Marakka vs Santosh Benefit Pvt. Ltd. and Others

D.H. Shukla, J.—The Appellant, Marakka, widow of Muniswami Ramaswami, filed M.A.C. Application No. 81 of 1975 before the Motor Accidents Claims Tribunal, Ahmedabad (Rural) at Narol under the provisions of Section 110-A of the Motor Vehicles Act, 1939 to recover her claim of compensation totalling to Rs. 43,000/- on account of the death of her son Varadhraj Munniswami, aged about 28 years from the Respondents. Respondent No. 1, Santosh Benefit Private Ltd., is the owner of the concerned Ambassador car bearing No. GJI 6867 and Respondent No. 2 is the Managing Director of Respondent No. 1. Respondent No. 3, Balakrishna K. Nair is the owner of United Motor, a motor garage situated near Victoria Garden.

Respondent No. 4 is the United India Fire and General Insurance Co. Ltd., being the insurer of the said Ambassador car.

The case of the Appellant before the Tribunal may briefly be stated as under:

The deceased Varadhraj was serving with Respondent No. 3 on a salary of Rs. 250/- per month according to the information of the Applicant. On 19.12.1973, the deceased was sent by Respondent No. 3 to drive the said Ambassador car and when deceased was returning from Gandhinagar at about 5-30 p.m. one wheel (probably meaning thereby the tyre) of the car burst and the door of the driver''s side was swung open, with the result that deceased was thrown out from the car. He was removed to the V.S. Hospital where he died on 21.121973. It is the submission of the Appellant that the deceased was in no way negligent in driving the car, but the accident occurred as the car was not in a working order. She, therefore, seeks to hold the Respondents liable to pay compensation to her for the death of her son. She further submits that deceased was maintaining her and practically his entire salary was spent on her. The deceased was healthy except for minor ailments and he was a good mechanic and a driver. It is her further case that deceased used to go home in the morning and evening for taking his food, but he was sleeping at the garage of Respondent No. 3 every night. She wanted to get him married in the course of time. She claimed Rs. 43,000/- as compensation as per the details tabulated at paragraph 11 of her claim petition.

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The learned Tribunal raised issues at Exh. 19. The first issue raised by the Tribunal is as to whether the deceased met with an accident as a result of a burst of a tyre of ambassador car of Respondent No. 1 and that he died as a result of the said accident. On this issue, the Tribunal has given a negative finding.

7 to 10. X X X

The next question which would now arise is whether the accident occurring on account of the bursting of the tyre could be attributed to the negligence of the owner of the car.

To decide this question, it is necessary first to refer to the documentary evidence, which is on the record of the case. Mr. K.F. Dalai produced for our perusal, a certified true copy of the policy of insurance with respect to the Ambassador car. It shows that the year of the manufacture of the car is 1962. It is evident from this evidence, therefore, that when the accident occurred on 19.12.1973, the car was nearly a decade old. In the light of this fact, it is necessary to further consider the evidence of the Chief Accounts Officer of the Santosh Benefit Private Ltd., Jayendra Ashalal Shah, whose evidence was recorded before us. The witness has stated that he has been working as the Chief Accounts Officer with the Santosh Benefit Private Ltd. for the last ten years. He has averred that the same company maintains a motor car account and he produced the original account book containing the motor car account. It appears that the car was purchased by the company on 21.7.1973 on payment of Rs. 8,500/-. In his cross-examination, the witness admitted that in 1974 the car was resold for Rs. 5,000/-. He further admitted that he could not say even after referring to the account of the car as to when it was last serviced. He stated that the company did not have any occasion to get it repaired. He further stated that he did not know if the tyres of the vehicle were at any point of time changed. He also could not say as to the mileage covered by the car when it was purchased by the company and at the point of time when the accident occurred. According to him, it was the Managing Director who knew about the condition of the vehicle at the time of the purchase and thereafter. The Managing Director, though he is admittedly in Ahmedabad, did not come forth to give further evidence on the question about the condition of the car at the time of the accident.

