CMA/2337/2000 of Bheemla Vs P. Yadagiri Reddy on 30 December 2009

ORDER:

This is an Appeal preferred under Section 173 ofthe Motor Vehicles Act, by one of the claimants of thedeceased, aggrieved by the improper quantum ofcompensation awarded in O.P.No.1127 of 1997.

O.P.No.1127 of 1997, was originally instituted bythree individuals, who claimed to be, the minor daughterand the parents of the deceased Nanavath Pathi. Pursuant to an order passed on 09-09-1999, inI.A.No.940 of 1999, the present Appellant, who claimedthat the deceased Nanavathi Pathi was his wife, waspermitted to be impleaded as 4[th] claimant to the saidO.P. Respondents 4, 5 and 6 herein are the remainingthree claimants in the said O.P.No.1127 of 1997. The 1[st]respondent was said to be the owner of the offendingtruck, which caused the motor vehicle accident inquestion. The 2[nd] respondent is the policyholder, while3[rd] respondent is the insurance company of the offendingvehicle.

On 20-08-1997, at about 6-30 am, the deceased,along with several others, was traveling in an autobearing registration No. AP 11 U 3031, driven by, the deceased in another O.P.No.1128 of 1997. The autowas proceeding from Hyderabad to Mudigonda. It wasstated to be proceeding on the extreme left side of theroad. When the auto reached Thakkellapalli Village,situated on Hyderabad-Nagarjunasagar road, a sandladen truck bearing registration No. AP 28 T 4450, whichwas driven by its driver in the opposite direction rashlyand negligently, hit the auto and, thus caused theaccident. Five persons, including the deceasedNanavathi Pathi and the driver of the auto, died in thesaid accident. Three others have sustained injuries. Hence, a batch of O.Ps. have been instituted seekingvarious amounts as compensation for the loss of life orinjuries caused in the accident, as the case may be. Allthe said O.Ps. have been clubbed and tried together bythe Motor Accident Claims Tribunal-cum- PrincipalSpecial Judge for SPE & ACB Cases-cum-IV AdditionalChief Judge, City Civil Court, Hyderabad, (‘the Tribunal’,for short) and decided by the common judgment renderedon 25-10-1999.

The 3[rd] respondent insurance company contestedthese O.Ps. The plea raised by them is that the accidenthas been caused not due to the rash driving of the driverof the truck, but because of the fault of the driver of theauto, who lost control over his vehicle, because 13persons were found traveling therein, including threechildren. It was further pleaded that the transfer of ownership between 1[st] and 2[nd] respondents has notbeen notified during the currency of the insurance policy– Ex.B-1, and hence, the insurance company is not liableto indemnify the current owner of the said vehicle. Further, it was contended that the claimants have failedto establish the income of the deceased.

The Tribunal, upon analysis of the evidencebrought forth before it, by examining the eye-witnesses tothe accident and also placing reliance on Ex.B-2Panchanama of the accident site, arrived at a finding thatit is the sand laden truck that caused the accident. TheTribunal has also carefully compared the facts, asnarrated by PWs 1 and 2 with the contents of Exs.A-1and A-2 – the FIR lodged at the Police Station Yacharamand the charge sheet filed by the Inspector of Police ofIbrahimpatnam, after investigation, in the criminal case,and also noticed the findings recorded by the MotorVehicle Inspector in his report Ex.A-3, from the visiblemarks of impact recorded on the right side bumper,parking lights and mud-guard of the offending truck, andthen came to the conclusion that it is the truck bearingregistration No. AP 28 T 4450, which has caused theaccident in question, all due to rash driving.

The finding of fact recorded by the Tribunal isbased upon a correct analysis of the facts spoken to byPWs. 1 and 2. They have clearly pointed out that from adistance ahead they could observe that the truck comingin the opposite direction was driven very rashly and

hence, they have cautioned the driver of the auto to becareful. In view of the same, the auto driver has taken hisvehicle by swerving to the extreme left hand margin of theroad. At the point of impact, the clear width of the roadwas only 12 feet, leaving a 3 feet road margin. Obviously, the truck driver, could not properly anticipatethe safe space available for his truck to pass by. TheTribunal, therefore, had correctly arrived at the findingthat it is the truck, which was driven rashly by its driverthat caused the accident. Particularly, in the absence ofany contra material or evidence, this finding of fact is notliable to be upset. The driver of the offending truck hasnot been chosen to be examined before the Tribunal. Heis the best person, who could have narrated the true andcorrect facts. Since, he has not been examined, theTribunal, based upon the evidence available before it,had recorded a correct finding of fact as to the nature andcause of the accident.

