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Shivahari Rama Tiloji and Another Vs. Kashi Vishnu Agarwadekar and Others - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberFirst Civil Appeals Nos. 29, 32 and 33 of 1983
Judge
Reported in[1986]60CompCas682(Bom); 1985MhLJ22
Acts Motor Vehicles Act - Sections 95 and 95(2); Motor Vehicles (Amendment) Act, 1956; Motor Vehicles (Amendment) Act, 1969
AppellantShivahari Rama Tiloji and Another
RespondentKashi Vishnu Agarwadekar and Others
Excerpt:
company - liability of insurer - section 95 (2) of motor vehicles act - limit of liability of insurer in respect of insurer prescribed in sub-clause (4) is subordinate to overall limit of insurer's liability - if total compensation payable to victim of motor vehicles accident does not exceed overall limit of liability insurer would be liable to pay such compensation in toto - if compensation exceeds that outer limit insurer would be liable upto said limit - owner being liable for payment of excess thereof - subordinate limit of liability prescribed in sub-clause (4) constitutes only minimum limit of liability of insurer towards any individual passenger who gets injured or dies in motor vehicle accident - consequently liability of insurance company is upto limit of insurance policy. -..........ultimately caused their death.3. applications for compensation under the relevant provision of the motor vehicles act were filed. such applications were resisted by the appellants and by the seventh respondent, the insurance company. the latter's case was that in that in any event, its liability was limited to rs. 5,000 only per passenger by virtue of the provisions of section 95(2) (b) (ii) (4) of the motor vehicles act (hereinafter referred to as 'the act').4. the learned presiding officer of the motor accidents claims tribunal recorded a finding that the accident was due to the rash and negligent driving of the bus by the second appellant and, considering the relevant factors, awarded compensation of rs. 15,000, rs. 12,000 and rs. 20,000 to the heirs of the said manohar, shankar and.....
Judgment:

Couto, J.

1. These three appeals are directed against an award made on March 30, 1983, by the Motor Accidents Claims Tribunal, Panaji, and give rise to a common question of law. Hence, they will be jointly disposed of by this judgment.

2. A tragic accident took place of February 25, 1973, at about 7.30 p.m. at Assagao. The bus GDT 2017, belonging to the first appellant and driven at the material time by the second appellant, went off the road, overturned and fell on one of its sides. The said vehicle had earlier left Siloam to proceed to Casissua, Chapora, carrying a number of people for a dinner party. As a result of this accident, Manchar Tamonkar, Shankar Sonu Verneker and Vishnu Soma Agarwadekar sustained serious injuries that ultimately caused their death.

3. Applications for compensation under the relevant provision of the Motor Vehicles Act were filed. Such applications were resisted by the appellants and by the seventh respondent, the insurance company. The latter's case was that in that in any event, its liability was limited to Rs. 5,000 only per passenger by virtue of the provisions of section 95(2) (b) (ii) (4) of the Motor Vehicles Act (hereinafter referred to as 'the Act').

4. The learned presiding officer of the Motor Accidents Claims Tribunal recorded a finding that the accident was due to the rash and negligent driving of the bus by the second appellant and, considering the relevant factors, awarded compensation of Rs. 15,000, Rs. 12,000 and Rs. 20,000 to the heirs of the said Manohar, Shankar and Vishnu, respectively. He further held that the liability of the insurance company, the seventh respondent herein, would be limited to Rs. 5,000 plus interest at the rate of 6% p.a. in each compensation awarded. It is against this part of the award that these appeals are directed.

5. Mr. Ramdas Kolwalkar, learned counsel appearing for the appellants, submitted that the learned presiding officer of the Motor Accidents Claims Tribunal has erred, inasmuch as he has limited the liability of the insurance company to Rs. 5,000 only in each compensation awarded by him. He contended, relying on the authority of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi : [1982]1SCR860 and of the Allahabad High Court in New India Assurance Co. Ltd. v. Mahmood Ahmad [1984] ACJ 390: AIR 1984 ALL 183: [1986] 59 Com Cas 291 and Om Prakash v. Rukmini Devi, : AIR1982All389 and of the Patna High Court in National Insurance Co. Ltd. v. Chhunnu Ram : AIR1984Pat1 that the provisions of sub-clause (4) has to be read in the context of section 95, particularly of sub-section (2). The expression 'any one accident' occurring therein is to be construed from the subjective angle of the injured person and not from the angle of the vehicle involved in the accident. He urged that the only limit of the liability of the insurer is the one prescribed in sub-section 2(ii), clause (b), sub-clause (4) fixing only a minimum liability per passenger. He further contended that, therefore, if the compensation awarded to the totality of passengers did not exceed the aforesaid limit of compensation. Sub-clause (4) would not operate. However, if such compensation exceed the outer limit, then, the excess will be the liability of the owner of the vehicle.

