1. These three appeals arise out of Judgment and award, dated 7-1-1978, passed by the Motor Accidents Claims Tribunal Chickmagalur, in Misc. (MVC) No. 20/1976, on its file, awarding compensation of Rs. 22,000/- together with interest and costs to the injured claimant.
2. It is the case of the injured claimant Bhaskara that he and his father Thimmappa P. W. 2, boarded a lorry in Yeshawantapur in the night of 4/5-6-1976 to go to Shimoga, the lorry was bearing No. MYS. 7557. They were sitting in the seat behind the driver. The said lorry was driven by the 5th respondent in the petition. When the lorry was going at a distance of 3 miles from Mitigate and proceeding towards Kadur, at about 11-30 p. m., another lorry bearing No. MRS. 6571 belonging to the first respondent in the petition and driven by the second respondent in the petition came from the opposite direction with great speed and the two lorries collided in the middle of the road and the front glass of the lorry in which Bhaskar was sitting broke and the pieces were flung against his face and hit the left eye of the Bhaskara causing him bleeding injuries in the eye and he was immediately removed to Kadur hospital where he was given first aid and then taken to Shimoga Hospital and then to Minto Eye hospital in Bangalore. Ultimately his left eye had to be removed and he has been left without sight in the left eye. On these averments he claimed compensation of Rupees 80,000/- from the owner, driver and insurer of both the lorries, namely, respondents 1 to 6 in the petition.
3. The owner of the lorry in which Baskara was travelling denied his liability on the ground that he did not permit the driver to take any passenger. Further the driver contended that he was not liable for compensation because the accident happened due to rash and negligent driving of the other lorry bearing No. MYS. 6571. The Insurance Company denied its liability stating that it had not insured the vehicle for passengers in the lorry.
4. The driver of the other lorry, namely, respondent-2 denied that he was rash and negligent in causing the accident. On the same ground the owner as also the insurance company denied liability.
5. The Tribunal raised the following issue in the case :
(1) Whether the petitioner proves that he sustained injuries on account of collision of the lorries MYS. 7557 and MYS 6571 at 11.30 p.m, near Mitigate village on 4/5-6-1976 due to rash and negligent driving of the said vehicles by respondents 2 and 5?
(2) Whether the petitioner is entitled to claim compensation?
(3) To what compensation and from whom?
6. During hearing the petitioner examined himself as P. W. 1 and examined P. Ws. 2 to 4 in support of his case. He also got marked Exs. P-1 to P-43. As against, the first respondent examined himself as R. W. 1 and got marked Ex. R-1, the Insurance policy of the vehicle, Ex. R-2 certified copy of the F I R. in C. C. No. 583/76 on the file of the Munsiff and JMFC, Kadur and closed his case. The 4th respondent examined manager as R. W. 2 and closed his case. The 5th respondent Raman, examined himself as R. W. 3 and closed his case. The 6th respondent got marked Ex. R-3 the certified copy of the Insurance policy and closed its case.
7. The Tribunal appreciating the evidence on record held that the accident was the result of composite negligence on the part of the drivers of both the lorries. The Tribunal further held that the claimant was entitled for general damages of Rs. 20,000/- and special damages of Rs. 2,000/- and in the view it took about actionable negligence, it directed the respondents 1 to 6 to pay the compensation awarded to the claimant along with costs and interest jointly and severally. Aggrieved by the said judgment and award, the above appeals are instituted before this Court. The claimant has also filed cross-objections on the ground that the compensation awarded is low.
8. The learned Counsel for the owner of the lorry, namely, MYS 7557, appellant in M. F, A. 200/1978 strenuously urged before us that the owner of the lorry did not permit the driver to take any passenger and as such the owner was not liable to pay the compensation. He further submitted alternatively that if at all the owner was liable, the insurance company should have been held liable to pay the same. He also submitted that the compensation awarded was on the higher side.
9. The learned Counsel appearing for the appellant in M. F A. 603/19 the Oriental Fire and General Insurance Company was not liable for payment of any amount of compensation as the person was a gratuitous passenger travelling in the lorry.
10. The learned counsel appearing for appellants in M. F. A. No. 60 1978, namely the owner and insurer of lorry No. MYS 6571 argued that the owner and insurer of the lorry MYS. 6571 were not liable to pay any compensation as there was no negligence on the part of the driver of the lorry MYS. 6571. He argued alternatively that the Tribunal ought to have fixed the liability apportioning the same between the two insurance companies.
