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Judgment
These two appeals arise out of a common judgment and award dated 20th June 1989 [hereinafter to be referred to as,"the impugned judgment and award"] passed by the Motor Accidents Claim Tribunal (Main), Surat [hereinafter to be referred to as, "the Tribunal"].
First Appeal No 1413 of 1990 is preferred under Section 110D of the Motor Vehicles Act, 1939 by the original petitioner-claimant in Motor Accident Claim Petition No. 79 of 1988, being aggrieved by the impugned judgment and award in so far as it restricts liability of the respective opponents, while awarding the claim of Rs. 10,00,000/= with proportionate costs and interest @ 12% per annum.
And whereas, First Appeal No. 1440 of 1990 is preferred under Section 173 of the Motor Vehicles Act, 1939 ["Act of 1939" for short], being aggrieved by the impugned judgment and award in so far as, it held the respondent no. 4 responsible to the extent of 20% of negligence and on the grounds pleaded in the said appeal.
In a fatal road accident which occurred in the wee hours of 24th November 1985 between a Metador bearing RTO registration No. GTT-8075 and a Truck, somewhere between 4:00 am and 5:00 am, when the driver of Metador carrying pilgrims from Dakor via Shamlaji to Udaipur lost sight of the road sign indicating diversion and thereby made a reverse move so as to negotiate the said diversion collied with a Truck, bearing RTO registration No. DEL-2600, resulting into causing of serious bodily injuries to most of the passengers who were on pilgrimage tour. Amongst the injured passengers who were initially treated at Taluka Health Centre and thereafter referred to for further medical treatment to a Hospital at Udaipur, Shri Bhupendra Ramniklal Panchchigar succumbed to accidental injuries and breath last on 11th December 1988. His Motor Accident Claim Petition No. 79 of 1988, which came to be preferred by the deceased/victim during life time, came to be persuaded by his widow-Smt. Parvatiben. Simultaneously, Smt. Parvatiben is also one of the claimants in Motor Accident Claim Petition No. 80 of 1988. Rest of the claimants are viz., Kirit Ramniklal [Motor Accident Claim Petition No. 81 of 1988]; Nanubhai Ramanlal Soni [Motor Accident Claim Petition No. 82 of 1988]; Lilavatiben Nanubahi Soni filed two claim petitions viz., Motor Accident Claim Petition No. 83 of 1988 and Motor Accident Claim Petition No. 84 of 1988 raising different claims for compensation in respect of fracture and other injuries; Smt. Belaben had preferred Motor Accident Claim Petition No. 85 of 1988 and whereas, Asha Kirit Panchchigar; Uma, wife of Bhupendra Nanubhai Soni and Ambalal Kikabhai Modi have preferred Motor Accident Claim Petitions No. 86 of 1988; 87 of 1988 & 88 of 1988 respectively. Initially, all these claim petitions were lodged before the appropriate Court of law at Udaipur, however, proceedings in respect of all these claim petitions came to be transferred to the Tribunal by virtue of an order passed by the Apex Court in a Transfer Petition [Civil] No. 30 to 39 of 1987. The Tribunal, after complying with requisite procedure, framing issues and appropriately assigning reasonings thereon, held all the opponents jointly and severally liable for the amounts awarded in respect of each of the claimants with proportionate costs and interest thereon @ 12% per annum from the date of filing of respective claim petitions filed before the Court of law at Udaipur on 24th October 1986 till realization. The liability so assessed qua opponents no. 1 & 2 was to the extent of 80%, and whereas, the liability assessed towards Opponents no. 4, 5 & 6 was fixed at 20%. This judgment and award has given rise to First Appeal No. 1413 of 1998 which is preferred by the original plaintiff-original claimant, who is widow of Bhupendra Pachchhigar and Ajitbhai Narsibhai Patel, who was original opponent no. 5 before the Tribunal in Motor Accident Claim Petition No. 79 of 1988.
