1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T 1. Smt.Sayra Devi & Ors. v. National Insurance Co. Ltd. and Others. D.B. CIVIL SPECIAL APPEAL (CIVIL) NO. 4/1997, against the judgment dated 22.2.1996 passed in S. B. Civil Misc. Appeal No.114/88. 2. Smt.Champa Devi & Ors. v. National Insurance Co. Ltd. and Others. D. B. CIVIL SPECIAL APPEAL (CIVIL)NO.11/1997, against the judgment dated 22.2.1996, passed in S. B. Civil Misc. Appeal No. 192/88. DATE OF JUDGMENT: 07.04.2006 PRESENT. HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE R. P. VYAS Mr.N.M.Lodha ) for Appellants. Mr.Anil Bhandari,) Mr.Jagdish Vyas, for Respondents. BY THE COURT: (PER HON'BLE R.P.VYAS, J.): Since both the aforesaid appeals arise out of the same Judgment and relate to the same incident, they are, therefore, 2 decided by this common Judgment. The facts giving rise to the instant appeals are that Ghewar Chand, Madan Lal, Kishan Lal, Ashok Kumar and Pawan Kumar were going from Jodhpur to Balotra (Pachpadra) on October 31, 1980 in a bus belonging to the Rajasthan State Road Transport Corporation. When the bus reached at village Dhawa, a strike call was given by the Roadways employees and, therefore, the bus did not proceed ahead from Dhawa and left the passengers at Dhawa Bus Stand. A Jeep bearing Registration No. RJT 340, owned by Pukh Raj, was coming from Jodhpur and was going towards Jasol, stopped at the Bus Stand, Dhawa. A request was made to the owner of the Jeep Pukhraj to give them lift as they will not be able to get some other conveyance. They requested him to leave them at Pachpadra and Balotra respectively. Pukhraj agreed and allowed them to sit in the jeep. After taking these five passengers, the jeep proceeded from Dhawa to Pachpadra and Balotra respectively. After the jeep ran about a kilometer, it was stopped by the driver to check the condition of the engine as the engine was recently repaired. Pukhraj ( owner of the jeep) and Pratap (driver of the jeep) came out from the jeep and after checking the engine, went to meet the call of nature, while the 3 others persons remained sitting in the jeep. At about 9.30 P.M., a truck, bearing Registration No. RRP 8435, which was being driven by Gurdayal alias Daali rashly and negligently came from Jodhpur side and hit the jeep, as a result of which the jeep overturned and Ghewar Chand, Madan Lal and Bhanwar Lal came beneath the jeep. Ghewar Chand aged 40 years and Madan Lal, aged about 15 years both died on the spot, while Bhanwar Lal was taken to Balotra hospital, where he was declared dead. Kishan Lal, Ashok Kumar and Pawan Kumar also received grievous injuries in this accident. The truck driver did not stop the truck after the accident and ran away from the place of accident. Legal representatives of deceased Bhanwar Lal did not file any claim petition, whereas, the legal representatives of Ghewar Chand, his widow - Smt.Champa and others filed Claim Petition No.27 of 1982 for grant of compensation of Rs.8,85,000/-. The parents of deceased Madan Lal, viz. Smt.Sayra and Amrit Lal filed Claim Petition No.28 of 1982 for the award of compensation amounting to Rs.2,00,000/-. During the pendency of the claim petition, Amrit Lal (the father of deceased Madanlal) died and, therefore, his legal 4 representatives were taken on record. Ashok Kumar, who received injuries in the accident, also filed Claim Petition No.29 of 1982 for the award of Rs.50,000/- as compensation. The claimants and the defendants led their respective evidence before the Judge, Motor Accidents Claims Tribunal, Balotra. The learned Judge, after hearing the submissions of the learned counsel for the parties and examining the documents as well as the evidence led by both of them, passed the Award dated 17.5.1988 and awarded a sum of Rs.6,40,000/- as compensation with interest @ 12% per annum to the claimants Smt. Champa Devi and Others; Rs.2,15,000/- as compensation with interest @ 12% per annum from the date of filing the claim petition to the claimants – Smt.Sayra Devi and Others and Rs.42,000/- as compensation along with interest @ 12% per annum from the date of filing the petition were awarded to the claimant – Ashok Kumar. We are not concerned in these appeals with the last award. The Insurance Company and the owner of the vehicle as 5 well as the Transport Company under whose control the truck in question was being driven, filed separate appeals. Out of the nine appeals, three appeals of M/s. Milap Transport Company were rejected as barred by time, award against it became final. The remaining six appeals were heard together. The learned Single Judge partly allowed the appeals, by reducing the amount of compensation in all the three cases. In D. B. Civil Special Appeal (Civil) No.11/97 arising out of S. B. Civil Misc. Appeal No.192/88 qua Claim Petition No.27/82 by Champa Devi & Others legal representatives of deceased Ghewarchand award was reduced from Rs.6,40,000/- to Rs.1,83,000/- only. Likewise, in D. B. Civil Special Appeal (Civil) No.4/97 arising out of S. B.Civil Misc. Appeal No.114/88 qua Claim Petition No.28/82 by appellant – Sayra Devi, who is the mother of the deceased – Madanlal, was awarded a sum of Rs.2,15,000/- as compensation, but the learned Single Judge reduced the amount of compensation to a sum of Rs.50,000/- only. Being aggrieved by the judgment dated 22.2.1996, the instant appeals have been preferred before this Court. About claim of Sayra Devi, mother of deceased Madanlal, it is submitted by the learned counsel for the appellants