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Life Insurance Corporation of India Vs. Karthyani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 15 of 1972
Judge
Reported inAIR1976Ori21
ActsMotor Vehicles Act, 1939 - Sections 2(24), 94(1), 95(1), 110 and 110A
AppellantLife Insurance Corporation of India
RespondentKarthyani and ors.
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateB.B. Rath, ;S.N. Satpathy, ;S.C. Rath and S. Misra, Advs. (2) for No. 5 and ;S.C. Sinha, Adv. for Respondents Nos. 1 to 4
DispositionAppeal allowed
Excerpt:
.....the h. it is also well known that the plant and factory area of the h. it is well known that the electric plate mill or the boiling mill and the central stores of the h. has utterly failed in that direction. as discretionary power for thepayment of interest has been vested in the courts and tribunals adjudicating upon claims of this nature, a reasoned order either in the positive or in the negative has to be passed to that effect, or else it would amount to a failure on the part of the court or the tribunal to exercise a beneficial jurisdiction vested ip them under the law......all took place inside the factory premises of the h. s. l, which is a private place and not a public place, and as such the insurer is not liable to pay any compensation on account of the said accident,as per section 95 (1) (b) (i) of the act, an insurer is liable to pay compensation upto the extent specified in sub-section (2) of section 95 for the death of or bodily injury to any person or damage to any property of a third party if the same is caused by or arise out of the use of the insured vehicle in a public place. 'public place' has been defined under section 2 (24) of the act as follows:'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of accessand includes any place or stand at which passengers are picked.....
Judgment:

S. Acharya, J.

1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act') against the award passed by the Motor Accidents Claims Tribunal, Sambalpur in Misc. (Acci-dent) Case No. 18 of 1970 awarding a sum of Rs. 43,000/- as compensation for the death of T. R. Shankaran (the husband of claimant No. 1 and father of claimants 2 to 4), a Foreman in Koppers India Private Limited, Rourkela.

2. This appeal has been filed by theLife Insurance Corporation of India (hereinafter referred to as the 'Insurer'), oppositeparty No. 2 in the court below, with whomthe Jeep No. ORO 529 belonging to theHindusthan Steel Limited, Rourkela (hereinafter referred to as the 'H. S. L.') was insured. The facts on which the claim underSection 110-A of the Act was filed by theclaimants in the court below are that at about1.40 P. M. on 20-4-70 the deceased T. R.Shankaran was going on a bicycle on the leftside of the road inside the H. S. L, premises,Rourkela. At that time the Jeep No. ORO529 belonging to the H. S. L., driven by P.K. Madhaban, O. P. W. 1, came from behindat a high speed and without blowing any horndashed against the deceased's bicycle as aresult nf which the deceased fell down at thespot sustaining serious injuries on his head.The jeep after dashing against the deceasedjumped over a Nala on the left side of the road and after crossing the Nala in that manner it dashed against the wall, of the Central Stores of the H. S. L. at a little distance on the other side of the Nala and stopped at that glace. The deceased being injured was immediately taken to the Ispat Hospital at Rourkela where he died after a few hours. In the claim petition it is stated that the deceased was about 38 years old by the time of his death; he was having a monthly income of about Rs. 725/-; and the wife and children of the deceased, who were completely dependant on the deceased, have been deprived of the financial aid which they were getting from the deceased. On that basis they have claimed a compensation of Rs. 1,23,000/-on account of loss of benefit for a period of 22 years, expecting that the deceased would have lived normally upto the age of 60 years. They also claimed Rs. 1,00,0007- for mental ageny and pain suffered by them due to the death of the deceased.

3. The H. S. L, opposite party No. 1, and the insurer, opposite party No. 2, oppose the claim preferred by the claimants inter alia on the grounds that the age and income of the deceased, as stated by the claimants, are false; that the appellants are not legal representatives of the deceased; they have not sustained any loss due to the death of the deceased; and that in any case the claim preferred by them is exhorbitant. They also state that the accident did not occur due to the rash and negligent driving of the driver of the Jeep.