Heard learned advocates for the respective sides at great length.
Learned advocate Shri Vakil appearing for the appellant-original petitioner-claimant vehemently contended that the Tribunal has seriously erred in apportioning the liability in the ratio of 80:20 between the respondents no. 1, 2 & 3 on the one hand and the respondents no. 4, 5 & 6 on the other by restricting the statutory liability of the third opponent to the extent of Rs. 1,50,000/= and thereby also restricted liability of the opponent no. 6 to the extent of Rs. 15,000/= each treating it to be its statutory liability. Counsel for the appellant contended that the Tribunal failed to appreciate that the statutory limit of Rs. 1,50,000/= applies where the vehicle is a "goods vehicle" meant for use of carriage of goods, or any motor vehicle not so constructed, or adopted when used for carriage of goods solely or in addition to passengers, and therefore, the Tribunal has miserably failed to appreciate that there was no evidence to show that the vehicle Truck bearing RTO registration no. DEL 2600 was a goods vehicle, without there being original insurance policy brought on the record.
Counsel for the appellant drew attention of this Court to Schedule II of Policy No. 45112 24781 issued on 14th June 1985 for Truck bearing RTO registration No. DEL 2600 describing insurance company's liability to the extent of Rs. 1,50,000/= in respect of any claim or series of claims arsing out of an accident.
Counsel for the appellant further contended that the Tribunal has also failed to appreciate that the limit of Rs. 15,000/= for each individual passenger as envisaged in Section 95 [2](b)(i) of the Motor Vehicles Act, 1939 applies only where the vehicle is a vehicle in which passengers are being carried for hire or reward, or by reason of or in pursuance of a contract of employment and hence, the Tribunal has failed to appreciate that there was no evidence led to show that the vehicle-Matador bearing RTO registration no. GTT 8075 was such a vehicle, and thereby the Tribunal ought to have ordered the opponents no. 3 & 6 to pay full amount of award against their respective insured.
In support of his arguments, counsel for the appellant placed reliance upon a decision of Full Bench of this Court in the case of Shantaben & Ors. vs. Yakubbhai Ibhrahimbhai Patel & Ors., rendered in FA No. 1343/1988 and allied appeals which were decided on 23rd March 2012, and a decision of the Supreme Court in the case of New India Assurance Company Limited vs. Vimal Devi & Ors., reported in 2011 [3] TAC 17.
Concluding his arguments for and on behalf of the appellant-original claimant earnestly urged the Court to suitably modify the award by passing appropriate orders.
And whereas, for and on behalf of the appellant in First Appeal No. 1440 of 1990, learned advocate Shri Shelat assailed the impugned judgment and award of the Tribunal by contending that the Claims Tribunal has committed grave error in appreciating the evidence adduced before it and thereby erred in holding that the original respondent no. 4 was responsible to the extent of 20% of the negligence. On the aspect of awarding a sum of Rs. 69,000/= towards pain, shock and suffering; dependency benefit of Rs. 3,60,000/=; additional medical expenses of Rs. 1,44,000/=, counsel for the appellant-original opponent no. 5 vehemently contended that the said figure worked out by the Tribunal is wholly unjustified and requires appropriate modification. Counsel for the appellant in First Apeal No. 1440 of 1990 therefore urged this Court to allow his appeal, ordering suitable modification of the impugned judgment and order, in so far as the above figures is concerned.
Per contra, counsel for the Insurance Company resisted the appeals predominantly contending that as per Section 92 [2](a), (b) and (c) of the Motor Vehicles Act, 1939 the opponent-Insurance Company would be liable only to the extent of Rs. 150000/-which being a statutory limit prevailing at the relevant time. He further contended that when the Insurance policies were not in face of it carry unlimited liability, the limit of liability of the Insurance Company therefore was correctly restricted to Rs. 1,50,000/= by the Tribunal, when no extra premium was paid to cover unlimited liability. It is further submitted that the Tribunal has erred in considering the negligency of the driver of motor vehicle and held him responsible to the extent of 20%. Hence, it was requested to dismiss the appeals.
Having heard learned advocates appearing for and on behalf of the respective sides and having considered the material available on the record, it is an undisputed fact that due to a fatal road accident which occurred on 24th November 1985 between a Metador bearing RTO registration No. GTT-8075 and a Truck bearing RTO registration no. DEL 2600, most of the passengers who were on pilgrimage tour suffered severe bodily injuries and amongst them, one of the passengers viz., Shri Bhupendra Ramniklal Panchchigar succumbed to such accidental injuries on 11th December 1988. A Motor Accident Claim Petition No. 79 of 1988 which was preferred by the deceased during his life time came to be persuaded by his widow-Smt. Parvatiben along with her claim petition. Similarly, other injured have also preferred claim petitions which resulted into judgment and award. holding all the opponents jointly and severally liable for amounts awarded in respect of each of the claimants with proportionate costs and interest thereon @ 12% per annum from the date of filing of respective claim petitions before the Court of law at Udaipur on 24th October 1986 till realization. This judgment and award has given rise to First Appeal No. 1413 of 1998, filed by original plaintiff-original claimant [widow of Bhupendra Pachchhigar] and Ajitbhai Narsibhai Patel, who was original opponent no. 5 before the Tribunal in Motor Accident Claim Petition No. 79 of 1988.
It is equally undisputed fact that though Sections 95 & 96 of the Motor Vehicles Act, 1939 restricts the statutory insurance in case of third party injury, however, did not prohibit insurance agreements covering higher or unlimited liability.
It is also undisputed fact that there exists a provision for liability to third parties in Schedule II of Policy No. 45112 24781 issued on 14th June 1985 in respect of Truck No. DEL 2600 prescribing such amount as is necessary to meet the requirements of Motor Vehicles Act, 1939 thereby limiting the amount of Insurance company's liability under Section II [1] [ii] in respect of any one claim or series of claims arising out of one event at Rs. 1,50,000/=. Therefore, no fault can be found in the impugned award passed by the Tribunal in respect of Insurance company's liability.
It is also undisputed that in the present set of appeals, insurance policy in respect of Truck bearing RTO registration No. DEL 2600, despite sufficient opportunity being given, was not produced before the Claims Tribunal. However, a photo copy thereof has now been produced which contains a clause in respect of "avoidance of certain terms and right of recovery" under Section III of the Policy document. The said clause in unequivocal terms, reads thus-
"Avoidance of certain terms and right of recovery : Nothing in this policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939 .. Section 96.
But, the insured shall repay to the Company, all the sums paid by the Company which the Company would not have been liable to pay but for the said provisions."
By virtue of avoidance clause, inso far as the third party is concerned, the Insurance Company is being made to satisfy the entire award. While, insofar as the Insurer and the Insured are concerned, the policy still continues to be one of limited liability.
Thus, when the law in respect of limited liability of the Insurance company in face of avoidance clause contained in the insurance policy has been now well settled by the Apex Court in a decision rendered in the case of Vimal Devi [Supra]. Apt it would be, to reproduce the relevant observations and direction issued by the Apex Court in para 7 of its decision, which reads thus -
" 7. The Avodance clause in the policy in this case makes all the difference and the direction of the High Court to the appellant-Insurance Company to make payment of the full amount of compensation to the claimants and to recover its dues from the owner of the vehicle is directly in accordance with that Clause. In our view, the submission of Mr. Calla is well founded. The appellant in this case can derive no benefit from the decision in New India Assurance Company Limited vs. C.M Jaya & Ors., reported in [2002] 2 SCC 278."
Thus, in view of above pronouncement of the Apex Court in the cited case, which squarely covers the entire issue, this Court holds that in wake of avoidance clause contained in the insurance policy, the Insurance Company; despite its limited liability, must in so far as third party is concerned, first satisfy the entire award of the Claims Tribunal and thereafter, the Insurance Company would be entitled to recover the amount in excess of the statutory limit of liability from the owner of the vehicle insured, which was involved in the accident.
