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Gujarat Mineral Development Corporation Ltd. Vs. Varjubhai Lallubhai Bhil and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 371 to 373 of 1974
Judge
Reported in1979ACJ186; AIR1979Guj26; (1979)0GLR123
ActsMotor Vehicles Act, 1939 - Sections 95, 96 and 110-B; Code of Civil Procedure (CPC), 1908 - Sections 96 - Order 41, Rule I
AppellantGujarat Mineral Development Corporation Ltd.
RespondentVarjubhai Lallubhai Bhil and ors. Etc.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate S.C. Shah, Adv. for; C.K. Patel, Adv. and; R.N. Oza,
Cases ReferredPremier Insurance Co. Ltd. v. Gambhirsing
Excerpt:
motor vehicles - liability to compensation - sections 95, 96 and 110-b of motor vehicles act, 1939 and section 96 and order 41 rule 1 of code of civil procedure, 1908 - appeal alleging that tribunal erred in law in limiting liability of insurance company - insurance company denies liability claiming that deceased and injured persons were gratuitous persons - evidence adduced establish negligence of driver as he failed to take caution as reasonably prudent driver would have taken - vehicle loaded with stones - until stones are unloaded by labourers carried in vehicle they must be taken to be on duty - deceased and injured not gratuitous passengers - master liable for negligence done by servant - master insured himself with insurance company in dispute - insurance company liable to.....p.d. desai, j.1. the following table gives the necessary particulars regarding this group of appeals:-no. of description no. of claim in awarded insurance claim in cross-obj- name ofappeal of the m.a.c m.a.c. amount co.'sliability appeal jections deceased appelant appln. application to satisfy claim injured personthe award therein rs. rs. rs. rs. rs.f.a. no. owner of 22/73 16,000/- 11,100/- 4,200/- 11,100/- 4,200/- by vangaria371/74 the vehile insu. co. varjubhai(deceased)rs.5,000/-byclaimantsf.a.no. -do- 60/73 20,000/- 14,800/- 5,880/- 14,800/- 5,880/- by jagalia372/74 insu. co. bide bhill(injuredperson)f.a.no. -do- 61/73 12,000/- 10,120/- 5,880/- 10,120/- 5,880/- by ditia373/74 insu. co. bhilia bhil(injuredperson)2. on march 10, 1972 a dumper bearing no. gt. 5223 owned by the appellant.....
Judgment:

P.D. Desai, J.

1. The following table gives the necessary particulars regarding this group of appeals:-

No. of Description No. of Claim in Awarded Insurance Claim in Cross-obj- Name ofAppeal of the M.A.C M.A.C. amount Co.'sliability Appeal jections deceased Appelant Appln. Application to satisfy claim injured personthe award therein Rs. Rs. Rs. Rs. Rs.F.A. No. Owner of 22/73 16,000/- 11,100/- 4,200/- 11,100/- 4,200/- by Vangaria371/74 The vehile Insu. Co. Varjubhai(deceased)Rs.5,000/-byClaimantsF.A.No. -do- 60/73 20,000/- 14,800/- 5,880/- 14,800/- 5,880/- by Jagalia372/74 Insu. Co. Bide Bhill(injuredperson)F.A.No. -do- 61/73 12,000/- 10,120/- 5,880/- 10,120/- 5,880/- by Ditia373/74 Insu. Co. Bhilia Bhil(injuredperson)

2. On March 10, 1972 a dumper bearing No. GT. 5223 owned by the appellant and driven by respondent No. 3 in First Appeal No. 371: of 1974 and respondent No. 2 in the other two First Appeals met with an accident at about 5.30 P. M. on the road leading from Amba Dunger to Kadipani in Chhota-Udepur Division of Baroda District. The vehicle at the material time was loaded with stones. The deceased and injured persons were travelling in the said vehicle. It appears that at a certain spot on the said road, the vehicle capsized. As a result thereof, the deceased and injured persons were thrown on the ground and crushed under the stones. It appears that the deceased met with his death on the spot. The injured persons were removed to the S. S. G. Hospital at Baroda. Jagalia had received injury on his left leg which was amputated from below the knee portion. Ditia received injuries on his left fore-arm which resulted in extensive skin loss and crushing of muscles. Movement of the little finger was irreversibly lost. The vehicle in question was admittedly insured with the fourth respondent in First Appeal No. 371 of 1974 and the third respondent in the other two appeals, namely, New India Assurance Co. Ltd. The different claimants filed different Claim Applications, the particulars of which are given above.

