Rajasthan High Court - Jaipur
United India Insurance Co. Ltd. vs Dama Ram And Ors. on 25 November, 1993
Equivalent citations: 1994ACJ692, 1994(1)WLC655
JUDGMENT Milap Chandra Jain, J.
1. These appeals have been filed against the awards of the Motor Accidents Claims Tribunal (Addl. District Judge), Banner, dated October 18, 1989, by which it has partly allowed claim petitions arising out of same accident and has awarded various amounts as compensation to the claimants as noted below:
Sl. Number and year Name of Amount
No. of awarded
in Rs.
Misc. M.A.C.T. Deceased Injured
Appeal Case
(1) 34 of 1990 81 of 1988 Gordhan - 1,46,000/-
(2) 38 of 1990 83 of 1988 Gopa Ram - 78,000/-
(3) 39 of 1990 86 of 1988 Bagga Ram - 1,01,000/-
(4) 40 of 1990 12 of 1989 Bagta Ram - 84,000/-
(5) 33 of 1990 88 of 1988 - Dama Ram 39,000/-
(6) 35 of 1990 79 of 1988 - Mala Ram 42,000/-
(7) 36 of 1990 77 of 1988 - Amra Ram 60,000/-
(8) 37 of 1990 75 of 1988 - Rekha Ram 78,000/-
2. The facts of the cases giving rise to these appeals may be summarised thus. On November 27, 1986, truck No. RRN 1145 was going from Jodhpur to Ahmedabad via Balotra. It was loaded with stone slabs. The deceased Bagga Ram, Gopa Ram, Bagta Ram and Gordhan and injured Amra Ram, Mala Ram, Rekha Ram, Dama Ram and Kana Ram boarded it. Each one of them paid Rs. 6/- as fare to its driver Pokar Ram (non-petitioner-respondent). It was being driven rashly and negligently by him. As a result thereof, the driver lost his control and the truck got turtled in between Loharia and Nakoda on Sindhari Road. The passengers Bagga Ram, Gopa Ram, Bagta Ram and Gordhan died on the spot and Amra Ram, Mala Ram, Rekha Ram and Dama Ram (claimants) and Kana Ram received serious injuries. The truck was owned by Mohd. Rafiq (non-petitioner-respondent) and it was insured with the United India Insurance Co. Ltd. (non-petitioner-appellant) at the time of the accident. The claim petitions were filed by the legal representatives of the aforesaid deceased persons and also by the injured persons. After holding necessary trial, the Tribunal awarded the said amounts as compensation against the appellant insurance company only.
3. It has been contended by the learned counsel for the appellant that rule 133, Rajasthan Motor Vehicles Rules, 1951, did not permit any passenger to travel in a goods vehicle, there was thus a breach of the terms of the policy and as such the insurance company was not liable. He further contended that the Tribunal has passed awards only against the insurance company without making the insured liable to pay a single paisa in any case and as such no award could be passed against the insurance company. He lastly contended that the liability of the insurance company was to the extent of Rs. 15,000/- under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 (hereinafter to be called 'the Act'). He relied upon National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC) and decision of this court given in National Insurance Co. Ltd. v. Paras Kanwar 1994 ACJ 563 (Rajasthan).
4. In reply, it has been contended by the learned counsel for claimants-respondents that insurance company has utterly failed to prove that there had been a breach of terms of the policy, the said defence is not open to it and the insurance company cannot avoid its liability on the plea that the truck was used for carrying passengers against the provisions of rule 133, Rajasthan Motor Vehicles Rules, 1951. He further contended that liability under tort arises out of a wrongful act including an illegal act. He also contended that this court has power to modify the awards making the owner and driver of the offending truck liable to make payment of the amounts of compensation. He lastly contended that the interest should have been awarded at the rate of 15 per cent per annum. He placed reliance upon Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC), New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat), Badri Narain v. Chotu Ram 1986 ACJ 1062 (Rajasthan) and United India Insurance Co. Ltd. v. Dhali 1992 ACJ 1057 (Rajasthan).
