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Sushil Kumar Etc. Vs. Binodini Rath and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 76 and 78 of 1974
Judge
Reported inAIR1977Ori112
ActsMotor Vehicles Act, 1939 - Sections 95, 96, 96(2), 110B, 110CC and 110D,
AppellantSushil Kumar Etc.
RespondentBinodini Rath and ors.
Appellant AdvocateS. Kr. Mohanty, Adv. in M.A. No. 76 of 1974 and ;S.S. Basu, Adv. in M.A. No. 78 of 1974
Respondent AdvocateS. Mohanty, ;K.N. Sinha and ;N.N. Ray, Advs. (for No.2), ;S.S. Basu, Adv. (for No. 3), ;P. Ray, Adv. (for No. 4) and ;P.C. Misra, Adv. (for No. 1) in M.A. No. 76 of 1974 and ;S. Mohanty and ;S.D. Das,
DispositionAppeal dismissed
Cases ReferredOriental Fire and General Insurance Company Ltd. v. Kamal Kamini Dass
Excerpt:
.....consideration of the (evidence on record i am satisfied that the finding of the tribunal that the accident took place due to the rash and negligent driving of the vehicles and both the drivers were responsible in equal proportions for the said accident is well founded. in the second paragraph of the preamble of this policy 'it is stated that the said policy is subject to the terms, exceptions and conditions contained in the said policy or endorsed or otherwise expressed therein. 1 clearly shows that the insurer by an express provision in the said policy has covered wider risk by making it liable to indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of death or bodily injury to any person. basu..........took place at a blind curve on the road and that the road for some distance on either side of the place of accident was not straight. at that place one coming from kiruburu side has at first to go to his right for a little distance, and from the place of accident he has to go towards his left. p. w. 3, the then a. s. i. of barbil, who went to the place of occurrence within a short time of the accident, has stated that the accident took place at a blind curve, and broken glasses from the jeep had been strewn on the middle of the road and the road at that place was 25 feet wide. the fact that the accident took place on the middle of the road at the apex of the said turning is also evident from the deposition of c. p. w. 1, who along with the deceased was travelling in the said jeep, and.....
Judgment:

S. Acharya, J.

1. One Gobinda Ch. Rath (32 years old at the time of his death), an Assistant in the Orissa Secretariat, was working on deputation under National Mineral Development Corporation (hereinafter referred to as the 'N. M. D. C.') at Kiriburu Iron Ore Project in the district of Keonjhar. He, on taking leave for a few days, was going from Kiriburu towards Barbil on 23-4-1966 in the jeep ERT 6477 belonging to the N. M. D. C., the opposite party No. 1 in the court be lew. On the way said jeep collided with the truck ORJ 378 (belonging to the opposite party No. 2 in the court below) coming from the opposite direction. Due to the said accident Gobinda Chandra Rath was thrown out of the jeep, and he sustained several injuries on his person and died at the Tata Hospital at Jamshedpur on 25-4-1966. His wife Binodini Rath, for herself and on behalf of her minor children filed an application for compensation under Section 110-A of the Motor Vehicles Act for the loss sustained by her and her children due to the death of her husband.

2. The Tribunal has held that the accident took place due to the rashness and negligence of the drivers of both the jeep and the truck in equal proportion. Onthat finding and on assessing the compensation, to be paid to the claimants at Rs. 55,000/-, the Tribunal has made opposite party No. 1 and opposite party No. 2 each liable to pay Rs. 27,500/-, and on that basis it has directed that opposite party No. 3, the insurer of the jeep will pay the entire liability of opposite party No. 1, and opposite party No. 4, the insurer of the truck, will pay Rupees 20,000/- out of the liability fixed on opposite party No. 2, and the balance sum of Rs. 7,500/- will be paid by opposite party No. 2 himself.

3. Opposite Party No. 2, the owner of the truck, has preferred Misc. Appeal No. 76/74 and opposite party No. 3, the insurer of the jeep, has preferred Misc. Appeal No. 78/74. As both these appeals arise out of the same decision of the Court below, they were heard analogously and are being disposed of by this judgment.

