13.6.1990 in favour of the petitioners and against respondent Nos.2 to 4.
10. Feeling dissatisfied with the aforesaid Award dated 7.05.1991, the claimants has preferred appeal No.936 of 1991 for enhancement whereas insurance company has preferred appeal No.1100 of 1991 for dismissal of the claim petition, as aforesaid.
11. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. FAO No.936 of 1991
12. The claimants Kamla Devi and others have directed this appeal for enhancement of compensation. The claimants have contended that Sumer Chand was labour contractor and used to earn Rs.1500/- per month and out of which Sumer Chand used to pay to her Rs.1200/- per month. She got four children. In her cross-examination, she has stated that after her statement, she made statement to the Agent of Insurance Company that Sumer Chand was earning Rs.1200/- per month. Counsel for both the parties, before the Tribunal, stated that the income of Sumer Chand deceased was Rs.1150/- per month and that amount was taken by the Tribunal. Since the income has been taken as per consensus of both the parties, so, the same is taken as correct. The yearly income of the deceased was taken as Rs.13,800/-. However, 1/3rd amount was deducted in respect FAO No.936 of 1991 6 of personal expenses of the deceased and the dependency was taken as Rs.9200/- per annum. The deceased was aged 30 years. The multiplier of 16 was applied and in this manner the amount was calculated Rs.1,47,200/-. However, Rs.17,200/- were deducted towards contributory negligence of Sumer Chand as he was sitting on the right side of the driver at the time of accident. So, a sum of Rs.1,30,000/- was granted.
13. So far as the income of the deceased is concerned that has been correctly taken as Rs.13,800/- per annum. However, in view of authority Sarla Verma's case (supra) the dependency can be taken to the extent of 1/4th. In the present case the dependency should have been calculated by applying the cut of 1/4th as claimants are five in number. So, yearly dependency is calculated as Rs.10,350/-. However, the multiplier applicable at this age, as per authority Sarla Verma's case (supra) is of 17. So, the claimants are held entitled to Rs.1,75,950 (Rs.10350x17) as compensation. Another sum of Rs.9500/- stands allowed on account of loss of estate, loss of consortium and funeral charges. So, the claimants are held entitled to claim Rs.1,85,450/-. The Tribunal has deducted the amount of Rs.17,200/- regarding contributory negligence. So, a sum of Rs.15,450/- stands deducted on account of contributory negligence and the claimants are held entitled to claim Rs.1,70,000/-. The claimants shall be entitled to the same rate of interest as ordered by the Tribunal.
14. The appeal by the claimants stands partly accepted to the extent mentioned above.
FAO No.936 of 1991 7
15. So far as the question of liability is concerned that shall be dealt in while dealing with FAO No.1100 of 1991.
FAO No.1100 of 1991
16. Learned counsel for the appellants has further submitted that deceased was travelling in a goods vehicle. So, in view of authority reported in Oriental Fire and General Insurance Co. Ltd. Vs Gurdev Kaur and others 1967 A.C.J page 158, the insurance company is not liable to pay the amount in respect of gratuitous passenger i.e. Sumar Chand. The deceased was not required to travel on a goods vehicle i.e. Truck, no liability can be fastened on the appellant-Insurance Company to pay compensation for the person who was travelling on a truck especially when there was no provisions for carrying on the passengers in the truck. The view taken in authority Oriental Fire and General Insurance Co.Ltd. vs Gurdev Kaur and others' case (supra) was affirmed by the Full Bench authority in Des Raj Angra vs. Oriental fire & Genl. Ins.Co. Ltd. And others 1985 ACJ page 401. The Tribunal has erred in law in not dismissing the claim petition of the claimants as the truck being used was not covered by the terms of the insurance policy while carrying persons on the truck and as such under Section 147(1) of the Motor Vehicles Act, 1988 the appellant could not be held liable to pay compensation amount.
