1. These are two appeals under Section 110-D of the Motor Vehicles Act and can he disposed of together by a common judgment. They are directed against a common order made by the Motor Accidents Claims Tribunal of South Kanara at Mangalore (Tribunal), in Misc. Cases (MVC) Nos. 75, 82, 183 and 84 of 1970. They relate to the awards made in Misc. Cases (MVC) Nos. 75 and 82 of 1970 respectively. The appellant is common and he is held liable to pay the damages awarded in the said two claim cases.
2. The material facts briefly are as follows: - On 18-4-1970 at about 6-30 P.M., a tourist taxi No. MYX 7558 (hereinafter referred to as the Udipi Taxi) belonging to the appellant here in, was proceeding from Udipi to Mangalore. When it reached the junction of the main road and the road branching off to Pavanji, it collided with a car bearing No. MYX-1620 (hereinafter referred to as the Mangalore car) which was proceeding from Mangalore to Udipi, and was about to take a turn to Pavanji. After the collision, the Udipi taxi proceeded further for about 20 feet and dashed and injured a ten-year old boy by name Bharathisha who happened to be sitting on the road side on a guard-stone, as a result of which the right leg of the boy, above the knee, had to be amputated and he had to undergo treatment for a long time. As a result of the collision, two persons travelling in the Udipi taxi, the driver of Mangalore car and the boy aforementioned were injured. It is the case of the claimants that the vehicles were being rashly and negligently driven giving rise to a claim for actionable negligence.
3. The claim petitions in Misc. Cases (MVC) 75 and 82 of 1970 have been filed pursuant to Section 110-A of the Motor Vehicles Act by the driver of the Mangalore ear and the injured Bharatisha. In regard to the two passengers of the Udipi taxi, similarly claim petitions Misc. Cases (MVC) 83 and 84 of 1970 came to be filed. We are not concerned in these appeals with the awards made in the latter two cases.
4. Since it is the case of some of the claimants that both the vehicles were guilty of actionable negligence, in Misc. Case (MVC) 82 of 1970 the owners, drivers and the insurance companies of both the vehicles have been impleaded as respondents. In Misc. Case (MVC) 75 of 1970, which is a petition by the driver of the Mangalore car, the owner, driver and insurer, Indian Mercantile Insurance Co. Ltd., of the Udipi Taxi alone have been made the respondents, At a subsequent stage of the proceedings before the Tribunal, the alleged driver of the Udipi taxi, one Seetharama Shetty who had been arrayed as respondent 3 in some petitions, has been given up and his name therefore for all practical purposes was considered as deleted from the record. Since we are concerned only with the liability of the Indian Mercantile Insurance Co. Ltd. in these appeals, it is unnecessary to refer to the other insurer as a party. However, in the present appeals all the parties including the insurers and the driver of Udipi taxi, who had been originally shown as parties before the Tribunal, have been arrayed as parties.
5. The petitions were resisted by the owners of both the vehicles, by throwing the blame for the accident on the other. In addition, the owner of the Udipi taxi, the appellant in both the appeals, denied that Seetharama Shetty (Original respondent 3) had been driving the said vehicle and has stated that he himself was driving it. It was also pleaded that the damages claimed, namely, Rs, 10,000 and Rs, 1,25,000 in the aforesaid claims respectively, were excessive. On behalf of the insurer of the Dip taxi, i.e., Indian Mercantile Insurance Co. Ltd., while conceding that it was liable to pay compensation only unto a sum of Rest. 50,000 in respect of all the claims taken together, it was further contended that the owner of Dip taxi had committed a breach of the conditions of the policy in that he had allowed his vehicle to be driven by respondent 3 Seetharama Shetty, who had not been licensed or authorised to drive such a vehicle by any authority under the Motor Vehicles Act, and therefore the insurer was entitled to avoid the liability in question.