that the 6 learned Single Judge was in error in holding that the mother of the deceased Madanlal is entitled to receive a sum of Rs.50,000/- only as compensation, on account of shock and mental agony suffered by her due to death of her son. The appellant led evidence to show that deceased Madanlal was earning Rs.25,000/- per year. Out of Rs.25,000/-, the deceased was spending Rs.15,000/- towards his family, including his mother. But the learned Judge ignored this aspect of the matter by holding that it is only an expectation, which might or might not have been fulfilled. Apart from that, Smt. Sayra Devi was aged about 45 years and the Tribunal held that for 20 years, Shri Madanlal would have given Rs.10,000/- per year to his family members. It is further submitted by the learned counsel for the appellants that deceased – Madanlal would have earned at least Rs.25,000/- when he would have attained the age of 25 years. His mother would have at least received the monetary help to the extent of Rs.10,000/- to Rs.15,000/- per year. But, the learned Single Judge did not allow any amount on this head. According to the learned counsel for the appellants, since the parents had lost their son of 17 years in the accident, so, Rs.15,000/- awarded by the learned Single Judge is insufficient and inadequate. Learned counsel submitted that the learned 7 Judge did not take into consideration the future prospects and the high rise in price index. It is also submitted by the learned counsel for the appellants that the learned Single Judge has not looked into the case in proper perspective and has committed error in holding that the insurance company is only liable to the extent of Rs.50,000/- as, according to the learned Single Judge, its liability is limited. About claim of Smt.Champa Devi & Others, legal representatives of deceased Ghewar Chand, it is also contended by the learned counsel for the appellants that the learned Single Judge has seriously erred in reducing the award of compensation by taking current income of the deceased to be even less than his last return of income in not considering future prospects of the deceased who was only 40 years of age at the time of death and in adopting multiplier of 12 only with no basis, by ignoring that his legal representatives were not only his aged parents, but included his young widow and children. It is also contended by the learned counsel for the appellants that the learned Single Judge has fixed Rs.5,000/- as loss of consortium as against Rs.2,00,000/-, awarded by the 8 learned tribunal. Learned counsel submits that, in fact, the deceased left four minor children and a widowed mother and wife. All the appellants were dependant on the income of the deceased and the deceased was spending a very petty amount on his own personal expenditure. Learned counsel submits that the learned Tribunal was justified in holding that the deceased used to spend Rs.25,000/- per year on his family and the appellants are entitled to get compensation by applying the multiplier of 25. Learned counsel submits that deceased Ghewarchand was an income-tax payer. His assessment orders (Exs.29 to 33) show that he was paying income tax on his income which was disclosed as Rs.31,310/- for the year, 1980- 81. Apart from that, he was also an Agent of L.I.C. and had derived income from commission also. According to the learned counsel, the Tribunal found the income of the deceased as Rs.30,000/- per year, whereas, on the contrary to record, the learned Single Judge has wrongly calculated the claim by holding that the deceased was only earning Rs.22,000/- per year and when 1/3rd amount is deducted from his income, the dependency comes to Rs.15,000/- only. According to the learned counsel for the appellants, the Tribunal was justified in awarding Rs.2,000/- to each of the dependants of the deceased on account of mental agony and 9 shock etc., whereas the learned Single Judge, has completely ignored this fact without any basis. It may be mentioned that on account of untimely and sudden death of their only earning member, the appellants have suffered a great shock. It is argued by the learned counsel for the appellants that the learned Single Judge has erred in holding that the Insurance company is only liable to satisfy the claim upto statutory limit. According to the learned counsel for the appellants, while hearing an appeal against the award, the learned Single Judge has acted illegally and erroneously in interfering with the quantum of compensation. It is also argued by the learned counsel for the appellants that the learned Single Judge has not considered the future prospects of the deceased. The learned Single Judge has also not considered the compensation under the heads of consortium and love and affection. In this connection, learned counsel for the appellants has relied on 2004 WLC (UC) 789, 2004 WLC (UC) 791, 2005 (8) RDD 3025, 2005 (10) RDD-4577 and 2005 WLC (UC) 798. It is also argued by the learned counsel for the appellants that as per sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (Section 96 (2) of the Act, 1939), the Insurance Company is entitled to defend the action on the grounds 10 enumerated in the aforesaid sub-section and no other ground is available to it. Section 149 (2) reads as under :- S.149 (2). The insurer shall be entitled to defend the action on any of the following grounds, namely - (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely - (i) a condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period disqualification, or (iii)a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained non-disclosure of a material fact or by a representation of fact which was false in some material particular.” 