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1994 JLJ 320
R.C. Lahoti, J.
(On difference of opinion between Dr. T.N. Singh and K.K. Verma,
JJ. -1991 JLJ 280)
Bhagwandas and another v. National Insurance Co. Ltd. and another
MA. No. 97 of 1985; Decided on 15.10.1990
(2) Law -- substantive law defines remedy and right -- law of procedure defines the modes and conditions of application of one to the other. Salmond on Jurisprudence, XIth Edn. pages 503 and 504 relied on. [Para 17
(3) Motor Vehicles Act, 1939 -- S. 92-A -- enactment of‘ ‘no fault liability" under -- cannot be termed a "pre-existing liability" -- provision cannot be read as providing procedure merely for enforcement of such liability. [Para 18
(4) Interpretation of Statutes -- prima facie every statute is prospective unless made retrospective by express words or necessary implication. Principles of Statutory Interpretation by G.P. Singh, J., 4th Edn., page 271 relied on. AIR 1957 SC 540 followed. AIR 1989 SC 1247 distinguished. [Paras 19 & 20
(5) Motor Vehicles Act, 1939 -- S.92-A -- provision though not retrospective yet should be accepted as guide line -- it is country‘s will vocalised through Parliament.
The country‘s will vocalised through Parliament should be accepted as a guide line by the Courts assessing the loss of life at that minimum without regard to the age, expectation, future prospects and imponderable in life. The figure of compensation under no-fault liability clause does away with the necessity of proving general and special damages distinctly in so far as that minimum is concerned.
Without regard to the fact that the provisions of section 92-A may not be retrospective in operation, it would serve as a legislative guideline for determining the compensation in cases of fatal accidents, which would not be less than Rs. 15,000/-. 1990 (1) SCC 280 followed. 1987 JLJ 721, 1989 JLJ 396, AIR 1989 MP 105, AIR 1987 Bom. 82, AIR 1989 Ker. 94 and AIR 1990 MP 282 relied on. [Paras 26 & 27
(6) Motor Vehicles Act, 1939 -- Ss. 95 and 96 -- passenger in goods vehicle dying in accident -- breach of any condition of policy by insured not proved by insurer -- breach by driver does not exonerate insurer of its liability under the policy.
Merely because the insured/owner chose not to appear in the witness-box in face of the plea in defence taken by the insurer, the claimant cannot be made to suffer. It was for the insurer to have adduced evidence or brought out circumstances on record to infer that the responsibility for breach could be fastened on the insured so as to exonerate from its liability under the insurance policy. The case has to be examined not so much from the point of view of the insurer as from that of the claimant.
The Tribunal having found that it was licensed-driver-employee who was in charge of the vehicle and it was the driver and not the owner who had committed a breach of law and thereby the terms of the policy, the presumption would be, in absence of evidence, that the owner had mandated the driver to abide by law. 1987 ACJ 411 (SC) followed. 1989 JLJ 490 (FB), 1985 ACJ 762 (FB) and 1988 (II) ACJ 435 distinguished. [Paras 28 to 35
(7) Civil P.C., 1908 -- O. 41 R. 22 -- cross objection in appeal -- may be entertained against cod`respondent. AIR 1963 SC 1516 followed. 1983 ACJ 468 and 1983 ACJ 709 distinguished, [Para 42
¼1½ EkksVj ;ku vf/kfu;e] 1939 & /kkjk 92d& mica/k & Hkwry{kh çroZu ugha j[krkA 1990 ¼2½ e-ç- ohDyh uksV~l 202 ¼mPpre U;k-½ 1990 ¼1½ ,l lh lh 280] , vkb vkj 1982 ,l lh 836 rFkk 1980 , lh ts 435 voyafcrA ¿iSjk 13 ls 16
