Kerala High Court
K.R. Visalakshi And Ors. vs Pookodan Hamza And Ors. on 29 March, 1988
Equivalent citations: I(1989)ACC30, AIR1989KER192, AIR 1989 KERALA 192, (1989) ILR(KER) 1 KER 384, (1989) 1 TAC 64, (1989) 1 ACC 30, ILR (1989) 1 KER 384, (1988) 2 KER LT 802, (1989) 1 CIVLJ 38, (1988) 2 CURCC 1054
JUDGMENT
1. These appeals arises from The judgments and awards of the Motor Accidents Claims Tribunal. Manjeri in Motor Accidents Claims Nos. 170, 133, 134, 155 and 168 of 1982. Those were applications filed by the persons who were injured in an accident involving stage carriage No. KLH 8204 which was proceeding from Vazhikadavu to Trichur, and a contract carriage bus No. KET 1714 which was proceeding from Trichur to Nadukani. The vehicles collided at a place called Muppini in Malappuram District on 1-2-1982. The driver of the stage carriage KLH 8204 filed M.A.C. No. 170/82 claiming an amount of Rs. 50,000/- as compensation for the injuries sustained by him. Respondents 1 to 3 in that application were the owner, driver and insurer of the contract carriage No. KET 1714. Respondents 4 and 5 were the owner and insurer of the stage carriage KLH 8204. He claimed that the accident occurred and be sustained the injuries due to the negligence on the part of the driver of the contract carriage. The Tribunal awarded an amount of Rs. 10,000/- as compensation by its judgment and award dt. 21-1-1983. The owner, driver and insurer of the contract carriage No. KET 1714 were made jointly liable to pay the amount. The owner and insurer of the contract carriage are the appellants in M.F.A. 272/83.
2. M.A.C. Nos. 133, 134, 155 and 168 of 1982 were filed by passengers in the stage carriage No. KLH 8204. They had impleaded the driver, owner and insurer of the contract carriage, and the driver, owner and insurer of the stage carriage as respondents in the applications. In M.A.C. No. 133/82, the applicant claimed an amount of Rs. 50,000/-as compensation. The Tribunal found that the drivers of both the stage carriage and the contract carriage were rash and negligents, awarded an amount of Rs. 32,000/- as compensation jointly against the two sets of owners, drivers and insurers and since the amount was less than the insurance liability, the Tribunal directed that the insurers of the respective vehicles would pay the compensation in equal proportion. The claim in M.A.C. 134/82 was for one lakh of rupees as compensation. The claimant in M.A.C. 168/82 claimed an amount of Rs. 20,300/-. The claim in M.A.C. 155/82 was for Rs. 45,000/-. The Tribunal, in its separate judgments, awarded Rs. 22,000/-, Rs. 4,300/- and Rs. 7,500/- respectively as compensation and on the finding that both the drivers were rash and negligent, the Tribunal directed that each set of drivers, owners and insurers shall pay 50% of the compensation awarded, and directed recovery of the amount from the insurers in view of the fact that the amounts awarded were within the insurance limits. As in M.F.A. No. 272 of 1983, the owner and the insurer of the contract carriage No. KET 1714 are the appellants in the other four appeals also.
3. Counsel for the appellants submitted that the Tribunal ought to have tried all the five claim petitions together and should have disposed them of by a common judgment. He stated that an application for this purpose was filed before the Tribunal, but the same was not granted, with the result that in respect of the same accident, the Tribunal entered two different and conflicting findings. In M.A.C. No. 170/82 filed by the driver of the stage carriage No. KLH 8204, the Tribunal found that the accident occurred due to the negligence of the driver of the contract carriage KET 1714 only, whereas in respect of the same accident and on the basis of almost the same evidence, the Tribunal entered a finding that the accident was due to the rashness and negligence of both the drivers. Consequently, the Tribunal awarded recovery of the entire amount of compensation from the owner, driver and insurer of the contract carriage, whereas in the other four claims, the Tribunal directed recovery of 50% of the amount of compensation alone from them, directing the other 50% to be recovered from the owner, driver and insurer of the stage carriage No. KLH 8204. He also submitted that the two different interpretations have been adopted by the same Tribunal on almost the same evidence tendered by the drivers of the two vehicles. This, according to him, has resulted in an avoidable anomaly.