3. The Motor Accidents Claims Tribunal, Baroda (hereinafter referred to as 'the Tribunal') found that the deceased and the injured persons were at the material time traveling in the vehicle during their duty hours and in the course of their employment by the appellant, that the driver who was plying the vehicle at the material time in the course of his employment was negligent and that the deceased met with his death and the injured persons received the injuries on account of the negligent driving of the vehicle by the driver. As regards compensation, the Tribunal found that the average monthly income of the deceased and the injured persons was Rs. 65/-. So far as the deceased Vangaria is concerned, the Tribunal found that he must have been spending a sum of Rs. 20/per month on his own self and that, therefore, Rs. 45/- per month was the dependency benefit of the claimants who are the parents of the deceased. On that basis, the annual dependency benefit was worked out at Rs. 540/- and applying 15 years purchase factor, the Tribunal awarded an amount of Rs. 8100/- for the loss sustained under the said head. To the said amount the Tribunal added a sum of Rs. 3000/- for pain and suffering and loss of expectation of life. In all, therefore, an award was made in the sum of Rs. 11,100/-. As regards the injured person Jagalia, the Tribunal estimated the percentage of disability at 50%. On that basis, it estimated the future pecuniary loss at Rs. 32.50 per month and Rs. 390/- per annum. The multiple of 20 was adopted for awarding just compensation for the loss and accordingly, an award in the sum of Rs. 7800/- was made under the said head. To this was added an amount of Rs. 5000/- being compensation for pain, shock, suffering and loss of amenities of life. A further amount of Rs. 2000/- was awarded as he was confined to the hospital for a considerably long time. In that manner, a total award in the sum of Rs. 14,800/- was made in the case of Jagalia. As regards the injured person Ditia, the Tribunal estimated the percentage of disability at 20%. On that basis, it estimated the future pecuniary loss at Rs. 13/- per month and Rs. 156 -per annum. The multiple of 20 was adopted for awarding just compensation for the loss and accordingly, an award in the sum of Rs. 3120/- was made under the said head. To this was added an amount of Rs. 5000/- as compensation for the loss of the arm and a further amount of Rs. 2000/- was awarded for -pain, suffering, shock and loss of amenities of life. In that manner, a total award in the sum of Rs. 10,120/- was made in the case of Ditia.

4. The Tribunal then proceeded to determine the liability of the Insurance Company to satisfy the award. It held that as the decease d and the injured persons were employees of the appellant, the liability of the Insurance Company was restricted to the extent of its statutory liability under the Workmen's Compensation Act. By reference to the Schedule in the Workmen's Compensation Act, the Tribunal limited the liability of the Insurance Company to satisfy the award in each case as indicated in column 6 of the table set out above. The usual award of interest and costs was also made.

5. The award in each case made as aforesaid has given rise to these three appeals and cross-objections in those appeals the particulars where of are set out earlier. The main contention in the appeals is that the Tribunal erred in law in limiting the liability of the Insurance Co., regarding satisfaction of the award in the manner that it has done. The contention of the Insurance Company, on the other hand, in its cross-objections in each of the appeals is that it could not have been saddled with any liability whatsoever - not even under the Workmen's Compensation Act because the deceased and the injured persons were gratuitous passengers. Cross-objections in First Appeal No. 371 of 1974 filed by the original claimants are directed against the award of the Tribunal in so far as it fell short of the amount claimed in the M.A.C. Application.

6. Since all these appeals and cross objections arise out of a single incident and the claim applications were consolidated and tried together and have been disposed of by a common judgment by the Tribunal, we have heard these appeals together and shall dispose them of by this common judgment.

7. Mr. S. B. Vakil, learned advocate appearing on behalf of the appellant, raised the following two contentions at the hearing of the appeal: -

(1) The accident was not the result of any negligence on the part of the driver of the vehicle in question and, therefore, the appellant was not liable to pay any compensation to the claimants.

(2) The Insurance Company was liable to satisfy the award fully and not only to the extent of the liability under the Workmen's Compensation Act in as much as: -

(a) Clause 3 in S. 11 of the Insurance Policy, Ex. 48, contained the driver's extension clause which entitled the appellant to be fully reimbursed (See New Asiatic Insurance Co., Ltd. v. Pessumal, AIR 1964 SC 1736, Life Insurance Corporation of India v. Naranbhai Munjabhai, (1972) 1'3 Guj LR 920: (AIR 1973 Gui 216) and Sakinabibi v. Gordhanbhai Prabhudas, ((1974) 15 Gui LR 428).