4. The Court below on an elaborate discussion and consideration of the evidence on record has arrived at the finding that the claimants were the legal representatives of the deceased; that the deceased was about 38 years old at the time of the accident (20-4-70); that the monthly income of the deceased was Rs. 616/- and out of the same his legal representatives, i. e. the claimants, were getting about Rs. 2407- per month towards their main-tenance and benefits. Calculating the loss of benefit to the claimants due to the death of the deceased for 1.5 years at the aforesaid rate of Rs. 240/- per month the Tribuanl has held that the opposite parties 1 and 2 are jointly and severally liable to pay to the claimants Rs. 43,000/- with costs as compensation and has ordered that the insurer should pay that amount to the claimant No. 1 for self and For the other claimants, within a period of three months from the date of the order, afil-ing which the claimants will realise the said amount through court from opposite parties 1 and 2.

The court below has in effect arrived at the finding that inside the factory premises near about the Electric Rolling Mill and the Central Stores the jeep in question came from behind the deceased at a high speed, dashed against the deceased who was passing on the left side of the road on a bicycle, as a result of which the deceased fell down at the spot sustained severe injuries oa his person anddied in the Ispat Hospital a few hours thereafter. The Court also finds that this accident took place due to the rash and negligent driving of the driver of the jeep.

5. In this case the owner of the jeep (respondent No. 5 in this apepal) has not preferred any appeal against the decision of the Court below. Mr. Basu, the learned counsel for the Insurer has very fairly conceded that as per Section 96 (2) of the Act the Insurer can neither question the finding of the court below that the accident took place due to the rash and negligent driving of the driver of the jeep, nor can he question the quantum of compensation and/or the basis on which the said quantum is fixed. Mr. Sinha for the claimants urged that the H. S. L., not having preferred any appeal or cross objection against the Tribunal's award, cannot question the correctness of the findings on the aforesaid points.

6. Mr. Misra for the H. S. L. contends that as by the award the insurer only is made liable to pay the entire amount of compensation it was not necessary for the H. S. L. to file any appeal against the said award, and the H. S. L., being a respondent in this appeal, can challenge the findings of the Tribunal under the provisions of Order 41, Rule 22, C. P. C. without preferring any appeal against the award, Mr. Misra's submission that the order of the Tribunal is entirely against the Insurer is factually incorrect. The order of the Tribunal runs thus:

'.....That the application is allowedin part on contest against the opposite parties. Opposite party No. 2, the insurer (L. I. C. of India) is directed to pay Rs. 43,000/- to the applicant's that is to applicant No. 1 for self and other minor applicants within a period of three months from the date of the order, failing, the applicants can realise this amount through court and in such realisation by them! opposite parties 1 and 2 would be jointly and severally liable, though action should first proceed against opposite party No. 2 only.'

It is evident from the said order that both the owner and the Insurer of the jeep are jointly and severally liable to pay the compensation amount to the claimants, but at the first instance the Insurer (opp. Party No. 2) has been directed to pay the compensation amount within a particular period, and failing that the claimants can proceed against both the owner and the insurer to realise the amount through court. The order certainly does not absolve the H. S. L, of their above-mentioned liability to pay the assessed compensation amount. That being so, the award is not directed entirely against the insurer as urged by Mr. Misra.

7. The H. S, L. who has not preferred any appeal or cross objection, cannot challenge the findings of the Tribunal in any manner so as to assail the ultimate decision of the Tribunal holding the H. S. L. liable to pay the compensation as stated above. No doubt, a respondent, without preferring anyappeal or cross objection against the ultimate decision of a court, can question the correctness of a finding on a particular issue, but that can be done only in supporting the ultimate decision and not to assail the finding of the Tribunal regarding the rash and negligent driving of the jeep and also about the quantum of compensation fixed by it, for any effort in that direction, instead of supporting the ultimate decision would amount to an endeavour on the part of the H. S. L. to unsettle and set aside the said decision.

