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Sharda Prasad Singh Vs. Maharashtra State Road Transport Corporation and Others - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Judge
Reported inII(1984)ACC208; [1986]59CompCas782(Bom)
ActsMotor Vehicles Act, 1939 - Sections 95(2), 95(5), 96(2), 110, 110(1) and 110F; Workmen's Compensation Act
AppellantSharda Prasad Singh
RespondentMaharashtra State Road Transport Corporation and Others
Excerpt:
.....of motor vehicles act, 1939 and workmen's compensation act - lower court restricted liability of insurance company to extent of rs. 50000 - appeal against order - section 96 (2) read with section 95 (2) (d) prescribes statutory compensation - there was nothing in act to prohibit insurance company from expanding limits of its liability by contract of insurance - in case there was judgment or decree against person insured and judgment was in respect of liability covered by policy then insurance company is bound to pay amount decreed - held, insurance company liable to pay whole of decretal amount of rs. 72176. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of..........to the rash and negligent driving is concerned. pradip sawant, p.w. 1, has stated that the tanker driver was at fault whereas shri jos, the driver of the tanker, has stated in his deposition that it was the deceased, muley, who was responsible for the accident. according to shri patel, having regard to the circumstances and facts brought on record, this is a case where it could be safely said that both the drivers were equally responsible for the accident. it was a case of contributory negligence and, therefore, the learned judge of the trial court committed an error in holding that the driver of the tanker alone was responsible for the accident. he also contended that it is not proved that the amount paid to the dependants of shri shirodkar and shri muley were paid under the.....
Judgment:

Dharmadhikari J.

1. This is an appeal filed by the appellant against the judgment and decree passed by the Civil Judge, Senior Division, Alibag, dated September 30, 1981, in Special Civil Suit No. 26 of 1976 direction the appellant-original defendant No. 1 to pay an amount of Rs. 72,176.49 towards the claim made by the Maharashtra State Road Transport Corporation arising out of an accident in which th Ambassador car of the Corporation was badly damaged and two of its employees died on of the Corporation was badly damaged and two of its employees kind on the spot and the third one suffered certain injuries. It is not disputed that on March 15, 1978, Sarvashri Shirodkar and Sawant were in the car belonging to the Corporation and Shri Muley was at the wheel. According to the plaintiff-Corporation, the car was being driven with due care and in a moderate speed obeying all the relevant rules and regulations. When it came near milestone No. 137/6 on Bombay-Konkan Goa Road in village Lohar Mal, there was a narrow culvert on the road. At that time, the tanker owned by the appellant-defendant No. 1, Sharda Prasad Singh, and driven by defendant No. 2 was coming from the opposite direction and was proceeding to Bombay slide. Seeing that the tanker was coming an excessive and uncontrollable speed, the driver of the staff car swerved it to the extreme left side of the road and halted it to enable the tanker to pass through the culvert. However, as the tanker was being driven in a rash and negligent manner, the driver could not control it. As a result of it, the tanker dashed against the off-side front portion of the staff car with great force resulting in the staff car being dragged for about 15 feet from the culvert. The tanker capsized on the eastern side of the road with its head towards Ratnagiri side. The staff car was dragged backward for about 15 feet diagonally across the road and ultimately capsized on the same side of the road with its head towards Bombay side. Due to the impact and dragging of the staff car, the two occupants, namely, Shirodkar and Muley, died on the spot and the third occupant, Shri Sawant, sustained injuries. According to the plaintiff, the accident took place because defendant No. 2, the driver of the tanner, drove it in a rash and negligent manners. It was the case of the plaintiff that as a result of this accident, the staff car was smashed and the plaintiff was required to occur an expenditure of Rs. 23,000 for its repairs. Since the staff car remained idle for about 10 months, the plaintiff was put to loss to the extent of Rs. 10,000. The plaintiff had also to pay a sum of Rs. 23,100 to the dependants of Shri Shirodkar and Shri Muley under the provisions of the Workmen's Compensation Act. The plaintiff was required to grant leave to Shri Sawant for a period of 103 days on account of his disability due to the multiple injuries sustained by him in the accident and thereby incurred expenses to the extent of Rs. 1,4/6.49. Thus, the plaintiff had claimed in the suit Rs. 33,000 buy way of damages and idle charges qua the staff car and Rs. 47,678, paid to the dependants of the deceased under the provisions of the Workmen's Compensation Act.