17. It is further contended that amount of Rs.17,200/- for issuing the contributory negligence is on lower side. Learned counsel for the appellant-Insurance Company has relied upon the following authorities :- FAO No.936 of 1991 8
1. M/s National Insurance Co. Ltd. vs. Balajit Kaur and Ors. JT 2004 (1) SC 15 ;
2. Oriental Insurance Company Ltd. vs. Devireddy Konda Reddy & Ors JT 2003 (1) SC 372 ;
3. National Insurance Co. Ltd. vs. Ajit Kumar and Ors. JT 2003 (7) SC 520 ;
4. National Insurance Co. Ltd. vs. Bommithi Subbhay Yamma and others 2005(3) PLR page 546 ;
5. Oriental Fire and General Insurance Co. Ltd. vs. Gurdev Kaur and others 1967 ACJ 158 ;
6. Oriental Insurance Co.Ltd. v. Shri Nanjappan and Ors. JT 2004 (2) SC 452 ;
7. Sri Pramod Kumar Agrawal and Ors vs. Smt.Mushtari Begum and Ors JT 2004 (6) SC 501 ;
8. National Insurance Co. vs. Rattani and others 2009 (2) PLR page 517 ;
9. National Insurance Co.Ltd vs. Cholleti Bharatamma and others 2008(1) PLR 315 ;
10. Ramesh Kumar vs. National Insurance Co. Ltd and others (2001) 6 Supreme Court Cases 713 ;
18. In reply to the above noted submissions, learned counsel for the respondents-claimants have supported the Award of the Tribunal regarding liability. It is contended that amount of contributory negligence is on higher side as according to the evidence he was simply sitting by the side of the driver. It is further contended that the deceased was travelling in the vehicle as contractor of labourer as he has to arrange the labour for loading and unloading. The job of the deceased was in connection with the use of vehicle i.e. truck. It is further contended that the authorities relied upon by the counsel for the appellant relates to gratuitous passenger. It is nobody's FAO No.936 of 1991 9 case that Sumer Chand was a gratuitous passenger. So, the above said authorities are not applicable. It is contended that authority Oriental Fire and General Insurance Co.Ltd. vs Gurdev Kaur and others's case (supra), relates to un-amended Act before 1988. The accident has taken place in the year 1990 which is after the passing of Act in the Motor Vehicles Act, 1988 and Section 147 of the Act has been added. The insurance company has taken objection regarding payment of the amount in respect of travelling by the owner of the goods or its authorized representative. The Parliament in its wisdom on 14.11.1994 covered the risk in respect of owner, travelling in a goods vehicle or his authorized representative carried in the vehicle in respect of death and bodily injuries as provided under un-amended provisions of Section 147(1)(b) of the Act. So, the Insurance company is liable to pay the amount.
19. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case with their able assistance.
20. The short question for determination in the present appeal is whether the Insurance Company is liable to pay the amount of compensation even if it is proved that owner of the goods was travelling in the goods carrier. The accident in the present case has taken place on 26.5.1990 i.e., when the un-amended Act of Motor Vehicles Act, 1988 was applicable. From the perusal of the Act, it is revealed that the Motor Vehicles Act, 1988 was made applicable from 1.7.1989. The relevant clauses regarding liability is given as under :-
FAO No.936 of 1991 10
"147. Requirement 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) insurers 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, including owner of the goods or his authorised representative carried in the vehicle] 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 this 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.FAO No.936 of 1991 11
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely :-
90. Substituted for "injury to any person" by Act 54 of 1994, S.46 (w.e.f. 14-11-1994).
(a) save as provided in clause (b), the amount of liability incurred.
