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Reddipilli Chinna Rao and Etc. Vs. Reddi Lorudu and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberC.M.A. Nos. 688 of 1976 and 650 of 1977
Judge
Reported inAIR1980AP279
ActsMotor Vehicles Act, 1939 - Sections 96(2) and 110-C (2-A)
AppellantReddipilli Chinna Rao and Etc.
RespondentReddi Lorudu and ors.
Appellant AdvocateC.N. Babu and ;K.G., Advs.
Respondent AdvocateM.S.R. Subrahmanyam and ;S. Venkata Reddy, Advs.
Excerpt:
.....to section 96 (2). that being so, these requirements have to be satisfied. nor can it be said that the owner failed to contest the claim. - a conjoint reading of both the sections 96 (2) and 110- c (2-a) indicates that it is only when there is collusion between the person against whom the claim is made has failed to contest the claim, the insurance company is enabled to contest the claim, on all or any of the grounds that are available to the person against whom the claim has been made and not in every case where the insurance company has been impleaded'.the learned judges of the madras high court referred to the decisions of various high courts and also to the decision of the supreme court in british india general ins......something outside it'. then with regard to the observations of the supreme court, the division bench held: - 'in fact from some of the observations made by the supreme court, we are inclined to take that the decision confines the defences to sub section (2) of sec. 96 and does not permit any other defences relating to the contract of insurance on the basis of which the liability is sought to be avoided. the defences available under general law to any defendant such as those mentioned by us above are not shut out.the supreme court has categorically laid down that if the insurance policy specifies a contract that the insurance company can defend the action in the name of the insured, the insurer can in such a case raise all such defences available to the insured. literally taken this.....
Judgment:

Jayachandra Reddy, J.

1. These two appeals arise out of the order passed by the Motor Accidents Claims Tribunal Visakhapatnam, awarding Rupees 58,000/- as compensation to the claimants under Section 110-A of the Motor Vehicles Act. The owner of the bus A. A. V. 1099 and the United India Fire and General Insurance Co., Ltd., have been held to be liable to pay this amount of compensation. The bus owner is held to be liable to pay Rs. 8,000/- and the Insurance company is held to be liable to pay the balance. C. M. A. No. 688 of 1976 has been filed by the owner of the bus whereas C. M. A. No. 650 of 1977 has been filed by the insurance company. For convenience sake the parties will be referred to as they were arrayed in O. P. 36 of 1972 before the Motor Accidents Claims Tribunal.

2. The 1st petitioner is the wife and petitioners 2 and 3 are the daughter and son and petitioners 4 and 5 are the mother and father of late Reddi Joannes who died at about 6-50 A. M. on 12-1-1972 in the bus accident. The bus A. A. V. 1099 belonging to the 1st respondent was insured with the 2nd respondent. On the date of accident the deceased, who was working as Supervisory Instructor in the Hindusthan Shipyard, was going to the place of his work on a scooter at about 6-50 A. M. The bus came in a reverse gear suddenly and dashed against the deceased. the deceased who was on the scooter, came under the two back wheels of the bus and died. Post mortem was conducted and it show the fracture of ribs and that there were multiple lacerations of right lobe of the liver. The post mortem certificate show that the bus ran over the victim. The deceased was drawing a salary of Rs. 622-21 Ps. The petitioners claimed an amount of Rs. 2,25,000/- towards compensation for the loss of earning power. It was alleged that the accident occurred due to the rash and negligent act of the driver in coming in the reverse gear with high speed without blowing the horn.

3.The first respondent filed a counter stating that he is the owner of the bus in question which was running in route No. 7. He alleged that the driver was a careful driver and that the deceased was only a learner and could not properly drive the scooter and control himself and that there was no negligence on the part of the driver.

4. The 2nd respondent, viz., the insurance company, in a separate counter reiterated that there was neither negligence nor rashness on the part of the driver of the bus and that the accident was due to the rash and negligent driving of the person driving the other vehicle and there was contributory negligence of the deceased also.

5. On the basis of these pleadings necessary issues were framed and the relevant findings are that there was negligence on the party of the driver of the bus and there was no contributory negligence on the part of the deceased and that the claimants who are the legal representatives of the deceased are entitled to the compensation. The Tribunal after taking all the circumstances into consideration passed the award for Rs. 58, 000/-.

