CMA/3158/2000 of NATIONAL INSURANCE CO.LTD Vs D.RAJESWARI AND 2 OTHERS on 29 December 2011

COMMON JUDGMENT:

One Mr.Vijaya Bhaskar Chowdary, an Advocatepracticing at Kurnool proceeded to Nellore to participatein an Inter- District tournament along with his colleagueson 23.10.1992. In their return journey from Nellore toKurnool in a car bearing No.CAT 6118 (re-numbered as‘AP1 5517’) owned by the 8[th] respondent, driven by the7[th] respondent and insured with the appellant, whenthey reached Nellorepalem junction, an A.P.S.R.T.C.bus bearing No.AEZ 2174 is said to have dashedagainst the car, resulting in the death of Chowdary. Crime No.80 of 1992 was registered by P.S.Atmakur.

The wife, daughter and mother of the deceased,respondents 1 to 3 herein filed O.P.No.86 of 1993before the Motor Accident Claims Tribunal-cum- IIAdditional District Judge, Nellore claiming compensationof Rs.4,00,000/- under different heads. The 9[th]respondent herein was added as a party to the O.P.stating that she is the second wife of the deceased.

The O.P. was opposed by the A.P.S.R.T.C. aswell as the appellant. The A.P.S.R.T.C. pleaded thatthe accident occurred on account of the rashness on the part of the driver of the car. The appellant on theother hand pleaded that the driver of the A.P.S.R.T.C.bus alone was responsible for the accident and that noliability can be fastened upon it, since the deceased wastraveling as a passenger in a car and though a mereAct policy was taken, the vehicle was used for hire.

Through its order, dated 12.04.1999, the Tribunalawarded a sum of Rs.2,01,500/- and apportioned thesame among the dependants of the deceased. Theappellant challenges the same. Respondents 1 to 3 onthe other hand filed Cross Objections seekingenhancement of the compensation.

Heard Sri T.Ramulu, learned counsel for theappellant, Sri A.Chandraiah Naidu, learned counsel forrespondents 1 to 3 and Sri K.Srinivasa Rao, learnedStanding counsel for A.P.S.R.T.C. appearing forrespondents 4 to 6.

On behalf of respondents 1 to 3, P.Ws.1 to 4were examined and Exs.A.1 to A.8 were filed. On behalfof respondents and 4 to 8 and the appellant herein,R.Ws.1 to 4 were examined and Exs.B.1 to B.20 werefiled.

The death of the deceased occurred on accountof collision between the car and bus. The policeregistered, no doubt, a crime against the driver of thebus alone. However, the Tribunal has taken intoaccount, the oral and documentary evidence before itand held that the drivers of the car on the one hand and the bus on the other hand are equally liable for theaccident.

So far as the quantum of compensation isconcerned, the deceased was an Advocate and evenaccording to respondents 1 to 3, he was earning asum of Rs.1,600/- per month through profession. Though it was pleaded that he was earning Rs.4,500/-from agriculture, nothing was placed before the Tribunalin support of the same. The income that is pleaded byrespondents 1 to 3 was taken into account and applyingthe relevant multiplier, the Tribunal determined thecompensation at Rs.1,92,000/-. The 1[st] respondentwas awarded a sum of Rs.5,000/- towards loss ofconsortium, a sum of Rs.2,000/- was awarded towardsfuneral expenses and Rs.2,500/- for loss of estate. This Court does not find any excessive assessment ofthe income of the deceased. Though respondents 1 to3 prayed for enhancement of the compensation, theevidence on record does not support their plea. Therefore, the finding of the Tribunal as to the quantumof compensation is also affirmed.

The serious dispute is about the liability of theappellant herein to pay the compensation. The Tribunalheld that the appellant on the one hand and theA.P.S.R.T.C. on the other hand are liable to pay 50% ofthe compensation each.

The principal ground urged by the appellant isthat the vehicle was used for hire and it was covered

only with Act policy. There is some scope for argumentin this regard. With the omission of proviso to sub-section (1) of Section 95 of the Motor Vehicles Act1939, when the Motor Vehicles Act, 1988 was enacted,substantial change as to the coverage of insurance hademerged. In New India Assurance C. Ltd. vs. Satpal Singh[[1]], the Hon’ble supreme Court took the view thatwith the omission of the said proviso, even a standardpolicy, without payment of any additional premium,would cover the liability that arises towards anypersons, who are traveling in the vehicle, including thegoods vehicle. This Judgment, insofar as it held thatthe insurance policy would cover the liability towardspassengers in goods vehicle, was reversed by theHon’ble Supreme Court in New India Assurance Co.

Ltd. vs. Asha Rani[[2]].

Ltd. vs. Asha Rani.In the instant case, thequestion is about the liability of the owner of the vehicleand thereby that of the insurer towards the inmates of anon-goods vehicle. Though in United India Insurance Co. Ltd. vs. Tilak Singh[[3]], an observation was madeto the effect that the ratio in the judgment in Asha Rani’scase (2 supra) would apply to all categories of vehicles,the matter is now said to be pending before the Hon’bleSupreme Court. In this scenario, this Court is of theview that the appellant herein can be required to complywith Section 149 of the Motor Vehicles Act i.e., payamount and recover from the owner, if it is otherwiseentitled to.

Hence, the C.M.A. is partly allowed, upholding the order passed by the Tribunal and directing that itshall be open to the appellant to pay and recover andCross Objections are dismissed. There shall be noorder as to costs.

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JSU

29.12.2011

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

C.M.A.No.3158 of 2000And

XOBJSR.No.24935 of 2007

JSU

[1]2000 ACJ 12000 ACJ 1

[2]2003 ACJ 12003 ACJ 1

[3]2006 ACJ 1441

Date: 29.12.2011