Patna High Court
New India Assurance Co. Ltd. vs Chinta Devi And Ors. on 30 July, 1991
Equivalent citations: 1992ACJ721
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a judgment dated 16.4.1990 passed by Mr. Uma Shanker, Additional Claims Tribunal, Hazaribagh in Claim Case No. 52 of 1985, filed on behalf of the respondent Nos. 1 to 10 purported to be in terms of Section 110-A of the Motor Vehicles Act, 1939.
2. The fact of the matter lies in a very narrow compass.
3. The deceased Sheo Shanker Prasad had been travelling in a Government jeep belonging to the Posts and Telegraphs Department of the Union of India bearing registration No. BHV 3458 along with his wife, a daughter, Minni Sinha and granddaughter, Ansu Kumari. The said jeep met with an accident near Padma Gate on Patna-Ranchi Road having collided with a tanker truck bearing registration No. HYE 2349 belonging to the respondent No. 11.
4. According to the applicant-respondents, the accident occurred owing to rash and negligent driving on the part of the driver of the said tanker. The criminal case was also lodged on the basis of a frad beyan of Minni Sinha as against the driver of the tanker, namely, Ram Sanjivan, which was registered as Barhi P.S. Case No. 78 of 1985 (G.R. No. 830 of 1985) purported to be under Sections 279, 337 and 304 of the Indian Penal Code,
5. It is admitted that as on the relevant date the petitioner had been getting a salary of Rs. 2,085/- which was evidenced by the last pay certificate as contained in Exh. 5. The deceased, had he been alive, would have superannuated on the expiry of 31.3.1989. It is also admitted that the deceased at the time of his death was Superintendent of Post Office and was posted at Aurangabad.
6. Before the learned Claims Tribunal an application was filed under Section 110-A of the Motor Vehicles Act, 1939, claiming compensation to the extent of Rs. 3,31,043/-.
7. Before the court below the owner of the truck, namely, the respondent No. 5 did not appear, nor did the driver contest the case. The appellant, however, appeared before the court below and inter alia contended that it was not liable to pay any amount of compensation as claimed for by the applicant-respondent Nos. 1 to 10. It was further submitted that in any event, the claim put forth by the said respondent Nos. 1 to 10 was excessive.
8. The learned court below on the basis of the pleadings of the parties framed the following issues for its consideration:
(i) Is the claim maintainable?
(ii) Whether the accident was due to rash and negligent driving of the tanker truck No. HYE 2349?
(iii) Are the claimants entitled to claim compensation and if so to what extent and against whom?
(iv) To what relief or reliefs the claimants are entitled?
9. The learned court below upon consideration of the entire case granted an award for a sum of Rs. 3,25,765/-. Prior to that, however, an interim award of Rs. 15,000/-was directed to be paid in favour of the applicants purported to be in terms of Section 92-A of the Motor Vehicles Act, 1939.
10. The learned trial court held that the deceased would have received a salary of Rs. 1,24,437/- on the basis of revised pay scale for the period from 1.5.1985 to 31.3.1989 and have also received pension for a sum of Rs. 2,88,048/- for the period from 1.4.1989 to 31.3.2006.
The learned court below has also granted compensation to the extent of Rs. 15,000/-on the ground of mental shock and agony suffered by the applicants.
11. Mr. M.Y. Eqbal, learned counsel appearing on behalf of the appellant, had raised three contentions in support of his appeal: Firstly, the learned counsel submitted that in view of the fact that the owner of the truck, respondent No. 11, did not appear, the appellant is entitled to take all points which the owner of the truck was entitled to, in view of the provisions contained in Section 110-C (2-A) of the Motor Vehicles Act.
12. The learned counsel in this connection has placed strong reliance on New India Assurance Co. Ltd. v. Mariappan 1984 ACJ 222 (Madras), Vanguard Insurance Co. Ltd. v. Raghunath Patra 1976 ACJ 12 (Orissa) and New India Assurance Co. Ltd. v. Surjyamoni Padhi 1980 ACJ 253 (Orissa).
13. The learned counsel next contended that the learned court below has not given any finding in his judgment as to whether the vehicle in question was insured or not.