6. Mr. Ferdino Rebello, however, joined issue and contended that the ruling of the Supreme Court in Modi's case : [1982]1SCR860 is of no assistance to the appellants since the observations made are in connection with the provision of section 95(2)(a) and not of clause (b). He then urged that the wording of sub-clause (4) is exceedingly clear and it is patent that the Legislature placed a ceiling on the compensation to be awarded to a passenger of a motor cab or of any other motor vehicle. To construe the said provision of law in the manner suggested by the learned counsel for the appellants would amount, according to Mr. Rebello, to cause violence to the language of sub-clause (4) and to force a meaning incompatible with its language. He placed reliance in support of this submission on the decision of the Kerala High Court in the case of Madras Motor and General Insurance Co. Ltd. v. V. P. Balakrishnan [1982] ACJ 460 and further contended that the decision of the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. : AIR1971SC1624 has not been disapproved by the Supreme Court in Modi's case : [1982]1SCR860 and, therefore, still stands.

7. Thus, the question that falls for my consideration is whether the liability incurred by an insurer in respect of any one accident, where the vehicle involved is one in which passengers are carried for hire or reward or by reason of or in pursuance of a contract, is limited to Rs. 5,000 for each individual passenger under the provisions of section 95(2) (b) (ii) (4) of the Act. I will now, therefore, address myself to the said question.

8. Section 95, as it stood at the time of the accident, reads in the part which is relevant for our case as under :

'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 cooperative 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) .....

(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 - ......

(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, ...

(ii) in respect of passengers, ......

(4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case.'

9. It cannot be disputed, in view of the above quoted provisions of the law, that in insurance policy will cover only a liability incurred in respect of any one accident up to the prescribed limits. It is also apparent that such limits are of two kinds : one as regards the main and overall liability and the other, the one prescribed in sub-clause (4). This second limit of liability is, in opinion, clearly subordinate to the first as the expression 'subject to the limits aforesaid' indicates. The effect of this subordination of the limit postulated in sub-clause (4) to the overall limit, in my view, is only that the liability of the insurer will not go, in any event, beyond the said overall limit. Thus, the subordinate limit prescribed in sub-clause (4) comes into operation only where there are more than one passenger injured or having died in the accident. In fact, it seems that the said limit was prescribed to facilitate the apportionment of compensation among the various victims of an accident up to the overall limit of liability of the insurer. It further appears in the circumstances, and considering the compulsoriness of the insurance in order to assure, at least up to that limit, payment of compensation to the victim of a motor vehicle accident, that the said subordinate limit is to fix a minimum limit of liability which must be covered by the insurer.

10. I draw support for this view from the observations of the Supreme Court in Modi's case : [1982]1SCR860 , though such observations were made while considering the provision of section 95(2) (a) if the Act. In fact, the court, after examining and analysing the matter in detail, observed that the expression 'any one accident' occurring in section 95(2) is susceptible to two equally reasonable meanings or interpretations and, therefore, since such expression gives cause to ambiguity in the language used by the Legislature in the opening part of section 95(2), the doubt arising out of the correlation of that language with the words 'in all' which occur in clause (a) ought to be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act which deals with third party risks. The Supreme Court then held that the expression 'any one accident' occurring in section 95(2) and subsequent liability up to Rs. 50,000 'in all' in section 95(2) (a) means an accident and not from the angle of each individual person who is injured or dies in an accident and not from the angle of the vehicle and, hence, the expression 'in all' concerns each such individual separately. Section 95(2) governs both clauses (a) and (b) and thus, I see no sound reason as to why the observations and the ruling of the Supreme Court, though made while considering clause (a), will not apply to clause (b) also. I any point out that sub-clause (4) is not clear. It limits, on the one hand, the overall liability of the insurer and on the other, prescribes another limit of liability for each individual passenger. There is, as such, ambiguity in its language. In fact, if, for instance, there is only one insured passenger, will the liability of the insurer be limited to Rs. 5,000 only, or will this liability come up to the overall limit In my view, the answer to this question is to be found in the legislative policy itself. Insurance of motor vehicles was made compulsory manifestly for the purpose of assuring the victim of a motor vehicle accident the payment of a compensation, at least up to the limit of the liability of the insurer. If this is the purpose of the compulsoriness of the insurance, it becomes apparent and clear that the ambiguity in the language of clause (4) has to be resolved in a manner which is favorable to the victim of an accident. Thus, though the Supreme Court did not consider the case under section 95(2) (b) and kept the matter open by observing that different considerations may arise under clause (b), in my opinion, the ratio of Modi's case : [1982]1SCR860 , is fully attracted to clause (b) and, therefore, applies to the case before me.