That leaves two questions to be determined: (1) asto the quantum of compensation; and (2) as to whetherthe insurance company is liable to make good andindemnify the loss or damage of the owner of the vehiclein spite of lack of intimation to it of the transfer ofownership of the vehicle.

At this stage, it will be appropriate to notice thelegal principle involved with regard to the questionwhether in the absence of any intimation of transfer of ownership, as is required under Section 103A of theMotor Vehicles Act, the liability of the insurer to paycompensation to the third party ceases? Such a questionhas fallen for consideration before the Supreme Court in

G. GOVINDAN v. NEW INDIA ASSURANCECOMPANY LIMITED AND OTHERS[[1]], wherein it wassettled that the liability of the insurer to pay compensationto the third party in the absence of any intimation oftransfer of the vehicle to the transferee would continueand would not cease. It was held in the said case thatsince, the insurance against the third party iscompulsorily thrust by the Motor Vehicles Act, and whenonce the insurance company had undertaken liability tothird party incurred by the persons specified in the policy,the third party’s right to recover any amount is notaffected by virtue of the provisions of the Act or by anycondition in the policy. In fact, the same question wasonce again considered by the Supreme Court in RIKHIRAM AND ANOTHER v. SMT. SUKHRANIA ANDOTHERS[[2]]. The Supreme Court while reiterating theprinciple in G. GOVINDAN’s case ( cited 1 supra), hasconcluded the entire issue as under:

“6. On an analysis of Ss.94 and 95,we further find that there are two thirdparties when a vehicle is transferredby the owner to a purchaser. Thepurchaser is one of the third parties tothe contract and other third party is forwhose benefit the vehicle wasinsured. So far, the transferee who is the third party in the contract, cannotget any personal benefit under thepolicy unless there is a compliance ofthe provisions of the Act. However, sofar as third party injured or victim isconcerned, he can enforce liabilityundertaken by the insurer.”

Therefore, in the instant case, the transfer of ownership ofthe offending truck by and between respondents 1 and 2,even if the necessary intimation is not passed on to theinsurer, is of no avail to the third respondent insurer. Allthe claimants are, therefore, entitled to recover thecompensation as determined by the Tribunal, from theinsurer.

Incidentally, it was also contended that since theauto driver was guilty of carrying more number ofpassengers in his vehicle than is permitted, the insurancecompany should also be absolved of its obligations inview of the breach of the condition of the permit by theauto driver.

It would be appropriate to notice that in terms ofClause (c) of subsection (2) of Section 149 of the Act, oneof the defenses available to an insurer is that the vehiclein question has been used for a purpose not allowed bythe term subject to which it was used. The question as towhether breach of the condition of the permit - not to carrymore than three passengers in an auto - would amount toa breach of purpose for which the vehicle has beenpermitted to be used, has fallen for consideration of the Kerala High Court and the Bombay High Court. Boththese High Courts have clearly held that the breach of acondition of the permit is not the same thing as a breachof the purpose for which it was issued. The contraventionof one of the conditions of the permit does not amount toa contravention of the purpose for which the permit isissued. The Andhra Pradesh High Court has also takenthe same view in KANNEKANTI VARAMMA v. PULI

RAMAKOTAIAH[[3]]and in SRIRAMSUBRAHMANYAM AND OTHERS v. S. MOHAMMEDRIYAZ AND ANOTHER[[4]], that the purpose for which apermit has been accorded to a vehicle is clearly differentfrom the conditions imposed or contained in such apermit. If a motor vehicle is used for a different purposethan for which it was permitted, then, perhaps, a validdefense to resist the claim can arise to an insurer. Violation of a condition of a permit cannot be construed tobe an integral part of the purpose for which the permitwas issued to the vehicle in question. Therefore,violation of a condition contained in the permit of thevehicle for its use does not amount to a breach of thecondition of the policy of the insurance. Therefore, Irespectfully subscribe to the same view that by carryingmore number of passengers in the auto than is permitted,the contract of insurance between the 3[rd] respondent andthe owner of the vehicle does not cease to get attracted. This leaves us with the only question relating to the amount of compensation to be awarded.

The claimants have laid a claim for a sum ofRs.3,00,000/-.

The claimants have solicited special damages atRs.10,000/-, under the special head of transportation tohospital and to the cremation ground. A sum ofRs.5,000/- towards expenses for cremation andobsequies; and a sum of Rs.2,000/- towards damage tothe clothing. The Tribunal has awarded a sum ofRs.3,000/- under all the three heads noted supra.

This amount of compensation awarded by theTribunal appears to be realistic and may not warrant anyinterference.