11 According to the learned counsel for the appellants, the learned Single Judge dismissed the appeals filed by the owner/insured and the two appeals filed by the Insurance Company were partly allowed and the award – amounts were reduced in the appeals filed by the Insurance Company, whereas as per the judgment passed in the case of National Insurance Company v. Nico-LlettaRohtagi (2002 D.N.J. (S.C.)699), the appeals filed by the Insurance Company are not maintainable. Thus, both the grounds were not available under Section 149 (2) of the Motor Vehicles Act, 1988 or Section 94 (2) of the Motor Vehicles Act, 1939. Learned counsel for the appellants pointed out that the column of limits of liability in the Insurance Policy (C 80/2), U/S II-I (i) was blank and U/S II-I (i), the claim for property was mentioned Rs.50,000/-. Thus, according to the learned counsel for the appellants, it is clear that the third party risk was unlimited and for property damage, there was a limited liability of Rs.50,000/-. Learned counsel for the appellants also pointed out that as per India Motor Tariffs issued by the Tariff Advisory Committee (General Insurance), the premium of truck having carriage capacity of 9 tons was as follows :- 12 Town Mofussil Premium upto 5 Tons 761 911 Rs.150/- for additional 4 tons. 600 600 Liability of public risk 97 125 ------------ --------------- 1458 1636 ------------ -------------- In this context, the learned counsel for the appellants submits that as per the Tariff, the premium of town rate was lesser than the Mofussil area, because Mofussil rates were charged all over India, whereas Town rates were charged for all over India only U/S II-I (i) and for other sections, only Town geographical area was covered. As per the Policy exhibited, the geographical area shown U/S II-I (i) was India and under all other sections, a rubber stamp was affixed and geographical area of 'BHATINDA' was shown. According to the learned counsel, it is clear that the basic premium, including the liability to the public risk was only Rs.1458/-, where the Insurance Company has charged Rs.1511/-. Thus, the Insurance Company has charged the extra premium of Rs.53/-. In this way, the liability of the Insurance Company towards third party is unlimited. In support of his contention, he has relied on the case of National Insurance Company Ltd. v. Laxmi (2004 WLC (UC) 706). 13 Apart from that, there is an avoidance clause in the Policy (below Schedule III), which reads as under :- “Avoidance of certain terms and rights of Recovery : Nothing in this Policy or any endorsement here on shall affect the right of any person indemnified by this Policy or any other person to recover an amounts under or by virtue of the provisions of the Motor Vehicles Act, 1939 (Sec.96). But the insured shall re-pay to the Company allow sums paid by the Company which the Company would not have been liable to pay, but for the said provision.” Thus, the learned counsel for the appellants strenuously submits that in view of the above, for the sake of argument, if it is assumed that the liability of the Insurance Company is limited to the extent of Rs.50,000/-, then also, it is clear from the Policy that the Insurance Company has to pay to the claimants the entire amount awarded by the Claims Tribunal and, thereafter, it can recover the excess amount from the insured. In support of his contention, he has placed reliance on the case of Oriental Insurance Company Ltd. v. Cheru Vakkara Nafeessu, [2004 ACJ-1 (SC)], in which their Lordships of the Supreme Court considered the clause in the policy and held that under the insurance policy, the limit of company's liability is only upto Rs.50,000/-, but looking to the avoidance clause, the insurance 14 company was held liable to pay the entire award amount to the claimants and it was held by their Lordships of the Supreme Court that the insurer can recover the excess amount from the insured by executing this award. Apart from that, in National Insurance Company Ltd. v. Swaran Singh & Others (2004 ACJ 1), it was held that the insurance company is liable to make the entire award to the claimants and then they may recover beyond their liability from the insured. In National Insurance Company Ltd. v. Baljeet Kaur [2004 ACJ-420 (SC)], and Oriental Insurance Company Ltd. v. Nanjappan and Others, [2004 ACJ-721 (SC)], again, their Lordships of the Supreme Court held that in limited liability, insurance company is liable to the claimants for the entire award amount, but entitled to recover the amount from the insured without filing a suit and insurance company may initiate proceedings before the executing Court. A Division Bench of the Gujarat High Court in Oriental Fire and General Insurance Company v. Firdosh Parwej Mysorewala ( 2004 ACJ-257) (Gujarat) considered the judgment of Constitutional Bench of Hon'ble Supreme Court given in C.M.Jaya's case (Supra) and held that the Constitutional Bench had no occasion to consider the avoidance clause in the insurance policy which is considered in the case of Amritlal Sood and Oriental Insurance Company v. Cheru Vakkara (2001 ACJ 1). Applying the principles laid down in the above 15 referred two decisions of the Hon'ble Supreme Court to the facts and circumstances of the present case and more particularly, the terms and conditions stipulated