6. The Tribunal concluded that:
(1) the injuries sustained by the claimants were on account of the collision between the two motor vehicles in question; (2) the negligence was clearly attributable to the driver of the Udipi taxi; (3) the claimant in Misc. Case (MVC) No. 75 of 1970 was entitled only to a sum of Rs. 2,000 as compensation; (4) the claimant in Misc. Case (MVC) No. 82 of 1970 was entitled to special damages of, Rs. 4,540 on account of pain and suffering as, well as medical expenses, and general damages in a sum of Rs. 40,000 only, i.e., in all Rs. 44,540; and (5) there was a breach of the conditions of the policy in that at the relevant time the Udipi taxi was driven by an unlicenced and unauthorised driver, namely, Seetharama Shetty. On the basis of these conclusions, the Tribunal passed awards for compensation directing that the sums so awarded shall carry interest at 5% per annum from the date of the said award (31-1-1973). But in view of its conclusion relating to the plea of breach of conditions of the policy, it exonerated the insurer of the Udipi taxi from liability, Hence these appeals.
7. On behalf of the appellant, the following propositions were canvassed:
(1) that the accident in question was the result of the negligence of the driver of the Mangalore car;
(2) that the compensation awarded under the head 'general damages' namely, Rs. 40,000 for claimant in Misc. Case (MVC) No. 82 of 1970 was excessive; and
(3) that even if it were to be held that the driver of the Udipi taxi was rash and negligent, the insurer, namely, the Indian Mercantile Insurance Co. Ltd., would still be liable to pay the compensation in accordance with the provisions of the Motor Vehicles Act.
8. On behalf of the insurer, it was contended that even if the insurer was held liable to pay the compensation, its liability should be limited to what had been prescribed under Section 95 (2) (b) of the Motor Vehicles Act as in force at the time of the accident, i.e., prior to its amendment by the Motor Vehicles (Amendment) Act, 1969 (Act 56 of 1969).
9. We shall now proceed to examine these contentions in the order in which they have been set out above. On the first question relating to negligence of the driver of the Mangalore car, the evidence adduced is both oral and documentary. P.W. 1 was the injured boy Bharateesha. He has clearly averred that:
'The car which came from Udipi (Udipi taxi) came at a high speed and dashed against the car which came from Mangalore. The car coming from Mangalore, was keeping to its left.'
This evidence has not been challenged by, any one appearing on behalf of the respondents in the claim petitions. It is seen from the evidence of this boy that he had been sitting on the guard stone facing west and the road, which it is not disputed, runs north to south. He was in a position to watch the vehicles moving on the road in either direction. He is a school going boy. In these circumstances, if reliance has been placed by the Tribunal on the evidence of this witness to determine the issue of negligence, it cannot be said to be unreasonable at all. The next witness is one Rita D'Souza (P.W. 3). She was a passenger in the Udipi taxi at the time. Though she was not able to estimate the actual speed of the taxi, she has stated thus:
'I did not observe the car (Mangalore car) coming from opposite direction. I cannot estimate the speed of the car in terms of miles per hour. Still I can say that the car (Udipi taxi) was moving fast because I was sitting in it.'
Then there is the evidence of the driver of the Mangalore car examined as R.W. 1. He has deposed that on the day in question, he was travelling from Mangalore to Pavanji and had halted before a house which was situated about 40 to 50 feet from Pavanji junction. Thereafter the car moved slowly on the left side of the road with a view to turn into Pavanji road. While so turning, he put out his right hand and signalled his intention to take such a turn. Before he had gone 5 or 6 feet after commencing the turn, the Udipi taxi came in the opposite direction and after dashing against the right front portion of his car, dashed against the boy who was sitting on a guard stone about 20 feet away. He has stated that the Udipi taxi was travelling at a speed of about 50 miles per hour. The only other witness examined on behalf of the respondents is R.W. 2. His version is that he was driving the Udipi taxi on the date of the accident and at the relevant time travelling at a speed of about 30 miles per hour. When he reached the Pavanji junction, the Mangalore car came at a high speed and in an attempt to take a turn towards Pavanji, dashed against his vehicle. He has also stated that when the Mangalore car took a turn to the right, no hand signal was given, as stated by R.W. 1. Looking at the state of the oral evidence as briefly outlined above, it seems clear that it was the Udipi taxi that was being driven in a rash and negligent manner.
