Hari Nath Tilhari, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 arises from the Judgment and award dated June 19th, 1996, by the learned District Judge/Motor Vehicle Claims Tribunal, Karwar, in M.V.C. 344 of 1987, dismissing the Claimants' claim petition for compensation.
2. The facts of the case in brief are that on 27.2.1987, at about 8.45 p.m., a motor vehicle accident did take place on National High way No. 17 at Baitkol.
The case of the claimants is that deceased, son of the claimants was travelling as pillion rider on a Motor-cycle driven by respondent No. 1, in the claim petition. When the Motor-cycle reached Baitkol, it skidded and both of them fell down. The deceased, that is Ignatius Gudinho, suffered serious head injuries resulting in the death of I.K. Gudinho on 24.3.1987, despite of best medical treatment. According to the claimant's case, the accident did take place due to the rash and negligent driving of respondent No. 1, coupled with the presence of some salt on the Road which led to the skidding of the vehicle. The claimants claim that the deceased I.K. Gudinho was earning a sum of Rs. 1250/- per month and had good prospects of promotion and increment in his salary by working as an electrician in Ballarpur Industry Limited, Binga. The petitioners further asserted that I.K. Gudinho (deased) during his lifetime used to spend his entire earnings on the family in supporting the claim. So, the petitioners claim the compensation to the tune of Rs. 2,15,000/-. According to the claimant's case, petitioners were entitled to compensation for the loss of pecuniary benefits and consortium caused to them as well as for the loss of expectation of life caused by untimely death of I.K. Gudinho and the mental agony suffered by the applicants from the act of respondents. The claimants further alleged that they incurred lot of expenditure in the medical treatment of the deceased from the date of accident till he expired which expenditure amounted to about Rs. 15,000/- and thus, the claimants made a claim for compensation in total to the tune of Rs. 2,15,000/.-.
3. On notice being issued, the respondents 1 and 2 denied the claim made by the claimants, that is the appellants as well as the other allegations. They put up the story that the vehicle being driven at that time by the deceased himself and not by respondent No. 1. It was further alleged that at that time, few trucks were transporting salt from Baitkol harbour to Ballarpur Industry, Binga and in that process, they spilled salt on the Road which became a nuisance to the vehicles drivers and on account of that spilled salt on the Road, the Motor-cycle skidded and the deceased and the respondent No. 1, fell down and sustained injuries. The respondents 1 and 2 alleged that accident did take place on account of driving of the vehicle by the deceased only and as such, the police has not registered any case against respondent No. 1. The respondents 1 and 2 alleged that the vehicle has been insured one with Respondent No. 3. The respondent Nos. 1 and 2 further denied the claim put up by the petitioners and alleged that the claim for compensation was not maintainable and it was exhorbitant and excessive.
On behalf of the Insurance Company also, written statement was filed and it was asserted that the claim put forward by the claimants was exhorbitant. The Respondent No. 3, denied the injuries sustained by the deceased. They also denied the allegations which had been made in the claim petition that the accident had taken place due to rash and negligent driving of the vehicle, that is Motor-cycle by Respondent No. 1. Respondent No. 3, denied the entire case of the claimants including the income, the earning and other allegations regarding future prospects of the deceased. It has also been pleaded by Respondent No. 3, that liability if any of respondent No. 3, is always subject to the terms, exceptions, conditions and limitations of the policies and the relevant provisions of and exceptions under Motor Vehicles Act and rules framed therein under. The respondent No. 3, further alleged that his responsibility depends on the validity at the time of registration certificate, the validity of the term relating to vehicle and the driving licence of the person driving the said vehicle at the time of accident. All the respondents and respondents No. 3, prayed that the claimants' claim be dismissed.
4. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
1. Whether the petitioners prove that the deceased Ignatius K. Gudinho died due to the injuries sustained by him on 27.2.1987 around 8.45 pm near Baithkol in Karwar town due to rash and negligent driving of the 1st respondent in a motor cycle bearing No. CNE 1178 when the deceased was travelling as a pillion rider?
2. Whether the 1st and 2nd respondents prove that this accident occurred due to skidding of the motor cycle near the place of accident?
3. Whether the 3rd respondent proves that the insurance policy does not cover the risk of the pillion rider of this motor cycle?