8. So in the ultimata analysis the said findings of the Tribunal cannot be questioned either by the Insurer or by the H. S. L. the two contesting opposite parties in this case.

9. However, I have gone through the evidence on record and its discussion in the impugned judgment and I am satisfied that the finding of fact of the Tribunal regarding the rash and negligent driving of the jeep is well founded and I do not see any reason to interfere with the said finding. The claimants have preferred a cross objection against the quantum of compensation fixed by the Tribunal, and I shall deal with that aspect of the matter later in this judgment.

10. Mr. Basu. the learned counsel for the Insurer appellant, contends that the accident in question and the act and omission which led to the accident all took place inside the factory premises of the H. S. L, which is a private place and not a public place, and as such the insurer is not liable to pay any compensation on account of the said accident,

As per Section 95 (1) (b) (i) of the Act, an Insurer is liable to pay compensation upto the extent specified in Sub-section (2) of Section 95 for the death of or bodily injury to any person or damage to any property of a third party if the same is caused by or arise out of the use of the insured vehicle in a public place. 'Public place' has been defined under Section 2 (24) of the Act as follows:

'Public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of accessand includes any place or stand at which passengers are picked up or set down by a stage carriage.'

The dictionary meaning of the word 'access' in the said definition is 'admittance', 'admission'. Therefore a place 'to which the public have a right of access' would mean the place whera members of the public have admission as of right, that is, where they can go without any hindrance or without being required to take any permission from anybody. If members of the public do not, as of right, have access to a particular place that place cannot be said to be a public place as per the said definition. It has been held in Rajamal's case 1970 A. C. J. 44 (Mad).

'It is clear from the definition of thewords 'public place' in Section 2 (24) of the Act that the criterion is whether the publichave a right of access to the place, and it will not be a public place merely if _ as a matter of fact the public have access.'

It is well known, and judicial notice can be taken of the fact, that members of the public cannot go as of right inside the factory premises, Aft times some visitors are permitted to go inside the H. S. L. factory premises on. obtaining special permits on prior applications for that purpose. It is also of common knowledge that members of the public, far from having a right to go inside the factory premises, cannot as of right claim to have a permit to enter into the Plant area on mere payment of an entry fee or on making an application to that effect. As is well known, permission to go inside the factory premises and the plant area is not granted liberally and the grant of such permission is always a matter at the discretion of the authorities of the H. S, L. and members of the public as such cannot claim to have the said permission as of right, nor can question the decision of the authority if permission applied for is re-fused. It is also well known that the plant and factory area of the H. S. L. is cordoned off from the township by a high boundary wall constructed all round the said area. The gates ia that compound wall at different places are heavily guarded, and entry through those gates is strictly controlled by the men and officers of the H. S. L., and members of the public have no right of access through these gates. There are of course roads inside the factory premises, and some ofi these roads are broader than the main roads in the town, but those roads are meant only for the specific purposes of the factory and are certainly not public thoroughfares, and members of the public as such do not have any right to use these roads for any purpose whatsoever.

The claimants in Item No. 8 of the claim petition mentioned that the accident took place 'inside the H. S. L. plant in between the Electric Plate Mill and the Central Stores'. In Ext. 4, the report of the Motor Vehicles Inspector, it is stated that the accident took place inside the H. S. L. Plant in between the Electric Plate Mill and the Central Stores, P. W. 1 who was going with the deceased on another bicycle has testified to the fact that the aforesaid accident took place when he and the deceased were passing on the road inside the H. S. L. premises and were going towards their places of; work. He has also stated that the accident took place uear about the H. S. L. Central stores. P. W. 2 has also stated that near about the Central Stores the jeep dashed against the cycle driven by the deceased. The driver of the jeep, who has been examined as O. P. W. 1, has also stated that the accident took place at a place near about the Central Stores. O, P. W. 2, the security Inspector who was in the said vehicle at the time of the accident, has also stated that the accident took place near the Central Stores of the H. S. L. It is well known that the Electric Plate Mill or the Boiling Mill and the Central Stores of the H. S. L. are all with-in the factory premises, cordoned off from the general public by the abovementioned compound wall. In paragraph 7 of the written statement filed by the Insurer it has been specifically averred that 'The alleged accident having taken place inside private premises,the claim of the applicants is not covered by the policy of Insurance issued by this opposite party.' Prom the abovementioned evidence and materials on record there is absolutely no doubt that the accident took place inside the factory premises of the H. S. L., which for reasons stated above, is a private place and not a public place as defined under the Act.