From the above evidence, there remain no room for doubt that the company had purchased a second-hand car about ten years after its manufacture. On an average, we can make a safe inference that it must have covered over a lakh of kms. There is no evidence to show as to when were the tyres changed or as to what was their condition when the accident occurred. We are constrained to observe that the Respondent No. 1, namely, the company has taken no pains whatever to show that the condition of the car in general and of the tyres in particular was of a roadworthy condition. When we are considering the liability from the point of view of the negligence of any of the opponents for its occurrence the attention would necessarily be focussed on the owner of the car and of course on the driver also. But here we have to remember a significant and an important fact that the driver of the vehicle at the time of the accident, namely the deceased was not in the regular employment of the owner of the car and that his services were requisitioned only casually and specially on that day. There is no evidence that he had ever driven this car before. It is in the light of these facts that we may now refer to some relevant decisions on this point.

In the case of Barkway v. South Wales Transport Co. Ltd. (1948) 2 All E.R. 460 , a similar question had arisen before their Lordships of the Court of Appeal. In order to appreciate the observations made therein which have been cited with approval in Gobald Motor Service Ltd. v. R.M.K. Veluswami (1958) A.C.J. 179 (S.C.), a few facts may be noted. The accident in question occurred at about 6-30 a.m. on February 27, 1943, when a motor omnibus belonging to the Defendants and carrying 53 passengers, among whom was the Plaintiff''s husband, was passing through a village when the off-side front tyre burst, the omnibus went over to the off-side of the road, mounted the pavement, crashed into some railings and fell down on embankment, killing four of the passengers, including the Plaintiff''s husband and injuring others. Evidence was given that an impact fracture was caused by a severe blow which could happen without leaving any visible mark on the outer surface of the tyre and might not be visible even if the tyre was removed from the rim and examined. It is important to bear in mind the fact that the tyre, while fixed on the rim, had been examined periodically by an expert fitter employed by the Defendants, the last examination being three days before the accident and it was the practice of the Defendants to have tyres examined internally after every 25,000 miles when they had been running on fairly bad roads. The tyre in question had run about 23,545 miles and about 21,750 miles since it was last taken off for examination. Before the accident occurred the driver of the omnibus had been driving at an average speed of 32 miles an hour and was, therefore, guilty of a breach of statutory duty as the maximum speed for an omnibus of that type in the ''black out'' (which then existed) was 20 miles an hour. He was, however, not driving at an excessive speed just before the accident occurred and the tyre-burst was not caused by his driving too fast. The Plaintiff claimed damages from the Defendants on the ground that her husband''s death was caused by the negligence of the Defendants or their servants. In the light of these facts, it was held as under:

The fact that the omnibus left the road and fell down the embankment raised a presumption of negligence against the Defendants, requiring them to prove affirmatively that they had exercised all reasonable care; to displace the presumption it was not sufficient for the Defendants to show that the immediate cause of the accident was a tyre-burst, since a tyre-burst per se was equally consistent with negligence or due diligence on their part; but it was necessary for the Defendants to prove either that the burst itself was due to a specific cause which did not connote negligence, or, if they could point to no such specific cause, that they had used all reasonable care in the management of their tyres. (Emphasis supplied).

In the course of his judgment. Bucknill J. made the following observation:

I think that the Defendants, in order to avoid liability, must prove to the satisfaction of the court that they took all reasonable steps to ascertain that the tyre was fit for use on February 27 and this I think on the evidence they failed to do. It may have been fit or it may not have been fit. The mere external examination of a tyre which had run 21,750 miles since August 1, 1942, part of which was done on bad roads, driven by drivers who had had no instructions to report an unusual and heavy blow to the tyre and without any examination of its internal surface during the whole of that time, seems to me to leave the Defendants with the burden undischarged of satisfying the Court that they had taken all reasonable steps to avoid this accident.

There was a cleavage of opinion amongst the judges who decided that matter as to whether the Defendants had taken proper care about the road-worthiness of the omnibus in question, but that arose on account of the facts brought on the record of the case. But so far as the above stated observation is concerned, it is of general importance and has universal application.