11. As against these, the learned counsel for claimant argued that the compensation awarded at Rs. 22,000/- was very much on the lower side having regard to the nature of the injuries sustained by the claimant.
12. The points, therefore, that arise for our consideration in these appeals are:
(1) Whether the Tribunal was justified in coming to the conclusion that the accident was due to composite negligence on the part of the drivers of the two lorries in question?
(2) Whether the compensation awarded is just and proper?
(3) Whether the Tribunal ought to have apportioned the liability between the two insurance companies?
13. It is 'not very much in dispute that the accident did occur when the lorries were near Mitigate in the night at about 11.30 p. m. on 4/5-6-1976, It is further not very much in dispute that both lorries collided in the middle of the road breaking the right side of each lorry. That being so, it is obvious without more, that both the lorries collided in the middle of the road and the evidence discloses that both lorries were driven with speed by their drivers, namely, respondents 2 and 5. Therefore, the Tribunal was justified in applying the doctrine of res ipsa loquitur and in arriving at the conclusion that the accident was the result of rash and negligent driving of both the lorries by their drivers. We have no reason to differ. We affirm the finding.
14. The next point that arises for our consideration is whether the owner of the lorry bearing No. MYS 7557 is liable to pay any compensation.
15. It is no doubt true that under the M. V. Act, the owner is not required to insure the goods vehicle for any fare paying passenger, except those permitted passengers who are travelling in connection with some work in the lorry, namly, pursuant to the contract of employment. If the owner wants to carry any other passenger travelling in the lorry he has to pay special premium and obtain cover for the same from the Insurance Company.
16. The Supreme Court of India had an occasion to consider the vicarious liability of the owner where the driver allowed some passengers in the car in the case of Pushpabai Parshottam Udeshi v. Ranji Ginning & Pressing Co. Pvt. Ltd. : 3SCR372 . Therein the Supreme Court quotes with approval the observations made by Lord Justice Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789 which read (at p. 1741 of AIR):
'... the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability. So far as the driver is concerned, his liability depends on whether the plaintiff was on the lorry with his consent or not...'
Then Lord Justice Denning further observed with regard to the vicarious liability of the owner thus: (at p. 1741)
'The next question is how far the employers are liable for their servant's conduct. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servant's negligence in driving. They must also be responsible for his conduct in giving the man a lift. If the servant has been forbidden, or is unauthorized, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned; but that is not of itself an answer to the claim... In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment'.
Thus, it is made clear by Lord Justice Denning that the driver is employed not only for driving the vehicle but he is also in charge of it which includes authority to give lift to the passengers because he is entrusted with the lorry or the vehicle. This reasoning of Lord Justice Denning is accepted by the Supreme Court by observing (at p. 1741 of AIR):
'Lord Justice Denning concluded by observing that the passenger was therefore a trespasser, so far as the employers were concerned; but nevertheless the driver was acting in the course of his employment, and that is sufficient to make the employers liable. It will thus be seen that while two of the learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible - authority of the foreman and the plaintiff was entitled to rely on that authority as a licensee, Lord Denning based it on the ground that even though the plaintiff was a trespasser so far as the defendants were concerned, as the driver was acting in the course of his employment in giving the plaintiff a lift. it was sufficient to make the defendants liable. Applying the test laid down there can be no difficulty in concluding that the right to give leave to Purshottam to ride in the car was within the ostensible authority of the Manager of the company who was driving the car and that the Manager was acting in the course of his employment in giving leave to Purshottam, Under both tests the respondents would be liable'.
Thus, the Supreme Court by necessary implication has approved the reasons given by Lord Justice Denning because they have specifically stated that under both tests the respondents would be liable. If that would be so, it is obvious in the instant case, since the driver allowed Bhaskara to travel in the lorry and the driver has positively sworn that he was travelling in the lorry at the request of the constable on duty, the owner would be liable vicariously to pay compensation to the injured claimant (vide Gurusiddappa C. Balaganur v. Chairman, B'Ljapur Co-operative Spinning Mills. ILR (1981) 1 Kant 360) See also Narayanlal v. Rukhmani Bai : AIR1979MP74 High Court of Madhya Pradesh (FB).