A sum of Rs.20,000/- was claimed under the headof general damages and under the sub head pain andsuffering.

When the death was recorded as instantaneous,the question of compensating towards pain and sufferingon that count does not arise.

Under the sub head loss of estate, a sum ofRs.25,000/- and towards loss of earning anddependency, a sum of Rs.2,38,000/- has been claimed.

It was not in dispute that the deceased was agedabout 25 years. She was said to be working as a manuallabour and earning a sum of Rs.3,000/- per month at therate of Rs.100/- per day. The Tribunal has reckoned themonthly earnings of the deceased to be Rs.1,000/- anddeducting 1/3[rd] thereof, has worked out her monthly contribution to be Rs.650/-.

Nowhere it was disputed that at the time of theaccident, the rate of daily wages was not Rs.100/-. It,therefore, would not be improper to imply that the dailywages could be ranging between Rs.75/- to Rs.100/- perday. On an average, even if 20 days were taken to beemployable working days per month, the earnings of thedeceased could not have been less than Rs.1,500/- permonth. Even assuming that 1/3[rd] thereof would havebeen spent by the deceased on herself, her monthlycontribution to the family could be taken to be Rs.1,000/-and on that basis, the annual contribution should havebeen taken as Rs.12,000/- instead of Rs.7,800/- taken bythe Tribunal. If Rs.12,000/- has been taken as the annualcontribution of the deceased, who was only 25 years, theamount of compensation should have been arrived atRs.2,16,000/- as against Rs.1,40,400/- worked out by theTribunal.

I, therefore, consider it appropriate that the amountof compensation on this count should be increased toRs.2,16,000/- as against Rs.1,40,400/- awarded.

This amount of compensation has essentially beendivided by the Tribunal into two parts. The originalclaimants 2 and 3 – respondents 5 and 6 herein, whowere said to be the parents of the deceased, pleaded thatthe deceased has been deserted by her husband – theappellant herein. But however, without deciding that question the Tribunal has apportioned a sum ofRs.63,400/- and almost by identical proportions, betweenthe two parents of the deceased and the appellanthusband, were awarded almost equal amounts. Theother portion has been awarded to the 1[st] claimant – thesix year old minor daughter of the deceased, who is the4[th] respondent herein. Therefore, even the additionalamount of compensation now awarded, the appellant andthe respondents 5 and 6 will additionally receive a furthersum of Rs.15,000/- each, while the balance amount ofRs.35,600/-, would go to the 1[st] claimant – minordaughter of the deceased, who is the 4[th] respondentherein and the said amount will lie in an interest bearingfixed deposit, in any of the Nationalised Banks, till suchtime she attains the age of majority. She will be entitledto be paid, only the interest earned thereon, till such time,she attains the age of majority.

Sri Sudhakar Reddy, learned counsel appearing forthe appellant has also raised a plea that as per Exs.A-10and A-11, postmortem examination report, the deceasedwas found to be in the family way; she was said to becarrying a six-month old foetus and hence, compensationought to have been awarded to this unborn child. Hecommended, for acceptance, the judgment rendered bythe Karnataka High Court in DIVISIONALCONTROLLER, B.T.S. DIVISION, KARNATAKASTATE ROAD TRANSPORT CORPORATION v.

VIDYA SHINDHE AND ANOTHER[[5]].It will beappropriate to notice that in Vidya Shindhe’s case (cited5 supra), the injured claimant, who was similarly carryinga foetus, had been rushed to undergo an emergencysurgery for foetus distress and gave birth to a male child,who has survived for two days before dying, ultimately. In those set of circumstances, the learned Judge hadconcluded the issue in the following manner:

“………….. Though there is no directimpact betweenthe vehicle and thebaby, since the baby had receivedinjuries while in the womb, this courthas to hold that there is a nexusbetween the accident and the causeof death of the child…………….”

As could be seen from the above case, the baby hassurvived the accident, but however, succumbed later onto the injuries sustained in the accident.

In the instant case, the deceased was carrying asix-month old foetus, which, in normal circumstances,would have taken her some other time to deliver. Therefore, I do not find that the fact situation prevailing inthis case, which clearly demonstrated that the victim hassuccumbed to injuries instantly, would lend support toany such element of compensation to be paid to theappellant herein.

To the extent of enhancing the compensationamount, indicated supra, the Appeal is allowed. Nocosts.

mrk30[th] December 2009

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Nooty Ramamohana Rao, J

[1](1999) 3 SCC 754 = 1998 AIR SCW 1077[2]AIR 2003 SC 1446[3]1989 (3) ALT 49[4]2003(5) ALD 69[5]2005 ACJ 69