2. The defendants denied the various allegations made in the plaint. Defendant No. 1 admitted that he is the owner of the tanker and the defendant No. 2 was the driver. They also admitted that defendant No. 3, the insurance company, with which the tanker involved in the accident, was insured at the relevant time. However, according to the defendants, the tanker was being driven at a moderate speed with due care and caution as per the traffic rules. It was on the correct side of the road. However, it was the driver of the staff car who was driving the car rashly and negligently. Thus, the accident took place because of the rash and negligent driving of Shri Muley, the driver of the staff car. Therefore, the claim made by the plaintiff was denied in toto. On the basis of these pleadings, the learned judge of the trial Court framed necessary issues. In support of the suit, the plaintiff examined Pradip Sawant, one of the occupants in the car and who was also injured, Vijay kumar Saidanna Vigampalli, who proves the repair charges of the staff car, Pandurang Vithal Shirgaonkar, the witness to the spot panchanama, and Anant Narayan Dharap who proves the payment made to Sanghi Motors Bombay Ltd., towards the repair charges, and the amount paid to the dependants of Shri Muley and Shri Shirodkar under the provisions of the Workmen's Compensation Act. On behalf of the defendants, Shri Jos the driver of the tanker-is examined. After appreciating all the evidence on record, the learned judge of the trial Court came to the conclusion that it was the driver of the tanker who was driving the vehicle rashly and negligently. He negatived the contention raised by the defendants. Having recorded a finding that it was the driver of the tanker who was responsible for the accident, the learned judge allowed the plaintiff's claim for Rs. 23,000 towards the damage caused to the car, Rs. 1,500 towards the damages for the car remaining idle for 10 months and for Rs. 46,2000 towards the amount paid by the plaintiff to the dependants of the deceased, Shri Muley and Shri Shirodkar, and for Rs. 1,476.49 towards the disability leave granted to the injured, Shri Sawant. Thus, the claim made by the plaintiff was allowed to the tune of Rs. 72,176.49. However, the learned judge restricted the liability of defendant No. 3, the insurance company, to the extent of Rs. 50,000 only. As already observed, it is this judgment and decree which are challenged in the present appeal by the owner of the tanker, the appellant.

3. Shri Patel, the learned counsel for the appellant, contended before us that the learned judge of the trial Court committed an error in accepting the evidence of Pradip Sawant, the witness for the plaintiff. According to the learned counsel, the said evidence is inconsistent with the pleading of the parties. The learned judge also committed an error in basing his finding on the final position of the vehicle after the accident is not a guide to decide as to who was driving the vehicle in a rash and negligent manner not are wheel marks on the road relevant for deciding the said question. Ultimately, there is word against word so far as the evidence relating to the rash and negligent driving is concerned. Pradip Sawant, P.W. 1, has stated that the tanker driver was at fault whereas Shri Jos, the driver of the tanker, has stated in his deposition that it was the deceased, Muley, who was responsible for the accident. According to Shri Patel, having regard to the circumstances and facts brought on record, this is a case where it could be safely said that both the drivers were equally responsible for the accident. It was a case of contributory negligence and, therefore, the learned judge of the trial Court committed an error in holding that the driver of the tanker alone was responsible for the accident. He also contended that it is not proved that the amount paid to the dependants of Shri Shirodkar and Shri Muley were paid under the provisions of the Workmen's Compensation Act nor is it proved that an expenditure of Rs. 23,000 was incurred for the repairs to the staffs car. Shri Patel also contended that in any case the learned judge committed an error in restricting the liability of the insurance company to Rs. 50,000 only when under the contract of insurance, defendant No. 3 was liable to pay Rs. 50,000 towards the damage to the property of the third party. So far as the Compensation payable for the death of Shri Shirodkar and Shri Muley is concerned, on each count the insurance company was liable to pay Compensation to the extent of Rs. 50,000 in view of the decision of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, : [1982]1SCR860 . He also contended that the civil Court had no jurisdiction to entertain the suit in view of the provisions of section 110F of the Motor Vehicles Act.

4. On the other hand, it is contended by Shri Hegde, the learned counsel appearing for respondent No. 1, that, after appreciating all the evidence on record, the learned judge of the trial Court has rightly come to the conclusion that it was the driver of the tanker who was solely responsible for the accident. The learned judge was also right in accepting the evidence of the plaintiff that an amount of Rs. 46,200 was paid to the dependants of the deceased, Shri Shirodkar and Shri Muley, under the provision of the Workmen's Compensation Act and the plaintiff has proved that it has paid Rs. 23,000 to the Sanghi Motors Bombay Ltd. towards the repairs of the car. However, he supported the contention of Shri Patel so far as the liability of the insurance company is concerned.

