1. The order passed in this appeal will also govern the disposal of Misc. (First) Appeal No. 78 of 1982 (Paramsingh v. Krishna Devi and Ors.) as they arise out of a common award dated 27th November, 1981, passed by the Motor Accidents Claims Tribunal, Raisen (hereinafter referred to as 'the Tribunal') in M.C.C. No. 4 of 1979. Misc. (First) Appeal No. 88 of 1982 has been preferred by the insurance company with which the truck involved in the accident was insured and the other Misc. (First) Appeal No. 78 of 1982 has been preferred by Paramsingh, who is the owner of the truck.
2. The facts leading to these two appeals may be briefly stated thus : The deceased Satgurusharan was posted as Head Constable in the Police Station Obedullaganj. On 7-1-1969 at about 7.00 a.m. while he was going on his bicycle from his residence to the police station to participate in the parade and had reached in front of telephone exchange office, the truck No. MHG 2687 owned by Paramsingh and driven by Swarupsingh came from behind and crushed the deceased Satgurusharan which resulted in his instantaneous death on the spot.
3. The widow of the deceased Satgurusharan as well as his daughters and son (respondents No. 1 to 6) made a claim petition under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') claiming compensation for the death of Satgurusharan amounting to Rs. 55,680/-plus a sum of Rs. 500/- towards funeral expenses. It was alleged by the claimants that the deceased was crushed to death due to rash and negligent driving on the part of the truck driver. It was alleged that the deceased was born on 15-8-1928 and was serving as Head Constable since about 18 years before the fateful day. He was drawing Rs. 95/- and Rs. 65/- as D.A. per month (total Rs. 160/- per month). It was further averred that he would have retired on 18-8-1983 at the age of 55 years and would have earned atleast Rs. 160/- per month besides the chances of revision of pay scale and promotion. It was also averred that the deceased was enjoying robust health and his father was still alive at the age of 70 years and, therefore, the deceased would have also lived upto that age, but his life was curtailed due to the fatal accident. The claimants pleaded that the deceased used to give entire amount of his salary Rs. 160/-per month for the maintenance of his family.
4. The owner of the truck Paramsingh, non-applicant No. 1, who is appellant in M.A. No. 78 of 1982, admitted the ownership of the truck involved in the accident but contested the claim petition by contending that non-applicant No. 2 Swarupsingh (respondent No. 7 in M.A. No. 78 of 1982 and respondent No. 8 in M.A. No. 88 of 1982) was not employed with him as driver of truck nor he was driving the truck at the relevant time. He took the plea that one Chhotelal was his driver in the said truck and that truck was insured with non-applicant No. 3, United India Insurance Co. He also pleaded that in Criminal Case No. 10 of 1969, decided by the Magistrate First Class, Goharganj, he and Swarupsingh, were acquitted of the charge of rash and negligent driving. Swarupsingh, the alleged driver of the truck also took the same defence. He pleaded that he was not driving the truck on the alleged date. The appellant insurance company as non-applicant No. 3 denied the claim petition by filing a separate written statement. The insurance company took the plea that the truck belonged to Paramsingh which was insured with it only upto 28th May, 1968 and hence the insurance company was not liable as the accident took place after the period covered by the policy.
5. Learned Judge of the Tribunal allowed the claim petition by holding that the accident causing death of Satgurusharan had resulted on account of rash and negligent driving on the part of the driver of the truck and made an award of Rs. 37,840/- as compensation payable to the claimants against Paramsingh, the owner of the truck and the insurance company, holding that they were liable jointly and severally for the said compensation. No. award against Swarupsingh, the alleged driver of the truck has been made on the finding that there was no proof that he was driver of the truck or that he was driving the truck at the time of the accident.