4. What compensation the petitioners are entitled to and which of the respondents is liable to pay?
5. What order?
5. The Tribunal dismissed the claim petition after having recorded the following findings: a) That the evidence on record shows that it was the deceased himself, who was riding the moped and not respondent No. 1, as alleged by the petitioners, (b) The presence of the salt itself led to skidding of the vehicle and so on, are not established at all, (c) If the petitioners were to have been held as entitled to compensation under the provisions of the Act, the proper compensation would be Rs. 10,000/- towards loss of dependency and loss of love and affection to the claimants and Rs. 10,000/- towards expenses incurred by them in treating the deceased and other expenses thereof, but in view of the finding by the Tribunal that at the time of the accident, the deceased was driving the moped, there was no question of any compensation or damage being awarded either against respondents-1 and 2 nor against the Insurance Company in the claim petition, (d) The Tribunal further held that even if we take it for granted that the deceased was travelling in the vehicle as pillon rider, and not as the sadder driver, Insurance Company cannot be made liable to pay the compensation, as there is nothing on record to show that the deceased was travelling in the vehicle belonging to others not in pursuance of the contract of employment.
With these findings, the Tribunal has rejected the claim petition filed by the claimants - appellants.
Feeling aggrieved from the Judgment and order of the Tribunal, the claimants have filed this appeal.
I have heard Sri V.P. Kulkarni, holding brief for Sri K.N. Mahabaleshwara Rao, learned Counsel for the appellants and Sri S.S. Haveri, for respondents 1 and 2 and Sri P.M. Nawaz for Hegde Associates learned Counsels for Insurance Company - Respondents 3.
The learned brief holder Sri V.P. Kulkarni for the learned Counsel, on behalf of the appellants contended that, the finding of the Tribunal that at the time of occurrence of the accident, the deceased was the driver sadder and not respondent No. 1, is erroneous and incorrect. Learned Counsel for the appellants invited my attention to the evidence on record and submitted that the oral evidence of P.W.5 coupled with the circumstantial evidence coming out from the statement of R.W.1 itself reveal that the rider of the vehicle was respondent No. 1 and not the deceased I.K. Gudinho and that the evidence of P.W.4, & P.W.5, dearly proved that the accident did take place on account of rash and negligent driving of the Motor cycle that is Moped by respondent No. 1 and it was in such a speed that respondent No. 1, lost his control. Learned Counsel for the appellants submitted that as such, occurrence or accident which caused injuries to the deceased resulting in the death of deceased I.K. Gudinho, had been the result of rash and negligent driving of the motor vehicle by respondent No. 1. Learned Counsel for the appellants further submitted that the deceased was a pillion rider on the Motor Vehicle and that he fell down and that he suffered grevious head injuries resulting in the death of I.K. Gudinho, now deceased. Though, death did take place after a gap of about 3 weeks from the date of occurrence i.e., within 24 days, that is on 24th March, 1987. The learned Counsel for the appellants further submitted that the petitioners have been entitled to claim the compensation as asserted in the Claim Petition, that is to the tune of Rs. 15,000/- for medical and other expenditures and Rs. 2,00,000/- as compensation under the head 'general damages', that is towards the pecuniary loss and also loss of expectation of the life and the mental agony suffered by the claimants and the Tribunal has acted illegally in not awarding the claim. The learned Counsel for the appellants further contended that the claimants are entitled to realise the compensation money from all the respondents including the 3rd respondent - Insurance Company as well and the learned member of the Tribunal (District Judge) erred in law in misconstruing the policy as well as the provisions of law when the Tribunal held that even for a moment, if the claimants would have been entitled to compensation and even it be taken or held that at the time of accident, motor cycle was driven by Respondent No. 1, the Respondent No. 3 - Insurance Company will not be liable to pay compensation. Learned Counsel submitted that this finding is based on misconstruction of the terms and conditions of the Insurance policy and the law relevant thereunder.
These contentions of the learned Counsel for the appellants have hotly been contested by Sri S.S. Haveri, learned Counsel for respondents 1 and 2 and by Sri P.M. Nawaz appearing for Respondent No. 3, i.e., the Insurance Company.
