Judgment:
Jagannadha Rao, J.
1. In this appeal, the question arises with reference to the liability of the insurance company Under Section 95(2)(a) and Section 95(2)(b) and as to the liability of the Company under a policy of 'comprehensive insurance' and as to when the Company can be said to have undertaken 'additional liability' over and above the statutory liability.
2. The appeal is by the claimant aged 60 years (in O.P. No. 59/85) consequent to the death of his wife (aged 35 years), his son and daughter-in-law, in a single accident on 12-4-1981. The total claim in the tribunal is in a sum of Rs. 40.000/- out of which Rs. 15,000/- was awarded i.e. Rs. 8,000/-due to death of wife Rs. 3,560/- as loss of consortium, Rs 3,500/- towards pain and suffering.
3. In the appeal, it is argued for the appellant by Sri K. Mallikarjuna Sastri that compensation should have been awarded properly by taking into account the loss of 'services' of the wife. It is also argued that the appellant is entitled to compensation consequent on the death of his son and daughter-in-law. On the other hand it is argued for the respondents that the appellant is not entitled to any compensation for the death of his daughter-in-law. It is also argued for the owner of the vehicle by Sri Narayanarao that under the policy the Insurance Company is liable for the whole amount as this is a comprehensive policy and as extra premium is collected. On the other hand it is argued for the Insurance Company by Sri K. Raghavachary, that its liability is limited upto Rs. 5000/- for each passenger and overall upto Rs. 75,000/-. There is no 'additional liability' undertaken.
4. It is not necessary for me to deal with the claim of the appellant consequent to the death of his daughter-in-law for the loss due to death of his wife and son itself is sufficient to cover the amount claimed, namely Rs. 40,000/-.
5. So far as the compensation for the death of the wife is concerned, inAvunuri Rajam v. Mamidi Manikyareddy (C.M.A. No. 1188/1985) in which judgment is delivered to-day, I have exhaustively considered the principles governing the award of damages consequent on the death of a house-wife and mother. Following the principles laid down there the loss to the appellant upon the death of his wife has to be calculated. In view of the low sum claimed, it is not necessary to go into minute details. The claimant-husband being 60 years old the multiplier suitable to the age of the husband is to be taken from the table in Bhagwandas v. Mohd Arif : AIR1988AP99 and having regard to the fact that we are not considering a case of a person retiring at 60 years but one could earn beyond 60 years, a multiplier of 2.25 is selected and applied against a monthly value of 'ser vices' evaluated at Rs 150/- in the same manner as in Avunuri Rajam's case. This yields Rs. 4050/-. The non-pecuniary losses towards loss of expectation of life of the wife (Rs 7,500/-) and towards pain and suffering and loss of amenities (Rs. 7,500-00) in all come to Rs. 15,000/- in view of my judgment in Varalakshmi v. Nageswararao : 1988(1)ALT337 . Adding Rs. 3,500/- towards loss of consortium, the figure comes to (Rs. 4050+ 15,000+3,500) Rs. 22,550/-. Taking the case of the death of the son and assuming a monthly contribution of atleast Rs. 100/- and applying a multiplier of 2.25 the pecuniary loss comes to Rs. 2,700/- and the loss to estate amount to another Rs. 15,000/- in all Rs. 17,700/-. The total damages thus come to Rs. 22,550+17,700: Rs. 40,250/-. As the claim is for Rs. 40,000/- the entire sum is awarded.