6. Mr. R.P. Verma, learned Counsel for the appellant insurance company, first contended that the insurance company could not be held jointly or severally liable as the Tribunal had found that the truck at the relevant time was driven by some unknown person who was not having a driving licence which is a breach of condition specified in Sub-clause (ii) of Clause (d) of Sub-section (2) of Section 96 of the Act. In short his contention was that in case where the vehicle was driven by a person who does not hold a valid driving licence, the insurance company would not be liable to pay the compensation. In support of this contention he placed his reliance on the decisions reported in Mukho Devi v. Syed Hassan Zaheer, 1972 ACJ 63 (Delhi), Brijlal Khera v. Raksha Devi, 1972 ACJ 69 (P&H;) and Tarasingh v.AP-1984-0209.t1 Mangal Singh, 1978 ACJ 53 (P & H). On perusal of the record and the decisions cited above, I find that in the facts and circumstances of the present case, the contention could not be accepted. There is no dispute that if the insurance policy by which the truck in question was insured in respect of third party risk, incorporated as one of the conditions as contained in Sub-clause (ii) of Clause (d) of Sub-section (2) of Section 96 of the Act which excluded driving by named person or persons or by any person who is not duly licenced, the insurance company would not be liable if the vehicle was found to be driven by such person at the time of accident. But a perusal of the written statement filed by the insurance company will go to show that no plea was raised that there was such a condition incorporated in the contract of policy regarding exclusion of liability as contained in Sub-clause (ii) of Clause (d) of Sub-section (2) of Section 96 of the Act. Not only this but the insurance company neither produced the policy itself nor examined any witness to prove that it was one of the conditions of the policy that the insurance company would not be liable to pay the compensation if the accident with the offending truck took place when it was being driven by a person having no driving licence.
7. In order to attract Sub-clause (ii) of Clause (d) of Sub-section (2) of Section 96 of the Act, the onus of proving that the driver of the vehicle did not have a valid licence to drive the vehicle, lay heavily on the insurance company which wanted to avoid its liability under the terms of the policy but it utterly failed to establish the same. In order to determine the liability of the insurance company it would be necessary to go through the policy and the terms of the contract entered into between the parties because it is open to the insurance company to settle the terms of the contract and to cover the liability more extensively than what is contemplated under Section 95 of the Act. Thus in order to resolve the dispute whether there has been a breach of the condition of the policy excluding driving by a person who is not duly licensed, was incorporated in the policy or not, could have been determined only by looking into the terms of the policy. But since there was neither any pleading nor the policy itself on record, it cannot be held that the policy contained such a condition. This apart there is also no evidence that the person who was actually driving the truck at the relevant time had no licence. In the cases referred to above and relied upon by the learned Counsel for the appellant, it was found as a fact that the policy contained the condition that excluded driving by a person who is not duly licensed and, therefore the said decisions do not advance the contention.
8. Learned counsel for the insurance company next contended that according to the finding of the Tribunal, one Chhotelal was driving the truck and, therefore, urged that as Chhotelal was also not having licence, the insurance company could not be fastened with the liability. This contention, in my opinion, also has no substance for the reasons stated above and secondly for the reason that it has neither' been pleaded by the insurance company nor proved that Chhotelal too was having no driving licence. The burden lay upon the insurance company to prove the policy. But it did not produce the policy in order to avoid its liability arising out of the policy. Here it may be noted that Paramsingh though pleaded that his truck was driven by one Chhotelal, but he did not say that Chhotelal had no driving licence. Similar is the statement made by him on oath. In these circumstances, it is not possible to hold that even Chhotelal was not having any licence.
9. Learned counsel for the insurance company lastly contended that at the time when the accident in question had occurred the maximum liability of the company under Clause (a) of Sub-section (2) of Section 95 of the Act was Rs. 20,000/- and, therefore, the learned Judge of the Tribunal committed an error in holding that the insurance company was jointly and severally liable for the full amount of award of Rs. 37,840/-. But here again, having regard to the facts of the present case, I find that there is no merit in this contention also. It is true that at the time of the accident the maximum statutory liability as provided in Clause (a) of Sub-section (2) of Section 95 of the Act was Rs. 20,000/- by Amending Act No. 56 of 1969 which came into force with effect from 2-3-1970 while the accident took place on 7-1-1969 and, therefore, if the insurance company was able to establish that the outer limit of the company's liability was Rs. 20,000/- its liability would have extended to that extent only, but there is nothing to prevent the insurance company to settle the terms of the contract and to cover risk more extensively than what is contemplated in Section 95 (2) (a) of the Act. The extent of the liability in each case has to be determined with reference to the terms of the policy. A reading of the provisions of Section 95 (2) of the Act will go to show that normal limit of a commercial comprehensive policy so far as the personal injury is concerned was Rs. 20,000/- which has now been enhanced to Rs. 50,000/-. But there is nothing in the said provision to prevent the insurance company to enter into a contract for still higher limit by paying increased premium. See United India Fire & General Insurance Co. v. Azeerunnisa, AIR 1982 Karnataka 187. But as pointed out earlier it neither pleaded nor proved that the outer limit according to the terms of the contract was Rs. 20,000/- nor produced the policy itself to show the contractual limit.
