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The Oriental Fire and General Insurance Co. Ltd. Vs. Khudiram Dutt and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 279 of 1976
Judge
Reported inAIR1979Cal190
ActsMotor Vehicles Act, 1939 - Sections 95(1), 95(2), 96(1) and 110B; ;Motor Vehicles (Amendment) Act, 1969
AppellantThe Oriental Fire and General Insurance Co. Ltd.
RespondentKhudiram Dutt and anr.
Appellant AdvocateBiswajit Ghosh and ;Sankar Mitra, Advs.
Respondent AdvocateChaitanya Chandra Mukherjee, Adv. for Respondent No. 1
DispositionAppeal partly allowed
Excerpt:
- .....no doubt that section 95(2) prescribes the limit of the total statutory liability of an insurer in respect of a policy which covers the third party risks. exhibit 'a' is the policy and under the heading 'limits of liability', it contains the statement 'such amount as is necessary to make the requirements of the motor vehicles act'. this statement shows that the policy has been issued in terms of section 95(1)(b)(i) read with section 95(2)(a). there is, therefore, no difficulty in awarding compensation up to a sum of rs. 50,000/-against the insurer on account of the liability arising out of a policy covering third party risks. it is true that exhibit 'a' also contains the statement, 'limit of the amount of the company's liability under section ii-i(ii) in respect of any one claim or.....
Judgment:

M.M. Dutt, J.

1. This appeal is at theinstance of this Insurance Company andit is directed against the award datedAugust 27, 1975 of the Motor AccidentClaims Tribunal, Calcutta.

2. On February 8, 1971 at about 8 A.M., the respondent was knocked down by a lorry bearing No. WBL 8468 near the junction of Diamond Harbour Road and Mayurbhanj Road, Calcutta. The respondent suffered compound fracture' of right leg and several other injuries on his person. He was treated in the Sambhu Nath Pandit Hospital as an indoor patient from February 8, 1971 to May 29, 1971 and also from June 19, 1971 to July 3, 1971. He made an application under Section 110A(1)(a) of the Motor Vehicles Act, 1939 praying for payment of compensation. It was alleged that he incurred expenditure of Rs. 5,000/- for his treatment. Further, it was alleged that the lorry in Question was driven at a very high speed in a rash and negligent manner and' it suddenly came from behind and knocked the respondent down Who was on a cycle and proceeding towards north. The respondent was aged 45 years on the date of his accident and was earning Rs. 500/- per month as a tailor and order supplier in ships on Java Bengal Shipping Line. He claimed compensation of Rs. 75,000/-.

3. The owner of the lorry did not appear in the proceeding and contest the claim of the, respondent. It appears that at the instance, of the learned Tribunal, the appellant was served with a notice of the proceeding. The appellant entered appearance and filed its defence. Further, the appellant cross-examined the witnesses examined, on behalf of the respondent with the permission of the learned Tribunal. The appellant denied that the respondent received the injury due to the rash and negligent driving of the vehicle by the driver. The claim of the respondent for compensation to the extent of Rs. 75,000/- was also denied.

4. The Tribunal; after considering the evidence on record, came to the findingthat the accident had happened due to the rash and negligent driving of the lorry in question by the driver thereof. It also held that the respondent was earning Rs. 400/- per month at the time of the accident, and that he was permanently disabled for any job that required free movements. The Tribunal awarded a total sum of Rs. 60,300/- in favour of the respondent. Of the said sum, Rs. 50,000/-was directed to be realised from the- appellant and the balance sum of Rupees 10,300/- from the owner of the vehicle. Hence this appeal.

5. Mr. Biswajit Ghosh, learned Advocate appearing on behalf of the appellant submits that the Tribunal was not justified in holding that the income of the respondent was Rs. 400/- per month at the time of the accident. It is the evidence of the respondent Khudiram Dutta, who examined himself as P.W. 6, that he used to earn Rs. 250/- to Rs. 350/- per month as a tailoring contractor under the Java Bengal Shipping Line. His total monthly income was Rs. 300/- to Rs. 400/-. P.W. 7 Sudhir Kumar Dutta, a tailor-hawker in the ships, said that the respondent was a tailor in the ships. In his cross-examination, he said that he did not know the income of the respondent which varied from Rs. 100/- to Rs. 500/- per month. Much reliance has been placed on behalf of the appellant on this statement of P.W. 7. It is contended that the evidence referred to above does not support the finding of the learned Tribunal that the respondent had an income of Rs. 400/- per month. In our opinion, there is some substance in the contention. The evidence shows that the income of the respondent was not uniform. According to the respondent himself his total monthly income was between Rs. 300/- and Rs. 400/-. In our view, it will not be correct to say that the respondent had a monthly income of Rs. 400/-. We think that in such a case, it will not be unreasonable to take the average of the minimum and the maximum income of the respondent, and such average comes to Rs. 350/-. We, therefore, hold that the monthly income of the respondent at the time of the accident was Rs. 350/-.