in insurance policy, the Court was of the opinion that though the liability of the insurance company is limited to the extent of Rs.50,000/- only, the insurance company is liable to pay the entire amount of award to the claimants and upon making such payment, the insurance company can recover the excess amount from the insured by executing the award against the insured to the extent of such excess amount as per Section 96 (4) of the Motor Vehicles Act, 1939. Thus, the Gujarat High Court, after considering all the judgments available on the subject, held that in case of limited liability, the insurance company shall make payment of entire amount of award and after making such payment, the insurance company is entitled to recover the excess amount from the insured. Learned counsel for the appellants pointed out that the Rajasthan High Court in Ramlal v. Hasti Mal (2005 RAR – 410 (Raj.)), after considering the five Judges Bench decision given in C.M.Jaya's case (Supra) and all other judgments, held that in the case of limited liability, the insurance company will satisfy the award to the claimants and can recover the excess amount from the insured by execution. There is no reason for depriving the claimant from the benefit of insurance coverage only because of the wrong which was not committed by him. 16 Once there is a valid contract of insurance, the insurer cannot avoid its liability to pay compensation to third party. If view is taken otherwise, then without there being any fault of the beneficiary and because of fault of insured, the beneficiary will be deprived from his valuable right because of none of his fault. The view, that the insurer shall have initial liability to pay the compensation to claimant even in case where insurer proved his defence to avoid his liability, it will not only be just and proper, but it will sub serve the purpose of the act. In reply, it is submitted by the learned counsel for the respondents that the judgment of the learned Single Judge is based on sound reasonings and it does not require any inference by this Court. The compensation awarded by the learned Tribunal is highly excessive, looking to the facts and circumstances of this case. It is further submitted by the learned counsel for the respondents that as per Section 96 of the Motor Vehicles Act, the liability of the insurance company is limited to the extent of Rs.50,000/- and the learned Tribunal has committed an error in holding the Insurance Company to indemnify the whole of the claims. It is submitted by the learned counsel that neither the driver of the truck, nor any other eye witness of the occurrence 17 has been produced in this case and from the evidence of Pratap, the driver of the jeep, it is established that it was only on account of the rash and negligent driving of the truck by its driver Gurdayal Singh that the accident took place, which resulted in the death of three persons, vix. Ghewar Chand, Madan Lal and Bhanwar Lal and caused injuries to Ashok Kumar etc. It is also submitted by the learned counsel for the respondents that the insurance company is liable to the extent of its statutory liability in each claim. According to the learned counsel for the respondents, the statutory liability of the insurance company under Section 95 (2) of the Act, at the relevant time, was Rs.50,000/-. The owner of the vehicle did not pay any extra premium to cover the unlimited liability. Apart from that, the cover note of the insurance company shows that the insurance company accepted the liability to the tune of Rs.50,000/- only. Not only that, but also, no specific agreement was arrived at between the owner and the insurance company to cover unlimited liability. Thus, in the absence of any contract to the contrary, the liability of the insurance company to indemnify the claim is limited to the extent of Rs.50,000/- only. In this view of the matter, the 18 learned counsel pointed out that the liability of the insurance company has rightly been limited to the extent of Rs.50,000/- along with interest @ 12% per annum by the learned Single Judge. It is contended by the learned counsel for the National Insurance Company Ltd. - respondents that the vehicle, bearing Registration No. RRK-8435 was insured with the National Insurance Company and is, admittedly, a goods vehicle and the accident took place on 31.10.1980, therefore, the rights and liabilities of the parties are required to be decided on the basis of the Motor Vehicles Act, 1939, as it stood on the date of accident. Apart from that Section 95 (2) (a) provides that where the vehicle is a goods vehicle, the Policy of insurance shall cover liability incurred in respect of any one accident upto the limit of Rs.50,000/- in all. The relevant provision, as it stood on the date of the accident, reads as under :- “95 (2) Subject to the provisions to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely - (a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.” 19 In support of his aforesaid submissions, the learned counsel for the respondents – National Insurance Company Ltd. has relied on the case of National Insurance Co. Ltd., New Delhi v. Jugal Kishore & Others (AIR 1988 SC 719), in which it was observed that even though it is not permissible to use a vehicle, unless it is covered at least under an “act only” policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case however, it is got comprehensively insured a higher premium than for an “act only” policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage