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1970 Supreme(Ori) 185
IN THE HIGH COURT OF ORISSA
B.K. Patra, J.
ORISSA CO-OPERATIVE INS. SOCIETY LTD. - APPELLANT
Versus
BHAGABAN SAHU AND OTHERS - RESPONDENT
Misc. Appeal No. 184 of 1964
Decided On : 17-09-1970
G.B. Mohanty, for the Appellant; R.C. Patnaik and R.K. Patra, for the Respondent
The insurer is liable to pay compensation for the accident caused by the negligence of the truck driver as per Section 96 of the Motor Vehicles Act, 1939. The insurer can avoid liability only on the grounds specified in Sub-section (2) of Section 96, which do not include the defense of transfer of ownership of the vehicle.
Headnote:
MOTOR VEHICLES ACT - SECTION 110-B - INSURANCE - SECTION 96 - LIABILITY OF INSURER - DEFENCES AVAILABLE - COMPENSATION - CALCULATION - REPRESENTATIVE CHARACTER OF CLAIM - INSURANCE POLICY - LIMIT OF LIABILITY - TRANSFER OF OWNERSHIP - REGISTRATION - NOTICE TO INSURER - DUTY TO DEFEND - GROUNDS FOR AVOIDING LIABILITY.
Fact of the Case:
Arakhita Sahu was killed in a truck accident caused by the negligence of the driver. His son, Bhagaban Sahu, filed a claim for compensation under Section 110-A of the Motor Vehicles Act, 1939, against the truck owner, Hansraj Nurala, the driver, Sujan Singh, and the insurer, Orissa Cooperative Insurance Society, Ltd. The Tribunal held Hansraj liable for the accident and awarded compensation of Rs. 10,000 to Bhagaban Sahu, to be paid by Hansraj and the Insurance Company. Hansraj and the Insurance Company filed separate appeals.
Finding of the Court:
The Court held that the Insurance Company was liable to pay the compensation as the accident was caused due to the rash and negligent driving of the truck driver. The Court also held that Bhagaban Sahu, as the Karta of the joint family, was entitled to claim the entire compensation on behalf of all the heirs of the deceased. The Court further held that the amount of compensation awarded by the Tribunal was within the limits of liability undertaken by the insurer under the Insurance policy.
Issues: 1. Whether the Insurance Company is liable to pay compensation for the accident caused by the negligence of the truck driver? 2. Whether Bhagaban Sahu, as the Karta of the joint family, is entitled to claim the entire compensation on behalf of all the heirs of the deceased? 3. Whether the amount of compensation awarded by the Tribunal is within the limits of liability undertaken by the insurer under the Insurance policy?
Ratio Decidendi: 1. The Insurance Company is liable to pay compensation for the accident caused by the negligence of the truck driver as per Section 96 of the Motor Vehicles Act, 1939. The insurer can avoid liability only on the grounds specified in Sub-section (2) of Section 96, which do not include the defense of transfer of ownership of the vehicle. 2. Bhagaban Sahu, as the Karta of the joint family, is entitled to claim the entire compensation on behalf of all the heirs of the deceased as the claim under Section 110-A of the Act has a representative character. 3. The amount of compensation awarded by the Tribunal is within the limits of liability undertaken by the insurer under the Insurance policy.
Final Decision: The Court dismissed the appeal filed by the Insurance Company and allowed the appeal filed by Hansraj. The order passed by the Tribunal was modified to the extent that the amount of Rs. 10,000/- awarded as compensation to the Petitioner Bhagaban Sahu shall be payable by opposite party No. 3, the Insurance Company only.
JUDGMENT :
B.K. Patra, J. - On 28.8 1961, while one Arakhita Sahu with his two grandsons was going from Bhubaneswar Railway Station towards Bhubaneswar old town on a rickshaw, the truck ORP. 851 which stands registered in the name of one Hansaraj Nurala (Respondent No. 3 ) and was being driven by one Sujan Singh and which was coming from New Capital and proceeding towards Cuttack dashed against the rickshaw at the turning near Kalpana Talkies as a result of which the two children were thrown out from the rickshaw and received some injuries and Arakhit Sahu fell down and was run over by the truck. The right front wheel of the truck ran over the head of Arakhita Sahu completely crushing the skull resulting in his instantaneous death. The truck was insured with the Orissa Cooperative Insurance Society, Ltd, Cuttack (Appellant). Bhagaban Sahu, the son of the deceased representing joint family filed an application u/s 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) before the Motor Accidents Claims Tribunal, Puri claiming Rs. 40,000/- as compensation. Besides the Insurance Company and Hansraj Nurala, he also added one Mahendra Singh as an opposite party as the latter was alleged to have purchased the truck from Hansraj.
2. All the three opposite parties contested his claims. Mahendra Singh denied having purchased the truck and contended that he is not a necessary party to the proceedings. He also alleged that the accident took place not due to the rashness or negligence of the driver of the truck but it was due to the negligence of the riskshawpuller. Hansaraj contended that he had sold the truck to Mahendra Singh on 1.12.1960, and that therefore he was not liable to pay any compensation. The Insurance Company admitted that Hansaraj had got the truck insured with the Company on 15.8.1961 for a period of ore year but contended that as the insurance was obtained by suppression of material facts, the insurance was not valid and the Company was not liable to pay any compensation. It was also alleged that the accident was caused due to rash and negligent driving of the truck by the driver, that the compensation claimed was excessive and that the petition was not maintainable as all the legal representatives of the deceased had not joined in the petition.
3. The deceased admittedly left behind him his widow, two sons including the Petitioner and a daughter. The Tribunal held that the Petitioner as Karta of the family could not file the application on behalf of and for the benefit of the entire joint family and that in the event of the Petitioner substantiating the claim, he would be entitled only to recover his share of the compensation On the question of ownership of the truck, the Tribunal held that it had not been proved that Hansaraj had sold the truck to Mahendra Singh and that as the registration certificate still stood in the name of Hansarj, the latter alone must in the eye of law be deemed to be the owner thereof. That being so, there was no breach of any of the conditions of the insurance policy so as to invalidate it and consequently the Insurance Company was also liable to pay damages. He further held that the accident was caused as a result of the negligence of the driver of the truck. The Petitioner was working as a Malaria Inspector getting a salary of Rs. 200/- per month by the time his father died. The Tribunal accepted his case that he had to leave the job to enable him to look after the landed property which his father had left On the assumption that the deceased who was 53 years old would have lived up to his sixtieth year the Tribunal held that during these seven years, the Petitioner would have earned Rs. 16,800/- towards his salary and the loss of this amount was directly attributable to the death of his father. But as the Petitioner claimed Rs. 40,000/- towards damages and his share therein is only Rs. 10,000/- the Tribunal restricted the amount of compensation awarded to the Petitioner to