6. It is then argued by the learned Counsel Sri Narayanarao for the owner of the vehicle that the liability of the insurance company is for the claim amount of Rs. 40,000/- Under Section 95(2)(b) and also because the policy is a comprehensive one and extra premium has been paid. In this context reference is made to the judgment of the Madhya Pradesh High Court in New India Assurance Co. Ltd. v. Kishori 1987 ACJ 892 and of the Orissa High Court in Bimalkumar Das v. Parijata Bewa : AIR1987Ori146 . On the other hand the learned Counsel for the Insurance Company Sri K. Raghavachary has placed reliance on the recent decision of the Supreme Court in National Insurance Company v. Jugal Kishore 1988 (1) ACC 327 for rejection of the latter contention. So far as the former contention Under Section 95(2)(b) is concerned, the learned Counsel has relied upon the judgments of the Supreme Court in Motor Owners Insurance Company v. J.K. Modi : [1982]1SCR860 and in M.K. Kunhi Mohammed v. P.A. Ahmedkutty : [1987]3SCR1149 explaining the difference between the claims Under Section 95(2)(a) and claims Under Section 95(2)(b) of the Motor Vehicles Act. For the purpose of appreciating the first contention, it is necessary to refer to the provisions of Section 95(2) as they stood before the amendment thereto in 1982. The Section then stood as follows:
Section 95(2). Subject to the proviso 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;
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or 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 for fifty thousand rupees in all;
(ii) in respect of passengers-
(1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and
(4) subject to the limits aforesaid ten thousand rupees for each individual passenger where the vehicle is a mojor cab and five thousand rupees for each individual passenger in any other case;
(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle a limit of rupees two thousand in all in respect of damage to any property of a third party.
7. I may here point out that subsequent to the 1982 amendment Section 95(2) has been altered and it is not necessary to deal with the amended section for the purpose of this case, except to note the following. So far as the liability Under Section 95(2)(a) is concerned the liability of the Insurance Company has been raised after 1982 upto Rs. 1,50,000/-. So far as the liability of the Company Under Section 95(2)(b) is concerned the entire Clause (b) has been redrafted and in its place two clauses have been substituted. Under Clause (i) which deals with the persons other than those carried for hire or reward, a limit of Rs. 50,000/- is imposed. However Under Clause (ii) in respect of passengers a limit of Rs. 15,000/- for each passenger has been imposed and the statute does not impose any overall limit in respect of the various passengers carried in the bus. The Supreme Court has in Kunhimohammed's case suggested to Parliament, further changes in the Bill which was, pending in 1987, before Parliament. It is not necessary to dilite upon the further suggestions made by the Supreme Court in the above mentioned case, for the purpose of this case.
8. Coming back to the difference between Section 95(2)(a) and Section 95(2)(b), it will be noticed that Clause (a) deals with 'goods vehicle' while Clause (b) deals with 'passenger vehicle' or motor cab. The overall liability for each death is different under each of these clauses, as interpreted by the Supreme Court.
9. In the earlier case reported in Motor Owners' Insurance Company v. J.K. Modi the question arose with regard to a goods vehicle which dashed against a motor car. In that case the Supreme Court had to interpret the provisions of Section 95(2)(a). That part of the section used the words 'in all' as also the words 'any one accident'. The Supreme Court ultimately held that though in a single accident more than one person died or injured, it must be treated, that there were as many accidents as there were persons dying or injured. On that basis, it was held that so far as Section 95(2)(a) is concerned, the limit of Rs. 50,000/- should treated as a limit in respect of each individual dying or injured. This interpretation was given notwithstanding the use of the words 'in all' and the words 'one accident'.
10. But the principles laid down in the above said case cannot be applied to a case arising Under Section 95(2)(b) dealing with passenger vehicle and the death or injuries to passengers carried inside the vehicle. In fact, even in Motor Owners Insurance Co. v. J.K. Modi their Lordships pointed out the distinction between the limits imposed in respect of accident involving a goods vehicle Under Section 95(2)(a) and accident involving a. passenger vehicle falling Under Section 95(2)(b) in its discussion in the context of the case in Northern India Transporters Insurance Company v. Smt. Amrawati AIR 1966 Punjab 288 and in the context of Sheikhupura Transport Co. v. Northern India Transporters Insurance Company : AIR1971SC1624 referred to therein. It is therefore clear that even in Motor Owners Insurance Co. v. J.K. Modi the Court clearly pointed out that the principles enunciated with regard to Section 95(2)(a) cannot be attracted to Section 95(2)(b).
