1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.449 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. Dr.Deepak Gamanlal Dalal & Ors. ... Respondents WITH FIRST APPEAL NO.450 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. Mrs.Bhanumati S.Dalal & Ors. ... Respondents WITH FIRST APPEAL NO.451 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. Mrs.Punita Deepak Dalal & Ors. ... Respondents WITH FIRST APPEAL NO.452 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. Shri Gamanlal Ramanlal Dalal ... Respondents & Ors. WITH FIRST APPEAL NO.453 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. 2 Mrs.Punita Deepak Dalal & Ors. ... Respondents WITH FIRST APPEAL NO.454 OF 1992 The Oriental Insurance Co. Ltd. ... Appellant Mumbai Vs. Ms.Kalpana Gamanlal Dalal & Ors. ... Respondents Mrs.Anita Agarwal, Advocate for Appellant Mr.S.R. Singh, Advocate for respondent n.3. CORAM : Smt. R.P. SondurBaldota, J. Date : 19th December, 2009 P.C. : 1. The Oriental Insurance Company Limited files all the above appeals to challenge correctness and legality of common judgment and order dated 8th January 1992 passed by Motor Accident Claims Tribunal, Thane on the six applications filed under Motor Vehicles Act seeking compensation. The questions arising in the appeals for consideration of this Court being same, the appeals are conveniently being disposed off with a common order. 2. The accident in question took place on 21st January 1984 by headon collision of motor tanker bearing registration No.MTT-6582 and motor car bearing registration No.MMH-2957. In the accident,two persons namely Shashikant Dalal and Avani Dalal 3 died and four persons were injured. The tanker was owned by original respondent no.1 and insured with original respondent no. 2. The motor car was owned by original respondent no.3-Company and insured with the appellant-original respondent no.4. For the sake of convenience, the respondents will hereinafter be referred to by their original nomenclature. 3. The particulars of the claims made by the six applicants are set out hereafter in a tabulated form. Petition No. Parties Nature of claim Compensation demanded Compensation awarded 219 of 1984 Mrs.Bhanumati & ors. Death 10,00,000/- 3,68,475/- 431 of 1986 Punita Death 1,00,000/- 35,000/- 212 of 1984 Punita Injury 50,000/- 1,67,000/- 213 of 1984 Kalpana Injury 14,675/- 14,675/- 218 of 1984 Gamanlal Injury 2,00,000/- 67,300/- 220 of 1984 Deepak Injury 5,00,000/- 3,13,000/- The interest awarded in all the cases was of Rs.12% per annum from the date of applications till realization. The Tribunal fixed liability of original respondent no.2, United Insurance Company Limited, insurer of the tanker at Rs.1,50,000/- together with interest thereon and the proportionate costs. The 4 balance amount of compensation was to be paid by the appellant, original respondent no.1 and original respondent no.3. 4. The claims as filed originally were only against original respondents no.1 and 2 being the owner and insurer of the tanker alleging that the driver of the tanker was wholly responsible for the accident, being rash and negligent in driving the tanker. It appears that after realising the limited liability of original respondent no.2,the applicants in all the claim petitions amended the same in order to join original respondent no.3 and the appellant to their respective petitions. By the amendment, the claimants alleged that there was contributory negligence on the part of driver of the motor car, thereby proposing to hold both the owner and insurer of the car also liable to pay compensation. The Tribunal in the impugned judgment relating to five of the petitions has given a finding of contributory negligence holding that the accident took place on account of negligence on the part of both the vehicles. In the sixth petition i.e. Motor Accident Claims Petition No.219 of 1984, it has held that the liability of the owner of the motor tanker and the owner of the car in payment of compensation is in the proportion of 75% and 25% respectively. In other words, according to the Tribunal, for only one of the claim petitions, the driver of the motor car had contributed to the negligence to the accident of 25%, whereas for all other claims, though arising 5 out of the same accident, the contribution in negligence of the driver of the car was equal i.e. 50%. Original respondent no.3, owner of motor car has not preferred any appeal against the impugned judgment and order. The insurer i.e. the appellant however, challenges the impugned judgment and order, on the basis of its liability as well as the quantum of compensation awarded to claimants in each application. 5. It will be convenient to first deal with the contention of the appellant as regards its liability to pay compensation since the same is common to all the applications. The challenge to the quantum of the compensation awarded to the claimants in each application, will have to be dealt with separately and individually. Mrs.Agarwal, learned counsel for the appellant submits that the finding of the Tribunal of contributory negligence is a perverse finding and not at all supported by the evidence on record. She further submits that the finding is also strange in as much as the apportionment of the degree of the negligence on the part of the drivers of two vehicles is made differently for different petitions, though all the claim petitions arise out of the same accident. 