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The Motor Vehicles Act, 1988
The Insurance Act, 1938
Sheikhupura Transport Co. Ltd vs Northern India Transport ... on 16 March, 1971
Jabar Singh vs Genda Lal on 20 December, 1963
Section 96(1) in The Motor Vehicles Act, 1988

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Delhi High Court
Daljit Sawhney vs Jagtar Singh Etc. on 22 May, 1985
Equivalent citations: II (1985) ACC 257, 1988 63 CompCas 452 Delhi, 1985 RLR 470
Author: S Wad
Bench: S Wad



JUDGMENT  

  S.B. Wad, J.   

(1) This is an appeal filed by the LR's of deceased Sardar Amarjit Singh Sawhney for enhancement of compensation awarded by the Motor Accident Claims Tribunal, Delhi. The Tribunal had awarded a sum of Rs. 14,834.00 while the claimants had claimed the compensation of Rs. 2,00,000.00. The deceased Amarjit Daljit Sawhney vs. Jagtar Singh, etc. Singh was 28 years old at the time of the accident. He had completed the I.T.I. Certificate Course and was working as a Fitter. He had received a certificate of best craftsman in 1965. His salary at the time of the accident was Rs. 350.00, He is survived by his widow and one child.

(2) Respondent 1, was the Driver of the vehicle belonging to Respondent 2. Respondent 3 is the Insurance Co. On 18.1.1968 at about 7 P.M. the deceased was attending to his work at the back side of Gokhley market near the workshop of Aya Singh within the limits of Police Station, Subzimandi, Delhi. Respondent 1, Jagtar Singh, who was driving truck No. DLG-5945 reversed the truck in a great speed. There was nobody behind the truck to warn the Driver or to guide him. The truck knocked down the deceased. Amarjit Singh received grievous injuries and was rushed to Irwin Hospital. Dr. Bishnu Kumar (PW-8), Head of the Deptt. of Forensic Medicine, Maulana Azad Medical College, conducted ? from the external injuries the deceased had suffered extensive rupture of liver 16xl5x8cms area on the right upper surface and the blood was present in the abdominal cavity. The Doctor further opined that the death was caused due to haemorrhage and shock consequent to the rupture of liver caused by blunt force injury in that region. Amarjit Singh died in the hospital next day. Cross Objection is filed by the D.T.C. in this court. Before the Tribunal a common w/s was filed by Respondent 2, the owner and Respondent 3, the Insurance Co. In fact the defense was conducted by the Insurance Co. on its behalf and on behalf of the owner.

(3) I was taken through the evidence at the time of hearing. 1 am satisfied with the assessment of evidence by the Tribunal. The evidence of the eye witnesses and the Doctor confirmed the version of the claimants. I have no hesitation in accepting the findings of the Tribunal. After considering the w/s and evidence of the respondents the Tribunal came to the conclusion that the respondents had totally failed to establish their version of the accident. I agree with the findings of the Tribunal. I hold that Amarjit Singh died because of the rash and negligent driving of Respondent I during the course of employment of Respondent 2.

(4) Amarjit Singh was drawing Rs. 350.00 p.m. at the time of the accident. He was a qualified Fitter. He was only 28 years old at the time of his death. He was working as a Supervisor (Technical). PW-5. Gurbachan Singh and PW-6. Bhupender Singh had stated that his monthly income was Rs. 350.00 and Rs. 400-450 respectively. As no documentary evidence was produced the Tribunal concluded that his monthly earning was Rs. 275.00. The Tribunal held that the deceased must be spending Rs. 125.00 on his own maintenance and contributing Rs. 150.00 p.m. to the family. The Tribunal took life expectancy of fifteen years. After making the deductions for the Insurance amount of Rs. 5,000.00, Rs. 3,000.00 lying in the Savings Bank Account and 15 per cent deductions for lump sum payment the Tribunal awarded a sum of Rs. 14.834.00 as compensation. The approach of the Tribunal is wholly unsatisfactory and untenable in law. To take the life span of 15 years for a young man of 28 years doing Fitter's job was most unreasonable. Even by the normal expectancy of life Amarjit Singh would have certainly lived for another 30 to 35 years. He was a qualified Fitter and there is no reason to believe that he was not earning about Rs. 350.00 p.m. as a Supervisor (Technical). Even the minimum wages fixed for unskilled labour are about Rs. 350.00 p.m. Technical hands, such as qualified Fitters, are in great demand and he would have certainly earned up to Rs. 1500.00 p.m., if he had worked till the natural termination of his life. Deductions of the insurance amount of Rs. 5000.00 which he had himself made and a small saving of Rs. 3,000.00 in the bank should not have been deducted by the Tribunal, so also deductions of pump sum payment where the basic figures arrived at by the Tribunal, was as low as Rs. 17,000.00. Amarjit Singh is survived by his widow and a minor daughter. From the strata of the society where Amarjit Singh could only obtain education up to matriculation and then to take Fitter's Certificate it cannot be presumed, in the absence of any evidence, that the widow would have earned some income. Considerin? the above facts the just compensation would be Rs. 75,000.00. It would have been certainly more if Amarjit Singh was working in some Govt. Deptt. or public sector where the rise of income can be normally predicted with certainty. The claimants are also entitled to 1% simple interest on the said amount of Rs. 75,000.00 from March, 1970 till the date of this decision.