4. Counsel for the respondents in this appeal objected to the entertainability of a joint appeal by the owner and insurer of the contract carriage. We submitted that the owner, who has not been made liable to any amount as compensation, has not suffered any legal grievance and could not therefore have filed the appeal as a "person aggrieved" under Section 110D of the Motor Vehicles Act. He submitted further that the insurer being confined to the defences under Section 96(2) of the Motor Vehicles Act, cannot obviously file an appeal under Section 110D of the Motor Vehicles Act to urge contentions other than those available under the former provision. A third submission was that the defence adopted by the owner and the insurer before the Tribunal being inconsistent and contradictory, they cannot join in one appeal against the award of the Tribunal. A number of decisions of various High Courts, were referred to us, taking slightly different, and in some cases, diametrically opposite views on the matter. Some of the High Courts took the view that the owner of a vehicle which was involved in an accident and against whom recovery of compensation was not ordered in an award under Section 110B of the Motor Vehicles Act, would not be a person aggrieved so as to file an appeal under Section 110D of that Act. It was further held that an insurer, being confined to the defences under Section 96(2)(b) only could not file an appeal against the quantum of compensation. The insured and the insurer both being incompetent to file an appeal, it was held that a joint appeal filed by them would not be entertained. That view was expressed by the Calcutta High Court in the decision reported in Kantilal and Bros. v. Ramarani Debi, 1980 Acc CJ 501: (AIR 1979 Cal 152) and by the Madhya Pradesh High Court in the decision in New India Assurance Company Limited v. Shakunthala Bai, 1987 Acc CJ 224 : (AIR 1987 Madh Pra 244). The assumptions made in all these decisions were twofold. The first was that the owner, against whom recovery of compensation was not ordered in view of the liability of the insurer, could not be held to have suffered any legal grievance, and therefore, he would not be a person aggrieved under Section 110D of the Act. Reference was made to the decision of the Supreme Court reported in Bar Council of Maharashtra v. M. V. Dabholkar, AIR 1975 SC 2092 (Para 27) where the Supreme Court observed :
"..... One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one 'a person aggrieved'. Again a person is aggrieved if a legal burden is imposed on him.
xxx xx The test is whether the words 'person aggrieved' include a person who had a genuine grievance because an order has been made which prejudicially affects his interests."
The Calcutta High Court held that the liability of paying compensation not having been placed on the owner of the vehicle, as the insurer was directed to pay the same, the owner had not suffered any grievance and therefore, he could not be treated as a person aggrieved. In United India Fire and General Insurance Co. Ltd. v. Gulab Chandra Gupta, 1985 Acc CJ 245 : (AIR 1985 All44) a Division Bench of the Allahabad High Court followed the decision of the Calcutta High Court in Krantilal's case, 1980 Acc CJ 501 : (AIR 1979 Cal 152 at p. 156) in which it was observed :
".....The grievance for which a person may appeal against must be genuine and real grievance affecting prejudicially to his interests. In the present case, there has been no legal grievance, denialor deprivation of legal right or financial interests nor any order affecting prejudicially to the interest of the owners of the offending car."
Those two decisions were followed by another Division Bench of the Allahabad High Court in the decision reported in 1986 Acc CJ 91 : (AIR 1985 All 220. The decision in New India Assurance Co. Ltd. v. Shakuntla Bai, 1987 Acc CJ 224 : (AIR 1987 Madh Pra 244) was rendered by a single Judge of the Madhya Pradesh High Court relying entirely on the decision in United India Fire and General Insurance Company's case, 1985 Acc CJ 245 : (AIR 1985 A1144). That decision rested more particularly on the conflict of interest between the insurer and owner of the vehicle and the entertainability of a joint appeal.
5. As early as in 1974, a Division Bench of the High Court of Calcutta, in Motor Owners' Insurance Co. Ltd. v. Hrishikesh Das, 1975 Acc CJ 295 : (AIR 1975 Cal 218) had taken a view that a joint appeal by the owner and insurer was perfectly competent. In Vellayya Gounder v. N. Ramanathan, 1982 Acc CJ 251, a Division Bench of the Karnataka High Court held that the owner of the vehicle against whom an award was passed was as much an aggrieved person for the reason that there could not be any liability for the insurer unless there was a liability on the owner. The Karnataka High Court referred to Krantilal's case (AIR 1979 Cal 152) and differed from that view for the following reasons :
"It is a well settled principle of law that insurance is an indemnity contract and unless the owner is made liable, there is no liability on the insurer to indemnify the owner. Hence it would not be correct to say that the owner cannot have any grievance because there is no award against him. In fact that award is against the owner and insurer; it is joint and several."