6. The discussion as regards the negligence is found at paragraphs 13, 14 and 15 of the impugned judgment and order. The Tribunal noted that the evidence on record showed that there was 6 a curve to the road at the place of the accident and the road was ascending towards Ahmedabad and descending towards Mumbai. This would mean that the motor car was ascending and tanker was descending at the time of accident. It also noted that the motor tanker was found totally on the wrong side of the road at the time of the accident. It then considered the evidence of the driver of the motor tanker. The gist of his deposition is that he was driving the tanker from the correct side of the road. It was the motor car which while overtaking another stationary vehicle came to it's wrong side of the road and gave dash to the motor tanker. When he noticed that the car was coming at a fast speed from the opposite direction, he had brought his vehicle to a stop by immediately applying the brakes. He was unable to swerve the vehicle more to the left side as there was 5 feet deep ditch on that side. As per his deposition, width of the road at the relevant place was only 10 feet. The Tribunal rejected the evidence of the driver of tanker with an observation that the same is inconsistent with spot panchanama and also written statement of original respondent no.1, the owner. The panchanana showed that the width of the road at the place of accident was 22 feet and the motor tanker was standing totally on the wrong side of the road. It held that the contents of the spot panchanama supported the contention of the applicants that the motor tanker in question while trying to overtake another motor truck speeded ahead of it, came on the wrong side of the road and collided with 7 the car. These observations indicate that the negligence was solely on the part of the driver of the motor tanker. But after this, the impugned judgment gets deviated. The Tribunal considered evidence of PW-2, Gamanlal, claimant in Claim Petition No.218 of 1984 who stated in his cross-examination that his brother deceased-Shashikant had a chance to avert the accident, but he could not avert it as he got panicked and failed to slow down his vehicle. Relying on this statement of witness Gamanlal, the Tribunal concluded that there was contribution in negligence on the part of Shashikant. 7. Mrs.Agarwal submits that the manner in which the Tribunal has arrived at the inference of contributory negligence is most unsatisfactory. After almost holding that the driver of the motor tanker was solely negligent, he has suddenly taken a turn to say that there was contribution in negligence by Shashikant. She submits that the conclusion is apparently hastily drawn without assessing the statements of Gamanlal against the attending facts emerging from the spot panchanama unlike the evidence of driver of the motor tanker. She also points out that the Tribunal has completely ignored the evidence of Dr.Deepak, the claimant in M.A.C. No.220 of 1984. 8. In order to appreciate the arguments on the aspect of negligence, it will be worthwhile look into the concept of 8 negligence. The Apex Court in its decision in Municipal Corporation of Greater Bombay vs. Laxman Iyer, reported in 2003 A.I.R. S.C.W.5505 has observed that negligence is not an absolute term. No absolute standard can be fixed to determine it. What constitutes negligence varies under different conditions and in determining whether a particular act or course of conduct amounts to negligence all the attending and surrounding facts and circumstances have to be taken into account. 9. Mrs.Agarwal relies upon another decision of the Apex Court in Andhra Pradesh State Road Transport Corporation and another vs. K.Hemlatha and others, reported in (2008) 6 Supreme Court Cases, page 767, wherein it is held - “ To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid accident in case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act 9 as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless” 10. In the light of the above decisions, it is seen that for arriving at the conclusion as regards negligence, the evidence of the witnesses in it's entirety and the attending facts emerging from the contemporary documents of complaint and spot panchanama etc.must be seen. The facts that stand established from the record are that at the time of the accident, motor car was ascending the road at a curve and as such it would naturally be at lower speed. The motor tanker was descending the road. Therefore it would have natural tendency of gaining speed. The tanker was found to be completely on the wrong side of the road at the time of the accident. The motor car was not only on its correct side of road, but was also towards its extreme left on the kaccha road of 3 feet width. The Tribunal has rightly rejected the evidence of the driver of the motor tanker. According to witness Gamanlal, the accident could have been averted by Shashikant, had he not panicked and had not failed to slow down the car. He does not elaborate as to how slowing down of the car could have averted the accident. He does not describe the locations of the vehicles at the relevant moment in order to show that slowing down could have helped. As against this, Dr.Deepak, the claimant in M.A.C. No.220 of 1984, stated that his uncle had tried to take the car to the extreme left side of 10 kaccha road and could not take it further because there was a ditch. This evidence of Dr.Deepak is not challenged in the cross-examination. It is also supported by the spot panchanama. This would mean that whatever actions required to be taken to avert the accident had been taken by Shashikant who was driving the motor car. In that case, the Tribunal could not have held that there was any contribution in negligence on the part of Shashikant. 