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Kodaikanal Motor Union (P) Ltd. Vs. Srinivasa Roadways, Madurai and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberC.M.P. Nos. 2689 and 2690 of 1975
Judge
Reported inAIR1979Mad14
ActsMotor Vehicles Act; Code of Criminal Procedure (CrPC) , 1908 - Sections 152
AppellantKodaikanal Motor Union (P) Ltd.
RespondentSrinivasa Roadways, Madurai and ors.
Cases ReferredMaster Construction Co. v. State of Orissa
Excerpt:
- - and the failure to look at the insurance policies before making the directions is an omission; , as mentioned in the policies had been noticed, such an error would not have taken place and the failure to notice that is an accidental slip or omission. on a perusal of the policy, we are also satisfied that the insurance co. that the decision is clearly erroneous cannot be gainsaid. corresponding corrections will also be made in the decree as well......the company is not agreeable to the correction. counsel then referred to certain provisions in the insurance policy and contended that there is no liability at all for the insurance co. it is of course too late to raise such a contention because the liability of the insurance co. has already been upheld by this court and there is no question of reconsidering that decision. on a perusal of the policy, we are also satisfied that the insurance co., is liable in each case to the extent of rs. 20000. we have no doubt that if the insurance policy had been brought to the notice of the court, such a provision limiting the liability of the insurance co. to rs. 2000 in each case would not have been made in the judgment.7. the supreme court in master construction co. v. state of orissa :.....
Judgment:
ORDER

1. In both these review petitions the Kodaikkanal Motor Union (P) Ltd., Madurai, is the petitioner O. P. No. 75 and 144 of 1968 are Motor Accidents Claims Petitions for compensation under the Motor Vehicles Act. On 3-9-1967 at about 5-30 p. m. between mile stones 274/4 and 274/5. In Madurai Dindigul road, there was a collision between bus MDU' 6991 belonging to the Kodaikanal Motor Union (P) Ltd., and lorry MDA 1440 belonging to Srinivasa Roadways Ltd. As a result of that accident, one Sundaramurthi who was a professor and a person by name Saroja and others sustained injuries. The widow of Sundaramurthi, namely, one Thailambal and three others filed O. P. 75 of 1968 for compensation. Saroja also filed a petition O. P. 144 of 1968 for compensation.

2. From the decision of the Tribunal appeals were taken in C. M. A. No. 262 and 263 of 1970 and this court found that the driver of the bus MDU 6991 belonging to the Kodaikanal Motor Union (P) Ltd., was responsible for the accident by his rash and negligent driving. The said company had taken an insurance to cover such accidents with the Motor Owners Insurance Co. Ltd., Belgaum. That company was also a party to the appeals before this court. After hearing all parties, this court upheld the compensation of Rs. 55000 to be paid to the widow of professor Sundaramurthi, namely, the said Thailambal and also Rs. 10000 to be paid to the petitioner in O. P. 144 of 1968, namely, Saroja. Hence these review petitions have been filed by the Kodaikanal Motor Union (P) Ltd.

3. After having fixed the compensation at Rs. 55000 and Rs. 10000 respectively, this court said-

'We therefore hold that the Motor Owners Insurance Co., Ltd., Belgaum, is liable by and under the terms of the policy issued by it, to cover the risk that has occurred in this case. Needless to add that its liability will be limited to Rs. 2000 per passenger and the cumulative liability of the company for the entire accident would be limited to Rs. 20000. At the time of the accident, the relevant section had not been amended to enlarge the total liability to Rs. 50000. Specifically with regard to Rs. 55000 awarded to the widow Thailambal, this court stated 'Out of this amount of Rs. 55000 only a sum of Rs. 2000 would be payable by the Motor Owners Insurance Co. Ltd., and the balance by the Kodaikanal Motor Union (P) Ltd.'

Similarly, with regard to the compensation awarded to Saroja, there are the following observations in the judgment;

'Taking all these factors into account, the Tribunal has fixed a compensation at Rupees 10,000, which we think is quite reasonable. Out of this amount, a sum of Rs. 2000 will be paid by the Motor Owners Insurance Co. Ltd., and the balance of Rs. 8000 will be paid by the Kodaikanal Motor Union (P) Ltd.' As a result of the above decisions taken by this court, the liability of the petitioner in these two petitions will come to Rs. 8000 in respect of Saroja and Rs. 53000 in respect of the said Thailambal, totalling to a sum of Rs. 61000.