We do not propose to multiply authority on this point. We are fairly clear that a person against whom an award is passed is a person who is aggrieved by that award. He must at least be, as the Supreme Court observed in the Advocates' Act case, denied or deprived of benefits which he would otherwise have been entitled to, had the order not been made. The real question is whether he is a person who has a genuine grievance because an order has been made, which prejudicially affects his interests. According to us, the owner of the vehicle against whom the Tribunal has passed an order finding him vicariously liable for his driver's negligence is a person aggrieved.
6. We are of the opinion that a person against whom an order has been made, cannot but be a person aggrieved. We do not think that a material deprivation is essential for making him a person aggrieved. Even assuming that such an incident is essential, we still hold that the owner will be a person aggrieved for the following reasons.
7. It is one of the terms of the contract of insurance that the insured will be entitled to a no claim bonus if during the currency of the policy of insurance, no claim for compensation had arisen. The consequences of a finding against him is the deprivation of the no-claim bonus. We are not concerned about the quantum of the deprivation, but only about the fact of deprivation. We are of the opinion that there will be such a deprivation in a case where an award is passed against the owner of the vehicle. Even in the restricted sense, such an owner will therefore be a person aggrieved. We are therefore of the opinion that the owner of the vehicle is an aggrieved person entitled to file an appeal against an award of the Claims Tribunal under Section 110D of the Motor Vehicles Act.
8. We prefer the earlier view expressed by a Division Bench of the Calcutta High Court in Motor Owners' Insurance Company's case, 1975 Acc CJ 295 : (AIR 1975 Cal 218) and of the Karnataka High Court in Vellayya Gownder v. Ramanathan, 1982 Acc CJ 251 that a joint appeal by the owner and the insurer of the vehicle is permissible. In case if an appeal by the owner of the vehicle is competent and if the insurer was impleaded as a party, he may support the appeal filed by the owner. If that be competent, we fail to see any reason why the insurer shall not file an appeal jointly with the owner so that, together, they may avail of all the defences.
9. We are inclined to this conclusion for another important reason also. If the Insurer is confined only to the grounds available under Section 96(2) of the Motor Vehicles Act, and if the insured, not having been made liable to pay any amount cannot file an appeal, there may not be many appeals under Section 110D of the Motor Vehicles Act in most cases on the quantum of compensation at all. It will come to this, that the only appeals from an order or award in a claim under Section 110B of the Act will be those on grounds which are available to the Insurer under Section 96(2)(b) of the Act. The only person who can file such an appeal will be the insurer. The appeals may relate only to cases where the policy of insurance was not current or has been contravened or was non-existent or where the amount awarded was in excess of the limits set by in the insurance policy. The only appeal which an insured can file will be against an award which requires him to pay compensation not jointly with the insurer but entirely or partly by himself. We are not pursuaded to hold that the provisions of Section 110D of the M. V. Act lend itself to any such restriction of the right of appeal. None such was obviously meant by the legislature. We are of the opinion that we shall not so interpret a statutory provision as to take away or abridge a right of appeal specifically conferred by the statute.
10. We have perused the oral and documentary evidence which the Tribunal had in dealing with the claim petitions. We are of the opinion that the finding entered by the Tribunal in M.A.C. Nos. 133, 134, 155 and 168 of 1982 that the drivers of both the vehicles were rash and negligent and that resulted in the accident, was proper and fully justified. The appellants did not, rightly, challenge the correctness of the quantum of compensation awarded by the Tribunal in these appeals. We therefore affirm the judgments and awards of the Tribunal in those claim petitions.
11. The finding of the Tribunal in M.A.C. No. 170/82 was that the driver of the contract carriage alone was negligent. There is considerable force in the submission urged by the appellants that the Tribunal should have considered all the claim petitions together. In that case, possibly, the Tribunal would have entered the same finding in all the claim petitions. We are not, however, inclined to remit all the applications to the Tribunal for a joint trial. We have therefore considered the evidence of witnesses in M.A.C. No. 170/82. The claimant, who was the driver of the stage carriage KLH 8204, and a passenger of that vehicle were examined as PWs. 3 and 4. The driver of the contract carriage was examined as RW 1. The evidence of the witnesses discloses that the accident occurred at Muppini where there was a slight curve on the road. The stage carriage was coming down along the curve; whereas the contract carriage was ascending towards the curve. Both the drivers affirm that they saw the other vehicle only at the moment of impact. Both the drivers had a duty to be careful while driving on a highway, and more particularly while negotiating a curve on the road where vehicles proceeding from the other direction would not be discernible at a safe distance. The driver of the stage carriage which was descending along the blind curve had as much a duty to be careful as the driver of the other vehicle. We are of the opinion that both the drivers transgressed the limits of necessary caution and that occasioned the accident. We are therefore of the opinion that the accident occurred due to the rashness and negligence of the drivers of both the vehicles.
12. Counsel for the appellants made a very ingenious submission that the driver of the stage carriage KLH 8204 cannot claim any compensation from the insurer of that vehicle, since that part of the award against that insurer would be compensation for the negligence of the claimant himself. The proposition is seemingly attractive. But we feel that on closer examination, it deserves only rejection. Our reasons are two-fold :
(a) The appellant had not raised such a plea in its written objections. We are not persuaded that we shall now allow the appellant to raise this contention at this stage;
(b) Assuming that the appellant can raise this ground, we are not inclined to agree with him. The driver having met with an accident and suffered injuries during the course of his employment, albeit due to his negligence, is entitled to claim compensation under the Workmen's Compensation Act. The insurer has statutory duty to cover the liability of the owner of the vehicle to pay such compensation. Section 110AA of the M. V. Act gives an option to the injured employee to raise his claim either under the Motor Vehicles or the Workmens' Compensation Act. If he had filed the claim under the latter statute, he could not have been denied compensation for the reason that he was himself negligent. The only inquiry would have been whether the accident occurred out of and in the course of employment. Before the alternative forum also, he must be entitled to enforce the same claim on the same grounds and the same standard.
13. The 1st respondent in M.F.A. No. 2 of 1984, who was the applicant in M.A.C. No. 168 of 1982, has filed cross-objections. Immediately after the accident, he was removed to the District Hospital, Manjeri and was thereafter taken to the Medical College Hospital, Calicut. He had fracture of both lower canines and upper left lateral incisor and canine. There was no fracture of the Mandible. There was an injury on the chin. These facts were disclosed by the oral evidence of P.W. 1, X1 wound certificate and X2 case sheet. The Tribunal allowed Rs. 300/- for transportation charges to the hospital, and Rs. 1,000/- for treatment. Dealing with the claim for Rs. 5,000/- as compensation for pain and suffering and Rs. 15,000/- as compensation for permanent disability, the Tribunal held that an amount of Rs. 1,500/- would be just and proper as compensation for pain and suffering. Another amount of Rs. 1,500/- was allowed towards permanent partial disability as a result of the injuries caused to the teeth as disclosed by the evidence of P.W. 3, the Dental Surgeon. Altogether, an amount of Rs. 4,300/- was awarded against the claim of Rs. 20,000/-.
14. Counsel appearing for the 1st respondent submitted that the amount of compensation awarded is too inadequate and may be enhanced. We considered this submission with reference to the evidence. The claimant was hospitalised only for a very short period, namely, from the 1st to the 11th of February, 1982. The injuries sustained by him were not such as to cause great pain and suffering. The award of Rs. 1,500/- on this count does not seem to us to be inadequate. We are also of the opinion that the award of Rs. 1,500/- for partial disability of a couple of teeth does not deserve any more amount than Rs. 1,500/- as compensation. We have to remember the ground rules in fixing compensation for personal injuries, namely, (1) that the amount of compensation has to be reasonable and must be assessed with moderation; (2) that it must have some relation to awards in comparable cases; and (3) that the sum awarded should, to a considerable extent, be conventional On a reference to comparable cases decided by various Courts in India, we are not pursuaded to hold that the award of Rs. 1,500/- as compensation for partial disability suffered by the 1st respondent in M.F.A. No. 2 of 1984 is so grossly inadequate as to merit interference by us in this appeal.
15. We affirm the finding of the Tribunal about the quantum of compensation. We hold that the drivers of both the vehicles being equally negligent, the amount of compensation shall be apportioned equally between the two sets of owners, and insurers of the contract carriage and the stage carriage. M.F.A. No. 272 of 1982 is therefore allowed. The judgment and award of the Tribunal is modified. Respondents 1 to 3 in that appeal who are the owner, driver and insurer of stage carriage No. KLH 8204 will be liable to pay 50% of the amount awarded by the Tribunal along with interest at the rate of 6%. The third respondent insurer shall pay that amount since the amount is within the insurance limit. M.F.A. Nos. 273, 499 and 501 of 1983 and M.F.A. No. 2 of 1984 as also the cross-objection therein are dismissed. The parties will suffer their respective costs.