I have been taken through the records by the learned Counsel for all the parties. The learned Counsel for the respondents 1 and 2 contended that the Tribunal has rightly held that the motor cycle was being driven by Sri I.K. Gudinho, the deceased and not by Respondent No. 1 and as such rightly held that the claimants were not entitled to any award in their favour and no compensation could be awarded to them. The learned Counsel for respondents 1 and 2 further submitted that in any case, if it is held by this Court that petitioners are entitled to any compensation, and this Court comes to hold that the finding of the Trial Court is incorrect and holds that Respondent No. 1, was the rider and not the deceased, the liability also lies on the Insurance Company as per terms of Insurance Policy. On behalf of the Insurance Company, Sri P.M. Nawaz, learned Counsel submitted that the finding of facts as recorded by the Tribunal that, the deceased was the rider and he was driving the Motor Cycle and it met with the accident resulting in causing serious injuries to the deceased I.K. Gudinho and lateron, resulting in death of Sri Gudinho, is correct, that it rightly held that the claimants were not entitled to claim any compensation and that those findings do not call for interference by this Court. Sri Nawaz, further submitted that rash and negligence driving has not been proved. Sri Nawaz learned Counsel for R-3, further submitted that respondent No. 3 cannot be held liable to pay the compensation in the present case, in view of the terms and conditions of the Insurance policy. In this connection Sri Nawaz made a reference to the decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED vs . NAGARATNA : AIR1996Kant396 . The learned Counsel for the Company also pointed out that in the F.I.R. lodged by the police, name of the deceased was mentioned in the column of accused and that therefore, he submitted that deceased may be taken to have been riding the vehicle, i.e. driving. So, he could not be entitled to compensation from any of the respondents.
The first question to be decided in this appeal is: Whether the finding recorded by the Court below i.e., Tribunal that the deceased was the rider and he was driving the Motor cycle on the date and at the time of the occurrence, is correct?
The 2nd question to be considered is if it is found that the finding of the Tribunal is incorrect and the correct position is that the rider of the vehicle was respondent No. 1 and he was driving the Motor cycle, when it met with the accident, whether the accident was the result of rash and negligent driving of the Motor cycle by respondent No. 1 and the deceased did suffer injuries on account thereof, if the answer to this point is given in the affirmative, to what amount of compensation are the claimants entitled and from whom; that is the last question to be considered is:
Whether it is only the respondents 1 and 2 are alone liable to pay the compensation or it is also the liability of the Insurance Company under the policy to pay the compensation as joint and several liability with respondents 1 and 2 and the finding of the trial recorded by the Tribunal in this regard is justified and correct or it is wrong?
As regards the first question as to who was driving the Motor Cycle at the time the occurrence did take place, the report to the police may not be very material, as the report that had been lodged with the police was by P.W.2, namely Rama Naik, it has come from the statement of R.W.2 - Narayan Chinnu Naik that the report was lodged by one Rama Naik at the Police Station on 27.2.1987, at 10.30 PM and the contents of the report were narrated by Rama Naik. R.W.2 who is the constable states:
'The said constable wrote down the complaint as narrated by the complainant. It is not true to suggest that immediately after getting information about motor accident the policemen are sent to the spot and thereafter the complaints are recorded. Subsequently I myself had gone to the hospital where the injured . were sent. I collected the information and the names of the injured in the hospital.'
From the deposition of R.W.2, it is dear that the report was lodged in the Police Station by Rama Naik and was taken down by him (R.W.2). But, it is nowhere stated by him RW2 that either of the injured gave any such information to him as to who was rider and who was pillion rider and that either of the injured told the Sub-Inspector the name of person driving the Motor-cycle. Therefore, it will be appropriate and proper to have the glance to the statement of P.W.2, the person who had lodged the complaint. In paragraph No. 2, the P.W.2 states:
'About 2 and 1/2 years back, at about 9.30 pm., one T.V.s Motor-cycle came and fell inside and guttar. The said guttar is situated behind my beedi shop. At that time, I was closing the shop. Then I took my gas light and looked at the side. There I saw two persons lying in that places. Then I cried out. Then several people gathered in that place. The witness in paragraph-3 further states : 'Then we have lifted both the injured and kept in front of my shop. Then I want to police station and brought two policemen. The motor-cyclists were strangers to me. I was not knowing their names and place of residence'. It has further been stated by this witness: It is not true to say that the police have read over the contents of my complaint. I cannot say that the contents written in the complaint is correct.'