10. In addition to the oral evidence, the report of the Motor Vehicles Inspector who examined both the vehicles, has been marked in evidence as Ex. R-5, apparently by common consent, The said report along with the Ex. P-1, a spot mahazar drawn up soon after the accident, would show the damage suffered by both, the vehicles and give an indication of the manner in which the accident might have happened. The Tribunal has also examined the issue of negligence on the basis of this documentary evidence. Since we find ourselves in agreement with the reasoning and conclusion of the Tribunal on this aspect of the case, we need do no more than reproduce the relevant discussion in the judgment of the Tribunal, occurring in para 13 which runs thus:
'........If the Mangalore vehicle attempted to take a turn suddenly without giving signal and at a high speed, what would be the resultant phenomenon? If the car had taken a full turn to the right to the east towards Pavanji temple the impact should have been between the front portion of the Udipi car and the left mud-guard or the left door of the Mangalore car. The description of the two damaged vehicles in Ex. P-1 shows that the right side of the Udipi car and the right side of the Mangalore car had come in contact. Such a phenomenon is possible only when the Mangalore car had not taken a full turn. Therefore, it is absolutely certain that before the car actually took a turn, the collision took place. Then the question is why should the vehicles collide. There are two possibilities under which the vehicles could collide. One is, the Mangalore car driver tried to move to the right in his attempt to take a turn to the right and the car opposite came and hit or, the other possibility is that the Udipi car tried to speed through the passage in expectation of crossing the turning point without any difficulty or mishap. It is admitted by R.W . 2 that R. W. 1 took a turn to the right. The question is, whether he would have taken a turn without even signalling and especially so when a vehicle was corning opposite to him. To my mind, it appears that R.W. 1 Could not have taken a turn without signalling. Definitely he could not have taken a turn at great speed. In the very nature of things, while taking a turn, the speed had to be cut considerably and especially if the turning were to be sharp. It is admitted by R.W. 2 that he sighted the car at least from a furlong and if he had seen the Mangalore car driver taking a turn even without a signal, it was his duty to have stopped to allow him to take a full turn and pass into the adjoining road. It might be that R.W. 1 was violating the traffic rule in not giving a signal. But under such situation, prudence requires that the driver of the car from Udipi should have stopped to allow the Mangalore car to go into the adjoining road. The evidence of P.W. 1 (injured boy) and P.W. 3 (passenger in taxi) who are not interested in claiming damages from one or the other driver exclusively appears to be more truthful ...........'
In the light of the foregoing discussion, we are clearly of the view that the contention urged on behalf of the appellant in this behalf, deserves to fail.
The next contention relates to the award of general damages of Rs. 40,000 in Misc. Case (MVC) No. 82 of 1970. It is however to be noted that the appellant has not seriously challenged the award of special damages of Rs. 4,540 to the said claimant and the quantum of damages of Rs. 2,000 awarded to the claimant in Misc. Case (MVC) No. 75 of 1970. It is contended on behalf of the appellant that having regard to the resources of the father of the boy (P.W. 2) who was only a teacher in a higher primary school, it would not be reasonable to think that he would have achieved any academic distinction, which would have enabled him to take any highly profitable career, either as a Government servant or a member of any of the liberal professions, It was further submitted that no evidence worth the name had been adduced on behalf of the claimant concerned indicating that he was possessed of any such potentiality. We are not persuaded to fully agree with this contention. It is no doubt true that the boy's father was only a primary school teacher. It is also true that no evidence has been adduced to show that the boy was likely to distinguish himself in his scholastic career. But having regard to the fact that the boy's father is a teacher himself, an inference would be reasonable that he would have educated him as best as he could, and at least up to a stage when he would be in a position to earn for himself. The further fact to be noted is that the boy has been examined as PWA some three years after the accident, and it is seen from the deposition sheet that he had been attending, school not with standing the grievous injury suffered by him. This circumstance, in our opinion, to some extent would show that both the boy and the father were very much concerned with the education of the boy to better his prospects in life.