11. Further the test to be applied for contributory negligence laid down in K.Hemlatha's case (supra) is the test of a reasonable person, whether he acted as a reasonable, reasoned man who ought to have foreseen that he might himself be hit and he must take into account the possibility of others being careless. The evidence of Gamanlal was that Shashikant could not avert the accident because he panicked and failed to slow down his vehicle. This cannot be said to be contribution to the negligence. While considering the contribution to the negligence, the Court is not required to assess either the expertise in driving or individual strengths or weakness of the person at the wheel. Only because of his expertise in driving, some driver may be able to avert an accident. Similarly a person who can be totally calm and collected in an adverse situation may take some steps in averting the accident. These are exceptions. Hence, these are not the tests to be applied in deciding the aspect of 11 negligence. What the Court is required to see is whether the steps and the precautions that are required to be taken routinely, ordinarily and mandatorily by a reasonable man were taken. Not taking such steps and precautions would amount to negligence. Any expertise or strength of character exhibited beyond this would be commendable but not relevant. 12. In all the above circumstances the only inference that can be drawn from the facts established is the total negligence on the part of the driver of motor tanker and total lack of negligence on the part of the driver of the motor car. One cannot also lose sight of the fact that all the claim applications as filed originally were only against the owner and insurer of motor tanker alleging total negligence on the part of its driver. When the claimants realized that liability of the insurer of the motor tanker was limited to Rs.1,50,000/-, they chose to amend the applications to join the owner and insurer of motor car and to claim compensation from them with the allegations of contributory negligence on the part of Shashikant, who was driving the motor car. There is no pleading to the effect in the claim petitions that at the time of the accident, Shashikant had an opportunity to avert the accident either by slowing down or in any other way. Gamanlal obviously had a vested interest in holding the owner and insurer of the car liable to pay compensation because the amount of compensation that could be recovered from the insurer of the motor tanker was 12 limited. The owner of the motor car has conspicuously not challenged the impugned judgment casting liability on it to pay compensation. The reason therefor is not far to seek. The car is owned by original respondent no.3- Company, of which Gamanlal and deceased Shashikant were the directors. The decision to challenge the judgment against the Company would be the decision of the directors. Accepting the finding of the liability of the owner and insurer of the motor car would enable the directors to receive compensation from the company and the insurer. In the circumstances, the finding of the Tribunal of contributory in negligence cannot be sustained. It has already been observed above that this finding of contributory negligence is also not consistent in all six applications, the Tribunal having apportioned different degrees of liability in different petitions. The appellant therefore is not liable to pay any compensation whatsoever to the claimants and the appeal must succeed on that ground alone. 13. Mrs.Agarwal,learned counsel next points out that even otherwise the appellant is not liable to pay compensation in MAC Nos.219 of 1984 and 431 of 1986, as the same would amount to payment of compensation to the owner of the vehicle which liability is not covered under the Insurance policy. Shashikant for whose death in the accident, compensation has been claimed and Gamanlal who claims compensation for personal injuries were 13 directors of the original respondent no.3-company. They being the directors were in the position of owners of the company. Therefore, the insurance policy which covered liability to the third parties did not extend to them. Mrs.Agarwal seeks to draw support from decision of the Apex Court in Oriental Insurance Company vs. Meena Variyal and others, reported in (2007) 5 Supreme Court Cases,page 428. The Apex Court in the said decision was required to consider the scope of third party insurance and held that the term “Any person” in Section 147(1) (b) of Motor Vehicles Act, 1988 is to be understood as a third party and it does not cover employees of an employer except in cases of liability arising under Workmen’s Compensation Act, 1923. She also relies upon the observations of Division Bench of this Court in its decision in United India Insurance Co. Ltd. vs.Kantabai and others, reported in 1991 ACJ, page 22, whereby the partner of a firm travelling in the jeep owned by partnership firm was held to be the owner of the vehicle and hence not covered by the expression “any person” or “third party”. The decisions cited are squarely applicable to the facts of the present case. Therefore, the appellant is not liable to pay any compensation to the claimants in MAC Nos.219 of 1984 and 431 of 1986, irrespective of the finding on the aspect of negligence. 