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Kesava Murthy Vs. V. Amurthammal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1977)1MLJ464
AppellantKesava Murthy
RespondentV. Amurthammal and ors.
Cases ReferredMonk v. Warbey and Ors.
Excerpt:
- - the third respondent, safe service ltd. 8. the third respondent, safe service ltd. , stated that the provision was made in the road traffic act, 1930, for the protection of third persons again at the risks arising out of the negligent driving of a motor vehicle by an uninsured person to whom an insured owner had lent his car, and that provision is to be found in part ii of the act which is headed 'provision against third party risks arising out of the use of motor vehicles'.the learned judge remarked that it would be a very poor protection of the person injured by the negligence of an uninsured person to whom a car had been lent by an insured person if the person injured had no civil remedy for a breach of the section. , and he was satisfied that as the law stood a cause of action.....kailasam, j.1. these two appeals arise out of a claim petition filed by the widow and minor children of one veeraswami who died in a traffic accident on 9th may 1971. the first respondent in the o.p. is the driver of the vehicle m.d.s. 7979. the second respondent is the insurance company, viz., madras motor and general insurance co., ltd. the third respondent, safe service ltd., is the registered owner of the vehicle. it had by an agreement leased the car to the .fourth respondent in february, 3970. when the car was under the control of the fourth respondent on the date of the occurrence 9th may, 1971, he had hired she car to the fifth respondent who engaged his own driver when the fatal accident occurred.2. the first respondent-driver of the vehicle was given up and the fifth respondent.....
Judgment:

Kailasam, J.

1. These two appeals arise out of a claim petition filed by the widow and minor children of one Veeraswami who died in a traffic accident on 9th May 1971. The first respondent in the O.P. is the driver of the vehicle M.D.S. 7979. The second respondent is the insurance company, viz., Madras Motor and General Insurance Co., Ltd. The third respondent, Safe Service Ltd., is the registered owner of the vehicle. It had by an agreement leased the car to the .fourth respondent in February, 3970. When the car was under the control of the fourth respondent on the date of the occurrence 9th May, 1971, he had hired she car to the fifth respondent who engaged his own driver when the fatal accident occurred.

2. The first respondent-driver of the vehicle was given up and the fifth respondent remained ex parte.

3. The Motor Accidents Claims Tribunal found that the accident resulting in the death of Veeraswami was as a result of the rash and negligent driving of the car by the first respondent. It also found that the third respondent, the registered owner had no control over the movement of the car as it had leased it in favour of the fourth respondent for a a period of two years, and therefore, it cannot be held liable for the accident. The Tribunal also held that the second respondent insurance company with which the car was insured by the owner, the third respondent, was also not liable. But, the Tribunal held that the fourth, and the fifth respondents, namely, the person who had taken the car on lease and the person to whom the car was hired on the date of the accident, were jointly and severally responsible for the claim of compensation. Though the petitioners claimed a compensation of Rs. 30,000 the Tribunal fixed the compensation at Rs. 21,000 and held that respondents 4 and 5 were liable for the same and dismissed the petition as against respondents 2 and 3.

4. The claimants have preferred C.M.A. No. 103 of 1974 praying that the registered owner and the insurance company the third and the second respondents respectively should be equally made liable for the damages. The claimants also contended that the amount awarded was too low and prayed for the enhancement of the amount to Rs. 30,000.

5. C.M.A. No. 532 of 1973 is filed by the fourth respondent, the lessee of the vehicle on the ground that the Tribunal has erroneously made him liable. The fourth respondent contends that in any event the Claims Tribunal ought not to have exonerated the owner of the vehicle. He also contends that the quantum of compensation awarded is very high and it should be reduced.

6 There could be no difficulty in confirming the finding of the Tribunal that the accident in which the deceased sustained severe head injuries and died, was due to the rash and negligent driving on the part of the first respondent. The evidence of the eye-witness P.W. 3 is that ' the car came at a high speed and knocked against the hand cart. The sketch Exhibit P-2 of the scene of occurrence prepared by P.W. 4., the Sub-Inspector of Police corroborates the testimony of P.W. 3. At the place of impact, the main road was 55 feet wide and the hand cart of the deceased was going from east to west. The place of impact was 13 feet 9 inches from the southern edge of the road and the car had travelled about 112 feet after the impact. From the sketch and the evidence of p W. 3 it is clear that there was enough space for the car to proceed along the southern half of the road and there could be no justification at all for the driver to have knocked down the cart from the rear. We have no hesitation in agreeing with the Claims Tribunal that it was due to the rash and negligent driving of the car by the first respondent that the hand cart was hit from behind and the deceased Veeraswami sustained head injuries as a result of which he died. In fact, the learned Counsel appearing for the respondents in C.M.A. No. 103 of 1974 did not seriously challenge the finding as to the rash and negligent driving by the first respondent.