When this witness P.W.2, who is alleged to be the complainant, did not know the names of the two Motor cyclists or injured persons, it cannot be said that the names of the accused were indicated by PW2 Rama Naik. The suggestion, as to the contents of the report were correct was denied by him in his deposition, as even as deposed by PW2 that report was not read over. So, this report of the police cannot be taken to be a reliable piece of evidence for the purpose of determining, who was actually rider and accused nor does it established that deceased was the rider and driver of the Motor-cycle. Therefore, in my opinion, the learned Tribunal erred in law in placing reliance on this exhibit R-3, the complaint or the report and on the statement of R.W.2 and in holding that it has proved that two wheelers moped was driven by deceased. Neither the evidence of P.W.2, R.W.2 nor Ex.R-3, establish this fact. Firstly, the evidence of P.W.5, if it gets corroboration from the statements of R.Ws.1 & 2 from amongst P.Ws also, only P.W.5 has deposed how the accident did takes place, whose evidence Trial Court has ignored as a chance witness. I may first refer to the statement of claimants' witness P.W.5 - Murali that P.W.5 had known both the deceased Gudinho and Respondent No. 1. The material portion of statement of P.W.5 reads as under:
'I am aware of the accident to Gudinho about 3 years back. At that time I was near the gate of the Port. That was at Baithkol. The accident occurred at about 9.00 P.M. I was waiting for a rickshaw to come to Karwar. A luna type 2 wheeler came from Karwar side in great speed. It was going on the right side of the Road. I was standing on the right side of the Road. The Respondent No. 1 was riding the vehicle. The moped proceeded further on the right side and fell in a guttar. It fell on the side of a shop belonging to one Rama. R.W.1 is the person, who was riding the said vehicle at the time of accident.
In the Cross-examination, P.W.5 has stated that : I know R.W.1 by name and only to the extent to speaking to each other.'
This evidence of P.W.5 indicates and shows that vehicle was being driven by rider, who was Respondent No. 1. This statement of P.W.5 reveals that the moped was going in a great speed and it was going on the right side of the Road. A suggestion was made in this connection by the Counsel for the respondents that if P.W.5 was present at the place of accident, why he did not complain to the police, and for the suggestion at any time that the accident was due to the fault of R.W.1 and the witness replied, I was not examined by the police regarding it. But, there is no other ground to reject P.W.5's evidence. As this witness has been known to both the deceased and R.W.1, he may be said to be an impartial witness.
From the statement of R.W.1, certain circumstantial evidence emerges that render support to what P.W.5 has stated and when the evidence of P.W.5 gets support from the circumstantial evidence emerging out of statement of R.W.1, which has to be pointed out hereinafter. There is no reason not to accept this evidence of P.W.5.
R.W.1 who is none else than Respondent No. 1 - Sudesh Kulkarni. Sudesh Kulkarni in his Examination-in-chief states that:
'On 27.2.1987, I had come to Karwar petrol bunk. I had come on Silver Plus moped vehicle No. CNE 1178. It was about 8.30 P.M. Deceased Mr. Ignatius met me near the petrol bunk. He requested me to give drop on my moped to Binga. I started running vehicle in the beginning. I moved the vehicle upto Head Post Office at Karwar. Thereafter, the deceased ridded the vehicle, and then he says deceased was riding the vehicle in the normal speed.........No doubt, he has further stated in the examination-in-chief that I had no concern for the accident. The accident did not occurred due to fault of deceased Ignatius.
The statement of R.W.1 Sudesh Kulkarni, has to be examined with caution and care to find out the truth. But, before I proceed further, it will be just and proper to refer to certain material portions:
'I lend my vehicle for only persons, who know driving but not to others. Deceased Gudinho did not own any vehicle. He had a bicycle and using it wherever he was going.'
From the reading of these statements of R.W.1, it comes out that whatever request, deceased Mr. Gudinho had made to R.W.1, has been very dearly stated by R.W.1 that request was made by Gudinho that R.W.1 should give drop to the deceased on the Moped to Binga. The exact words as quoted earlier are the requested me to give drop on my Moped to Binga. There is no such suggestion or statement in the deposition of R.W.1 that deceased Sri Ignatius Gudinho made a request to R.W.1 to allow him Gudinho to drive a ride and have a drive of the vehicle belonging to R.W.1. Once, R.W.1 started taking him Gudinho and was running the vehicle he moved the vehicle towards the Head Post Office also then thereafter, there is nothing in the evidence to indicate at what stage and for what reason, the change had taken place. The change in the sense that R.W.1 stopped driving the vehicle and deceased was allowed to drive the vehicle, R.W.1 would have deposed regarding it. This bald statement, that thereafter, deceased was riding the vehicle in the normal speed cannot be taken to be correct and this appears to be nothing but a change in the statement purpose of saving his own skin by R.W.1, that he made that statement. R.W.1 had also deposed that Gudinho did not own any vehicle, the deceased only had a bicycle to use, he could not make any positive ascription that Gudinho did know the riding and owning Motor-vehicle or the Motor Cycle or Moped.