11. The above position was, however, more clearly explained in M.K. Kunhimohammad v. P.A. Ahmedkutty. In that case, it was pointed out that while Section 95(2)(a) prescribed only one limit, say, Rs. 50,000/-the provisions of Section 95(2)(b) prescribed two different limitations. Before the 1982 amendment, the provisions in Section 95(2)(b) prescribed a limit for each passenger travelling in the vehicle for hire or reward or for those who were other than those carried for hire or reward and a separate overall limit in respect of the compensation payable for the claims by all the persons dying or injured due to the accident by the vehicle. In view of the double limitation imposed in Section 95(2)(b) both in respect of the individual passenger and the overall liability, the Supreme Court held that the interpretation of the word 'accident' given to Section 95(2)(a) in Motor Owners Insurance Co. v. J.K. Modi is not attracted to the cases falling Under Section 95(2)(b). For the above said reasons, there is no question of giving a go-by to the individual liability of Rs. 5,000/- for each passenger and instead applying an individual liability of Rs. 50,000/-(or Rs. 75,000/- or Rs. 1,00,000/- depending upon the capacity of the bus) for each of the passenger.
12. Bearing these principles in mind, we have now to consider the various clauses in the insurance policy governing the present case.
13. The insurance policy bears a title 'Commercial Vehicles Comprehensive'. Section-I bears heading 'loss of damage', while Saction-II bears heading 'liability of third parties' and Section-III bears heading 'Towing disabled vehicles'. There is an endorsement that Sections I and III are deemed to be cancelled so far as this policy is concerned. It therefore remains to apply. Provisions of Section II alone dealing with liability to third parties. It is necessary to refer to the relevant portion of Section II which reads as follows:
1. Subject to the limits of liability the company will indemnify the Insured against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of-
(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle.
(ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle.
Provided always that:
(a) The Company shall not be liable in respect of death, injury or damage caused or arising beyond the limits of any carriage way or thoroughfare....
(b) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the Insured arising out of and in the course of such employment.
(c) Except so far as is necessary to meet the requirements of Section 95 of Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the Company shall not be liable in respect of death or of bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.
(d) ... ---
(e) ... ---
(f) ... ---
(g) ... ---
14. Coming to the schedule of the policy, it is no doubt mentioned fairly at the top of the policy that the Insurance covers 'TP' which does not disputed, means third party liability. Thereafter the policy mentioned the following details:
Basic Premium ... Rs. 111-00Add : 1/2% of I E V --Less : for excess --Add : for Legal liabilityto passengers (60) Rs. 360-00Add : Strike & Riot --Add : for Wider Legal liability Rs. 16-00(to driver/cleaner) ----------Rs. 487-0073-00Less : for no claim bonus(15%)----------Nett Premium Rs. 414-00Limits of Liability:
Limit of the amount of the Company's liability Under Section II--I (i) In respect of any one accident; Such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.
Limit of the amount of the Company's liability Under Section II--1(ii) in respect of any one claim or series of claims arising out of one event: Rs. 50,000/-
15. It is argued by Sri Narayana Rao, learned Counsel for the owner of the vehicle that inasmuch as the policy is a comprehensive policy and the liability of third parties is agreed to be indemnified by the Insurance Company the entire claim arising in this case is to be borne by the Insurance Company, It is further pointed out that apart from the basic premium of Rs. 111/- the company had received an additional amount of Rs. 360/-towards the legal liability to 60 passengers and that the additional premium was paid to cover the liability which was in addition to the Act liability. It is pointed out in Pushpa Bai v. Ranjeet Jinee 1977 AC J 343 the Supreme Court held that the Insurance Company could agree to cover a liability wider than the one provided by the Act Under Section 95.
