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Kullappan Vs. Meenakshi - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 236, 307 to 313 and 314 of 1978 and Memorandum of Cross-objections in A.A.O. Nos. 308 an
Judge
Reported inAIR1982Mad176
ActsMotor Vehicles Act, 1939 - Sections 95(2), 110-B and 110-D; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 27(1)
AppellantKullappan
RespondentMeenakshi
Appellant AdvocateD. Raju Venkatachalapathi and ;D. Srinivasaraghawan, Advs.
Respondent AdvocateK.C. Jacob and ;A. Ramendran, Advs.
Excerpt:
- - 3. the claim petitions were opposed by the owner of the lorry as well as the insurance company with which the lorry had been insured. after analysing the evidence both oral and documentary, adduced by all the parties,,the tribunal held that the accident was due to the composite negligence of both the driver of the lorry as well as the driver of the tourist taxi and apportioned the liabilities of the lorry driver and the taxi driver in the proportion of 60:40. on this basis, the tribunal proceeded to determine the quantum of compensation payable to each of the claimants and fixed the aggregate amount of compensation payable by the lorry owner towards his 60 per cent liability at rs. therefore, not, withstanding the objections raised by the insurance company that the insurance policy..........under the. head 'limits of liabilites' this is what it say 'limit of the amount of the company liability under sec. ii-1 (i) in respect of any one accident unlimited.limit of the amount of the company's liability u/s. ii-1 (ii) in respect of any me claim, or series of claims arising out of one event, rs. 1,50,000/-.'it should be noted that under the first clause the printed words 'such amounts as is necessary to meet the requirements of the motor vehicles act. 1939' have been scored out and the word 'unlimited! has been typed in its place and that under the second clause the printed figure '56,0001-' has been scored out and in its place '1,50,000/-' has been typed. this alteration indicates that the insurer undertook a higher liability than the one contemplated by the.....
Judgment:

Ramanujam, J.

1. As all these appeals rise out of the claim Petitions filed by various persons in respect of the same accident and of the same common order of the Tribunal, it is convenient to deal with them together.

2. On 9-9-1976 at about 5-55 P. m. the Lorrv MSN 3785 belonging to the appellant and a taxi MSL 6872 belonging to one Padma Shannmugham collided near Pandiyarajapuram Sugar Mills on the Dindigul Madurai road. As a result of this collision all the 12 passengers in the taxi. including the driver. sustained serious injuries and seven of them died as a result of the injuries. Nine out of the 12 Passengers file d claim petitions. Seven claims related to the seven persons who died and two related to the injured persons. All the nine claim petitions had been filed on the basis that the accident was due exclusively to the rash and negligent driving of the lorry by its driver.

3. The claim petitions were opposed by the owner of the lorry as well as the Insurance Company with which the lorry had been insured. The owner of the lorry contended that the accident was due to the rash and negligent driving of the taxi, which was heavily overcrowded and which was driven by a person who had no valid licence to drive. His specific case is, that the lorry was trying to overtake a bullock cart going in front and at the time of such overtaking the tourist taxi came and hit the lorry, even though it could have swerved to its left and avoided hitting the lorry. He also contended that in any event the taxi driver has also contributed by his negligence to the accident and therefore the owner of the taxi should also be held jointly liable to pay the compensation for th6 various claimants. It was also contended that the compensation. claimed by the various claimants was high1v excessive.

4. The insurance companv resisted the claims by practically taking the same stand as that of the lorry owner. In addition, it raised the defence that, in anv event, its liabilitv in respect of the various claims arising out of the same accident cannot exceed Rs. 50,0001- as Sec. 95 (2) of the Motor Vehicles Act has limited the aggregate liabillty in respect of one: accident to Rs. 5Q,0001-.

5. The Motor Accidents Claims Tribunal. (M., Additional. Subordinate Judge) Madurai, set down the following two points as arising for consideration in all the claim petitions-

1. Whether the accident took place on account of the rash and negligent driving of the first resporident's lorry MSM 3785 by his driver?

2. Are the petitionens entitled to compensation and if so, to what extent and from which of the respondents?

After analysing the evidence both oral and documentary, adduced by all the parties,, the Tribunal held that the accident was due to the composite negligence of both the driver of the lorry as well as the driver of the tourist taxi and apportioned the liabilities of the lorry driver and the taxi driver in the proportion of 60:40. on this basis, the Tribunal proceeded to determine the quantum of compensation payable to each of the claimants and fixed the aggregate amount of compensation payable by the lorry owner towards his 60 per cent liability at Rs. 1,06,800/-. However, the Tribunal restricted the liability of the insurance company to Rs. 50,0001-, based on the statement made by the insurance company in its counter statement filed in all the claim petitions that its overall liability is limited to Rs. 50,0001- in respect of one accident, as per Section 95 (2) of the Motor Vehicles Act.