7. The important question that has to be considered is as to whether the owner of the vehicle, the third respondent, who had leased the car to the fourth respondent and who had no control over the vehicle at the time of the accident can be held liable for damages for the negligent driving on the part of the first respondent.

8. The third respondent, Safe Service Ltd., the owner of the car, entered into an agreement with Kesavamurthi, the fourth respondent, on 21st October, 1970 hiring his car as a tourist taxi MDS. 7979 on a monthly hire of Rs. 675. The agreement was to be in force for a period of two years from 21st February 1970. It further provided that the fourth respondent shall be at liberty to run the car as a tourist taxi and that he should pay the motor vehicle taxes due and payable on the said vehicle on behalf of the owner. The fourth respondent war also to pay the necessary insurance premia in respect of the said vehicle on behalf of the owner of the vehicle. The fourth respondent after having taken the vehicle on lease was running it himself. On the date of the occurrence, the fifth respondent took the car on hire from the fourth respondent engaging his own driver.

9, There is no dispute that the liability of the owner of the vehicle is based on tort and that Sections 110 to 110-F of the Motor Vehicles Act do not create any fresh liability though under the above mentioned provisions a new forum is created. On the facts found if is necessary to decide whether the owner of the vehicle is liable for the conduct of the driver of the car who was employed by the fifth respondent who took the car on hire from the fourth respondent. The driver of the car was not under the employ of the third respondent. The car was not under control of the owner, the third respondent, as it was run as a tourist taxi, on the basis of a contract by the fourth respondent during the relevant time. If the third respondent could be held vicariously liable only for the negligence of the driver employed by it when the vehicle is under its control, the petitioners may not have any claim against the third respondent as the vehicle was admittedly not under the owner's control and the driver was not in its employ. Before discussing the extent of the liability of the owner for the act of a person who was driving the car when the vehicle was used for the purpose for which it was intended, it would be useful to refer to the relevant provisions of the Motor Vehicles Act.

10. Chapter VIII of the Motor Vehicles Act, 1939, relates to insurance of the motor vehicles against third party risks. The purpose of the provisions under this Chapter is to protect the Interest of third parties who are involved in motor accidents. Section 94 (i) runs as follows:

No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.

The section prohibits the use of a motor vehicle in a public place by a person unless there is in force in relation to the use of the vehicle by that person, a policy of insurance complying with the requirements of the Chapter. It also prohibits the person from allowing any other person to use the motor vehicle except in accordance with the provisions of the section. A contravention of the requirements of the section is punishable under Section 125 of the Act which provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 94 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both. There could therefore be no dispute that any person who allows any other person to use his motor vehicle without having a valid policy of insurance, is liable. The section does not impose any civil liability. We now proceed on the assumption that because of the transfer there is no valid policy of insurace in force. The third respondent would have contravened the provision of Section 94 (i) of the Act in that by the agreement it allowed the fourth respondent to use the vehicle without a valid policy of insurance and it renderd itself liable for punishment under Section 125. The Motor Vehicles Act does not impose any civil liability to compensate for the injuries sustained. Mr. K.K. Venugopal, learned Counsel, who appeared as amicus curiae told us that he could not come across any case on the question of civil liability of the owner in the circumstances mentioned in any one of the High Courts in India or in the Supreme Court. But he submitted that there are English decisions relating to Section 35 of the Road Traffic Act, 1930, which is in pari materia with the provisions of Section 94, which may throw light on the question at issue in this case. In Monk v. Warbey and Ors. 1934 All.E.R.373. there was a breach of the provisions of Sub-section (i) of Section 35 of the Road Traffic Act, 1930, which runs as follows:

Subject to the provision of this Part of this Act, it shall not be lawful for any person to use or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this part of this Act,