14. It was next contended that in any view of the matter, the learned court below committed an illegality in not taking into consideration the amount of family pension which the respondent No. 1 had been getting by reason of the death of the aforementioned Sheo Shanker Prasad.
15. Mr. Debi Prasad, learned counsel appearing on behalf of the respondents, on the other hand, submitted that no specific order has been passed by the learned court below recording any reasons for impleading the appellant as a party to the aforementioned claim petition as is mandatorily required under Section 110-C(2-A) of the Motor Vehicles Act, 1939.
16. The learned counsel, therefore, submitted that in this situation the appeal of the appellant must be confined to those grounds which are available to it in terms of Section 96 (2) of the said Act.
With regard to the second contention raised by Mr. Eqbal, Mr. Prasad drew my attention to the order-sheet dated 14.3.1989 and submitted on the basis thereof that not only the insurance policy number had been specified but the policy by the appellant was directed to be produced itself by the court below:
With regard to the third contention, the learned counsel submitted that no deduction was permissible from the amount of pension.
17. In this connection, reference has been made to N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC).
Re: Contention (1):
18. Section 110-C (2-A) of the Motor Vehicles Act, 1939 reads as follows:
(2-A) Where in the course of any inquiry, the Claims Tribunal is satisfied that--
(i) there is collusion between the person making the claim and the person against whom the claim is made, or
(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
19. It is true as has been contended by Mr. Prasad that in terms of the said provision, reasons have to be recorded by the court before the insurer can be allowed to be impleaded as a party to the proceeding so as to enable it to have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
20. Evidently the said provision was inserted with a view to prevent the insurer from becoming a victim of fraud or collusion at the instance of the claimant and the insured jointly.
It is true that no specific order in writing recording the reasons therefor had been passed in this case in terms of the aforementioned provisions, but it has been admitted at the Bar that the appellant was permitted by the court below to cross-examine the witnesses on all aspects of the matter including the quantum of compensation.
21. In such a situation in my opinion, the appellant is entitled to raise all contentions which the insured could do.
22. In Vanguard Insurance Co. Ltd. v. Raghunath Patra 1976 ACJ 12 (Orissa), a learned single Judge of the Orissa High Court held:
This contention of Mr. Roy is well founded. In view of the provisions contained in Sections 96(2) and 110-C(2-A) of the Act it was open to the claimant to raise an objection to the defence taken by the insurer before the Tribunal challenging the quantum of damages claimed by the claimant. The claimant does not appear to have raised any objection to the defence taken by the insurer before the Tribunal and in the absence of any objection the Tribunal allowed the insurer to cross-examine the claimant's witness on the question of damages. The records also show that the owner of the truck did not appear before the Tribunal and contest the claim of respondent No. 1. This being the state of things, in my view, there has been sufficient compliance of the conditions laid down in the aforesaid Supreme Court decision relied upon by Mr. Roy. The technical objection raised by Mr. Mohanty, therefore, fails.
23. In New India Assurance Co. Ltd. v. Surjyamoni Padhi 1980 ACJ 253 (Orissa), a learned single Judge of the Orissa High Court again reiterated the same view:
A conjoint reading of both the Sections 96(2) and 110-C(2-A) indicates that when there is collusion between the person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim, the insurance company is entitled to defend the suit on all or any of the grounds that are available to the person against whom the claim has been made. In the present case, the insured did not enter contest and remained ex parte before the Tribunal. He has also not preferred any appeal. It was contended on behalf of the respondents that the appellant should have obtained permission of the Tribunal to contest the claim. I am unable to accede to this contention. The appellant was served with a notice as contemplated under Section 96(2) of the Act and was impleaded as a party to the claim proceeding. Before the Tribunal the respondents did not take the stand that the appellant was not entitled to defend the suit without obtaining permission. The appellant was allowed to contest the claim and cross-examine the witnesses without any objection by the respondents. The appellant has been saddled with the entire liability for payment of compensation. The appellant is, therefore, entitled to challenge the quantum of compensation as also its basis in this appeal. The preliminary objection raised on behalf of the respondents is without any merit.