¼2½ fof/k & ewy fof/k mipkj rFkk vf/kdkj ifjHkkf"kr djrh gS & çfØ;k fof/k ,d dk nwljs ij ykxw gksus ds <ax rFkk ‘krs± ifjHkkf"kr djrh gSA lkeaM vku T;wfjfLçMsUl*] X;kjgok¡ laLdj.k] Ik`"B 503 rFkk 504 voyafcrA ¿iSjk 17
¼3½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 92d & mica/k ds v/khu ^fcuk =qfV nkf;Ro* dh vf/kfu;fefr & mls iwoZ esa fo|eku nkf;Ro* ugha dgk tk ldrk & mica/k ,sls nkf;Ro ds çorZu ek= ds fy, çfØ;k micaf/kr djrk gks bl çdkj ugha Ik<+k tk ldrkA ¿iSjk 18
¼4½ fof/k dk fuoZpu & çR;sd dkuwu çFke n`"V;k Hkfo";y{eh gksrk gS tc rd fd og vfHkO;Dr ‘‘kCnksa vFkok vko‘;d foo{kk }kjk Hkwry{kh cuk;k ugha x;k gksA U;k- ts-ih- flag dh ^fçafliYl vkQ LVsV;wVjh baVjfçVs‘ku*] pkSFkk laLdj.k] Ik`"B 271 voyafcrA , vkb vkj 1957 ,l lh 540 vuqlfjrA , vkb vkj 1989 ,l lh 1247 çHksfnrA ¿iSjk 19 ,oa 20
¼5½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 92d & mica/k ;|fi Hkwry{kh ugha rFkkfi ekxZn‘kZd fl)kar ds :Ik esa çfrx`ghr fd;k tkuk pkfg, & og jk"Vª dh bPNk gS ftls laln ds ek/;e ls Loj fn;k x;k gSA
laln ds ek/; ls Loj çnÙk jk"Vª dh bPNk dks U;k;ky;ksa }kjk] vk;q] çR;k‘kk] Hkfo"; dh vk‘kk,¡ rFkk thou dh vfrlw{erk dks fopkj esa fy, fcuk thou gkfu dks ml U;wure ij fu/kkZfjr djr gq,] ekxZn‘kZd fl)kar ds :Ik esa çfrx`ghr fd;k tkuk pkfg,A tgk¡ rd ml U;wure dk laca/k gS] fcuk =qfV nkf;Ro [kaM ds v/khu çfrdj dh jkf‘k }kjk lk/kkj.k rFkk fo‘ks"k uqdlkuh lqfHkUur% lkfcr djus dh vko‘;drk nwj dj nh xbZ gSA
bl rF; ij fopkj u djrs gq, fd /kkjk 92d ds mica/k çorZu esa Hkwry{kh ugha gksaxs] og ?kkrd nq?kZVukvksa ds ekeyksa esa çfrdj fuf‘pr djus ds fy, tks #- 15]000@& ls de ugha gksxk] fo/kk;h ekxZn‘kZd fl)kar dk dke nsaxsA 1990 ¼1½ ,l lh lh 280 vuqlfjrA 1987 ts ,y ts 721] 1989 ts ,y ts 396] , vkb vkj 1989 e-ç- 105] , vkb vkj 1987 cacbZ 82] , vkb vkj 1989 dsjy 94 rFkk , vkb vkj 1990 e-ç- 282 voyafcrA ¿iSjk 26 ,oa 27
¼6½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 95 rFkk 96 & eky ;ku esa ;k=h dh nq?kZVuk esa e`R;q & ikfylh dh fdlh Hkh ‘krZ dk ikfylh /kkjd }kjk Hkax fd;k tkuk chekdrkZ }kjk lkfcr ugha & Mªkboj }kjk Hkax chekdrkZ dks ikfylh ds v/khu mlds nkf;Ro ls foeqDr ugha djrkA
ek= blfy, fd chekdrkZ }kjk çfrokn dk vfHkokd] fd, tkus ds ckotwn ikfylh /kkjd@Lokeh lk{kh dB?kjs esa çLrqr ugha gqvk] nkosnkj dks migr ugha fd;k tk ldrkA ;g chekdrkZ ds fy, Fkk fd og lk{; çLrqr djrk vFkok ifjfLFkfr;k¡ vfHkys[k ij ykrk ftuls vuqfer fd;k tk ldrk fd chek ikfylh ds v/khu nkf;Ro ls mls foeqDr djus ds fy, ikfylh /kkjd dks Hkax ds mÙkjnkf;Ro esa tdM+k tk ldrk FkkA ekeys dks chekdrkZ ds n`f"Vdks.k ls mruk ugha ij[kk tkuk gS ftruk fd nkosnkj dsA
vf/kdj.k }kjk ik, tkus ij fd og vuqKIr&Mªkboj deZpkjh Fkk tks ;ku dk Hkkjlk/kd Fkk rFkk og Lokeh Fkk Mªkboj ugha ftlus fof/k dk rFkk }kjk ikfylh ds fuca/kuksa dk Hkax fd;k] mi/kkj.kk] lk{; ds vHkko esa] gksaxh fd Lokeh esa Mªkboj dks fof/k dk ikyu djus dh vkKk nh FkhA 1987 ,l lh ts 411 ¼mPpre U;k-½ vuqlfjrA 1989 ts ,y ts 490 ¼iw.kZ U;k;ihB½] 1985 , lh ts 762 ¼iw.kZ U;k;ihB½ rFkk 1988 ¼2½ , lh ts 435 çHksfnrA ¿iSjk 28 ls 35
¼7½ flfoy çfØ;k lafgrk] 1908 & vk-41 fu-22 & vihy esa çR;k{ksi & lg&çR;FkhZ ds fo#) xzg.k fd;k tk ldrk gSA , vkb vkj 1963 ,l lh 1516 vuqlfjrA 1983 , lh ts 468 rFkk 1983 , lh ts 709 çHksfnrA ¿iSjk 42
R.C. Lahoti, J. -- 1. Two of my learned brothers, Dr. T.N. Singh and K.K. Verma, JJ have, while disposing of M.A. No. 97/85, differed in their opinions an the question of enhancement of compensation payable to claimant/respondent for his son Pappu's death and Hon'ble the Chief Justice has been pleased to constitute this Bench for hearing the appeal.