11-12. Turning now to the other facet of this contention, it was urged that the decisions relied on by the Tribunal in support of a determination of such damages were not in point. It seems to us that there is some justification for this sub, mission. Such decisions relied on by the Tribunal axe: (1) K. Gopalakrishnan v. Sankara Narayanan, : AIR1968Mad436 and Tarlochan Singh v. The State of Punjab (1970 Acc CJ 409) (Punj).
13. In Gopalakrishnan's case : AIR1968Mad436 the injured was a student aged 20 years. On account of an accident while he was going on a scooter as a pillion rider and as a result of a lorry dashing against the scooter, he suffered injuries as a direct consequence of which one of his legs had to be amputated, As against his claim for damages of Rupees 3,60,210, the Tribunal had awarded a sum of Rs. 57,685-37 P. It is not clear from the report of the case as to the circumstances on the basis of which a claim for damages running into lakhs came to be made. However, having regard to the magnitude of the claim made, it is reasonable to infer that the injured was a person of substantial means. Further, having regard to his age and his occupation as a student at the time he met with the accident, it was probable that he would have been in a position to reach a stage of academic distinction which would have enabled him to earn and further his prospects in life substantially. It seems to us that this decision could not be taken as a comparable case for the purpose of assessing compensation in the instant case.
14. In Tarlochan Singh's case (1970 Ace CJ 409 (Punj)) the injured was a 41 year old boy, He was the son of an agriculturist. One of his legs had to be amputated as a result of the accident. The Tribunal had assessed the quantum of compensation payable to him at Rs. 23,000 which later on came to be upheld by the High Court. The facts of that case would clearly disclose that e. sum of Rs. 15,000 alone had been computed under the head general damages'. This case, however, would afford some assistance in the determination of the compensation in the instant case. It is no doubt true that the Tribunal has derived assistance from the Workmen's Compensation Act only for the purpose of determination of the percentage of disability incurred by a workman whose leg is amputated. But the Tribunal has not referred to any other material or data for the determination of the general damages at Rs. 40,000. Having regard to the resources of the boy's parents and the circumstances in which they were placed, and the paucity of evidence in regard thereto, we are clearly of the view that the determination made by the Tribunal errs on the excessive side. Taking all the circumstances into consideration, we think a compensation of Rs. 25,000 would be reasonable. This contention of the appellant, therefore, has to be accepted to this extent only.
15. The last of the appellant's contentions relates to the liability of the insurer. The Tribunal has exonerated the insurer from any liability on the ground that the Udipi taxi was being driven by an unauthorised and a unlicenced driver by name Seetharama Shetty, at the time of the accident. In coming to this conclusion, the Tribunal has relied on several circumstances which are briefly as follows: - (1) that the allegations in claim statements in Misc. Case (MVC) Nos. 82, 83 and 84 of 1970 under Section 110-A of the Motor Vehicles Act disclose that the 3rd respondent Seetharama Shetty (later given up) had been driving the vehicle in question and such statements amounted to an admission; (2) that the wound certificate Ext. R-4 issued at the Winlock Hospital showed that one Seetharam was also injured in the accident in question; (3) if the appellant (Sanjeeva Shetty) had been driving the Udipi taxi, he could not have escaped injuries having regard to the manner in which the accident happened; (4) non-examination of respondent 3 on behalf of the appellant; and (5) that the burden of showing that the said Seetharama Shetty was a licensed driver was on the owner of the insured vehicle.