5. Shri Kudrolli, the learned counsel appearing for the insurance company, contended before us that so far as the liability of an insurance company is concerned, under the provisions of section 96(2) read with section 95(2)(d) of the Motor Vehicles Act, the said liability is restricted to Rs. 2,000 only and, therefore, the learned judge of the trial Court was right in restricting the total liability to Rs. 50,000 only so far as the insurance company is concerned.

6. With the assistance of the learned counsel appearing for both the sides, we have gone through the entire evidence on record. P.W. 1, Pradip Sawant, was the occupant of the car. He has stated in his evidence that the staff car was proceeding by the left side of the road and there was a culvert on the road near the spot of accident. Therefore, Shri Muley, the driver of the road near the spot of accident. Therefore, Shri Muley, the driver of the staff car, lowered the speed of the car. At that time, the tanker was coming in a high speed from the opposite direction and it dashed against the car on the driver's side. The car was pushed back and he does not know what happened thereafter since he lost his consciousness. He has then spoken about the injuries sustained by him. Nothing useful has been brought in his cross-examination. In the cross examination, he reaffirmed that he saw the culvert and the tanker coming from the opposite direction, when the car was at a distance of 500 feet from the culvert. The collision took place when the car was at a distance of 10 to 12 feet from the culvert. He also stated that the car was on the left side . Then he has spoken about the amount received by him towards the sick leave. THe panch witness, P.W. 3, Shiragnonkar, has proved the panchanama. He has stated in his deposition that the driver's side of the car was pressed and both the vehicles were lying on the side of the road to the east of the causeway and there were tyre marks on the kaccha road. Thus, the evidence of Sawant gets substantial corroboration in the evidence of this witness and the recitals in the panchanama. On the other hand, defendants No. 1 is relying upon the evidence of truck diver, Shri Jos. He has deposed in his evidence that from the opposite direction, one truck was coming towards Ratnagiri side. In this, process the car came to the wrong side of the road and dashed against the tanker. He did not see the car coming from the opposite direction as the truck was in the front of his oil tanker. He did admit that the oil tanker turtle. In the cross- examination, he was confronted with his earlier statement made before the criminal Court wherein he has stated that he was not driving the tanker at all. Thus,in substance the driver of the tanker has taken different stands, one before the criminal Court and another before the civil Court. If his evidence is read and considered with the evidence of the panch witness and the recitals in the panchanama, then it is quite obvious that the witness is not telling the truth. It is no doubt true that there is word against so far as the actual collision is concerned. However, the version given by Shri Sawant is not only consistent but is also supported by the evidence of panch witness and recitals in the panchanama. In view of this, we are wholly satisfied that the learned judge of the trial Court was right in accepting the testimony of Shri Sawant and rejecting the evidence of Shri Jos. Since we generally agree with the appreciation of the evidence as well as the finding recorded by the learned judge of the trial Court in that behalf, it is not necessary to reproduce the whole evidence or the reasons in support of the said finding over again. In our view, the learned judge of the trail Court was wholly right in holding that the collision took place because of the negligence of the tanker driver and the driver of the car, Shri Muley, was in no way responsible for the collision. Once this finding is recorded, then the argument advanced by Shri Patel that this was a case of contributory negligence cannot be accepted.

7. So far as the proof of the claim is concerned, Shri Sawant has stated in his deposition about the amount received by him towards the sick leave. P.W. 2, Vijaykumar, has stated in his evidence that the M.S.R.T.C. has paid Rs. 23,000 to Sanghi Motors Bombay Ltd. towards the repair charges. He has also produced on record the bills received from the Sanghi Motors. He has also proved the claim towards idle charges. P.W. 4, Anant Dharap, has proved the payment made to the dependants of the deceased, Shri Muley and Shri Shirodkar. He has given the details of payment including the cheque numbers, etc. He has stated in his deposition that his amount was paid under the provisions of the Workmen's Compensation Act. THe evidence of these witnesses is not seriously challenged in the cross-examination . In these circumstances, we have no hesitation in coming to the conclusion that the plaintiff-Corporation has proved the claim made in the suit and, therefore, the decree passed buy the trial Court in that behalf is wholly justified.