11. I am fortified in the view I have taken by the decisions of the Allahabad and Patna High Courts in the cases relied upon by Mr. Kolwalkar. In fact, in Mahmood Ahmad's case, [1984] ACJ 390 (All); AIR 1984 All 183; [1986] 59 Comp Cas 291 (All); the learned single judge of the Allahabad High Court, after quoting extensively the observations in Modi's case, : [1982]1SCR860 , observed that, though that was the dictum of the Supreme Court while interpreting section 95 (2) (a) of the Act, the same interpretation can be applied to clause (b) also. He thus held that subject to the limit specified under sub-clauses (1), (2) and (3) of section 95(2) (b) of the Act, the liability of the insurance company to reimburse was at least to be Rs. 5,000, per each individual, and further that although the minimum extent of liability of the insurance company to indemnify the owner of the vehicle in respect of the compensation incurred by him due to loss of life or injury to each individual, and further that although the minimum extent of liability of the insurance company to indemnify the owner of the vehicle in respect of the compensation incurred by him due to loss of life or injury to each individual passenger in a motor accident would at least be Rs. 5,000 yet its total liability would be subject to the minimum limits prescribed. Any liability in excess thereof, if incurred by the owner, will have to be borne by the owner of the vehicle himself unless the terms of the contract of insurance provide otherwise.

12. Similarly, in Chhunnu Ram's case : AIR1984Pat1 , a Division Bench of the Patna High Court held that, in view of the decision of the Supreme Court in Modi's case, : [1982]1SCR860 , a court may perhaps in a given case award the maximum compensation even to only one passenger who might be a victim of the accident in the type of the bus he was travelling against the insurance company.

13. The view that the ratio of Modi's case : [1982]1SCR860 applies also to clause (b) was also taken in Om Prakash v. Rukmini Devi, : AIR1982All389 . In the said case, a Division Bench of the Allahabad High Court also relying on the ruling of the Supreme Court in Modi's case, : [1982]1SCR860 , held that in a case falling under section 95(2) (b) of the Act, the compensation has to be awarded by looking at it from then angle of the injured person and not from the angle of the accident.

14. It is no doubt true that in Sheikhupura Transport's case, : AIR1971SC1624 , the Supreme Court, while dealing with a case falling under section 95(2) (b) has observed that the limit of insurer's liability prescribed under section 95(2) (b) of the Act can be enhanced by any contract to the contrary, and, therefore, held that, considering all the relevant provisions of the Act, it was clear that the statutory liability of the insurer to indemnify the insured is as prescribed in section 95(2) (b) of the Act. In Modi's case : [1982]1SCR860 , the Supreme Court made a specific reference to its earlier decision in Sheikhupura Transport's case, : AIR1971SC1624 , and after quoting from the said decision, observed that in view of the limit on the insurer's liability in respect of each passenger, the argument on the construction of the words 'any one accident' have no relevance in Sheikhupura Transport's case, : AIR1971SC1624 , and it was, therefore, neither made or considered by the court, and further, that different considerations may arise under clause (b) as amended by Act 56 of 1969. It was, however, also observed that the court did not propose to decide the said question, and, therefore, it is clear that it was left open by the Supreme Court. As I already observed, I find no sound reason as to why the observations made by the Supreme Court in Modi's case : [1982]1SCR860 , should not apply to a case falling under section 95(2) (b) of the Act. Section 95(2) of the Act governs both clauses (a) and (b) and, therefore, the expression 'any one accident' occurring therein has, in my opinion, to be read in both clauses (a) and (b). This being so, in my view, the ruling of the Supreme Court in Sheikhupura's case, : AIR1971SC1624 , is distinguishable and it is the ruling in Modi's case : [1982]1SCR860 , that is attracted.