16. On a careful examination of the above circumstances relied on by the Tribunal with reference to the material on record, we are satisfied that they cannot be depended upon to reach the conclusion that Seetharama Shetty (original respondent 3) had in fact been driving the Udipi taxi at the relevant time.
The first circumstance refers to the pleadings in some claim statements, but the question is whether they could be treated as admissions binding upon the appellant. Those are statements made by claimants in those petitions, which had been stoutly denied on behalf of the appellant in his objections filed in that behalf. Those statements have not been substantiated by any evidence on oath given by those claimants. Indeed, the Tribunal has noticed the fact that the claimants in Misc. Cases (MVC) Nos. 82 and 83 of 1970 had not affirmed the said allegation while deposing in the witness box. Nothing also has been elicited in cross-examination of these claimants, bearing on this aspect. In this state of things, we find it very difficult to hold that the said statements could be treated as evidence against the appellant.
17. The second circumstance relates to the wound certificate Ex. R-4 issued to one Seetharama. There is no doubt that there is an indication that the injuries were suffered by Seetharama as a result of the accident under enquiry. There is no reference in the wound certificate to any one by name Seetharama Shetty. The doctor who issued this certificate has not been examined. In addition, it is seen that the two injuries suffered by the said person were only on the left arm and left elbow and no fractures were noticed. Having regard to the damage caused to the Udipi taxi on its steering, which is to the right side of the vehicle, one would normally expect a driver to be injured on the right side of his body and not on his left side as in the case of Seetharam. We do not, therefore, think that Ex. R-4 is of any assistance in coming to a conclusion that Seetharama Shetty was the driver of the vehicle, as held by the Tribunal.
18. The next circumstance relates to the absence of injuries on the appellant. The inference sought to be drawn from this circumstance is that having regard to the extensive damage caused to the motor vehicle (Udipi taxi), if the appellant had been driving the same at he time as stated by him, it is highly improbable that he would have escaped without injuries. We do not think that this circumstance is conclusive enough to hold that the appellant had not been driving the vehicle on that day. Indeed, the ,appellant's evidence before Court that he had been the driver on that day remains in our view unshaken and must not therefore be lightly brushed aside.
19. The next two circumstances can be dealt with together. The fourth circumstance relates to the non-examination of Seetharama Shetty, impleaded as respondent 3 in some of the claim petitions. In this context it is noticed by the Tribunal that the address of the said Seetharama Shetty for the purpose of service of notices had been shown as that of the appellant himself and therefore it was somewhat incumbent upon the appellant to have examined him or at least to have caused a written statement to be filed by him before court soon after service on him in the first instance. Further, the Tribunal while recognising the fact that the petitions against respondent 3 came to be dismissed on 3-3-1972, has observed that it was in the interest of the appellant himself to have summoned Seetharama Shetty and caused the production of his driving licence. We fail to see how the appellant could have taken upon himself the duty of establishing that Seetharama Shetty was a duly licensed driver, while his case all along has been that he (Seetharama Shetty) was not at all driving the vehicle on the date of the accident. We do not also think that in the eye of law any onus lay upon him at all to prove that Seetharama Shetty was a duly licenced driver.
20. The stand of the insurer has been that the owner of the insured vehicle had violated the term of the policy prohibiting the driving of the vehicle by unlicensed or unauthorised persons, and therefore could not hold the insurer liable for damages in accordance with the terms of the policy. That the onus of establishing such an allegation was on the insurer, has been laid down in Jogindra Kuer v. Jagdigh Singh : AIR1964Pat548 . The relevant enunciation reads:
'Where the insurance company takes the plea with regard to breach of the terms of the policy contending that the driver of the insured vehicle was not duly licensed or was disqualified for holding or obtaining a licence the onus lies upon the company to establish its allegations.' In the cases on hand, the insurer, in our view, has not made any attempt to discharge this burden. For all these reasons, we are unable to accept the conclusion of the Tribunal that the insurer is not liable to pay the compensation. We accordingly hold that the Insurer, Indian Mercantile Insurance Co. Ltd. is liable to pay the compensation awarded.
