Amar Singh vs Surajmal and Others

S.S. Sharma, J.—This judgment shall also govern the disposal of Miscellaneous Appeal No. 158 of 1974.

Both these Miscellaneous Appeals arise out of Claim Case No. 57 of 1972 wherein the First Additional Motor Accidents Claims Tribunal gave an award in favour of Respondent No. 1 Surajmal for Rs. 3,750/- with interest @ 6% per annum from 25.4.1972. This award was against Appellant Amar Singh who is the owner of the truck No. M.P.C. 1175 and Respondent No. 2 Madanlal who was the driver of that truck at the relevant time. Surajmal''s claim against Respondent No. 3, insurance company was dismissed.

Aggrieved by the award, Amar Singh has preferred this appeal (Misc. Appeal No. 129 of 1974). Claimant Surajmal also felt aggrieved by the award and he preferred Misc. Appeal No. 158 of 1974. Initially Surajmal had valued his appeal at Rs. 35,000/- but later on by an amendment he reduced his claim in appeal to Rs. 18,000/-only.

Truck No. M.P.C. 1175 owned by Amar Singh was insured with Respondent No. 3 insurance company. It was on 11.4.1972 at about 12.30 p.m. that the truck while coming from Mhow to Indore met with an accident on Sukhniwas Road. This truck had been engaged by one Saifuddin Kabadi for transporting goods from Mhow Roadways Depot to Indore.

According to the case of the claimant Surajmal, he and other laborers were also in the truck while it was returning from Mhow. The allegation is that due to (he rash and negligent driving of Respondent Madanlal, the truck dashed against the trees on the right side of the road as a result of which all the labourers excepting one fell down from the truck. Claimant Surajmal was also one of those who had fallen down. Claimant Surajmal suffered compound fracture of left leg, lacerated wound on the skull and simple fracture of lumber one vertebra. Surajmal claimed a total amount of Rs. 35,000/- as the compensation.

The owner and the driver, viz, Amar Singh and Madanlal filed a joint written-statement denying their liability. They also denied Surajmal having accompanied the truck driver from Indore to Mhow as also that Surajmal boarded the truck within the knowledge of the driver. Their plea was that Surajmal boarded the truck surreptitiously without the knowledge of the driver or the cleaner. The further plea was that to avoid a she buffalo who was moving on the road, the driver swerved the truck from the main road. At that time the mainspring of the vehicle gave way which resulted in a dash against a tree. The insurance company also denied its liability inter alia on the ground that the insurance policy did not cover any passenger authorised or unauthorised. It further disowned the liability because the truck with laborers in it was plied in contravention of the term of the policy.

The Tribunal found that the truck was being driven by driver Madanlal rashly and negligently which resulted in dashing against the tree injuring claimant Surajmal. The plea that Surajmal was in truck unauthorisedly without the knowledge of the driver was also negatived. As a result of the findings on certain relevant facts he held that the insurance company was not liable to pay compensation with respect to the injuries to Surajmal. The plea that the contractor who had employed the laborers is a necessary party was also negatived. Accordingly, he gave the aforesaid award.

According to the claimant, he and Heeralal (A.W. 2) were in the truck at the time of the accident, Madanlal in his evidence denied that the laborers were in the truck with his permission. His evidence about the presence of the laborers including Surajmal in the truck at the time of the accident is quite evasive and cannot be accepted. In paragraph 19 of his deposition Madanlal admitted that before the truck dashed against the tree, he did not see any laborers lying on the road. He, however, admitted that claimant Surajmal and one another were seen by him lying injured. He, as he states, had taken these injured to the police-station and they had told him that they had been traveling in the truck. The evidence, therefore, conclusively makes out that claimant Surajmal was in the truck when it dashed against the tree.

It is an admitted position that the truck had dashed against a tree which was slightly away from the road on the right side. Madanlal in his evidence stated that the road was not smooth. It has also been brought out that as a result of dashing against a tree its branches had fallen down. This clearly indicates that the vehicle must have dashed against the tree with some force. On a road of the type which driver Madanlal had described, he was not supposed to have driven the vehicle at such a speed. The Court below has rightly negatived the defence plea about the main spring having broken. In the circumstances, as they are, the rule of res ipsa loquitur was clearly applicable. There being no satisfactory explanation about the cause of the accident, the conclusion about negligence and rashness in driving of the vehicle was rightly drawn by the Court below. The conclusion stands fully justified from the evidence and the circumstances.

The other question that was raised was about the liability of the insurance company. During the evidence, Surajmal and Heeralal made a futile attempt to prove that they were in the truck at the invitation of Madanlal. The Court below, in my opinion, rightly rejected that stand. The circumstances clearly make out that injured Surajmal was employed as a Kuli by Saifud-din who had hired the truck.

In the insurance policy (Ex-D-1), the licensed carrying capacity has been shown to be of two persons including the driver. Obviously, Surajmal could not be included in it.

A Division Bench of this Court in South India Insurance Co. Ltd., Indore v. Heerabai and Ors. 1967 A.C.J. 35 (M.P.) had considered the question of the liability of the insurance company in such cases. Their Lordships on a consideration of the terms of the insurance policy as also Section 95 of the Motor Vehicles Act held that "Thus in order to make the company liable the person or passenger being carried in the goods vehicle should be an employee of the insured falling under one of the two categories mentioned above". Learned Counsel for the Appellants referred to some other decisions also including one of the Karnataka High Court in T.M. Renukappa Vs. Fahmida and Others, which according to them takes slightly different view. A Single Bench decision of this Court in M.A. No. 119 of 1973 Hukam Chand Insurance Co. Ltd. Vs. Badruddin and Others, decided on 8.3.1979 was also referred, It appears that the decision in the case of South India Insurance Co.''s case 1967 A.C.J. 35 (M.P.) was not brought to the notice of the learned Single Judge. However, I am bound by the Division Bench decision and in view of that the insurance company could not be made liable to pay compensation regarding injuries of Surajmal who as a matter of fact was under no contract of employment with the owner or the driver of the truck. In view of this the submission that the insurance company should also have been held to be liable has to be rejected.

Appellant Surajmal in his appeal also raised a contention for enhancement of the amount of compensation. Dr. Taneja does not state it to be a case which would result in any permanent deformity. In view of the period during which Surajmal was under plaster, and considering his income, the Tribunal rightly calculated the loss of income to be Rs. 1,250/-. In action for personal injury, in view of the distinguishing features of individual cases it is impossible to standardize the quantum of damages. In my opinion, the principles laid down by the Division Bench of this Court in Kumari Deepti Tiwari Vs. Banwarilal and Others, can safely be taken as guidelines to determine the general damages. Applying the principles laid down in this case, I am clearly of the opinion that the amount of Rs. 2,500/- as have been awarded by the Tribunal by way of general damages is quite just and reasonable.

Consequently, I find no merit in both these appeals which are hereby dismissed. In the circumstances I would leave the parties to bear their own respective costs of the appeals.