The Statement of P.W.1, the mother of the deceased is very dear in this respect, that is Smt. Treza Gudinho, in the course of her statement vide para-8 of the deposition, has deposed that:
'The deceased was not knowing motor-cycle riding. The deceased was not liking to drive a motor-cycle. Though my eldest son was having a motor-cycle, the deceased never used to ride it. He used to go for his work at Binga by bus.'
The statement of the mother appears to be reliable. The consideration of these statements lead me to one conclusion that on the material date, that is on 27.2.1987, when Sudesh Kulkarni had come to Karwar petrol Bunk at about 8.30 p.m., deceased Ignatius Gudinho met him at the petrol Bunk and requested him to give lift and to drop him (Gudinho) at Binga on his(Sudesh's Moped) and R.W.1 Sudesh gave lift and started running the vehicle. As stated by P.W.5 that it was he, that is Respondent No. 1, who was riding the said vehicle at the time of accident did take place. Hence, the finding recorded by the Tribunal to the contrary appears to be erroneous and incorrect. Therefore, the finding of the Tribunal in this regard is set aside and it is held that at the time of accident, respondent No. 1 was riding the Motor-vehicle and was driving it, while the deceased was accompanying him as a pillion rider.
The second question is whether the vehicle was driven in moderate speed or in a rash and negligent driving?
The statement of P.W.5 quoted above makes it dear that the Moped was coming from Karwar in great speed. This statement refers to the Moped or the Motor-cycle of Respondent No. 1, which was being driven by Respondent No. 1 and fell into the guttar. This statement of P.W.5 is corroborated from the deposition of P.W.4, who has stated that at that time, two persons were going on a luna type vehicle from Karwar to Binga side, the rider of that luna type actually came on my side and was about to dash me. After moving a little, I cautioned regarding their driving, they went without stopping. The P.W.4, has further stated that those people went further where there are two roads, one going towards Baitkol Village and another towards Binga. But, they went in between these Roads and fell down. The deposition of P.W.4, indicates that the Moped was going in such a speed that it became uncontrollable. On a suggestion by the learned Counsel for the respondents, P.W.1, has stated that it is true Mr. George Fernandis, has informed me that while my son was driving the Motor-cycle, he was involved in this accident.
George Fernandis had been produced as P.W.3 and has stated that no doubt, he had informed cautioning her to take comply that one Kulkarni and Stanly Coeiho had come to me and informed that due to a motor-cycle accident Kulkarni and the deceased admitted to Hospital this matter was to be conveyed. So, he had gone to the house of P.W.1 and informed her that her son was involved in the accident and was admitted in the Hospital. P.W.3 stated dearly that 'I did not inform P.W.1 of any particulars such as who was riding the Motor-cycle and who was the pillion rider etc. I was also not aware, who was the driver in that accident and f had also not seen the deceased riding the vehicle. Hence, the statement of P.W.2 per se shows that he did not know, who were the Motor-cyclist, so also the statement given in his examination may not be of any value to the respondents.
Thus considered, the evidence on record dearly establishes that the accident in question did take place on account of the rash and negligent driving of the vehicle by R.W.1 on the date and time at the place referred in the Claim Petition and I find that the deceased suffered serious head injury. He had been hospitalised for almost 24/25 days from 27.2.1987, till 24.3.1987. On 24.3.1987, Gudinho died, the claimants are none else than the father and mother of the deceased Gudinho that is the parents.
There are two other questions as mentioned earlier to be considered and decided, under which no doubt, the claimants -appellants are entitled to be compensated by an order of grant, what is the amount of damage to be paid and by whom it has to be paid, as to whether all the respondents are jointly and severally liable to pay that on only respondents 1 and 2 are liable is another question to be considered.