8. However, it was contended by Shri Patel, the learned counsel for the appellant, that since the claim made in this suit was towards the damage to the property of the owners of the vehicle, the same could have been preferred under section 110(1) read with section 110(1)A(aa) of the Motor Vehicles Act and, therefore, the jurisdiction of the civil Court was wholly barred by section 110F of the said Act. According to him, the learned judge of the trial Court committed an error in overruling the preliminary objection raised in that behalf, vide his order dated December 31, 1980. It is not possible for s to accept this contention of Shri Patel . We are dealing with a case wherein the plaintiff has filed a suit also for the recovery of the amount paid by it to the dependants of the deceased, Shri Shirodkar and Shri Muley, under the provision of the Workmen's Compensation Act. It is also claiming an amount of Rs.23,000 towards damages to its own property, i.e., to the staff car. Therefore, the suit filed by the plaintiff is a composite one. Under section 13 of the Workmen's Compensation Act, the plaintiff-Corporation was entitled to recover the amount paid by it to the dependants of the deceased, Shirodkar and Shri Muley. It is not disputed that the plaintiff-Corporation could not have made such a claim under section 110(1) of the Motor Vehicles Act. However, in view of the amended provisions of section 110A(1)(aa) of the Act, being the owner of the property, namely, the owner of the staff car, to would have instituted a claim qua property before the Motor Accidents Claims Tribunal under section 110(1) of the said Act. However, in view of the proviso to section 110(1), since the claim made in that behalf was for Rs.23,000, i.e., for more than Rs.2,000, the plaintiff had an option either to institute the claim before the Motor Accidents Claims Tribunal or to refer it to civil Court for adjudication. Once the option is exercised and the claim is referred to the civil Court, then under the said proviso, the Motor Accidents Claims Tribunal has no jurisdiction to entertain any question retain to such claim. The provisions of section 110F of the Act will, therefore, not apply to such a claim. We are dealing with a case where the major part of the claim is obviously beyond the jurisdiction of the Motor Accidents Claims Tribunal. While making a claim, which is not within the jurisdiction of the Motor Accidents Claims Tribunal, the plaintiff has also made a claim towards the damaged to its own property, which could have been instituted under section 110(1) read with section 110A(1)(aa) of the Act. However, to that part of the claim, the proviso to section 110(1) squarely applies. It was a claim for Compensation in respect of the damage to property exceeding Rs. 2,000. Therefore, the plaintiff had an option either to institute the said claim before the Motor Accidents Claims Tribunal or to approach the civil Court for adjudication . The words 'refer the claim to the civil Court' as used in the proviso to section 110(1) cannot be read torn from its context. No reference by the Motor Accidents Claims Tribunal to the civil Court as such is contemplated by any of the provisions of the Motor Vehicles Act. Therefore,the word 'refer' only means to submit for determination or to file a claim. Under the proviso , the plaintiff had an option either to lodge or file a claim before the Motor Accidents Claims Tribunal or before the Civil Court. The plaintiff has chosen to institute the claim before the civil Court for adjudication and, in our opinion, rightly. The claim made by the plaintiff in the suit covers the claim of recovery of the amount paid by it to the dependants of the deceased under the provisions of the Workmen;'s Compensation Act. This claim was wholly outside the provisions of section 110(1) of the Act. For proving its claim towards the damages to the property or for the amount paid under the Workmen's Compensation Act, the plaintiff was obliged to prove that the accident took place due to the rash and negligent driving of the tanker driver. This issue is common to both the claims , namely, the claim made for the recovery of the amount paid under the provisions of Workman's Compensation Act as well as the claim towards the damage to property. Therefore, the plaintiff rightly exercised the option to institute the whole claim before the civil Court for adjudication . Since the present case is covered by the proviso to the section 110(1) of the Act, the suit is not barred by section 110F of the Act, and the trail Court had jurisdiction to entertain and decide the suit.