14. Mrs.Agarwal has lastly pointed out the mistakes in calculation of the compensation payable to all the claimants. 14 She points out that in Claim Application No.220 of 1984, the Tribunal has twice awarded compensation for pain and suffering to Dr.Deepak. At paragraph 20, it states that in the circumstances and having regard to the nature of injuries suffered by the applicant, compensation of Rs.50,000/- may be fairly awarded to the applicant for the said injuries. Further at paragraph 22, it states that having regard to all these surrounding circumstances, it would be just and proper to award to the applicant compensation of Rs.1,00,000/- for pain and suffering, loss of amenities of life and loss of the expectation of life. The compensation awarded under different heads to Dr.Deepak is as follows : Compensation for injuries : Rs.50,000/- Compensation upon suffering, : Rs.1,00,000/- loss of amenities of life and loss of life. Loss of future earnings : Rs.1,00,000/- Expenses incurred on medical : Rs.33,565/- treatment including hospital charges, purchase of medicines and nurse assistance Loss of earnings during the : Rs.20,000/- period of medical treatment Expenses incurred on the salary : Rs.9,600/- of driver 15. The tribunal treated the compensation under the last three heads as special damages adding upto Rs.63,165/- and rounded the same off to Rs.63,000/-. With this, it calculated the total 15 amount of compensation payable to Dr.Deepak as Rs.3,13,000/-. Mrs.Agarwal is right in pointing out the error of granting compensation twice for the injuries suffered by Dr.Deepak. Therefore, the amount of Rs.50,000/- will have to be deducted from the compensation payable to Dr.Deepak. With that the amount of compensation payable to him would be Rs.2,63,000/-. 16. As regards the compensation for personal injuries suffered by Punita, claimant in Petition No.212 of 1984, she points out a similar mistake of granting compensation twice for the injury once of Rs.50,000/- for the injury and then Rs.60,000/- for pain and suffering. Therefore, an amount of Rs.50,000/- is required to be deducted from the compensation awarded to Punita. As regards compensation payable to the other claimants, in my opinion,the quantum of compensation calculated being appropriate, the same is not required to be disturbed. Hence, the appeals are allowed. The impugned judgment and order is modified as follows : O R D E R M.A.C. NO.220 OF 1984 : 1. The opponents nos.1 and 2 do jointly and severally pay to the appellant compensation of Rs.2,63,000/- (inclusive of no fault liability if any) together with interest @Rs.12% per annum from the date of application till realisation and proportionate costs. 16 2. The liability of opponent no.2, The United India Insurance Co. Ltd. would be limited to the extent of Rs.1,50,000/- together with interest and proportionate costs. M.A.C. NO.212 OF 1984 : 1. The opponents nos.1 and 2 do jointly and severally pay to the appellant compensation of Rs.1,17,000/- (inclusive of no fault liability if any) together with interest @Rs.12% per annum from the date of application till realisation and proportionate costs. 2. The liability of opponent no.2, The United India Insurance Co. Ltd. would be restricted to Rs.1,50,000/- together with interest and proportionate costs. M.A.C. NO.218 OF 1984 : 1. The opponents nos.1 and 2 do jointly and severally pay to the appellant compensation of Rs.67,300/- (inclusive of no fault liability if any) together with interest @Rs.12% per annum from the date of application till realisation and the proportionate costs. M.A.C. NO.213 OF 1984 : 1. The opponents nos.1 and 2 do jointly and severally pay to the appellant compensation of Rs.14,675/- together with interest 17 @Rs.12% per annum from the date of application till realisation and the proportionate costs. M.A.C. NO.219 OF 1984 : 1. The opponents nos.1 and 2 do pay to the appellant compensation of Rs.3,68,475/- (inclusive of no fault liability if any) together with interest @Rs.12% per annum from the date of application till realisation and proportionate costs. 2. The liability of opponent no.2,The United India Insurance Co. Ltd. Shall however be limited to Rs.1,50,000/- together with interest thereon and proportionate costs. M.A.C. NO.219 OF 1984 : 1. The opponents no.1 and 2 do pay to the appellant compensation of Rs.35,000/- (inclusive of no fault liability if any) together with interest @Rs.12% per annum from the date of application till realisation and proportionate costs. In view of disposal of the First Appeal No.452 of 1992, the Civil Application No.1904 of 1992 does not survive, the same is accordingly disposed off. (Smt.R.P. SondurBaldota, J.)