(b) Sub-clause (i) of clause 1 of S, II of the Insurance Policy covered liability in respect of death of or bodily injury to 'any person' caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle and as such, damages payable to the employees were also fully covered (see Premier Insurance Co., Ltd. v. Gambhirsingh, ((1975) 16 Gui LR 498): (AIR 1M Gui 133);

(c) Under proviso (ii) of sub-section (1) of S. 95 the Insurance Company was statutorily liable to cover the liability in respect of the death of or bodily injury to persons being carried in or upon the vehicle in question which was a vehicle in which passengers were carried by reason of or in pursuance of the contract of employment;

(d) By virtue of Endorsement No. IMT 16 attaching to and forming part of the Insurance Policy, the Insurance Company was liable to indemnify the appellant against its legal liability under the Fatal Accidents Act, 1885 or at common law in respect of personal injury to any person employed in loading and/or unloading whilst engaged in the service of the appellant in such occupation in connection with the insured vehicle (See Punjabhai Prabhudas & Co. v. Sakinaben, 1977 ACJ 44): (AIR 1977 Gui 179).

8. Mr. R. N. Oza, learned advocate appearing on behalf of the Insurance Company. urged the following contentions in support of the cross-objections:-

(1) The deceased and injured persons were gratuitous passengers and, therefore, the Insurance Company had no statutory liability to cover the risk.

(2) No liability could be fastened upon the Insurance Company on the strength of the Endorsement No. IMT 16 in as much as

(a) It was not proved that additional premium for covering such liability was paid and, therefore, the said clauses did not come into operation;

(b) It was not proved that the deceased and injured persons were employed in loading and/or unloading whilst engaged in the service of the appellant in connection with the insured vehicle;

(c) Even if the Endorsement operated and the deceased and injured persons were employees of the appellant, the liability was still not covered because the deceased and injured persons were not employed either as driver, cleaner or conductor which category of employees alone were covered under the endorsement.

(d) In any case, the additional liability under the said endorsement was confined to the extent of indemnity against legal liability under the Workmen's Compensation Act.

9. Mr. S. C. Shah, learned advocate appearing on behalf of respondents Nos. 1 and 2 (original claimants) in First Appeal No. 371 of 1974, urged in support of the cross-objections filed on behalf of claimants that having regard to the evidence on record, the Tribunal ought to have awarded fully the amount claimed in the claim application.

10. We shall first deal with the question of negligence. The oral evidence on this point I consists of the deposition of claimant Jagalia, Ex, 38, that of claimant Ditia, Ex. 39 and the driver Shabhai, Ex. 44. The two claimants under examination-in-chief deposed that the driver was driving the dumper at the material time at an excessive speed. Their evidence on this point has been rightly disbelieved by the Tribunal, having regard to their depositions in the criminal trial of the driver. Their testimony in the criminal proceeding was that the driver was driving the dumper at the relevant time at moderate speed. The evidence of Jagalia further was that the driver was handling the steering with only one hand and that his other hand was employed in whistling. At that time the dumper capsized near the water tank in the ditch by the side of the road. Under cross-examination, the witness admitted that he had deposed in the criminal trial that there was a slope at the scene of the accident and that due to that slope the dumper had capsized. A suggestion was made to him while under cross-examination that one of the workmen who was carried in the dumper had operated the jack lever of the vehicle. The suggestion was denied. Ditia, while under cross-examination, admitted that he had stated in his deposition in the criminal trial that the dumper had capsized on account of the slope after skidding. Snabhai under examination-in-chief, deposed that while he was returning with the dumper from Amba Dungar the three Persons involved in the accident and others had raised their hands to slop the vehicle. When he stopped the vehicle, they forcibly mounted the vehicle after pulling the jack lever and on that account the dumper capsized. Under cross-examination, he deposed that the road between Amba Dungar and Kadipani was zig-zag. Two vehicles would not be in a position to cross each other at one point of time.

11. Kania Surtania, Ex. 40, is the panch witness. He has deposed that he and one Jungalia Fendaria were summoned as pancha's at the scene of incident on the day of the accident. The dumper was lying in a ditch near the road side. Stones had fallen out of t e dumper. A detailed Panchanama was made, the contents of which were correct. Under cross-examination he deposed that there were tyre marks on t e road. The ditch was one foot in depth.