10. In truck owner's appeal, Mr. R.S. Gothalwal, learned Counsel for the appellant submitted that the application of the claimants under Section 110-A of the Act for compensation was not maintainable because the driver of the truck was not imp leaded as a party to the claim petition. He urged that since the owner of the vehicle is vicariously liable and, therefore, in the absence of the driver who caused the accident, the question of vicarious liability of the owner did not arise. But I do not find any substance in this submission. It may be pointed out that the owner of the vehicle under the law is vicariously liable for the acts of his driver committed or done in the course of employment. Both of them are joint tort-feasors. The liability of joint tort-feasor is joint and several, each one of them may be sued alone or jointly with some or all the others in one action, each is liable for whole damage and the award or decree obtained against all of them jointly may be executed in full against any one of them. It is thus not fatal to the claim if the driver was not joined as a party. In this view of the matter, I am supported by a Division Bench decision of Patna High Court rendered in the case of Badrinarayan v. Anil Kumar, : AIR1979Pat204 . In this case a passage from Winfield on Tort, 7th Edition, Chapter 29, page 762, was relied on, which runs as under :
Thus, I am liable for the torts of my servant committed in the course of his employment, and generally I alone am sued because I alone am worth suing, but of course, he is in general personally liable and he can be sued separately, or, as the law regards us as joint tort-feasors, we can be sued jointly. It is no excuse for me that I may have forbidden him to do the act, so long as he does it in the course of his employment we are joint tort-feasors.
In view of the aforesaid discussion I find that the contention has no force.
11. Learned counsel for the truck owner then submitted that the award was excessive. He submitted that the award has been calculated at the rate of full salary of Rs. 160/- which the deceased was drawing. He submitted that the deceased could not have contributed the full salary to the family and must have spent some amount on himself. He also urged that if the amount of award was deposited in fixed deposit it would fetch interest more than Rs. 160/- per month which has not been considered by the Tribunal. He, therefore, submitted that the compensation of Rs. 20,000/- would have been adequate. In support of this contention he relied on the decision in Jagir Kaur v. Uttam Singh Chattar Singh, 1975 ACJ 26 (HP). But in view of the facts and circumstances of this case, the aforesaid contention could not be accepted. The evidence adduced by the claimants goes to show that the deceased was contributing the whole salary of Rs. 160/- per month to the family consisting of several members who are minors. It is also clear from the evidence that the deceased was meeting his personal expenses out of the amount of tea that he used to get. There is no rebuttal of this evidence. The truck owner did not examine any witness except himself, but he did not say even a word about the contribution by the deceased to the family. The Tribunal has already deducted 10 per cent of the total amount from the award for lump sum payment, while in fact no such deduction can be made where the prospectus of the deceased improving his earnings have not been taken into consideration. It is an admitted fact that the deceased was serving as Head Constable for the last 18 years and there was every possibility of the revision of pay scales and his promotion to the higher grade. Where there were several dependants who are minors and especially in the case of daughters of growing age as in the present case it is difficult to assume rather expect that any amount could be placed in fixed deposit so as to earn interest and on that speculation make certain deduction. In my considered opinion no deduction on the basis of hypothesis that the claimants would have earned by way of interest could be made in the special facts and circumstances of this case.
12. Learned counsel for the truck owner lastly contended that according to the Madhya Pradesh (Police Personnel Extraordinary Family Pension) Rules, 1965, the family of the deceased was entitled to pension to the extent of full salary last drawn by the deceased upto the date of his superannuation, that is, 15-3-1983 and thereafter pension to the extent of half salary, and, therefore, no compensation calculated on the basis of the salary for the period of his retirement should have been awarded to the claimants. It is true that the said Rules contain the said provisions as submitted by the learned Counsel but these Rules apply only to the family members of the police force (temporary or permanent) who dies as a result of encounter with dacoits or hostiles or in equally hazardous circumstances. But in the present case deceased Satgurusharan did not die as a result of encounter with dacoits or hostiles or in any hazardous circumstances. Consequently these Rules have no application to the case of the deceased in the present appeal.
13. In the result, both the appeals Misc. (First) Appeal No. 88 of 1982 (United India Insurance Co. v. Krishna Devi and 7 others) and Misc. (First) Appeal No. 78 of 1982 (Paramsingh v. Krishna Devi and others) fail and are hereby dismissed with costs. Counsel's fees as per schedule if certified.