For the purpose of deciding these appeals, this Court is not required to go into the question whether in a case the insurance policy provides for avodance clause, the Insuranc company can press into service the limit of statutory liability under the Act and thereby avoid satisfying the award in so far as the claimants are concerned, since the issue has already been set at rest by a Full Bench decision of this Court rendered in case of Shantaben & Ors. [Supra].
Before this Court, in fact, no serious arguments were advanced for enhancement of the compensation awarded by the Claims Tribunal, though emphatically, it was pressed that the Tribunal has erred in limiting the liability of the Insurance company only to the extent of Rs. 1,50,000/=.
Resultantly, First Appeal No. 1413 of 1990 stands partly allowed. The quantum of compensation awarded by the Claims Tribunal in Motor Accident Claim Petition No. 79 of 1989 is not disturbed, by upholding the limited liability of the Insurance Company to the tune of Rs. 1,50,000/=. The respective Insurance Companies are hereby directed to satisfy the entire award of the Claims Tribunal in the ratio specified therein, by keeping it open for the Insurance Companies to recover the compensation deposited by it before the Claims Tribunal in excess of Rs. 1,50,000/= from the owners of the respective motor vehicles in the accident.
On the aspect of Claims Tribunal awarding compensation to different claimants by holding the original opponent No. 4 responsible to the extent of 20% of negligence is concerned, the Claims Tribunal in its common judgment and award, which is impugned herein, while answering the Issue No. 1 raised therein, has elaborately dealt with the circumstances under which vehicular accident occured and thereby arrived at a conclusion to the extent that the original opponent no. 4 has not been vigilant enough to read the road sign and thereby took his vehicle on the road side meant for its use. Not only this, the Claims Tribunal has further went on to observe that, "..had he been careful enough to take note of the said diversion sign, the Tempo would not have gone on to the old road which was in disuse because of repairs and that alone had necessitated taking his vehicle in reverse and thereby the accident occured." By drawing aforsaid conclusion, the Claims Tribunal in its impugned common judgment, while ascertaining the negligence of the original Opponent no. 4 has concluded that, "..the negligence on the part of the Opponent no. 4 is, therefore, on two counts - that, he did not read the road sign and that he did not take appropriate care in taking his vehicle in reverse."
In view of detailed reasons assigned by the Claims Tribunal in respect of its awarding certain sum of amounts to the different claimants of MACP No. 79 of 1988 and allied petitions, no serious indulgence is called for; except reiteration of liability of the Opponent No. 4 to the extent of 20% of negligence; as rightly worked out by the Tribunal in its well reasoned common verdit, which is impugned in these Appeals.
In so far as Claims Tribunal awarding a sum of Rs. 3,60,000/= towards loss of dependency; a sum of Rs. 69,000/= towards pain, shock and sufferings and a sum of Rs. 1,44,000/= towards medical expenses are concerned, this Court does not deem it proper to arrive at a different figure than the one, which has been worked out by the Tribunal under each count, at this belated stage; more particularly when there appears to be no flaw in the reasonings assigned by the Claims Tribunal which has painstackingly dwelled into each head of claim and thereby arrived at a just and cogent compensation to the claimants.
Resultantly, First Appeal No. 1440 of 1990 preferred by Ajitbhai Narsibhai Patel-original Opponent No. 5 fails. No interference is called for in the impugned common judgment and award.
The opponents-Insurance Companies shall forthwith deposit such amount with the Tribunal; if not deposited so far with interest. The impugned common judgment and award stands modified to the aforestated extent in light of the settled law on the aspect of statutory limited liability of the Insurance Companies rendered by the Apex Court in the case of Vimal Devi [Supra] .
Registry to place a copy of this order in connected Appeal.