16. The above argument of the learned Counsel though plausible cannot be accepted. In this context, doubts, if any, on this question as to the interpretation of such a policy are now set at rest by the recent decision of the Supreme Court in National Insurance Company v. Jugal Kishore (supra). In that case, the accident occurred on June 15, 1969, when a passenger bus hit a three wheeler the deceased was driving. The insurance policy in that case also bears the title 'Commercial Vehicles Comprehensive'. Section II(i) contain two self same clauses as in the present case and the schedule contains the limit of liability which was described in the same manner as in the present case, subject with this difference that instead of a sum of Rs. 50,000/- mentioned as accident of liability Under Section II(I)(ii) a figure of Rs. 20,000/- alone was mentioned, according to the law enforced prior to the 1969 amendment which came into force in 1970. The policy further mentioned the following details:
Premium ... Rs. 415-00Add: 1/2% of IEV 200-00Add : for 53 passengersat 2.50 132-50Add : for driver and conductor : 10-00----------Rs. 757-50
17. In that case also it was argued before the Supreme Court that in as much as the policy was described as 'comprehensive insurance policy' and further additional premium of Rs. 2.50 was collected for each of the 53 passengers in addition to the basic premium of Rs. 415/-; it must be treated that the insurance company had entered into a special contract undertaking liability for unlimited sum and beyond the extent of its statutory liability in view of the permissability of such a contract as stated in Pushpabai's case. The Supreme court rejected the above contention and observed that the mere description of the policy as a 'comprehensive' policy did not make any difference. It applied only to the damage to the vehicle. It further pointed out that collection of Rs. 2-50 as additional premium for each of the 53 passengers in addition to the basic premium of Rs. 415/- was to cover nothing more than the extent of statutory liability Under Section 95(2) of the Act. According to the Supreme Court, if an unlimited liability or a liability in excess of the one covered by the statute was to be fastened on the insurance company there must be a special contract undertaking such a liability and that mere collection of additional premium per each passenger at Rs. 2-50 in addition to the basic premium cannot be trated as equivalent to such a special contract. It is important to bear in mind the provisions of Section II(1)(i) of the policy as distinct from Section II(1)(ii). While Section II(1)(i) is applicable to liability from death or bodily injury to the person, restricted to statutory liability Section II(1)(ii) is for damage to property by use of the vehicle. The following observations of the Supreme Court in Jugal Kishor's case (supra) are significant:
A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle falling Under Section II(1)(i) has been confined to 'such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. 'This liability as is apparent from. Clause (b) of Sub-section (2) of Section 95, of the Act, was at the relevant, time of Rs. 20,000/- only. The details of the premium also indicate that no additional premium With regard to a case falling under Section II(1)(j) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insured's estimate of value including accessents (I.E.V.) thereof having been shown as Rs. 40,000/-. In this view of the matter the submission made by learned Counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability doe's not obviously have any substance. The liability under the policy in the instant pase was the same as the statutory liability contemplated by Clause (b) of Sub-section (2) of Section 95 of the Act namely Rs. 20,000/-. An award against the appellant could not therefore, have been made in excess of the said statutory liability.
18. From the above said ruling, it is clear that the fact that the vehicle had comprehensive insurance' or premiums at Rs. 2-50 per passenger was paid in addition to basic premium, did not enlarge the statutory liability of the insurance Company.
19. It is no doubt, pointed out that even so, instead of awarding individual damages per passenger at Rs. 5000/- as per the statute before 1969, a sum of Rs. 20,0,00/- was awarded by the Supreme Court. This is, no doubt, a pertinent point but, in my view, this does not affect the legal principle, laid down in the body of the judgment in Jugal Kishore's case (supra). However, the ultimate a, ward of Rs. 20,000/- on the facts of that case can be justified as follows. In that case, their Lordships proceeded on the basis that the limit of Rs. 20,000/- mentioned in the policy was applicable not only in respect of Section II(1)(ii) but also in respect of Section II(1)(i) of the policy, as the said amount was printed rather ambiguously. Whatever be the ambiguity in that case, there is no ambiguity as far as, the policy before me is concerned, inasmuch as it is clearly mentioned here that the limit of Rs. 50,000/- is only in respect of a claim Under Section II(1)(ii). But, so far as Section II(1)(i) is concerned, it is clearly mentioned that the limit is only to such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939.
