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Usha Sehgal and Others Vs. Chhote Ram and Others - Court Judgment

LegalCrystal Citation
Subject Company
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 246 of 1979
Judge
Reported inII(1985)ACC264; AIR1985Delhi398; [1987]61CompCas500(Delhi); 1985(9)DRJ82; 1985RLR498
Acts Motor Vehicles Act, 1939 - Sections 95(1)
AppellantUsha Sehgal and Others
RespondentChhote Ram and Others
Advocates: O.P. Goyal,; R.C. Verma,; J.C. Batra and;
Excerpt:
.....with effect from the date of filing of the claim petition till the date of actual payment by the insurance company.; that bus running under dtc at the time of accident considering the provisions of act and the contract between the owner and dtc, dtc was not held liable--owner was held liable. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon..........tribunal and he stated that the insurance policy was not produced by the owner or the insurance company. counsel for the insurance company could not controvert this assertion. as a matter of fact, no such insurance policy is on the trial court record. it is not known how the tribunal has refereed to the policy giving the exhibition number. i would, thereforee, hold that the policy in question was a comprehensive policy and not an 'act only' policy. in the present case, the claimants had asserted that the policy was a comprehensive policy. the claimants are strangers to the policy. the original policy is in the possession of the owner of the vehicle and a copy is maintained by the insurance company. but neither the owner nor the insurance company in the present case produced any.....
Judgment:

S.B. Wad, J.

1. This is an appeal filed against the order of the Motor Accidents Claims Tribunal dated September 5, 1979, where by the Tribunal awarded a sum of Rs. 1,09,718 with costs of the proceedings to the claimants. The tribunal also directed that the liability of the New India Assurance Co. Ltd., respondent No. 5, was limited to Rs. 50,000. An award for the balance amount has been passed against respondents Nos. 1 and 2 jointly and severally. The insurance has deposited the said amount of Rs. 50,000 and the claimants are paid that amount. This appeal was listed for hearing on January 23, 1985. Neither the respondents nor counsel were present. The appeal was allowed by me on that date with enhanced compensation and interest. Subsequently, applications were moved on behalf of the DTC, respondent No. 4 and the New India Assurance Co. Ltd., respondent No. 5, explaining their absence on the date of hearing and further praying for the rehearing of the appeal. I was satisfied with the Explanationn given in the said applications and the appeal was, thereforee, set for rehearing.

2. On September, 24, 1974, at about 8.30 a.m., Narindar Prakash Sehgal, the deceased., was going on his cycle and on the crossing of Parliament Street with Ashoka Road near the Patel Chowk, he was hit by Bus No. DLP-5682 under the service of the Delhi Transport Corporation. Narinder Prakash Sehgal was died on the spot. These facts are duly proved by the evidence before the Tribunal and need not be repeated here. At the time of death, Narinder Prakash Sehgal was about thirty years old. He was survived by his widow, two minor sons and one daughter. He had also an old father to be supported. At the time of the death, he was serving with M/s. Engineers India Ltd., Parliament street, New Delhi. His salary was Rs. 826 per month. After deducting the one third amount for his personal expenses, the Tribunal came to the conclusion that his annual contribution to the family would have been Rs. 6,612. Considering his age as thirty, a multiplier of the twenty has been applied by the Tribunal and on that basis, the Tribunal came into the conclusion that Rs. 1,31,240 would be the appropriate amount of compensation. The Tribunal also considered that he was supporting his wife, three minor children and his old father. The Tribunal has, however, deducted a sum of Rs. 30,000 received by the widow from the Life Insurance Corporation and the amount of Rs. 1,600 received by way of gratuity and has further deducted a sum of Rs. 19,362 for the lump sum payment.

3. Considering recent decisions of this court and the decisions of the Supreme Court, none of these amounts should have been deducted. The amount of compensation is an attempt at reinstatement in terms of money for the loss suffered by the family. This includes the personal loss and also the material well being of which the family is deprived. I do not think that the deductions, as made by Tribunal, were proper and I set aside that part of the order of the Tribunal. I, thereforee, direct that the respondents are liable to pay a sum Rs. 1,32,240 as compensation to the appellants.

4. Counsel for respondent No. 5, the insurance company, has pleaded that the liability of the insurance company was limited to Rs. 50,000 only. According to the counsel, the liability of the insurance company under section 96 of the Act is limited to the liability as mentioned in clause (b) of sub-section (1) of section 95. The said liability under section 95 was restricted at the relevant time to Rs. 50,000. There appears to be some misconception about the liability of the insurance company under section 96. Sections 96 and 95 form part of Chapter VIII which concerns liability to third party. Section 94 of the Act makes it compulsory for the vehicles plying on the public road to be compulsorily insured. The object of making insurance compulsory was to see that in all cases where death or bodily injury is caused by a vehicle plying on the public roads, a definite compensation would be paid. The policy that vehicle plying on the public roads must mandatorily have is a policy called 'Act only' policy. The minimum premium of Rs. 94 was fixed at the relevant time for such an 'Act only' policy. What clause (b) of sub-section (1) of section 95 speaks of is an 'Act only' policy. The amount on such a policy is the minimum that a third party would entitled to in case of an accident. But the policy may cover higher risk to third parties by taking additional premium. There is yet another variety of policy which is called comprehensive policy. This policy takes care of liability to pay compensation to the owner or to a passenger or to a third party. Additional premium is taken for the additional risks such as fire, riots, etc. If it is a third party policy or a comprehensive policy, the insurance company will be bound to pay higher compensation which would in all cases be more than the compensation under an 'Act only' policy. In the present case, the claimants had asserted that the policy was a comprehensive policy. The claimants are strangers to the policy. The original policy in the possession of the owner of the vehicle and a copy is maintained by the insurance company. But neither the owner nor the insurance company in the present case produced any evidence. Nobody was examined on their behalf, nor any document produced by them. Counsel for the appellant was also counsel for the same parties before the Tribunal and he stated that the insurance policy was not produced by the owner or the insurance company. Counsel for the insurance company could not controvert this assertion. As a matter of fact, no such insurance policy is on the trial court record. It is not known how the Tribunal has refereed to the policy giving the exhibition number. I would, thereforee, hold that the policy in question was a comprehensive policy and not an 'Act only' policy. In the present case, the claimants had asserted that the policy was a comprehensive policy. The claimants are strangers to the policy. The original policy is in the possession of the owner of the vehicle and a copy is maintained by the insurance company. But neither the owner nor the insurance company in the present case produced any evidence. Nobody was examined on their behalf nor any document produced by them. Counsel for the appellant was also counsel for the same parties before the Tribunal and he stated that the insurance policy was not produced by the owner or the insurance company. Counsel for the insurance company could not be controvert this assertion. As a matter of fact, no such insurance policy is on the trial court record. As a matter of fact, no such insurance policy is on the trial court record. It is not known how the Tribunal has referred to the policy giving the exhibit number. I would, thereforee, hold that the policy in question was a comprehensive policy and was not an 'Act only' policy. In fact, in the written statement filed by the insurance company and the owner jointly, it is no asserted that the policy was an 'Act only' policy or what it was not a comprehensive policy. Even if, for the sake of argument, it is accepted that the liability of the insurance company is limited to Rs. 50,000 and the rest of the liability would be that of the owner under section 96 read with section 95 of the Act, that would not make any difference in the present case. The insurance took over the defense on behalf of itself and also of the owner. A joint written statement was filed on their behalf. Counsel for the insurance company also undertook to appear for the owner during the proceedings. The owner was, thereforee, not present nor did he engage a separate counsel. This fact would further go to show that the insurance company, respondent No. 5, had assumed the liability for the payment of the compensation. I have, thereforee, no hesitation in holding that respondent No. 5 is liable for the payment of compensation of Rs. 1,32,240 to the appellants. The appellants are also entitled to 6% simple interest from the date of the application till the date of the actual payment by respondent No. 5. The vehicle in question was a private vehicle of the owner but under the service of the DTC. Counsel for the DTC submitted that DTC was not liable as, according to the Motor Vehicles Act, the liability is only of the owner. He also submits that by virtue of a contract between owner and the DTC, the liability for repayment of compensation in case of accidents was passed on to the owner of the DTC, the liability for payment of compensation in case of accidents was passed on to the owner of the bus and not on the DTC. In reply, counsel for the appellant has submitted that the private vehicle of the owner was being plied in the service of the DTC. The license was held by the DTC. For these reasons, he submitted that the DTC is liable to pay compensation. Considering the provisions of the Act and the contract between the owner and the DTC, there is no doubt that it is only the owner who is liable. DTC is not liable. The fact that the vehicle was in the service of the DTC or that the license was in the name of the DTC would not make any difference. This is because contract has by a specific term excluded the DTC from any liability and had reiterated the liability of the owner as provided by the Act.

5. The appeal was allowed with cost against respondent No. 5.

6. Appeals allowed.


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