15. A reference may be made also, at this stage, to the decision of the Kerala High Court in Madras Motor and General Insurance Co. Ltd. v. V. P. Balakrishnan [1982] ACJ 460. A Division Bench of the Kerala High Court, while dealing with a situation similar to the one before me, observed in paragraph 10 as under :

'Reliance on the above passage may at the first flush appear to be sound. But it can be seen that the plaintiff cannot sustain the support that he seeks from the passages quoted above. It has to noted that the Supreme Court in that case was concerned with section 95(2) (a), as it existed on February 1, 1966, when the collision in that case took place. The Supreme Court referred to the changes that section 95(2) underwent from time to time and traced its history to appreciate the scope of the contention raised in that case. It was after considering the section as it stood after amendment by the Motor Vehicles (Amendment) Act 100 of 1956, that it was held that insurance company could be made liable for an amount in excess of the statutory limit of Rs. 20,000 as it stood then and that on the basis that each injured was involved in a separate accident. The question that fell for consideration before the Supreme Court in that case was whether the award of damages of Rs. 29,125 to the legal representatives of the driver who died in the accident and the passenger who travelled in the car was proper, in view of the limit of Rs. 20,000 fixed by the section as it to be stood. We do not think it necessary to consider the applicability of the ratio of that decision for the reason that we are in this case concerned with the section as it stands after the amendment brought to section 95(2) of the Motor Vehicles Act, by the Motor Vehicles (Amendment) Act, 56 of 1969, which came into force on March 2, 1970. By the said amendment, section 95(2) (b) (ii) (4) has been introduced which reads as follows :

'(4) Subject to the limits aforesaid ten thousand rupees for each individual passenger where the vehicle is a motor cab and five thousand rupees for each individual passenger in any other case.'

The plaintiff's counsel found it extremely difficult to reconcile his submission with this sub-clause. He could not pursue his submissions based on the ratio of the decision under reference when confronted with this sub-clause. We have given our anxious consideration to this aspect of the case in view of the principle settled by the Supreme Court in the above decision. We hold that the decision could be distinguished of its facts. The section applicable in the present case is the amended section 95(2) as it nor stand with effect from March 2, 1970. Clause (4) limits the claim of each individual passenger in a case like thin to Rs. 5,000. Therefore, we hold that the appellant in A.S. No. 36 of 1977 could be made liable only for an amount of Rs. 5,000 in respect of each injured individual passenger and that the decree against the third defendant has to be modified accordingly restricting its liability to Rs. 5,000 instead of Rs. 20,000 decreed by the court below.'

16. It is clear from the quoted observations that the decision of the Kerala High Court is based exclusively in the wording of sub-clause (4) of the Act. It, however, appears that the Division Bench of the Kerala High Court did not analyse the said sub-clause (4) in detail and have thus failed to appreciate that the said provision of law is ambiguous in its language. No explanation was sought to be given for the existence of two limits of liability and as to how to reconcile them, and further, the purpose of the compulsoriness of the insurance had not been considered in the context of section 95. In my view, as I have already observed, the fact that insurance was made compulsory in order to assure a victim of a motor vehicle accident of quick payment of the compensation is of vital importance and makes all the difference. Thus, with the utmost respect of their opinion, I am unable to agree with the learned judges of the Kerala High Court and to accept their above referred view.

17. I am, therefore, firmly of the opinion that the limit of liability of the insurer in respect of insured passengers prescribed in sub-clause (4) is subordinate to the overall limit of the insurer's liability. Therefore, it the total compensation payable to the victim or victims of a motor vehicle accident does not exceed the overall limit of liability, the insurer will be liable to pay such compensation in toto. If, however, the compensation awarded exceeds that outer limit, the insurer would be liable up to the said limit, the owner of the vehicle being liable for the payment of the excess thereof. The subordinate limit of the liability prescribed in sub-clause (4) constitutes only the minimum limit of liability of the insurer towards any individual passenger who gets injured or dies in a motor vehicle accident.

18. In this view of the matter, these appeals partly succeed. Accordingly, while affirming the award in its generality, it is held and declared that the liability of the insurance company, the seventh respondent herein, goes up to to the limit of the insurance policy. The impugned award is, therefore, modified accordingly. Costs by the respondents.


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