5. Mr. H.R. Panwar, learned counsel for the claimants-respondents, also submitted that in Civil Misc. Appeal No. 39 of 1990 (United India Insurance Co. Ltd. v. Nathu), cross-objection has also been filed for the enhancement of the amount of compensation. He contended that the deceased Bagga Ram was 24 years old and he was employed as a driver on daily wages with the Forest Department on the day of the accident, he left behind his parents, two children and widow and the Tribunal seriously erred in holding that his contribution to his family was to the extent of Rs. 300/- only per month and in applying multiple of 20. He lastly contended that the Tribunal should have awarded at least Rs. 2,25,000/-. He relied upon New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat), Jamali v. Lakha Ram 1991 ACJ 27 (Rajasthan), Prem Kanwar v. Rajasthan State Road Trans. Corporation 1988 ACJ 65 (Rajasthan), Neemabai v. Arun Kumar 1988 ACJ 526 (MP) and Rajasthan State Road Trans. Corporation v. Dr. O.P. Gupta 1988 ACJ 527 (Rajasthan).
6. In its replies to the claim petitions, the appellant insurance company has averred that the driver of the offending truck allowed the said deceased and injured persons to board his truck after taking fare of Rs. 6/-from each one of them. This is also well proved from the evidence on record that the driver, Pokar Ram, had taken Rs. 6/- as fare from each injured and deceased who had boarded the truck. Thus the deceased and the injured were being carried for hire. According to the decision of the Full Bench of this court given in Santra Bai v. Prahlad 1985 ACJ 762 (Rajasthan), the appellant insurance company is liable to pay compensation to the injured and legal representatives of the deceased persons.
7. The Tribunal has not passed award in any case against the owner (insured) of the vehicle. It has passed awards against the appellant insurance company only. It is not in dispute that the Tribunal has categorically held that the said accident took place due to rash and negligent driving of the truck by its driver. As such his employer, namely, Mohd. Rafiq, owner of the said truck, was liable for his negligent act. Thus the Tribunal committed a serious error in not making liable the owner and driver of the offending truck to pay the said amounts of compensation. This error can well be corrected by this court by invoking the provisions of Order 41, Rule 33, Civil Procedure Code, even if no cross-objection or appeal has been filed by the claimants-respondents. It has been observed in Kok Singh v. Deokabai AIR 1976 SC 634, paras 6 and 7, as follows:
In Giani Ram v. Ramji Lal AIR 1969 SC 1144, the court said that in Order 41, Rule 33, the expression 'which ought to have been passed' means 'what ought in law to have been passed' and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.
(7) Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
Reference of Murari Lal v. Gomati Devi 1986 ACJ 316 (Rajasthan), may also be made here. Similar view has been taken by me while deciding United India Ins. Co. Ltd. v. Dhali 1992 ACJ 1057 (Rajasthan).
8. The main point for consideration in these appeals is about the extent of liability of the appellant insurance company. The contention of the learned counsel for the appellant is that the deceased and injured persons were travelling as passengers in the offending truck, sub-clause (ii) of Clause (b) of Sub-section (2) of Section 95 of the Act is applicable and not Clause (a) of Sub-section (2) of Section 95 of the Act. Section 95 of the Act, as it stood on the date of the accident (27th November, 1986), ran as under:
95. Requirements 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 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 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 his 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 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 a 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.
Explanation.For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by, or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely
(a) Where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers a limit of fifteen thousand rupees for each individual passenger;
(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party.
(4) 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 conditions 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-A) 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 such other authority as the State Government may prescribe.
(5) Notwithstanding anything elsewhere contained in any law, a person 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.
9. Clause (a) of Sub-section (2) speaks of goods vehicles only. Clause (b) is in respect of vehicles in which passengers are carried. Clause (c) deals with the other classes of vehicles. Clause (d), dealing with damage to property, stalls with 'irrespective of the class of the vehicle'. It is thus clear that the insurance coverage is on the basis of the classification of the vehicles, namely, (1) goods vehicle, (2) vehicle in which passengers are carried and (3) vehicles other than goods vehicles or passenger vehicles. It is not on the basis of the use of the vehicle at the time of accident. Clause (b) had no application because the offending truck was not registered to carry particular number of passengers. It was not registered for carrying passengers for hire or reward or by reason of or in pursuance of a contract of employment. It is, therefore, difficult to hold that when the accident took place, the offending truck was a vehicle meant for carrying passengers and it was not a goods vehicle. I find support in this view from Jayalakshmi v. Ruby General Insurance Co. Ltd. 1970 ACJ 451 (Madras) and New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat). Thus the extent of liability of the appellant insurance company is as provided in Section 95(2)(a) of the Act.