12. The Panchnama, Ex. 41, discloses that there is a tar road from Amba Dungar to Kadipani, the former being in the western direction and the latter in the eastern direction. The tar road at the site of the accident was about 11 ft. in width. There was a shoulder of about 6 ft. 3 inches on the northern side of the road and a similar shoulder of about 2 ft, 9 inches on the southern side of the road. Be it noted that as one proceeds from Aniba Dungar to Kadipani, the northern side would be the correct side of the road and the southern side would be the wrong side of the road. The entire width of the road at the scene of the accident, therefore, was about 20 feet. On the southern side of the road there was a pit about 2 feet in diameter. Stones and tar were found lying near the pit. Wheel marks were found on the tar road in a zig-zag manner. The distance between the wheel-marks of both the wheels was about 6'-6''. The dumper was found lying in a ditch which was on the southern side of the road (wrong side) after leaving the tar road and the shoulder. The vehicle was found in a damaged condition. The steering rod was found bent towards the seat of the driver, The hydraulic brake was found detached.

13. The Tribunal, on assessment of the evidence, found that having regard to the oral evidence, it was not possible to hold that the dumper was driven at the relevant time at an excessive speed. However, having regard to the fact that the dumper was loaded with stones and it was proceeding on a zig-zag slopy road, the driver was required to exercise care and caution which was expected of a reasonably prudent driver under the circumstances, which he appeared to have failed to do. In the opinion of the Tribunal, when a vehicle capsizes without any obstruction coming from the other side or without the driver of the vehicle being forced to apply the brakes violently, the necessary corollary would be that the vehicle immediately prior to the accident was not handled cautiously. In this view of the matter, the Tribunal found that the negligence was established.

14. We are unable to find any ground to differ from the finding, of the Tribunal on this issue. It is true that it could not be said to have been established that the driver was plying the vehicle at an excessive speed. However, when we are concerned with a vehicle like a dumper, loaded with stones, which is proceeding on a zig-zag slopy road and in which persons are also traveling. it will have to be found out whether the driver took for quarrying the stones at Amba Dunger. This finding of the Tribunal is amply supported by the evidence upon which it has relied. The two injured witnesses have in terms deposed that they were employed by the appellant for the purpose of loading and unloading the dun per and that on the day in question they were proceeding from Amba Dunger to Kadipani in the course of their employment. The two injured persons have also deposed about the terms of their employment, the duration of their employment and working hours. There is no effective cross-examination of these two witnesses on this point. The only argument which appears to have been urged before the Tribunal and which was pressed -into service before us on behalf of the Insurance Company was that the injured Ditia's deposition disclosed that the vehicle was stopped by the driver after some amongst the orkmen had raised their hands and that, therefore, it could be said to have been established that the deceased and the injured persons were carried in the vehicle at their request and not in the course of their employment. They were, the argument proceeded. merely gratuitous passengers who were given a lift while the vehicle was returning from Amba Dunger to Kadipani. Now, in the first place, it is not the substantive evidence of Ditia before the Tribunal that the vehicle was stopped at their request. In fact, his substantive evidence was that it was not true that the vehicle was stopped by them. The witness was then asked whether he had stated in the criminal trial that he and his companions had raised their hands to stop the vehicle. The witness denied this suggestion. The obvious purpose of this line of cross-examination was to impeach the credit of the witness. We then find a note made by the Tribunal that the witness had stated so. It is not clear, however whether the witness's attention was specifically drawn to the relevant portion of his evidence in the criminal case. Besides, the relevant portion from the evidence of the witness in the criminal trial has not been brought on record and it has not been exhibited. The previous statement could not, therefore, have been properly used even for the purpose of contradiction. That apart, under these circumstances, the relevant portion of his testimony in the criminal trial could not be treated as substantive evidence at the present trial. In the proper care and caution which was expected of him under such circumstances. It appears to have been the case of the appellant that the vehicle capsized because somebody pulled the jack-lever. This version has rightly been not accepted because, this could have been done only if the vehicle was stationary, whereas the trend of cross-examination of the injured claimants was that the vehicle was in motion and skidded and on that account the accident occurred. The version that 'he vehicle skidded and capsized also does not appear because such a heavily would not easily skid to be probable loaded vehicle The Panchnama tells its own story. At the site of the accident the road was 20 feet in breadth. The vehicle, as it appears from the space between the zig-zag marks of the two wheels was not more than 6'-6' broad. There was enough room on the road, therefore, for the vehicle to pass safely. The vehicle was however found lying in a ditch on the wrong side of the road after leaving the tar road and the shoulder. The wheel-marks found on the tar road were zig-zag. The only inference which can possibly be drawn from these circumstances is that the driver must have been careless and that the vehicle must have proceeded to the wrong side of the road and fallen in the ditch. Once this conclusion is reached, no view other than that the driver was grossly negligent even while handling such a vehicle on such a road is possible. In our opinion, therefore, the Tribunal was right in holding that the accident occurred for want of proper care and caution on the part of the driver which as: a prudent driver he ought to have exercised in the circumstances of the case.