(b) in respect of damage to any property of a third party, a limit of rupees six thousand :
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State FAO No.936 of 1991 12 Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
21. By making the amendment No.54 of 1994 (Motor Vehicle Amendment Act, 1994) in Section 147 clause a(1), the following words were added :-
"Injury to any person including owner of the goods or his authorized representative carrying in the vehicle"
22. In the Motor Vehicles, Act, 1939 Section 95 deals with regard to the liability in respect of carrying passengers including owner or authorized agent in a goods carrier. Section 95 of the old Act of 1939 is reproduced as under :-
Section 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 insurer [or by a co-operative society allowed under Section 108 to transact the business of an 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 a public service vehicle caused by or arising out of the use of the FAO No.936 of 1991 13 vehicle in a public place;
(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 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 ;
23. The Hon'ble Apex Court in authority New India Assurance Co. Ltd. v. Asha Rani & Ors. JT 2002 (10) 162 discuss the liability of Insurance Company in respect of carrying passengers in a goods vehicle relating to cases where Act, 1939 is applicable and the cases relating to un- amended Act of 1988 and cases relating to amended Act of 1988 i.e. in the year 1994. The conclusion drawn by the Apex Court is that in the Motor Vehicles Act, 1939, the proviso was there to cover the liability in respect of death arising out and in the course of employment of an employee of a person insured by the policy and or in respect of the death of or bodily injuries to any such employee and in the course of employment. However, that proviso is missing in the Motor Vehicles Act, 1988 which was made applicable from 1.7.1989. The Parliament in its wisdom realizing the fact that risk in respect of owner of the goods or his representative should also be covered, amended by Act 54 of 1994 by adding the following words :- FAO No.936 of 1991 14
"Injury to any person including owner of the goods or his authorized representative carrying in the vehicle"
24. In authority M/s National Insurance Co. Ltd. vs. Balajit Kaur and Ors' case (supra) it has been held that the risk regarding gratuitous passenger is not covered under Motor Vehicles Act, 1988.
25. The Hon'ble Apex Court in authority Oriental Insurance Company Ltd. vs. Devireddy Konda Reddy & Ors' case (supra) has observed as under :-
"The difference in the language of 'goods vehicle" as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is 'goods carriage" is solely for the carriage of goods".
Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes FAO No.936 of 1991 15 it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short "WC Act'). There is no reference to any passenger in 'goods carriage'.
26. So, the nutshell position according to the said authority is that after the operation of Act 1988 till the amendment in the said Act was made in 1994, even if the owner or its agent is travelling in that case Insurance company is not liable.
27. In authority National Insurance Co. Ltd. vs. Ajit Kumar and Ors.' case (supra) it has been held that Insurance company is not liable if the passengers are carried out in the goods vehicle. Similar view was taken in authority National Insurance Co. Ltd. vs. Bommithi Subbhay Yamma and others' case (supra) by Hon'ble Apex Court.
28. The Full Bench of this Court in authority Oriental Fire and General Insurance Co. Ltd. vs. Gurdev Kaur and others' case (supra) held that owner of the goods would not be compensated in relation to Section 95(1) and Section 96 of Motor Vehicles Act, 1939.
29. In authority Oriental Insurance Co.Ltd. v. Shri Nanjappan and Ors.' case (supra) it has been held that Insurance company can recover the amount from the owner and not separate suit is required to be FAO No.936 of 1991 16 filed. Similar view was taken in authority Sri Pramod Kumar Agrawal and Ors' case (supra).
30. In authority National Insurance Co. vs. Rattani and others' case (supra), the Hon'ble Apex Court has held that Insurance company is not liable to pay the compensation amount in respect of gratuitous passenger. Similar view was taken in authorities National Insurance Co.Ltd vs. Cholleti Bharatamma and others' case (supra) and authority Ramesh Kumar's case (supra).
31. So, in view of the above discussion, the appeal preferred by the National Insurance Company is partly accepted. That part of Award vide which Insurance Company is held liable to pay the amount of compensation is set aside. The amount of compensation is stated to have been paid to the claimants by Insurance Company. The insurance company is held entitled to claim the amount of compensation paid by it to claimants from the owner by executing the Award itself.
32. So, both the appeals preferred by the appellants stand disposed of as detailed above.
33. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
March 01, 2012
sv