17. That leads us to the question as to whether the Insurance Company, namely, the Oriental Fire and General Insurance Company Limited, with which lorry MYS. 7557 is insured, is liable to any extent to pay the compensation. The policy is at Ex. R.3. The policy is commercial Vehicles comprehensive policy. It has given endorsement at No. 14 (b) with regard to the legal liability to non-fare paying passengers who are not employees of the insured. That reads :
'In consideration of the payment of an additional premium of Rs. 9-50 and notwithstanding anything to the contrary contained in S. II I (C) it is hereby understood and agreed that the Company will indemnify the insured against his legal liability other than liability under Statute (Except the Fatal Accidents Act, 1855) in respect of death of or bodily injury to any person not being an employee of the insured nor carried for hire or reward whilst being carried in or upon or entering or mounting or alighting from the Motor Vehicle but such indemnity is limited to the sum of Rs. 10,000/- in respect of any one such person.'
Thus, it is clear that the insurance company, for consideration of higher premium paid, has undertaken to indemnify the owner of his legal liability to the extent of Rs. 10,000/ per passenger for personal injuries. Therefore, the insurance company is clearly liable to indemnify, on the facts of the present case, the owner to the extent of Rs. 10.000 /- of his legal liability by paying the said amount.
18. That further leads us to the question of fixing liability on the owners of the two vehicles. It is settled law that in the case of composite negligence causing the accident, all the persons concerned are jointly and severally liable. It is no doubt true, however that under S. 110B of the Motor Vehicles Act, there is a statutory duty cast on the Court to fix the liability on the insurance company. It is for that we have stated that the maximum limit of Oriental Fire & General Insurance Company Limited which has insured the goods vehicle, namely MYS. 7557 is liable to the extent of Rupees 10,000/-. It was submitted before us at this stage by the learned counsel that since both vehicles are equally liable for the causing of the accident, the liability be fixed at 50 per cent on each vehicle. Hence, we fix the liability on each vehicle at 50 per cent, in causing the accident.
19. The last question that has to be considered is whether the compensation awarded in the case to the injured claimant is just and proper. The Workmen's Compensation Act gives us some guidance in the matter. It states in Sch. I at Item-25 that disability in losing one eye would be 40 per cent. The Tribunal had held that in all probability the injured would have earned Rs. 400/- per month by accepting a job and hence 40 per cent of his estimated earning at Rs. 400/- per month would be Rs. 160/- per month. Thus the annual loss of earning capacity would be Rs. 1,920/- and by taking multiple of ten the total loss of earning would be at Rs. 19,200/-. Hence, we deem it just and proper to award Rs. 20,000/- towards loss of earning to the injured person. The claimant is entitled to damages for pain and suffering and for the loss of the limb and we award Rs. 10,000 under that head Together, therefore, the claimant is entitled to Rs. 30,000/- instead of Rupees 22,000/- awarded by the Tribunal.
20. In the result. M. F. A. No. 200/1978 is partly allowed. It is directed that the Insurance Company namely, respondent shall indemnify the owner to the extent of Rs. 10,000/-. The rest of the amount due, namely, Rs. 5,000/- along with interest shall be paid to the claimant-appellant in M. F. A. No. 200/1978. The Insurance Company - Original respondent 6 shall pay Rs. 10,000/- along with interest at 6 per cent per annum from date of application till payment and also half of the cost of the proceeding to the claimant before the Tribunal.
21. M. F, A. No. 603/1978 by the insurer of the lorry is dismissed for reasons discussed above. The Insurance Company shall pay Rs. 10.0000/- along with interest at 6 per cent from date of application till payment as stated in the above appeal as also half the cost as stated above.
22. M. F. A. No. 609/1978 is partly allowed. The appellants especially appellant No 2 shall pay half of the compensation, namely, Rs. 15,000/- along with interest from date of application till payment as also half the cost before the Tribunal to the claimant.
23. Cross-objection of the claimant is partly allowed. Compensation awarded is enhanced from Rs. 22,000/- to Rs. 30,000/along with interest at 6 per cent per annum from date of application till payment and costs before the Tribunal.
24. No costs in these appeals and cross-objections
25. Ordered accordingly.