6. It is contended on behalf of the appellants that there was no negligence on the part of the driver and that there was contributory negligence on the part of the deceased. P. Ws. 3 and 4 are the material witnesses on whose evidence the petitioners relied to show that there was negligence on the part of the driver of the bus. The bus involved in the accident was running in route No. 7 and the same having come to Chavulamadumu bus stop did not stop at the bus shelter, but proceeded ahead behind bus No. 15 and as bus No. 15 had moved on, the bus in question stopped ahead and suddenly came back in the reverse gear and the deceased who was proceeding behind the bus on the scooter went underneath the bus and was caught behind the two wheels. The evidence of these witnesses establishes that the driver suddenly reversed the bus and came back. The appellants herein no doubt relied on the evidence of R. W. 1 who is the checker in the bus. His evidence only shows that there was lot of rush and that the bus went ahead and stopped and then reversed in a normal way. This aspect was not stated in the counter. That apart, it is established beyond doubt that the bus was reversed suddenly. Exs. A-10 to A-17 show that the scooter was found underneath the two back wheels of the bus. Unless it was reversed at a high speed, this could not have happened. Further, R. W. 1 has improved his version. The post mortem certificate shows that the bus ran over the deceased. This could happen only when the bus came in the reverse direction. Nobody can expect a bus to suddenly come back in a reverse direction. It is due to sheer negligence on the part of the driver the accident happened. P. Ws. 3 and 4 are independent witness and their evidence, which is consistent with the circumstantial evidence, has to be accepted. The Tribunal below has rightly held that the accident was due to the rash and negligent driving of the bus by the driver and that there was no contributory negligence on the part of the deceased.

7. It is next contended that the amount of compensation awarded is rather excessive. In Gobald Motor Service Ltd. v. Veluswami : [1962]1SCR929 it is held thus: -

'In calculating the pecuniary loss to the dependants many imponderables enter into the calculation. Therefore , the actual extent of the pecuniary loss to the dependants may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained'.

In the matter of ascertaining the pecuniary loss there is absolutely no hard and fast rule. The facts and circumstances obtaining in every case have to be taken into consideration. In the instant case the 1st petitioner, the widow, is employed getting only a salary of Rs. 320/-. Petitioners 2 and 3 are minors who are aged 4 and 9, respectively. They need the support of their father for about 15 years in the case of 3rd petitioner and 20 years in the case of 2nd petitioner. So far as petitioners 4 and 5 are concerned, they would also be getting the support of the deceased some years. The lower Court considered that the pecuniary loss would be at Rs. 350/- per month, and if calculated for 21 years on that basis the total amount would be Rs. 1, 26, 000/-. But having regard to the fact that a lump sum is being paid which is likely to earn some interest, the multiplier was fixed at 14 years and on that basis the lower Court awarded the amount of Rs. 58,800/-. Out of this, the 1st petitioner was given Rupees 10,000/- the 2nd petitioner Rs. 19,000/- the 3rd petitioners Rs. 5,000/- and the 5th petitioner was given 5,000/-. It can thus be seen that the Tribunal below has kept in view the proper guidelines in fixing the compensation. It has not acted arbitrarily. Having regard to the age of the deceased and future promotions that he would have got and the pecuniary loss to the claimants, it can, by no stretch of imagination, be said that the amount fixed is excessive.

8. In this context it is also necessary to notice another legal aspect, viz., whether it is open for the insurance company to question the quantum of compensation. In this connection it must be noted that under Section 96 (2) of the Motor Vehicles Act, the defences open to the insurer as against the claim of third party in respect of the policy issued by it, can be only on certain stated grounds. In British India General Insurance Co. Ltd. v. Itbar Singh, : [1960]1SCR168 , their Lordships of the Supreme Court considered the scope of Sec. 96 (2) of the Motor Vehicles Act and held thus: -

'Now the language of sub section (2) seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given 'shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely', after which comes an enumeration of the grounds. It would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. If it were not so. Then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute.' The defences enumerated in Section 96 (2) are limited and do not extend to the quantum of compensation. The observations made by the Supreme Court in the above decision in this regard are clear and categorical. Following the decision of the Supreme Court, number of High Courts have held that the insurance company cannot question the quantum of compensation. Vide Ayesha Begum v. G. Veerappa, 1966 ACJ 101 (mad); Kasturi lal v. Prabhakar, : AIR1971MP145 ; Venguard Insurance Co. Ltd. v. Shafali Mukherji, 1970 ACJ 245 (All); B. Apparao v. Dunna Mukunda Rao, 1973 ACJ 222 (Orissa) and Ramesh Chandra v. Randhir Singh, : AIR1977All330 . In the last cited decision a Division Bench of the Allahabad High Court referred to all these decisions of the various High Courts, and held that the defences open to an insurance company in a claim under S. 110 of the M. v. Act were restricted to those specified in Section 96 (2) of the said Act. However, a Division Bench of our High Court in Hindusthan Ideal Insurance Co. Ltd. v. Pokanti Ankaiah (1972) 1 APLJ 47) took a different view in this regard. In the first instance the learned single Judge Krishna Rao, J. who heard the appeal filed by the Insurance Company against the orders of the Accident Claims Tribunal, relying on the decision of the Supreme Court in British India General Insurance Co. Ltd. v. Itabar Singh, : [1960]1SCR168 , held that the Insurance company cannot raise the plea that the compensation awarded is excessive. As against that, the insurance company preferred a letters Patent Appeal which was allowed and the Division Bench however, after referring to the above mentioned decision of the Supreme Court, held thus:-