11. The H. S. L., the owner of the jeep in its written statement, while stating that at the place of occurrence the tie-rod of the jeep gave way and the jeep went out of control, has not controverted the fact that the said place was not a private place but was a public place. As the Insurer and the claimants alleged that the accident took place at private place and the evidence and materials on record showed a distinct tendency to establish that fact, it was for the H. S, L. to lend evidence and show that that place was a public place and not a private place. The H. S. L. has utterly failed in that direction.

12. On my above finding that the accident took place in a private place, the Insurer cannot be made liable to pay any compensation arising out of this accident.

13. Mr. S. Misra, the learned counsel for the H. S. L., contends that if the accident took place in a private place, then the claimants were not entitled to file any claim before the Claims Tribunal and the Claims Tribunal had no jurisdiction to order payment of compensation in respect of this accident. To support his above contention Mr. Misra has drawn my attention to Section 94 (1) of the Act and submits that the Act provides for the insurance of a vehicle for use in public places, and so the reliefs and remedies under the Act would be available only when any accident takes place due to the use of such a vehicle in a public place and not in a private place. There is nothing in Section 94 to support the above contention, and in making that contention Mr. Misra loses sight of Section 110, the most relevant provision in the Act on this point. Section 94 (1) merely makes it imperative to insure all vehicles which are to be used in public places. The object of Section 94 (1) is to ensure insurance of all vehicles which are to be used in public places so that if a third party suffers any damage due to the use of the said vehicle in a public place, he would be able to get damages for the same straightway from the Insurance company, and the recoverability of such damage would not de-end upon the financial condition of the driver or the owner of the vehicle.

Section 110 of the Act provides for the constitution of a Claims Tribunal for a particular area, and that Claims Tribunal, as specifically mentioned in Clause (1) of that section, is constituted 'for the purpose of adjudicatingupon' 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 of a third party so arising or both. There is nothing therein to limit the power and jurisdiction of the Tribunal to only claims arising out of accidents in public places; the provisions of that section are wide enough to include claims for compensation arising out of accidents taking place both in the public and private places.

Moreover, Section 110-F provides that once a Claims Tribunal is constituted for a particular area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation, which may be adjudicated upon by the Claims Tribunal for that area. Of course if a claim for compensation also includes a claim in respect of damage to property exceeding Rs. 2,000/-, an option is given to the claimants by the proviso to Sub-section (1) of Section 110 of the Act to refer a claim to the Civil Court, and where a reference is so made the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim. This proviso obviously does not apply to the present case before me.

So the claimants in the present case could not have filed their claim for compensation in the Civil Court on account of the death of the deceased. So the Claims Tribunal of that area was the only competent authority to deal with the claim in question. The above contention of Mr. Misra therefore is without any substance.

14, The claimants (respondents 1 to 4) have preferred a cross objection claiming higher compensation than what has been awarded by the Tribunal. The Tribunal finds that the deceased who was a Foreman in Kop-pers India limited, a contractor's firm was earning about Rs. 650/- per month at the time of the accident. It has also been found that the deceased was about 38 years old at the time of his death by the aforesaid accident. The tribunal on a consideration of the various materials available on record has arrived at the finding that the claimants were deriving a benefit of Rs. 240/- per month (Rs. 2,880/-per year) from out of the income of the deceased. Having arrived at the said finding it abruptly calculated the loss of benefit only for 15 years without giving any reason for fixing the said span of 15 years. Our High Court, and many other High Courts have assessed the general expectation of life in India till age of 65 and in some cases upto the age of 70. The claimants, however, in their petition fixed the expected longevity of the deceased at 60 years, and on that basis they have claimed compensation, The deceased was a healthy man as seen from the post-mortem report Ext. 3, and reasonable expectations were that he would have lived and continued to earn the amount assessed by the Tribunal at least upto the age of 60 years. Thus the Tribunal was not justified in calculating the loss of benefit to the claimants only for a period of 15 years. On the above considerations, compensation should have been calculated at least for 22 years, i. e. upto the age of 60 years of the deceased.