15. The question which must now be considered is whether the deceased and the injured persons were gratuitous passengers or employees of the appellant who were carried in the vehicle in the course of their employment. On this point, the finding of the Tribunal is that they were traveling in the vehicle in question in their duty hours and also in the course of their employment. For reaching this conclusion, the Tribunal relied upon the evidence of the injured persons and the father of the deceased to the effect that the deceased and the injured persons were employed for loading and unloading stones in the dumper. The Tribunal also appears to have found that besides doing that work, the deceased and the injured persons were also employed next place, even if it is assumed that this part of the evidence was substantive evidence, it is quite possible, as found by the Tribunal, that the vehicle might have started after the loading was completed without taking the witness or some of his companions and they might have tried to draw the attention of the driver and stopped the vehicle by raising their hands. It is too far-fetched a conclusion to draw from this piece of evidence, if any, that the deceased and the injured persons were gratuitous passengers who were carried in the vehicle at their own request and that they were not carried in the vehicle in the course of their employment. In the last place, even on probabilities it must be held that, they were in the dumper in the course of their employment. They were employed to quarry and load the stones in the dumper and to unload them at destination. The vehicle was in fact loaded with stones and, therefore, until the stones were unloaded at Kadipani, the labourers carried in the vehicle must be taken to be on duty. Be it noted that so far as the appellant is concerned, it was specifically conceded that it was not challenging the finding of the Tribunal that the deceased and the injured persons were traveling in the vehicle at the material time during their duty hours and in the course of their employment. It was stated in unmistakable terms that it was not the case of the appellant that they were gratuitous passengers. This argument was urged before us only on behalf of the Insurance Company and for the foregoing reasons we are not inclined to uphold it.

16. The next question which must be considered is whether the Insurance Company is liable at all to satisfy the award or whether it is fully liable to satisfy the award or whether the view of the Tribunal, which takes an intermediate position by limiting the liability only to the extent of the liability under the Workmen's Compensation Act, is correct. The main heads of argument of the appellant, so far as this aspect of the case is concerned, have been summarized above. In our opinion. it is not necessary for us to express any opinion on the arguments summarized under (a), (b) and (c) of ground No. 2 set out above since the matter is capable of being disposed of on ,the argument set out under (d). In other words. we are of the view, for the reasons which follow, that havim2 regard to a part of the Insurance Policy, Ex. 48, the Insurance Company is liable to the full extent to satisfy the award made herein.

17. Endorsement No. IMT 16, Ex. 48, reads as follows-

'Endorsement No. IMT 16 attaching to and- forming part of Policy No. MVC23047,

Legal liability to persons employed in connection with the operation and/or maintenance and/or loading and/or unloading of motor vehicles.

In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under: -

The Workmen's Compensation Act. 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law, in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading and/or unloading) whilst engaged in the service of the Insured in such occupation in connection with the motor vehicle and will in addition be responsible for all costs and expenses incurred with its written consent.

The premium having been calculated at the rate of Rs. 5/- per driver (and/or cleaner or conductor and/or person employed in loading and/or unloading) the Insured shall certify at the expiry of each period of Insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons employed in loading and/or unloading employed at any one time during such period in connection with the motor vehicle belonging to him and the premium shall be adjusted accordingly, Provided always that:

(1) to (4) x x x x x Subject otherwise to the terms, exceptions, conditions and limitations of this policy except so far as is necessary to meet the requirements of S. 95 of the Motor Vehicles Act, 1939.'