Before I proceed to determine the question of quantum which the claimants are entitled to get, I think it would be proper to dispose of the contentions of the learned Counsel for the parties with reference to the question as to on whom the liability to pay is to be fastened, that is whether all the respondents are jointly and severally liable to pay or only respondents 1 & 2, which I propose to deal now. The contention on behalf of the Counsel for the appellants is that primarily, the claimants are entitled to claim the compensation, as the principal concern is to get the amount of compensation. The learned Counsel submitted that no doubt, respondents 1 and 2 are be liable for the payment of compensation, but respondent No. 3 -the Insurance Company cannot escape the liability to pay the compensation the finding of the Tribunal that Insurance Company is not liable to pay compensation is erroneous in law as well as based on misconstruction or mis appreciation of the terms of the insurance.
The Act applicable has been the Act No. 4 of 1939. As such, it would be proper and profitable to refer to the relevant provisions of the Act No. 4 of 1939, Section 96 of the Old Act and Section 94 as per Sub-section 1 lays emphasis on the necessity for insurance against third party risk. Sub-section 1 of Section 94 provides that:
'No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.
Section 95 deals with the requirements of policy of this Chapter. The material portion of Section 95 is being quoted herewith which reads as:. Section 95(1) : In order to comply with the requirements of this Chapter, a policy of Insurance must be a policy which -(a).........(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any proper of a third party caused by or arising out of the use of the vehicle in a public place;
The other clauses of Sub-section 1 of Section 95 are not material for our purpose. Section 95(2) reads : subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :-(a)................ (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward of by reason of or in pursuance of a contract of employment, - (i) in respect of persons other than passengers carried for hire or reward, a limit of Rs. 50,000/- in all.'
A reading of Sections 94(1) and 95(1) taken together reveal that unless a motor vehicle is insured against third party risk, it shall not be allowed to be used by any person nor any person shall use it except as a passenger. So far a Motor-Vehicle to be used in a public place by a person other than a passenger, is concerned it is necessary that the vehicle should have been insured against 3rd party risk. Similar is the provision contained in the Motor Vehicles Act, 1988, namely Section 146 of the New Act. No doubt, Section 147(2) of the New Act is different from Sub-section 2 of the Section 96. In this case, insurance policy had been not insured on 6.1.1987, as per Ex.R-1. The effective date of commencement of the policy is mentioned as 6th of January 1987, and the date of expiry of insurance is mentioned in this exhibit, that is Ex.R1 as 5th January 1988. The accident in question in which the deceased, that is I.K. Gudinho had been seriously injured, had taken place on 27th February 1987, and thereafter, Gudinho expired as a result of those injuries on 24th March, 1987. It will also be profitable to quote Clause (1) under the head 'liability to 3rd party' contained in Ex.R1 - the insurance policy:
'Section II - liability to third parties:- (1) Subject to the limits of liability the company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Cycle against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of : (a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 92A and Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such persons by the insured and excluding liability to any person being conveyed in or on the Motor Cycle unless such person is being conveyed by reason of or in pursuance of a contract of employment.
In this clause of the Insurance Policy, an amendment had been introduced by virtue of circular dated 2.6.1986, that amendment chit is also pasted in the policy and it is mentioned as under: It is declared and noted that the words 'Death or bodily injury to any person' appearing under Section (11)1(a) have been deleted and substituted by 'Death or body injury to any person including person conveyed in or on the Motor cycle provided such person is not carried for hire or reward.'
From the reading of Clause (1) of Section (II) of the Insurance Policy as amended by the circular dated 2.6.1986, which it appears is applicable to the case of the present claimants, as the occurrence had taken place after this date, that is 2.6.1986, on 27.9.1987, it comes out that in respect of third party, the Insurance company is liable to indemnify insured against all sums including costs and expenses which insured may become legally liable to pay in respect of the death or body injury to any person, who is conveyed in or on the Motor cycle, but who is not a passenger carried for hire or reward. This clause further clarifies that in cases of employees, if an employee is insured or his death take place in course of his employment under the insured, the company shall not be liable to pay to such person who is an employee under the insured and exception again to this clause is being made that if there is a case of an employee being conveyed by a Motor-cycle being insured, the Company shall not be liable to pay for death or injury caused to such employee. This second part of the clause excludes the liability to any person being conveyed in or on the Motor-cycle unless such person is being conveyed by reason and in pursuance of contract of employment.