4. The case of the petitioners in these two petitions is that the liability of the Insurance Co. has been fixed at Rs. 2000 in each of the cases due to a patent error which has arisen in the judgment from an accidental slip in not noticing that the Insurance policies had provided for a liability up to Rs. 20,000 in each of the cases. and the failure to look at the insurance policies before making the directions is an omission; if the liability undertaken by the Insurance Co., as mentioned in the policies had been noticed, such an error would not have taken place and the failure to notice that is an accidental slip or omission.

5. Though the petitions were styled as review petitions, realising that the review petitions as such may not be maintainable in view of the fact that both the judges who decided C. M. A. 262 and 263 of 1970, are not now sitting in this court and the petitions have been pending in the court for more than six months when they were in the court, counsel contended that the review petitions must be treated as petitions under Section 152, C. P. C. to correct the errors, which we pointed out earlier in the judgment, because those errors arose from an accidental slip or omission. Whatever may be the reason, for the errors which we will consider presently, would cost the petitioner Rs. 26000 for, the entire liability towards Saroja, namely, Rs. 10000 will have to be met by the Insurance Co., and out of Rs. 55000 that should be paid to the said Thailambal Rs. 20000 will have to be provided by the Insurance Co. This means that the petitioner would have only a total liability of Rs. 35000 as against Rs. 61000 mentioned in the judgment.

6. We perused the Insurance policies and it was admitted before us that the liability provided in the policy is extended to Rupees 20000 in each of these case and that this liability under the Insurance policies is not affected by any statutory provision in the Motor Vehicles Act. We, therefore, suggested to the Insurance Co. to agree to the correction being made in the judgment. Counsel took time to consult the Head Office of the company and reported later that the Company is not agreeable to the correction. Counsel then referred to certain provisions in the insurance policy and contended that there is no liability at all for the Insurance Co. It is of course too late to raise such a contention because the liability of the Insurance Co. has already been upheld by this court and there is no question of reconsidering that decision. On a perusal of the policy, we are also satisfied that the Insurance Co., is liable in each case to the extent of Rs. 20000. We have no doubt that if the Insurance policy had been brought to the notice of the court, such a provision limiting the liability of the Insurance Co. to Rs. 2000 in each case would not have been made in the judgment.

7. The Supreme Court in Master Construction Co. v. State of Orissa : [1966]3SCR99 , observed that an arithmetical mistake is a mistake of calculation while a clerical mistake of calculation while a clerical mistake is of writing or typing, that an accidental slip or error is an error due to a careless mistake or omission unintentionally made, that such mistake should be apparent on the face of the record and that it should not depend for its discovery on elaborate arguments on questions of law and fact.

8. The appeals were before this court. If the court had adverted to the terms of the policy, the error would not have occurred. That the decision is clearly erroneous cannot be gainsaid. Counsel should have brought the terms of the policy to the notice of the court. It must have been due to an accidental slip or omission that it was not so brought to the notice of the court. We have no doubt at all that advertence to the policies would have avoided the error. In these circumstances, we consider that this court cannot only rectify the error but has even a duty to rectify the error because on the basis of the terms of the policy, the liability of the Insurance Co. could not have been limited to Rs. 2000 in each of the cases. It would have been graceful on the part of the Insurance Co., to have agreed to the correction as it had undwertaken the liability to the full extend of Rs. 20000 in each of the cases and such undertaking was to cover such eventualities as that occurred as a result of the accident to which we made reference at the beginning of this order. It is regrettable that such a step had not been chosen. However, we do not consider the court to be helpless in the matter. As we stated it is the duty of the court to rectify the error in the circumstances.

9. We accordingly allow these petitions as falling under Section 152, C. P. C. and direct that the limitation or the liability of the Insurance Co. will be corrected to Rupees 20000 and the figures Rs. 2000 in the passage will be referred to as Rs. 20000 as substituted. Corresponding corrections will also be made in the decree as well. These petitions are disposed of in the above terms. We direct the parties to bear their respective cots.


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