24. Similarly, in yet another decision in New India Assurance Co. Ltd. v. Mariappan 1984 ACJ 222 (Madras), a Division Bench of the Madras High Court held:
Apart from this, there is also another aspect of this case which compels us to remit the matter to the Tribunal. The Tribunal in the present case has refused to permit the insurance company to cross-examine the eye-witnesses on the ground that its defence is limited to matters covered by Section 96(2) of the Motor Vehicles Act. However, the Tribunal has overlooked the fact that the owner of the vehicle has remained ex parte in which case the insurance company will be entitled to put forward all the defences that are open to the owner of the vehicle under Section 110-C (2-A) of the Motor Vehicles Act, which specifically states that if the person against whom the claim is made has failed to contest the claim, the insurance company shall have the right to contest the claim, on all or any of the grounds that are available to the person against whom the claim has been made. Therefore, it is clear that the Tribunal is in error in shutting out the insurance company from cross-examining the eyewitnesses and putting forward defences open to it.
25. This aspect of the matter has also been considered by this court in New India Assurance Co. Ltd. v. Chandramauleshwar Prasad 1985 ACJ 464 (Patna):
Now I come to M.A. No. 132 of 1981. It is, no doubt, true that the insurance company cannot challenge the quantum of compensation as such and that the defence open to an insurance company in a claim under Section 110-A is restricted to those specified in Sections 95 and 96(2), and thus the insurance company cannot question the quantum of compensation. As provided under Section 110-C(2-A), the insurance company, however, can challenge the compensation where there is a collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim has been made has failed to contest the claim. The insurance company is entitled to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. It was, however, rightly contended on behalf of the appellant insurance company in this appeal that in view of the fact that the insured did not enter contest before the Tribunal, the insurance company was entitled to challenge the quantum of compensation as awarded by the Tribunal at least in respect of those of the items which were outside the ambit of the legal liabilities and not admissible in law.
Even assuming that there may be some difficulty for the insurance company to argue its appeal under the cover of Sub-section (2-A) of Section 110-C with respect to all the items of claim, the challenge at least to the amount awarded on account of the fall of the money value, must be allowed to be raised on the simple ground that it cannot be said to be a quantum of compensation claimed under the different heads by the injured. The disability created for the insurance company, even if applied with full force, could be confined only to the items of claims admissible in law and not to the ex gratia and unauthorised amounts added to the compensation. The Tribunal, in my considered opinion, committed a serious error of jurisdiction and law in enhancing the amount of compensation by almost accepting the entire amounts claimed under different heads on the plea of the fall in the money value. If this proposition is applied by courts to civil litigations, then the court will have to multiply the amount claimed by three or four times on the ground that the present value of the benefit or its equivalent supplied to the defendant had since gone much high. The only panacea that the law provides for the delays in the return of the benefit is the award of interest. There may be scope for knocking off many other items of claim in the appeal of the company, but I would decline to interfere with the award in that regard at least for one of the reasons indicated above, and prefer to take the line of least resistance.
26. In view of the aforementioned pronouncements of the different High Courts including this court, there cannot be any doubt that in the facts and circumstances of the case, appellant is entitled to question the quantum of compensation payable in favour of the applicant-respondent Nos. 1 to 10.
Re: Contention (2):
27. It is true that the learned court below in its impugned judgment has not arrived at a definite finding that the vehicle in question was insured or not.
28. However, the learned court below passed an order of interim compensation in favour of the respondent Nos. 1 to 10 in terms of the provisions of Section 92-A of the Motor Vehicles Act, 1939. The said order was not questioned by the insurer. From the order-sheet dated 14.3.1989, it appears that the appellant was directed to file the original policy in as much as the owner of the vehicle, namely, the respondent No. 11 did not contest the claim. Despite the said order, the insurer appellant did not file the said policy of insurance.
29. The Supreme Court times without number has observed that it is expected of a litigant and particularly of a 'State' within the meaning of Article 12 of the Constitution of India to place all the documents before the trial court irrespective of the fact as to whether such a document had been called for from it or not.
30. In the instant case, the appellant despite the aforementioned order dated 14.3.1989 failed to produce the said insurance policy.
31. This aspect of the matter has been considered by the Supreme Court in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), wherein it was observed:
This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in this cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State, such as the appellants, who are under obligation to act fairly.
