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New India Assurance Corporation Ltd. Vs. Abdul Rehman Hasanbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 739 of 1975
Judge
Reported in(1980)0GLR677
ActsMotor Vehicles Act, 1939 - Sections 95(2)
AppellantNew India Assurance Corporation Ltd.
RespondentAbdul Rehman Hasanbhai and ors.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate D.F. Amin and; V.P. Shah, Advs.
Cases ReferredCommonwealth Assurance Co. Ltd. v. Vimalaben
Excerpt:
- - it is difficult for us to accept the said submission despite our immense sympathy for the poor victim in this case. the present case is a glaring case in which a poor young man is for all practical purposes without any compensation, because mr......in the course of his employment with the owner, opponent no. 2, who was the insured of the insurance company, which is the appellant before us. the driver, the owner and the insurance company were made liable for the amount awarded, though initially the claim put forward by the claimant in the petition was rs. 30,000. 2. the case of the claimant was that on that day he had boarded that rickshaw, a public conveyance, from the refinery and was going towards panigate, that the rickshaw was being driven rashly an negligently by the driver and its speed was abnormal, that when the rickshaw was passing by the public road near kareli bagu, the driver was required to negotiate and curve and that as he was driving the rickshaw at an excessive speed, the rickshaw had turned turtle and the.....
Judgment:

N.H. Bhatt, J.

1. This is an appeal by the insurance company, opponent No. 3, in the Motor Accident Claim Application No. 118 of 1974 before the Motor Accident Claims Tribunal, Vadodara, that was pleased to award to respondent No. 1, the original claimant, the sum of Rs. 23,000 with 6% running interest from the date of the application and with costs. Respondent No. 2 herein is the driver of the vehicle and respondent No. 3 is its owner. The vehicle involved was rickshaw No. GYB 8042 driven at about 4.30 p.m. on November 19, 1973, on a public road near Kareli Baug, Vadodara, by opponent No. 1, Ganibhai, in the course of his employment with the owner, opponent No. 2, who was the insured of the insurance company, which is the appellant before us. The driver, the owner and the insurance company were made liable for the amount awarded, though initially the claim put forward by the claimant in the petition was Rs. 30,000.

2. The case of the claimant was that on that day he had boarded that rickshaw, a public conveyance, from the refinery and was going towards Panigate, that the rickshaw was being driven rashly an negligently by the driver and its speed was abnormal, that when the rickshaw was passing by the public road near Kareli Bagu, the driver was required to negotiate and curve and that as he was driving the rickshaw at an excessive speed, the rickshaw had turned turtle and the claimant, who was travelling by that rickshaw came to fall beneath the rickshaw with a violent impact and the result was that he was seriously injured and on being taken to the Govt. Hospital at Vadodara, he was treated for the compound fracture of the lower 3rd shaft, left femur. The wound was swelling, deformity had developed and bleeding was present. The initial treatment did not save the leg of the victim and on the 4th day his leg about the knee was required to be amputated. He had thereafter filed the above-mentioned claim application. The injuries and the subsequent operation are deposed to by Dr. Modi, Ex. 33. Though the accident had taken place at about 4.30 P.M., the injured had gone to the hospital at about 9.30 P.M.

3. As far as the incident is concerned, the only evidence there on the record is that of the injured at Ex 37. And that of opponent No. 1 driver, Ganibhai, Ex. 39. The injured categorically stated that the rickshaw had turned turtle while opponent No. 1 was negotiating the turn despite the excessive speed of the vehicle. He denied the suggestion put to him that a cyclist had suddenly come up and in order to avoid collision with him, opponent No. 1 had applied the brakes and at that time he had jumped out of the rickshaw and so he was injured. The evidence of the driver, Ganibhai, however, did not contain any statement to the effect that the applicant had jumped out and had come to sustain the injuries afterwards. Only thing that was spoken to by him was that the applicant, who was sitting on the left hand side of the rear side of the rickshaw had tried to jump out of the rickshaw and was crushed beneath the vehicle. Had the vehicle been in motion and had the injured left the vehicle as was sought to be suggested to him, he would not have been under the vehicle which was admittedly in motion. It is because of this that the driver had to say that the victim had simply tried to jump out of the rickshaw, but he avoided saying that he had successfully jumped out. The driver's evidence further established that the time being 4.30 P.M., the road was humming with traffic and the incident had taken place at an intersection of four roads. These circumstances show that Ganibhai, the driver, was expected to slow down his speed because of the intersection of four roads and because of the heavy traffic on the road. Had he done so, the arrival of the cyclist, assuming it was there, would not have made him to apply the breaks so suddenly as to overturn the vehicle. The defence version, therefore, was absolutely difficult to be accepted and so the only version that is left before us is that of the injured person, who had turned unconscious only after he was having the vehicle over his body. He could have noted how the vehicle had turned turtle and how it had come to be over his body. It was, therefore, rightly held by the learned Tribunal that there was negligence on the part of the driver of the rickshaw. Regarding the amount awarded also, there cannot be any quarrel. A young man lost his leg and even the amount of Rs. 23,000 awarded to him is not an adequate compensation for it.

4. The learned Tribunal had held that the applicant had jumped out of the rickshaw and had, therefore, ceased to be a passenger and, therefore, he was a third party. With respect, we have to say that this is quibbling of words. As we have already pointed out, there is no evidence on record to show that the claimant had successfully got out of the vehicle so as to be named not as passenger but a third party and then he was knocked down by the rickshaw. Sense of sympathy with a troubled soul is appreciable, but justice is to be dispensed with in accordance with law and law alone. Law cannot be mutilated to express moral sense. Even the alleged jumping out, even if assumed to be true, will be because he was passenger.