(5) Neither the claim proceedings, nor this appeal is contested separately by the owner. It was the Insurance Co., who was Respondent 3, which contested the claim before the Tribunal as well as before me. In fact, a common w/s was filed for the owner as well as the Insurance Co. The liability of the Insurance Co. and the owner for payment of compensation is to be determined in terms of Ss. 95 and 96 of the Motor Vehicles Act and the contract of insurance between the owner of a Vehicle and the Insurance Co. If the insurance policy shows that the Insurance Co. had accepted the liability to the minimum amount, as envisaged by S. 95(l)(b), the apportionment of liability of compensation has to be determined in one manner. In what is called 'Act-only policy' the liability of the Insurance Co. is not the total liability as determined by the Tribunal. The liability in other words is not unlimited but is only to the extent of the statutory minimum. At the given time of the policy that statutory minimum was fixed at Rs. 20,000.00. The claimants had claimed the compensation of Rs. 2,00,000.00. Therefore, if the policy had created a limited liability of the Insurance Co. to only Rs. 20,000.00 the owner would have contested the claim substantively because over and above Rs. 20,000.00 the balance of the compensation would have been payable by the owner. But the owner did not contest the claim separately. The Insurance Co. filed the w/s on behalf of the owner also. It can be safety assumed on this fact that the policy in question was for unlimited liability undertaken by the Insurance Co. and it was not limited to the statutory minimum of Rs.20,000.00. This is further confirmed from the fact that neither the owner nor the Insurance Co. produced the insurance policy before the Tribunal. The counsel for the insurance Co. had requested me to give an opportunity to produce the Insurance policy in this court. I had permitted the counsel to do so but no policy was produced. It has been held by this court in number of decisions that where the Insurance Co. fails to produce the Insurance Policy the court should presume that the Insurance Co. had undertaken an unlimited liability. In Mahila Phoolwati vs. Girdharilal 1982, Acj 386 the D.B. judgment of M.P. High Court has taken the same view. This appeal could have been disposed on the basis of the facts stated above and the principle of law adverted to but Mr. Dhanda, counsel for the Insurance Co. has strongly urged that the provisions of S. 95(l)(b) and S. 96(1) of the Motor Vehicles Act have been erroneously interpreted in some decisions of this Court and the decisions of other High Courts. His submission in short is that the statutory limit of compensation, (which a third party can claim from the Insurance Co.) can in no case be exceeded. By a contract to the contrary that statutory maximum can be reduced but not increased. He has relied upon Barrala Ramaswamy vs. Bhamidipali AIR. 1958. A.P. 309 and the decisions of the Supreme Court reported in Sheikhupura Transport Co. vs. N.I.I. Insurance Co. Ltd., 1978, ACJ. 206 and Minu B. Mehta vs. Balkrishna, 1977. Acj 118.