For the present, the deceased was not an employee. Deceased is a third party and the deceased suffered the grievous injuries in course of his being conveyed on the Motor-cycle from one destination to other and those grevious injuries resulted in the death. It is no body's case that deceased was being conveyed on the Motor-cycle for any hire or reward. In view of these facts and circumstances and the terms of the insurance policy as amended in my opinion, the deceased who had suffered grievous injuries in the accident caused and arisen in the course of use of the Motor-cycle resulting finally in his death and the respondents 1 and 2 have been held to be liable to pay the damages or compensation to the claimants in the Claim Petition and The Insurance Company - 3rd respondent is as much liable for the same as respondents 1 and 2, as it has under taken to indemnify the insured.
The learned Counsel for the Company placed reliance on the case of NEW INDIA ASSURANCE COMPANY LTD. v. NAGARATHNA AND OTHERS : AIR1996Kant396 , in order to contend that insurer was not liable in terms of the policy in such cases, where the insured was taking the deceased on the scooter not on contract or employment
In my opinion, that decision, is distinguishable and is not of any help to the Insurance Company - 3rd respondent in the present case, as in that decision, the accident had taken place on 22.9.1984, that is earlier to 2.6.1986, and in that case, in the context of the date of occurrence - 27.2.1986, the third party liability douses was unaffected by the amendment introduced by circular dated 2.6.1986. In that decision, the Hon'ble S. Venkataraman, J., opined that the liability undertaken by the insurer covers the risk of pillion rider by virtue of amendment vide, Circular dated 2.8.96, but there is nothing in the circular to indicate that retrospective effect is to be given to circular and as such it was held that policy did not cover the risk of pillion driver. The present case is distinguishable from Nagaratna's case above referred. In the present case, insurance policy was effective from 6.1.87 for one year i.e., 5.1.88, occurrence or incident causing injuries and death of Gudinho, did take place on 27.2.87 i.e., all dates noted above were subsequent to 2.6.86 i.e., date of circular therefore, in the present case in view of amendment being applicable, it must be held that the policy covers the risk of pillion rider in the present case. That amendment in the clause of the policy covers the third party risk including death or bodily injury causes to any person including the person conveyed in or on the Motor-cycle and it is provided that such person should not have been carried on for hire or reward, it may not cover that risk, but if a person is not carried on for hire or reward, then company has undertaken the liability to compensate or indemnify the insured for whatever sum it is required to pay as compensation to the claimant including the costs and the interest.
Thus considered in my opinion in the present case, whatever is the liability of respondents 1 and 2, the company, i.e., respondent No. 3, is also liable to pay the said amount which it has undertaken to indemnify the insured and thus in the present case, respondents 1, 2 and respondent No. 3 (i.e. Insurance Company as well) are jointly and severally liable to pay the compensation amount with costs and interests which may be or is being assessed hereinafter:
That as regards the quantum of compensation, following factors have to be taken in view: It is because the injured has died as a result of the injuries, the consideration that has to be taken into view would have been his future prospects, earnings and what he would have contributed to the benefit of the family or to the benefit of his heirs, the father and mother and to what extent of period, these two heirs would have enjoyed the benefit of the earnings on account of the dependency on the deceased. In this context, age of deceased is no doubt material to be look into in addition to what he was earning monthly and what he could have subscribed to the family. But, there is one more factor that has to be taken into consideration, the ages of the heirs who would have enjoyed and the expectancy of their life for the purpose of applying the doctrine of multiplier. In the Claim Petition, it has been indicated that the age of the deceased at the time of occurrence was 27 years. He was in service in Ballarpur Industries Limited, Binga, Dist. Uttara Kannada, as Electrician. In the Claim Petition, it has further been indicated that the monthly income of the deceased was about Rs. 1250/-. In the claim petition though, name of the claimants are given, but their age is not mentioned, except the expression 'major'. On the date of her deposition, that is 20th October, 1989, the age of Claimant No. 2 that is the mother of the deceased is mentioned as 53 years. While appearing in witness box, Smt. Treza Gudinho, wife of Kashmir Gudinho, that is Claimant No. 2, who is Appellant No. 2, had given her age as 53 years on 20.10.1989. Occurrence had taken place on 27.2.1987. The occurrence had taken place more than 2 and 1/2 years earlier to the date of deposition. I may say it may be about 2 years and 8 months earlier. Then it means, that at the time of the occurrence, the claimant No. 2, the mother of the deceased must have been aged and would have completed 50 years or 51 at the most and if the difference of age between the Appellant No. 1 and Appellant No. 2, is taken to be 5 years, then Mr. Kashmir Gudinho would have been aged about 55 years. It is given in the evidence of claimants' witness - P.W.1 that the deceased was unmarried. That he was working as an electrician. P.W.1 has stated in the course of her evidence as claimants' witness No. P.W.1, that deceased was getting a salary of more than Rs. 1,000/- per month and was contributing around Rs. 900/- for expenses of our family and deceased used to manage the entire affairs of the house by contributing the money. Deceased had no vices of drinking or smoking. From the perusal of Ex.P77, it appears the gross salary or gross pay of the petitioner was Rs. 1087/-. The deductions from that gross slip - Ex.P77, have been shown to be Rs. 224/- and net pay has been indicated to be Rs. 863/- per month. Thus it appears from the evidence on record that the deceased was bringing home the net pay of Rs. 863/-. There is no doubt, he must also be incurring expenditures on himself. If it is taken that he must be incurring expenditures on himself to the extent of 33% of net pay or something more, it can come out that to the extent of Rs. 600/- per month, the deceased was contributing to the maintenance of his father and mother.