6. Aggrieved by the awards passed the Tribunal in all these cases the owner of the lorry has- filed the above appeal questioning the award of compensation and two of the claimants, namely the claimants in 0. P. 51 and 58 of 1977, have filed memorandum of cross objections in the related appeals, namely C. M. A. Nos. 308 and 314 of 1978 respectively seeking higher compensation We will deal with the said memoranda of cross objections a little later,

7. We will now proceed to deal with the main appeals filed by the owner of the lorry. In all the appeals filed by the appellant, it has been contended that the liability of the insurance company is not limited to Rs. 50,0001- as assumed by the Tribunal, but it extends to a sum of Rs. 1,50,0001-. In support of this contention he has filed C. M. P. 10909 of 1980, in C. M.A. No. 236 of 1978 under Order 41, Ride 27 C. P. Code, praying for reception of the insurance policy as additional evidence in the appeal. Though this application for reception of the said additional evidence this court affirm appellate stage in resisted by the insurance company we are of the view that the insurance policy is necessary for a proper and effective disposal of the appeals before us, for ,the appellant has mainly qestioned the awards of the tribunal in all these cases on the grounds that it had restricted the Liability of the insurance company to an aggregate sum of Rs. 50,000/-, on the basis that as per the terms of Section 95 (2) of the Motor Vehicles Act, the liability of the insurance company is limited to Rs. 50,000/- overlooking the fact that the insurance company has entered into a comprehensive Policy agreeing to indemnify the insurer to Rs. 1,50,000/- on payment of a higher Premium. To deal with the contention put forward by the appellant in all these appeals that the insurance company had agreed for a higher liability than the one provided in Section 95 (2) (b),- we have to peruse the terms of the policy which will enable us to determine the controversy raised in the appeals by the appellant It is not in dispute in this case that the insurance company did not file and rely on the insurance policy before the tribunal and it relied only on the statutory provision in Section 95 (2) of the Motor Vehicles Acts under which to satisfy the provisions of the Act the insurer need not insure the vehicle for more than an aggregate sum of Rs. 50,000/-. Though the Act does not compel the insurer to insure an of more than Rs. 50,0001- it is open to the Insurance company to cover a risk for a higher liability. Therefore, not, withstanding the objections raised by the insurance company that the insurance policy not having been filed before the Tribunal by the appellant, it should not be entertained at the appellate stage, we are of the view that the insurance policy is a necessary document and is essential to properly and effectively dispose Of the appeals before us. We therefore, receive the said document as additional evidence invoking the Dower under Order 41, Rule 27 (1) (b), C. P. Code, and mark the said policy in the appeals as Ex. R 3.

8. A perusal of the policy, which has been now marked as Ex. R. 3, shows that it provides for the limits of two kinds of liabilities. Under the. head 'Limits of liabilites' this is what it say

'Limit of the amount of the company liability under Sec. II-1 (i) in respect of any one accident unlimited.

Limit of the amount of the company's liability u/s. II-1 (ii) in respect of any me claim, or series of claims arising out of one event, Rs. 1,50,000/-.'It should be noted that under the first clause the printed words 'Such amounts as is necessary to meet the requirements of the Motor Vehicles Act. 1939' have been scored out and the word 'unlimited! has been typed in its place and that under the second clause the printed figure '56,0001-' has been scored out and in its place '1,50,000/-' has been typed. This alteration indicates that the insurer undertook a higher liability than the one contemplated by the provisions of the Motor Vehicles Act. Having agreed to bear a larger liability to the extent of Rs. 1,50,000/-, in respect of a single accident, it is. Not open to the insurer now to re1v on the provisions of the Motor Vehicles Act and say that its liability is limited to the liability provided under Sec. 95 (2) of the Motor Vehicles Act. As already pointed out, even though the insurer is required to insure a vehicle only to -the extent of Rs. 50,000/- it is always open to the insurer to accept a higher liability on payment of a higher premium. In this ease the Policy is stated to be a 'commercial vehicles comprehensive policy' and the insurer has agreed to bear a total liability of Rs. 1,50,0001- in respect of one claim or series of claims arising out of one event coming under See. II-1 (ii) of the policy. The liability in respect of the claims arising under Second II-1 (I) of the policy is unlimited and in this case the liability has been claimed under Section II-1 (i). There fore, the liability of the insurance company is unlimited in respect of these claims. Since the Tribunal proceeded on1v on the basis of the provisions contained in Section 95 (2) of the Motor Vehicles Act, it has limited the aggregate liability of the insurance company to Rs. 50,000/-. But the actual contract between the insurer and the insured, as con be Lathered from the terms of the insurance policy, Ex. R. 3, shows that the insurance company has undertaken an unlimited liability in respect of the death or bodily injury to persons caused by or arising out of the use of the lorry. In this view of the matter the Insurance company has to bear the entire liability arising out of the death or bodily injury to all the claimants in these cases, In this case, holding theInsurance company a liable only to the extent of Rs. 50,000/-, the tribunal has chosen to apportion the compensation fixed in each case as between the insurance company and the owner of the lorry on some rough and read basis. Now that we have held that the entire liability has to be borne by the insurance company alone there is no question of any apportionment of the liability between the owner of the lorry and the Insurance company. We have, therefore, to hold that the entire compensation in all the cases will have to be paid by the Insurance company.