It would appear from this Endorsement that in consideration of the payment of additional premium the Insurance Company had, amongst other things, undertaken to indemnify the Insured against his legal liability under:-

(1) The Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of the Endorsement,

(2) The Fatal Accidents Act, 1855, or

(3) At Common law,

In respect of personal injury, inter alia, to persons employed in loading and/or unloading whilst engaged in the service of the Insured in such occupation in connection with the insured motor vehicle. Therefore, though under S. 95 (1) proviso (i) the Policy was statutorily required to cover liability in respect of the death of, or bodily injury to, any employee of the insured arising out of and in the course of his employment, if such employee was carried in the goods vehicle, only to the extent of the liability arising under the Workmen's Compensation Act, 1923, the Insurance Company in the present case had offered a wider cover to the Insured under the policy in question in consideration of the payment of an additional premium. The liability of the appellant for compensation in respect of the death of the deceased in the instant case arose under the Fatal Accidents Act, 1855. The liability of the appellant for compensation in respect of the injuries sustained by the injured persons arose under the Common Law. It is, therefore, apparent that in view of this wider coverage contained in Endorsement IMT 16 the Insurance Company must reimburse the appellant in respect of the entire liability arising out of the accident in question in respect of the deceased and the injured persons since it is within the limits stipulated in the policy. Consequently, by virtue of the indemnity so extended by the Insurance Company to the insured, it becomes liable to satisfy the entire award. The Tribunal was, therefore, apparently in error in confining the liability only to the extent of that arising under the Workmen's Compensation Act, 1923.

18. In the aforesaid view which we are taking, we are supported by the decision of a Division Bench of this Court in Punjabhai Prabhudas and Co. v. Sakinaben, 1977 ACJ 44: (AIR 1977 Guj 179). One of the questions which fell for consideration in that case was whether the liability of the Insurance Company was limited to the liability of the owner arising under the Workmen's Compensation Act and no more because the deceased persons in that case were also employees of the owner. The Insurance Policy in that case contained Endorsement Np. 16 which appears to have been in terms similar to Endorsement No. IMT 16 of the Insurance policy in the instant case. In fact, the extracted portion of Endorsement No. 16 in that case is in terms similar to para 1 of Endorsement No. IMT, 16 which has been quoted above. This Court, after setting out the said portion of Endorsement No. 16 observed as follows: -

'This endorsement makes it clear beyond any doubt that the insurance company had rendered itself liable under the terms of the policy to indemnify the insured against his legal liability arising in respect of personal injury which may be caused to the cleaner or conductor or person I employed in loading and/or unloading whilst engaged in the service of the insured. The facts of the case show that Jafar Hussain who met with the accidental death was a cleaner. Similarly, the facts of the case also show that Manaji Narbhaii, a labourer, who met with the accidental death was also a 'person employed' within the meaning of that expression used in Endorsement No. 16. The Insurance company was, therefore, liable to indemnify the insured against his legal liability in respect of personal injuries caused to cleaner Jafar Hussain and labourer Manaji Narbhaji. Secondly, the endorsement quoted above shows that the legal liability of the insurance company was not limited only to one arising under the Workmen's Compensation Act, 1923 but also extended to the liability arising under the Fatal Accidents Act, 1855, or at Common Law. The expression 'at Common Law' used in Endorsement No. 16 knocks the bottom of the insurance company's defence down......................The indemnity extended by the insurance company to the insured in respect of his legal liability at Common Law renders the insurance company liable to Pay the entire claim awarded by the Tribunal or the Court to the claimants. In that view of the matter the Tribunal was in error in recording the finding that the legal liability of the insurance company was confined to one which arose under the Workmen's Compensation Act.'

This decision, in our opinion, clinches the question which arises for determination herein. We are in entire agreement with this view for the reasons which we have set out earlier.