The section prohibits the use or permitting another person to use a vehicle unless a policy of insurance in respect of third party risks as required by the Act is in force. The facts of that case were that the plaintiff was injured through the negligent driving of a motor car by M. The motor car belonged to W who had lent it to K and it was being driven at the time of the accident by M at K's request. Neither K nor M was insured against third party risks. W was insured against such risks while the car was in his own possession but not while it was in the possession of uninsured persons and so he was in breach of Section 35 (i) when he permitted K and M to use it The contention raised before the Court was that a breach of Section 35 was not available for the benefit of the plaintiff who had been injured by the negligent driving of the motor car by the servant of an uninsured person, as a very serious penalty is imposed by the statute for breach of Section 35 'and it cannot be concluded that the section was intended to create any right on the part of a member of the public who was injured by reason of the breach. Referring to the provisions of the Road Traffic Act, 1930, Greer, L.J., stated that the provision was made in the Road Traffic Act, 1930, for the protection of third persons again at the risks arising out of the negligent driving of a motor vehicle by an uninsured person to whom an insured owner had lent his car, and that provision is to be found in Part II of the Act which is headed 'Provision against third party risks arising out of the use of motor vehicles'. The learned Judge remarked that it would be a very poor protection of the person injured by the negligence of an uninsured person to whom a car had been lent by an insured person if the person injured had no civil remedy for a breach of the section. There could be no dispute that there was a breach by the defendant of Section 35 (i). The learned Judge relying on the decisions of Groves v. Lord Wimborne 1893 (2) Q.B. 406. and Phillips v. Britannia Hygienic Laundry Co., Ltd 1923 K.B. 832. held that considering the whole Act together, the injured person was not outside the purview., and he was satisfied that as the law stood a cause of action did exist in the case of persons who have suffered damage by reason of a breach of Section 35 (i) of the Road Traffic Act, 1930. The decision is a clear authority for the proposition that the breach of the provisions of Section 35 (i) which are in pari materia with the provisions of Section 94 (i) of the Motor Vehicles Act is not only punishable under Section 125, but a cause of action exists in the case of persons who have suffered damage by reason of a breach of the provision of the section. The decision is the leading case on the point and it has been approved by the House of Lords and subsequently followed by other Courts.

11. In Mcleod {or Houston) v. Buchanan 1940 All.E.R. 179. the House of Lords affirmed the correctness of the decision in Monk v. Warbey and Ors. 1934 All.E.R. 373. Lord Wright stated thus:

The Courts below proceeded on the tooting that the construction and effect of the Road Traffic Act, 1930, Section 35, were as stated by the Court of Appeal in Mank v. Warbey. This was rightly not questioned before your Lordships. Section 35 of the Act while in express terms merely creating a criminal offence, punishable by the penalties stated in the Act, docs also by implication, on principles well settled and now familiar in the case of offiences under similar statutes, creates a civil liability in favour of any one of the class of persona whom the statute is intended to protect when such person is injured by reason of a breach of the statutory duty or obligation. The class of persons whom the section is intended to protect includes those who are likely to be injured by the negligent user of the vehicle, that is, prima facie and generally, persons using the highway.

The position in English law is therefore clear that a breach of the statutory provision does not only create a criminal offence, but it also creates a civil liability. We do not see any reason for holding that the civil liability that is found under Section 35 (i) of the Road Traffic Act is not applicable to Section 94 (i) of the Motor Vehicles Act.

12. In New Asiatic Insurance Co., Ltd. v. Pessumol : [1964]7SCR867 . the Supreme Court after referring to Sections 94, 95 and 96 of the Motor Vehicies Act, sums up the position as follows:

Chapter VIII of the Act, it appear* from the heading, makes provision for insurance of the vehicle against third party risks, that is to say, its provisions ensure that third-parties who suffer on account of the user of the motor vehicle would be able to get damages for injuries suffered and that their ability to get the 'damages will not be dependent on the financial condition of the driver of the vehicle whose user led to the causing of the injuries.' The provisions have to be construed in such a manner as to ensure this object of the enactment.

The same reasoning was adopted in Monk v. Warbey 1934 All.E.R. 373. and Ors. where the learned Judges stated thus:

That section is to be found in Part II of the Act, which is headed 'Provision against third party risks arising out of the use of motor vehicles' It would be a very poor protection of the person injured by the negligence of an uninsured person to whom a car had been lent by an insured person if the person injured had no civil remedy for a breach of the section.

Applying the same principle, we have no hesitation in holding that a person who has committed a breach of Section 94 (i) of the Motor Vehicles Act is not only guilty of a criminal offence, but is also liable civilly.