6. Next it is contended on behalf of the appellant that there is no satisfactory evidence justifying the finding of the Tribunal that the respondent has been permanently disabled for any job that requires free movements. In coming to the said finding, the Tribunal has placed reliance on the evidence of the respondentand that of P.W. 8, Dr. Sailendra KumarSaha. It is the evidence of the respondent that he could not come out of hisroom for two years because his leg hadswollen. He cannot carry on the activities of daily life with ease and movesabout slowly with the help of a stick. Heshowed to the Tribunal that his rightknee was inflexible, and that a bone hadbeen projected from the same. P.W. 8Dr. Sailendra Kumar Saha examined therespondent on July 26, 1975. P.W.8 is anM.B. of the Calcutta University and hasbeen practising for over 35 years. He waspreviously attached to the Eden Hospital,Mayo Hospital and British General Hospital. He had training in Orthopedic Surgery in Mayo Hospital. He foundinter alia gross limitation of flexion movements of the respondent to the extent of80% of the knee joint, and swelling,irregularity, tenderness of the shaft ofthe right femur with two inches shortening suggesting old crushed injury withmal-united fracture and alkalosis andfracture of the patella. He also foundthat squatting by the respondent was impossible. He was of the opinion that therespondent was permanently disabled forany job that required free movements,and that the respondent was unable towork as a tailor. After considering theabove evidence, and also having seen thephysical condition of the respondent theTribunal held that the respondent waspractically unfit for any work. Inour view, the evidence on recordamply justifies the finding of theTribunal. We are unable to accept thecontention of the appellant that P. W. 8being only a general physician and notan Orthopedic Surgeon, his evidencehas no value. The accident had takenplace in February 1971 and P. W. 8 examined the respondent on July 26, 19,75,that is, after more than four years. P.W. 8gave his opinion about the permanent disability of the respondent for any job requiring free movements on the basis ofhis finding as to the actual physical condition of the respondent and also on thebasis of the X-Ray plates. We are of theview that although P.W. 8 is not anOrthopedic Surgeon, still, he is quitecompetent to give his opinion as to thedisability of the respondent. Moreover,P.W. 8 had his training in OrthopedicSurgery in Mayo Hospital. In these circumstances, the contention of the appellant is without any substance and is rejected.

7. The Tribunal computed the amount of compensation as follows:

For pain and sufferingRs. 4000.00For treatmentRs. 3000.00For loss of further earning (Rs. 5000 x 12)Rs. 60000.00

Rs. 67000.00Less 10% for benefit of acceleration to the estateRs. 6700.00

Rs. 60300.00

It has been stated already that out of the total amount of compensation, the Tribunal directed that the respondent would realise the sum of Rs. 50,000/-from the appellant and the balance from the owner of the vehicle. It is urged on behalf of the appellant that under the policy of insurance the limit of the amount of liability of the appellant is fixed at Rs. 20,000/- which is the sum assured. It is contended that in view of Section 96(1) of the Motor Vehicles Act 1939, the appellant is only liable for Rs. 20,000/-which is the sum assured and, accordingly, the Tribunal committed an error of law in permitting the respondent to recover from the appellant the sum of Rs. 50,000/-. This contention, in our view, is misconceived. Section 95(1)(b)(i) of the Motor Vehicles Act provides as follows:

'In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) -

(i) 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.' Clause (a) of sub-section (2) provides as follows:

'(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely, -- (a) where the vehicle is a goods vehicle of limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.' Before 1969, the limit of the liabilitywas Rs. 20,000/- but Clause (b) was amended by the Amendment Act 58 of 1969 and the limit of the liability was raised to Rs. 50,000/-. Section 96(1), which lays down the duty of insurers to satisfy judgments against persons insured in respect of third party risks, will apply where a certificate of insurance has been issued under Sub-section (4) of Section 95 and the judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 is obtained against any person insured by the policy. There can be no doubt that Section 95(2) prescribes the limit of the total statutory liability of an insurer in respect of a policy which covers the third party risks. Exhibit 'A' is the policy and under the heading 'Limits of liability', it contains the statement 'Such amount as is necessary to make the requirements of the Motor Vehicles Act'. This statement shows that the policy has been issued in terms of Section 95(1)(b)(i) read with Section 95(2)(a). There is, therefore, no difficulty in awarding compensation up to a sum of Rs. 50,000/-against the insurer on account of the liability arising out of a policy covering third party risks. It is true that Exhibit 'A' also contains the statement, 'Limit of the amount of the Company's Liability under Section II-I(ii) in respect of any one claim or series of claims out of one event -- Rs. 20,000/-'. Much reliance has been placed on this statement by the learned Advocate for the appellant. It, however, appears that in the paper book the whole of Ext. 'A' has not been printed. Only the schedule of the policy has been printed in the paper book. On a reference to Ext. 'A', it is found that Section II-I(ii) relates to damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle. So the Insurance Company's liability under Section II-I(ii) extends to Rs. 20,000/- in respect of damage to property caused by the motor vehicles. It has nothing to do with the death of or bodily injury to any person. The contention made on behalf of the appellant is, therefore, misconceived and is without any substance.

8. Lastly, it is contended that the Tribunal was not justified in deducting only 10 per cent for the benefit of acceleration to the estate from the gross amount of compensation as calculated by it. According to the appellant, the Tribunal should have deducted 25 per cent from the pecuniary loss that will be suffered by the respondent on account of his disability. It is contended that as the amount will be paid in a lump to the respondent, he will earn an income by investing the same and the Tribunal should have taken notice of such income. Although there is no hard and fast rule that such deductions should be made, they are made for justice and fair play between the parties. The Tribunal has assessed the pecuniary loss of the respondent at Re. 60,000/- on the basis that the respondent's income was Rs. 400/-per month. According to us, however, the income of the respondent was Rs. 350/- per month. Adopting the same method as that of the learned Tribunal, if we calculate the pecuniary loss that will be suffered by the respondent on the basis of his monthly income of Rs. 350/-, it will be Rs. 50,400/-. Now the question is what the percentage of deduction on account of benefit of acceleration to the estate should be from the amount of pecuniary loss. The Tribunal has deducted 10 per cent from the total amount of compensation assessed by it. In our opinion, the Tribunal has committed an error. We do not think that any deduction should be made from the sum of Rs. 3000/- spent by the respondent for his treatment and also from the sum of Rs. 4000/- assessed for his mental pain and suffering. In our opinion, the sum of Rs. 7000/- should not be subjected to any deduction. It is contended on behalf of the appellant that at least 25 per cent should be deducted for the benefit of acceleration to the estate. In our opinion, the said percentage of deduction as claimed by the appellant is not unreasonable. Accordingly, we hold that 25 per cent should be deducted from the sum of Rs. 50,400/-and after such deduction it comes to Rs. 37,800/-. After adding the sum of Rs. 7000/- to the sum of Rs. 37,800/-, the total amount of compensation payable to the respondent comes to Rs. 44,800/-. It may be recorded that the appellant has already paid a sum of Rs. 10,000/-to the respondent towards the compensation in terms of the order of this Court.

9. In the circumstances, we set aside the award of the Tribunal and in lieu thereof we award the sum of Rs. 44,800/-as compensation against the appellant and the respondent No. 2, the owner of the vehicle. The respondent No. 1 willbe entitled to realise the whole of the amount of compensation awarded from the appellant company. The appellant and/or the respondent No. 2 are directed to deposit in the Tribunal below the balance amount of the compensation as awarded within six weeks from date, in default, the respondent No. 1 will be entitled to realise the same with interest at the rate of six per cent per annum. The claim case is allowed in part with cost assessed at a consolidated sum of Rs. 100/-.

10. The appeal is allowed in part, but in view of the facts and circumstances of the case, there will be no order for costs.

Sharma, J.

I agree.


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