19. We may make ft clear that even on behalf of the Insurance Company it is this nature where compensation is claimed by the injured person against the owner of a vehicle on the basis of the negligent act of the driver during the course of his employment, the law which applies is the common law. If an award comes to be made in such a proceeding, it is made on the principles of common law. The liability, therefore, arises at common law. If the owner of the vehicle has insured himself in consideration of an additional premium against such liability by provision such as the one contained in Endorsement No. IMT 16 herein, the Insurance Company will be liable to indemnify the owner in respect of such liability. In such a case, it could not be said that the liability was confined only to the extent of the liability under the Workmen's Compensation Act not in dispute that so far as the deceased Is concerned, the liability herein has arisen under the Fatal Accidents Act. The only dispute which was sought to be raised concerns the liability in respect of the injured persons and it was urged that that could not be said to be the liability at Common Law. We are afraid, this argument has no merit. In Minu B. Mehta v. Balkrishna, AIR 1977 SC 1248 at page 1255 it has been observed that before a person can be made liable to pay compensation for any injuries and damage which have been caused by his action, it is necessary that the person damaged or injured should be able to establish that he has some cause of action against the party responsible. Causes of action may arise out of actions for wrongs under the common law or for breaches of duties laid down by statutes. In order to succeed in an action for negligence, the plaintiff must prove (1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment. Apart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owning a motor car. It would thus appear that the master's liability for the conduct of the servant if the servant is proved to have acted negligently in the course of his employment is recognized in common law. At page 1257, it has been further observed that the owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. It was in terms observed that the Claims Tribunal which is a tribunal constituted by the State Government for expeditious disposal of the motor claims, is governed by the general law which was only common law and the law of torts. If under that law a person becomes legalIy liable, then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. It would thus appear that in cases of this nature where compensation is claimed by the injured person against the owner of a vehicle on the basis of the negligent act of the driver during the courses of his employment, the law which applies is the common law. If an award comes to be made in such a proceeding. It is made on the principles of common law. The liability, therefore, arises at common law. If the owner of the vehicle has insured himself in consideration of an additional premium against such as the one contained in Endorsement No. IMT 16 herein, the Insurance Company will be liable to indemnify the owner in respect of such liability. In such a case, it could not be said that the liability was confined only to the extent of the liability under the Workmen's Compensation Act.

20. When confronted with this position, an attempt was made on behalf of the Insurance Company to urge several subsidiary points which we have broadly indicated at the stage of formulation of grounds. It was urged, in the first place, that it was not proved that additional premium for covering such liability was paid and that, therefore, the said clause did not come into operation. No such plea was raised in the Written Statement filed on behalf of the Insurance Company. No issue has been framed nor any finding invited. , This is merely an argument advanced at the hearing of the appeal and the argument was based on the schedule of premium set out in the insurance policy which, according to the learned advocate appearing on behalf of the Insurance Company, did not indicate that any additional premium as contemplated by Endorsement No. IMT 16 was paid. In our view, it is not open to the appellant to raise such a plea involving investigation into questions of fact at the appellate stage for the first time. That apart, such a contention cannot be upheld even on merits. When the Insurance Policy contains Endorsement No. IMT 16, which in terms undertakes the additional liability, and when the Insurance Policy in terms sets out on its very first page that the Policy was subject, inter alia, to Endorsement No. IMT 16 attached thereto, it would not be unreasonable to assume that additional premium must have been paid. The acknowledgment of payment of such additional premium might be found in a separate document or, for aught one knows, it might be forming part of one of the items set out in the schedule of premium. This submission made on behalf of the Insurance Company, therefore, cannot be accepted.

21. It was then contended that the deceased and the injured persons were not proved to have been employed in loading or unloading whilst engaged in the service of the appellant in connection with the vehicle in question. We have already dealt with this aspect of the case earlier and having regard to our finding on that issue, this submission must be rejected.

22. We are also unable to uphold the contention advanced on behalf of the Insurance Company that only driver or cleaner or conductor is covered by Endorsement No. IMT 16. This submission appears to have been made merely to be rejected. The relevant portion of Endorsement No. IMT 16, which has been set out above, in terms refers, in addition to the aforesaid categories of employees, to 'person employed in loading and/or unloading whilst engaged in the service of the Insured in such occupation in connection with the motor vehicle.' Any person, therefore, employed accordingly would be also covered.

23. It would thus appear that none of the contentions advanced on behalf of the Insurance Company to escape from the liability with regard to the satisfaction of the whole of the award can be accepted. Under these circumstances, there is no question of allowing the cross-objections preferred by the Insurance Company. The cross-objections, as earlier stated, are directed against that Part of the award which makes the Insurance Company' liable to the extent of the liability arising under the Workmen's Compensation Act. This direction was given by the Tribunal basing itself on the provisions of S. 95 (1), Proviso M. In the view which we are taking, having regard to Endorsement No. IMT 16, the liability is, in fact, much wider. The cross-objections preferred by the Insurance Company must, therefore, fail.