13. The next question that arises for consideration is whether the insurance company with whom the owner bad insured the car is liable. While Section 94 (i) of the Motor Vehicles Act provides that there should be a policy of insurance complying with the requirements of this chapter before a motor vehicle is used in a public place, Section 95 prescribes the requirements that are necessary under the Chapter. Section 95 requires that a policy of insurance should insure the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The policy therefore is required to insure a person against any liability that may be incurred to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The liability so far as the owner is concerned arises out of the use of the vehicle in a public place, and as such, the liability has to be covered according to the provisions of Section 95 of the Motor Vehicles Act. When once the person insured is held to be liable in respect of the death or bodily injury to a third party arising out of the use of a vehicle in a public place, the insurance policy is required to cover the liability. The Insurance company is bound to indemnify even when the insured is found liable due to the civil liability incurred due to breach of provisions of Section 94.

14. The only defence that is open to the insurance company is found in Section 96 (2) (b) of the Act. In order to exclude the liability of the insurance company, 'the sub-section requires that there must be a brench of a specific condition of the policy, the conditions being enumerated in Section 96 (2) (b) of the Act. Learned counsel relies on the specific condition available to the Insurance Company under Section 96 (2) (b) (ii) which runs as follows:

96 (2) (ii) a condition excluding driving by a named person or persons or by any other who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.

According to the learned Counsel, the policy is applicable only to drivers who are in the insured's employ and is driving on the order or with his permission. In support of this contention, the learned Counsel refers to the schedule attached to the insurance policy where the clause is incorporated under the column 'driver''. In order to appreciate the effect of this provision in the schedule, if is necessary to examine the provisions of the policy itself.

15. The policy is divided info three sections and section II relates to liability to third parties. Section. II, Clause 1, runs as follows:

Subject to the limits of liability, the company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of (i) 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.

16. The insurance company by this clause undertakes to indemnify the insured against all claims which the insured has become legally liable. When the owner has been found legally liable for a breach of Section 94 (i) of the Motor Vehicles Act, this clause would require the insurance company to indemnify the owner against the legal liabilty It is admitted that the proviso to the clause is not applicable. Clause 3 proceeds to define the liability of the company to indemnify the driver who is driving the motor vehicle on the insured's order or with his permission. General exceptions that are available to the company for denying liability under the policy is given under the heading 'General Exceptions'. Clause (3) of the General Exceptions exempts liability in respect of any accident whilst the motor vehicle is being used otherwise than in accordance with the limitations as to use or being driven by any person other than a driver. In the schedule, the limitations as to use are mentioned. It is stated that the liability can be repudiated if the vehicle is used for organised racing, pacemaking, reliability trial or speed testing and liability can also be repudiated if the vehicle is driven by a person other than a driver. Obviously the liability could be repudiated if the vehicle is not driven by a qualified driver as found in Section 96 (2) (5) (ii) of the Motor Vehicles Act, which mentions a driver who is not duly licensed, or who has been disqualified for holding or obtaining a driving licence during the period of disqualification. It is not possible to read the meaning of the term 'driver' in Clause (3) (b) of the General Exceptions in the policy as the driver mentioned in the schedule restricting the term to drivers who are in the insured's employ and are driving on his order or with his permission, for, it will be contrary to Clause 3 of section II in the policy which mentions 'any driver' who is driving the motor vehicle on the insured's order or with his permission. He need not be in the insured's employ. The clause in the schedule will be consistent with Clause 3, section II if it is read as being applicable to drivers in the employ of the owner for driving on his order or with his permission. It appears likely that the clause in the schedule is with reference to the liability of the insurance company to indemnify the driver who is driving the motor vehicle on the insured's order or with his permission. We are unable to read the schedule as restricting the liability of the insurance company only when the vehicle is driven by a person In the insured's employ and driven on his order or with his permission. The only circumstance when the insurance company may repudiate liability in the case of drivers is found in the provisions of Section 96 (2) (b) (ii) which enables the insurance company to repudiate liability when the vehicle is driven in breach of a condition excluding driving, by a named person or persons or by any person who is not duly licensed, on by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualifications. The condition excluding driving by a named person or persons should relate to a particular named person or persons and cannot embrace a class of persons as that would avoid the statutory liability imposed under Sections 95 and 96 of the Act. The insurance company cannot avoid its liability by inserting a clause that the liability is restricted only in respect of drivers in the insured's employ and driving on his order or with his permission. To read the clauses relied in the schedule as requiring that the driver should be one under the employ of the insured and that he must be driving on his order or with his permission is not justified, for that would mean that even if the car was driven on his order or with his permission the liability can be repudiated. Such a construction would go against the spirit of providing relief against third party risks. Equally untenable is the contention of the learned Counsel for the insurance company that in the schedule to the policy under the heading 'limitations as to use' it is provided that the use should only be in connection with the insured's business and it would not cover the business of the fourth respondent who has taken the car on lease, for, the 'insured's business' is the running of the car as a tourist taxi and it would also include running the tourist taxi business by leasing the vehicle to be used as a tourist taxi. In other words, it would be the 'insured's business' if the insured either runs it by himself or through an agent or manager or by leasing it.

