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1998 (1) JLJ 35
R.D. Shukla and Shambhoo Singh, JJ.
New India Assurance Co. Ltd. v. Smt. Surgyan Singhaniya and others
M.A. No. 163 of 1991; against the award passed by M.A.C.T, Dewas;
Decided on 12.9.1997.
(2) Civil P.C., 1908 -- O. 41 R. 27 -- insurance policy not got produced by Tribunal despite dispute about liability -- insurer makes the payment out of public money -- High Court will see the policy produced as additional evidence. [Para 18
(3) Motor Vehicles Act, 1939 -- S. 96 -- defences to be raised by insurer -- are open as per conditions of the policy -- it can reserve defences of owner and driver also. M.A. No. 221/88 relied on. [Para 21
(4) Witness -- driver of the offending truck -- cannot defend his action of being negligent without filing written statement when the fact has not even been mentioned in written statement filed by insurer. [Para 24
(5) Motor Vehicles Act, 1939 -- S. 110A -- truck coming from opposite direction at high speed -- occupying middle of the road -- loaded gunny bags hanging outside the body of truck -- bus driver trying to avert the accident but failed due to carelessness of truck driver -- truck driver is more negligent. [Paras 25 & 26
(6) Motor Vehicles Act, 1939--S. 110A -- head-on collision -- bus driver not lowering down speed -- his liability is 1/4th while liability of truck driver is 3/4th. [Para 26
(7) Motor Vehicles Act, 1939--S. 168--deceased 29 years of age -- earning Rs. 30,000/- p.a. -- dependency is 20,000 p.a. -- multiplier would be 14 -- total compensation on general head awardable is 2,80,000/-. AIR 1994 SC 1631 followed. [Paras 30 & 31
(8) Motor Vehicles Act, 1988 --S. 173 -- appeal challenging quantum of compensation by insurer -- claimant may agitate that dependency and income have not been properly assessed. [Para 34
(9) Motor Vehicles Act, 1939--S.95 (2) (b) (ii) -- comprehensive insurance -- limit of liability with regard to third party risk not enhanced -- no separate premium paid -- liability would be confined as provided under. 1995 ACJ 962 and M.A. No. 85/89, held no more good law. 1995 JLJ 331 (SC), 1994 ACJ 622 (SC) and (1988) 1 SCC 626 followed. 1996 ACJ 1273 and 1988 ACJ 270 relied
¼1½ eksVj ;ku vf/kfu;e] 1939&/kkjk 95 rFkk 96&chekdrkZ ds nkf;Ro dk fu/kkZj.k&nkfRo ds fookn ds fujkdj.k ds fy, ikfylh is‘k djokbZ tkuk pkfg,&ikfylh dh ewy çfr vFkok lR; çfrfyfi is‘k djus ds fy, chekdrkZ dks funs‘k fn;k tkuk pkfg,A 1988 ts ,y ts 639 ¼iw.kZ U;k;ihB½ voyafcrA ¿iSjk 17
¼2½ flfoy çfØ;k lafgrk] 1908&vk-41 fu-27&nkfRo ds ckjs esa fookn ds ckotwn vf/kdj.k }kjk chek ikfylh is‘k ugha djkbZ xbZ&chekdrkZ }kjk lank; yksd /ku esa ls fd;k tkrk gS&mPp U;k;ky; ikfylh dks vfrfjDr lk{; ds :i esa ns[ksxkA ¿iSjk 18
¼3½ eksVj ;ku vf/kfu;e] 1939&/kkjk 96&chek drkZ }kjk fd, tkus okys çfrokn&ikfylh dh ‘krks± ds vuqlkj fd, tk ldrs gSa&mlds }kjk Lokeh rFkk pkyd ds çfrokn Hkh vkjf{kr gSaA çdh.kZ vihy Ø- 221@88 voyafcrA ¿iSjk 21
¼4½ lk{kh&mYya?kudkjh Vªd dk pkyd&fyf[kr dFku Qkby fd, fcuk Lo;a ds mis{kkou gksus ds dk;Z dk çfrokn ugha dj ldrk tc og rF; chekdrkZ }kjk Qkby fd, x, fyf[kr dFku rd essa Hkh of.kZr ugha fd;k x;k gSA ¿iSjk 24
¼5½ eksVj ;ku vf/kfu;e] 1939&/kkjk 110d&lkeus dh vksj ls rhoz xfr ls vkrk gqvk Vªd&lM+d dk e/; Hkkx iwjk ?ksjk gqvk&Vªd ls ckgj yVds gq, cksjksa ls ynk gqvk&cl pkyd }kjk nq?kZVuk cpkus dk ç;kl Vªd pkyd dh vlko/kkuh ds dkj.k foQy&Vªd pkyd vf/kd mis{kkoku gSA ¿iSjk 25 ,oa 26
¼6½ eksVj ;ku vf/kfu;e] 1939&/kkjk 110d&vkeus&lkeus VDdj&cl pkyd }kjk xfr de ugha dh xbZ&mldk nkf;Ro 1@4 gS vkSj Vªd pkyd dk 3@4A ¿iSjk 26
¼7½ eksVj ;ku vf/kfu;e] 1939&/kkjk 168&e`rd dh vk;q 29 o"kZ&miktZu #- 30]000@& çfr o"kZ&vkfJrrk #- 20]000@& çfr o"kZ gS&xq.kkad 14 viuk;k tk,xk&lk/kkj.k en ij vf/kfu.kZ; dqy çfrdj #- 2]80]000@& gSA , vkb vkj 1994 ,l lh 1631 vuqlfjrA ¿iSjk 30 ,oa 31
¼8½ eksVj ;ku vf/kfu;e] 1988&/kkjk 173&chekdrkZ }kjk çfrdj ds ifj.kke dks vk{ksfir djus okyh vihy&nkosnkj }kjk vk{ksi fd;k tk ldrk gS fd vkfJrrk rFkk vk; leqfpr :i ls fu/kkZfjr ugha dh xbZ gSaA ¿iSjk 34
¼9½ eksVj ;ku vf/kfu;e] 1939&/kkjk 95¼2½ ¼[k½ (ii) &Okid chek&ijOfDr tksf[ke ls laca) nkf;Ro dh lhek c<+kbZ ugha xbZ&i`Fkd ls dksbZ çhfe;e lanÙk ugha&nkfRo ;Fkkmicaf/kr lhfer jgsxkA 1995 , lh ts 962 rFkk çdh.kZ vihy Ø-85@89 vc ekU; fof/k ugha gSA 1995 ts ,y ts 331 ¼mPpre U;k-½] 1994 , lh ts 622 ¼,l lh½ rFkk ¼1988½ 1 ,l lh lh 626 vuqlfjrA 1996 , lh ts 1273 rFkk 1988 , lh ts 270 voyafcrA ¿iSjk 37 ls 44