2. A single accident gave rise to three claim petitions. All were disposed of by a common order by the Claims Tribunal. The owner and the driver preferred three appeals registered as M.A. No. 90/85, 97/85 and 98/85. In all the three cases, the respective claimants preferred cross-objections seeking enhancement. The three appeals, with respective cross-objections were heard by the Division Bench and diposed of by a common order, the two learned Judges recording separate opinions. They agreed in conclusion in so far as M.A. No. 90/85 and M.A. No. 98/85 were concerned. This M.A. No. 97/85 was survived for consideration of the questions as to whether Ramchandra (claimant's) cross-objection has to be allowed and compensation awarded to him for his son's death enhanced; which of the defendants would be liable to compensate the claimants and to what extent. Facts relevant for the disposal of this appeal alone shall be noticed hereinafter.
3. The appellant No.2 is owner of the truck No. CPC 1996 which met with an accident on 28.2.1982. Pappu, aged 2 years, the minor son of the claimant/respondent No.2 was one of the victims who died. The victims were travelling in the truck as passengers for hire. The truck had overturned. 4. Ramchandra, the respondent No.2, filed claim petition No. 31/82 claiming Rs. 1,02,000/- as compensation for the death of his son. The owner and driver filed written statements denying the facts averred by the claimant and pleading that the deceased persons were not passengers in the truck but they were sitting by the side of the road where the accident occurred on account of the brakes of the truck having failed. The insurer, respondent No.1, took a plea, inter alia, that the vehicle was a goods vehicle which could not have carried the passengers for hire or reward and a material term of the insurance policy having been violated the insurance company stood exonerated.
5. The Tribunal awarded an amount of Rs. 4,000/- as compensation for the death of minor Pappu. The driver and the owner were made liable jointly and severally but the Insurance Co. was held excluded. The owner and driver have preferred the appeal while the claimant Ramchandra has filed cross-objections claiming an award of Rs. 50,000/- against the owner, the driver and the insurer.
6. With effect from 1.10.1982, came into force section 92-A of the Motor Vehicles Act, 1939. No such claim was laid before or considered by the Tribunal. During the hearing of the appeal before the Division Bench, the claimant/respondent was permitted to amend the claim petition, and cross-objection too, claiming no- fault compensation.
7. At this stage, it is not disputed that the driver was a duly licensed driver, Pappu was travelling in the truck as passenger, and the truck driver had taken money from the passengers for carrying them as such, of whom three including Pappu died in the accident. The Tribunal has arrived at a finding that the accident was the result of rash or negligent driving of the driver. The finding has been confirmed by the Division Bench. One of the terms and conditions of the insurance policy in question is that it does not cover use of the insured vehicle for the conveyance of passengers for hire or reward.
8. The order of the Division Bench has since been published in 1990 ACJ at page 495 = 1991 JLJ 280. It will still be useful to notice and highlight the salient features of how, on what points, and upon what reasoning, the two learned Judges have differend on the quantum of compensation and the liability of the insurance company to satisfy the award.
9. KK Varma, J. on scrutinising the reasons given
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