17. There was some attempt by the learned Counsel for the third respondent, the owner of the car, to contend that the leasing of the tourist taxi to the fourth respondent was with the consent of the insurance company. The third respondent referred to its affidavit in which it stated that it had intimated the insurance company and the insurance company was aware that it had leased the taxi to the fourth respondent. The insurance company submitted that the burden of proof that the insurance company was aware of the leasing is upon the third respondent and it had not discharged it, and in reply to the contention that the allegtion in the affidavit of the third respondent had not been denied, it submitted that the insurance company was in the position of a co-defendant and it had no opportunity to deny the allegation of the third respondent. In the view, we are taking about the liability of the insurance company, the question as to whether the insurance company was informed by the third respondent and was aware of the agreement of lease of the car need not be decided.

18. On a close reading of the policy of insurance we are of the view that apart from the civil liability to which the owner is subject under the provisions of Section 94 (i) of the Motor Vehicles Act as laid down in Monk v. Warbey and Ors. 1934 All. E.R. 373. the owner would be liable vicariously for the act of the driver who drove the car, though it was the driver of the fifth respondent who took the car on hire from the fourth respondent to whom the owner had leased it. Clause 3 in Section 2 of the insurance policy provides that in terms of and subject to the limitations of the indemnity which is granted by section II to the insured, the company will indemnify any driver who is driving the motor vehicle on the insured's order or with his permission. The proviso to the clause is not relevant. The insurance company is liable to indemnify any driver who is driving the motor vehicle on the insured's order or with his permission. The words 'any driver' cannot obviously restrict the liability to person in the insured's employ so long as the driver is driving the car on insured's order or with his permission so far as third party rights are concerned. On the facts of the case, it is difficult for the insurance company to contend that the driver of the motor vehicle was driving the car without the insured's permission, By an agreement entered into between the third respondent and the fourth respondent, the vehicle was put in the control of the fourth respondent for carrying on tourist taxi business. That would clearly imply that the fourth respondent either himself or by any qualified driver under his order or will his permission can drive. The driving in the ordinary course of tourist taxi business by the person in control of the vehicle would be driving with the implied consent of the owner himself, though the driver who drove the taxi at the time of the accident was not actually driving the vehicle on his orders or with his permission. The permission of the owner can be implied when the car is driven with permission of the fourth respondent or with the permission of a person to whom the car is hired as the fifth respondent in this case. No doubt, there could be no implied permission by the owner if a person who was not properly licenced to drive was ordered or permitted to drive the car by the lessee or the hirer.

19. The words 'to permit' are given a wide meaning. In Mcleod (or Houston) v. Buchannan (1940)2 All E.R. 179. the House of Lords has given a very wide meainig to the word 'permission.' The facts of the case are that a van which was registered and insured in the name of a solicitor for commercial use only was given to his brother. The brother did not notice that the van was lsmited to commercial use only. The solicitor never gave the brother any permission to use the van far private purposes and did not know of this user nor did he tell the brother that the insurance was restricted or make any conditions as to the use of the van The brother used it for private purposes Apart from holding that the solicitor is liable for having permitted his brother to use an uninsured vehicle on the principle of Monk v. Warbey and Ors. 1934 All E.R. 373. the Court proceeded to consider as to what is the kind of permission that is necessary. Viscount Caldecote, L.C., found on the facts that the owner tacitly allowed the car to be used for private purposes and made no new condition with regard to the van, but left his brother to carry on without any express, or even implied, restrictions upon its use, and the handing over of the complete control was unambiguous, and had the effect of sanctioning general use, and the owner never suggested any intention to restrict its use. Lord Russel of Killowen expressed his view that the brother was entitled to assume, unless told otherwise, that the van was substituted for the car for all purposes and to assume that the permission for private purposes continues until withdrawn, and the owner knew or ought to have known that the brother would continue private use unless he was told that he must not. Lord Wright expressed his view thus:

To 'permit' is a looser and vaguer term, It may denote an express permission, general or particular, as distinguished from a mandate. The other person is not told to use the vehicle in the particular way, but he is told that he may do so if he desires. It includes cases where permission is merely inferred. If the other person is given control of the vehicle, permission may be inferred if the vehicle is left at the other person's disposal in such circumstances as to carry with it a reasonable implication of a discretion or liberty to use it in the manner in which it was used.