20. On a construction of the policy in the present case in the light of the principles enunciated by the Supreme Court in National Insurance Company v. Jugal Kishore (supra) it must be held that under the policy the insurance company had not undertaken any liability in excess of the statutory liability which at the relevant time in 1981 was Rs. 5,000/- per passenger, subject to a maximum limit of Rs. 75,000/-. So far as the reference to Rs. 50,000/- under the schedule to the present policy is concerned, the said limit of Rs. 50,000/- was undertaken only in respect of the liability recoverable Under Section II(1)(ii), namely, ('damage to property caused by the use of the motor vehicle'). The sum of Rs. 50,000/- is therefore not preferable to any claim in respect of bodily injury or death arising Under Section II(1)(i). Thus, so far as the latter is concerned, the agreed liability is only the statutory liability.
21. The learned Counsel for the respondents has, however, placed strong reliance on a decision of the Madhya Pradesh High Court in New India Assurance Company Limited v. Kishori (supra). In that case the learned Judges refer to Section II(1)(i) and Section II(1)(ii) of the policy and also noticed that the liability undertaken Under Section II(1)(ii) was Rs. 50,000/-. But having noted the said figure the learned Judges in my opinion wrongly applied the said limit to a claim for bodily injury or death arising Under Section II(1)(i). I, therefore, respectfully dissent from the said decision inasmuch as the limit agreed upon for the purpose of damage to property has been wrongly assumed to apply as a limit to the liability in respect of bodily injury or death of the person. The learned Counsel for the respondents, Sri Narayana Roa, then relied upon another decision of the Orissa High Court in Bimal Kumar Das v. Parijata Bewa. In that case additional premium of Rs. 6/- was collected so far as the passengers are concerned. The said collection of additional premium was taken to be evidence of a contract undertaking liability over and above the statutory liability. The extract of the conditions of the policy in that case discloses that the language of those clauses is different from the one before me set out above. I do not express any opinion whether the payment of additional premium of Rs. 6/- in that case was rightly treated as an additional contract over and above the statutory liability or not. The learned Counsel for the insurance company has, however placed before me a decision of the Bombay High Court in United India Insurance Company Limited v. Abdul Munaf 1984 ACJ 653. In view of the decision of the Supreme Court in National Insurance Company v. Jugal Kishore (supra) it is not necessary for me to rely upon the judgment of the Bombay High Court for the aforesaid reasons. In the result, the contention of the learned Counsel for the respondents. Sri Narayana Rao, as also of the learned Counsel for the appellant, Sri Mallikarjuna Sastry, that the insurance company has, on the facts of the present case, undertaken the liability in excess of the statutory liability Under Section 95(2)(b) cannot be accepted. The liability is restricted to the statutory liability at the relevant time before the 1982 amendment.
22. I accept the contention of Sri K. Raghavachary that the liability of the insurance company is so limited. I have already held that the claimant is entitled to a total sum of Rs. 40,000/- as claimed.
23. For the aforesaid reasons, the insurance company will be liable only in a sum of Rs. 5,000/- each for two passengers (i.e. Rs. 10 000) subject to an overall liability of Rs. 75,000/- in respect of all the claims (including the one in this case) arising out of the accident in respect of this vehicle. But, inasmuch as the lower Court dealt with a large number of O.Ps. arising out of this accident and only a few have come in appeal to this Court, the liability of the insurance company is limited to the extent already apportioned in that behalf by the lower tribunal as being the liability of the insurance company. The rest of the amount will be recovered from the owner of the vehicle. So far as the interest payable for the amount is concerned , the sum of Rs. 15,000/- awarded by the tribunal will carry interest at 9% p.a. from the date of petition, while the balance of the amount will carry interest at 12% p.a. The appeal is accordingly allowed in the manner indicated above. There shall be no order as to costs.