United India Insurance Company Limited Vs. G. Rajeshwar, S/O. G. Shanker and anr. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - 8. from the two authorities referred to hereinabove, it may be taken as well settled that normal rule about deprivation of income is not strictly applicable to the case where agricultural income is the source.v.v.s. rao, j.1. first respondent in this appeal, aged 18 years statedly an agriculturist, was travelling as a pillion rider on a scooter on 05.02.1996. lorry bearing no. aat6887 dashed against the scooter. first respondent received serious injuries. he was admitted at government hospital, nizamabad, for treatment. thereafter, he was shifted to osmania general hospital and again referred to nizams institute of medical sciences. alleging that he incurred rs. 80,000/- for treatment, he filed o.p.no.385 of 1996 on the file of the motor accident claims tribunal-cum-district judge, nizamabad, claiming a sum of rs. 2,00,000/- as compensation.2. o.p was opposed by the insurer denying the negligence on the part of the driver and on quantum of compensation.3. in view of the dispute, learned tribunal framed two issues and enquiry was conducted. first respondent examined himself as p.w.1. doctor who treated him was examined as p.w.2. exs.a1 to a7 were marked besides exs.c1 and c2. ex.a4 is the bunch of 15 medical bills. ex.a6 is insurance policy, and ex.c1 is the disability certificate issued by p.w.2 showing that first respondent suffered50% disability. considering the evidence on record learned tribunal held that accident occurred due to rash and negligent driving of the driver of the lorry. learned tribunal then fixed age of the injured as 25 years and determined income as rs. 3,000/- per month. a total sum of rs. 2,00,000/- was awarded though it was determined as rs. 2,08,600/-.4. in this appeal learned counsel for the appellant submits that the tribunal was in error in determining the compensation that can be awarded to first respondent for the injuries sustained by him. he submits that when an agriculturist is a victim of the accident, the loss of income has to be calculated only based on supervision charges and he suggests that for the injuries sustained by the first respondent and also the disability suffered by him, the learned tribunal ought to have taken rs. 1000/- as loss of supervision charges. he placed reliance on state of haryana v. jasbir kaur : air2003sc3696 .5. in d. vinoda v. b. baswa raju 1988 (2) alt 46 this court considered the question of computation of damages consequent to death of agriculturist. after referring to decisions of allahabad, gujarat, karnataka, rajasthan and this court, the two principles to be applied are stated as under.(i) in the case of death of an agriculturist owning agricultural land, the value of the 'supervisory' services of the deceased have to be first estimated. this will not be merely equivalent to the value of the services of a farm-servant or a manager of the property employed for that purpose. it will be more than that because an owner-manager takes extra care in increasing the income year by year and also in increasing the value of the property. after thus estimating the 'special' value of the supervisory services of an 'owner-manager', a deduction is to be made in respect of the money the deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. then an actuarial multiplier suitable to the age of the deceased has to be applied from the actuarial multiplier table arrived at in bhagwandas v. mohd. arif 1987 (2) alt 137. to the said sum may be added such sums towards loss of consortium and compensation for loss of expectation of life and pain and suffering as decided in y. varalakshmi v. m. nageswara rao : 1988(1)alt337 .(ii) it is not possible to say that no amount need be awarded towards the loss to the dependency merely because the corpus of the agricultural land is left intact for the dependants. when in case of death of non-cultivators who have other properties the properties remain intact and still damages are awarded, there is no reason why on death of cultivators who have agricultural land, a negative attitude should be taken. the general practice of making automatic deductions for the value of property inherited has fallen into desuetude. the value of the accelerated receipt of property cannot according to the privy council be treated as a total or partial equivalent of the loss to the dependency inasmuch as the said acceleration has to be set off against the loss of saving of the deceased to the family. at the other extreme, it is equally not permissible to captalise the income from the land by a number of years' purchase.6. in jasbir kaur (supra) the supreme court considered the appeal of state of haryana against judgment of the division bench of high court of punjab and haryana dismissing appeal confirming the award of the motor accident claims tribunal (mact), fatehabad. one jagga singh, who was an agriculturist, died ina motor accident involving the vehicle owned by haryana roadways. his wife and minor son filed a claim petition under section 166 of the motor vehicles act, 1988 (the act, for brevity), claiming rs. 10,00,000/-. mact awarded rs. 6,50,000/- for loss of pecuniary benefits taking into consideration the monthly income of the deceased as rs. 4,500/-. the award was affirmed by the high court. the supreme court while allowing the appeal reduced the compensation to rs. 4,34,000/- observing as under.7. it is clear on a bare reading of the tribunal's decision as affirmed by the high court that no material was placed before the former to prove as to what was the income. as rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. the matter can be approached from a different angle. the land possessed by the deceased still remains with the claimants as his legal heirs. there is however a possibility that the claimants may be required to engage persons to look after agriculture. therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. attendant circumstances have to be considered. furthermore, there was no material before the tribunal to arrive at the figure ofrs. 4500 per month. no reason has been indicated to arrive at this figure. in the light of what has been discussed above about 'just compensation' the income cannot be estimated without any material to justify the estimation.8. from the two authorities referred to hereinabove, it may be taken as well settled that normal rule about deprivation of income is not strictly applicable to the case where agricultural income is the source. if it is properly pleaded and proved about loss of the value of supervisory services of the deceased person, based on that, the loss of supervisory charges can be assessed by following the multiplier method. in case of death of an agriculturist, the award of loss of value of supervisory charges would itself be the loss of dependency in addition to the conventional amounts that may be awarded towards non-pecuniary damages.9. first respondent as p.w. 1 stated that his income is rs. 3,000/- per month. this was not corroborated by any independent witness. as per the evidence of p.w.2and ex.c1, he suffered 50% disability. income and disability suffered are very crucial for determining compensation in the case of injuries to an agriculturist. though there is not evidence with regard to extent of land owned by first respondent, having regard to the fact that accident occurred in 1996 a sum of rs. 1,000/- can be taken as supervision charges and compensation can be determined on that basis. first respondent was aged 25 years. therefore, learned tribunal has to determine multiplier as 17. disability suffered is 50%.therefore, first respondent would be entitled to rs. 1,02,000/-.10. in addition to loss of income, first respondent would also be entitled to the medical expenses incurred by him. exs. a3 and a4 are the certificate/bills showing the expenditure incurred by the first respondent. on this head, a sum of rs. 10,000/- can be awarded. thus, first respondent would be entitled to rs. 1,12,000/-. the amount awarded shall carry interest at 8% per annum from the date of petition.11. the civil miscellaneous appeal is partly allowed. there shall be no order as to costs.12. learned counsel for the cross objector does not press the cross objections. cross objections are therefore dismissed.