15. The loss of benefit has been assessed by the court below at Rs. 240/- per month op a very convincing discussion and consideration of the evidence on record and I do not find any reason to interfere with the said finding. Calculating the loss of benefit at that rate for a period of 22 years, the amount of compensation comes to Rupees 63,360/-.

16. Both Mr. Basu and Mr. Misra submit that in many decisions of this court deduction of l/6th from the lump sum compensation has been approved, and so order for similar deduction should be passed in this case. Mr. Basu and Mr. Misra are legally not entitled to raise the above contention for reasons stated above. There is no statutory obligation to order any such deduction. The legislature, while incorporating a new provision in the Act for payment of interest on compensation amount by the Amending Act 56 of 1969, did not make any provision for any such deduction on the aforesaid account. The contesting opposite parties and specially the H. S. L. did not agitate this question before the Tribunal, before whom the matter should have been raised in order that the Tribunal would have fixed the compensation amount keeping in view the submission on this count, The H. S. L., who is equally affected by the order of the Tribunal directing payment of compensation in a lump sum, has not preferred any appeal against the said award at least to agitate this question. The deceased, a healthy man, died due to the accident at the age of 38 years, by which time he was already working as a Foreman in a contractors firm. So with the passing of time and gaining of experience, he would possibly have earned more money enabling his dependants to get higher pecuniary benefits out of the same. This aspect of the matter has not been taken into account. As nothing so far has been paid to the claimants they must be eking out their existence for the last five years in extreme hardship, and if any compensation amount had been made available to them within a short time, they could have profitably invested the same for their benefit and existence. On the above considerations. I am not inclined to exercise my discretion in favour of directing deduction of 1/6th from the lump sum compensation amount to be paid in this case.

17. The claimants in their cross objection have claimed interest on the compensation amount as provided under Section 110 of the Act. As discretionary power for thepayment of interest has been vested in the courts and Tribunals adjudicating upon claims of this nature, a reasoned order either in the positive or in the negative has to be passed to that effect, or else it would amount to a failure on the part of the Court or the Tribunal to exercise a beneficial jurisdiction vested ip them under the law. The observations in paragraph 4 of the decision in Janjali Devi's case (1974) 40 Cut LT 501 = (AIR 1974 Orissa 216) regarding court's discretionary power to grant interest on compensation under the Land Acquisition Act aptly apply to the point under consideration.

Considering the facts and circumstances of this case I deem it fit and proper to direct payment of simple interest to the claimants at the rate of 6 per cent per annum on the above mentioned compensation assessed in this appeal and that would be effective from the date of the passing of the award by the Tribunal (i. e. from 25-11-71) till the compensation amount is paid in full.

18. In the result, therefore, the H. S. L., the owner of the Jeep (opposite party No. 1 in the court below and respondent No. 5 in this appeal) is hereby directed to pay in lump sum Rs. 63,360/- as compensation with interest as directed above and the hearing fee of Rs. 50/- as awarded by the Tribunal to respondent No. 1, the mother of respondents 2 to 4, within a period of two months from to-day, failing which the claimants shall realise the aforesaid amounts through court in accordance with law. It is needless to mention that respondent No. 1 will receive the aforesaid compensation amount for herself and on behalf of all the other claimants, and each of them will be entitled to the same in equal shares.

19. The appeal preferred by the Insurer and the cross objection preferred by the claimants are allowed as stated above, but in the circumstances each party will bear his own costs of this appeal.


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