24. Mat takes us to the cross-objections filed on behalf of the original claimants in First Appeal No. 371 of 1974. The relevant facts have already been set out earlier. According to the Tribunal, the income of the deceased was Rs. 65/per month and that if the amount of Rs. 20/- per month, which the deceased must be spending on himself, was deducted from such income, the dependency benefit would work out to Rs. 45/- per month and Rs. 540/- per annum. The Tribunal applied the multiple of 15 and awarded compensation in the sum of Rs. 8,100/- for the loss of dependency benefit. We are unable to see our way to interfere with the finding of the Tribunal on this aspect of the case. The claimant, who is the father of the deceased deposed that the deceased was earning Rs. 2.50 per day and that he was working for about 27 days in a month. At this rate the income of the deceased would come to Rs. 67.50 per month. The Tribunal assessed it at Rs. 65/- per month. No fault could be found with the said finding. The view of the Tribunal that the dependency benefit would work out to Rs. 45/- is also eminently reasonable. In fact, if at all, it errs on the side of liberality. It is true that the deceased was a young man aged about 20 and that his income might have increased in course of time. However, it cannot be overlooked, having regard to the strata of Society to which the deceased belonged and the nature of his employment, that the rise in income could not have been very high or substantial besides, the deceased would have married and that would have increased his liability still further. In the ultimate analysis, therefore, the increase in the income, if any, would have been set off against his increased liability. It is doubtful whether the parents could have continued for long to look upon the deceased to provide for them. Under the circumstances, if the datum figure has been arrived at at Rs. 540/- per annum, it must be held to be proper.

25. The Tribunal applied the multiple of 15. In C. K. S. Iyer v. T. K. Nair, AIR 1970 SC 376 at page 379 the Supreme Court quoted with approval a passage from Winfield on Torts, 7th Edition, at pp. 135 and 136 where it was stated that the number of years' purchase is left fluid, from twelve to fifteen has been quite a common multiple in the case of a healthy man, and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man. This principle, of course, applied where the deceased was the bread-winner of the family. In Hirji Virji Transport v. Basiranbibi (1971) 12 Gui LR 783 at page 791 this Court referred to this passage from the decision in C. K. S. Iyer's case and stated that the Supreme Court gave its approval to this fluid number of years' purchase by stating that twelve to fifteen has been quite a common multiple in the case of a healthy Person when the deceased was the bread-winner of the family We do not think, therefore, that it could be said that there is any error of principle if the Tribunal adopted the multiple of 15 in this case. Besides, even if the multiple were to be raised slightly, it would not, on the facts and in the circumstances of the present case, make substantial difference, having regard to the datum figure which is considerably low. The result of the application of a higher multiplier by a few points would make a difference which would fall within the brackets. Under these circumstances, in our opinion, this Court, sitting as a Court of appeal, should be slow to interfere with the award of the Tribunal. In our opinion, therefore, the cross-objections filed on behalf of the original claimants in First Appeal No. 371 of 1974 must fail.

26. We might make it clear that on behalf of the appellant, the quantum of compensation awarded to the heirs of the deceased and the injured persons by the Tribunal has not been challenged. We are, therefore, not required to go into that aspect of the case.

27. We might also make it clear that in view of the decision of this Court in Premier Insurance Co. Ltd. v. Gambhirsing, (1975) 16 Guj LR 498: (AIR 1975 Guj 133) and the decisions referred to therein, when in any particular policy the insurer undertakes a wider coverage than the mini-mum Act liability it would be that liability which he has undertaken to satisfy under the contract of policy, which is now crystallised in the statutory indemnity both in S. 95 (5) and in the duty to satisfy the judgment for that liability under S. 96 (1). Therefore, even in respect of the liability arising out of such wider coverage, it would be open to the third party to proceed against the Insurance Company under S. 96 (1) for the satisfaction of the award.

28. In the result, all the three appeals succeed and are allowed to the extent that the Insurance Company is held liable to indemnify the appellant with regard to the full amount awarded in each of the three cases. Consequently, it would be open to the concerned original claimants to proceed against the Insurance Company under S. 96 (1) for the satisfaction of the full award made in each case. The Insurance Company shall pay the costs of each appeal to the- appellant and it shall also bear the costs of the original claimants in each appeal. The cross-objections filed by the Insurance Company in each appeal are dismissed with costs. The cross-objections filed by the original claimants in First Appeal No. 371 of 1974 are also dismissed. As regards the costs of the said cross-objections, however, we make no order in view of the facts and circumstances of the case.

29. Orders accordingly.


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