5. However, the insurance company, the appellant herein, has raised the question of the extent of the liability of the company. Under s. 95(2) of the Motor Vehicles Act, 1939, a policy of insurance is required to cover the liability incurred in respect of any one accident up to the limits laid down therein. In clause (b) of s. 95(2) the limit laid down for a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, is Rs. 50,000 in all where the vehicle is registered to carry more than 35 passengers. The rickshaw in question would obviously be such a vehicle and so the upper limit of liability would be Rs. 50,000 in the aggregate. Sub-clause (4) of clause (ii) under sub-s. (2) of s. 95, however, further provides that subject to the limits aforesaid, that is Rs. 50,000 the liability of the insurer shall be Rs. 10,000 for each individual passenger where the vehicle is a motor cab and Rs. 5,000 for each individual passenger in any other case. Relying upon this latter part of sub-clause (4) of clause (ii) under sub-s. (2) of s. 95, Mr. Vakil urged that the applicant was not entitled to claim more than Rs. 5,000 form the insurance company. As far as the statutory liability of the insurance-company is concerned, the position has been set at rest by the judgment of the Division Bench of this court in the case of Commonwealth Assurance Co. Ltd. v. Vimalaben (First Appeal No. 556 of 1972, decided on March 26, 1973), by J. B. Mehta speaking for himself and S. H. Sheth J. In that case the award made by the Tribunal against the insurance company was reduced to Rs. 10,000.

6. The learned advocate for the claimant, however, urged that there was a special contract to extend the liability land endorsement No. 13 was pressed into service for the purpose. We quote below the said endorsement in its entirety :

'Endorsement No. 13 : attaching to and forming part of policy No. 9568/cc/72.

Liability to passengers

In consideration of an additional premium of Rs. 24 notwithstanding anything to the contrary contained in section II(1)(c) but subject otherwise to the terms, exception, conditions and limitations of this policy, the company will indemnify the insured against the liability at law for compensation (including law cost of any claimant) for death of or bodily injury to any person other than a person excluded under section II(1)(b) being carried in or entering or mounting or alighting from any vehicle prescribed in the schedule hereto but such indemnity is limited to the sum of Rs. 5,000 in respect of any one person and subject to the aforesaid limit in respect of any one person to Rs. 50,000 in respect of any number of claims in connection with any one such vehicle arising out of one cause :

Provided always that in the event of an accident occurring whilst such vehicle is carrying more than the number of persons mentioned in the schedule hereto as being the licensed carrying capacity of that vehicle in addition to the conductor, if any, when the insured shall repay to the company a rateable proportion of the total amount which would be payable by the company by reason of this endorsement if not more than the said number of person were carried in the vehicle.

Provided further that in computing the number of persons for the purpose of this endorsement any three children not exceeding 15 years of age will be reckoned as two persons and any children in the arms not exceeding (sic) years of age will be disregarded.

Provided also that the provisions of condition 3 of the policy are also applicable to claims or a series of claims under this endorsement.

Provided further that in the event of the policy being cancelled at the request of the insured no refund of premium paid in respect of this endorsement will be allowed.

Subject otherwise to the terms, exceptions, conditions and limitations of this policy. Bombay Sd.29-11-72. For Custodian'

7. It was urged that in consideration of the additional premium of Rs. 24 the liability to indemnify up to Rs. 50,000 was undertaken by the company. It is difficult for us to accept the said submission despite our immense sympathy for the poor victim in this case. All that endorsement 13 provides is that though under the terms of the policy the company was not liable in respect of the death of, or bodily injury to, any person other than a person being carried in or entering or mounting or alighting from any vehicle at the time of the occurrence of the event out of which the claim arises, the company had undertaken to indemnify the insured against the liability at law for compensation for the death of, or bodily injury to, any person, other than an employee, being carried in or entering or mounting or alighting from any vehicle prescribed in the schedule, but such indemnity was limited to the sum of Rs. 5,000, in relation to any one person. The said clause proceeds then to state that subject to the aforesaid limit in respect of any person, that is, subject to the limit of Rs. 5,000 in respect of one person, the company had undertaken to indemnify the insure to the maximum amount of Rs. 50,000 in respect of any number of claims (that is, claims more than one in number) in connection with any one such vehicle arising out of one cause. In other words, the maximum guarantee is not Rs. 50,000, but it is the ceiling of the liability that is provided for. The clause 'subject to the aforesaid liability in respect of any one person' is repeated while speaking of the total liability of Rs. 50,000 in respect of any number of claims arising out of one single cause of action. We are, therefore, unable to accept the submission made by Mr. Amin for the original claimant.

8. At this stage, we cannot refrain from expressing our concern at the lot of the people travelling by public conveyances. The provisions of clause (4) of sub-s. (2) of s. 95 of the Motor Vehicles Act, in our view, are anachronistic when the common people are required to be carried in a vehicle for hire or reward. If necessary, more premium could be charged from the owners of such public vehicles, but in the interest of the common people of this country, this invidious discriminatory treatment requires to be immediately done away with. The present case is a glaring case in which a poor young man is for all practical purposes without any compensation, because Mr. Amin tells us, that for aught he knows the award for the rest of the amount of Rs. 18,000 may not be available for effective execution in substance.

9. The appeal is, therefore, required to be allowed and the liability of the appellant-insurance company for the ward passed by the Tribunal is limited to Rs. 5,000. Subject to this modification, the appeal is dismissed. There will be no order as to costs of this appeal.

10. This brings us to the cross-objections filed by the original claimants. The claim in cross-objections as modified is for Rs. 7,000. As the liability of the insurance company is limited to Rs. 5,000 alone, these cross-objections cannot be entertained by us. On this short ground, they are rejected with no order as to costs.


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