10. In Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC), their Lordships have interpreted the words 'in one accident' appealing in clause (a) of Sub-section (2) of Section 95 of the Act and held that if more than one person are injured in the course of the same transaction, each one has met with accident and each is entitled to total compensation limited by the statute from the insurance company. Thus the appellant insurance company is liable to pay the compensation to the extent of Rs. 1,50,000/- in each case. Admittedly, in all cases the Tribunal has awarded compensation less than Rs. 1,50,000/-. As such the appellant insurance company is required to pay the entire amount of compensation awarded to the claimants in these appeals.
11. In Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC), the Hon'ble Supreme Court has awarded interest at the rate of 15 per cent per annum. Thus the rate of interest deserves to be enhanced from 12 per cent per annum to 15 per cent per annum and this court has power to do so under Order 41, Rule 33, Civil Procedure Code.
12. As regards the cross-objections filed in Civil Misc. Appeal No. 39 of 1990 (United India Insurance Co. Ltd. v. Nathu), it is well proved from the evidence on record that the deceased Bagga Ram was 24 years of age, he was serving as a driver on daily wages of Rs. 18/- in the office of the Regional Forest Officer, Balotra and he was holding driving licence, Exh. 2, since May, 1984, on the date of the accident. The Tribunal calculated dependency at the rate of Rs. 300/- per month and applied the multiple of 20 and granted compensation of Rs. 72,000/- under this head. It also awarded Rs. 29,000/- under other heads. Cross-objection has been filed only for enhancement of the said amount of Rs. 72,000/-. In Jamali v. Lakha Ram 1991 ACJ 27 (Rajasthan), the deceased was 45 years old and multiple of 25 was applied. In Prem Kanwar v. Rajasthan State Road Trans. Corporation 1988 ACJ 65 (Rajasthan), deceased was 39 years old and multiple of 30 was applied. In Rajasthan State Road Trans. Corporation v. Dr. O.P. Gupta 1988 ACJ 527 (Rajasthan), deceased was 52 years old and multiple of 18 was applied holding that the average span of life is 70 years. Even taking into consideration the daily wages of Rs. 18/- and ignoring the subsequent confirmation and increase in emoluments, the dependency would have been at least Rs. 540 x 2/3 = Rs. 360/- per month. The multiple of 20 is also not reasonable. It should be 30. As such the amount of Rs. 72,000/- deserves to be enhanced to Rs. 360 x 12 x 30 = Rs. 1,29,600/-. Thus the claimants are entitled to get Rs. 1,29,600/-plus Rs. 29,000/-; total Rs. 1,58,600/-, but the appellant insurance company would be liable to the extent of Rs. 1,50,000/- only.
13. In any case, the Tribunal has not given any direction about investment of the amount of compensation. It has to be given in these appeals.
14. In the result (1) All the aforesaid appeals are dismissed with costs. The owners-respondents (Mohd. Rafiq and Mool Chand) and driver-respondent (Pokar Ram) are also made liable to pay the amounts of compensation and accordingly awards are passed against them also.
(2) The rate of interest is enhanced from 12 per cent per annum to 15 per cent per annum.
(3) Cross-objection filed in Civil Misc. Appeal No. 39 of 1990, United India Insurance Co. Ltd. v. Nathu, is partly allowed. The amount of compensation is enhanced from Rs. 1,01,000/- to Rs. 1,58,600/-. The liability of the appellant insurance company is to the extent of Rs. 1,50,000/-.
(4) In death cases (M.A.C.T. Case Nos. 81, 83 and 86 of 1988 and 12 of 1989) (Appeal Nos. 34, 38, 39 and 40 of 1990), the entire amount of compensation will be invested in Fixed Deposit Scheme of some nationalised bank fetching maximum rate of interest for at least 5 years. The Claims Tribunal may pay or allow withdrawal of reasonable amount on the ground of marriage of a girl-claimant or of education of a child-claimant. In injury cases (M.A.C.T. Case Nos. 75, 77, 79 and 88 of 1988) and (Appeal Nos. 33, 35, 36 and 37 of 1990) the amounts of compensation will similarly be invested at least for 3 years. The Tribunal may pay or permit withdrawal of reasonable amount for medical treatment of the claimant.
(5) The bank will regularly pay interest accruing on these fixed deposits. The bank will also take nominations from the claimants-respondents whose amounts are so invested.