(6) The law on the question of the liability of the Insurance Co. may be stated thus (a). The owner of a vehicle is primarily liable for his negligence and, therefore, the payment of compensation. The liability is a variety of tortuous liability. The liability of the Insurance Co. was originally only a contractual liability between the owner of the vehicle and the Insurance Co. Now, the said liability is regulated by the provisions of Motor Vehicles Act; (b) Principle of law being one of negligence in torts, proof of negligence is necessary before the award of compensation. Merely because the statute has regulated the said liability, the requirement of proof of negligence is not dispensed with; (c) S. 94 of the Motor Vehicles Act makes insurance compulsory for every vehicle to ply on public roads and public places; , As a corrollary of S. 94, Motor Vehicles Act lays down the maximum limit of statutory liability of the Insurance Co. to third parties and the same is incorporated in Section 96(1)(b) of the Act. The Legislature has stepped in to ensure that a certain minimum compensation is paid in every case irrespective of whether the owner of the vehicle has means to pay or not. But the said section does not lay down a principle of non-fault liability or strict liability ; (e) Through statutory notification. Daljit Sawhney vs. Jagtar Singh etc. the amount of liability is fixed on the basis of vehicles; number of person involved etc. Generally speaking the original liability fixed was at Rs. 20,000.00. It was then raised to Rs. 50,000.00 Now the amount so fixed is Rs. 1,50,000.00. This limit of liability u/s 95(1)(b) represents simultaneously a maximum amount in one sense and minimum amount in another sense. To illustrate, if the Tribunal comes to a conclusion that only Rs. 10,000.00 is a just compensation the Insurance Co. will be liable to pay only Rs. 10,000.00 and not Rs. 20,000.00 (the original limit fixed by the notification). If the compensation is Rs. 20,000.00 the liability of the Insurance Co. will be to the whole amount of Rs. 20,000.00. But if the compensation exceeds Rs. 20,000.00, the minimum of Rs. 20,000.00 will be payable by the Insurance Co. This is the way the statutory maximum and minimum is to be understood, (f) However, the statutory liability is subject to a contract to the contrary; by a contract with the owner the Insurance Co. can take more liability than the statutory minimum. In a comprehensive policy higher risk is covered by taking initial premium substantially higher than the premium for what is called "Act-only policy." So also additional liability can be taken by the Insurance Co. covering different types of risks charging separate premium for each type of risk. So also, the Insurance Co. can accept unlimited liability by the Insurance contract; (g) Therefore, while deciding the just amount of compensation the risk covered by the policies must be closely scrutinised. Mere reliance on S. 95 and S. 96 or the notifications issued under them would be untenable in law; (h) These proposition are supported by the decisions of this Court which are mostly of a single Judge but they are supported by the D.B. judgment of Allahabad reported in Desraj V. Ram Narain, 1980, ACJ. 202 and the ruling of D.B. of Punjab in Ajit Singh V. Sham Lal 1984 ACJ. 255.

(7) But Mr. Dhanda, appearing for the Insurance Co. submits that this interpretation of S. 95 and S. 96 is contrary to decisions of Supreme Court in Sheikhupura Transport Co. (Supra) and Minu B. Mehta (Supra) I do not agree. In the first decision the Supreme Court recognised that statutory liability is subject to contract to the contrary and in fact examined clauses of the Insurance contract to see whether liability higher than the statutory liability was created. There is an implied rejection of the contention that u/s 96, a third party, in no case can expect more than the amount fixed u/s 95(1)(b), say Rs. 20,000.00. Thus,if the Insurance Co. produces a policy and shows that it has not accepted more than the statutory liability, the amount of liability fixed u/s 95(1)(b) will govern the case. The said decision does not take the principle of law any further. In the second decision the main question was whether proof of negligence was mandatory or whether the statutory liability created by S. 95(1)(b), read with S. 96(1) was in the nature of strict liability dispensing with proof of negligence. The Supreme Court held that as the liability is a tortuous liability, proof of negligence was necessary. The court was not called upon to answer whether the liability was only restricted to the limit of statutory liability. The submission of the counsel for the Insurance Co. is, therefore, rejected.

(8) Counsel for the appellants has drawn my attention to the facts that the nationalised Ins. Companies do not produce the policies before the Tribunal but still insist on the limited statutory liability. He has also complained that the Ins. Companies do not follow the directions of the Tarrif Advisory Committee, set up u/s 64 of the Insurance Act, 1961. In some of my decisions I had adverted to these facts. It has been observed in number of cases that the instructions of the Tarrif Advisory Committee are not followed by the Ins. Companies. Although some of them are directly beneficial to prospective policy-holders, there is a veil of secrecy in regard to such instructions. The insurance business was nationalised with an object of stopping the abuse and exploitation in the said business and to ensure that public interest is attended to more satisfactority. (The Ins. Companies are now instrumentalities of a State and have, therefore, a legal obligation to act fairly and to avoid arbitrariness. The companies are bound by the directions of Tarrif Advisory Committee which is a statutory committee. It is, therefore, the statutory duty of the nationalised Ins. companies to publish and widely publicise the instructions of the Tarrif Advisory Committee which are meant for the benefit of the prospective policy-holders. It was found in one case that the statutory instructions in regard to the liability of Ins. companies for gratuitous passengers, although published in 1978, was not given sufficient publicity. In spite of the said instructions the Insurance Co. argued before The Court that the company was not liable. What is more surprising is that the counsel appearing for the Insurance Co. are not briefed fully on the up to date instructions of the Tarrif Committee and the counsel for claimants are required to procure them by their private resources. This is a most unsatisfactory, state of affairs. I, therefore, direct that a copy of this judgment be sent to the Secretary, Ministry of Finance, Govt. of India, New Delhi, for appropriate action in this matter.

(9) Respondent 3, Ins. Company is liable to pay Rs. 75,000.00 simple interest at the rate of 9% p.a. from March, 1970 u/s 110-cc till the date of this judgment. The appellants are also entitled to costs. The Insurance Co. shall draw up a cheque for the said amounts minus Rs. 14834.00 already paid in the name of Mrs. Daljit Sawhney and deposit the same - with the Registrar of this court within three months from today. Registrar shall then issue a notice to the appellants and handover the cherub Personally.