Shukla, J.--1. Appeal is directed against the judgment and ward dated 23.10.90 of the M.A.C.T., Dewas, whereby clamants (respondents No.1 to 4 here) have been awarded compenation of Rs. 3,72,000/- as compensation for the death of Omprakash Singhaniya who died in a motor accident on 6.3.84 with a further direction that out of the amount of Award Rs. 50,000/- shall be paid by Oriental Fire and General Insurance Co. (respondent No.7 here) and the rest of the amount of Rs. 3,22,000/- shall be paid by appellant here who was non-applicant No.5 before the Tribunal and is insurer of motor-bus No. MNP 8103.
2. This appeal has been filed by the Insurance Co. (insurer of motor-bus).
3. Brief history of the case is that on the date of accident i.e. 6.3.84 Omprakash was travelling in motor-bus No. MNP 8103 scheduled for Indore to Bhopal. The motor-bus was driven by Sardaqr Gurucharansingh (who also died in the accident) and was owned by Nandkumar (respondent No.8 here). The• motor bus reached a place Khatamba Dargaha-nearly 8 Kms. between Dewas and Sonkatch. Motor truck No. MPC 4297 driven by Rajekhan (respondent No. 6 here), owned by Betanlal Sahu (respondent No. 6 here) and insured by Oriental Fire and (General Insurance Co. (respondent No.7 here) came with a high speed. There was a collision. The driver tried to save but it was thrown nearly 100 feet away and jumped in a ditch. Omprakash a passenger of motor-bus died in the accident. Driver of motor-bus Sardar Guru Charansingh also died in the accident.
4. Legal heirs of Omprakash (respondents 1 to 4 here) filed a claim petition after making driver, owner and insurers of both the vehicles as respondents, with assertions that accident occurred due to rash and negligent driving by Rajekhan, driver of the truck in question.
Omprakash had obtained a Post Graduate degree. He was enjoying sound health. He was a player of Tennis was partner of the firm and was a supplier of various articles to Military and as such was earning Rs. 50,000/- per month. Claimants were in great pain and agony because of the death of Om prakash. They were deprived of bread-earner of the family. As such, they are entitled to a compensation of Rs. 8,00,000/-.
5. The accident was reported to Police Station 'Bank Note Press' Dewas, who registered an offence against Rajekhan, driver of motor-truck.
6. Party No. 1 i.e. driver, Owner and insurer of the motor-truck contested the claim and pleaded that accident occurred due to rash and negligent driving of the vehicle by the driver of the motor-bus who was the servant of Nandkumar (respondent No.8 here). Party No.2 i.e. owner of motor-bus and the insurer of bus, on the other hand, claimed that accident occurred due to rash and negligent driving of the vehicle by the driver of party No.1 (Rajekhan, driver of motor-truck No MPC 4297).
7. Learned Tribunal found that the accident occurred due to rash and negligent driving of the driver of motor-truck. Ompraksh died in consequence thereof. As such, it was also held that all the non-aplicants are jointly and severally liable for making payment of the compensation.
8. Learned Tribunal further found that income of deceased Omprakash was Rs. 18000/- per year and assessed the dependency as Rs. 1200/- per month. He was aged about 29 years. Average age was assessed. As such, multiplier of 31 was applied and the compensation was assessed as Rs. 3,72,000/-.
Out of compensation so assessed Oriental Fire and General Insurance Co., insurer of the motor-truck was held liable for payment of Rs. 50,000/- on the basis of limited liability U/s. 95 of the Motor Vehicles Act (hereinafter referred to as 'the Act'). New India Insurance Co. (appellant here) was held responsible for making the payment of rest of the amount.
Hence this appeal by the insurer of motor-bus No. MNP 8103, i.e. New India Insurance Co. Ltd.
9. Contention of Shri Dhupar, learned counsel for appellant is :
(i) That accident occurred due to rash and negligent driving of the vehicle
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