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Madras Motor and General Insurance Co. Vs. Katanreddi Subbareddy and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 493 of 1972 and Memo of Cross Objections
Judge
Reported inAIR1974AP310
ActsMotor Vehicles Act, 1939 - Sections 110-A, 110-D; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 22 - Order 43, Rule 2
AppellantMadras Motor and General Insurance Co.
RespondentKatanreddi Subbareddy and ors.
Appellant AdvocateT. Venugopal Reddi, Adv.
Respondent AdvocateS. Dasaratha Rami Reddi and N. Subba Reddy, Advs.
Excerpt:
.....not maintainable. (ii) liability of insurance company - sections 110-a and 110-d of motor vehicles act, 1939 - appeal filed by insurance company repudiating claim of third parties - contended that company not liable to third parties travelling through vehicle of others and injured - section 110 to 110-f provides for claim for compensation in respects of accidents involving death or injury to persons including third parties arising out of use of motor vehicles - held, insurance company liable to third parties for injuries sustained. - - 1000/- clearly the appeal was barred by s. pokanti ankayya, (1972) 1 andh pra lj 47. in both those cases it was clearly held that section 96 was not applicable to proceedings before the claims tribunal .sri venugopala reddy drew my..........which are before me and subba reddy has preferred cross objection. 2. section 110-d (2) of the motor vehicles act prescribes that no appeal shall lie against any award of a tribunal if the amount in dispute in the appeal is less than two thousand rupees. the compensation awarded to sundarami reddy was only rs. 1000/- and the appeal filed by the insurer was therefore valued at rs. 1000/- clearly the appeal was barred by s. 110-d (2). the appeal is accordingly dismissed with costs.3. before dealing with the insurer's appeal against subba reddy, i will deal with the cross-objection filed by subba reddy. the learned counsel for the insurer raised an objection to the maintainability of the cross-objection. he argued that the act made no provisions for the filing of cross-objection and.....
Judgment:

1. On 26-6-1968 a motor car proceeding towards Hyderabad collided with a stationary motor lorry at a check-post about six miles from Hyderabad. The car belonged to one Dasaradharam Reddy who was however not travelling in the car at the time of the incident. It was driven by Srinivasulu, a driver employed by the owner. Subba Reddy and Sundarami Reddy two advocates of Nellore, friends and legal advisers of the owner of the car, were travelling in the car at the time of the accident. Both received injuries. Sundarami Reddy not very seriously but Subba Reddy quite seriously - he lost the use of an eye. Subba Reddy and Sundarami Reddy filed O.P. Nos 188 and 189 of 1968 before the Motor Accidents Claims tribunal claiming compensation of Rs. 22500/- and Rs. 4350/- respectively. The owner and driver of the car and the insurer were impleaded as parties to the petition. The petitions were contested. It was alleged that the accident was not due to the negligence of the driver. That finding was not disputed before me. It was also claimed by the insurer that neither the terms of policy nor the provisions of the Act made the insurer liable for injuries caused to passengers travelling in the motor car. The contention was overruled by the tribunal. The tribunal awarded compensation of Rs. 8,000/- to Subba Reddy and Rs. 1,000/- to Sundarami Reddy. The insurer's liability was fixed at Rs. 6,475/- and Rs. 825/- respectively. The Tribunal disallowed costs to the claimants on the ground that their claims were exaggerated. I will have to say something about this later. The insurer preferred two appeals which are before me and Subba Reddy has preferred cross objection.

2. Section 110-D (2) of the Motor Vehicles Act prescribes that no appeal shall lie against any award of a tribunal if the amount in dispute in the appeal is less than two thousand rupees. The compensation awarded to Sundarami Reddy was only Rs. 1000/- and the appeal filed by the insurer was therefore valued at Rs. 1000/- clearly the appeal was barred by S. 110-D (2). The appeal is accordingly dismissed with costs.

3. Before dealing with the insurer's appeal against Subba Reddy, I will deal with the cross-objection filed by Subba Reddy. The learned counsel for the insurer raised an objection to the maintainability of the cross-objection. He argued that the Act made no provisions for the filing of cross-objection and that the provisions of Order 41, Rule 22 were not attracted to appeals under Section 110-D of the Motor Vehicles Act. The learned counsel for the cross-objector urged that once the appeal reached the High Court all the provisions in the Civil Procedure Code applicable to appeals to the High Court were automatically attracted . He also relied on the decision of the Madly Pradesh High Court in Manjula Devi v. Manjusri, 1968 ACJ 1 (Madh Pra) and that of the Delhi High Court in Delhi Transport Undertaking v. Rajkumari , 1972 ACJ 403 (Delhi).

4. Much as I am tempted to hold that cross-objections are maintainable. I am afraid I cannot do so. A claim for compensation arising out of accidents involving motor vehicles has to be made under Section 110-A of the Motor Vehicles Act in the form of an application. The application is to be made to a claims tribunal. The determination of the claims tribunal is called an award under Section 110-B of the Act. The appeal that is provided by Section 110-D is against the award of the claims tribunal. Thus the proceeding is initiated not by a plaint but by an application. The proceeding ends with an award and not with a decree. The award is therefore, not a decree within the meaning of Section 2(2) of the Civil Procedure Code since the proceeding is not a suit initiated by the presentation of a plaint to a Court. Nor is the award treated by the Act as the decree of a Court for the purpose of an appeal as in the case of awards made by a Court on reference under Section 18 of the Land Acquisition Act. In Rajagopala Chettiar v. Hindu religious Endowments Board, AIR 1934 Mad 103 (2) (FB) a Full Bench of the Madras High Court held that an order passed by the District Judge under Section 84 (2) of Act II of 1927 on an application made to the District Judge to set aside the decision of the Hindu Religious Endowments Board under Section 84 (1) was not a decree as the proceeding before the District Judge was not a suit, not having been instituted by the presentation of a plaint. In the present case, the subject-matter of appeal is not even the decision arrived at by a Court but the decision arrived at by a Tribunal. There cannot therefore be any doubt that the award of the Claims Tribunal cannot be treated as the decree of a Court. Now the provisions of O. 41 Civil P.C. apply to appeals from original decrees of Courts. In particular O. 41, Rule 22 expressly refers to the Court below and the decree appealed against Order 41, Rule 22 cannot therefore apply to appeals under Section 110-D of the Motor Vehicles Act. Rule 2 of O. 43 which deals with appeals against orders provides that the rules of Order 41 may apply to appeals from the orders specified in Rule 1 and other orders of any Civil Court from which an appeal to the High Court is allowed. Since the claims Tribunal is not a Civil Court, Order 43 Rule 2 does not also apply. The result is that the cross-objection filed by the respondent in C.M.A. No. 493 of 1972 must be held to be not maintainable.

5. In 1968 ACJ 1 (Madh Pra) the learned Judges of the Madhya Pradesh High Court held that a cross objection to an appeal under Section 110-D of the Motor vehicles Act was maintainable on the ground that so soon as the High Court became seized of the appeal all the rules of practice and procedure of the Court became applicable. It is one thing to say that the rules of practice and procedure of the Court are attracted when an appeal reach the Court but it is quite another thing to say that all appeals to the High Court must be treated and considered as appeals from original decrees. I do not agree with the decision of the Madhya Pradesh High Court. I do not also agree with the view expressed by a learned single Judge of the Delhi High Court in 1972 ACJ 403 that the whole of Order 41 , Civil P. C. is attracted as soon as an appeal reaches the High Court whether it is an appeal from an original decree or not. The memorandum of cross-objections is, therefore , dismissed but without costs .

6. I am however constrained to observe that the Claims Tribunal ought to have awarded a much higher sum than Rs. 8000/- by way of compensation to Subba Reddy . Subba Reddy an young man and an advocate aged 34 years lost the sight of one eye completely. The Tribunal was of the view the loss of the sight of one eye would not hamper his earning capacity as an advocate. On that ground he did not award any damages for the loss of future earnings . I am afraid it is difficult to agree with this conclusion of the Tribunal. But it is unnecessary to pursue the matter further. Another observation which I am constrained to make is the refusal of the Tribunal to give costs to Subba Reddy on the ground that his claim was exaggerated. Claims for compensation arising out of Motor accidents cannot be made with mathematical precision. The Tribunal was wholly unjustified in not giving costs at least on the account of compensation awarded by him.

7. Let me now turn to the appeal preferred by the insurer against Subba Reddy. The first submission of Sri Venugopala Reddy, learned Counsel for the insurer was that under the terms of the policy the insurer was under no obligation to pay compensation to persons who were travelling in the car as distinguished from third parties. I am unable to agree with the submission of the learned counsel for the insurer. The policy is what is styled as a comprehensive policy. Section II of the policy deals with liability to third parties. The first paragraph of Sec. II provides that the insurer shall indemnify the insured in the event of accident caused by or arising out of the use of the motor car against all sums which the insured shall become legally liable to pay inrespect of death or bodily injury to any person . It also provides that the insurer shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act. The expression used in the first paragraph of Section II is 'any person' and there is no reason why the expression should be interpreted so as to exclude persons travelling in the car. It may be noticed that the expression 'any person' is also used in Section 95 (1) (b) (I). But the second proviso to Section 95 (1) (b) expressly provides that liability in respect of death or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence need not be covered by the Policy unless the vehicle is a vehicle in which passengers are carried for hire or reward. There is no similar exclusion in the policy within with which we are concerned. While adopting the language of Section 95 (1) (b) (I) the Policy expressly omitted to exclude what is excluded by the proviso to that section. I therefore hold that the policy is wide enough to cover liablity incurred by the insured in respect of injury caused to the occupants of the car.

8. The next submission of Sri Vennugopala Reddy was that even if the policy was wide enough to cover occupants of the car compensation could not be awarded to such occupants of the car in a proceeding under Section 110-A of the Motor Vehicles Act . He submitted that under Section 96 (1) of the Motor Vehicles Act an insurer could be proceeded against only in respect of the liability that was required to be covered by a policy under Section 95 (1) (b). He relied on the decision of Parkashvati v. Delhi Dayalbagh Diary Limited 1967 ACJ 82 (Punj) and certain other cases to a similar effect. It seems to me that Section 96 (1) applies only to suits for compensation filed in Civil Courts. The use of the word 'judgment' in Section 96 as distinguished from the word 'award' in Section 110-B and the use of the word 'court' in Section 96 (2) as distinguished from the word 'Tribunal' to which an application is made under Section 110-A suggest that the provisions of Section 96 do not control the proceeding before the claims Tribunal. Further discussion on this question is made unnecessary in view of the decision of the Madras High Court in Gopalakrishnan v. Shankaranarayan : AIR1968Mad436 and the decision of a Division Bench of this Court in Hindustan Ideal Insurance Co. v. Pokanti Ankayya, (1972) 1 Andh Pra LJ 47. In both those cases it was clearly held that Section 96 was not applicable to proceedings before the claims Tribunal . Sri Venugopala Reddy drew my attention to the observation at page 59 of the Andhra Pradesh Law journal where the Division Bench observed that Section 96 (1) was a declaratory provision and that but for the Section even today the injured could not sue the Insurance Company as there was no privity of contract between them. These observations were made while considering the alternate argument raised by the appellant that even if section 96 was applicable to proceedings before the claims Tribunal the Insurance Company was entitled to raise pleas other than those mentioned in Section 96. It is in the context that the observations must read and understood. the decision in 1967 ACJ 82 (Punj) and similar cases do not take notice of the fact that Section 96 does not apply to proceedings before the Claims Tribunal. Sri venugopal Reddy argued that the object of Chap. 8 of the Motor Vehicles Act which was entitled 'Insurance of Motor Vehicles against third party risks' was to provide for compulsory insurance to cover risks to third parties arising out of the use of motor vehicles. It is true that such appears to have been the object of Chapter 8 of the Act initially. But when the Act was amended in 1956 and Sections 110 to 110-F were introduced the object appears to have been to provide for the establishment of a Tribunal to adjudicate upon all 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property to a third party so arising or both.' The object was no longer confirmed to compulsory insurance against third party risk. It was enlarged so as to provide for speedier adjudication of all claims for compensation arising out of motor accidents. I do not therefore, agree with the submission of Sri Venugopal Reddy.

9. Before parting with the case I would like to quote the observations of Lord Denning in Motor Insures' Bureau v. Conell, 1970 ACJ 144 (C. A.) about providing for compulsory insurance for passengers also.

'Many people think the Act should be altered so as to provide compulsory insurance for passengers. I think so too. It is very hard on a passenger that he should be injured by the negligence of the driver and have no recourse for damages. I hope that Parliament will soon remedy the position. Menwhile, I would suggest that anyone, who asks for or accepts a lift should ask the driver : 'Are you insured for passengers or not ?' for, if he is not and there is an accident he may be unable to get any compensation.'

10. In the result C. M. A. No. 493 of 1972 is dismissed with costs.

11. Appeal dismissed.


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