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High Court Of Madhya Pradesh
K. L. Pandey and N. M. Golvalker, JJ.
THE BRITISH INDIA GENERAL INSURANCE CO.LTD. - Appellant
Versus
SETH RAMNATH - Respondents
First Appeal 146 Of 1956
Decided On : 01/14/1960
MOTOR VEHICLES ACT - SECTION 95(5), 96(2) - INSURANCE POLICY - LIABILITY OF INSURER - DRIVER'S PERMISSION - DISCLOSURE OF MATERIAL FACTS - DAMAGES - EXCESSIVE AWARD.
Fact of the Case:
Plaintiff sustained injuries and his motor bicycle was damaged in a collision with a station wagon driven by Defendant 2, an employee of Defendant 1, who had insured the vehicle with Defendant 3 against third party risks. The lower court found Defendant 2 liable for the accident and passed a decree against Defendants 2 and 3 for damages of Rs. 15,250/-. Defendant 3 appealed, and the plaintiff filed a cross-objection claiming the full amount of damages disallowed by the lower court.
Finding of the Court:
The court held that Defendant 2 was not driving the station wagon rashly or negligently, and that the plaintiff himself was responsible for the accident. The court also held that Defendant 3 was not liable for the damages because the insurance policy was void due to the failure of Defendant 1 to disclose a material fact, namely, that he had transferred possession of the vehicle to Defendant 2.
Issues: 1. Whether Defendant 2 was driving the station wagon rashly or negligently. 2. Whether Defendant 3 was liable for the damages. 3. Whether the damages awarded by the lower court were excessive.
Ratio Decidendi: 1. The court held that Defendant 2 was not driving the station wagon rashly or negligently, based on the evidence of the plaintiff and his witnesses, and the circumstances of the case. 2. The court held that Defendant 3 was not liable for the damages because the insurance policy was void due to the failure of Defendant 1 to disclose a material fact, namely, that he had transferred possession of the vehicle to Defendant 2. The court found that this was a material fact that Defendant 1 should have disclosed to the insurance company, and that its non-disclosure entitled Defendant 3 to avoid the contract of insurance and disclaim liability thereunder. 3. The court held that the damages awarded by the lower court were excessive, and reduced the amount of damages to Rs. 15,250/-.
Final Decision: The appeal of Defendant 3 was allowed, and the cross-objection of the plaintiff was dismissed. The decree of the lower court, in so far as it affected Defendant 3, was set aside.
( 1 ) THIS appeal arises out of an action for damages amounting to Rs. 30,000/-for personal injuries sustained by the plaintiff as well as for the injury caused to this motor bicycle No. CPB 1114 in consequence of rash and negligent driving by the defendant 2 of a station wagon No. CPJ 1585 belonging to the defendant l, who equivalent Citation: had insured it with the defendant 3 against third party risks. The lower Court accepted the claim in part and passed a decree for Rs. 15,250/- against the defendants 2 and a. The defendant 3 has filed this appeal challenging the decree passed against it. The plaintiff has also filed Civil Appeal No, 192 of 1956 for being relieved of the liability to pay costs Rs. 811/11/- to the defendant 1 and a cross-objection claiming the amount disallowed by the lower Court namely Rs. 14,750/ -. He has relied upon Order 41, Rule 33, Civil Procedure Code, for securing a decree for the full claim against the defendant 1. This Judgment will govern the two appeals and the cross-objection. 2 The plaintiff's case, briefly stated, was this. At about mid-day on 11th september, 1951, while the plaintiff was travelling on his motor bicycle towards the east along the correct side of the main east-west road from the Civil Court at seoni to the Seoni town, the defendant 2, who was driving the Station wagon belonging to the defendant 1 from theopposite direction, took at the crossing near the Tahsil office a sharp and sudden north-ward turn towards that office. In driving the station wagon in the manner he did, the defendant 2 acted rashly and negligently in that, while the station wagon was moving at a great speed, he took a sharp and sudden turn from the wrong side of the road without giving any warning. The consequence was that the station wagon dashed against the plaintiff's motor bicycle, which was thereby thrown away. The plaintiff also was thrown off and he sustained a compound fracture in his right leg. Despite repeated operations, the fractured bone did not unite even till the date of the suit and it was feared that the plaintiff might be permanently deprived of the usual use of his right leg. Accordingly he claimed Rs. 30,000/-out of the damages detailed as follows: (i) Rs. 12,093on account of 9-0 expenses of medical treatment detailed in schedule A. (ii) Rs. 10,000on account of loss of 0-0 business. (iii) Rs. 15,000on account of 0-0 permanent injury to the right leg, mental shock and bodily pain. (iv) Rs. 250on account of damage 0-0 caused to the motor bicycle. 3 According to the plaintiff, the defendant 2 was also liable for the claim because he was driving the station wagon with the permission and authority of the defendant 1 and the injuries were caused to the plaintiff while the defendant 2 was acting within the scope of his authority. The defendant 3 was impleaded in order to remove all doubts about the extent of, and the circumstances relating to, its liability for the claim. 4 The defendants 1 and 2 denied that, at the material time, the defendant 2 was driving the station wagon rashly or negligently in the manner alleged or that. It dashed against the plaintiff's: motor bicycle or that the plaintiff sustained injuries in consequence. According to them, the plaintiff himself drove his motor bicycle rashly and negligently and dashed against the station wagon. The defendant 2 particularly pleaded that, while he was taking the station wagon along the road towards the north, which "branched off from the main east-west road, the plaintiff, who had swerved his motor bicycle to his extreme left of the main east-west road and speeded it in order to save a passer-by, dashed against the station wagon in an endeavour to pass it from the front side and, going further, dashed against a chabutara. Since the plaintiff himself was responsible for the collision which took place, he was disentitled to recover any damages. In any event, his claim must fail for the reason that he himself had contributed
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