21. The last point for consideration relates to the limit of liability of the insurer. On behalf of the appellant, it was urged that the same was governed by the provisions of the Motor Vehicles Act as amended by Act 56 of 1969 (Amendment Act), which provides for a higher limit of liability, although the date of the policy was anterior to the coming into force of the said Amendment Act. Reliance in this behalf was placed on a ruling by us in B. R. Kamath v. Devaki, (M F. A. No. 373 of 1973 decided on 2-71974) (Kant). For the insurer-respondent, placing reliance on a later ruling of a Bench, in the Premier Insurance Co. Ltd. v. Padma Srinivasan (M. F. A. No. 19 of 1973 decided on 9-1-1976) = (Reported in (1976 Kant LJ 168) to which one of us was a party, it was contended that the limit of such liability towards third parties, as the present claimants, was only Rs. 20,000 in all in accordance with the terms of the policy issued before the amendment Act. It was also contended that the Amendment Act was prospective in its operation governing only the policies issued subsequent to its coming into force on 2-3-1970.
22. It is common ground between the parties, that if the Amendment Act were not to apply to the case, the limit of liability of the insurer, was only Rs. 20,000 in all. Indeed, no argument was addressed to the contrary by any of the parties before us.
23. It is no doubt true that in B. R. Kamath's case M, F. A. No. 373 of 1973, D/- 2-7-1974 (Kant) it has been held that the provisions of Section 95 (2) of the Motor Vehicles Act as amended by Amendment Act applied in regard to a claim which arose subsequent to such amendment, the policy concerned, however, having been issued prior to such amendment. But what is noteworthy about the decision is that it had been rendered on the basis of a concession made on behalf of the insurer concerned therein. In our view, therefore, the ratio of this decision must be confined to the facts of that case, and cannot, therefore, be considered as a precedent binding on us in these appeals.
24. In the case of Premier Insurance Co. Ltd. (1976 Kant LJ 168) in the context of a similar question which had directly arisen, it has been clearly held that the amendment by Act 56 of 1969 to Section 95 (2) of the Motor Vehicles Act would only apply to claims arisen in connection with the policies of insurance issued subsequent to coming into force of such amendment. In the instant case, the policy concerned had been issued anterior to the aforesaid amendment and, therefore, the ratio of this decision, which is binding on us, clearly applies. The contention of the appellant, therefore, has to fail and that urged on behalf of the insurer clearly deserves acceptance. The result is that the liability of the insurer. The Mercantile Insurance Co. Ltd. in respect of the claims for compensation concerned in these appeals has to be limited to Rs. 20,000/-and the same apportioned proportionately between the two claimants concerned herewith, So apportioned, the claimants in Misc. Case (MVIC) 75 of 1970 and Misc. (MVC) 82 of 70 will be entitled to receive sums of Rs.1,270 and Rs. 18,730 respectively.
25. As a result of the foregoing these appeals partly succeed and are allowed accordingly. We make the following order: -
(1) The award in Misc. Case (MVC) No. 75 of 1970 is modified by a direction that the insurer will pay a sum of Rupees 1,270 towards its share of the liability together with interest thereon at 5% per annum computed from the date of the award (i.e. 31-1-1973) to the date of payment. In other respects, the award remains undisturbed;
(2) The award in Misc. Case (MVC) No. 82 of 1970 stands modified as follows: -
(i) The quantum of general damages of Rs. 40,000 will stand substituted by Rs. 25,000;
(ii) The insurer, the Indian Mercantile Insurance Co. Ltd. will pay a sum of Rs.18,730 together with interest thereon at 5 % per annum from the date of the award (31-1-1973) to the date of payment.
In other respects, the award remains undisturbed.
26. These appeals are disposed of accordingly. In the circumstances, all the parties will bear their own costs.
27. ordered accordingly.