32. In this situation, an adverse inference has to be drawn as against the appellant for deliberate and wilful suppression of a material document. In view of the fact that the appellant did not file the policy of insurance, it has to be presumed that the truck in question was insured and the policy of insurance covered the entire liability. In the event, however, the insurance company finds that its liability was limited, it may be open to it to take recourse to the provisions of Sub-section (4) of Section 96 of the said Act as against the owner of the vehicle, but for that matter the claimant-respondent Nos. 1 to 10 cannot suffer.
Re: Contention (3):
33. Mr. Eqbal submitted that as the deceased at the time of his death was drawing a salary of Rs. 2,085/- as evidenced by Exh. 5 the learned court below must be held to have committed an illegality in holding in between 1.5.1985 to 31.3.1989 he would have been entitled to receive a sum of Rs. 1,24,437/- by way of salary on the basis of revised scale of pay.
34. In my opinion no illegality has been committed by the learned court below. The learned court below has assigned cogent reasons on the basis of the material brought on record that the deceased was entitled to the salary on a revised scale of pay had he been alive.
35. The learned court below on the basis of Exhs. 8 and 9 came to the conclusion that the deceased was entitled to pension of Rs. 1,412/- per month including D.A. of Rs. 104/-.
36. The learned court below, however, committed an illegality insofar as he failed to take into consideration the fact that the respondent No. 1 had already been getting Rs. 792/- per month by way of family pension.
37. The respondent Nos. 1 to 10 were not entitled to the benefit of both the pension as well as family pension.
In such a situation, in my opinion, the amount of family pension which is being received by the respondent No. 1 should have been deducted from the amount of pension.
38. The decision cited by Mr. Prasad in N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC), is of no help to the respondents in this case. The Supreme Court in that case held that sum of Rs. 10,000/- which was paid under the dependents family benefit scheme could not have been deducted from the amount of pension. However, the situation is completely different in this case. A family pension is payable only on the death of the person who was entitled to a pension. So long as a person is entitled to receive pension no family pension would have been payable.
39. It is admitted that the respondent No. I had been receiving family pension at the rate of Rs. 792/- per month. The learned Tribunal below has considered that the respondent Nos. 1 to 10 would have been entitled to pensionary benefits for a period of 12 years. From the said amount thus a sum of Rs. 1,14,480/- has to be deducted which the respondent Nos. 1 to 10 would get by way of family pension for a period of 12 years calculating at the rate of Rs. 792/-per month.
40. Mr. Debi Prasad submitted that in any event the expectancy of life of the aforementioned Sheo Shanker Prasad being 70 years he would have been entitled to pension at the aforementioned rate up to the age of 70. The learned court below has awarded compensation, taking as if the entire amount of pension would have enured to the benefit of respondent Nos. 1 to 10 as without taking into consideration the fact that had the aforementioned Sheo Shanker Prasad been alive, then some amount was required towards his own expenditure. Thus, taking all aspects of the matter into consideration, it cannot be said that the learned court below has in granting compensation on the basis of 12 years' pension committed any illegality.
41. In this view of the matter, in my opinion, the interest of justice demands that from the awarded amount the sum of Rs. 1,14,480/- be deducted.
42. The learned court below has awarded interest at the rate of 12 per cent per annum from the date of the presentation of the petition till realisation. It has been stated by Mr. Prasad that despite the fact that the awarded amount has been deposited by the appellant, the respondent Nos. 1 to 10 could not withdraw the same as they could not furnish security therefor.
43. In this situation, the interest at the rate of 12 per cent per annum awarded by the court below shall be reckoned from the date of the presentation of the said application till the actual payment.
44. Mr. Eqbal, learned counsel for the appellant, states that the awarded amount together with interest in terms of this judgment shall be paid to the respondent Nos. 1 to 10 by way of bank draft within two months from today.
45. It would be open to the appellant to take back the bank draft which has been deposited by the appellant in this court in the names of the respondent Nos. 1 to 10.
46. In the result the appeal is allowed in part and to the extent mentioned hereinbefore.
47. However, regard being had to the facts and circumstances of the case, the parties shall bear their own costs in this appeal.