At the time of occurrence, as mentioned earlier, the deceased was a bachelor, the age of the father of the deceased was about 55 years and that of the mother, it must be 50 years. Looking to the age of the claimants, at the time of the death of I.K. Gudinho, the fact of longivity of the life in India which has increased now and in some cases, it has gone to the extent of 65 or 70 and as well as looking to the future prospects as well, if are taken in view, I think it would be proper to apply the multiplier of 13. Thus, the compensation for loss caused by death of the deceased to the claimants may be assessed as under:
Net pay Rs. 863/- minus 263/- rupees (which assumed to be spent by the deceased on his ownself) is equal to 600/- rupees monthly benefit going to the claimants by 12, i.e. Rs. 600 x 12 is equal to Rs. 7200/- yearly benefit accruing to the family or dependency of the parents on the deceased multiplied by 13, is equal to Rs. 93,600/- in the round figure this liability may be fixed at Rs. 94,000/- and hence, the compensation to which under this head appellants are entitled is held to be 94,000/- rupees. The claimant had also asserted that in respect of medical treatment, nourishing and conveyance etc. the claimants have incurred an expenditure to the tune of Rs. 15,000/-. The documentary evidence with respect to the purchase of medicine has been produced in the form of Exs.P1 to Exhibit P 75. The total sum under these exhibits comes to about Rs. 5,654/- and some paises. P.W.1 that is, the claimants' witness in her statement has stated: I have produced some receipts available with me. They are marked as Exs. P1 to P 75 amounting to Rs. 5,654.70 Ps. P.W.1 has also stated that during the course of hospitalisation of the deceased in the Manipal, the two persons were attending, that is the claimant and her daughter and in boarding and lodging, they incurred an expenditure of Rs. 60/- per day for 25 days will come to the tune of Rs. 1,500/-. The evidence so far available in the case no doubt shows an expenditure of Rs. 4,154/-. P.W.1 has stated in paragraph-6 that in Manipal, we had incurred expenditure of Rs. 10,000/-. A perusal of the Judgment of the Tribunal indicates that if petitioners were held to be entitled to compensation, a sum of Rs. 10,000/- towards expenses in the treatment and others should have been allowed, it appears to me to be just and proper that a sum of Rs. 10,000/- be awarded as special damages for medical expenses as well as towards the other expenses which had to be met during the course of hospitalisation of the deceased in the Manipal Hospital as well as in the matter of lodging and boarding when they were serving or attending the deceased. Thus considered in my opinion, the claimants are entitled to be awarded compensation under the general head, that is towards loss of dependency or benefit and the mental suffering as general damages, a sum of Rs. 94,000/ -, the claimants are entitled to be awarded a sum of Rs. 10,000/-with reference medical expenditure, expenditure for housing and boarding and others. The claimants as such, are being awarded a total sum of Rs. 1,04,000/-, as the compensation covering under both the heads (general and Special damages).
The claimants are also awarded interest on the above amount at the rate of 9% per annum from the date of the Claim Petition. The appeal as such is allowed with costs of both the Courts, that is both in the Tribunal and in this Court. It is hereby clarified that it shall be the joint and several responsibility of the respondents 1, 2 and 3, to pay the amount of compensation awarded as above with costs of both the Courts, that is Tribunal and in this Court and interest at the rate of 9% on the amount from the date of the Claim Petition till the date of payment of compensation. This appeal is thus, allowed with costs.