'We have already seen that Section 96 (2) merely enumerates the defences available to the insurance company and Section 96 (6) enjoins that the insurance company shall not be entitled to avoid its liability otherwise than in the manner referred to in sub section (2). The section nowhere says expressly that these are the only defences available to the insurance company and no other. Interpretation of a section normally should not be made which would have the effect of adding some words to it'. The Division Bench further held thus: -

'Section 96 (2) read with sub sec. (6) therefore, has to be read in a manner which will not deprive the insurance company of its right to raise such pleas under the common law which do not affect the liability but affects something outside it'. Then with regard to the observations of the Supreme Court, the Division Bench held: -

'In fact from some of the observations made by the Supreme Court, we are inclined to take that the decision confines the defences to sub section (2) of Sec. 96 and does not permit any other defences relating to the contract of insurance on the basis of which the liability is sought to be avoided. The defences available under general law to any defendant such as those mentioned by us above are not shut out.

The Supreme Court has categorically laid down that if the insurance policy specifies a contract that the insurance company can defend the action in the name of the insured, the insurer can in such a case raise all such defences available to the insured. Literally taken this defence would not be permissible under Section 96 (2) read with sub section (6). It is true that in such a case it is said that the insurance company defends the action in the name of the insured. But that hardly would be a justification to permit such a defence if Section 96 (2) read with sub section (6) is rigidly confined to the defence available under subsection 92) and to no other defences even under the common law. In our view, that is not the view of the Supreme Court. From no part of the judgment the learned Advocate for the respondent could point out that the Supreme Court wanted even to shut out the defences such as mentioned by us above. The Supreme Court nowhere says that either expressly or even by necessary implication any such appreciation of the Supreme Court's decision would be erroneous'.

These observations of the Division Bench in our view are opposed to the consistent view of all other High Courts that the defences open to the insurer are limited and that he cannot question the quantum of damages. The Division Bench of our High Court, having made the above observations, further proceeded that even otherwise the amended subsection (2-A) of Sec. 110-C of the Motor Vehicles Act can be relied upon by the insurer and can question the quantum of damages. Even here, with great respect we must say, the Division Bench has erred. Sub section (2A) of Section 110-C reads thus: -

'Where in the course of any inquiry, the claims Tribunal is satisfied that -

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made'. A plain reading of the sub section shows that the following requirements are to be satisfied before impleading the insurer and permitting him to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made: -

(1) In the course of enquiry the Tribunal must be satisfied that there is collusion between the person making the claim and the person against whom the claim is made, or that the person against whom the claim is made has failed to contest the claim,

(2) The Tribunal must record its reasons, and

(3) Then implead the insurer as a party to the proceedings.

The section contemplates that the impleading of the insurer and permitting him to raise all those defences, are subject to the satisfaction of the Tribunal and it must also give reasons in writing. Sub section 92-A) of Section 110-C is an exception to section 96 (2). That being so, these requirements have to be satisfied. In the case before the Division Bench the owner of the lorry, though remained ex parte in the initial stages was later permitted to participate in the enquiry and he got himself examined and also advanced arguments. There is nothing to show that there was either collusion between the claimant and the person against whom the claim was made. Nor can it be said that the owner failed to contest the claim. We are only pointing out these aspects to show that the ratio laid down by the Division Bench regarding the scope of Sec. 110-C is also not altogether correct. It is for the Tribunal to take the necessary steps under Section 110-C and the Division Bench has overlooked this aspect. We are supported in our view by a Division Bench of the Madras High Court in United India Fire & General Insurance Co. Ltd. v. Parvathy, 1979 ACJ 101, wherein the learned judges held thus:-

'A conjoint reading of both the sections 96 (2) and 110- C (2-A) indicates that it is only when there is collusion between the person against whom the claim is made has failed to contest the claim, the insurance company is enabled to contest the claim, on all or any of the grounds that are available to the person against whom the claim has been made and not in every case where the insurance company has been impleaded'. The learned judges of the Madras High Court referred to the decisions of various High Courts and also to the decision of the Supreme Court in British India General Ins. Co. Ltd. v. Itbar Singh, : [1960]1SCR168 , and thereafter held: -

'The decisions referred to above seems to lay down the following two exceptions to the limitation contained in the provisions of section 96 (2) as to the nature of the defences that are open to the insurer in a claim under Section 110-A one exception is that contained in Sec. 110-C (2-A) where there is a collusion between the claimant and the insured or where the insured has not chosen to defend the proceedings. The second exception is where the insurance policy itself enables the insurer to defend that action in the name of the insured in respect of the claims arising under the policy'. Though we are unable to agree with the views taken by the Division Bench of our High Court in Hindusthan Ideal Insurance Company's case 91972) 1 APLJ 47, we do not propose to refer the matter to a Full bench, as we are not accepting the contentions of the appellants even with regard to the quantum. Therefore, it is unnecessary to have a further detailed discussion in this regard.

9. In the result, the appeals are dismissed with costs.

10. Appeal dismissed.


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