9. Now coming to the memorandum of cross-objections filed in C.XA- 308 of 1978. It is seen that the claim in this case was wall regard to the damages caused to the taxi as a result of the accident. The claim in that regard was for a sum of Rs. 20,000/-. The Tribunal has awarded a compensation of Rupees 17,0001- and the liability of the lorry owner was determined at 60 per cent thereof, that is a sum of Its. 10,200/-. Though in the cross objections a further sum of Its. 5,000/- is claimed by wav of damages, we do not see any ground for interfering with the quantum of compensation awarded by the tribunal. Even according to the evidence of P. W. 7, who is the husband of the claimant, the car had been valued at Its. 21,000/- when the car was insured. Therefore, it can easily be assumed that the value of the car was Its. 21,000/- at the time of the accident. Having given the value of the car at the time of insuring the car as Its. 21,000/- it is not open to the claimant to say that the car was worth much more than Rs. 21,000/-. Admittedly the damaged car has been sold for Rs. 4,000/-, Deducting the said sum of Rs. 4,000/- the damages can only come to Rs. 17,000/which is the damages fixed by the tribunal. We therefore see no reason to interfere with the quantum of compensation awarded as damages to the car in 0. P. 51 of 1977. The memorandum of cross objections filed in C. M. A. 308 of 1978, therefore, fails and it is dismissed.

10. Coming to the memorandum of cross-objection filed in C. M. A. 314 of 1978, it is seen that the claim has been made by the mother of the deceased Sukumari who was a teacher receiving a salary, of R& 330/- at the time of her death. The tribunal, tabling note of her Promotional chances if she had been alive determined the average earnings of the deceased at Rs. 375/- per menses. Taking note of the age of the claimant the tribunal has adopted ten as the multiple for capitalizing, the loss of the Pecuniary benefit to the claimant. In the memorandum of cross objections the claimant seeks a higher compensation. It is i3ointed out by the learned counsel for the cross objector that having regard to the age of the deceased as well as the age of the claimant, the multiplier of 15 'should have been adopted by the tribunal and the adoption of 10 as multiplier cannot be justified on the facts and circumstances of the case. I however, having regard to the fact that ,the deceased was aged 25 at the time of her death, it can easily be assumed that in a few years time she would have married if she were alive and the entire 'benefit of her earnings would not have gone to the claimant. At the same time, it cannot be said that as soon as she got married the deceased Sukumari would have stopped any payments to her mother. The evidence of the claimant clearly indicates that the deceased was, the only earning member of the family And the entire fami1y depended on her and earnings. Having regard to all these circumstances, we can easily adopt 12 as he multiplier. on that basis, the compensation payable in 0. P.58 of 1977 will come to Rs. 28,800/- But having regard to the fact that there is loss of expectation of a predominantly happy life, a further sum of Rs. 1,200/- can be granted under that head Thus, the total compensation which could be award in O. P. 58 of 1977 will come to Rs. 30,000/- since the tribunal has apportioned the liability between the lorry and the car in the ratio of 60:40, the liability of the owner of the lorry comes to Rs. 18,000/-. we allow the memorandum of cross objections in C. M.A. 314 of 1978, in part and modify the award of the tribunal in O. P. 58 of 1977 and fix the liability of the lorry owner as also the insurance company at Rs. 18,000/-.

11. The result is that all the appeals and the memorandum of cross objections in C. M.A. 314 of 1978 are allowed in part and the second respondent insurance company in all the appeals is made liable for the total compensation payable in respect of all the claimants.

12. In view of the fact that the insurance company has not placed before the Tribunal the tree state of affairs, by producing. the policy and had in fact suppressed the same and persuaded the tribunal to hold that its liability Is limited to Rs. 50.000/- quite contrary to the terms of the policy under which its liability is unlimited, we direct the Insurance company to Day the costs of the appellant in all these appeals to show our displeasure. Counsel's fee Rs. 200/- in each

13. The learned counsel for the appellant, the owner of the lorry. represents that pending these appeals, and in pursuance of the interim orders passed by this court, he has deposited a sum of Rs. 15,000/- and given security for the balance, and now that the appeals have been allowed and the insurance company has been made liable for the aggregate of the compensation amounts, the appellants may be permitted to withdraw the said sum and also have the security bond cancelled. Having regard to the fact that the appeals have been allowed and the liability for payment of the entire compensation amount has been cast on the Insurance company, the appellant is entitled to withdraw the sum of Rupees 15.000/- already deposited by him alone with accrued interest if any and to have the, security bond cancelled.

14. It is stated by the learned counsel for the claimants that the Insurance company has deposited only a sum of Rs. 40,000 and it has to deposit the balance and that the sum of Rs. 3,600/awarded by this court, in C. M. A. 314 of 1978 in addition to the sum awarded by the tribunal should carry interest at 6 per cent from the date of the petition. Hence, there will be a direction to the insurance company to Pay the balance of the compensation payable to the claimants within six weeks from this date with interest at the rate and from the date mentioned by the tribunal.

15. Ordered accordingly.


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