On the test laid down by the House of Lords it is reasonable to infer permission if the vehicle is left at the other person's disposal in such circumstances as to carry with it a reasonable implication of a discretion or liberty to use it in the manner in which. It was used. Viscount Caldecote, in his judgment approved of the reasons given by Lord Carmont in the Court of Sessions wherein he expressed the opinion that the handing over of the complete control of the vehicle to James Buchanan was unambiguous, and had the effect of sanctioning general use. The actual passage of Lord Garmont is extracted in Bingkam's Motor Claims Gases, Seventh Edition, page 685 as follows:

I think any one who parts with the control of a motor vehicle completely without making any definite arrangement with the custodian as to use impliedly permits all use, and it is for the permitter to sec that there is the requisite insurance cover in force in relation to a use which is in fact unrestricted.

It may be seen that the word 'permit' has been given a wider meaning than the test as to whether the owner knew or ought to have known that the van was being or was likely to be used for his own private purposes. While Viscount Caldecote, L. C. was of the view that the handing over of the complete control was unambiguous, and had the effect of sanctioning general use, Lord Russel of Killowen proceeded on the basis that the brother was entitled to assume, unless told otherwise, that the van was substituted for the car for all purposes and to assume that the permission for private purposes continued until withdrawn. Lord Wright went further and held that when the other person is not told to use the vehicle in a particular way, but is told that he may do so if he so desired, it will include that permission is inferred. It may foe that the statement of the Law Lords, particularly the statement of Lord Garment which was approved by Viscount Caldecote, L. C. is unqualified and would cover cases where the custodian had used the vehicle in a manner outside what any reasonable persons would have contemplated. The learned author Bingham has also questioned the correctness of the unqualified statement. Whatever may be the right view, in the present case, there could be no difficulty in holding that the owner not only knew but intended that the car should be used as a tourist taxi and that it would be used by the fourth respondent engaging a qualified driver or by hiring it to private persons who will themselves engage qualified drivers. Therefore, the present case would come within the purview of the indemnity given in the insurance policy which covers a driver driving with the permission of the insured. In this view of the matter, the owner will be clearly liable vicariously for the conduct of the driver whom he had impliediy permitted to drive the car.

20. It now remains for us to determine whether the quantum of damages, namely, Rs. 21,000 is proper. P.W.2 the first petitioner who is the widow of the deceased Veesaswami had given evidence that her husband was 45 years old at the time of the accident and that he was earning Rs. 10 to Rs. 12 a day and he used to give the entire amount for the household expenses. The Claims Tribunal found, that the deceased would have earned an average of Rs. 7 a day, out or which a sum of Rs. 5 would have gone to the family expenses. Taking the monthly dependency at Rs. 150 and the annual dependency at Rs. 1,800 the Tribunal awarded ten year's purchase and a further sum of Rs. 3,000 under the head of loss of prospects of a predominantly happy life. Accepting the basis of annual dependency at Rs. 1,800, a sum of Rs. 18,000 seems to be on the high side. The Tribunal has not taken into account the fact that a lumpsum payment is made and that it would fetch interest. We do not also see any justification for giving a sum of Rs. 3,000 under the head of loss of prospects of a predominantly happy life. Taking all the facts and circumstances into account, we award a sum of Rs. 15,000 to the claimants for the loss of life of Veeraswami in the fatal accident. The amount will carry interest at the rate of six per cent per annum from the date of the petition, that is 14th June, 1971. Out of the sum of Rs. 15,000 and interest accrued a sum of Rs. 3,000 and the interest so accrued will be paid to the first respondent and the balance of the amount will be deposited in one of the nationalised banks during the minority of the minor children. After each one of the children attains majority, his or her equal share will be drawn and paid to the concerned child. The first respondent mother will be entitled to draw the interest from the amount deposited as and when it accrues for the maintenance her children, The appeal by the claimants, C.M.A. No. 103 of 1974 is allowed as against respondents 2, 3, 4 and 5 in the claim petition with costs to the extent indicated. G.M.A. No; 532 of 1973 preferred by the lessee of the vehicle is allowed to the extent of holding respondents 2 and 3 in the claim petition also liable. There will be no order as to costs in G.M.A. No 532 of 1973.

21. We are thankful to Mr. K.K. Venugopal for the assistance rendered as amicus curiae.


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