9. However, we find much substance in the contention raised by Shri Patel that the learned judge of the trial Court committed and error in restricting the liability of the defendant No.3, the insurance company, to Rs. 50,000 only. The amount claimed in the suit towards the Compensation paid to thee dependants of the two deceased was Rs. 46,200 which was obviously below Rs. 50,000 . Even otherwise, in view of the decision of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, : [1982]1SCR860 , the limit of Compensation of Rs. 50,000 will extend to each of the deceased . It is an admitted position that under the contract of insurance so far as the risk to the third party property is concerned, the same was covered up to Rs. 50,000. The claim suit for the damage to the property is only Rs. 23,000 which is much below the risk covered under the insurance policy. However ,it was contended ny Shri Kudrolli, the learned counsel for defendant No. 3, the insurance company, that in view of the provisions of section 96(2) read with section 95(2)(d) of the Motor Vehicles Act, the liability of the insurance company is restricted to Rs. 2,000 only. If this statutory liability is added to the liability on to the death or injury, namely, Rs.46,200, then the total liability of the insurance company will come to Rs. 48,200 only. If an amount of rs. 1,476.49 paid to injured Sawant is added to it , still the liability will not exceed Rs.50,000 and, therefore, the trail Court was wholly right in restricting the liability of the insurance company to Rs. 50,000 only. It is also contended by Shri Kudrolli that the plaintiff had filed the present suit before the civil Court and not before the Motor Accidents Claims Tribunal. In this view of the matter, the liability of the insurance company for the damaged to the property of the third party cannot exceed the statutory limit, i.e., Rs.2,000. It is not possible for us to accept this contention of Shri Kudrolli. As already observed, after the amendment and introduction of dec. 110A(1)(aa) the owner of the property can also file an application for Compensation under section 110(1) of the Act. Admittedly, the plaintiff-Corporation was the third party and in that capacity it was claiming Compensation for damages to its own property. Such a claim could have been lodged under section 110(1) of the Act. If this is so, then the proviso to section 110(1) will apply to such as claim also. Under this proviso to section 110(1) of the Act, the Corporation has exercised its option to prefer the claim before the civil Court. Therefore, in substance, it is a claim covered by the Motor Vehicles Act, though the forum choose is the civil Court. From a bare reading of section 110, it is quite clear that if the Motor Accidents Claims Tribunals are not constituted by the Government under section 110 of the Act, the persons concerned can institute their claim before the civil Court. In that case, it cannot be said that though the right exists, there is no forum available . Therefore, nothing depends upon the forum chosen. The claim for Compensation made towards the damage to the property arose out of the accident to the staff car belonging to the Corporation. Admittedly, so far as the third party property is concerned, under the insurance policy the risk covered is up to RS. 50,000. Section 96(2) read with section 95(2)(d) only prescribes statutory compulsion. It does not follow from that that it is not open to an insurer to cover the third party property risk in excess of Rs.2,000. There is no bar or embargo for covering the higher risk under the policy of insurance. As observed by the Supreme Court in Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. (P.) Ltd. : [1977]3SCR372 , the insurer is always at liberty to take policies covering risks which are not covered by compulsory insurance. Thus, the 'Act liability' is the minimum liability, but there is nothing in the Act which can prohibit the insurance company form expanding limits of its liability by a contract of insurance. It is well known that whenever higher risk is covered, the insurance company gets higher or additional premium. Section 96 compels the insurer to satisfy the judgment s against the person insured in respect of third party. If places an obligation on the insurer to pay the amount awarded against the owed of the vehicle, subject to certain conditions. The first condition is that there should be a judgment or decree against the person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the insurance company is bound to pay the amount decreed. In our view, this position is made amply clear by sub-section (5) of section 95 itself, which lays down that, notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under the said 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. If the argument advanced by Shri Kudrolli is accepted, then the very basis of contract of indemnity will lose its efficiency.

10. We are fortified in the view by the Division Bench decision of the Gujarat High Court in United India fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi, : AIR1979Guj108 , and in Bomanji Rustomji Ginwala v. Ibrahim Vali Master, : AIR1982Guj112 . The Gujarat High Court in United India Fire and General Insurance CO. Ltd. v. Minaxiben Harishchandra Joshi, : AIR1979Guj108 , has held that it is always open to a company to insure for a higher amount. If the company insures a vehicle for a higher amount, it always does so for the benefit of the insured. Therefore,if an insured is held liable to pay the claimants more than the statutory limit prescribed by section 95, the company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by the Punjab and Haryana High Court in Hans Raj v. Sukhdev Singh [1982] ACJ 435; AIR 1982 P&H; 46; and by the Andhra Pradesh High Court in Srisailam Devastanam v. Bhavani Prameelamma, : AIR1983AP297 .

11. In this view of the matter, in the present case, defendant No. 3, insurance company, is liable to pay the whole of the decretal amount which comes to Rs. 72,176.49 together with interest and the costs.

12. In the result, therefore, appeal is partly allowed. The order passed by the trial Court regarding the liability of defendant No. 3, insurance company, modified and it is held that the insurance company is also liable for the whole of the decretal amount which includes costs of the suit and future interest on Rs. 72, 176.49.

13. However, in the circumstances of the case, there will be no order as to the costs of this appeal.


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