If we refer to the facts of the present case and examine the aforestated observation of Bucknill J. we find that the owner of the car in question has shown a miserable concern about the road-worthiness of the car. To recall the facts, it was a decade old car which was purchased by the company and there is no evidence whatever to show as to when was the car and particularly the tyres, checked last time. The Managing Director has not cared to examine himself to show that all necessary steps were taken to maintain the car in a road- worthy condition. Not only that but although the passengers of the car were named by the brother of the deceased in the letter abovereferred to, none of them is examined to show as to how the accident occurred and whether it could at all be attributed to the negligence of the driver. In view of this evidence before us, we are in no manner of doubt that the accident must be attributed to the negligence of the owner of the car, namely Respondent No. 1 and that it must be held liable for the consequences which flowed from the unfortunate accident. No liability for the negligence can be attributed either to the Managing Director, Respondent No. 2, or Balkrishna K. Nair, Respondent No. 3. The Managing Director is not personally liable for the negligence of the limited concern, of which he is the Managing Director, unless such facts are proved which would make him personally responsible for it. There is no evidence to show that Respondent No. 3 was under any duty to maintain the car in a road-worthy condition and he also therefore cannot be held responsible.

For the grounds above-stated, we upset the finding of the Tribunal that the accident was not proved to be due to any rashness or negligence on the part of any of the opponents.

Then comes the question about the quantum of compensation that may be awarded to the Appellant. On behalf of the Appellant, Jagdishchandra Balashankar Vora (Exh. 38) from the Calico Mills was examined. According to him, deceased served in the Calico Mills as a driver and was getting a salary of Rs. 50/- per month plus D.A. which came to about Rs. 250/- per month. He has proved a certificate (Exh. 39) in that regard. The deceased served in the Calico Mills upto middle of January, 1972. According to the Appellant, the deceased joined the United Motor Garage of Respondent No. 3, but Respondent No. 3 has on oath denied that the deceased was in his employment at the time when the accident occurred. It is difficult to gather with certainty as to whether the deceased was permanently employed with Respondent No. 3, but it is difficult to gainsay for the Respondent that the deceased continued to work as a driver. Though he might not have been in any particular employment, the estimation of his monthly income as given by his mother at about Rs. 250/- per month cannot be stigmatised as any exaggeration. She has also stated that the deceased was giving her monthly Rs. 200/-. But so far as that amount is concerned, we do not consider that even if that amount was paid, it was ear-marked for the Appellant alone. The Appellant is supported by her son Neinamal Munniswami (Exh. 25), although this witness is also not able to give any exact income of the deceased. In view of the lack of clear evidence about his income, we must make a reasonable guess as to what his income would be under the circumstances in which he was living. We take his monthly income to be about Rs. 250/- per month and we further consider that out of it he was spending about Rs. 125/- per month for the maintenance of his mother. The loss of dependency benefit so far as the Appellant is concerned will therefore come to Rs. 125/- per month and Rs. 1,500/- per year. Considering the approximate age of the Appellant about 50 years and the age of the deceased which was about 28 years and further considering the fact that the life of the deceased was also a hazardous life with more than usual wear and tear and taking the global account of the relevant factors concerning the deceased, we are of the view that 15 years'' multiplier would be just and proper in this case. On this data, the total amount payable to the Appellant comes to Rs. 22, 500/- to which we must add a further amount of Rs. 5,000/- for the shortened expectation of life. The total comes to Rs. 27,500/- which the Respondent No. 1 must pay as compensation to the Appellant.

Before we end this judgment, we may in brief observe that so far as Respondent No. 4, the United India Fire and General Insurance Co. Ltd. is concerned, it must be exonerated. u/s 95(1)(b)(i) of the Motor Vehicles Act, 1939, the owner of the car is not required to cover compulsorily the liability to the passengers. Further, there is no contract entered into between the owner of the car and the insurance company for covering a larger risk so as to cover the risk of the passengers in the car. Vide the principle laid down in the case of Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , the Respondent No. 4 cannot be held liable for negligence and consequently cannot be required to pay compensation to the Appellant. It is also, therefore, exonerated from any liability in this case.

Before we pass the final order, we direct that out of the entire amount that may be found payable to the Appellant, the Appellant may be paid in cash only 10 per cent of it and the rest of it may be invested by the Tribunal (or the Executing Court) in a long term deposit with any of the Scheduled Banks with the arrangement that interest accrues every month, which interest may be paid regularly to the Appellant.

In the result, the appeal is allowed and the judgment and order of the Tribunal are set aside. The Respondent No. 1, Santosh Benefit Private Ltd., is held liable to pay a sum of Rs. 27,500/- to the Appellant as compensation and it is further held liable to pay interest thereon at the rate of six per cent per annum from the date of the application till payment. It is further held liable to pay the costs of the Appellant and to bear its own. The Respondent Nos. 2, 3 and 4 are exonerated from the liability, but they shall bear their own respective costs.