4. Mr. Misra, the learned, counsel for the widow of the deceased, who is respondent No. 1 in Misc. Appeal No. 76/74, at the outset questioned the maintainability of this appeal on the ground that all the claimants have not been made parties in this appeal. According to Mr. Misra, the compensation awarded in this case is not only in favour of the widow of the deceased (respondent No. 1 in this appeal) but is also in favour of the minor children of the deceased named in the claim petition, and as the said minor children of the deceased have not been made parties in this appeal, this appeal cannot be proceeded with due to the defect of non-joinder of necessary parties, because the Tribunal's order so far as it relates to the minor children cannot any way be reversed or modified without making them parties to this appeal. In the facts and circumstances of this case and in view of the nature of the proceeding I do not attach importance to the above defect in the cause title of the appeal. It is Binodini Rath, the widow of the deceased, who filed the claim petition in this case. She has described herself as legal representative and next friend of the minor children of the deceased, and states that she has made that petition for herself and on behalf of her minor children. Again, while declaring the particulars stated in the petition as true and correct, she has stated that she did so for herself and as mother guardian of the three minor applicants. Only in column 18 of the said petition under the heading 'Name and address of the applicants' the names of the widow -and the minor children have been stated. There also it is stated that the minor children are represented in this application by their mother and next friend the applicant No. 1 (respondent No. 1 in this appeal). In the impugned judgment, only Binodini Rath is shown as the petitioner. Moreover, the proceedings before the Tribunal are of summary nature and it can follow such summary procedure as it thinks fit. The parties before the Tribunal are not bound by the strict provisions in the Civil Procedure Code for impleading parties, and so merely on the ground of any technical defect on that score a proceeding of this nature cannot abate or fail if that does not materially affect and/or hamper the proceeding or puts any handicap on the Tribunal or the appellate authority to decide the matter in all its aspects or to pass an effective order in the proceeding. Moreover, the widow of the deceased, who herself states in the petition that she represents the minors and has made this application for herself and on behalf of the said minor children, having been made a party in this appeal it cannot be said that the minors are not properly represented in this appeal. So, in the facts and circumstances of this case, merely because the names of the minor children of respondent No. 1 are not mentioned in the cause title of the appeal or that respondent No. 1 19 not shown therein as representing her minor children, the appeal cannot fail. The said defect does not in any manner hamper this Court to dispose of the appeal in all its aspects and pass an effective and operative order on merits which shall apply to all the parties. So the appeal does not fail on the above score.

5. Mr. Mohanty, the learned counselfor the appellant in Misc. Appeal No. 76/74 (the owner of the truck) contended that the finding of the court below that the accident took place due to the rashness and negligence of the drivers of both the jeep and the truck in equal proportion was contrary to and against the weight of the evidence on record. According to Mr. Mohanty the truck driver was no way responsible for the said accident; it was the jeep driver who drove the jeep at a high speed and occupied a major portion of the road without leaving sufficient space for the truck to pass on the road, and so the accident took place.

6. On a careful perusal of the evidence on record I find that Mr. Mohanty is notcorrect in his above submission. Undisputedly, the truck was without any load on it, and it was coming from Barbil towards Bolani and the jeep with the deceased and two or three other persons in it was going from Kiruburu towards Barbil. It is also not disputed that the accident took place at a blind curve on the road and that the road for some distance on either side of the place of accident was not straight. At that place one coming from Kiruburu side has at first to go to his right for a little distance, and from the place of accident he has to go towards his left. P. W. 3, the then A. S. I. of Barbil, who went to the place of occurrence within a short time of the accident, has stated that the accident took place at a blind curve, and broken glasses from the jeep had been strewn on the middle of the road and the road at that place was 25 feet wide. The fact that the accident took place on the middle of the road at the apex of the said turning is also evident from the deposition of C. P. W. 1, who along with the deceased was travelling in the said jeep, and from the Motor Vehicle Inspector's (hereinafter referred to as the 'M.V. I.') report Ext. 1. It also transpires from the evidence of P. W. 3 and the M. V. I.'s report Ext. 4 that the road ahead on either side of the place of accident was not properly visible from the place of accident. As both the, vehicles were negotiating such a blind curve, the drivers of both the vehicles should have exercised extreme care and caution to drive their vehicles in such a manner which would have enabled them to steer clear their vehicles from anything on the road ahead of them. Undoubtedly, the jeep was moving on the middle of the road, and as is submitted on behalf of the owner of the jeep, it was perhaps necessary for the jeep to go to the middle of the road to see the road ahead of it. But while driving the jeep on the middle of the road, its driver should have been watchful about any vehicle coming from the opposite direction. But lack of caution and watchfulness on the part of the jeep driver does not absolve the truck driver of his responsibility in negotiating the bend in an extremely careful manner. On the evidence of P. W. 3, O. P. W. 1 and from the report of the Motor Vehicle Inspector is quite clear that there was a lot of space on the road on the left side of the truck and right side of the jeep at the place of the accident. Only the front right side of the truck collided against the frontright side of the jeep. So, if the drivers of both the vehicles had exercised proper are and caution in negotiating that bend, they could easily have moved their vehicles a little away from each other and could thus have avoided this nasty accident. A truck being a heavier and more powerful vehicle, its driver always has higher responsibility to see that his vehicle while moving on the road does not come in contact with lighter vehicles, or it is well known that results of such contacts are fraught with dire consequences. So, when the truck driver saw the jeep moving on the middle of the road, he should have moved out a little to its left so as not to come in contact with the jeep. From the evidence on record it is quite evident that both the jeep and the truck were moving on the middle of the road while negotiating the blind curve, and the drivers of both the vehicles did not exercise care and caution to steer clear their vehicles from each other, and they were driving their vehicles in a rash and negligent manner, due to which the front side of the truck collided with the front right side of the jeep, and the accident took place.

According to P. W. 2, the jeep after the accident was pushed back about 5 to 7 cubits. P. W. 3, the police officer, found the jeep at a distance of 27 feet away from the place of accident and it had moved that distance backward. The truck was at a distance of 1'7 feet from the place of accident and it had moved forward from the place of accident. He found the truck standing at a distance of 17 feet from the jeep. It is further stated in his cross-examination that the track mark of the jeep was missing on the road for a distance of 12 feet when it moved backward after the collision at the place of accident. O. P. W. 2, who had his house close to the place of occurrence, stated in his cross-examination that the jeep after collision bumped back to a distance of about 12 feet. From the above evidence it is quite clear that after the collision between the jeep and the truck the jeep bumped back in air to a distance of about 12 feet and thereafter also it rolled back to a distance of about 15 feet and in that process it went back to a distance of 27 feet from the place of accident. It is also evident that the truck after colliding with the jeep moved forward to a distance of about 17 feet from the place of accident. That fact clearly indicates that the truck was moving at a high speed due to which its driver could notstop it within a short distance even after its collision with the jeep. It is not possible to accept the suggestion put forward on behalf of the jeep owner that the jeep was moving at a slow speed and so it was thrown back to a distance of 27 feet. A jeep is a lighter vehicle and from the above fact one cannot definitely conclude that it was moving at a slow speed. Some witnesses state that the jeep was moving at a high speed and some others state that the truck was moving at a high speed. The very fact that the jeep and the truck drivers could not manoeuvre their vehicles so as to steer clear from each other at the place of accident when there was sufficient space of the road for, the vehicles to move away from each other, suggests that both the vehicles were being driven at a high speed which disabled both the drivers to avert the nasty accident. From the manner in which they collided against each other on the middle of a wide road it is quite clear that the drivers were negotiating that blind curve in a rash and negligent manner and each of them lost control over their respective vehicles, and so the accident took place on the middle of the road.

7. Apart from the above consideration, from the damage caused to both the vehicles, as seen from the M. V. I.'s report (Ext. 4), it is evident that the impact with which both the vehicles collided against each other was quite heavy. The Motor Vehicles Inspector marked the following major damages on the truck:--

(1) Front right spring 'U' bolts broken.

(2) Front right Spring main leaf broken at front hanger.

(3) Right front spring front shackle bolt broken.

(4) Drag link badly bent.

(5) Front bumper at the right side broken.

(6) Front axle bent at right side and pushed back.

(7) Right front hub badly damaged. The jeep BRT 6477 had sustained the following damages in that accident:--

(1) Front bumper at the right side smashed.

(2) Right head light and parking light smashed.

(3) Front grill badly damaged at right side.

(4) Right mud-guard badly damaged and thrown out.

(5) Right beam of the chassis broken at front shackle.

(6) Radiator damaged.

(7) Fan blades badly bent.

(8) Both the front engine mountings broken and engine thrown out to right.

(9) Both the front shock absorbers broken.

(10) Steering column badly bent and pushed upwards.

The (hand brakes in both the vehicles had been disconnected.

8. On a proper consideration of the (evidence on record I am satisfied that the finding of the Tribunal that the accident took place due to the rash and negligent driving of the vehicles and both the drivers were responsible in equal proportions for the said accident is well founded.

9. The learned counsel for the appellants in both the above-mentioned appeals urged that the deceased being a gratuitous passenger in the jeep, the owner of the jeep and/or the truck, and consequentially the insurer of the said two vehicles, are not liable to pay any compensation for the death of the deceased due to the said accident. The appellant in Misc. Appeal No. 76/74 cannot take that defence in view of the finding that the accident took place due to the contributory negligence of the truck driver. The deceased was not a gratuitous passenger in the truck, and as the death of the deceased was caused also due to the rash and negligent driving of the truck as found above, the owner of the truck and [consequentially its insurer (opposite party No. 4, respondent No. 4 in Misc. Appeal No. 76/74) are, without any doubt, responsible and liable to pay the compensation to the extent of their liability as fixed in this case.

10. It is now to be seen as to whether the owner of the jeep and/or its insurer, can be made liable for death of the deceased in the said accident. The owner of the jeep has not preferred any appeal and so he cannot question the finding of liability as fixed on him by the court below.

11. It is now to be seen whether the insurer of the jeep (the appellant in M. A. No. 78/74) can raise the aforesaid question in this appeal. True it is that the insurer cannot take any defence other than those mentioned in Section 96 (2) of the Motor Vehicles Act when its liability is required to be covered by a policy issued under Clause (b) of Sub-section (1) of Section 95 of the Act. So where no liability is required to be covered by that provision, the limitation of defences under Sub-section (2) of Section 96would not apply to the insurer. In Oriental Fire and General Insurance Company Ltd. v. Gurudev Kaur, 1967 Ace CJ 158 = (AIR 1967 Punj 486) (FB), it has been held :--

'Sub-section (2) of Section 96 refers to a sum payable by an insurer under Sub-s. (1) of that section, and Sub-section (6) of the section debars any other defence than those mentioned in Sub-section (2). But this only happens when the judgment is in respect of liability as is required to be covered by a policy under Clause (b) of Sub-s. (1) of Section 95. Where no liability is required to be covered by that provision, it is obviously open to the insurer to prove that in a particular case the liability is not required to be covered by that provision, and when the insurer shows that, it has no liability to pay to the person Who is entitled to the benefit of the decree and judgment of the Tribunal. In such a case the question of the other defences under Sub-section (2) of Section 96 never arises.'

So, if any liability, not required to be covered under the said provision of the' Act but is covered by any extra and express stipulation in the policy issued by the insurer, then the limitation of defences provided under Section 96 (2) would not apply to the insurer. The insurer's liability in the latter case arises out of its contractual obligation as per the extra express stipulation in the policy, and so the provision of Section 96 (2) does not apply to the insurer and hence in such a case it should be free to take any defence it chooses. A policy issued to cover only the liabilities required by a policy under Clause (b) of Sub-section (1) of Section 95 of the Motor Vehicles Act does not cover the liabilities in respect of a gratuitous passenger in the vehicle. The Division Bench of this Court in Clive Insurance Company v. Joginder Singh, (1972 Ace CJ 295) (Orissa), held that a statutory policy under Section 95 of the Act which has to be taken out in respect of a vehicle does not cover any liability which may be incurred by the owner of the vehicle in respect of death or bodily injury to any gratuitous passenger in that vehicle. But if in the said policy there is a further express stipulation to cover the wide risk of liability arising in respect of death or bodily injury to any gratuitous passenger, then the insurer has to satisfy its liability in accordance with the said express stipulation. So, in the cases in which the liability arises only due to such wider express stipulations in the policy, the insurercan take and plead, both before the Tribunal and in the appellate court, any defence which it likes to take, and in such cases it is not fettered by the limitations provided under Section 96 (2) of the Act. The correctness of the above proposition of law is not challenged by the counsel appearing for the different parties in both the appeals.

12. Mr. Basu, the learned counsel for the insurer of the jeep, submits that there is no express stipulation in the policy issued by the insurer of the jeep to cover a liability arising out of the death of the gratuitous passenger travelling in the jeep, and so the insurer is not liable to pay any part of the compensation assessed by the Tribunal due to the death of the deceased.

In the court below the owner of the jeep filed the insurance policy issued by the Insurance Company in respect of the said jeep. The said insurance policy has not of course been marked as an exhibit in the court below but the counsel appearing for the Insurance Company does not challenge the genuineness of the said policy. In the second paragraph of the Preamble of this policy 'it is stated that the said policy is subject to the terms, exceptions and conditions contained in the said policy or endorsed or otherwise expressed therein. In the said policy under the heading 'S. II -- Liability to third parties' it is inter alia stated as follows:--

'I. The Corporation will indemnify the Insured in the event of accident caused by or arising out of the use of the Motor car against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of

(a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Corporation 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.'

The above quoted condition No. 1 clearly shows that the insurer by an express provision in the said policy has covered wider risk by making it liable to indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of death or bodily injury to any person. The deceased has been permitted by the authorities of the N.M. D. C., the owner of the jeep, to travel inthat jeep, as is evident from the deposition of O. P. W. 1, an officer of the N. M. D. C. The death of the deceased occurred partly due to the negligent driving of the jeep by its driver. So the owner of the jeep is vicariously liable for the said rash and negligent act of the driver of the jeep resulting in the death of the deceased. That being so, as per the above-quoted express stipulation in the policy the insurer of the jeep (has to pay all sums which the owner of the jeep is liable to pay in respect of the death of the deceased. Mr. Basu contends that the above-quoted condition in the policy does not cover the liability of the owner of the jeep arising out of the death of a gratuitous passenger like the deceased. In the case reported in 1975 Acc CJ 355 (Orissa), Prabhudayal Agarwal v. Saraswati Bai an identically similar condition in the insurance policy under similar heading was taken up for consideration, and on an elaborate discussion it was held that under the said express provision in the policy the insurer had covered wider risks by making him liable to indemnify the insured against all sums which the insured would become legally liable to pay in respect of the death of the gratuitous passenger who was travelling in the insured vehicle.

On a thorough consideration of the above quoted provision in the Insurance Policy and agreeing with the view taken on an identical clause in the aforesaid reported case (1975 Acc CJ 355) (Orissa), I am firmly of the view that the insurer has made himself liable to pay the entire liability of the insured arising out of the death of the deceased in the accident in, question.

13. Mr. Basu then seriously challenged the order of the Tribunal directing the insurer of the jeep to pay half of the compensation amount assessed in this case on its finding that for the said accident the driver of the jeep was responsible to the same extent as the driver of the truck and so the owner of the jeep and the owner of the truck were equally liable; for the said accident. As the liability of the insurer in this case arises out of the aforesaid non-statutory contractual obligation, Mr. Basu was allowed to make his submission on the above question. I, on fresh assessment of the evidence on record made in the preceding paragraphs have upheld the conclusion of the Tribunal to the above effect. Mr. Basu could not show any convincing reason on which Ican in any way change my finding affirming the conclusions of the Tribunal to thateffect.

14. On the above considerations the directions of the Tribunal in the impugned judgment regarding payment of compensation are confirmed. Accordingly, out of the compensation amount of Rs. 55,000/-to which the claimants are entitled, opposite party No. 3, the insurer of the jeep (appellant in Misc. Appeal No. 78/74) will pay Rs. 27,500/- and opposite party No. 4, the insure r of the truck, has to pay Rs. 20,000/-, and the balance amount of Rs. 7,500/- had to be paid by opposite party No. 2 (appellant in Misc. Appeal No. 76/74), the owner of the truck.

15. The impugned judgment is silent about payment of interest on the compensation amount assessed in this case. For reasons stated in paras. 19 and 20 of the decision of this Court in Oriental Fire and General Insurance Company Ltd. v. Kamal Kamini Dass, 1972 Acc CJ 92 = (AIR 1973 Orissa 33) the claimants would be entitled to interest on the compensation amount, and so the different parties who have to pay the compensation amount as specified above have to pay the aforesaid amounts to the claimants with reasonable interest. In this case the claimants have been deprived of the compensation money from the date of the award. Moreover, the claimants had nut forward an exaggerated claim of a lakh of rupees which on trial has been reduced almost to half. The proceeding before the Tribunal was protracted to some extent as it took time to examine as to whether the compensation claimed was justified or hot. On the above considerations I would allow interest on the compensation amount at 6 per cent per annum from the date of the award of the Tribunal till realisation. The parties who have to pay the compensation amount as specified above shall pay the said amounts with interest at the aforesaid rate from the date of the award till realisation.

16. Both the appeals accordingly are dismissed. As both the appeals were heard together, the appellants in both the appeals shall bear in equal proportions the claimants' costs in both the appeals.


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